FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Quarterly Report Under Section 13 or
15(d) of the Securities Exchange Act of 1934
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[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
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Commission file number 0-2315
EMCOR Group, Inc.
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(Exact name of registrant as specified in
its charter)
Delaware 11-2125338
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
101 Merritt Seven Corporate Park 06851-1060
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Norwalk, Connecticut (Zip Code)
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(Address of principal executive offices)
(203) 849-7800
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(Registrant's telephone number)
N/A
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(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities and Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
filing requirements for the past 90 days. Yes X No __
Applicable Only To Issuers Involved In Bankruptcy Proceedings During
The Previous Five Years
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Indicate by check mark whether the registrant has filed all documents
required to be filed by Section 12, 13 or 15(d) of the Securities and Exchange
Act of 1934, subsequent to the distribution of securities under a plan confirmed
by a court. Yes X No __
Applicable Only To Corporate Issuers
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Number of shares of Common Stock outstanding as of the close of business on
April 30, 1997: 9,529,635 shares.
<PAGE>
EMCOR GROUP, INC.
INDEX
Page No.
PART I - Financial Information
Item 1 Financial Statements
Condensed consolidated balance sheets - as of March 31, 1997
and December 31,1996 1
Condensed consolidated statements of operations three
months ended March 31, 1997 and 1996 3
Condensed consolidated statements of cash flows three months
ended March 31, 1997 and 1996 4
Condensed consolidated statement of stockholders' equity -
three months ended March 31, 1997 5
Notes to condensed consolidated financial statements 6
Item 2 Management's discussion and analysis of financial condition and
results of operations 9
PART II - Other Information
Item 1 Legal Proceedings 11
Item 6 Exhibits and Reports on Form 8-K 11
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PART I - FINANCIAL INFORMATION
ITEM 1 FINANCIAL STATEMENTS
EMCOR Group, Inc. and Subsidiaries
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands)
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March 31, December 31,
1997 1996
(Unaudited)
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ASSETS
Current Assets:
Cash and cash equivalents $61,072 $50,705
Accounts receivable, net 460,011 442,930
Costs and estimated earnings in
excess of billings on
uncompleted contracts 71,669 67,765
Inventories 8,695 9,108
Prepaid expenses and other 8,238 8,143
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Total Current Assets 609,685 578,651
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Investments, Notes and Other Long-Term
Receivables 4,940 5,737
Property, Plant and Equipment, Net 27,004 26,952
Other Assets 3,373 3,407
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Total Assets $645,002 $614,747
==================================
See notes to condensed consolidated financial statements.
<PAGE>
EMCOR Group, Inc. and Subsidiaries
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands, Except Per Share and Share Amounts)
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March 31, December
1997 31,
(Unaudited) 1996
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Borrowings under working capital credit line $19,300 $14,200
Current maturities of long-term debt 504 361
Accounts payable 218,174 218,099
Billings in excess of costs and estimated
earnings on uncompleted contracts 119,635 105,653
Accrued payroll and benefits 50,466 43,789
Other accrued expenses and liabilities 41,038 39,596
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Total Current Liabilities 449,117 421,698
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Long-Term Debt 73,184 73,051
Other Long-Term Obligations 38,730 36,115
Stockholders' Equity:
Common Stock, $.01 par value, 13,700,000
shares authorized, 9,514,636 shares
issued or reserved for issuance, and
outstanding 95 95
Warrants 2,154 2,154
Capital surplus 81,820 81,672
Cumulative translation adjustment 1,062 1,378
Accumulated Deficit (1,160) (1,416)
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Total Stockholders' Equity 83,971 83,883
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Total Liabilities and Stockholders' Equity $645,002 $614,747
===========================
See notes to condensed consolidated financial statements.
<PAGE>
EMCOR Group, Inc. and Subsidiaries
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Per Share Amounts) (Unaudited)
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Three months ended March 31, 1997 1996
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Revenues $433,770 $382,744
Costs and Expenses:
Cost of sales 394,705 345,572
Selling, general and administrative 35,623 36,643
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430,328 382,215
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Operating Income 3,442 529
Interest Expense, Net 3,008 3,761
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Income (Loss) Before Income Taxes 434 (3,232)
Provision For Income Taxes 178 421
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Net Income (Loss) $256 ($3,653)
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Income (Loss) Per Common Share and Common
Equivalent Share: $0.03 ($0.37)
=============================
See notes to condensed consolidated financial statements.
