UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[x] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 1997
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
For the transition period from ____________________________________
Commission file number 0-27100
FIELDS AIRCRAFT SPARES, INC.
(Exact name of small business issuer as specified in its charter)
UTAH 95-4218263
- ------------------------------- --------------------
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
2251-A Ward Avenue, Simi Valley, California 93005
----------------------------------------------------
(Address of principal executive offices)
(805) 583-0080
--------------------------------------------------
(Issuer's telephone number, including area code)
---------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 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
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's
classes of common equity, as of the latest practicable date.
Class of Stock Amount Outstanding
- ----------------------------- ---------------------------
$.05 par value Common Shares 1,892,886 Common Shares
at July 31, 1997
TRADITIONAL SMALL BUSINESS DISCLOSURE FORMAT (check one):
Yes [ ] No [X]
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
TABLE OF CONTENTS
Page No.
Part I - Financial Information
Item 1. Consolidated Financial Statements
Balance Sheet.........................................3
Statement of Operations...............................4
Statement of Cash Flows...............................5
Statement of Shareholders' Equity.....................6
Notes to Financial Statements.........................7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations...........................................17
Part II. - Other Information
Item 1. Legal Proceedings....................................21
Item 2. Changes in Securities................................21
Item 3. Defaults upon Senior Securities......................22
Item 4. Submission of Matters to a Vote
of Security Holders.................................22
Item 5. Other Information....................................23
Item 6. Exhibits and Reports on Form 8-K.....................23
2
<PAGE>
<TABLE>
<CAPTION>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
UNAUDITED CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 1997 AND DECEMBER 31, 1996
A S S E T S
1997 1996
---- ----
CURRENT ASSETS:
<S> <C> <C>
Cash $ 578,000 $ 88,000
Accounts receivable, less allowance for doubtful
accounts of $100,000 in 1997 and $50,000 in 1996 1,914,000 1,507,000
Inventory 9,214,000 8,108,000
Prepaid expenses 230,000 149,000
----------------- -----------------
Total current assets $ 11,936,000 $ 9,852,000
----------------- -----------------
LAND, BUILDING AND EQUIPMENT:
Land $ 210,000 $ 210,000
Building and building improvements 1,061,000 1,061,000
Furniture and equipment 561,000 548,000
----------------- -----------------
Totals $ 1,832,000 $ 1,819,000
Less accumulated depreciation and amortization 794,000 734,000
----------------- -----------------
Land, building and equipment, net $ 1,038,000 $ 1,085,000
----------------- -----------------
OTHER ASSETS:
Debt issuance costs, net of accumulated amortization $ 401,000 $ 300,000
Other assets 319,000 262,000
----------------- -----------------
Total other assets $ 720,000 $ 562,000
----------------- -----------------
Total assets $ 13,694,000 $ 11,499,000
================= =================
<CAPTION>
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
<S> <C> <C>
Accounts payable $ 1,407,000 $ 864,000
Other accrued liabilities 292,000 230,000
Income taxes payable 3,000 1,000
Current portion of notes payable 405,000 6,323,000
----------------- -----------------
Total current liabilities $ 2,107,000 $ 7,418,000
----------------- -----------------
LONG-TERM LIABILITIES $ 8,314,000 $ 268,000
----------------- -----------------
SHAREHOLDERS' EQUITY:
Common stock $ 341,000 $ 312,000
Additional paid-in capital 5,035,000 5,065,000
Retained deficit (2,103,000) (1,564,000)
----------------- -----------------
Total shareholders' equity $ 3,273,000 $ 3,813,000
----------------- -----------------
Total liabilities and shareholders' equity $ 13,694,000 $ 11,499,000
================= =================
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
UNAUDITED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED JUNE 30, 1997 AND 1996
1997 1996
---- ----
<S> <C> <C>
SALES $ 2,941,000 $ 1,186,000
COST OF SALES 1,753,000 741,000
--------------- ----------------
GROSS PROFIT $ 1,188,000 $ 445,000
OPERATING EXPENSES 793,000 464,000
--------------- ----------------
INCOME (LOSS) FROM OPERATIONS $ 395,000 $ (19,000)
--------------- ----------------
OTHER EXPENSE (INCOME):
Casualty gain $ - $ (256,000)
Interest expense, net 278,000 322,000
--------------- ----------------
Total other expense $ 278,000 $ 66,000
--------------- ----------------
INCOME (LOSS) BEFORE PROVISION FOR
INCOME TAXES $ 117,000 $ (85,000)
PROVISION FOR INCOME TAXES 2,000 -
--------------- ----------------
NET INCOME (LOSS) $ 115,000 $ (85,000)
=============== ================
NET INCOME (LOSS) PER SHARE (primary) $ .06 $ (.09)
=============== ================
NET INCOME (LOSS) PER SHARE (fully-diluted) $ .05 $ (.06)
=============== ================
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
UNAUDITED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1997 AND 1996
1997 1996
---- ----
<S> <C> <C>
SALES $ 5,030,000 $ 2,546,000
COST OF SALES 2,988,000 1,356,000
--------------- -----------------
GROSS PROFIT $ 2,042,000 $ 1,190,000
OPERATING EXPENSES 1,637,000 1,241,000
--------------- ----------------
INCOME (LOSS) FROM OPERATIONS $ 405,000 $ (51,000)
---------------- ----------------
OTHER EXPENSE (INCOME):
Casualty gain $ - $ (909,000)
Interest expense, net 942,000 628,000
--------------- ----------------
Total other expense (income) $ 942,000 $ (281,000)
--------------- ----------------
(LOSS) INCOME BEFORE PROVISION FOR
INCOME TAXES $ (537,000) $ 230,000
PROVISION FOR INCOME TAXES 2,000 3,000
--------------- ----------------
NET (LOSS) INCOME $ (539,000) $ 227,000
=============== ================
NET (LOSS) INCOME PER SHARE (primary) $ (.28) $ .23
=============== ================
NET (LOSS) INCOME PER SHARE (fully-diluted) $ (.24) $ .16
=============== ================
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
UNAUDITED CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1997 AND 1996
1997 1996
---- ----
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net (loss) income $ (539,000) $ 227,000
Adjustments to reconcile net (loss) income to net
cash (used in) provided by operating activities:
Depreciation and amortization 60,000 60,000
Amortization of debt issuance costs 369,000 87,000
Loss on sale of assets 51,000
(Increase) decrease in accounts receivable (407,000) 350,000
Increase in inventory (1,106,000) (265,000)
Increase in prepaid expenses (81,000) (4,000)
Increase in other assets (91,000) (106,000)
Increase in accounts payable 543,000 333,000
Increase in other accrued liabilities 62,000 123,000
Increase in income taxes payable 2,000
----------------- -----------------
Net cash (used in) provided by operating
activities $ (1,188,000) $ 856,000
----------------- -----------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of equipment $ (13,000) $ (3,000)
----------------- -----------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net payments on line of credit $ (6,232,000) $ (821,000)
Principal payments on notes payable (41,000) (127,000)
Borrowings on notes payable 8,401,000 58,000
Costs associated with issuance of notes payable (470,000)
Proceeds from issuance of common stock 180,000
Costs associated with the issuance of common stock (147,000)
----------------- -----------------
Net cash provided by (used in) financing activities $ 1,691,000 $ (890,000)
----------------- -----------------
NET INCREASE (DECREASE) IN CASH $ 490,000 $ (37,000)
CASH, December 31, 1996 and 1995 88,000 111,000
----------------- -----------------
CASH, June 30, 1997 and 1996 $ 578,000 $ 74,000
================= =================
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
UNAUDITED STATEMENT OF SHAREHOLDERS' EQUITY
FOR THE SIX MONTHS ENDED JUNE 30, 1997 AND 1996
COMMON SHARES
--------------------------
NUMBER OF ADDITIONAL TOTAL
SHARES PAID-IN RETAINED SHAREHOLDERS'
OUTSTANDING AMOUNT CAPITAL DEFICIT EQUITY
------------ ---------- ----------- ------------- -----------------
<S> <C> <C> <C> <C> <C>
BALANCE, December 31, 1995 984,352 $ 297,000 $ 1,376,000 $ (1,322,000) $ 351,000
Additional paid-in capital 2,050,000 2,050,000
Net income 227,000 227,000
-------- --------- ----------- ------------ -----------
BALANCE, June 30, 1996 984,352 $ 297,000 $ 3,426,000 $ (1,095,000) $ 2,628,000
======== ========= =========== ============ ===========
BALANCE, December 31, 1996 1,302,137 $ 312,000 $ 5,065,000 $ (1,564,000) $ 3,813,000
Issuance of common stock 590,749 29,000 (30,000) (1,000)
Net loss (539,000) (539,000)
---------- --------- ----------- ------------ -----------
BALANCE, June 30, 1997 1,892,886 $ 341,000 $ 5,035,000 $ (2,103,000) $ 3,273,000
========== ========= =========== =========== =============
</TABLE>
7
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
In the opinion of management, all adjustments (consisting of
normal recurring accruals) considered necessary for the fair presentation of the
financial statements have been included.
1. Summary of significant accounting policies
a. Principles of consolidation and company background
The consolidated Group financial statements include the
accounts of Fields Aircraft Spares, Inc., a Utah corporation, formerly known as
Fields Industrial Group, Inc., hereafter referred to as FASI, and its
wholly-owned subsidiaries Fields Aircraft Spares Incorporated (FASC), a
California corporation and Fields Aero Management, Inc. All significant
intercompany accounts and activity have been eliminated.
In 1995, Fields Industrial Group, Inc. changed its name to
Fields Aircraft Spares, Inc.
The Group distributes new aircraft parts and equipment for use
on international and domestic commercial and military aircraft and purchases and
sells parts on a brokerage basis.
b. Concentration of credit risk
Substantially all of the Group's trade accounts receivables
are due from companies in the airline industry located throughout the United
States and internationally. The Group performs periodic credit evaluations of
its customers' financial condition and does not require collateral. Credit
losses relating to customers in the airline industry have consistently been
insignificant and within management's expectations.
c. Concentration of sales
The Group had sales to foreign companies that amounted to 17%
and 28% of total sales for the six months ended June 30, 1997 and 1996,
respectively.
