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Index to Exhibits on page 13
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 0-1088
KELLY SERVICES, INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
DELAWARE 38-1510762
--------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
999 WEST BIG BEAVER ROAD, TROY, MICHIGAN 48084
----------------------------------------------
(Address of principal executive offices)
(Zip Code)
(810) 362-4444
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
---- ----
At August 2, 1996, 34,473,121 shares of Class A and 3,583,605 shares of Class B
common stock of the Registrant were outstanding.
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KELLY SERVICES, INC. AND SUBSIDIARIES
Page
Number
------
PART I. FINANCIAL INFORMATION
Statements of Earnings 3
Balance Sheets 4
Statements of Stockholders' Equity 5
Statements of Cash Flows 6
Management's Discussion and
Analysis of Results of
Operations and Financial
Condition 7
PART II. OTHER INFORMATION 10
Signature 12
Index to Exhibits Required by
Item 601, Regulation S-K 13
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<TABLE>
KELLY SERVICES, INC. AND SUBSIDIARIES
STATEMENTS OF EARNINGS
(UNAUDITED)
(In thousands of dollars except per share items)
<CAPTION>
13 Weeks Ended 26 Weeks Ended
------------------------------ ------------------------------
June 30, 1996 July 2, 1995 June 30, 1996 July 2, 1995
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Sales of services $804,262 $652,417 $1,538,193 $1,273,102
Cost of services 652,007 519,739 1,248,252 1,018,406
-------- -------- ---------- ----------
Gross profit 152,255 132,678 289,941 254,696
Selling, general and
administrative expenses 124,259 107,789 241,997 212,094
-------- -------- ---------- ----------
Earnings from operations 27,996 24,889 47,944 42,602
Interest income 1,142 2,321 2,687 4,710
-------- -------- ---------- ----------
Earnings before income taxes 29,138 27,210 50,631 47,312
-------- -------- ---------- ----------
Income taxes:
Federal 9,270 8,505 16,055 14,895
State and other 2,420 2,045 4,225 3,495
-------- -------- ---------- ----------
Total income taxes 11,690 10,550 20,280 18,390
-------- -------- ---------- ----------
Net earnings $ 17,448 $ 16,660 $ 30,351 $ 28,922
======== ======== ========== ==========
Earnings per share $.46 $.44 $.80 $.76
Dividends per share $.21 $.20 $.41 $.38
Average shares outstanding
(thousands) 38,041 37,987 38,029 37,977
</TABLE>
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<TABLE>
KELLY SERVICES, INC. AND SUBSIDIARIES
BALANCE SHEETS AS OF JUNE 30, 1996 AND DECEMBER 31, 1995
(UNAUDITED)
(In thousands of dollars)
<S> <C> <C>
ASSETS 1996 1995
- ------ ------------ ------------
CURRENT ASSETS:
Cash and equivalents $ 16,278 $ 52,811
Short-term investments 62,455 74,737
Accounts receivable, less
allowances of $10,505 and
$6,950, respectively 487,312 397,534
Prepaid expenses and other
current assets 38,474 33,520
--------- ---------
Total current assets 604,519 558,602
PROPERTY AND EQUIPMENT:
Land and buildings 35,187 35,153
Equipment, furniture and
leasehold improvements 121,099 113,521
Accumulated depreciation (73,835) (64,286)
--------- ---------
Total property and equipment 82,451 84,388
INTANGIBLES AND OTHER ASSETS 79,622 75,697
--------- ---------
TOTAL ASSETS $766,592 $718,687
========= =========
LIABILITIES & STOCKHOLDERS' EQUITY
- ----------------------------------
CURRENT LIABILITIES:
Accounts payable $ 77,554 $ 53,013
Payroll and related taxes 135,697 118,996
Accrued insurance 51,224 51,309
Income and other taxes 12,781 19,265
--------- ---------
Total current liabilities 277,256 242,583
--------- ---------
STOCKHOLDERS' EQUITY:
Capital stock, $1 par value 40,116 40,116
Treasury stock, 2,060 shares in
1996 and 2,101 shares in 1995,
respectively, at cost (6,205) (6,327)
Paid-in capital 8,194 7,215
Earnings invested in the business 447,231 435,100
--------- ---------
Total stockholders' equity 489,336 476,104
--------- ---------
TOTAL LIABILITIES &
STOCKHOLDERS' EQUITY $766,592 $718,687
========= =========
</TABLE>
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<TABLE>
KELLY SERVICES, INC. AND SUBSIDIARIES
STATEMENTS OF STOCKHOLDERS' EQUITY
(UNAUDITED)
(In thousands of dollars)
<CAPTION>
13 Weeks Ended 26 Weeks Ended
---------------------------- -----------------------------
June 30, 1996 July 2, 1995 June 30, 1996 July 2, 1995
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Capital Stock
Class A common stock
Balance at beginning of period $ 36,512 $ 36,510 $ 36,512 $ 36,507
Conversions from Class B 15 1 15 4
--------- --------- --------- ---------
Balance at end of period 36,527 36,511 36,527 36,511
Class B common stock
Balance at beginning of period 3,604 3,606 3,604 3,609
Conversions to Class A (15) (1) (15) (4)
--------- --------- --------- ---------
Balance at end of period 3,589 3,605 3,589 3,605
Treasury Stock
Balance at beginning of period (6,314) (6,216) (6,327) (6,186)
Exercise of stock options 50 -- 59 (30)
Restricted stock awards 59 35 63 35
--------- --------- --------- ---------
Balance at end of period (6,205) (6,181) (6,205) (6,181)