<PAGE>
EMCOR Group, Inc. and Subsidiaries
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands) (Unaudited)
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Three months ended March 31, 1997 1996
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CASH FLOWS FROM OPERATIONS:
Net income (loss) $256 ($3,653)
Non-cash expenses 2,363 4,163
Changes in operating assets and liabilities 4,216 2,816
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NET CASH PROVIDED BY OPERATIONS 6,835 3,326
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CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings under working capital credit lines 5,100 --
Payments of long-term debt and capital lease
obligations (62) (199)
Change in notes payable, net -- (425)
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NET CASH PROVIDED BY (USED IN) FINANCING
ACTIVITIES 5,038 (624)
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CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property, plant and equipment, net (2,317) (1,170)
Proceeds from sale of businesses and other assets 14 281
Decrease in investments, notes and other
long-term receivables 797 --
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NET CASH USED IN INVESTING ACTIVITIES (1,506) (889)
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INCREASE IN CASH AND CASH EQUIVALENTS 10,367 1,813
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 50,705 53,007
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CASH AND CASH EQUIVALENTS AT END OF PERIOD $61,072 $54,820
=======================
SUPPLEMENTAL CASH FLOW INFORMATION
Cash Paid For:
Interest $2,074 $1,449
Income Taxes $15 $62
See notes to condensed consolidated financial statements.
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EMCOR Group, Inc. and Subsidiaries
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(In Thousands) (Unaudited)
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Cumulative
Common Capital TranslatioAccumulated
Stock Warrants Surplus Adjustment Deficit Total
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Balance, January 1, $95 $2,154 $81,672 $1,378 ($1,416) $83,883
1997
Net income -- -- -- -- 256 256
NOL Utilization -- -- 148 -- -- 148
Translation -- -- -- (316) -- (316)
adjustments
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Balance, March 31, $95 $2,154 $81,820 $1,062 ($1,160) $83,971
1997
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See notes to condensed consolidated financial statements.
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EMCOR Group, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (unaudited)
NOTE A Nature Of Operations
EMCOR Group, Inc. ("EMCOR" or the "Company") is a multinational corporation
involved in mechanical and electrical construction and facilities services.
EMCOR, which conducts its business through subsidiaries, specializes in the
design, integration, installation, start-up, testing, operation and maintenance
of (i) distribution systems for electrical power (including power cables,
conduits, distribution panels, transformers, generators, uninterruptible power
supply systems and related switch gear and control); (ii) lighting systems,
including fixtures and controls; (iii) low-voltage systems, including fire
alarm, security, communications and process control systems; (iv) heating,
ventilation, air conditioning, refrigeration and clean-room process ventilation
systems; and (v) plumbing, process and high purity piping systems. EMCOR's
subsidiaries provide mechanical and electrical construction services directly to
end-users (including corporations, municipalities and other governmental
entities, owners/developers, and tenants of buildings) and, indirectly, by
acting as a subcontractor, to construction managers, general contractors and
other subcontractors. Mechanical and electrical construction services are
principally: large installation projects, with contracts generally in the
multi-million dollar range; smaller system installation projects involving
fit-out, renovation and retrofit work; and maintenance and service. In addition,
certain EMCOR subsidiaries operate and maintain mechanical and/or electrical
systems for customers under contracts and provide other services commonly
referred to as facilities services including the management of facilities and
the provision of support services to customers at the customer's facilities.
Mechanical and electrical construction and facilities services are provided to a
broad range of commercial, industrial and institutional customers through
offices located in major markets throughout the United States, Canada, the
United Kingdom, the Middle East and Hong Kong.
NOTE B Basis of Presentation
The accompanying condensed consolidated financial statements included herein
have been prepared by the Company, without audit, pursuant to the interim period
reporting requirements of Form 10-Q. Consequently, certain information and note
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted.
Readers of this report should refer to the consolidated financial statements and
the notes thereto included in the Company's latest Annual Report on Form 10-K
filed with the Securities and Exchange Commission.
In the opinion of the Company, the accompanying unaudited condensed consolidated
financial statements contain all adjustments (consisting only of a normal
recurring nature) necessary to present fairly the financial position of the
Company and the results of its operations. The results of operations for the
three month period ended March 31, 1997 are not necessarily indicative of the
results to be expected for the year ending December 31, 1997.
NOTE C Net Income (Loss) Per Common Share and Common Equivalent Share
Net income (loss) per common share and common equivalent share for the three
month periods ended March 31, 1997 and 1996 have been calculated based on the
weighted average number of shares of common stock outstanding and common stock
equivalents relating to warrants and stock options outstanding when the effect
of such common stock equivalents are dilutive. Weighted average number of shares
outstanding as of March 31, 1997 and 1996 were 9,514,636 and 9,424,706,
respectively.
<PAGE>
NOTE D Long-Term Debt
Long-Term Debt in the accompanying condensed consolidated balance sheets
consists of the following amounts at March 31, 1997 and December 31, 1996 (in
thousands):
March 31, December 31,
1997 1996
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Series C Notes, outstanding face value of
approximately $73.8 million at 11.0%,
discounted to a 14.0% effective rate, due 2001 $66,312 $66,039
Supplemental SellCo Note, outstanding face value of
approximately $5.5 million at 8.0%, discounted to
a 14.0% effective rate, due 2004 4,534 4,474
Capital Lease Obligations at weighted average
interest rates from 7.25% to 11.0%, payable in
varying amounts through 2004 989 1,007
Other, at weighted average interest rates of
approximately 9.6%, payable in varying amounts
through 2012 1,853 1,892
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73,688 73,412
Less current maturities (504) (361)
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$73,184 $73,051
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NOTE E Income Taxes
The Company files a consolidated federal income tax return including all U.S.
subsidiaries. At March 31, 1997, the Company had net operating loss
carryforwards ("NOLs") for U.S. income tax purposes of approximately $200.0
million, which expire in the years 2007 through 2011. The NOLs are subject to
review by the Internal Revenue Service. Future changes in ownership of the
Company, as defined by Section 382 of the Internal Revenue Code, could limit the
amount of NOLs available for use in any one year.