For the six months ended June 30, 1997, two customers
accounted for sales of $696,000 and $507,000. For the six months ended June 30,
1996, one customer accounted for $273,000 of sales.
8
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of significant accounting policies (continued)
d. Inventory
Inventory is valued at the lower of cost or market value using
the first-in, first-out method. Where a group of parts have been purchased
together as a lot, the cost of the lot is allocated to the individual parts by
management pro rata to the list selling price at the time of purchase.
Consistent with industry practice, inventory is carried as a current asset but
all inventory is not expected to be sold within one year.
e. Land, building and equipment
Land, building and equipment are recorded at cost.
Depreciation is computed using the straight-line method over the estimated
useful lives of the assets which range from 3 to 25 years.
The cost and related accumulated depreciation and amortization
of assets sold or otherwise retired are eliminated from the accounts and any
gain or loss is included in the statement of operations. The cost of maintenance
and repairs is charged to income as incurred, whereas significant renewals and
betterments are capitalized. Depreciation expense for the six months ended both
June 30, 1997 and 1996 amounted to $60,000.
f. Debt issuance costs
The debt issuance costs relate to the issuance of the new
financing. Amortization of debt issuance costs for the six months ended June 30,
1997 and 1996 amounted to $369,000 and $87,000, respectively.
g. Revenue recognition
The Group recognizes revenue from all types of sales under the
accrual method of accounting when title transfers. Title transfers at the
Group's facility.
h. Earnings per share
In March 1995, FASI's shareholders authorized the reverse
split of its common stock on the basis of fifty old shares for one new share.
This reverse split was effective as of November 1995. All references herein to
the number of shares are after the reverse split.
Fully diluted earnings per share was computed using 2,280,920
and 1,422,502 shares for the six months ended June 30, 1997 and 1996,
respectively.
9
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of significant accounting policies (continued)
i. Income taxes
The Group files consolidated income tax returns. Deferred
income taxes relate to temporary differences between financial statement and
income tax reporting of certain accrued expenses, state income taxes, bad debts,
inventory, and depreciation.
The Group adopted Statement of Financial Accounting Standards
No. 109, "Accounting for Income Taxes". SFAS 109 requires the recognition of
deferred tax liabilities and assets for the expected future tax consequences of
temporary differences between tax basis and financial reporting basis of assets
and liabilities. The income tax effect of the temporary differences as of June
30, 1997 and December 31, 1996 consisted of the following:
1997 1996
---- ----
Deferred tax liability resulting from
taxable temporary differences for
accounting for inventory $ (314,000) $ (314,000)
Deferred tax asset resulting from
deductible temporary differences
for allowance for doubtful accounts 4,000 20,000
Deferred tax asset resulting from
deductible temporary differences
for utilization of net operating loss
carryforwards for income tax purposes 2,130,000 1,344,000
Valuation allowance resulting from the
potential nonutilization of net operating
loss carryforwards for income tax
purposes (1,820,000) (1,050,000)
----------- -----------
Total deferred income taxes $ - $ -
=========== ===========
j. Employee benefit plan
FASC has a 401(k) Plan under Section 401(k) of the Internal
Revenue Code. The Plan allows all employees who are not covered by a collective
bargaining agreement to defer up to 25% of their compensation on a pre-tax basis
through contributions to the Plan. Contributions to the Plan by FASC are
discretionary and are determined by the Board of Directors. No contributions
were made to the Plan during the six months ended June 30, 1997 and 1996.
10
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of significant accounting policies (continued)
k. Use of estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Management believes that the estimates utilized in preparing
its financial statements are reasonable and prudent. Actual results could differ
from these estimates.
2. Shareholders' equity
FASI has 50,000 shares authorized of its $.001 par value
preferred stock. At June 30, 1997 and December 31, 1996, there were no shares of
preferred stock issued or outstanding. The preferred shares, if issued, may be
granted the right to convert into common shares. On liquidation, the preferred
shares may be entitled to share in the liquidation proceeds after satisfaction
of creditors and prior to any distribution to the common shareholders to the
extent of the preference determined by the Board of Directors at the time of
issuance.
FASI has the following common stock as of June 30, 1997 and
December 31, 1996:
1997 1996
---- ----
Authorized 2,000,000 2,000,000
Issued and outstanding 1,892,886 1,302,137
Par value $.05 $.05
All of the common shares have equal voting rights. The common
shares have no pre-emptive or conversion rights, no redemption or sinking
provisions, and are not liable for further call or assessment. Each common share
is entitled to share ratably in any assets available for distribution to the
common shareholders upon liquidation of the Group.
In February 1995, the Group owed $7,658,000 to McDonnell
Douglas Corporation (MDC). MDC canceled the debt in exchange for $850,000 plus
586,862 shares of Series A convertible preferred stock of FASC. This constituted
full and complete satisfaction of the MDC debt. The agreement provided for the
mandatory exchange of the Series A preferred stock of FASC for 25% of the total
outstanding common stock of FASI within 10 days following the date the common
stock is approved for quotation on, and is quoted for trading on, the Nasdaq
Stock Market. The Series A convertible preferred stock carried a liquidation
preference of $5,000,000; which, in the event of a liquidation of FASC, should
be paid to the holders of the Series A shares.
11
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
2. Shareholders' equity (continued)
The Series A preferred shares became convertible into common
shares of the Company upon the approval of the common shares for quotation and
commencement of trading on Nasdaq as a Small Cap Market Security. The Company's
common shares began quotation on the Nasdaq SmallCap Market on March 26, 1997.
On April 4, 1997 the MDC Series A shares were exchanged by MDC for 564,194
common shares.
In February 1995, FASC obtained financing from Norwest
Business Credit, Inc., (Norwest). FASC obtained a line of credit in the maximum
amount of $10,000,000. The line of credit was partially used to pay the note
payable to the prior lending bank and to pay $850,000 to MDC. All assets of the
Group are pledged as collateral.
In April 1997, the Company's wholly-owned subsidiaries entered
into separate Loan and Security Agreements for an aggregate of up to $10,000,000
with NationsCredit Commercial Funding ("NationsCredit") at an annual interest
rate of prime plus 3%. NationsCredit advanced $6,717,000 on April 18, 1997 which
was used to repay the obligations owed to Norwest and other fees incurred in
connection with the NationsCredit loan facility. In connection with the
NationsCredit loan facility, the Company issued NationsCredit an option to
acquire 40,000 common shares of the Company at a price of $6.25 per share.
In 1996, FASI sold 317,785 shares of common stock and 158,893
warrants. Each warrant allows the holder to purchase one share of common stock
for $6.25. The net proceeds were $1,654,000 after deducting costs of $481,000
for underwriting and issuance.
In 1997, FASI issued 26,555 shares of common stock and 41,129
warrants. Each warrant allows the holder to purchase one share of common stock
for $6.25. The costs of underwriting and issuance were $147,000.
In April 1996, the Group reached a final settlement with its
insurance company. Management elected to record a casualty gain as a result of
the January 1994 earthquake. A gain of $949,000 was recorded in the financial
statements in 1996 as a result of this transaction.
12
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
3. Notes payable
The notes payable at June 30, 1997 and December 31, 1996
consisted of the following:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Note payable to NationsCredit, secured by all
assets of the Group, interest at prime plus 3.0%
(11.5% at June 30, 1997), payable monthly $ 8,314,000 $
Line of credit from Norwest, secured by all assets
of the Group, interest at prime plus 7.0%
(15.25% at December 31, 1996), payable monthly 6,232,000
Note payable to bank, secured by land and
building, payable monthly at $2,396 plus interest
at prime plus 2% (10.5% and 10.25% at June 30,
1997 and December 31, 1996), due February 1998 318,000 331,000
Other notes payable 87,000 28,000
------------ ------------
Total notes payable $ 8,719,000 $ 6,591,000
Less current portion 405,000 6,323,000
----------- ----------
Notes payable, net of current portion $ 8,314,000 $ 268,000
========== ===========
</TABLE>
Principal payment requirements on all notes payable based on terms
explained above are as follows:
YEAR ENDING
JUNE 30, AMOUNT
1998 $ 405,000
1999 -
2000 8,314,000
Thereafter -
Total interest expense for the six months ended June 30, 1997 and 1996
amounted to $942,000 and $628,000, respectively. Total interest paid for the six
months ended June 30, 1997 and 1996 amounted to $573,000 and $424,000,
respectively.
13
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
4. Provision for income taxes
The provision for income taxes for the six months ended June 30 consisted
of the following:
1997 1996
---- ----
CURRENT:
State $ 2,000 $ 3,000
-------- --------
Total provision for income taxes $ 2,000 $ 3,000
======== ========
Total income taxes paid in 1997 and 1996 amounted to $3,000
each year. The Group has net operating loss carryovers available to offset
future taxable income. The amount and expiration date of the carryovers are as
follows:
YEAR ENDING
DECEMBER 31, FEDERAL STATE
1997 $ $ 814,000
1998 750,000
1999 580,000
2000 126,000
2001 120,000
2008 942,000
2009 1,161,000
2010 255,000
2011 240,000
2012 500,000
5. Commitments
The Group leases a warehouse and office facility under an
operating lease.
14
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
5. Commitments (continued)
The minimum lease payments required under operating leases as of June 30, 1997
are as follows:
YEAR ENDING
DECEMBER 31, AMOUNT
1997 $ 48,000
1998 132,000
1999 144,000
2000 144,000
2001 144,000
Thereafter 84,000
Lease expense for the six months ended June 30, 1997 and 1996
was $45,000 and $48,000, respectively.
6. Related party transactions
The Group leases a small overseas office facility on a month
to month basis from an entity owned by certain officers of the Group.
7. Stock option plans
The Group has two stock option plans for its employees.