Paid-in Capital
Balance at beginning of period 7,324 6,210 7,215 5,868
Exercise of stock options 390 131 462 473
Restricted stock awards 480 297 517 297
--------- --------- --------- ---------
Balance at end of period 8,194 6,638 8,194 6,638
Earnings Invested in the Business
Balance at beginning of period 439,103 402,592 435,100 391,718
Net earnings 17,448 16,660 30,351 28,922
Cash dividends (7,991) (7,599) (15,594) (14,433)
Equity adjustment for foreign
currency translation (cumulative
charge of $505 in 1996 and
credit of $3,425 in 1995) (1,329) (613) (2,626) 4,833
--------- --------- --------- ---------
Balance at end of period 447,231 411,040 447,231 411,040
--------- --------- --------- ---------
Stockholders' Equity at end of period $489,336 $451,613 $489,336 $451,613
========= ========= ========= =========
</TABLE>
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<TABLE>
KELLY SERVICES, INC. AND SUBSIDIARIES
STATEMENTS OF CASH FLOWS
(UNAUDITED)
FOR THE 26 WEEKS ENDED JUNE 30, 1996 AND JULY 2, 1995
(In thousands of dollars)
<S> <C> <C>
1996 1995
---------- ----------
Cash flows from operating activities:
Net earnings $30,351 $28,922
Noncash adjustments:
Depreciation and amortization 12,911 10,619
Changes in certain working capital
components (61,221) (21,891)
-------- --------
Net cash from operating activities (17,959) 17,650
-------- --------
Cash flows from investing activities:
Capital expenditures (10,053) (14,907)
Proceeds from sales and maturities of
short-term investments 561,375 613,074
Purchases of short-term investments (549,093) (584,739)
Increase in intangibles and other assets (6,310) (15,664)
-------- --------
Net cash from investing activities (4,081) (2,236)
-------- --------
Cash flows from financing activities:
Dividend payments (15,594) (14,433)
Exercise of stock options and
restricted stock awards 1,101 775
-------- --------
Net cash from financing activities (14,493) (13,658)
-------- --------
Net change in cash and equivalents (36,533) 1,756
Cash and equivalents at beginning
of period 52,811 49,207
-------- --------
Cash and equivalents at end of period $16,278 $50,963
======== ========
</TABLE>
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MANAGEMENT'S DISCUSSION AND
ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION
Results of Operations:
Second Quarter
Sales of services in the second quarter of 1996 were $804,262,000, an
increase of 23.3% from the same period in 1995. Domestic sales grew
in excess of 20%, and reflects growth in the staffing business and
significant expansion in our staff leasing services. International
sales continued to grow at double digit rates.
Cost of services, consisting of payroll and related costs of employees
assigned to customers, increased 25.4% in the second quarter as
compared to the same period in 1995. Average hourly wage rates and
related costs from U.S. operations have increased from 1995 at a rate
somewhat higher than the general inflation rate due to a tightening
labor market.
Gross profit of $152,255,000 was 14.8% higher than 1995, while the
Company-wide gross profit rates declined from 20.3% in 1995 to 18.9% in
1996. Growth in the staff leasing business, with its inherently lower
margins, along with the upward pressure on wage rates noted above and
growth of sales with our very large customers, where contracts require
special pricing and additional implementation costs, all had the effect
of reducing the consolidated gross profit rate.
Selling, general and administrative expenses were $124,259,000 in the
second quarter, an increase of 15.3% over the same period in 1995.
As a percent of sales, the spending rate averaged 15.5%, compared to
16.5% in last year's second quarter.
Earnings before income taxes were $29,138,000, an increase of 7.1%,
compared to pretax earnings of $27,210,000 for the same period in 1995.
The pretax margin was 3.6%, a .6 percentage point decrease from the
second quarter of 1995. Lower interest income represented .2
percentage point of the decline while the net of the lower gross
margin rate and lower expense spending rate accounted for the remaining
.4 percentage point of the decrease.
Income taxes were 40.1% of pretax income. This was 1.3 percentage
point over the applicable tax rate for the second quarter of 1995 due
to increased state tax rates, reduced tax-exempt income and the
expiration of tax credits against federal income tax liability earned
through the targeted jobs tax credit program.
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Net earnings were $17,448,000 in the second quarter of 1996, an
increase of 4.7% over the second quarter of 1995. Earnings per share
were $.46 compared to the $.44 in the same period last year.
Year-to-Date
Sales of services totaled $1,538,193,000 during the first six months of
1996, an increase of 20.8% over 1995. This increase reflects continued
growth in the volume of domestic and international sales.
Cost of services of $1,248,252,000 was 22.6% higher than last year,
reflecting domestic and international volume growth and increases in
payroll costs due to a tightening U.S. labor market.
