<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission File No. 0-4643
ROY F. WESTON, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-1501990
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1 WESTON WAY, WEST CHESTER, PENNSYLVANIA 19380-1499
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (610)-701-3000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No ___
As of April 24, 1998, the registrant had outstanding 7,791,842 shares of
Series A common stock and 2,089,019 shares of common stock.
<PAGE> 2
Index Page
Part I - Financial Information
Item 1. Financial Statements:
Consolidated Balance Sheets -
March 31, 1998 and December 31, 1997 1-2
Consolidated Statements of Operations -
Three Months Ended March 31, 1998 and 1997 3
Consolidated Statements of Cash Flows -
Three Months Ended March 31, 1998 and 1997 4
Notes to Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 6-7
Part II - Other Information 8
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults Upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
<PAGE> 3
ROY F. WESTON, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
(Unaudited)
(Thousands of Dollars)
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 7,018 $ 10,767
Marketable securities 6,268 4,168
Accounts receivable, trade, net of allowance for
doubtful accounts of $1,690 in 1998 and $1,750 in 1997 49,088 54,497
Unbilled costs and estimated earnings on contracts 19,596 20,920
in process
Prepaid and refundable income taxes 1,005 1,000
Deferred income taxes 3,038 3,104
Other 3,955 2,643
-------- --------
Total current assets 89,968 97,099
-------- --------
PROPERTY AND EQUIPMENT
Land 215 215
Buildings and improvements 11,607 11,625
Furniture and equipment 36,432 38,803
Leasehold improvements 2,900 2,849
Construction in progress 24 8
-------- --------
Total property and equipment 51,178 53,500
Less accumulated depreciation and amortization 41,284 43,248
-------- --------
Property and equipment, net 9,894 10,252
-------- --------
OTHER ASSETS
Goodwill, net of accumulated amortization of $4,092 in
1998 and $4,076 in 1997 1,862 1,878
Deferred income taxes 4,947 5,125
Other 10,868 10,894
-------- --------
Total other assets 17,677 17,897
-------- --------
TOTAL ASSETS $117,539 $125,248
======== ========
</TABLE>
See notes to consolidated financial statements.
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LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
(Unaudited)
(Thousands of Dollars)
<S> <C> <C>
CURRENT LIABILITIES
Current maturities of long-term debt $ 169 $ 2,914
Accounts payable and accrued expenses 13,055 13,879
Billing on contracts in process in excess of
costs and estimated earnings 10,393 14,275
Employee compensation, benefits and payroll 9,253 8,721
taxes
Income taxes payable 100 59
Other 10,123 11,012
-------- --------
Total current liabilities 43,093 50,860
-------- --------
LONG TERM DEBT 15,449 15,884
-------- --------
OTHER LIABILITIES 3,168 3,137
-------- --------
CONTINGENCIES
STOCKHOLDERS' EQUITY
Common stock, $.10 par value, 10,500,000 shares
authorized; 3,170,294 shares issued in 1998; 3,170,494
shares issued in 1997 317 317
Series A common stock, $.10 par value, 20,500,000 shares
authorized; 8,584,647 shares issued in 1998; 8,581,821
shares issued in 1997 858 858
Unrealized gain on investments 982 733
Additional paid-in capital 55,706 55,700
Retained earnings 3,056 2,849
-------- --------
60,919 60,457
Less treasury stock at cost, 1,081,275 common shares in
1998 and 1997; 792,805 Series A common shares in 1998
and 1997 5,090 5,090
-------- --------
Total stockholders' equity 55,829 55,367
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $117,539 $125,248
======== ========
</TABLE>
See notes to consolidated financial statements.
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<PAGE> 5
ROY F. WESTON, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended March 31,
1998 1997
(Thousands of Dollars)
<S> <C> <C>
Gross revenues $ 54,677 $ 61,480
Direct project costs 21,926 21,862
----------- -----------
Net revenues 32,751 39,618
----------- -----------
Expenses:
Direct salaries and other operating costs 27,953 34,531
General and administrative expenses 4,450 5,741
Restructuring credit -- (1,071)
----------- -----------
32,403 39,201
----------- -----------
Income from operations 348 417
----------- -----------
Other income (expense):
Investment income 387 547
Interest expense (373) (430)
Other (17) 85
----------- -----------
(3) 202
----------- -----------
Income before income taxes 345 619
Provision for income taxes 138 223
----------- -----------
Net income $ 207 $ 396
=========== ===========
Basic earnings per share $ .02 $ .04
=========== ===========
Weighted average shares outstanding - basic 9,880,861 9,659,203
=========== ===========
Diluted earnings per share $ .02 $ .04
=========== ===========
Weighed average shares outstanding - diluted 9,904,474 9,659,203
=========== ===========
</TABLE>
See notes to consolidated financial statements.