Effective November 29, 1995, FASI adopted a Management Stock
Option Plan ("Management Plan") and an Employee Stock Option Plan ("Employee
Plan"). Pursuant to the Management Plan, FASI has issued options to five
individuals involved in the management of FASI to acquire up to 69,025 common
shares of FASI at a purchase price of $3.00 per share subject to vesting
requirements, which includes FASI obtaining
15
<PAGE>
FIELDS AIRCRAFT SPARES, INC.
FORMERLY KNOWN AS FIELDS INDUSTRIAL GROUP, INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
7. Stock option plans (continued)
sales during a 12-month period of $7,500,000 and an average closing price for
FASI's Common Shares for a three-month period of $6.00, $9.00 and $12.00,
respectively, for each one-third of the options to vest. The options must vest
by November 1998 and must be exercised within three years of vesting. Pursuant
to the Employee Plan, FASI has issued options to acquire 13,500 common shares of
FASI to 20 employees of FASI at a purchase price of $3.00 per share subject to
vesting requirements, which include FASI obtaining sales during a 12-month
period of $7,500,000 and at least one year continued employment after the grant
of the option. The options must vest by November 1998 and must be exercised
within two years of vesting.
On April 2, 1997, FASI's 1997 Stock Option Plan was adopted to
enable FASI to issue up to 100,000 Common Shares to key employees, directors and
consultants at a price of $6.25 per share. Half of the options are exercisable
on April 2, 1998 and the rest are exercisable April 2, 1999. The options
expire on April 2, 2000.
The Company accounts for stock options under the provisions of
APB 25. Since the adjustments which would be necessary to show the effect of
these options on income under FAS 123 are either indeterminable or immaterial,
the information is not included in these financial statements.
8. Contingency
In the event of the death of a Director or Officer of the
Group, the Group is obligated to pay up to 100% of the Director's or Officer's
annual compensation to their beneficiary within the twelve months subsequent to
their death.
16
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1997 AND JUNE 30, 1996
Operations of the Company and its subsidiaries for the three months
ended June 30, 1997 generated an income of $395,000 compared to a loss of
$19,000 for the comparable period of 1996. The increase in the income for the
three-month period is attributable to an increase in sales and the resulting
increase in gross profit.
Sales for the three months ended June 30, 1997 were $2,941,000 compared
to $1,186,000 for the comparable period of 1996, an increase of approximately
148%. The Company attributes the increase in sales to the success of its
recently introduced after-market aircraft inventory management and supply
program. Under this program the Company enters into agreements with aircraft
component manufacturers to buy, at negotiated prices, parts used in the repair
of aircraft. The Company then enters into arrangements with air carriers and
aircraft overhaul facilities to supply these needed parts, using the customer's
own maintenance records to forecast demand. Under this program the Company
eliminates the need for the air carrier to hold parts inventories, provides
timely access to parts to keep aircraft flying and allows the manufacturer more
effective scheduling of replacement part production and shipment. The increase
in sales included an increase in after-market aircraft inventory management and
supply sales and brokerage sales of 154.4% and in McDonnell Douglas Corporation
("MDC") inventory sales of 133.8%.
Costs of goods sold for the three-month period ended June 30, 1997 and
1996 were $1,753,000 and $741,000, respectively (approximately 60% and 62% of
sales, respectively). The change in the gross margin percentage is a result of a
change in the product mix of sales as discussed in the previous paragraph.
Operating expenses increased from $464,000 for the three months ended
June 30, 1996 to $793,000 for the three months ended June 30, 1997. This was
principally attributable to the increase in sales activity.
During the quarter ended June 30, 1996, the Company recognized a
nonrecurring gain of $256,000 in connection with a certain casualty insurance
claim. There were no nonrecurring gains in the second quarter of 1997. Interest
expense decreased from $322,000 to $278,000 for the three month periods ended
June 30, 1996 and June 30, 1997 respectively. This was attributable to a
reduction in interest rate as a result of the refinancing of the Company's
primary loan with Norwest Business Credit Inc. ("Norwest"). See "Liquidity"
below.
As a result of the foregoing, the Company had net income in the three
months ended June 30, 1997 of $115,000 as compared to net loss of $85,000 for
the same period in 1996, an increase of $200,000.
17
<PAGE>
SIX MONTHS ENDED JUNE 30, 1997 AND JUNE 30, 1996
Operations of the Company and its subsidiaries for the six months ended
June 30, 1997 generated an income of $405,000 compared to a loss of $51,000 for
the comparable period of 1996. The increase in the income for the six month
period is attributable to an increase in sales and the resulting increase in
gross profit.
Sales for the six months ended June 30, 1997 were $5,030,000 compared
to $2,546,000 for the comparable period of 1996, an increase of approximately
97.5%. The increase in sales was made up by an increase in after-market aircraft
inventory management and supply sales and brokerage sales of 148% and an
increase in MDC inventory sales of 17.6%.
Costs of goods sold for the six month period ended June 30, 1997 and
1996 were $2,988,000 and $1,356,000, respectively (approximately 59% and 53% of
sales, respectively). The reduction in the gross margin percentage is a result
of a change in the product mix of sales described in the previous paragraph.
Operating expenses increased from $1,241,000 for the six months ended
June 30, 1996 to $1,637,000 for the six months ended June 30, 1997. This was
principally attributable to the increase in sales activity.
During the six months ended June 30, 1996, the Company recognized a
nonrecurring gain of $909,000 in connection with a certain casualty insurance
claim. There were no nonrecurring gains in the first half of 1997. Interest
expense increased from $628,000 to $942,000 for the six month periods ended June
30, 1996 and June 30, 1997 respectively. This was almost entirely attributable
to an accelerated amortization of original loan costs and other fees associated
with the refinancing of the Company's primary loan with Norwest. See "Liquidity"
below. Of the net loss for the period of $539,000, approximately $340,000 is
represented by amortization of loan costs and other fees associated with the
repayment of the Norwest loan, which was recognized in the first quarter of
1997.
Although the Company had an increase in current earnings from
operations of $456,000, the Company had a net loss in the six months ended June
30, 1997 of $539,000, compared to net income of $227,000 for the same period in
1996, a decrease of $766,000, most of that difference being a result of
non-recurring expenses during 1997 and 1996 non-recurring income as described in
the prior paragraph.
LIQUIDITY
At June 30, 1997, the Company had working capital (current assets in
excess of current debt) of $9,829,000 compared to working capital of $2,434,000
on December 31, 1996. The increase in liquidity is attributable principally to
an approximately $5,918,000 decrease in short-term bank debt as a result of the
loan from Norwest being refinanced with long-term debt (see discussion of
NationsCredit loan below). During the same period, the Company also had
increases in cash of $490,000, accounts receivable of $407,000 and inventories
of $1,106,000 made possible by the Company's new long-term credit facility.
These increases were partially offset by an increase in accounts payable of
$543,000 caused by the expansion of the Company's purchase of distributorship
inventory to support the increase in sales.
18
<PAGE>
Operating activities used $1,188,000 and generated $856,000 of the
Company's cash flow for the six months ended June 30, 1997 and June 30, 1996
respectively. The increase in the cash used for the first six months of 1997
compared to the same period of 1996 was mostly due to an increase of $1,106,000
in inventories.
On April 18, 1997, the Company's wholly-owned subsidiaries entered into
separate Loan and Security Agreements for an aggregate of up to $10,000,000 for
a three-year term with NationsCredit Commercial Funding ("NationsCredit") at an
annual interest rate of prime plus 3%. NationsCredit advanced $6,717,000 on
April 18, 1997 which was used to repay the obligations owed to Norwest and other
fees incurred in connection with the NationsCredit loan facility. In connection
with the NationsCredit loan facility, the Company issued NationsCredit an option
to acquire 40,000 common shares, par value $.05 per shares, of the Company (the
"Common Shares") at a price of $6.25 per share.
CAPITAL RESOURCES
On February 9, 1995, the Company's wholly owned subsidiary, Fields
Aircraft Spares Incorporated ("FAS"), entered into a line of credit arrangement
with Norwest providing for a line of credit in the amount of $10,000,000. At
April 18, 1997 when it was refinanced approximately $6,308,000 of credit had
been extended under this line.
On February 7, 1995, FAS owed MDC $7,658,000. In connection with the
Norwest financing, MDC cancelled that debt in exchange for $850,000 in cash and
586,862 shares of Series A Convertible Preferred Stock of FAS.
The Series A Shares became convertible into Common Shares of the
Company upon the approval of the Common Shares for quotation and commencement of
trading on Nasdaq as a SmallCap Market Security. The Company's Common Shares
began quotation on the Nasdaq SmallCap Market beginning March 26, 1997. On April
4, 1997 the MDC Series A Shares were exchanged for 564,194 Common Shares.
During 1996 the Company began a private placement transaction by means
of a private placement memorandum to non-United States persons pursuant to
Regulation S of the Securities Act of 1933, as amended (the "Securities Act").
164,283 Units (the "Units") consisting of 328,566 Common Shares and warrants to
acquire 164,283 Common Shares at $6.25 per share (the "Warrants") were sold for
$2,135,685 between September 1996 and March 1997. The Warrants are exercisable
at anytime prior to the second anniversary of their issuance. In addition, the
placement agent received warrants to acquire 32,857 Common Shares at $6.25 per
share. Etablissement Pour le Placement Prive, Zurich, Switzerland, acted as the
Company's placement agent in connection with the offering. After brokerage and
issuance costs, the sales resulted in a net infusion of capital of approximately
$1,735,000 through March 1997. For financial accounting purposes at March 31,
1997 an additional $182,000 has been offset against the proceeds of the
Regulation S offering as additional costs in connection with the issuance of
securities.
In June, 1997, the Company also sold 15,774 Common Shares and warrants
to acquire 2,881 Common Shares at $6.25 per share, for approximately $98,780 in
19
<PAGE>
a private transaction under Regulation S of the Securities Act. The warrants are
exercisable at any time prior to the second anniversary of their issuance.