Gross profit increased 13.8% in 1996 due to strong increased sales
volume, but at lower gross profit rates on sales. The gross profit
rate was 18.8% for the first six months of 1996 compared to 20.0% for
1995. This decline reflects competitive constraints on price increases
in U.S. service lines, growth of sales with our very large customers
and higher volume growth in the staff leasing business.
Selling, general and administrative expenses of $241,997,000 were 14.1%
higher than last year. The spending rate was 15.7% of sales, 1.0
percentage point below last year's rate. Expenses continue to be
closely monitored in response to tightening margins in both U.S. and
overseas markets.
Earnings before taxes were $50,631,000, an increase of 7.0% over 1995.
These earnings averaged a pretax margin of 3.3%, or .4 percentage point
decrease over 1995. Lower interest income accounts for half of this
decline, and the net of lower gross margin rates, offset by a decreased
expense spending rate, accounted for the remainder. Income taxes were
40.1% of pretax earnings and were 1.2 percentage point higher than last
year's first half income tax rate. The absence of the targeted jobs
tax credit, increased state and local rates and increased foreign tax
rates account for this change.
Net earnings were $30,351,000, or 4.9% higher than the first six months
of 1995. Earnings per share were $.80 compared to $.76 last year.
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Financial Condition
Assets totaled $766,592,000 at June 30, 1996, an increase of 6.7% over
the $718,687,000 at December 31, 1995. Working capital increased
$11,244,000 during the six-month period. The components of working
capital, notably accounts receivable, have changed due to increased
business activity. The current ratio was 2.2 at June 30, 1996, a
decline of .1 percentage point since December 31, 1995.
The quarterly dividend rate applicable to Class A and Class B shares
outstanding was increased to $.21 per share in the second quarter of
1996. This compares to a dividend rate of $.20 per share in the second
quarter of 1995.
Management believes the financial condition of the Company continues to
be strong, which enables it to fund working capital requirements and
long-term growth opportunities from internal resources.
--------------------------------------------------------------
Companies for which this report is filed are: Kelly Services, Inc. and
its subsidiaries, Kelly Assisted Living Services, Inc., Kelly
Properties, Inc., Kelly Professional and Technical Services, Inc.,
Kelly Services (Canada), Ltd., Les Services Kelly (Quebec) Inc.,
Lenore Simpson Personnel, Ltd., Societe Services Kelly, Kelly Professional
Services (France), Inc., Kelly Services (UK), Ltd., Kelly Services
(Ireland), Ltd., Kelly Services (Australia), Ltd., Kelly Services (New
Zealand), Ltd., Kelly Services (Nederland), B.V., Kelly Services of
Denmark, Inc., OK Personnel Service Holding SA, Kelly de Mexico, S.A.
de C.V., Kelly Services Norge A.S., KSI Acquisition Corp., Kelly
Pinpoint, Inc., Your Staff, Inc., The Wallace Law Registry, Inc.,
Kelly Services France S.A., Bourse Du Travail Temporaire 2000, Kelly
Formation S.A.R.L. and Kelly Services Luxembourg S.A.R.L.
The information furnished reflects all adjustments which are, in the
opinion of management, necessary for a fair presentation of the results
of operations for the period in this filing.
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
------------------
Reference is made to Item 3, Legal Proceedings, of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and to the description therein of the
proposed imposition by the Internal Revenue Service of an
accumulated earnings tax in connection with an audit of
the Company's consolidated federal tax liability for the
years 1988, 1989 and 1990. As disclosed in Item 1, Legal
Proceedings, of the Company's Quarterly Report on Form
10-Q for the quarterly period ended March 31, 1996, this
assessment was waived in its entirety by the Internal
Revenue Service in April, 1996.
Item 4. Submission of Matters to a Vote of Security Holders.
----------------------------------------------------
(a) The annual meeting of stockholders of registrant was held
May 21, 1996.
(b) The nominees for director, as listed in the Company's
proxy statement dated April 22, 1996, were elected. The
directors whose terms of office continued after the
meeting are also listed in the proxy statement.
(c) A brief description and the results of the matters voted
upon at the meeting follow.
(1) Election of the following directors:
Shares Voted Shares Voted
"For" "Withhold"
------------ ------------
W. R. Kelly 3,494,348 3,730
B. J. White 3,494,247 3,831
(2) Approval of amendment to the Certificate of
Incorporation to increase the size of the Board of
Directors:
Shares voted "For" 3,428,489
Shares voted "Against" 54,742
Shares voted "Abstain" 14,847
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Item 4. Submission of Matters to a Vote of Security Holders
(continued).
---------------------------------------------------
(3) Approval of Amended and Restated Performance
Incentive Plan including performance-based criteria
for performance awards for senior executive
officers:
Shares voted "For" 3,449,750
Shares voted "Against" 9,156
Shares voted "Abstain" 14,470
(4) Ratification of the selection of Price Waterhouse
LLP as the Company's independent auditors:
Shares voted "For" 3,494,051
Shares voted "Against" 1,800
Shares voted "Abstain" 2,227
Item 6. Exhibits and Reports on Form 8-K.
---------------------------------
(a) See Index to Exhibits required by Item 601,
Regulation S-K, set forth on page 13 of this filing.
