<PAGE> 1
Page 1 of 10 Pages
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended March 31, 1997 Commission File number 0-663
-------------- -----
OGLEBAY NORTON COMPANY
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 34-0158970
- -------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 Superior Avenue Cleveland, Ohio 44114-2598
------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 216 861-3300
------------
None
---------------------------------------------------
Former name, former address and former fiscal year,
if changed since last report
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days.
Yes X No
----- -----
Shares of Common Stock outstanding at April 30, 1997: 2,402,890
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<PAGE> 2
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PAGE NUMBER
-----------
<S> <C>
PART I. FINANCIAL INFORMATION
------------------------------
Condensed Consolidated Balance
Sheet (Unaudited) - March 31, 1997 and
December 31, 1996 3
Condensed Consolidated Statement of
Operations (Unaudited) - Three Months
Ended March 31, 1997 and 1996 4
Condensed Consolidated Statement of
Cash Flows (Unaudited) - Three Months
Ended March 31, 1997 and 1996 5
Notes to Condensed Consolidated Financial
Statements 6
Management's Discussion and Analysis of
Financial Condition and Results of
Operations 7 - 9
PART II. OTHER INFORMATION 10
---------------------------
</TABLE>
<PAGE> 3
PART I. ITEM 1. FINANCIAL INFORMATION
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
(UNAUDITED)
<TABLE>
<CAPTION>
ASSETS
MARCH 31 December 31
1997 1996
------------ ------------
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 18,317,692 $ 21,850,282
Marketable securities -0- 898,475
Accounts receivable, less reserve for doubtful accounts
(1997-$576,000, 1996-$512,000) 13,495,991 27,909,834
Inventories
Raw materials and finished products 3,299,058 3,003,079
Operating supplies 2,287,394 2,336,468
------------ ------------
5,586,452 5,339,547
Deferred income taxes 3,425,573 3,214,573
Prepaid insurance and other expenses 7,044,776 1,650,620
------------ ------------
TOTAL CURRENT ASSETS 47,870,484 60,863,331
PROPERTIES AND EQUIPMENT 304,077,495 301,272,226
Less allowances for depreciation
and amortization 158,354,495 157,473,072
------------ ------------
145,723,000 143,799,154
PREPAID PENSION COSTS AND OTHER ASSETS 33,158,207 31,550,923
------------ ------------
$226,751,691 $236,213,408
============ ============
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
MARCH 31 December 31
1997 1996
------------- -------------
<S> <C> <C>
CURRENT LIABILITIES
Current portion of long-term debt $ 8,476,450 $ 8,476,450
Accounts payable 3,760,005 7,003,035
Payrolls and other accrued compensation 2,986,075 6,915,055
Accrued expenses 8,076,860 9,485,216
Income taxes 505,682 1,620,176
------------ ------------
TOTAL CURRENT LIABILITIES 23,805,072 33,499,932
LONG-TERM DEBT, less current portion 28,545,563 28,664,675
POSTRETIREMENT BENEFITS OBLIGATIONS 24,601,631 24,675,900
OTHER LONG-TERM LIABILITIES 21,208,415 20,272,081
DEFERRED INCOME TAXES 22,716,821 22,651,821
STOCKHOLDERS' EQUITY
Preferred stock, without par value,
authorized 5,000,000 shares;
none issued -0- -0-
Common stock, par value $1 per share,
authorized 10,000,000 shares;
issued 3,626,666 shares 3,626,666 3,626,666
Additional capital 9,856,548 9,475,843
Unrealized gains -0- 410,447
Retained earnings 125,971,006 125,960,692
------------- ------------
139,454,220 139,473,648
Treasury stock, at cost - 1,224,676
and 1,208,979 shares at respective dates (32,508,018) (31,833,524)
Unallocated Employee Stock Ownership
Plan shares (1,072,013) (1,191,125)
------------- -------------
105,874,189 106,448,999
------------- -------------
$ 226,751,691 $ 236,213,408
============= =============
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 4
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended
March 31
----------------------------
1997 1996
------------ ------------
<S> <C> <C>
REVENUES
Net sales $ 19,121,770 $ 18,271,016
Operating revenues 1,287,130 412,277
------------ ------------
20,408,900 18,683,293
COSTS AND EXPENSES
Cost of goods sold 14,304,018 14,375,509
Operating expenses 798,139 433,071
General, administrative and
selling expenses 4,196,966 4,324,369
------------ ------------
19,299,123 19,132,949
------------ ------------
INCOME FROM OPERATIONS 1,109,777 (449,656)
Gain on sale of assets 759,267 1,615,826
Interest, dividends and other income 569,191 1,158,965
Interest expense (569,470) (843,519)
Other expense (663,921) (483,540)
------------ ------------
INCOME BEFORE INCOME TAXES 1,204,844 998,076
Income taxes 352,000 84,556
------------ ------------
INCOME FROM CONTINUING OPERATIONS 852,844 913,520
Discontinued operations:
Income from discontinued operations -0- 1,064,690
------------ ------------
NET INCOME $ 852,844 $ 1,978,210
============ ============
Income per share of common stock:
Continuing operations $ .35 $ .37
Discontinued operations -0- .43
------------ ------------
NET INCOME PER SHARE OF COMMON STOCK $ .35 $ .80
============ ============
DIVIDENDS PER SHARE OF COMMON STOCK $ .35 $ .30
============ ============
Average number of shares of common stock
outstanding 2,408,695 2,458,408
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 5
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended
March 31
----------------------------
1997 1996
------------ ------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 852,844 $ 1,978,210
Adjustments to reconcile net income to
net cash provided by (used in) operating activities:
Depreciation and amortization 1,195,850 1,109,930
Deferred income taxes 65,000 (254,000)
Gain on sale of assets (759,267) (991,751)
Gain on sale of business -0- (625,000)
Prepaid pension costs and other assets (911,909) (643,123)
Deferred vessel maintenance costs (5,900,586) (6,026,074)
Decrease in accounts receivable 14,413,843 11,766,465
Decrease (increase) in inventories (133,002) 460,631
Decrease in accounts payable (3,247,115) (2,589,752)
Decrease in payrolls and other accrued compensation (3,690,225) (4,257,564)