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ROY F. WESTON, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended March 31,
1998 1997
-------- --------
(Thousands of Dollars)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 207 $ 396
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization 1,010 1,201
Provision for losses on accounts receivable 238 89
Restructuring credit -- (1,071)
Other (111) 32
Change in assets and liabilities:
Accounts receivable, trade 5,171 8,313
Unbilled costs and estimated earnings on contracts in process 1,324 (652)
Other current assets (1,312) (1,076)
Accounts payable and accrued expenses (824) (81)
Billings on contracts in excess of costs and estimated earnings (3,882) (3,596)
Employee compensation, benefits and payroll taxes 532 927
Income taxes 36 42
Deferred income taxes 116 780
Other current liabilities (780) 83
Other assets and liabilities 670 799
-------- --------
Net cash provided by operating activities 2,395 6,186
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of investments 1,876 5,720
Payments for purchase of investments (4,153) (4,602)
Purchase of property and equipment, net (531) (696)
Investments in other assets (162) (20)
-------- --------
Net cash provided by (used for) investing activities (2,970) 402
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments under long-term debt (3,180) (736)
Other, net 6 (31)
-------- --------
Net cash used for financing activities (3,174) (767)
-------- --------
Net increase (decrease) in cash and cash equivalents (3,749) 5,821
Cash and cash equivalents:
Beginning of period 10,767 9,878
-------- --------
End of period $ 7,018 $ 15,699
======== ========
</TABLE>
See notes to consolidated financial statements.
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<PAGE> 7
ROY F. WESTON, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION
The unaudited consolidated financial statements reflect all adjustments which
are, in the opinion of management, necessary for a fair presentation of the
financial position, results of operations and cash flows for the interim
periods. The unaudited consolidated financial statements do not include all of
the information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
and should be read in conjunction with the consolidated financial statements and
notes thereto included in the Company's 1997 Annual Report to Shareholders which
is incorporated by reference in its Form 10-K filed with the Securities and
Exchange Commission. Results for the three months ended March 31, 1998 are not
necessarily indicative of results for the full year 1998.
NOTE 2 - LINE OF CREDIT AGREEMENT
The Company's line of credit has been extended through May 15, 1998. The Company
has received a commitment for an $18 million revolving credit facility from
another bank. The facility is subject to, among other things, the completion of
due diligence and the execution of definitive loan documentation, which is
expected by the end of May 1998. The facility is for a two-year period with a
one-year renewal option and will be available for working capital and other
general corporate purposes including permitted acquisitions.
NOTE 3 - RESTRUCTURING CREDIT
During the three months ended March 31, 1997, the Company completed the sale of
assets of its Weston Interactive, Inc. subsidiary. The book value of these
assets had been included in amounts reported as restructuring charges in 1996.
The net proceeds from the asset sale are included as restructuring credit in the
accompanying consolidated statement of operations for the three months ended
March 31, 1997.
NOTE 4 - CONSOLIDATED STATEMENTS OF CASH FLOW
Net cash refunds for income taxes were $183,000 and $628,000 in the first three
months of 1998 and 1997, respectively. Cash payments for interest were $103,000
and $69,000 in the three months ended March 31, 1998 and 1997, respectively.
No capital lease obligations were incurred in the three months ended March 31,
1998 or 1997.
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<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The following information should be read in conjunction with the unaudited
interim consolidated financial statements and the notes thereto included in this
Quarterly Report and the audited financial statements and Management's
Discussion and Analysis of Financial Condition and Results of Operations
contained in the Company's Form 10-K filed with the Securities and Exchange
Commission for the fiscal year ended December 31, 1997.
MATERIAL CHANGES IN RESULTS OF OPERATIONS
Net income for the three months ended March 31, 1998 was $207,000 or $.02 per
share, compared to $396,000 or $.04 per share, for the three months ended March
31, 1997.