As a result of the adoption of fresh-start accounting, the tax benefit of any
net operating loss carryforwards or net deductible temporary differences which
existed as of the date of the Company's emergence from Chapter 11 in December
1994 will result in a charge to the tax provision (provision in lieu of income
taxes) and be allocated to reorganization value in excess of amounts allocable
to identifiable assets established in connection with the Company's emergence
from bankruptcy and to capital surplus.
The Company has provided a valuation allowance as of March 31, 1997 for the full
amount of the tax benefit of its remaining NOLs and other deferred tax assets.
Income tax expense recorded for the three month periods ended March 31, 1997 and
1996 represent a provision primarily for federal, foreign and state and local
income taxes. The Company's utilization of NOLs and other deferred tax assets
for the three months ended March 31, 1997 of approximately $0.1 million have
been applied to capital surplus.
NOTE F Legal Proceedings
The Dynalectric Company ("Dynalectric"), a subsidiary of the Company, is a
defendant in an action entitled Computran v. Dynalectric, et. al., pending in
Superior Court of New Jersey, Bergen County, arising out of its participation in
a joint venture. In the action, which was instituted in 1988, the plaintiff,
Computran, a participant in and a subcontractor to the joint venture, alleges
that Dynalectric wrongfully terminated it from the subcontract, fraudulently
diverted funds due it, misappropriated its trade secrets and proprietary
information, fraudulently induced it to enter into the joint venture and
conspired with other defendants to commit certain acts in violation of the New
Jersey Racketeering Influence and Corrupt Organization Act. Dynalectric believes
that Computran's claims are without merit and intends to defend this matter
vigorously. Dynalectric has filed counterclaims against Computran. Discovery is
ongoing and no trial date has been scheduled.
<PAGE>
In February 1995, as part of an investigation by the New York County District
Attorney's office into the business affairs of Herbert Construction Company
("Herbert"), a general contractor that does business with the Company's
subsidiary, Forest Electric Corporation ("Forest"), a search warrant was
executed at Forest's executive offices. At that time, the Company was informed
that Forest and certain of its officers are targets of the continuing
investigation. Neither the Company nor Forest has been advised of the precise
nature of any suspected violation of law by Forest or its officers. On July 11,
1995, Mr. Kohl, a principal of Herbert, and DPL Interiors, Inc., a company owned
by Mr. Kohl, were indicted by a New York County grand jury for grand larceny,
fraud, repeated failure to file New York City Corporate Tax Returns and related
money laundering charges. Mr. Kohl was also charged with filing false personal
income and earnings tax returns, perjury and offering false instruments for
filing with the New York City School Construction Authority. In a press release
announcing the indictment, the Manhattan District Attorney said that the
investigation disclosed that Mr. Kohl allegedly received more than $7.0 million
in kickbacks from subcontractors through a scheme in which he allegedly inflated
subcontracts on Herbert's construction contracts. At a July 11, 1995 press
conference following the indictment, the District Attorney announced that the
investigation was continuing and that he expected further indictments in the
investigation.
On April 7, 1997 Mr. Kohl plead guilty to one count of money laundering,
one count of offering a false instrument for filing and one count of
filing a false New York State Resident Income Tax Return before New York
Supreme Court Justice Edward McLaughlin. DPL Interiors, Inc. also plead
guilty to one count of failing to file New York City General Income Tax
Returns. Sentencing for Mr. Kohl and DPL Interiors, Inc. is scheduled for
September 9, 1997.
Forest performs electrical contracting services primarily in the New York City
commercial market and is one of the Company's largest subsidiaries.
In addition to the above, the Company is involved in other legal proceedings and
claims asserted by and against the Company, which have arisen in the ordinary
course of business.
The Company believes it has a number of valid defenses to these actions and the
Company intends to vigorously defend or assert these claims and does not believe
that a significant liability will result. However, the Company cannot predict
the outcome thereof or the impact that an adverse result of the matters
discussed above will have upon the Company's financial position or results of
operations.