(Decrease) increase in accrued expenses (1,628,356) 79,668
(Decrease) increase in income taxes (1,114,494) 5,015,811
Operating activities of discontinued operations - net -0- (6,091,203)
Other operating activities 1,229,635 (1,471,202)
------------ ------------
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES 372,218 (2,538,954)
INVESTING ACTIVITIES
Capital expenditures (2,747,881) (1,141,306)
Acquisition of business (1,300,000) -0-
Proceeds from sale of assets 1,180,375 1,462,451
Proceeds from sale of business -0- 1,900,000
------------ ------------
NET CASH (USED IN) PROVIDED BY INVESTING ACTIVITIES (2,867,506) 2,221,145
FINANCING ACTIVITIES
Additional long-term debt 600,000 -0-
Payments on long-term debt (119,112) (119,112)
Payments of dividends (842,531) (734,230)
Purchase of treasury stock (675,659) (728,149)
------------ ------------
NET CASH USED IN FINANCING ACTIVITIES (1,037,302) (1,581,491)
------------ ------------
Decrease in cash and cash equivalents (3,532,590) (1,899,300)
CASH AND CASH EQUIVALENTS, JANUARY 1 21,850,282 22,660,436
------------ ------------
CASH AND CASH EQUIVALENTS, MARCH 31 $ 18,317,692 $ 20,761,136
============ ============
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 6
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with the instructions to Form 10-Q and
therefore, do not include all information and notes to the condensed
consolidated financial statements necessary for a fair presentation of
financial position, results of operations and cash flows in conformity with
generally accepted accounting principles. Management of the Registrant,
however, believes that all adjustments considered necessary for a fair
presentation of the results of operations for such period have been made.
The accompanying condensed consolidated financial statements have been
reclassified to report separately the operating results of discontinued
iron ore operations. Additionally, certain amounts in the prior year have
been reclassified to conform with the 1997 condensed consolidated financial
statement presentation. For further information, refer to the consolidated
financial statements and notes thereto included in the Registrant's 1996
Annual Report on Form 10-K.
2. Operating results are not necessarily indicative of the results to be
expected for the year, due to the seasonal nature of certain aspects of the
Registrant's business.
3. On January 2, 1997, the Registrant's Industrial Sands segment acquired
certain property and assets of a sand screening plant in Bakersfield,
California for $700,000 in cash and a $600,000 promissory note. The
addition of this facility is not expected to have a material impact on the
results of operations of the Registrant.
4. In March 1997, the Registrant's wholly owned subsidiary Oglebay Norton
Terminals, Inc. executed an agreement with the Cleveland-Cuyahoga
County Port Authority to operate a bulk commodity transfer dock located in
the Cleveland harbor, just west of the Cuyahoga River in Cleveland, Ohio.
Operations at the dock, which now operates under the name Cleveland Bulk
Terminal, commenced April 1, 1997 and the subsidiary intends to use this
facility as a transfer point for iron ore pellets, stone, coal and other
commodities. In accordance with the terms of the Lease and Operating
Agreement, the Registrant has guaranteed up to $6,075,000 in base rent
over the ten year term. The addition of this facility is not expected to
have a material impact on the results of operations of the Registrant.
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<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Due to the seasonal nature of certain aspects of the
Registrant's business, the operating results and cash flows for the quarter
ended March 31, 1997 are not necessarily indicative of the results to be
expected for the full year.
FINANCIAL CONDITION
-------------------
The Registrant's operating activities provided cash of
$372,000 in the first quarter of 1997 compared with a use of cash of $2,539,000
for the same period in 1996. This change in cash provided by operating
activities in the first quarter of 1997 resulted primarily from the
discontinuance of the Registrant's Iron Ore segment during the fourth quarter of
1996. The operating activities of the discontinued operations used cash of
$6,091,000 during the first quarter of 1996. Accounts receivable declined by
$14,414,000 in the first quarter of 1997, compared with $11,766,000 for the same
period in 1996. Strong sales and operating revenues experienced by the
Registrant during the first three months of 1997 were not sufficient to offset
the loss of revenues and related accounts receivable generated by discontinued
operations. Income taxes decreased $1,114,000 in the first quarter of 1997,
compared with an increase of $5,016,000 for the same period of 1996, as a result
of discontinued operations and the receipt of a state income tax refund in the
first quarter of 1996. The tax refund was recognized over 1996 resulting in a
lower effective tax rate. Operating results of the Company's business segments
are discussed in more detail under "RESULTS OF OPERATIONS".
Capital expenditures totaled $2,748,000 in the first quarter
of 1997 compared with $1,141,000 for the same period in 1996. Expenditures in
the first quarter of 1997 included vessel inspection costs of $1,197,000. No
vessel inspections were required in 1996.
In the first quarter of 1997, the Registrant received $933,000
on the sale of marketable securities compared with $1,336,000 for the same
quarter of 1996. The Registrant currently holds no marketable securities.
Additionally, the Registrant received $2,026,000 in the first quarter of 1996
from the sale of certain inactive properties. No such transactions took place in
the first quarter in 1997.
The Registrant made long-term debt payments of $119,000 in
each of the first quarters of 1997 and 1996. The Registrant executed a
$600,000 promissory note in conjunction with the acquisition of the
Bakersfield, California sand screening facility. The note is payable in three
equal annual installments, plus interest, commencing January 2, 1998.