(b) No reports on Form 8-K were filed during the quarter
for which this report is filed.
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SIGNATURE
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.
KELLY SERVICES, INC.
Date: August 13, 1996
/s/ P. K. Geiger
P. K. Geiger
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
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INDEX TO EXHIBITS
REQUIRED BY ITEM 601,
REGULATION S-K
---------------------
Exhibit
No. Description Document
- ------- ----------- --------
3.1 Certificate of Amendment of Certificate of
Incorporation dated June 14, 1996 and filed
with the Secretary of State, State of Delaware,
on June 20, 1996. (Reference is made to
Exhibit A to the Definitive Proxy for the fiscal
year ended December 31, 1995, filed with the
Commission in April, 1996, which is incorporated
herein by reference.)
3.2 Complete copy of the Certificate of Incorporation, 2
as amended.
4 Rights of security holders are defined in
Articles Fourth, Fifth, Seventh, Eighth,
Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth and Fifteenth of the Certificate
of Incorporation, Exhibit 3.2.
27 Financial Data Schedule 3
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COMPOSITE
CERTIFICATE OF INCORPORATION
OF
KELLY SERVICES, INC.
ARTICLE FIRST
The name of the corporation is Kelly Services,
Inc.
ARTICLE SECOND
Its principal office in the State of Delaware is
located at No. 100 West Tenth Street, in the City of
Wilmington, County of New Castle. The name and address of
its resident agent is The Corporation Trust Company, No. 100
West Tenth Street, Wilmington, Delaware.
ARTICLE THIRD
The nature of the business, or objects or purposes
to be transacted, promoted, or carried on are:
To furnish office, clerical, supervisory and
consultant services.
To manufacture, purchase or otherwise acquire,
invest in, own, mortgage, pledge, sell, assign and transfer
or otherwise dispose of, trade, deal in and deal with goods,
wares and merchandise and personal property of every class
and description.
To acquire, and pay for in cash, stock or bonds of
this corporation or otherwise, the good will, rights, assets
and property, and to undertake or assume the whole or any
part of the obligations or liabilities of any person, firm,
association or corporation.
To acquire, hold, use, sell, assign, lease, grant
licenses in respect of, mortgage or otherwise dispose of
letters patent of the United States or any foreign country,
patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade
names, relating to or useful in connection with any business
of this corporation.
To acquire by purchase, subscription or otherwise,
and to receive, hold, own, guarantee, sell, assign,
exchange, transfer, mortgage, pledge or otherwise dispose of
or deal in and with any of the shares of the capital stock,
or any voting trust certificates in respect of the shares of
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capital stock, scrip, warrants, rights, bonds, debentures,
notes, trust receipts, and other securities, obligations,
choses in action and evidences of indebtedness or interest
issued or created by any corporations, joint stock
companies, syndicates, associations, firms, trusts or
persons, public or private, or by the government of the
United States of America, or by any foreign government, or
by any state, territory, province, municipality or other
political subdivision or by any governmental agency, and as
owner thereof to possess and exercise all the rights, powers
and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and
things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
To enter into, make and perform contracts of every
kind and description with any person, firm, association,
corporation, municipality, county, state, body politic or
government or colony or dependency thereof.
To borrow or raise moneys for any of the purposes
of the corporation and, from time to time, without limit as
to amount to draw, make, accept, endorse, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the
payment of any thereof and of the interest thereon by
mortgage upon or pledge, conveyance or assignment in trust
of the whole or any part of the property of the corporation,
whether at the time owned or thereafter acquired, and to
sell, pledge or otherwise dispose of such bonds or other
obligations of the corporation for its corporate purposes.
To loan to any person, firm, or corporation any of
its surplus funds, either with or without security.
To purchase, hold, sell and transfer the shares of
its own capital stock; provided it shall not use its funds
or property for the purchase of its own shares of capital
stock when such use would cause any impairment of its
capital except as otherwise permitted by law, and provided
further that shares of its own capital stock belonging to it
shall not be voted upon directly or indirectly.
To operate a private trade school and business
school in the State of Michigan after obtaining the
necessary license for such operation for the instruction of
students in various office skills, including, but not by way
of limitation, instruction in the use of various office
equipment and machines.
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To have one or more offices, to carry on all or
any of its operations and business and without restriction
or limit as to amount to purchase or otherwise acquire,
hold, own, mortgage, sell, convey, or otherwise dispose of
real and personal property of every class and description in
any of the States, Districts, Territories or Colonies of the
United States, and in any and all foreign countries, subject
to the laws of such State, District, Territory, Colony or
Country.
In general, to carry on any other business in
connection with the foregoing, and to have and exercise all
the powers conferred by the laws of Delaware upon
corporations formed under the General Corporation Law of the
State of Delaware, and to do any or all of the things
hereinbefore set forth to the same extent as natural persons
might or could do.
The objects and purposes specified in the
foregoing clauses shall, except where otherwise expressed,
be in nowise limited or restricted by reference to, or
inference from, the terms of any other clause in this
certificate of incorporation, but the objects and purposes
specified in each of the foregoing clauses of this article
shall be regarded as independent objects and purposes.