On April 18, 1997, the Company's wholly-owned subsidiaries entered into
separate Loan and Security Agreements for an aggregate of up to $10,000,000 with
NationsCredit at an annual interest rate of prime plus 3%. NationsCredit
advanced $6,717,000 on April 18, 1997, which was used to repay the obligations
owed to Norwest and other fees incurred in connection with the NationsCredit
loan facility. As of July 31, 1997, $8,251,000 was outstanding under the
NationsCredit facility. In connection with the NationsCredit loan facility, the
Company issued NationsCredit an option to acquire 40,000 common shares of the
Company at a price of $6.25 per share.
The Company will continue to actively seek debt and/or equity capital
infusions. The Company intends to use a substantial portion of any additional
capital to increase the purchase of distributorship inventory. There is no
assurance the Company will be successful in securing additional capital.
Forward-Looking Statements
Statements regarding the Company's expectations as to its capital
resources and certain other information presented in this Form 10-QSB constitute
forward looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Act of 1934, as
amended. Although the Company believes that its expectations are based on
reasonable assumptions within the bounds of its knowledge of its business and
operations, there can be no assurance that actual results will not differ from
its expectations. In addition to matters affecting the economy and the Company's
industry generally, factors that could cause actual results to differ from
expectations include, but are not limited to, the following: (i) the Company's
ability to obtain future financing may be adversely affected by its past
technical defaults on its debt financing and its uncertainty of future
profitability; (ii) the Company's ability to acquire other businesses in
familiar or allied businesses may be adversely affected if the Company is not
able to raise additional capital and obtain any necessary debt financing; (iii)
the Company's ability to raise additional capital may be adversely affected by
its lack of trading volume and the Company's uncertainty of future
profitability; (iv) regulation by governmental authorities, (v) growth or lack
of growth of the airline industry, (vi) the price and availability of aircraft
parts and other materials, (vii) the Company's ability to maintain existing
customer or vendor relationships, (viii) successful execution of the Company's
expansion plans and (ix) competitive and pricing pressures.
20
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
None
ITEM 2. CHANGES IN SECURITIES.
On April 2, 1997 the Board of Directors of the Company
authorized stock option contracts (the "Options") to purchase
100,000 Common Shares issued to certain directors, executive
officers and employees of the Company. The Options are
exercisable for Common Shares at a price of $6.25 per share.
Half of the Options are exercisable on April 2, 1998 and the
remainder are exercisable April 2, 1999. The Options expire
April 2, 2000. The Options are not qualified under any
applicable tax laws or regulations. The Options were granted
pursuant to the exemption from registration provided by
Section 4(2) of the Securities Act of 1933 (the "Securities
Act") to a limited number of directors, executive officers and
employees.
On April 4, 1997, MDC exchanged its 586,862 shares of Series A
Convertible Preferred Stock of the Company's subsidiary for
564,194 Common Shares of the Company pursuant to the
Securities Exchange Agreement between the Company and MDC.
Such shares were issued pursuant to the exemption from
registration provided by Section 4(2) of the Securities Act.
On April 18, 1997, the Company issued an option to acquire
40,000 Common Shares at a price of $6.25 per share to
NationsCredit Commercial Funding ("NationsCredit") in
connection with the closing of the Company's credit facility
from NationsCredit. Such shares were issued pursuant to the
exemption from registration provided by Section 4(2) of the
Securities Act.
On or about June 27, 1997, Fields Aircraft Spares, Inc. (the
"Company") received and accepted a subscription agreement for
the sale of 15,774 common shares of the Company, par value
$.05 per share (the "Common Shares") and warrants to acquire
2,881 Common Shares at $6.25 per share (the "Warrants"), for
approximately $98,780. The Warrants are exercisable at any
time prior to the second anniversary of their issuance. The
Securities were sold to Etablissement Pour Le Placement Prive,
Zurich Switzerland ("EPP") in reliance on Regulation S of the
Securities Act of 1933 ("Regulation S"). EPP has represented
to the Company that EPP is an accredited non-US person as
defined in Regulation S.
EPP acted as the Company's placement agent in connection with
a prior Regulation S placement, which concluded in February
1997. In connection with that offering, the Company issued, on
or about June 26, 1997, additional warrants to acquire 32,857
Common Shares at $6.25 per share (the "Agent Warrants")
21
<PAGE>
pursuant to the terms of the Placement Agent Agreement, dated
July 22, 1996, between the Company and EPP, as amended. The
Agent Warrants are exercisable at any time prior to the second
anniversary of their issuance. The issuance of the Agent
Warrants was made in reliance on Regulation S.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES. None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
The Company held its Annual Meeting of Shareholders on August
7, 1997 (the "Annual Meeting"). At the Annual Meeting,
shareholders (i) elected five (5) directors of the Company to
serve until the expiration of their respective terms or until
their successors are duly elected and qualified; (ii)
increased the number of authorized common shares of the
Company, par value $.05 per share (the "Common Shares") from
2,000,000 to 5,000,000; (iii) amended the Company's Articles
of Incorporation (the "Articles") to provide for staggered
terms of directors by dividing the Board of Directors into
three groups; (iv) approved the Company's 1997 Stock Option
Plan; (v) and ratified the selection by the Board of Directors
of Moore Stephens Frazer & Torbet, LLP as the independent
auditors of the Company for the 1997 fiscal year.
The following list summarizes the number of votes cast for,
against or withheld, as well as the number of abstentions and
broker non-votes, as to each matter, including a separate
tabulation for each nominee to the board of directors.
================================================================================
Votes Against Abstentions and
Votes For (or withheld) Broker Non-Votes
- --------------------------------------------------------------------------------
Item 1 - Election of
Directors
- --------------------------------------------------------------------------------
Peter Frohlich 1,475,864 113,300
- --------------------------------------------------------------------------------
Alan M. Fields 1,475,864 113,300
- --------------------------------------------------------------------------------
Lawrence J. Troyna 1,475,864 113,300
- --------------------------------------------------------------------------------
Leonard I. Fields 1,475,864 113,300
- --------------------------------------------------------------------------------
Mary Sprouse 1,475,864 113,300
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Item 2 - Increase in 904,228 680,074 4,862
Number of Authorized
Common Shares
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Item 3 - Amendment to 1,407,416 110,659 71,089
Articles of
Incorporation to
adopt Staggered
Board
- --------------------------------------------------------------------------------
22
<PAGE>
- --------------------------------------------------------------------------------
Item 4 - Approval of 834,966 677,293 76,905
1997 Omnibus
Stock Option Plan
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Item 5 - Ratification of 1,473,232 113,060 2,872
Auditors
================================================================================
ITEM 5. OTHER INFORMATION.
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Those exhibits previously filed with the Securities
and Exchange Commission as required by Item 601 of
Regulation S-K, are incorporated herein by reference
in accordance with the provisions of Rule 12b-32.
Exhibit 3.1.1 Articles of Amendment
Exhibit 3.2.1 Amended and Restated Bylaws
Exhibit 27 Financial Data Schedule
(b) Reports on Form 8-K
The Company filed a report on Form 8-K, dated June
26, 1997, covering Item 9, Sales of Equity Securities
Pursuant to Regulation S of the Securities Act of
1933, as Amended.
23
<PAGE>
SIGNATURE
In accordance with the requirements of the Securities Exchange Act of
1934, the Registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: August 12, 1997
FIELDS AIRCRAFT SPARES, INC.
By:/s/ Alan M. Fields
---------------------------
Alan M. Fields, President
and Principal Executive Officer
By: /s/ Lawrence J. Troyna
--------------------------
Lawrence J. Troyna, Principal
Financial Officer
24
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
FIELDS AIRCRAFT SPARES, INC.
Pursuant to provisions of the Utah Revised Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
FIRST
The name of the corporation is Fields Aircraft Spares, Inc.
SECOND
The following amendment to the Articles of Incorporation was
duly consented to and adopted by the shareholders of the corporation on August
7, 1997, at the annual meeting of the shareholders, duly held in the manner
prescribed by the Utah Revised Business Corporation Act.
THIRD
Of the 1,877,131 shares of common stock of the corporation issued and
outstanding and entitles to vote, 1,593,164 were present at the meeting either
in person or by proxy. Of the 1,593,164 shares present and entitled to vote on
all matters to come before the meeting, 904,288 voted in favor of and 680,074
voted against adoption of the following amendment to Article IV and 1,407,416
voted in favor of and 110,659 voted against adoption of the following amendment
to Article VIII. The number of votes cast for such amendments was sufficient for
approval by the holders of the corporation's common shares.
1
<PAGE>
FOURTH
The first sentence of Article IV is amended to read as follows:
"Authorized Shares. The total number of shares of stock that
the Corporation shall have authority to issue is 5,000,000
Common Shares, par value $0.5 per share, and 50,000 Preferred
Shares, $0.001 par value per share."
FIFTH
Article VIII of the Articles of Incorporation shall be amended by
adding the following as the second paragraph:
"The directors shall be divided into three classes,
designated Class I, Class II, and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the
total number of directors constituting the entire Board of
Directors. The term of the initial Class I directors shall
terminate on the date of the 1998 annual meeting of
shareholders; the term of the initial Class II directors shall
terminate on the date of the 1999 annual meeting of
shareholders; and the term of the initial Class III directors
shall terminate on the date of the 2000 annual meeting of
shareholders. At each annual meeting of shareholders beginning
in 1998, successors to the class of directors whose term
expires at that annual meeting shall be elected for a
three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so
as to maintain the number of directors in each class as nearly
equal as possible, but in no case will a decrease in the
number of directors shorten the term of any incumbent
director. A director shall hold office until the annual
meeting for the year in which his or her term expires and
until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation or removal from
office. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a
majority of the Board of Directors then in office, provided
that a quorum is present, and any other vacancy occurring in
the Board of Directors may be filled by a majority of the
directors then in office, even if less than a quorum, or by a
sole remaining director. Any director of any class elected to
fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining
term of that class. Any director elected to fill a vacancy not
resulting from an increase in the number of directors shall
have the same remaining term as his or her predecessor."
2
<PAGE>
DATED this 8th day of August, 1997.