The Registrant declared a dividend of $.35 per share in the
first quarter of 1997 compared with $.30 in the first quarter of 1996. Dividends
paid were $843,000 in the first quarter of 1997 compared with $734,000 for the
same quarter in 1996. The Registrant purchased, and placed in treasury, 15,741
shares of its Common Stock for $676,000 in the first quarter of 1997 and 18,444
shares of its Common Stock for $728,000 in the first quarter of 1996.
Anticipated cash flows from operations and current financial
resources are expected to meet the Registrant's needs during the remainder of
1997. All financing alternatives are under constant review to determine their
practicality and ability to provide sufficient funding on a timely basis and at
the least possible cost.
-7-
<PAGE> 8
RESULTS OF OPERATIONS
---------------------
QUARTER ENDED MARCH 31, 1997 COMPARED WITH
QUARTER ENDED MARCH 31, 1996
The Registrant's income from operations improved in the first
quarter of 1997 to a level of $1,110,000 on revenues of $20,409,000, compared
with a loss from operations of $450,000 on revenues of $18,683,000 for the same
quarter in 1996. Income from continuing operations was $853,000 ($.35 per share)
for the first quarter of 1997, compared with $913,000 (.37 per share) for the
first quarter of 1996. Net income for the first quarter of 1997 was $853,000
($.35 per share) compared with $1,978,000 ($.80 per share) for the same quarter
in 1996.
Income before income taxes for the first quarter of 1997
includes gains of $759,000, principally on the sale of current marketable
securities. Income before income taxes for the first quarter of 1996 included
gains and income of $2,192,000 on the sale of current marketable securities,
inactive properties and interest related to a state income tax refund for taxes
paid in the prior years. Net income excluding the above items was $352,000 ($.15
per share) in the first quarter of 1997 and $173,000 ($.07 per share) for the
first quarter of 1996.
Interest expense declined 32% in the first quarter of 1997,
compared with the same period in the prior year, due to an overall reduction in
debt.
Operating results of the Registrant's business segments for
the first quarter ended March 31, 1997 and 1996 are discussed below. It is the
policy of the Registrant to allocate a portion of corporate general and
administrative expenses to its business segments. Corporate general and
administrative expenses for the first quarter of 1996, which were previously
allocated to the discontinued operations, have been reallocated to the remaining
business segments.
Operating revenues for the Registrant's Marine Transportation
segment totaled $1,287,000 for the first quarter of 1997 compared with $412,000
for the first quarter of 1996. The segment's operating loss was $441,000 for the
first quarter of 1997 compared with a loss of $824,000 for the first quarter of
1996. Unlike the start of the 1996 sailing season, the 1997 sailing season has
opened under more favorable weather conditions. The start of the 1996 Marine
Transportation season was plagued by heavy ice conditions in the rivers and
upper Great Lakes regions. For the 1997 sailing season all twelve vessels were
in operation by the end of April, compared with the 1996 sailing season when all
twelve vessels were not in operation until the end of May. Tonnage levels for
the first quarter of 1997 were 535,000 tons, compared with 156,000 tons hauled
in the first quarter of 1996.
-8-
<PAGE> 9
RESULTS OF OPERATIONS (CONTINUED)
---------------------
QUARTER ENDED MARCH 31, 1997 COMPARED WITH
QUARTER ENDED MARCH 31, 1996
Net sales for the Registrant's Industrial Sands segment
amounted to $11,498,000 for the first quarter of 1997, a 13% increase over sales
of $10,174,000 for the first quarter of 1996. Operating profit of $2,669,000 for
the first quarter of 1997 increased by 68% compared with $1,586,000 for the
first quarter of 1996. Shipments of 404,000 tons for the first quarter of 1997
represents an 8% increase over the same quarter in 1996, and the average selling
price of principal products improved 9%. Operating results of the segment's
Texas and California operations had very solid performances in the first quarter
of 1997 due to strong volumes and favorable pricing. The Bakersfield, California
operations, acquired in the first quarter of 1997, enabled the segment to
further penetrate the central California oil and gas well service markets. The
Bakersfield operations produce specialty well-packing sands which complement the
Brady, Texas frac sands and Riverside, California silica flour materials. The
Brady operations continued the strong pace, established in the prior year, of
supplying high quality frac sand to the oil and gas service markets. Overall
cost management, particularly with respect to the segment's overhead costs, also
contributed to the operating profit improvement. The segment's selling, general
and administrative expenses were less than 8% of the segment's 1997 first
quarter sales compared with almost 9% for the first quarter of the prior year.
Net sales for the Registrant's Engineered Materials segment
amounted to $7,624,000 for the first quarter of 1997 which was comparable to net
sales of $7,858,000 for the first quarter of 1996. The segment's operating loss
of $61,000 for the first quarter of 1997, compared with a loss of $110,000 for
the first quarter of 1996. As anticipated, the market for ingot hot top products
continued to decline in the first quarter of 1997. Manufacturing efficiencies
and profitability for this product line will continue to be evaluated to
determine whether this business segment will remain as one of the few suppliers
to ingot-casting steel producers. Metallurgical treatment product sales
increased 37% in the first quarter of 1997 compared with the same quarter in
1996, and operating profit for this product line improved 24% over the same
period in the prior year. The segment's Kingsford Heights, Indiana facility,
acquired at the end of 1996, supplied much of the improvement, strengthening
Engineered Materials' position in the greater Chicago area.
ITEM 3. QUANTATIVE AND QUALITATIVE DISCLOSURES
ABOUT MARKET RISK
Not applicable.