Note G New Accounting Pronouncement
Statement of Financial Accounting Standards No. 128 ("SFAS No. 128" or the
"Statement"), Earnings Per Share ("EPS"), which establishes standards for
computing and presenting EPS, is effective for both interim and annual periods
ending after December 15, 1997. The statement does not permit early application
of its provisions. The statement replaces the presentation of primary EPS with a
presentation of basic EPS, as defined. It also requires dual presentation of
basic and diluted EPS on the face of the Statement of Operations for entities
with a complex capital structure. Had EPS been determined in accordance with
SFAS No. 128, the Company's basic EPS and diluted EPS for the three month
periods ended March 31, 1997 and 1996 would have been the following pro forma
amounts:
March 31, March 31,
1997 1996
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Pro Forma Basic EPS $0.03 ($0.38)
Pro Forma Diluted EPS $0.03 ($0.37)
<PAGE>
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Results of Operations
Revenues for the first quarter of 1997 were $433.8 million compared to $382.7
million in the first quarter of 1996. In the first quarter of 1997 the Company
generated net income of $0.3 million or $0.03 per share compared a net loss of
$3.7 million or $0.37 per share in the first quarter of 1996.
The Company generated operating income of $3.4 million for the three months
ended March 31, 1997 compared to operating income of $0.5 million in the same
period of the prior year. The improvement in operating income for the three
months ended March 31, 1997 is attributable to a $4.8 million charge, recorded
as selling, general and administrative expense ("SG&A") during the first quarter
of 1996, related to a previously announced adverse arbitration award in
connection with a contract dispute. The arbitration award was subsequently
settled for $4.3 million in October 1996. In addition, the first quarter of 1996
included the favorable close out of contracts.
The increase in revenues for the first quarter of 1997 as compared to the same
period in the prior year was primarily attributable to the continued increase in
commercial construction activity in the Western United States and to an increase
in revenues in the Eastern United States, due principally to the previously
announced acquisition of two mechanical construction subsidiaries in late 1996
and early 1997.
SG&A for the quarters ended March 31, 1997 and 1996 were $35.6 million, or 8.2%
of revenues, and $36.6 million , or 9.6% of revenues, respectively. SG&A
expenses for the first quarter of 1996 exclusive of the adverse arbitration
award discussed above were $31.8 million, or 8.3% of revenues. The increase in
SG&A for the first quarter of 1997 compared to the same period in the prior
year, exclusive of the adverse arbitration award, is attributable to the
increase in operations.
The Company's backlog was $1,051.2 million at March 31, 1997 and $1,043.7
million at December 31, 1996. Between December 31, 1996 and March 31, 1997, the
Company's backlog in Canada increased by $27.8 million, its backlog in the
United States increased minimally and its backlog in the United Kingdom
decreased by $21.7 million. The increase in the Company's Canadian backlog was
primarily attributable to improved economic conditions in Western Canada. The
decline in the United Kingdom backlog is due to the continued progress towards
the completion of several large projects, exchange rate fluctuations and the
continued weakness in the United Kingdom commercial construction market
resulting in a decline in new work.
Liquidity and Capital Resources
The Company's consolidated cash balance increased by $10.4 million from $50.7
million at December 31, 1996 to $61.1 million at March 31, 1997. The March 31,
1997 cash balance included approximately $18.3 million at foreign subsidiaries
which is available only to support their respective operations. The Company
generated positive operating cash flow for the three months ended March 31, 1997
due to improvements in working capital which were partially used, in April 1997,
to repay borrowings under the Company's revolving credit facility and to fund
capital expenditures. As of March 31, 1997, the Company's total borrowing
capacity under its revolving credit facility was $81.6 million, and the Company
had approximately $31.4 million and $19.3 million of letters of credit and
revolving loans, respectively, outstanding as of that date. The revolving loans
are classified as Current Liabilities under the caption "Borrowings under
working capital credit lines" in the accompanying condensed consolidated balance
sheet.
<PAGE>
In September, 1996, the Company's Canadian subsidiary, Comstock Canada Ltd.,
renewed a credit agreement with a bank providing for an overdraft facility of up
to Cdn. $2.0 million. The facility is secured by certain assets of Comstock
Canada Ltd. and deposit instruments of another Canadian subsidiary of the
Company. The facility provides for interest at the bank's prime rate (6.75% at
March 31, 1997) plus 3/4% and expires on June 30, 1997. There were no borrowings
outstanding under this credit agreement at March 31, 1997.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS
The information in Note H to the Company's March 31, 1997 Notes to Condensed
Consolidated Financial Statements (unaudited) regarding legal proceedings is
hereby incorporated herein by reference thereto.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit No. 3(ii) By-laws of the Company, as amended to date.
Exhibit No. 4. Fourth Amendment dated as of March 31, 1997
to Credit Agreement.
Exhibit No. 11. Computation of Earnings Per Common Share and
Common Equivalent Share for the three month
period ended March 31, 1997.
Exhibit No. 27. Financial Data Schedule.
(b) During the quarter ended March 31, 1997, the Company filed a report on
Form 8-K dated March 31, 1997 reporting information with respect
to Item 5.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EMCOR GROUP, INC.
---------------------------------
(Registrant)
Date: May 1, 1997 By: /s/FRANK T. MacINNIS
---------------------------------
Frank T. MacInnis
Chairman of the Board of
Directors and Chief
Executive Officer
Date: May 1, 1997 By: /s/LEICLE E. CHESSER
---------------------------------
---------------------------------
Leicle E. Chesser
Executive Vice President
and Chief Financial Officer
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Exhibit No. 3(ii)
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AMENDED AND RESTATED
BY-LAWS
OF
EMCOR GROUP, INC.