ARTICLE FOURTH
Division A
(a) The total number of shares of stock which the
corporation shall have authority to issue is 110,000,000
shares, the par value of each of the shares is $1.00,
amounting in the aggregate to $110,000,000, and the shares
are divided into two classes consisting of 100,000,000
shares of Class A Common Stock and 10,000,000 shares of
Class B Common Stock.
(b) Each of the 7,021,879 issued shares of Common
Stock of the Corporation is hereby reclassified and changed
into one and one-half (1-1/2) shares of Class A Common Stock
and one-half (1/2) share of Class B Common Stock, provided
that no fractional shares of Class A Common Stock or Class B
Common Stock shall be issued, but in the case of each holder
of issued Common Stock who would otherwise be entitled to a
fractional share of Class A Common Stock and Class B Common
Stock, the fractional shares shall be combined into a whole
share of Class B Common Stock.
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Division B
The designations, preferences and relative,
participating, optional or other special rights and the
qualifications, limitations or restrictions in respect of
the shares of each class are as follows:
(a) Dividends. Holders of the Class A Common
---------
Stock and the Class B Common Stock shall be entitled to
receive dividends, out of funds legally available therefor,
when and as declared by the Board of Directors, subject only
to the limitations that (1) no cash dividend payable on the
shares of the Class B Common Stock shall be declared unless
the Board of Directors shall concurrently declare a cash
dividend on the shares of the Class A Common Stock at a rate
which is not less than the rate of the cash dividend payable
on the shares of the Class B Common Stock (but a cash
dividend may be declared on the Class A Common Stock without
declaring a cash dividend on the Class B Common Stock), and
(2) no dividend payable in shares of the Class B Common
Stock shall be declared on the Class A Common Stock (but a
dividend payable in shares of Class A Common Stock may be
declared on the Class A Common Stock or the Class B Common
Stock and a dividend payable in shares of Class B Common
Stock may be declared on the Class B Common Stock).
(b) Voting Rights. Except on matters where their
-------------
vote is required by Delaware law, the holders of the Class A
Common Stock shall not be entitled to vote on any matter
coming before any meeting of stockholders. The holders of
the Class B Common Stock shall be entitled to one vote per
share upon each matter coming before any meeting of
stockholders.
(c) Conversion of Class B Common Stock.
-----------------------------------
1. Shares of Class B Common Stock shall be
convertible, at the option of the respective holders
thereof, at any time, into fully paid and non-assessable
shares of Class A Common Stock on the basis of one share of
Class A Common Stock for each share of Class B Common Stock.
2. No payment or adjustment with respect to
dividends on shares of the Class A Common Stock or on the
Class B Common Stock shall be made in connection with any
conversion of shares of Class B Common Stock into shares of
Class A Common Stock.
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3. The holders of a certificate or
certificates for Class B Common Stock, in order to effect the
conversion of shares represented thereby, shall
surrender the certificate or certificates to the corporation
or to the Transfer Agent for the shares of the Class B
Common Stock, with request for conversion. If the shares of
the Class A Common Stock issuable upon conversion are to be
issued in a name other than that in which the shares of the
Class B Common Stock to be converted are registered, the
certificate or certificates shall be duly endorsed for
transfer or accompanied by a duly executed stock transfer
power, and shall also be accompanied by the necessary stock
transfer stamps or equivalent funds.
Upon surrender of the certificate or
certificates, the corporation shall issue and deliver or
cause to be issued and delivered to the person entitled
thereto a certificate or certificates for the number of full
shares of the Class A Common Stock issuable upon conversion.
The corporation shall pay all original issue taxes, if any,
payable upon the issue of shares of the Class A Common Stock
issued upon any conversion.
The conversion shall be deemed to have been
effected on the date of the surrender of the certificate or
certificates of shares of the Class B Common Stock, and the
person in whose name the certificate or certificates of the
shares of the Class A Common Stock issuable upon conversion
are to be issued shall be deemed to be the holder of record
of the shares as of that date.
4. If there should be any capital
reorganization or any reclassification of the Class A Common
Stock, the shares of the Class B Common Stock shall
thereafter have the right to be converted into the number of
shares of stock or other securities or property of the
corporation to which outstanding shares of the Class A
Common Stock would have been entitled upon the effective
date of the reorganization or reclassification. The Board
of Directors shall make an appropriate adjustment in the
application of the provisions of this paragraph (c) with
respect to the conversion rights of the holders of the
shares of the Class B Common Stock after the reorganization
or reclassification, to the end that the provisions shall be
applicable, as nearly as reasonably may be, in respect to
any shares or other securities or property thereafter
issuable or deliverable upon the conversion of shares of the
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Class B Common Stock. The provisions of this sub-paragraph
shall not apply to a reorganization or reclassification
involving merely a subdivision or combination of outstanding
shares of the Class A Common Stock.