-9-
<PAGE> 10
PART II. OTHER INFORMATION
- ---------------------------
ITEM 5. OTHER INFORMATION
- ------- -----------------
On April 30, 1997, the Registrant's Board of Directors
authorized the Registrant to purchase, on the open market or through private
purchases, approximately 60,000 shares of the Registrant's Common Stock having
an aggregate cost of up to $3,000,000, through April 30, 1998. The Board of
Directors further authorized the Registrant to purchase up to an additional
12,924 shares of the Registrant's Common Stock which remained to be purchased
under a similar repurchase program authorized for the period May 1996 through
April 1997. Under this program, 47,076 shares of the Registrant's Common Stock
with an aggregate cost of $2,016,000 were previously purchased from May 1996
through April 1997.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- ------- --------------------------------
(a) Exhibits:
---------
3(ii) - By-Laws
27 - Financial Data Schedule
(b) Reports on Form 8-K:
--------------------
The Registrant filed a Form 8-K dated January 7, 1997,
consisting of the following: Item 2 -- Acquisition or Disposition of Assets (the
sale on December 23, 1996 of Registrant's interest in Eveleth Mines) and Item 7
- - Financial Statements and Exhibits (Pro forma financial information).
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.
OGLEBAY NORTON COMPANY
DATE: May 15, 1997 By: /s/ R. J. Kessler
----------------------------
R. J. Kessler
Vice President -
Finance and Planning
On behalf of the Registrant
and as Principal Financial
and Accounting Officer
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<PAGE> 1
Exhibit 3(ii)
BY-LAWS
OF
OGLEBAY NORTON COMPANY
As of April 30, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
Number Subject Number
- -----------------------------------------------------------------------------
<S> <C> <C>
OFFICES
1. Offices ................................................... 1
SEAL
2. Seal ...................................................... 1
STOCKHOLDERS' MEETINGS
3. Place of meetings ......................................... 1
4. Annual meeting ............................................ 2
5. Quorum .................................................... 2
6. Voting .................................................... 2
7. Notice of annual meeting .................................. 3
8. Stockholders' list ........................................ 3
9. Special meetings .......................................... 3
10. Business transacted at special meetings ................... 3
11. Notice of special meetings ................................ 3
DIRECTORS
12. Number; election; qualifications; term of office .......... 4
13. Powers and authorities .................................... 4
VACANCIES
14. Vacancies ................................................. 4
MEETINGS OF THE BOARD
15. Regular meetings .......................................... 5
16. Special meetings .......................................... 5
17. Quorum .................................................... 5
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Section Page
Number Subject Number
- -----------------------------------------------------------------------------
<S> <C> <C>
ACTION WITHOUT A MEETING
18. Action by directors without a meeting ..................... 5
COMMITTEES
19. Executive Committee ....................................... 5
20. Other committees .......................................... 6
COMPENSATION OF DIRECTORS AND COMMITTEE MEMBERS
21. Compensation of directors ................................. 6
22. Compensation of committee members ......................... 7
OFFICERS
23. Election and designation of officers; compensation;
term of office; vacancies .............................. 7
CHAIRMAN OF THE BOARD
24. Chairman of the Board .................................. .. 7
VICE CHAIRMAN OF THE BOARD
24a. Vice Chairman of the Board ............................. .. 7
PRESIDENT
25. President .............................................. .. 8
EXECUTIVE VICE PRESIDENTS
26. Executive Vice Presidents .............................. .. 8
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Section Page
Number Subject Number
- -----------------------------------------------------------------------------
<S> <C> <C>
SENIOR VICE PRESIDENTS
27. Senior Vice Presidents .................................... 8
VICE PRESIDENTS
28. Vice Presidents ........................................... 8
SECRETARY
29. Secretary ................................................. 8
TREASURER
30. Treasurer ................................................. 9
OTHER OFFICERS
31. Other officers ............................................ 9
EXECUTION OF DOCUMENTS
32. Execution of documents .................................... 9
AUTHORITY TO VOTE SECURITIES
33. Authority to vote securities .............................. 9
DELEGATION OF AUTHORITY AND DUTIES
34. Delegation of authority and duties of officers ............ 10
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
Section Page
Number Subject Number
- -----------------------------------------------------------------------------
<S> <C> <C>
STOCK CERTIFICATES
35. Stock certificates ....................................... 10
TRANSFERS OF STOCK
36. Transfers of stock ....................................... 10
LOST, STOLEN OR DESTROYED CERTIFICATES
37. Lost, stolen or destroyed certificates ................... 10
TRANSFER AGENT AND REGISTRAR
38. Transfer agent and registrar ............................. 11
RECORD DATES
39. Record dates ............................................. 11
REGISTERED STOCKHOLDERS
40. Right of corporation to recognize only record
stockholders ....................................... 11
INSPECTION OF BOOKS
41. Inspection of books ...................................... 11
FISCAL YEAR
42. Fiscal year .............................................. 12
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
Section Page
Number Subject Number
- -----------------------------------------------------------------------------
<S> <C> <C>
DIVIDENDS
43. Dividends ............................................... 12
DIRECTORS' ANNUAL STATEMENT
44. Directors' annual statement ............................. 12
NOTICES
45. Notices ................................................. 12
AMENDMENTS
48. Amendments .............................................. 15
</TABLE>
<PAGE> 7
BY-LAWS
OF
OGLEBAY NORTON COMPANY
(Revised as of April 30, 1997.)
OFFICES
1. The principal office shall be in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge
thereof is The Corporation Trust Company.
The corporation shall also have an office in the City of Cleveland, Ohio,
and it may also have such other offices at such other places, either
within or without the State of Delaware, as the Board of Directors may
from time to time designate or the business of the corporation may
require.
The books of the corporation, other than the duplicate stock ledger,
which shall at all times be kept at the principal office of the
corporation in Delaware, shall be kept at such one or more of the offices
of the corporation or at such other place or places, either within or
without the State of Delaware, as the directors may from time to time
determine.
SEAL
2. The corporate seal shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Delaware". Said seal may be
used by causing it, or a facsimile thereof, to be impressed or affixed or
reproduced or otherwise.
STOCKHOLDERS' MEETINGS
3. The annual meeting of the stockholders shall be held in the office of the
corporation in the City of Cleveland, Ohio. All other meetings of the
stockholders may be held at such place within or without the State of
Delaware as shall be designated in the call for such meeting.