Gross revenues decreased 11% to $54,677,000 for the three months ended March 31,
1998 compared to $61,480,000 in the 1997 period. Net revenues decreased 17% to
$32,751,000 for the three months ended March 31, 1998, compared to $39,618,000
for the comparable 1997 period. Gross revenues and net revenues included
$4,081,000 and 3,204,000, respectively, in the 1997 period from the Company's
laboratory operations which were sold later in 1997. Net revenues in the three
months ended March 31, 1997 also included approximately $500,000 representing
completion of a contract negotiation.
For the three months ended March 31, 1998, income from operations was $348,000,
down 17% from $417,000 in the 1997 period. The three months ended March 31, 1997
included a restructuring credit of $1,071,000 resulting from the sale of assets
of Weston Interactive, Inc. General and administrative expenses declined
$1,291,000, or 22%, to $4,450,000 as a result of cost reductions initiated in
the second half of 1997.
Investment income decreased $160,000, or 29%, to $387,000 in the three months
ended March 31, 1998 due primarily to gains realized on sales of investments in
mutual funds in the 1997 period. Interest expense declined $57,000, or 13%, to
$373,000 principally due to the reduction of 7% convertible subordinated debt
outstanding and the repayment of a term loan.
MATERIAL CHANGES IN FINANCIAL CONDITION
Cash and cash equivalents decreased $3,749,000 in the first three months of 1998
to $7,018,000 from $10,767,000 at December 31, 1997. Marketable securities
increased $2,100,000 in the first three months of 1998 to $6,268,000 from
$4,168,000 at December 31, 1997.
Operating activities provided cash of $2,395,000 for the first three months of
1998, compared to $6,186,000 in the comparable 1997 period. Net cash investments
in property and equipment and other assets were $693,000 in the first three
months of 1998, compared to $716,000 in the comparable 1997 period. The Company
used cash of $3,174,000 in financing activities in the first three months of
1998, compared to $767,000 in the 1997 first quarter. The 1998 first quarter
included the repurchase of $2,643,000 principal amount of the Company's 7%
convertible subordinated debentures in order to satisfy the April 15, 1998
sinking fund requirement.
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<PAGE> 9
FORWARD LOOKING STATEMENTS
From time to time, the Company, its management, or other Company representatives
may make or publish statements that contain projections, beliefs, expectations,
predictions or intentions relating to anticipated financial performance,
business prospects, potential contract value, business strategy and plans,
technological developments and other matters. The Private Securities Litigation
Reform Act of 1995 provides a safe harbor for these forward looking statements.
In order to comply with the terms of the safe harbor, the Company notes that a
number of factors could cause the Company's actual results, experience or
outcome to differ materially from projections, beliefs, expectations,
predictions or intentions expressed in forward looking statements. These risks
and uncertainties which may affect the operations, performance, development and
results of the Company's business, include, but are not limited to, the
following:
- - The highly competitive marketplace for the Company's services.
- - Changes in and levels of enforcement of federal, state and local
environmental legislation and regulations.
- - The Company's ability to obtain new contracts from existing as well as new
clients, and the uncertain timing of awards and contracts.
- - The Company's ability to execute new projects and those currently in backlog
within reasonable cost estimates, as well as other contract performance
risks.
- - Funding appropriation, funding delay, and the issuance of work orders on
government projects.
- - The Company's ability to achieve any planned overhead or other cost
reductions while maintaining adequate work flow.
- - The Company's ability to obtain adequate financing for its current
operations and future expansion.
- - The Company's ability to execute its strategic plan through successful
marketing activities and continued cost containment.
- - The nature of the Company's work with hazardous materials, toxic wastes, and
other pollutants, and the potential for uninsured claims or claims in excess
of insurance limits.
The Company disclaims any intent or obligation to update forward looking
statements.
-7-
<PAGE> 10
PART II OTHER INFORMATION
Item 1. Legal Proceedings
Not Applicable.
Item 2. Changes in Securities
Not Applicable.
Item 3 Defaults Upon Senior Securities
Not Applicable.
Item 4. Submission of Matters to a Vote of Security Holders
Not Applicable.
Item 5. Other Information
Not Applicable.
Item 6. Exhibits and Reports on Form 8-K
(a) The exhibits are numbered in accordance with the Exhibit
Table of Item 601 of Regulation S-K.
Exhibit No. Description
----------- -----------
10.1 Employment agreement between
Patrick G. McCann and the Company
dated as of March 11, 1998
11 Statements of Computation of Earnings
per Share
27 Financial Data Schedule
(b) Reports on Form 8-K. On January 5, 1998, the Company
filed a Form 8-K under Item 5, Other Events, which
incorporated by reference the Company's News release
dated January 5, 1998 which announced that certain
holders of the Company's non-publicly traded Common
shares had entered into an Agreement to vote their
Common shares together.