FIELDS AIRCRAFT SPARES, INC.
By: /s/ Alan Fields
----------------------
Alan Fields, President
By: /s/ Lawrence J. Troyna
------------------------
Lawrence J. Troyna, Secretary
NOTE: Execution of this document constitutes an acknowledgement under
penalties of perjury that this document constitutes the act and deed of
the entity on behalf of which the document is executed and that the
facts stated herein are true.
3
AMENDED AND RESTATED
BYLAWS
OF
FIELDS AIRCRAFT SPARES, INC.
ARTICLE I. OFFICES
Section 1. Principal Office. The principal office of the
corporation shall be as designated by the board of directors. The corporation
may from time to time change the location of its principal office, within or
without the State of Utah. The corporation may have such other offices, either
within or without the State of Utah, as the business of the corporation may
require from time to time.
Section 2. Registered Office. The registered office of the
corporation required by the Utah Revised Business Corporation Act (the "Act") to
be maintained in the State of Utah may be, but need not be, identical with the
principal office in the State of Utah, and the address of the registered office
may be changed from time to time by the board of directors.
ARTICLE II. SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the
shareholders shall be held on the first Monday in the month of February in each
year at the hour of 10:00 o'clock a.m., or at such other time on such other day
within such month as shall be fixed by the board of directors, for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Utah, such meeting shall be held on the next succeeding
business day. If the election of directors shall not be held on the day
designated herein or any annual meeting of the shareholders, or at any
adjournment thereof, the board of directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as is convenient.
Section 2. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice,
unless otherwise prescribed by statute, may be called by the president, the
chairman of the board of directors, or by the board of directors, and shall be
called by the president at the request of the holders of outstanding shares of
the corporation representing at least ten percent of all the votes entitled to
be cast on any issue proposed to be considered at the special meeting, if such
shareholders sign, date, and deliver to the corporation's secretary one or more
written demands for the meeting, stating the purpose or purposes for which it is
to be held.
Section 3. Place of Meeting. The board of directors may
designate any place, either within or without the State of Utah, as the place of
meeting for any annual meeting or for any special meeting called by the board of
1
<PAGE>
directors. If the special meeting is called by the president or the chairman of
the board of directors, the officer calling the special meeting may designate
any place, either within or without the State of Utah, as the place for that
special meeting. If a special meeting is called by the president at the request
of shareholders, the board of directors, or, if the board of directors fails to
act, the president, may designate a place, either within or without the State of
Utah, as the place of meeting for any special meeting. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or without the State of Utah, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be the principal office of the corporation.
Section 4. Notice of Meeting.
(a) Required Notice. Written notice stating the place, day,
and time of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall, unless otherwise prescribed by
statute, be delivered not less than ten (10) or more than sixty (60) days before
the date of the meeting, either personally or by mail, by or at the direction of
the President, or the Secretary, or the persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid.
(b) Adjourned meetings. If an annual or special meeting is
adjourned to a different date, time or place, notice need not be given of the
new date, time, or place if the new date, time, or place is announced at the
meeting prior to adjournment. If a new record date is or must be fixed under the
Utah Revised Business Corporation Act, new notice of the adjourned meeting must
be given to all shareholders of record who are entitled to vote at the meeting.
(c) Waiver of Notice. The shareholder may waive notice of the
meeting (or any notice required by the Utah Revised Business Corporation Act,
articles of incorporation, or bylaws), by a writing signed by the shareholder
entitled to the notice, which is delivered to the corporation (either before or
after the date and time stated in the notice) for inclusion in the minutes or
filing with the corporate records.
A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or
defective notice of the meeting, unless the
shareholder at the beginning of the meeting
objects to holding the meeting or
transacting business at the meeting because
of lack of notice or defective notice; and
2
<PAGE>
(2) waives objection to consideration of a
particular matter at the meeting that is not
within the purpose or purposes described in
the meeting notice, unless the shareholder
objects to considering the matter when it is
presented.
(d) Contents of Notice. The notice of each special shareholder
meeting shall include a description of the purpose or purposes for which the
meeting is called. Except as provided in this Article II, Section 4(d), the
corporation's articles of incorporation, or otherwise in the Utah Revised
Business Corporation Act, the notice of an annual shareholder meeting need not
include a description of the purpose or purposes for which the meeting is
called.
If a purpose of any shareholder meeting is to consider either:
(1) a proposed amendment to the articles of incorporation (including any
restated articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange or other disposition of all, or
substantially all of the corporation's property outside the ordinary course of
business; (4) if all or substantially all of the corporation's assets consists
of its interest in an entity it controls, the sale, lease, exchange or other
disposition of all or substantially all of the property owned by that entity,
outside the ordinary course of business; (5) the dissolution of the corporation;
or (6) the removal of a director, the notice must so state and be accompanied by
respectively a copy or summary of the: (1) articles of amendment; (2) plan of
merger or share exchange; and (3) transaction for disposition of the
corporation's property. If the proposed corporate action creates dissenters'
rights, the notice must state that shareholders are, or may be, entitled to
assert dissenters' rights, and must be accompanied by a copy of Part 13 of the
Utah Revised Business Corporation Act.
Section 5. Fixing of Record Date.
(a) By Board of Directors. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may fix in advance a
date as the record date. Such record date shall not be more than 70 days prior
to the day on which the meeting is held or on which the action is taken.
(b) By Operation of Bylaw. If no record date is so fixed by
the board for the determination of shareholders entitled to notice of, or to
vote at a meeting of shareholders, or shareholders entitled to receive a share
dividend or distribution, the record date for determination of such shareholders
shall be at the close of business on:
(1) With respect to an annual shareholder
meeting or any special shareholder meeting
called by the board or any person
3
<PAGE>
specifically authorized by the board or
these bylaws to call a meeting, the day
before the first notice is delivered to
shareholders;
(2) With respect to a special shareholder's
meeting demanded by the shareholders, the
president shall fix in advance a date as the
record date, which record date shall not be
more than 70 days prior to the date on which
the meeting is held;
(3) With respect to the payment of a share
dividend, the date the board authorizes the
share dividend;
(4) With respect to actions taken in writing
without a meeting, the date the first
shareholder signs a consent;
(5) And with respect to a distribution to
shareholders, (other than one involving a
repurchase or reacquisition of shares), the
date the board authorizes the distribution.
(c) Record Date Following Adjournment. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof unless the board of directors fixes a new record date which it must do
if the meeting is adjourned to a date more than 120 days after the date fixed
for the original meeting.
Section 6. Shareholder Lists. After a record date for a
shareholders' meeting has been fixed, the officer or agent having charge of the
transfer books for shares of the corporation shall make a complete list of the
shareholders entitled to be given notice of that meeting, arranged in
alphabetical order, with the address of and the number of shares held by each.
The list must be arranged by voting group and within each voting group by class
or series of shares. The shareholder list must be available for inspection by
any shareholder, beginning on the earlier of ten days before the meeting for
which the list was prepared or two business days after notice of the meeting is
given and continuing through the meeting, and any meeting adjournments. The list
shall be available at the corporation's principal office or at a place
identified in the meeting notice in the city where the meeting is to be held. A
shareholder, his agent, or attorney is entitled on written demand to inspect
and, subject to the requirements of Section 14 of this Article II, to copy the
list at his or her expense during regular business hours and during the period
it is available for inspection. The corporation shall maintain the shareholder
list in written form or in another form capable of conversion into written form
within a reasonable time.
4
<PAGE>
Section 7. Shareholder Quorum and Voting Requirements.
(a) Action by Separate Voting Group. If the articles of
incorporation or the Act provides for voting by a single voting group on a
matter, action on that matter is taken when voted upon by that voting group.
(b) Quorum Requirements for Voting Groups. Shares
entitled to vote as a separate voting group may take action on a matter at a
meeting only if a quorum of those shares exists with respect to that matter.
Unless the articles of incorporation or the Act provide otherwise, a majority of
the votes entitled to be cast on the matter by the voting group constitutes a
quorum of that voting group for action on that matter.
(c) Action by Two or More Voting Groups. If the articles
of incorporation or the Act provide for voting by two or more voting groups on a
matter, action on that matter is taken only when voted upon by each of those
voting groups counted separately. Action may be taken by one voting group on a
matter even though no action is taken by another voting group entitled to vote
on the matter.
(d) Share Presence. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
(e) Voting Requirements. If a quorum exists, action on a
matter (other than the election of directors) by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the articles of incorporation or the Act require a
greater number of affirmative votes.
Section 8. Proxies. At all meetings of shareholders, a
shareholder may vote in person or by proxy. A shareholder may appoint a proxy to
vote or otherwise act for that shareholder by signing an appointment form either
personally or by its duly authorized attorney-in-fact. The shareholder may
appoint a proxy by transmitting or authorizing the transmission of telegram,
teletype, or other electronic transmission, provided that the transmitted
appointment shall set forth or be transmitted with evidence from which it can be
determined that the shareholder transmitted or authorized the transmission of
the appointment. Such proxy shall be filed with the secretary of the corporation
before or at the time of the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the proxy.
5
<PAGE>
Section 9. Voting of Shares.
(a) One Share One Vote. Unless otherwise provided in the
articles of incorporation, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders.
(b) Shares Held by Another Corporation. Except as provided by
specific court order, no shares held by another corporation, if a majority of
the shares entitled to vote for the election of directors of such other
corporation are held by the corporation, shall be voted at any meeting or
counted in determining the total number of outstanding shares at any given time
for purposes of any meeting. Provided, however, the prior sentence shall not
limit the power of the corporation to vote any shares, including its own shares,
held by it in a fiduciary capacity.
(c) Voting of Redeemable Shares. Redeemable shares are not
entitled to vote after notice of redemption is mailed to the holders and a sum
sufficient to redeem the shares has been deposited with a bank, trust company,
or other financial institution under an irrevocable obligation to pay the
holders the redemption price on surrender of the shares.
Section 10. Corporation's Acceptance of Votes.