<PAGE> 8
4. The annual meeting of the stockholders shall be held on the last
Wednesday in April in each year at such time and place as shall be
designated in the call for such meeting and at such meeting the
stockholders shall elect, by ballot, a Board of Directors and transact
such other business as may properly be brought before the meeting.
5. The holders of a majority of the capital stock of the corporation
present in person or represented by proxy shall constitute a quorum
at all meetings of the stockholders for the transaction of business,
except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws; provided, however, that no action
required by law, by the Certificate of Incorporation, or by these
By-Laws to be authorized or taken by a designated proportion of the
capital stock of the corporation may be authorized or taken by a lesser
proportion; and provided, further, that, if a quorum shall not be
present or represented at any meeting of the stockholders, the holders
of a majority of the voting shares present or represented thereat shall
have power to adjourn the meeting, from time to time, without notice
other than announcement at the meeting, until the requisite amount
of voting stock shall be present or represented. At such adjourned
meeting, at which the requisite amount of voting stock shall be
present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified.
6. At each meeting of the stockholders, every stockholder having the
right to vote shall be entitled to vote in person or by proxy appointed
by an instrument in writing subscribed by such stockholder, and
bearing a date not more than three years prior to said meeting, unless
said instrument provides for a longer period. On all matters, except
the election of directors, each stockholder shall have one vote for
each share of stock having voting power registered in his name on the
books of the corporation. At all elections of directors, each
stockholder shall be entitled to as many votes as shall equal the
number of his shares of stock multiplied by the number of directors to
be elected, and he may cast all of such votes for a single director or
may distribute them among the number to be voted for, or any two or
more of them, as he may see fit. In the event that no record date shall
be fixed for the determination of stockholders entitled to vote at
any election of directors, in accordance with the provisions of
Section 39 of these By-Laws, no share of stock shall be voted at such
election which shall have been transferred on the books of the
corporation within twenty (20) days next preceding such election.
The vote for directors and, on the demand of any
- 2 -
<PAGE> 9
stockholder, the vote upon any question before the meeting shall be by
ballot. All elections shall be had and all questions decided by a
plurality vote, except as otherwise required by law or by these By-Laws.
7. Written notice of the annual meeting, stating the time, place and object
thereof, shall be mailed to each stockholder entitled to vote thereat at
such address as appears on the stock book of the corporation at least ten
(10) days prior to the meeting.
8. A complete list of the stockholders entitled to vote at the ensuing
election of directors, arranged in alphabetical order and showing the
address of each and the number of shares registered in the name of each,
shall be prepared by the Secretary and open to the examination of any
stockholder during ordinary business hours for a period of at least ten
(10) days before every such election, either at a place within the city,
town, or village where the election is to be held and which place shall
be specified in the notice of the meeting, or , if not so specified, at
the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of election during the whole time
thereof, and subject to the inspection of any stockholder who may be
present.
9. Special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by law, may be called by the Chairman of
the Board or by the President, and shall be called by the President
or Secretary at the request, in writing, of a majority of the Board
of Directors. Such request shall state the purpose or purposes of the
proposed meeting.
10. Business transacted at all special meetings shall be confined to the
objects stated in the call.
11. Written notice of any special meeting of the stockholders stating the
time, place and object thereof, shall be mailed, postage prepaid, at
least ten (10) days before such meeting, to each stockholder entitled to
vote thereat, at such address as appears on the books of the corporation.
- 3 -
<PAGE> 10
DIRECTORS
12. The property and business of this corporation shall be managed by its
Board of Directors, consisting of such number of members, not less,
however, than three, as the stockholders may determine at any annual
or special meeting called for the purpose of electing directors at
which a quorum is present, by the affirmative vote of a majority of
the capital stock which is represented at the meeting and entitled
to vote on such proposal. Unless so determined by the stockholders,
the number shall be ten, of which three shall be directors of the
class whose term expires in 1996 and every three years thereafter,
four shall be directors of the class whose term expires in 1997 and
every three years thereafter, and three shall be directors of the
class whose term expires in 1998 and every three years thereafter.
Whenever the stockholders shall have so determined the number, such
number shall be deemed the authorized number of directors until the
same shall be changed by vote of the stockholders as aforesaid or by
amendment of these By-Laws. Directors need not be stockholders. They
shall be elected at the annual meeting of the stockholders, and each
director shall be elected to serve until his successor shall be elected
and shall qualify.
13. In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the directors may exercise all such powers of the
corporation and do all such lawful acts and things as are not by law, by
the Certificate of Incorporation, or by these By-Laws directed or
required to be exercised or done by the stockholders.
VACANCIES
14. If the office of any director or directors becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office or
otherwise, the remaining directors, though less than a quorum, shall
choose a successor or successors who shall hold office until the next
annual meeting of stockholders at which the class or classes of directors
in which the vacancy or vacancies occur shall be elected and until a
successor or successors shall have been duly elected and qualified,
unless sooner displaced.
- 4 -
<PAGE> 11
MEETINGS OF THE BOARD
15. Regular meetings of the Board shall be held on the last Wednesday of
February, April, June, August, October and December at such hour and
place and upon such notice, if any, as the Board shall determine. In the
event the last Wednesday is a holiday or for any reason is deemed by the
Board to be inappropriate, then the meeting shall be held on such
alternate date as may be determined by the Board.
16. Special meetings of the Board may be called by the Chairman of the Board
or by the President on one (1) day's notice to each director, either
personally or by mail, telegram, or cablegram. Special meetings shall be
called by the President or Secretary in like manner and on like notice on
the written request of two (2) directors.
17. At all meetings of the Board, a majority of the directors shall be
necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law, by
the Certificate of Incorporation, or by these By-Laws.