(A Delaware Corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of, the Corporation by the Chairman or
Vice-Chairman of the Board of Directors, if any, or by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Corporation representing the number of shares owned
by such person in the Corporation. If such certificate is countersigned by a
transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
<PAGE>
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(b) Whenever the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
(c) The Corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTEREST.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or registration
of transfer of shares of stock, if any, transfers or registration of transfer of
shares of stock of the Corporation shall be made only on the stock ledger of the
Corporation by the registered holder thereof, or by such person's attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer agent or a registrar, if any,
and on surrender of the certificate or certificates for such shares of stock
properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty
nor less than ten days before the date of such meeting. If no record date has
been fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date has been fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Amended and Restated Certificate of Incorporation confers such
rights where there are two or more classes or series of shares of stock or upon
which or upon whom the General Corporation Law confers such rights
notwithstanding that the Amended and Restated Certificate of Incorporation may
provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that no
such right shall vest in the event of an increase or a decrease in the
authorized number of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the Amended and Restated
Certificate of Incorporation, including any preferred stock which is denied
voting rights under the provisions of the resolution or resolutions adopted by
the Board of Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the Board of Directors. A special meeting shall be
held on the date and at the time fixed by the Board of Directors.
(b) PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the Board of Directors may,
from time to time, fix. Whenever the Board of Directors shall fail to fix such
place, the meeting shall be held at the registered office of the Corporation in
the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called by the Board
of Directors or by any officer instructed by the Board of Directors to call the
meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date and hour of the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of Directors and
for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting) state such other action or
actions as are known at the time of such notice. The notice of a special meeting
shall in all instances state the purpose or purposes for which the meeting is
called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall
include a statement of that purpose and to that effect. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at such
person's address as it appears on the records of the Corporation. Notice by mail
shall be deemed to be given when deposited, with postage thereon prepaid, in the
United States mail. If a meeting is adjourned to another time, not more than
thirty days hence, and/or to another place, and if an announcement of the
adjourned time and place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting. Notice need not
be given to any stockholder who submits a written waiver of notice before or
after the time stated therein. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
(e) STOCKHOLDER LIST. There shall be prepared and made, at least ten days
before every meeting of stockholders, a complete list of the stockholders,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote at any meeting of stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice President, a chairman for the meeting chosen by
the Board of Directors or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation or, in such person's absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman for the meeting shall appoint a secretary of
the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize another person
or persons to act for such stockholder by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these Amended and
Restated By-Laws may otherwise provide, the holders of a majority of the
outstanding shares of stock entitled to vote shall constitute a quorum at a
meeting of stockholders for the transaction of any business. The stockholders
present may adjourn the meeting despite the absence of a quorum. When a quorum
is once present to organize a meeting, it is not broken by the subsequent
withdrawal of any stockholders.
(j) VOTING. Each stockholder entitled to vote in accordance with the terms
of the Amended and Restated Certificate of Incorporation and of these Amended
and Restated By-Laws, or, with respect to the issuance of preferred stock, in
accordance with the terms of a resolution or resolutions of the Board of
Directors, shall be entitled to one vote, in person or by proxy, for each share
of stock entitled to vote held by such stockholder. In the election of
Directors, a plurality of the votes present at the meeting shall elect. Any
other action shall be authorized by a majority of the votes cast except where
the Amended and Restated Certificate of Incorporation or the General Corporation
Law prescribes a different percentage of votes and/or a different exercise of
voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
(k) ADVANCE NOTICE. At any annual meeting of stockholders, only such
business shall be conducted as shall have been brought before the meeting (a) by
or at the direction of the Board of Directors or (b) by any stockholder entitled
to vote at such meeting who complies with the procedures set forth in this
Section 6(k).