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<PAGE> 11
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.
ROY F. WESTON, INC.
(Registrant)
Date: May 13, 1998 By: /s/ William L. Robertson
---------------------------------
William L. Robertson
President and Chief Executive Officer
(Duly Authorized Officer)
Date: May 13, 1998 By: /s/ William G. Mecaughey
---------------------------------
William G. Mecaughey
Vice President and
Chief Financial Officer
(Principal Financial Officer)
<PAGE> 1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of 11 March 1998, between Roy F. Weston,
Inc., a Pennsylvania corporation (the "Company"), and Patrick G. McCann (the
"Executive").
WHEREAS, Executive is employed by Company as its Chief Operating
Officer;
WHEREAS, the parties further desire to set forth in this Agreement the
terms and conditions of the Executive's employment by the Company as Chief
Operating Officer; and
THEREFORE, in consideration of the mutual obligations contained in this
Agreement and the mutual benefits to be derived from those obligations, and
intending to be legally bound by this Agreement, the Executive and the Company
agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 Employment; Acceptance of Employment. Company hereby employs Executive and
Executive hereby accepts employment by the Company, as Chief Operating Officer
upon the terms and conditions set forth below in this Agreement.
1.2 Capacity and Duties.
(a) Executive shall be employed by Company as its Chief Operating Officer,
subject to the supervision of the Board and the Company's President and Chief
Executive Officer, and shall perform such duties and shall have such authority
as set forth in the Company's By-laws and as may from time to time be specified
by the Board and the Company's President and Chief Executive Officer. Executive
shall report directly to the Company's President and Chief Executive Officer and
shall perform his duties for Company principally from Company's office located
in West Chester, Pennsylvania, except for periodic travel that may be necessary
or appropriate in connection with the performance of Executive's duties under
this Agreement.
(b) Executive shall devote his full working time, energy, skill and best
efforts to the performance of his duties under this Agreement, in a manner which
will faithfully and diligently further the business and interests of the Company
and its affiliates (as defined below), and shall not be employed by or
participate or engage in or be a part of the management or operation of any
business enterprise other than the Company and its affiliates, without the prior
written consent of the Chief Executive Officer or the Board, which consent may
be granted or withheld in the sole discretion of the Chief Executive Officer or
the Board. For purposes of this Agreement, "affiliate" means any entity in which
at least 50% of the voting power is controlled by the Company. Nothing in this
paragraph shall preclude Executive from serving as the Company's appointed
member of the board of directors of companies in which Company has an interest.
<PAGE> 2
SECTION 2. TERM OF EMPLOYMENT
2.1 Term. The Executive's employment under this Agreement shall continue at will
until terminated in accordance with the provisions of this Agreement.
SECTION 3. COMPENSATION
3.1 Basic Compensation. As compensation for Executive's services under this
Agreement, Company shall pay to Executive a salary at the annual rate of
$200,000 (the "Base Salary"), payable in periodic installments in accordance
with the Company's regular payroll practices in effect from time to time. The
Base Salary shall be reviewed from time to time by the Board and/or its
Executive Committee as conditions warrant, but the first such review shall take
place in August 1998 and future reviews shall be held not less frequently than
annually thereafter. Such review shall consider, but not be limited to,
Executive's performance as determined by the Board and/or its Executive
Committee, after consultation with the Company's President and Chief Executive
Officer.
3.2 Incentive Compensation.
(a) Annual Incentive Pay/Bonus. In addition to the Base Salary provided
for in Section 3.1, the Executive will participate in the Company's
Salary-At-Risk Incentive Compensation Program ("SAR"), with a SAR guideline
incentive of 50% of Base Salary. Executive understands that the Company's SAR
program is expected to be reviewed and revised and Executive shall only be
entitled to participate in the current SAR program if, and to the extent that,
the program is maintained by the Company for its management personnel generally.
While the SAR program is maintained by the Company, Executive's performance
rating under that program shall be determined by the Company's President and
Chief Executive Officer. Executive will be entitled to participate in any
revised incentive program for officers of the Company, under the terms of that
revised program as approved by the Board.