ACTION WITHOUT A MEETING
18. Any action required or permitted to be taken at any meeting of the Board
of Directors or any committee thereof may be taken without a meeting if,
prior to such action, a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or
committee.
COMMITTEES
19. The Board of Directors shall by resolution appoint an Executive Committee
consisting of not less than four or more than eight directors of the
corporation, as the Board shall determine, together with such alternates
as the Board may deem advisable. Meetings of the Executive Committee, if
called by the Chairman of that Committee, shall be held on the last
Wednesday of calendar months in which the Board of Directors does not
meet and such other times as either such Chairman shall call the meeting,
at
- 5 -
<PAGE> 12
such place or places as they may from time to time determine. The
Executive Committee shall have and may exercise all of the powers and
authority of the Board of Directors in the management of the business
and affairs of the corporation permissible under Section 141(c)(2) of
the Delaware General Corporation Law, as amended, when the Board is not
in session, subject to any specific resolutions of the Board of
Directors. Unless otherwise ordered by the Board of Directors, the
Executive Committee may prescribe its own rules for calling and holding
meetings and for its own procedures and may act at a meeting by a
majority of its members or without a meeting by written consent of all
of its members. The Executive Committee shall cause the Secretary to
keep full and complete records of all meetings and actions, which shall
be open to inspection by any director. Each member of the Executive
Committee and each alternate shall hold office during the pleasure of
the Board of Directors.
20. The Board of Directors may by resolution appoint one or more additional
committees, each committee to consist of two or more directors of the
corporation and to have such authority and to perform such duties as may
from time to time be determined by the Board of Directors.
COMPENSATION OF DIRECTORS AND COMMITTEE MEMBERS
21. Each member of the Board of this Company, with the exception of
salaried officers or employees of the Company or its subsidiaries,
shall be paid a quarterly retainer in an amount as determined from time
to time by resolution adopted by the Board of Directors or its
Compensation and Organization Committee for each quarter in which such
director serves, payable in February, May, August and November,
covering the quarter commencing with the month in which such payment
is payable and, in addition, shall receive 100 shares of the common
stock of the Company on the date upon which the Board of Directors
holds its meeting next succeeding the annual meeting of the Company's
stockholders. In addition, each member of the Board of Directors and
each "honorary" member of the Board of Directors, with the
exception of salaried officers or employees of the Company or its
subsidiaries, shall receive for such member's attendance at each
meeting of the Board of Directors a fee in an amount as determined
from time to time by resolution adopted by the Board of Directors or its
Compensation and Organization Committee, plus travel expenses incurred
by such member in attending any meeting or in pursuance of any activity
on behalf of the Company or its subsidiaries.
- 6 -
<PAGE> 13
22. Each member of the Executive Committee, the Compensation and Organization
Committee, the Audit Committee and such other committee as may from time
to time be appointed by the Board of Directors, with the exception of
salaried officers or employees of the Company or its subsidiaries, shall
receive for his attendance at each such committee meeting a fee in an
amount as determined from time to time by resolution adopted by the Board
of Directors or its Compensation and Organization Committee, plus travel
expenses incurred by him in attending any meeting or in pursuance of any
activity on behalf of the Company or its subsidiaries.
OFFICERS
23. The Board of Directors shall elect a Chairman of the Board, a
President, one or more Vice Presidents, any one or more of whom may
be designated Executive Vice Presidents and any one or more of whom may
be designated Senior Vice Presidents, a Treasurer and a Secretary.
The Board of Directors may elect such other officers as in its
discretion it deems necessary. The Chairman of the Board, the Vice
Chairman of the Board, and the President shall be directors, but no
other one of the officers need be a director. Any two, but not more
than two, of such offices may be held by the same person. The
compensation of all of the officers of the corporation shall be
fixed by the Board of Directors. Officers elected by the Board of
Directors shall hold office until their successors are chosen and
qualified in their stead. Any officer elected by the Board of Directors
shall hold office during the pleasure of the Board. If the office of
any officer or officers becomes vacant, the vacancy may be filled
by the Board of Directors.
CHAIRMAN OF THE BOARD
24. The Chairman of the Board shall preside at all meetings of the Board of
Directors and shall have such other authority and perform such other
duties as may be determined by the Board of Directors.
VICE CHAIRMAN OF THE BOARD
24a. The Vice Chairman of the Board shall have such authority as may be
determined by the Board of Directors and perform such duties as may be
assigned to him by the Chairman of the Board.
- 7 -
<PAGE> 14
PRESIDENT
25. The President shall preside at all meetings of the stockholders. Subject
to directions of the Board of Directors, he shall have general executive
authority and responsibility with respect to the business and affairs of
the corporation, and shall have such other authority and perform such
other duties as may be determined by the Board of Directors.
EXECUTIVE VICE PRESIDENTS
26. The Executive Vice Presidents shall exercise all of the authority and
perform all of the duties of the President in case of the absence or
disability of the latter or when circumstances prevent the latter from
acting, and shall have such other authority and perform such other duties
as may be determined by the Board of Directors.
SENIOR VICE PRESIDENTS
27. The Senior Vice Presidents shall exercise all of the authority and
perform all of the duties of the President in case of the absence or
disability of both the President and the Executive Vice Presidents or
when circumstances prevent both the President and the Executive Vice
Presidents from acting, and shall have such other authority and perform
such other duties as may be determined by the Board of Directors.
VICE PRESIDENTS
28. The Vice Presidents severally shall have such authority and perform such
duties as may be determined by the Board of Directors or by the
President.
SECRETARY
29. The Secretary shall record all of the proceedings of the meetings of the
stockholders, the Board of Directors, and the Executive Committee. He
shall keep such other books as may be required by the Board of Directors,
shall give notices of meetings of the stockholders, the Board, and the
Executive Committee required by law, by these By-Laws, or otherwise,
shall attest, on behalf of
- 8 -
<PAGE> 15
the corporation, all documents requiring the attestation of the
Secretary, and shall have such authority and perform such other duties
as may be determined by the Board of Directors.