Any stockholder entitled to vote at such annual meeting may propose
business (other than nominations for the election of Directors) to be included
in the agenda of such meeting only if written notice of such stockholder's
intent is given to the Secretary of the Corporation, either personally or by
mail, postage prepaid, not earlier than 90 days nor later than 60 days in
advance of the anniversary of the date of the immediately preceding annual
meeting or if the date of the annual meeting occurs more than 30 days before or
60 days after the anniversary of such immediately preceding annual meeting, not
later than the close of business on the later of (a) the sixtieth day prior to
such annual meeting and (b) the tenth day following the date on which public
announcement of the date of such meeting is first made. A stockholder's notice
to the Secretary shall set forth in writing as to each business matter such
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder and (d) any material interest of the
stockholder in such business. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this section. The officer of the
Corporation or other person presiding at the annual meeting shall, if the facts
so warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this section,
and, if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Nominations for the election of Directors may be made by the Board of
Directors or any stockholder entitled to vote for the election of Directors. Any
stockholder entitled to vote for the election of Directors at the annual meeting
of the stockholders of the Corporation may nominate a person or persons for
election as a Director only if written notice of such stockholder's intent to
make such nomination is given to the Secretary of the Corporation, either
personally or by mail, postage prepaid, not earlier than 90 days nor later than
60 days in advance of the anniversary of the date of the immediately preceding
annual meeting or if the date of the annual meeting occurs more than 30 days
before or 60 days after the anniversary of such immediately preceding annual
meeting, not later than the close of business on the later of (a) the sixtieth
day prior to such annual meeting and (b) the tenth day following the date on
which public announcement of the date of such meeting is first made. Each such
notice shall set forth the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated for election as
a Director; a representation that the stockholder is a holder of record of stock
of the Corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified in
the notice; a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations for election as a
Director are to be made by the stockholder; such other information regarding
each nominee proposed by such stockholder as would have been required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission if such nominee had been nominated, or was
intended to be nominated, for election as a Director by the Board of Directors;
and the consent of each nominee to serve as a Director of the Corporation if so
elected. The Board of Directors may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedures.
For purposes hereof, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act").
For purposes of this By-Law, no adjournment nor notice of adjournment of
any meeting shall be deemed to constitute a new notice of such meeting for
purposes of this Section 6(k), and in order for any notification required to be
delivered by a stockholder pursuant to this Section 6(k) to be timely, such
notification must be delivered within the periods set forth above with respect
to the originally scheduled meeting.
Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-Law. Nothing in this By-Law shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting pursuant to Section 6(d).
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors of the Corporation. The use of the
phrase "whole Board" herein refers to the total number of Directors which the
Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The Board of Directors at the time of the
adoption of these Amended and Restated By-Laws and at all times thereafter shall
be the number of Directors fixed in the Amended and Restated Certificate of
Incorporation as amended from time to time. If at any time the number of
Directors is not so fixed in the Amended and Restated Certificate of
Incorporation, the number of Directors constituting the whole board shall be at
least one and, subject to the foregoing limitation, such number may be fixed
from time to time and thereafter may be increased or decreased by action of the
stockholders or of the Board of Directors, or, if the number is not so fixed,
the number shall be three.
3. ELECTION AND TERM.
The Board of Directors at the time of the adoption of these Amended and
Restated By-Laws shall hold office until the first annual meeting of
stockholders following the adoption of these Amended and Restated By-Laws and
until their successors have been elected and qualified or until their earlier
resignation or removal. Any Director may resign at any time upon written notice
to the Corporation. Thereafter, Directors who are elected at an annual meeting
of stockholders, and Directors who are elected in the interim to fill vacancies
and newly created Directorships, shall hold office until the next annual meeting
of stockholders and until their successors have been elected and qualified or
until their earlier resignation or removal. In the interim between annual
meetings of stockholders or of special meetings of stockholders called for the
election of Directors and/or for the removal of one or more Directors and for
the filling of any vacancies in the Board of Directors, including vacancies
resulting from the removal of Directors for cause or without cause, any vacancy
in the Board of Directors may be filled by the vote of a majority of the
remaining Directors then in office, although less than a quorum, or by the sole
remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the
Board shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected Board may be
held immediately after each annual meeting of the stockholders at the same place
at which the meeting is held, and no notice of such meeting shall be necessary
to call the meeting, provided a quorum shall be present. In the event such first
meeting is not so held immediately after the annual meeting of the stockholders,
it may be held at such time and place as shall be specified in the notice given
as provided for special meetings of the Board of Directors, or at such time and
place as shall be fixed by the consent in writing of all of the Directors.
(c) PLACE. Meetings, both regular and special, shall be held at such place
within or without the State of Delaware as shall be fixed by the Board.
(d) CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, or the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required
for regular meetings for which the time and place have been fixed. Written, oral
or any other mode of notice of the time and place shall be given for special
meetings at least twenty-four hours prior to the meeting; notice may be given by
telephone or telefax (in which case it is effective when given) or by mail (in
which case it is effective seventy-two hours after mailing by prepaid first
class mail). The notice of any meeting need not specify the purpose of the
meeting. Any requirement of furnishing a notice shall be waived by any Director
who signs a written waiver of such notice before or after the time stated
therein. Attendance of a Director at a meeting of the Board shall constitute a
waiver of notice of such meeting, except when the Director attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the Directors in office shall constitute a quorum, provided that
such majority shall constitute at least one-third (1/3) of the whole Board. Any
Director may participate in a meeting of the Board by means of a conference
telephone or similar communications equipment by means of which all Directors
participating in the meeting can hear each other, and such participation in a
meeting of the Board shall constitute presence in person at such meeting. A
majority of the Directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
act of the Board shall be the act by vote of a majority of the Directors present
at a meeting, a quorum being present. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions of the General
Corporation Law and these Amended and Restated By-Laws which govern a meeting of
Directors held to fill vacancies and newly created Directorships in the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman
of the Board, if any and if present and acting, or the President, if present and
acting, or any other Director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or without cause by
the stockholders.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the Board, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it. In the absence or disqualification of any
member of any such committee or committees, the members thereof present at any
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. 7. ACTION
IN WRITING.