(a) Shareholder's Name Signed. If the name signed on a vote,
consent, waiver, proxy appointment or proxy revocation corresponds to the name
of a shareholder, the corporation if acting in good faith, is entitled to accept
the vote, consent, waiver, proxy appointment or proxy revocation and give it
effect as the act of the shareholders.
(b) Other Than Shareholder's Name Signed. If the name signed
on a vote, consent, waiver, proxy appointment or proxy revocation does not
correspond to the name of a shareholder, the corporation, if acting in good
faith, is nevertheless entitled to accept the vote, consent, waiver, proxy
appointment or proxy revocation and give it effect as the act of the shareholder
if:
(1) the shareholder is an entity as defined in
the Act and the name signed purports to be
that of an officer or agent of the entity;
(2) the name signed purports to be that of an
administrator, executor, guardian, or
conservator representing the shareholder
and, if the corporation requests, evidence
of fiduciary status acceptable to the
corporation has been presented with respect
to the vote, consent, waiver, proxy
appointment or proxy revocation;
6
<PAGE>
(3) the name signed purports to be that of a
receiver or trustee in bankruptcy of the
shareholder and, if the corporation
requests, evidence of this status acceptable
to the corporation has been presented with
respect to the vote, consent, wavier proxy
appointment or proxy revocation;
(4) the name signed purports to be that of a
pledgee, beneficial owner, or
attorney-in-fact of the shareholder and, if
the corporation requests, evidence
acceptable to the corporation of the
signatory's authority to sign for the
shareholder has been presented with respect
to the vote, consent, waiver, proxy
appointment or proxy revocation; or
(5) two or more persons are the shareholder as
co-tenants or fiduciaries and the name
signed purports to be the name of at least
one of the co-owners and the person signing
appears to be acting on behalf of all the
co-owners.
(c) Rejection. The corporation is entitled to reject a vote,
consent, waiver proxy appointment or proxy revocation if the secretary or other
officer or agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or about
the signatory's authority to sign for the shareholder.
(d) No Liability for Accepting or Rejecting. The corporation
and its officer or agent who accepts or rejects a vote, consent, waiver, proxy
appointment or proxy revocation in good faith and in accordance with the
standards of this section are not liable in damages to the shareholder for the
consequences of the acceptance or rejection.
(e) Action Presumed Valid. Corporate action based on the
acceptance or rejection of a vote, consent, waiver, proxy appointment or proxy
revocation under this section is valid unless a court of competent jurisdiction
determines otherwise.
Section 11. Informal Action by Shareholders.
(a) Written Consents. Any action required to be taken at a
meeting of the shareholders, or any action which may be taken at a meeting of
the shareholders, may be taken without a meeting and without prior notice if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to take the action at a meeting at which all shares
entitled to vote thereon were present and voted, and delivered to the
corporation for inclusion in the minute book.
7
<PAGE>
(b) Notice When Not Unanimous. Unless the written consents of
all shareholders entitled to vote have been obtained, notice of any shareholder
approval without a meeting shall be given at least ten days before the
consummation of the action authorized by the approval to:
(1) those shareholders entitled to vote who have
not consented in writing; and
(2) those shareholders not entitled to vote and
to whom the Act requires that notice of the
proposed action be given.
(c) Contents of Notice. The notice must contain or be
accompanied by the same material that would have been required to be sent in a
notice of meeting at which the proposed action would have been submitted to the
shareholders for action.
(d) Revocation of Consent. Any shareholder giving a written
consent, or the shareholder's proxy holder, or a transferee of the shares or a
personal representative of the shareholder or their respective proxy holder, may
revoke the consent by a signed writing describing the action and stating that
the shareholder's prior consent is revoked, if the writing is received by the
corporation prior to the effectiveness of the action.
(e) Time Limitation. An action taken pursuant to this Section
is not effective unless all written consents on which the corporation relies are
received within a sixty (60) day period and not revoked.
(f) Effective Date of Action by Consent. An action taken
pursuant to this Section is effective as of the date the last written consent
necessary to effect the action is received by the corporation unless all of the
consents necessary to effect the action specify a later date as the effective
date and that date is not more than 70 days after the date the first shareholder
signed the written consent.
(g) Election of Directors. Directors may not be elected by
written consent except by unanimous written consent of all shares entitled to
vote for the election of directors.
Section 12. Voting for Directors. Unless otherwise provided in
the articles of incorporation, directors are elected by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at which a
quorum is present.
8
<PAGE>
Section 13. Shareholder's Rights to Inspect Corporate Records.
(a) Minutes and Accounting Records. The corporation shall keep
as permanent records minutes of all meetings of its shareholders and board of
directors, a record of all actions taken by the shareholders or board of
directors without a meeting, and a record of all actions taken by a committee of
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notices of meetings of shareholders,
meetings of the board of directors, or any meetings of committees of the board
of directors. The corporation shall maintain appropriate accounting records.
(b) Absolute Inspection Rights of Records Required at
Principal Office. If a shareholder gives the corporation written notice of the
shareholder's demand at least five business days before the date on which the
shareholder wishes to inspect and copy, a shareholder (or the shareholder's
agent or attorney) has the right to inspect or copy, during regular business
hours any of the following records, all of which the corporation is required to
keep at its principal office:
(1) its articles or restated articles of
incorporation and all amendments to them
currently in effect;
(2) its bylaws or restated bylaws and all
amendments to them currently in effect;
(3) all financial statements prepared for the
periods ending during the last three years
that show in reasonable detail the
corporation's assets and liabilities and
the results of its operations;
(4) the minutes of all shareholders' meetings,
and records of all action taken by
shareholders without a meeting, for the past
three years;
(5) all written communications within the past
three years to shareholders as a group or to
the holders of any class or series of shares
as a group;
(6) a list of the names and business addresses
of its current directors and officers; and
(7) its most recent annual report delivered to
the Department of Commerce, Division of
Corporations and Commercial Code.
9
<PAGE>
(c) Conditional Inspection Right. In addition, if a
shareholder gives the corporation a written demand made in good faith and for a
proper purpose at least five business days before the date on which the
shareholder wishes to inspect a copy, the shareholder describes with reasonable
particularity the shareholder's purpose or purposes and the records the
shareholder desires to inspect, and the records are directly connected with the
shareholder's purposes, a shareholder of the corporation (or the shareholder's
agent or attorney) is entitled to inspect and copy, during regular business
hours at a reasonable location specified by the corporation, any of the
following records of the corporation:
(1) excerpts from minutes of any meeting,
records of any action taken by the board of
directors, or of a committee of the board of
directors while acting on behalf of the
corporation in place of the board of
directors, minutes of any meeting of the
shareholders, and records of action taken by
the shareholders without a meeting, and
waivers of notices of any meeting of the
shareholders, or any meeting of the board of
directors, or of any meeting of a committee
of the board of directors;
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no
earlier than the date of the shareholder's
demand.)
(d) Copy Costs. The right to copy records includes, if
reasonable, the right to receive copies made by photographic, xerographic, or
other means. The corporation may impose a reasonable charge, covering the costs
of labor and material, for copies of any documents provided to the shareholder.
The charge may not exceed the estimated cost of production or reproduction of
the records.
(e) Shareholder Includes Beneficial Owner. For purposes of
this Section 13, the term "shareholder" shall include a beneficial owner whose
shares are held in a voting trust or by a nominee on his behalf.
Section 14. Financial Statements. Upon the written request of
any shareholder, the corporation shall mail to him or her, its most recent
annual or quarterly financial statements showing in reasonable detail its assets
and liabilities and the results of its operations.
ARTICLE III. BOARD OF DIRECTORS
Section 1. General Powers. Unless the articles of
incorporation or a shareholder agreement executed by all shareholders pursuant
to Section 16-10a-732 of the Act have dispensed with or limited the authority of
10
<PAGE>
the board of directors by describing who will perform some or all of the duties
of a board of directors, all corporate powers shall be exercised by or under the
authority of, and the business and affairs of the corporation shall be managed
under the direction of the board of directors.
Section 2. Number, Tenure and Qualifications. The number of
directors of the corporation shall be not less than the number of shareholders
entitled to vote for the election of directors, if the corporation has fewer
than three such shareholders, nor more than seven (7) as determined, from time
to time, by the shareholders or the board of directors. Each director shall hold
office until their term has expired or until removed. If a director's term
expires, he or she shall continue to serve until his successor shall have been
elected and qualified or until there has been a decrease in directors. Directors
need not be residents of the State of Utah or shareholders of the corporation.
The board of directors may elect from its own number a chairman of the board,
who shall preside at all meetings of the board of directors, and shall perform
such other duties as may be prescribed from time to time by the board of
directors.
Section 3. Regular Meetings. A regular meeting of the board of
directors shall be held without other notice than this by-law immediately after,
and at the same place as, the annual meeting of shareholders. The board of
directors may provide, by resolution, the time and place, either within or
without the State of Utah, for the holding of additional regular meetings
without other notice than such resolution. Such meetings may be held by
telephone or by any other means of communication by which all directors
participating may hear each other during the meeting.
Section 4. Special Meetings. Special meetings of the board of
directors may be called by or at the request of the president or the chairman of
the board of directors or any two directors. The person or persons authorized to
call special meetings of the board of directors may fix any place, either within
or without the State of Utah, as the place for holding any special meeting of
the board of directors called by them. Such meetings may also be held by
telephone or by any other means of communication by which all directors
participating may hear each other during the meeting.
Section 5. Notice.
(a) General Provisions. Regular meetings of the board of
directors may be held without notice of the date, place, time and purpose of the
meeting. Notice of any special meeting, however, shall be given at least two
days previously thereto by written notice delivered personally or mailed to each
director at his business address, or by telegram or telephonic facsimile. If
mailed, such notice shall be deemed to be effective at the earlier of: (1) when
received; (2) five days after deposited in the United States mail, addressed to
the director's business office, with postage thereon prepaid; or (3) the date
11
<PAGE>
shown on the return receipt if sent by registered or certified mail, return
receipt requested, and the receipt is signed by or on behalf of the director. If
notice is given by telegram such notice shall be deemed to be effective when the
telegram is delivered to the telegraph company. If notice is given by telephonic
facsimile, such notice shall be deemed to be effective when the transmission is
confirmed by or on behalf of the director. If notice is given by private
courier, such notice shall be deemed to be effective when acknowledgement of
delivery is signed by or on behalf of the director.