TREASURER
30. The Treasurer shall receive and have in charge all money, bills, notes,
bonds, stocks in other corporations, and similar property belonging to
the corporation, and shall hold and dispose of the same as may be ordered
by the Board of Directors. He shall keep accurate financial accounts and
hold the same open for the inspection and examination of the directors
and shall have such authority and perform such other duties as may be
determined by the Board of Directors.
OTHER OFFICERS
31. The Assistant Secretaries and the Assistant Treasurers, if any, and any
other officers whom the Board of Directors may elect shall, respectively,
have such authority and perform such duties as may be determined by the
Board of Directors.
EXECUTION OF DOCUMENTS
32. Except as otherwise provided in these By-Laws, or by resolutions of the
Board, all documents evidencing conveyances by or contracts or other
obligations of the corporation shall be signed by the President, the
Executive Vice President, a Senior Vice President, or a Vice President,
and attested by the Secretary or an Assistant Secretary.
AUTHORITY TO VOTE SECURITIES
33. The Chairman of the Board, the President, the Executive Vice President,
and the Senior Vice Presidents are each authorized to vote, appoint
proxies, and execute consents, waivers, and releases with respect to
securities of other corporations owned by the corporation.
- 9 -
<PAGE> 16
DELEGATION OF AUTHORITY AND DUTIES
34. The Board of Directors is authorized to delegate the authority and duties
of any officer to any other officer and generally to control the action
of the officers and to require the performance of duties in addition to
those mentioned in these By-Laws.
STOCK CERTIFICATES
35. Every holder of stock in the corporation shall be entitled to one or more
certificates, signed by the Chairman of the Board, the President, the
Executive Vice President, or a Senior Vice President and by the
Secretary, the Treasurer, an Assistant Secretary, or an Assistant
Treasurer, certifying the number of shares owned by him in the
corporation. When such a certificate is countersigned by an incorporated
transfer agent or registrar, the signature of any of said officers of the
corporation may be facsimile, engraved, stamped, or printed. Although any
officer of the corporation whose manual or facsimile signature is affixed
to such a certificate ceases to be such officer before the certificate is
delivered, such certificate nevertheless shall be effective in all
respects when delivered.
TRANSFERS OF STOCK
36. Stock of the corporation shall be transferable upon the books of the
corporation by the holders thereof, in person, or by a duly authorized
attorney, and new certificates shall be issued upon surrender and
cancellation of certificates for a like number of shares, with duly
executed assignment or power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signatures to
such assignment or power of transfer as the corporation or its agents may
reasonably require.
LOST, STOLEN OR DESTROYED CERTIFICATES
37. The corporation may issue a new stock certificate in the place of any
certificate alleged to have been lost, stolen or destroyed. The Board of
Directors may require the owner, or his legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any
claim that may be made against it on account of the issuance of such new
certificate. A new certificate may be issued without requiring any bond
when, in the judgment of the directors, it is proper to do so.
- 10 -
<PAGE> 17
TRANSFER AGENT AND REGISTRAR
38. The Board of Directors may, from time to time, appoint, or revoke the
appointment of, transfer agents and registrars and may require all stock
certificates to bear the signatures of such transfer agents and
registrars or any of them.
RECORD DATES
39. The Board of Directors may fix in advance a date, not exceeding fifty
(50) days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the allotment
of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining the consent of stockholders for any purpose, as a record
date for the determination of the stockholders entitled to notice
of, and to vote at, any such meeting and any adjournment thereof,
or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such
consent, and in such case only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such
notice of and to vote at, such meeting and any adjournment thereof, or
to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of
the corporation after any such record date fixed as aforesaid.
REGISTERED STOCKHOLDERS
40. The corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof, and, accordingly,
shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided
by the laws of Delaware.
INSPECTION OF BOOKS
41. The directors shall determine, from time to time, whether and if
allowed, when and under what conditions and regulations, the
- 11 -
<PAGE> 18
accounts and books of the corporation (except such as may by statute be
specifically open to inspection), or any of them, shall be open to the
inspection of the stockholders, and the stockholders' rights in this
respect are and shall be restricted and limited accordingly.
FISCAL YEAR
42. The fiscal year shall begin on the first day of January in each year.
DIVIDENDS
43. Dividends upon the capital stock of the corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to
law. Dividends may be paid in cash, in property or in shares of the
capital stock.
Before payment of any dividend, there may be set aside, out of any funds
of the corporation available for dividends, such sum or sums as the
directors, from time to time, in their absolute discretion, think proper,
as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such
other purpose as the directors shall think conducive to the interest of
the corporation; and the directors may abolish any such reserve in the
manner in which it was created.
DIRECTORS' ANNUAL STATEMENT
44. The Board of Directors shall present at each annual meeting, and when
called for by vote of the stockholders, at any special meeting of the
stockholders, a full and clear statement of the business and condition of
the corporation.
NOTICES
45. Expect as provided in Section 46 and 47, whenever, under the provisions
of these By-Laws, notice is required to be given to any director, officer
or stockholder, it shall not be construed to mean personal notice, but
such notice as may be given in writing
- 12 -
<PAGE> 19
by mail, by depositing the same in the post office or letter box in a
postpaid, sealed wrapper, addressed to such stockholder, officer or
director at such address as appears on the books of the corporation; and
such notice shall be deemed to be given at the time when the same shall
be thus mailed.
Any stockholder, director or officer may waive any notice required to be
given by law, by the Certificate of Incorporation or by these By-Laws and
shall be deemed to have waived notice of any meeting which he shall
attend without protesting, prior to or at the commencement of such
meeting, the lack, of proper notice thereof.