Any action required or permitted to be taken at any meeting of the Board
of Directors or any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
OFFICERS
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the Board of
Directors, a President, one or more Vice Presidents (which may be denominated
with additional descriptive titles), a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers and such other
officers as it may determine. Any number of offices may be held by the same
person.
2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the Board of Directors
following the next annual meeting of stockholders and until such officer's
successor has been elected and qualified or until the earlier resignation or
removal of such officer. The Board of Directors may remove any officer for cause
or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these Amended and Restated By-Laws, or, to the extent not so
provided, by the Board of Directors.
<PAGE>
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting, shall
preside at all meetings of the Board of Directors, otherwise, the President, if
present, shall preside, or if the President does not so preside, any other
Director chosen by the Board shall preside.
5. THE PRESIDENT.
The President shall be the chief executive officer of the Corporation
unless otherwise determined by a resolution adopted by the Board of Directors
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the absence or
disability of the President, shall perform the duties and exercise the powers of
the President, in the order of their seniority, and shall perform such other
duties as the Board of Directors shall prescribe.
7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the Corporation and
affix it to any instrument when authorized by the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors. The
Secretary (or in such officer's absence, an Assistant Secretary, but if neither
is present another person selected by the Chairman for the meeting) shall have
the duty to record the proceedings of the meetings of the stockholders and
Directors in a book to be kept for that purpose.
<PAGE>
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate funds, and
other valuable effects, including securities, and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation,
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors and shall perform such other functions as might be given to him by
the President of the Corporation.
<PAGE>
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of Directors shall
prescribe. The books of the Corporation may be kept within or without the State
of Delaware, at such place or places as the Board of Directors may, from time to
time, determine.
<PAGE>
ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
<PAGE>
ARTICLE VI
INDEMNITY
(a) Any person who was or is a party or threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she 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
(including employee benefit plans) (hereinafter an "indemnitee"), shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. The termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
(b) Any indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the General Corporation Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification than permitted prior thereto), against expenses
(including attorneys' fees) actually and reasonably incurred by such indemnitee
in connection with the defense or settlement of such action, suit or proceeding
if such indemnitee acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court in which such suit,
action or proceeding was brought, shall determine, upon application, that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the indemnitee in
connection with any suit, action or proceeding, may be advanced to the
indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of expenses conferred
in this article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, the Amended and Restated
Certificate of Incorporation, a By-Law of the Corporation, agreement, vote of
stockholders or disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided by this
article shall continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
<PAGE>
ARTICLE VII
AMENDMENTS
The Amended and Restated By-Laws may be amended, added to, rescinded or
repealed at any meeting of the Board of Directors or of the stockholders,
provided that notice of the proposed change was given in the notice of the
meeting.
Exhibit No. 4
EMCOR Group, Inc.
Fourth Amendment to Credit Agreement
Harris Trust and Savings Bank Chicago, Illinois and the other Lenders from time
to time party to the Credit Agreement referred to below
Gentlemen:
We refer to the Credit Agreement dated as of June 19, 1996 as amended and
currently in effect between EMCOR Group, Inc., DYN Specialty Contracting, Inc.,
Drake & Scull Engineering Ltd. and you (the "Credit Agreement"), capitalized
terms used without definition below to have the meanings ascribed to them in the
Credit Agreement. Upon your acceptance hereof in the space provided for that
purpose below, this letter shall serve to amend the Credit Agreement as follows:
1. Adjustment in Commitments:
Subject to all of the terms and conditions hereof, the Commitments of each
of Bank of Scotland and LaSalle National Bank (each of which shall be an
Activated Commitment) shall be increased to the amount set forth opposite their
signatures hereto, the Commitment of Harris Trust and Savings Bank shall be
reduced so as to be in the amount set forth opposite its signature hereto and
the Percentages of the Lenders shall be correspondingly adjusted to be as set
forth opposite their signatures hereto. After giving effect to the foregoing the
full amount of the Tranche D Activation provided for in Section 6.3(d) of the
Credit Agreement shall be deemed to have occurred and the maximum amount of the
Tranche B Activation which can occur under Section 6.3(b) of the Credit
Agreement upon satisfaction of the conditions precedent to activation set forth
therein shall be reduced from $20,000,000 to $13,375,000.