(b) Waiver. Any director may waive notice of any meeting.
Except as provided in this section 5(b), the waiver must be in writing, signed
by the director entitled to the notice and filed with the minutes or corporate
records. The attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business and at the
beginning of the meeting, or promptly upon the director's arrival, objects to
holding the meeting or transacting business at the meeting because of lack of
notice or defective notice, and does not thereafter vote for or assent to action
taken at the meeting.
(c) Content. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. Quorum. A majority of the number of directors fixed
pursuant to Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the board of directors, but if less
than such majority is present at a meeting, a majority of the directors present
may adjourn the meeting from time to time without further notice.
Section 7. Manner of Acting.
(a) Voting Requirements. The affirmative vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the board of directors, unless the articles of incorporation, these bylaws,
or the Act require a greater percentage.
(b) Appropriate Means of Communication. Unless the articles of
incorporation provide otherwise, any or all directors may participate in a
regular or special meeting by, or conduct the meeting through the use of, any
means of communication by which all directors participating may simultaneously
hear each other during the meeting. A director participating in a meeting by
this means is deemed to be present in person at the meeting.
12
<PAGE>
(c) Effect of Presence at Meeting. A director who is present
at a meeting of the board of directors or a committee of the board of directors
when corporate action is taken is deemed to have assented to the action taken
unless: (1) he objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting; or (2) his
dissent or abstention from the action taken is entered in the minutes of the
meeting; or (3) he delivers written notice of his dissent or abstention to the
presiding officer of the meeting before its adjournment or to the corporation
immediately after adjournment of the meeting. This right of dissent or
abstention is not available to a director who votes in favor of the action
taken.
Section 8. Director Action Without a Meeting. Unless the
articles of incorporation, these bylaws, or the Act provide otherwise, any
action required or permitted to be taken by the board of directors at a meeting
may be taken without a meeting if all directors consent to the action in
writing. Action taken by consents is effective when the last director signs a
writing describing the action taken, unless, prior to that time, any director
has revoked a consent by a writing signed by the director and received by the
secretary or other person authorized by the board of directors to receive a
revocation, or unless the consent specifies a different effective date. A signed
consent has the effect of a meeting vote and may be described as such in any
document.
Section 9. Removal of Directors. The shareholders may remove
one or more directors at a meeting called for that purpose if notice has been
given that a purpose of the meeting is such removal. The removal may be with or
without cause unless the articles provide that directors may only be removed
with cause. If a director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove him. If
cumulative voting is authorized, a director may not be removed if the number of
votes sufficient to elect him under cumulative voting is voted against his
removal. If cumulative voting is not authorized, a director may be removed only
if the number of votes cast to remove him exceeds the number of votes cast not
to remove him.
Section 10. Vacancies.
(a) Who May Fill Vacancy. Unless the articles of incorporation
provide otherwise, if a vacancy occurs on the board of directors, including a
vacancy resulting from an increase in the number of directors:
(1) the shareholders may fill the vacancy;
(2) the board of directors may fill the
vacancy; or
13
<PAGE>
(3) if the directors remaining in office
constitute fewer than a quorum of the board,
they may fill the vacancy by the affirmative
vote of a majority of all the directors
remaining in office.
(b) Directors Elected by a Voting Group. Unless otherwise
provided in the articles of incorporation, if the vacant office was held by a
director elected by a voting group of shareholders:
(1) if one or more directors are elected by the
same voting group, only they are entitled to
vote to fill the vacancy if it is filled by
the directors; and
(2) only the holders of shares of that voting
group are entitled to vote to fill the
vacancy if it is filled by the shareholders.
(c) Filling Future Vacancies. A vacancy that will occur at a
specific later date, by reason of a resignation effective at a later date or
otherwise, may be filled before the vacancy occurs, but the new director may not
take office until the vacancy occurs.
(d) Term of New Director. The term of a director elected to
fill a vacancy expires at the next shareholders' meeting at which directors are
elected. However, if his term expires, he shall continue to serve until his
successor is elected and qualifies or until there is a decrease in the number of
directors.
Section 11. Compensation. By resolution of the board of
directors, each director may be paid his expenses, if any, of attendance at each
meeting of the board of directors, and may be paid a stated salary as director
or a fixed sum for attendance at each meeting of the board of directors or both.
No such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 12. Director Committees.
(a) Creation of Committees. The board of directors may create
one or more committees and appoint members of the board of directors to serve on
them. Each committee must have two or more members, who serve at the pleasure of
the board of directors.
(b) Selection of Members. The creation of a committee and
appointment of members to it must be approved by the greater of (1) a majority
of all the directors in office when the action is taken or (2) the number of
directors required by the articles of incorporation or bylaws to take such
action.
14
<PAGE>
(c) Required Procedures. Provisions of this Article III, which
govern meetings, action without meetings, notice and waiver of notice, quorum
and voting requirements of the board of directors, apply to committees and their
members.
(d) Authority. Each Committee may exercise those aspects of
the authority of the board of directors which the board of directors confers
upon such committee in the resolution creating the committee.
ARTICLE IV. OFFICERS
Section 1. Number. The officers of the corporation shall be a
president and a secretary, each of whom shall be elected by the board of
directors. Such other officers and assistant officers, including a chairman of
the board, treasurer and any vice presidents, as may be deemed necessary may be
elected or appointed by the board of directors. If specifically authorized by
the board of directors, an officer may appoint one or more officers or assistant
officers. Any two or more offices may be held simultaneously by the same person.
Section 2. Appointment and Term of Office. The officers of the
corporation shall be appointed by the board of directors for a term as
determined by the board of directors. The designation of a specified term grants
to the officer no contract rights, and the board can remove the officer at any
time prior to the termination of such term. If no term is specified, they shall
hold office until they resign, die, or until they are removed in the manner
provided hereafter.
Section 3. Removal. Any officer or agent may be removed by the
board of directors at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
Section 4. Resignation. An officer may resign at any time by
giving written notice of the resignation to the corporation. The resignation is
effective when the notice is received by the corporation, unless a later
effective date is specified. If the resignation is effective at a later date,
the board of directors may remove the officer at any time before the effective
date and fill the resulting vacancy, or the board may allow the officer to
remain in office until the effective date and fill the pending vacancy before
the effective date if the board provides that the successor does not take office
until the effective date.
Section 5. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term.
15
<PAGE>
Section 6. Chief Executive Officer. The board of directors may
designate one of the officers as chief executive officer. He shall have, subject
to the supervision and direction of the board of directors, general supervision
of the business, property, and affairs of the corporation and the powers vested
in him by the board of directors, by law or by these Bylaws or which usually
attach or pertain to such office.
Section 7. Chairman of the Board. If appointed, the chairman
of the board shall have the powers and duties vested in him by the board of
directors, by law or by these Bylaws. He shall preside at meetings of the board
of directors.
Section 8. The President. The president shall be the principal
executive officer of the corporation and, subject to the control of the board of
directors and the Chief Executive Officer, shall in general supervise and
control all of the business and affairs of the corporation. He shall, when
present, preside at all meetings of the shareholders. He may sign, with the
secretary or any other proper officer of the corporation thereunto authorized by
the board of directors, certificates for shares of the corporation, any deeds,
mortgages, bonds, contracts, or other instruments which the board of directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the board of directors from time to time.
Section 9. The Vice-President. If appointed, in the absence of
the president or in the event of his death, inability or refusal to act, the
vice-president (or in the event there be more than one vice-president, the
vice-presidents in the order designated at the time of their appointment, or in
the absence of any designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. Any
vice-president may sign, with the secretary or an assistant secretary,
certificates for shares of the corporation; and shall perform such other duties
as from time to time may be assigned to him by the president or by the board of
directors.
Section 10. The Secretary. The secretary shall: (a) keep the
minutes of the proceedings of the shareholders and of the board of directors in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law;
(c) be custodian of the corporate records and of the seal of the corporation and
see that the seal of the corporation is affixed to all documents the execution
of which on behalf of the corporation under its seal is duly authorized; (d)
when requested or required, authenticate any records of the corporation, (e)
keep a register of the post office address of each shareholder; (f) sign with
16
<PAGE>
the president, or a vice-president, certificates for shares of the corporation,
the issuance of which shall have been authorized by resolution of the board of
directors; (g) have general charge of the stock transfer books of the
corporation; and (h) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the President or by the board of directors; provided that the Secretary may
delegate the responsibilities set forth in clauses (e) and (g) above to the duly
appointed stock transfer agent of the corporation.
Section 11. The Treasurer. If appointed, the treasurer shall:
(a) have charge and custody of and be responsible for all funds and securities
of the corporation; (b) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever, and deposit all such moneys in the
name of the corporation in such banks, trust companies or other depositories as
shall be selected in accordance with the provisions of Article V; (c) in general
perform all of the duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him by the president or by the
board of directors; and (d) if there is no vice-president, then the Treasurer
shall perform such duties of the president. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the board of directors
shall determine.
Section 12. Assistant Secretaries and Assistant Treasurers.
The assistant secretaries, when authorized by the board of directors, may sign
with the president or a vice-president certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the board of directors. The assistant treasurers shall, respectively, if
required by the board of directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the board of directors shall
determine. The assistant secretaries and assistant treasurers, in general, shall
perform such duties as shall be assigned to them by the secretary or the
treasurer, respectively, or by the president or the board of directors.
Section 13. Salaries. The salaries of the officers shall be
fixed from time to time by the board of directors and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The board of directors may authorize any
officer or officers, agent or agents to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
17
<PAGE>
Section 2. Loans. No loans shall be contracted on behalf of
the corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the board of directors. Such authority may
be general or confined to specific instances.
Section 3. Checks, Drafts, Etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from time to time
be determined by resolution of the board of directors.