46. At any annual or special meeting of stockholders, proposals by
stockholders shall be considered only if the stockholder intending to
make the proposal is entitled to vote on the proposal at the meeting,
advance notice of the intention to make the proposal is timely given in
accordance with this Section 46 and the proposal are otherwise proper for
consideration under applicable law and the Certificate of Incorporation.
Notice of any such stockholder proposal must be given in writing to the
Secretary, and received at the corporation's principal executive offices,
not less than sixty (60) nor more than ninety (90) days prior to the
scheduled date of the meeting, as disclosed by the corporation to its
stockholders or in other public notice (including, in the case of an
annual meeting, disclosure in the proxy statement for the previous year);
except that, if notice to the stockholders or prior public disclosure of
the scheduled date of the meeting is first given or made less than
seventy-five (75) days prior to the date of the meeting, the written
notice of the intention to make the stockholder proposal must be given to
the Secretary not later than the close of business on the fifteenth
(15th) day following the day on which such notice to the stockholders or
public disclosure (whichever occurs earlier) is first given or made.
Notice of the anticipated date of the annual meeting included the
corporation's proxy statement for the prior year will, for this purpose,
be adequate notice of the date of the meeting unless the date is
subsequently advanced by more than 30 days or delayed by more than 90
days. Any notice of the intention to make a stockholder proposal shall be
accompanied by the text of the proposal and a brief written statement of
the reasons why the stockholder favors the proposal and shall set forth
(i) the stockholder's name and record address, (ii) a representation that
the stockholder is a holder of record of stock of the corporation
entitled to vote at the meeting and intends to appear in person or by
proxy at the meeting to make
- 13 -
<PAGE> 20
the proposal, (iii) a description of all arrangements or understandings
between the stockholder and any other person (naming that person)
pursuant to which the proposal is to be made, and (iv) the number and
class of all shares of stock of the corporation beneficially owned
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934) by the stockholder and any material interest of the stockholder in
the proposal (other than any interest solely as a stockholder). The
person presiding at the meeting shall determine whether the notice of the
stockholder proposal has been duly given and shall direct that the
proposal not be considered if the notice (together with all information
required to be submitted by the stockholder under this Section 46) has
not been given.
47. Subject to the rights of the holders of any class or series of preferred
stock of the corporation, a stockholder may make nominations for the
election of directors at an annual or special meeting of stockholders
only if the stockholder intending to make the nominations is entitled to
vote for the election of directors at the meeting and written notice of
the intention to make the nominations is timely given as provided in this
Section 47. Notice of any such stockholder nominations must be given in
writing to the Secretary, and received at the corporation's principal
executive offices, not less than sixty (60) nor more than ninety (90)
days prior to the scheduled date of the meeting, as disclosed by the
corporation to its stockholders or in other public notice (including, in
the case of an annual meeting, disclosure in the proxy statement for the
previous year); except that, if notice to the stockholders or prior
public disclosure of the scheduled date of the meeting is first given or
made less than seventy-five (75) days prior to the date of the meeting,
the written notice of the intention to make the nominations must be given
to the Secretary not later than the close of business on the fifteenth
(15th) day following the day on which such notice to the stockholders or
public disclosure (whichever occurs earlier) is first given or made. Any
notice of a stockholder's intention to make such nominations shall set
forth: (i) as to each person who is not an incumbent director when the
stockholder proposes to nominate that person for election as a director,
(A) the name, age, and business and residence address of that person, (B)
the principal occupation and employment of that person during the past
five years and the name and principal business of any corporation or
other organization in which such occupations and employment were carried
on, (C) all positions of that person as a director, officer, partner,
employee or controlling stockholder of any corporation or other
organization, (D) the class and
- 14 -
<PAGE> 21
number of shares of stock of the corporation that are beneficially owned
(within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934) by that person, (E) any other information regarding the person that
would be required, pursuant to Item 401 of Regulation S-K adopted by the
Securities and Exchange Commission (or the corresponding provisions of
any regulations subsequently adopted by the Securities and Exchange
Commission applicable to the corporation), to be included in a proxy
statement of the corporation complying with the proxy rules of the
Securities and Exchange Commission if that person were nominated by the
board of directors of the corporation, and (F) the written consent of
that person to serve as a director of the corporation, and (ii) as to the
stockholder giving the notice, (A) the name and record address of the
stockholder, (B) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at the meeting and
intends to appear in person or by proxy at the meeting to nominate the
person specified in the notice, (C) a description of all arrangements or
understandings between the stockholder and each nominee and any other
person (naming that person) pursuant to which the nomination is to be
made, and (D) the class and number of shares of stock of the corporation
that are beneficially owned (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) by the stockholder.
AMENDMENTS
48. The By-Laws of the corporation may be amended, or new By-Laws may be
adopted, by the Board of Directors by the affirmative vote of a majority
of the directors present at any meeting of the Board at which there is a
quorum present and acting; or they may be amended, or new By-Laws may be
adopted, by the stockholders, at any regular or special meeting thereof,
by the affirmative vote of a majority of the stock issued and outstanding
and entitled to vote thereat, if notice of the proposed amendment be
contained in the notice of the meeting, or without a meeting by the
written consent of the holders of all of the issued and outstanding stock
of the corporation. No amendment of these By-Laws with respect to the
time or place for the election of directors shall be made within sixty
(60) days next before the day on which such election is to be held. In
case of any amendment of these By-Laws with respect to such time or
place, notice thereof shall be given to each stockholder, in the manner
provided in Section 45 of these By-Laws, at least twenty (20) days before
the first election following such amendment is held. Any amendment of
Section 46 or
- 15 -
<PAGE> 22
Section 47 of these By-Laws adopted by stockholders at an annual or
special meeting shall only be effective for subsequent meetings and shall
not eliminate or modify the requirement for advance notice of stockholder
proposals or stockholder nominations for the election of directors, as
the case may be, made at the meeting at which the amendment is adopted.
- 16 -
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