2. Conditions Precedent to Effectiveness.
This Fourth Amendment to Credit Agreement shall become effective upon
satisfaction of each of the following conditions precedent:
(a) The Agency shall have received counterparts hereof which, taken
together, bear the signatures of the Borrowers and the Lenders;
(b) Bank of Scotland and LaSalle National Bank shall each have received
such non-refundable fees as may have been agreed to between them, the Borrowers
and the Agent; and
<PAGE>
(c) the Agent shall have paid to each of Bank of Scotland and LaSalle
National Bank a percentage equal to the increase in its Percentage occasioned by
this Amendment of all Letter of Credit fees payable under the first sentence of
Section 3.3 of the Credit Agreement for the period from the date this Fourth
Amendment to Credit Agreement becomes effective through the date through which
such fees have been paid;
Provided that the foregoing conditions precedent to effectiveness have
been satisfied the Agent shall so notify the Company and the Lenders and there
shall then be such nonratable borrowings and repayments of Revolving Loans under
the Credit Agreement a shall be necessary so that after giving effect thereto
the percentages of the Activated Commitments in use (including usage through
participation in Letter of Credit liabilities and the amount of Revolving Loans
owing each lender) are identical. The Borrowers hereby authorize and direct the
Agent to effect the foregoing nonratable borrowings and repayments by calling
for borrowings from Bank of Scotland and LaSalle National Bank on their behalf
and applying them to the repayment of Revolving Loans owing the other Lenders.
7. Miscellaneous.
Except as specifically amended hereby all of the terms, conditions and
provisions of the Credit Agreement shall stand and remain unchanged and in full
force and effect. No reference to this Fourth Amendment to Credit Agreement need
be made in any instrument or document at any time referring to the Credit
Agreement, a reference to the Credit Agreement in any of such to be deemed to be
a reference to the Credit Agreement as amended hereby. This Fourth Amendment to
Credit Agreement shall be construed in accordance with and governed by the laws
of Illinois and may be executed in counterparts and by separate parties on
separate counterparts, each to constitute an original but all one and the same
instrument.
<PAGE>
Dated as of this 31 day of March, 1997
EMCOR GROUP, INC.
By Frank T. MacInnis
Its Chairman of the Board
DYN SPECIALTY CONTRACTING INC.
By Michael J. Parry
Its Senior Vice President
DRAKE & SCULL ENGINEERING LTD.
By Frank T. MacInnis
Its Director
COMSTOCK CANADA LTD.
By Frank T. MacInnis
Its Chairman
<PAGE>
Accepted and agreed as of the date last above written.
Commitment (both active and
inactive): $45,000,000 HARRIS TRUST AND SAVINGS BANK
Activated Commitment: $26,625,000
Percentage: 32.618683% By Wes W. Frangul
Its Vice President
Activated Commitment: $20,000,000 BANK OF SCOTLAND
Percentage: 24.502297%
By Annie Chin Tat
Its Assistant Vice President
Activated Commitment: $20,000,000 LASALLE NATIONAL BANK
Percentage: 24.502297%
By Drew E. Waitley
Its Senior Vice President
Activated Commitment: $15,000,000 CORESTATES BANK, N.A.
Percentage: 18.376722%
By Michael J. Labrun
Its Vice President
Exhibit 11
EMCOR Group, Inc. and Subsidiaries
Computation of Earnings Per Common Share and Common Equivalent Share for the
three month period ended March 31, 1997.
Three Months
PRIMARY Ended March 31,
1997
- ------------------------------------------------- -----------------
Net Income $256
=================
Weighted average number of common shares 9,514,636
outstanding
Add - common equivalent shares using the
treasury stock 532,351
method
-----------------
Weighted average number of shares used in
calculation of 10,046,987
primary income per common and common
equivalent share
=================
Primary net income per common and common $0.03
equivalent share
=================
Three Months
FULLY DILUTED Ended March 31,
1997
- ------------------------------------------------- -----------------
Net Income $256
=================
Weighted average number of shares used in
calculating primary income per share 10,046,987
Shares issuable upon exercise of stock options
included in (532,351)
primary calculation above
Shares issuable upon exercise of stock options
at period end 532,351 (a)
market price
-----------------
Weighted average number of shares used in
calculation of fully
diluted income per common and common 10,046,987 (a)
equivalent share
=================
Fully diluted net income per common and common
equivalent $0.03
share
=================
(a) The weighted average number of shares used in the calculation of income
per common share and common equivalent share for both primary and fully
diluted calculations are equivalent as the average market price for the
three month period ended March 31, 1997 exceeded the market price on March
31, 1997.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 61072
<SECURITIES> 0
<RECEIVABLES> 472473
<ALLOWANCES> 12462
<INVENTORY> 8695
<CURRENT-ASSETS> 609685
<PP&E> 42145
<DEPRECIATION> 15141
<TOTAL-ASSETS> 645002
<CURRENT-LIABILITIES> 449117
<BONDS> 73184
<COMMON> 95
0
0
<OTHER-SE> 83876
<TOTAL-LIABILITY-AND-EQUITY> 645002
<SALES> 433770
<TOTAL-REVENUES> 433770
<CGS> 394705
<TOTAL-COSTS> 430328
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 77
<INTEREST-EXPENSE> 3008
<INCOME-PRETAX> 434
<INCOME-TAX> 178
<INCOME-CONTINUING> 256
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 256
<EPS-PRIMARY> 0.03
<EPS-DILUTED> 0.03
</TABLE>