5. In case the corporation shall be
consolidated with or merged into any other corporation or
shall sell or transfer its property and business as or
substantially as an entirety, then the stock or other
securities or other property, including cash, issuable or
deliverable in connection with such consolidation, merger or
sale in respect of each share of the Class A Common Stock
then outstanding, shall thereafter, for the purposes of the
conversion rights of the Class B Common Stock, be deemed the
equivalent of one share of Class A Common Stock. Upon the
exercise of conversion rights, holders of Class B Common
Stock shall be entitled to receive on an equivalent basis
and at the same rate and on the other terms and conditions
set forth in this paragraph (c), the stock or other
securities or property, including cash, deemed to be the
equivalent of Class A Common Stock. Lawful provisions to
this effect shall be made a part of and condition to the
consolidation, merger or sale.
6. In case the corporation shall propose (i)
to effect any reclassification of the Class A Common Stock
or any capital reorganization involving a change in the
Class A Common Stock, other than a reclassification or
reorganization involving merely a subdivision or combination
of outstanding shares of the Class A Common Stock, or (ii)
to consolidate with or merger into another corporation, or
to sell or transfer its property and business as or
substantially as an entirety, then, in each such case, the
corporation shall file with each Transfer Agent for the
shares of the Class B Common Stock and shall mail to the
holders of record of the shares at their respective
addresses then appearing on the records of the corporation a
statement, signed by an officer of the corporation, with
respect to the proposed action, the statement to be so filed
and mailed at least 30 days prior to the record date for
holders of the Class A Common Stock for the purposes
thereof. The statement shall set forth such facts with
respect to the proposed action as shall be reasonably
necessary to inform each Transfer Agent for the shares of
the Class B Common Stock and the holders of those shares as
to the effect of the action upon the conversion rights of
the holders.
<PAGE>
<PAGE>
- 7 -
7. The corporation shall at all times have
authorized but unissued, or in its treasury, a number of
shares of the Class A Common Stock sufficient for the
conversion of all shares of the Class B Common Stock from
time to time outstanding.
8. In case the shares of the Class A Common
Stock or the Class B Common Stock at any time outstanding
shall, by reclassification or otherwise, be subdivided into
a greater number of shares or combined into a lesser number
of shares, the shares of Class B Common Stock or Class A
Common Stock, respectively, then outstanding shall, at the
same time, be subdivided or combined, as the case may be, on
the same basis.
(d) Preemptive Rights. Holders of the Class A
-----------------
Common Stock shall have no preemptive right to subscribe to
any securities issued by the corporation. Holders of the
Class B Common Stock shall have the preemptive right to
subscribe to additional shares of Class B Common Stock, or
any other voting stock or any security convertible into
Class B Common Stock or other voting stock, hereafter issued
by the corporation.
(e) Liquidation Preferences.
-----------------------
1. In the event of dissolution, liquidation
or winding up of the corporation, whether voluntary or
involuntary, holders of the Class A Common Stock and of the
Class B Common Stock shall be entitled to payment out of the
assets of the corporation ratably in accordance with the
number of shares held by them respectively.
2. Neither a consolidation nor a merger of
the corporation with or into any other corporation, nor a
merger of any other corporation into the corporation, nor
the purchase or other acquisition by the corporation of all
or a part of the outstanding shares of any class or classes
of its stock, nor the sale or transfer of the property and
business of the corporation, as or substantially as an
entirety, shall be considered a dissolution, liquidation or
winding up of the corporation within the meaning of the
foregoing provisions.
<PAGE>
<PAGE>
- 8 -
ARTICLE FIFTH
The business, property and affairs of this
corporation shall be managed by a Board of Directors
consisting of no fewer than five (5) and no more than nine
(9) members, the exact number to be determined from time to
time by resolution of the Board of Directors. The directors
shall be classified with respect to the term for which they
shall severally hold office by dividing them into three
classes, as nearly equal in number as may be, the classes to
hold office for successive terms of three years,
respectively, but all directors of the corporation shall
hold office until their successors are elected and
qualified. The Board of Directors may exercise all such
powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of
Incorporation or by the by-laws directed or required to be
exercised or done by the stockholders.
Newly created directorships resulting from any
increase in the authorized number of directors and vacancies
in the Board of Directors from death, resignation,
retirement, disqualification, removal from office or other
cause, shall be filled by a majority vote of the directors
then in office, and directors so chosen shall hold office
for a term expiring at the annual meeting at which the term
of the class to which they shall have been elected expires.
No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director.
Any director, or the entire Board of Directors,
may be removed at any time, but only for cause. The
affirmative vote of the holders of 75% of the voting power
of all of the stock of this corporation entitled to vote in
elections of directors shall be required to remove a
director from office. The stockholders of the corporation
are expressly prohibited from cumulating their votes in any
election of directors of the corporation.
ARTICLE SIXTH
The names and places of residence of the
incorporators are as follows:
NAMES RESIDENCES
L. E. Gray Wilmington, Delaware
S. M. Brown Wilmington, Delaware
A. D. Atwell Wilmington, Delaware
<PAGE>
<PAGE>
- 9 -
ARTICLE SEVENTH
By-laws of the corporation may be adopted, amended
or repealed by the affirmative vote of a majority of the
total number of directors or by the affirmative vote of the
holders of 75% of the voting power of all of the stock of
this corporation entitled to vote in elections of directors.
The by-laws may contain any provision for the regulation and
management of the affairs of the corporation and the rights
or powers of its stockholders, directors, officers, or
employees not inconsistent with the laws of the State of
Delaware.