Section 4. Deposits. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositaries as the board of
directors may select.
18
<PAGE>
ARTICLE VI. INDEMNIFICATION
Section 1. Indemnification. To the extent allowed by law,
the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with the
action, suit or proceeding, except in relation to matters as to which he shall
be finally adjudged in such action, suit or proceeding to be liable for willful
misconduct in the performance of his duties. Indemnification under this Section
1 shall be considered a contractual right of the indemnified parties.
Section 2. General Terms of Indemnification. The
indemnification and advancement of expenses provided by this Article may not be
construed to be exclusive of any of the rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law,
by-law, agreement, vote of shareholders or disinterested directors or otherwise,
both as to an action in his official capacity and as to an action in another
capacity while holding office.
Section 3. Advances. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer that he shall repay the
amount advanced if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the Corporation as
authorized by this Article.
Section 4. Scope of Indemnification. The indemnification and
advancement of expenses authorized by this Article shall apply to all present
and future directors and officers of the Corporation and shall continue as to
such persons who cease to be directors or officers of the Corporation and shall
inure to the benefit of the heirs, executors, and administrators of all such
persons and shall be in addition to all other indemnification and advancement of
expenses provided by law.
Section 5. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity or
19
<PAGE>
arising out of his status in any such capacity, whether or not the Corporation
would have the power to indemnify him against any such liability under the
provisions of this Article or the laws of the State of Utah as the same may
hereafter be amended or modified.
Section 6. Severability. If any provision of this Article or
the application of such provision to any person or circumstance shall be found
by a court of competent jurisdiction to be invalid or unenforceable the
remainder of this Article or the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby. It is the intent of the Corporation to indemnify
all parties set forth in this Article to the full extent provided by law.
ARTICLE VII. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares.
(a) Content. Certificates representing shares of the
corporation shall at minimum, state on their face the name of the issuing
corporation and that it is formed under the laws of Utah, the name of the person
to whom issued; and the number and class of shares and the designation of the
series, if any, the certificate represents; and be in such form as determined by
the board of directors. Such certificates shall be signed (either manually or,
if countersigned by the duly appointed stock transfer agent of the corporation,
by facsimile) by the president or a vice-president and by the secretary or an
assistant secretary and may be sealed with a corporate seal or a facsimile
thereof. Each certificate for shares shall be consecutively numbered or
otherwise identified.
(b) Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series within a
class, the designations, relative rights, preferences and limitations applicable
to each class and the variations in relative rights, preferences and limitations
determined for each series (and the authority of the board of directors to
determine variations for any existing or future class or series) must be
summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
(c) Restrictions on Transfer. Any restriction on the transfer
or registration of transfer of shares must be noted conspicuously on the front
or back of the share certificate.
(d) Shareholder List. The name and address of the person
to whom the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the transfer books of the corporation.
20
<PAGE>
(e) Transferring Shares. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed, or
mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the board of directors may prescribe.
Section 2. Registration of the Transfer of Shares.
Registration of the transfer of shares of the corporation shall be made only on
the transfer books of the corporation. To register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the person in whose name
shares stand on the books of the corporation shall be deemed by the corporation
to be the owner thereof for all purposes.
Section 3. Restrictions on Transfer of Shares.
(a) Restrictions Permitted. The board of directors (or
shareholders) may impose restrictions on the transfer or registration of
transfer of shares (including any security convertible into, or carrying a right
to subscribe for or acquire shares). A restriction does not affect shares issued
before the restriction was adopted unless the holders of the shares are parties
to the restriction agreement or voted in favor of the restriction.
(b) Authorized Purposes for Restrictions. A restriction on
the transfer or registration of transfer of shares may be authorized:
(1) to maintain the corporation's status when it
is dependent on the number or identity of
its shareholders;
(2) to preserve entitlements, benefits, or
exemptions under federal, state or local
laws;
(3) to provide continuity in the ownership and
management of the corporation; or
(4) for any other reasonable purpose.
(c) Types of Restrictions Authorized. A restriction on the
transfer or registration of transfer of shares may:
21
<PAGE>
(1) obligate the shareholder first to offer the
corporation or other persons (separately,
consecutively, or simultaneously) an
opportunity to acquire the restricted
shares;
(2) obligate the corporation or other persons
(separately, consecutively, or simultane-
ously) to acquire the restricted shares;
(3) require the corporation, any of its
shareholders or any one or more persons to
approve the transfer or registration of
transfer of the restricted shares, if the
requirement is not manifestly unreasonable;
(4) require the shareholder to establish
compliance with federal and state laws
regarding registration of the offer and sale
of securities; or
(5) prohibit the transfer or the registration of
a transfer of the restricted shares to
designated persons or classes of persons, if
the prohibition is not manifestly
unreasonable.
(d) Disclosure of Restrictions Required. A restriction on the
transfer or registration of transfer of shares is valid and enforceable against
the holder or a transferee of the holder if the restriction is authorized by
this section or the Act and its existence is noted conspicuously on the front or
back of the share certificate or is contained in the information statement
required by Section 2 of this Article VII with regard to shares issued without
certificates. Unless so noted, a restriction is not enforceable against a person
without knowledge of the restriction.
Section 4. Corporation's Acquisition of Shares.
(a) Acquisition Authorized. Subject to the restrictions
contained in Utah Code Ann. ss.16-10a-640(3), the corporation may acquire its
own shares and the shares so acquired constitute authorized but unissued shares.
(b) When Amendment of Articles Required. If the articles of
incorporation prohibit the reissue of acquired shares, the number of authorized
shares is reduced by the number of shared acquired, effective upon amendment of
the articles of incorporation, which amendment shall be adopted by the board of
directors without shareholder action. The articles of amendment must be
delivered to the Utah Department of Commerce, Division of Corporations and
Commercial Code and must set forth:
(1) the name of the corporation;
22
<PAGE>
(2) the reduction in the number of authorized
shares, itemized by class and series;
(3) the total number of authorized shares,
itemized by class and series, remaining
after reduction of the shares; and
(4) a statement that the amendment was adopted
by the board of directors without
shareholder action and that shareholder
action was not required.
ARTICLE VIII. FISCAL YEAR
The fiscal year of the corporation shall be the calendar year.
ARTICLE IX. DISTRIBUTIONS
The board of directors may authorize, and the corporation may
make, distributions (including dividends on its outstanding shares) in the
manner, and upon the terms and conditions provided by law and the corporation's
articles of incorporation.
ARTICLE X. CORPORATE SEAL
The board of directors may in its discretion provide a
corporate seal.
ARTICLE XI. AMENDMENTS
Section 1. Restrictions on Amendments. The corporation's
board of directors may amend or repeal the corporation's bylaws unless:
(a) the articles of incorporation or the Act reserve this
power exclusively to the shareholders in whole or in part; or
(b) the shareholders in adopting, amending, or repealing a
particular bylaw provide expressly that the board of directors may not amend or
repeal that bylaw.
23
<PAGE>
Section 2. Amendment by Shareholders. The corporation's
shareholders may amend or repeal the corporation's bylaws even though the bylaws
may also be amended or repealed by its board of directors.
ARTICLE XII. EMERGENCY BYLAWS
The following provisions shall be effective during an
emergency which is defined as when a quorum of the corporation's directors
cannot be readily assembled because of some catastrophic event.
During such emergency:
(a) Notice of Board Meetings. Any one member of the
board of directors or any one of the following officers: president, any
vice-president, secretary, or treasurer, may call a meeting of the board of
directors. Notice of such meeting need to given only to those directors whom it
is practicable to reach, and may be given in any practical manner, including by
publication and radio. Such notice shall be given at least six hours prior to
commencement of the meeting.
(b) Temporary Directors and Quorum. One or more
officers of the corporation present at the emergency board meeting, as is
necessary to achieve a quorum, shall be considered to be directors for the
meeting, and shall so serve in order of rank, and within the same rank, in order
of seniority. In the event that less than a quorum of the directors are present
(including any officers who are to serve as directors for the meeting), those
directors present (including the officers serving as directors) shall constitute
a quorum.
(c) Actions Permitted to be Taken. The board as
constituted in paragraph (b), and after notice as set
forth in paragraph (a) may:
(1) Officers' Powers. Prescribe emergency powers
to any officer of the corporation;
(2) Delegation of Any Power. Delegate to any
officer or director, any of the powers of
the board of directors;
(3) Lines of Succession. Designate lines of
succession of officers and agents, in the
event that any of them are unable to
discharge their duties;
24
<PAGE>
(4) Relocate Principal Place of Business.
Relocate the principal place of business, or
designate successive principal places of
business;
(5) All Other Action. Take any other action,
convenient, helpful, or necessary to carry
on the business of the corporation.
ARTICLE XIII. PROCEDURE FOR CONDUCTING MEETINGS
All shareholder and director meetings shall be conducted in
accordance with the rules and procedures set forth in the most current edition
of Roberts' Rules of Order, unless otherwise specified by the Chairman of the
Board or other presiding officer.
25
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 578,000
<SECURITIES> 0
<RECEIVABLES> 2,014,000
<ALLOWANCES> 100,000
<INVENTORY> 9,214,000
<CURRENT-ASSETS> 11,936,000
<PP&E> 1,832,000
<DEPRECIATION> 794,000
<TOTAL-ASSETS> 13,694,000
<CURRENT-LIABILITIES> 2,107,000
<BONDS> 8,314,000
0
0
<COMMON> 341,000
<OTHER-SE> 2,932,000
<TOTAL-LIABILITY-AND-EQUITY> 13,694,000
<SALES> 5,030,000
<TOTAL-REVENUES> 5,030,000
<CGS> 2,988,000
<TOTAL-COSTS> 2,988,000
<OTHER-EXPENSES> 1,637,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 942,000
<INCOME-PRETAX> (537,000)
<INCOME-TAX> 2,000
<INCOME-CONTINUING> (539,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (539,000)
<EPS-PRIMARY> (.28)
<EPS-DILUTED> (.24)
</TABLE>