(b) Special Incentive Pay. During 1998 and 1999, if the actual quarterly
corporate contribution for the Company as a whole equals or exceeds the planned
quarterly corporate contribution for that quarter which was established in the
Company's budget/operating plan as approved by the Company's Board of Directors,
Executive will receive a special SAR incentive payment equal to 50% of his
regular SAR payment for that quarter.
(c) Retention Bonus. If, for the years 1998 and 1999, the actual annual
corporate contribution for the Company as a whole equals or exceeds the planned
annual corporate contribution for both of those years which was established in
the Company's budget/operating plan for both years as approved by the Company's
Board of Directors, and if Executive remains as Chief Operating Officer of the
Company through and including December 31, 1999, Executive
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<PAGE> 3
will be paid a one-time retention bonus of $100,000, payable within 60- days
after December 31, 1999.
3.3 Executive Benefits. In addition to the compensation provided for in Sections
3.1 and 3.2 hereof, the Executive shall be entitled during the term of his
employment under this Agreement to participate in all benefit plans maintained
by the Company in which senior corporate officers are entitled to participate.
Such benefit plans currently include, among others, the Company's Retirement
Savings Plan, Supplemental Executive Retirement Plan, and Group Life, Disability
and Medical Plans. Notwithstanding anything else in this Agreement, other than
as set forth in Section 4 below, Executive shall not be eligible for any
severance or termination benefits under any Company plans, policies or
procedures providing for such benefits, including, but not limited to, the Roy
F. Weston, Inc. Employee Severance Plan and any predecessor or successor
severance plan.
3.4 Vacation. Executive shall be entitled to paid vacation in accordance with
the Company's vacation policy for officers.
3.5 Expense Reimbursement. During the term of his employment under this
Agreement, Company shall reimburse Executive for all reasonable expenses
incurred by him in connection with the performance of his duties under this
Agreement, in accordance with Company's regular reimbursement policies in effect
from time to time, and upon receipt of itemized vouchers for such expenses and
such other supporting information as Company may reasonably require.
3.6 Automobile. During his employment by Company, Company shall pay Executive an
automobile allowance and shall also reimburse Executive for his gasoline and
insurance costs for his automobile, all in accordance with the Company's
automobile allowance policies, which are subject to change from time to time.
Executive shall, in accordance with the Company's policies, notify company as to
the business and personal use of his automobile, so that Company may withhold
taxes, as appropriate in connection with the automobile allowance and
reimbursements.
SECTION FOUR. TERMINATION OF EMPLOYMENT
4.1 Definitions.
(a) For Cause. As used in this Agreement "for cause" shall mean that
Executive committed or engaged in an intentional act of (i) fraud, embezzlement,
dishonesty or theft in connection with his duties under this Agreement or in the
course of his employment with Company, (ii) wrongful damage to Company's
property, (iii) wrongful disclosure of Company's secret processes or
confidential information, or (iv) any other kind which is materially harmful to
Company. No act, or failure to act, shall be deemed "intentional" if it was due
primarily to an error in judgment or to negligence, but shall be deemed
"intentional" only if done, or omitted to be done, by Executive not in good
faith and without reasonable belief that his act or omission was in Company's
best interest.
3
<PAGE> 4
(b) Change in Control. There shall be considered to have been a "change in
control" of Company if:
(i) During any two year period beginning after 11 March 1998, Directors
of the Company in office at the beginning of such period plus any new
Director whose election by the Board, or whose nomination for election by
the Company's shareholders, was approved by vote of at least two thirds
of the Directors then still in office who either were Directors at the
beginning of the period or whose election or nomination for election was
previously so approved, shall cease for any reason to constitute at least
a majority of the Board; or
(ii) The Company's shareholders or the Board shall approve
(A) any consolidation or merger of the Company in which the Company
is not the continuing or surviving corporation or pursuant to which
the Company's voting stock would be converted into cash, securities
and/or other property, other than a merger of the Company in which
holders of such voting stock immediately before the merger have the
same proportionate ownership of voting stock of the surviving
corporation immediately after the merger as they had in the Company
before the merger,
(B) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all the
assets or earning power of the Company; or
(C) the liquidation or dissolution of the Company.
(c) Good Reason Resignation. As used in this Agreement, Executive shall be
deemed to have resigned his employment by Company for "good reason" if either:
(i) Executive, at any time, elects in good faith to discontinue his
employment with Company because his responsibilities, duties or authority
have changed materially from their level at the time of commencement of
his employment under this Agreement, which change substantially reduces
the rank or level, responsibility or scope of Executive's position with
Company (or its successor in the case of a merger, consolidation,
acquisition or transfer of substantially all of its business assets) below
that which he has on the effective date of this Agreement as Company's
Chief Operating Officer; or
(ii) Executive elects to discontinue his employment with the Company
within 365 days after there is a change in control of the Company.