ARTICLE EIGHTH
(a) Except as set forth in paragraph (d) of this
Article, the affirmative vote of the holders of 75% of the
voting power of all of the stock of this corporation
entitled to vote in elections of directors shall be
required:
(i) for a merger or consolidation of this
corporation or any subsidiary thereof with or into
any other corporation, or
(ii) for any sale or lease of all or any
substantial part of the assets of this corporation
or any subsidiary thereof to any other
corporation, person or other entity, or
(iii) for any sale or lease to this
corporation or any subsidiary thereof of any
assets (except assets having an aggregate fair
market value of less than $5,000,000) in exchange
for voting securities (or securities convertible
into voting securities or options, warrants or
rights to purchase voting securities or securities
convertible into voting securities) of this
corporation or any subsidiary by any other
corporation, person or other entity,
if as of the record date for the determination of
stockholders entitled to notice thereof and to vote thereon
the other corporation, person or other entity which is party
to the transaction is the beneficial owner, directly or
indirectly, of 5% or more in number of shares of the
outstanding shares of any class of stock of this corporation
entitled to vote in elections of directors.
<PAGE>
<PAGE>
- 10 -
(b) For purposes of this Article, any
corporation, person or other entity shall be deemed to be
the beneficial owner of any shares of stock of this
corporation,
(i) which it owns directly, whether or not
of record; or
(ii) which it has the right to acquire
pursuant to any agreement or understanding or upon
exercise of conversion rights, warrants or options
or otherwise, whether or not presently
exercisable; or
(iii) which are beneficially owned, directly
or indirectly (including shares deemed to be owned
through application of clause (ii) above) by an
"affiliate" or "associate" as those terms are
defined herein; or
(iv) which are beneficially owned, directly
or indirectly by any other corporation, person or
entity (including any shares which the other
corporation, person or entity has the right to
acquire pursuant to any agreement or understanding
or upon exercise of conversion rights, warrants or
options or otherwise, whether or not presently
exercisable) with which it or its "affiliates" or
"associates" has any agreement or arrangement or
understanding for the purpose of acquiring,
holding, voting or disposing of stock of this
corporation.
For the purpose of this Article EIGHTH, the
outstanding shares of stock of this corporation shall
include shares deemed owned through the application of
clauses (b)(ii), (iii) and (iv) above, but shall not include
any other shares which may be issuable pursuant to any
agreement or upon exercise of conversion rights, warrants,
options or otherwise.
For the purposes of this Article EIGHTH, the term
"affiliate" shall mean any person that directly, or
indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, the
corporation, person or other entity. The term "control"
(including the terms "controlling," "controlled by" and
"under common control with") means the possession, directly
<PAGE>
<PAGE>
- 11 -
or indirectly, of the power to direct or cause the direction
of the management and policies of the corporation, person or
other entity, whether through the ownership of voting
securities, by contract, or otherwise.
For the purposes of this Article EIGHTH, the term
"associate" shall mean (1) any corporation or organization
(other than this corporation or a majority-owned subsidiary
of this corporation) of which the corporation, person or
other entity is an officer or partner or is, directly or
indirectly, the beneficial owner of 10% or more of any class
of equity securities; (2) any trust or other estate in which
the corporation, person or other entity has a substantial
beneficial interest or as to which the corporation, person
or other entity serves as a trustee or in a similar
fiduciary capacity; and (3) any relative or spouse of a
person, or any relative of a spouse, who has the same home
as the person or who is a director or officer of this
corporation or any of its subsidiaries.
(c) The Board of Directors shall have the power
and duty to determine for the purpose of this Article EIGHTH
on the basis of information known to the Board of Directors
of this corporation, whether
(i) the other corporation, person or other
entity beneficially owns more than 5% in number of
shares of the outstanding shares of any class of
stock of this corporation entitled to vote in
elections of directors;
(ii) a corporation, person or other entity
is an "affiliate" or "associate" (as defined in
paragraph (b) above) of another; and
(iii) the assets being acquired by this
corporation, or any subsidiary thereof, have an
aggregate fair market value of less than
$5,000,000.
Any such determination shall be conclusive and
binding for all purposes of this Article EIGHTH.
(d) The provisions of this Article EIGHTH shall
not apply to any merger or other transaction referred to in
this Article EIGHTH with any corporation, person or other
entity if (1) the Board of Directors of this corporation has
approved a memorandum of understanding with the other
corporation, person or other entity with respect to the
<PAGE>
<PAGE>
- 12 -
transaction prior to the time that the other corporation,
person or other entity shall have become a beneficial owner
of more than 5% in number of shares of the outstanding
shares of stock of any class of this corporation entitled to
vote in elections of directors; or (2) the transaction is
otherwise approved by the Board of Directors of this
corporation, provided that a majority of the members of the
Board of Directors voting for the approval of the
transaction were duly elected and acting members of the
Board of Directors prior to the time that the other
corporation, person or other entity shall have become a
beneficial owner of more than 5% in number of shares of the
outstanding shares of stock of any class of this corporation
entitled to vote in elections of directors. In addition,
the provisions of this Article EIGHTH shall not apply to any
merger or other transaction referred to in this Article
EIGHTH with a subsidiary (which terms shall mean a
corporation of which a majority of the outstanding shares of
stock entitled to vote in elections of directors is owned by
this corporation directly, and/or indirectly through one or
more other subsidiaries).
ARTICLE NINTH
In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
To fix the amount to be reserved as working
capital over and above its capital stock paid in, to
authorize and cause to be executed mortgages and liens upon
the real and personal property of this corporation.
From time to time to determine whether and to what
extent, and at what times and places, and under what
conditions and regulations, the accounts and books of this
corporation (other than the stock ledger), or any of them,
shall be open to inspection of stockholders; and no
stockholder shall have any right of inspecting any account,
book or document of this corporation except as conferred by
statute unless authorized by a resolution of the
stockholders or directors.
By resolution or resolutions, passed by a majority
of the whole board to designate one or more committees, each
committee to consist of two or more of the directors of the
corporation, which, to the extent provided in said
resolution or resolutions, or in the by-laws of this
<PAGE>
<PAGE>
- 13 -
corporation, shall have and may exercise the powers of the
Board of Directors in the management of the business and
affairs of this corporation, and may have power to authorize
the sale of this corporation to be affixed to all papers
which may require it. The Committee or committees shall
have the name or names as may be stated in the by-laws of
this corporation or as may be determined from time to time
by resolution adopted by the Board of Directors.
This corporation may, in its by-laws confer powers
upon its directors in addition to the foregoing, and in
addition to the powers and authorities expressly conferred
upon them by the statute.
Both stockholders and directors shall have power,
if the by-laws so provide, to hold their meetings and to
have one or more offices within or without the State of
Delaware, and to keep the books of this corporation (subject
to the provisions of the statutes), outside of the State of
Delaware at such places as may be from time to time
designated by the Board of Directors.
ARTICLE TENTH
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 application of any receiver
or receivers appointed for this corporation under the
provisions of Section 3883 of the Revised Code of 1915 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 43 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 consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which
<PAGE>
<PAGE>
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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.
ARTICLE ELEVENTH
The Board of Directors of this corporation, when
evaluating any offer of another party to (a) make a tender
or exchange offer for any equity security of this
corporation; (b) merge or consolidate this corporation with
another corporation; or (c) purchase or otherwise acquire
all or substantially all of the properties and assets of
this corporation, shall, in connection with the exercise of
its judgment in determining what is in the best interest of
this corporation and its stockholders, give due
consideration to such factors as the Board of Directors
determined to be relevant, including without limitation, the
social, legal, and economic effects of the proposed
transaction upon employees, customers, suppliers, and other
affected persons, firms and corporations and on the
communities in which this corporation and its subsidiaries
operate or are located.
ARTICLE TWELFTH
No action required or permitted to be taken at any
annual or special meeting of the stockholders of this
corporation may be taken without a meeting and the power of
stockholders to consent in writing, without a meeting, to
the taking of any action is specifically denied.
ARTICLE THIRTEENTH
No director of the corporation shall be personally
liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty by such director as a
director; provided, however, that this Article THIRTEENTH
shall not eliminate or limit liability (i) for any breach of
the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing
violation of law, (iii) under section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit.
The foregoing provisions of this Article THIRTEENTH shall
<PAGE>
<PAGE>
- 15 -
not eliminate the liability of a director for any act or
omission occurring prior to the date on which this Article
THIRTEENTH becomes effective. No amendment 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 or repeal.
ARTICLE FOURTEENTH
Special meetings of the stockholders of this
corporation for any purpose or purposes may be called at any
time by the Board of Directors or by a committee of the
Board of Directors which has been duly designated by the
Board of Directors and whose powers and authority, as
provided in a resolution of the Board of Directors or in the
by-laws of this corporation, include the power to call such
meetings, but such special meetings may not be called by any
other person or persons.
ARTICLE FIFTEENTH
This corporation reserves the right to amend,
alter, change or repeal any provision 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.
Notwithstanding any other provision of the Certificate of
Incorporation or the by-laws of this corporation (and in
addition to any other vote that may be required by law, this
Certificate of Incorporation, or by the by-laws of this
corporation), the affirmative vote of the holders of 75% of
the voting power of all stock of this corporation entitled
to vote in elections of directors shall be required to
amend, alter, change, or repeal Article FIFTH, SEVENTH,
EIGHTH, NINTH, ELEVENTH, TWELFTH, THIRTEENTH, FOURTEENTH and
FIFTEENTH of this Certificate of Incorporation.
<PAGE>
<PAGE>
- 16 -
WE, THE UNDERSIGNED, being each of the
incorporators hereinbefore named for the purpose of forming
a corporation in pursuance of the General Corporation Law of
the State of Delaware, do make this certificate, hereby
declaring and certifying that the facts herein stated are
true, and accordingly have hereunto set our hands and seals
this 26th day of August, A. D. 1952.
s/ L.E. Gray (SEAL)
------------------------------
s/ S.M. Brown (SEAL)
------------------------------
s/ A.D. Atwell (SEAL)
------------------------------
As Amended June 20, 1996
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BALANCE SHEET AND STATEMENT OF EARNINGS AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS
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