4
<PAGE> 5
If Executive elects to end his employment by Company for a reason which
Executive believes is a good reason as defined by this section 4.3 (c), he shall
provide the Company with written notice of such resignation and shall state in
that notice the specific matter or matters which he asserts constitute the "good
reason" for his resignation.
(d) Disability. As used in this Agreement, "Disability" or "Disabled"
shall mean a physical or mental disability which is either (i) a total and
permanent disability as defined in any disability benefit plan offered by the
Company to its senior officers and in effect at the time Executive becomes
disabled (whether or not Executive has elected to purchase such disability
insurance), or (ii) determined to be a total and permanent disability by a
physician who is selected by the Company and is acceptable to Executive or his
legal representative (which acceptance shall not be unreasonably withheld).
4.2 Time and Manner of Termination or Resignation. Executive's employment by
Company, including his office as Chief Operating Officer, shall be at will.
Executive's employment shall terminate immediately upon Executive's death or
Disability, or upon written notice to Executive that the Board is terminating
Executive's employment for cause. Otherwise Executive's employment shall
terminate on the date selected by the party initiating termination or
resignation, which date shall be specified in a written notice to the other
party, and which (i) in the event of termination of Executive by the Company for
any reason other than for cause, shall be 30 days after delivery of such notice
unless a longer period is approved by the Board in its sole discretion, and (ii)
in the event of resignation by Executive, shall be 30 days after delivery of
such notice unless a longer or shorter period is approved by the Board and
Executive. The date on which Executive's employment by Company terminates is
referred to in this Agreement as the "Employment Ending Date". As of the
Employment Ending Date, if Executive is a member of Company's Board or of the
Board of Directors of any affiliate, he shall provide Company with his written
resignation from each such Board and from his position as an officer of any
affiliate.
4.3 Benefits Payable.
(a) Severance Amount. If either (1) Company terminates Executive's
employment for any reason other than for cause, death or Disability, or (2)
Executive resigns his employment by Company for good reason, Executive shall be
paid the following severance amount:
(i) If such termination or resignation occurs on or before December
31, 1999, Executive shall be paid his base monthly salary at the
time of such termination or resignation, for 12 months;
(ii) If such termination or resignation occurs after December 31,
1999, Executive shall be paid his base monthly salary, at the time
of such termination or resignation, for 18 months
For purposes of this section 4.3 (a) , Executive's base monthly salary shall be
one-twelfth of his annual Base Salary at the rate in effect on the Employment
Ending Date. Company shall make the
5
<PAGE> 6
severance payments under this section 4.3 (a) beginning with the first calendar
month after the Employment Ending Date, in accordance with Company's regular pay
policies for employees. If Executive dies before the last monthly payment, the
remaining payments shall be paid to his estate. The number of months that the
severance amount under this section 4.3 (a) are payable to Executive under
section 4.3 (a) (i), (ii) or (iii) above is referred to below as the "severance
period".
(b) Additional Severance Benefits. If severance payments are payable to
Executive under subsection 4.3 (a) above, the following additional severance
benefits shall be provided to Executive by Company:
(i) Company shall pay Executive the amount earned under its SAR
program (or any applicable replacement incentive program in effect
at the time of the Employment Ending Date) for the portion of the
calendar quarter to and including the Employment Ending Date.
Company shall make such payment on or about the date Company makes
such payments to other participating employees;
(ii) Company shall provide medical, dental and prescription plan
benefits for Executive, on the same cost-sharing and other basis as
is then in effect for active employees, during the severance period
or until Executive elects that such coverages sooner cease. After
such coverages cease in accordance with the previous sentence,
Executive may elect continuation coverage completely at his own
expense as provided by law;
(iii) Company shall provide Executive with outplacement services at
Company's expense at the level in effect for Executive Officers of
the Company on the Employment Ending Date.
(iv) Company shall pay Executive his automobile allowance and
reimbursement, at the level in effect on the Employment Ending Date,
during the severance period.
(c) When Severance Benefits Not Payable. None of the severance benefits
described in this section 4.3 shall be payable to Executive if (i) Executive's
employment with Company terminates as a result of Executive's death or
Disability or for cause, or (ii) Executive voluntarily ends his employment with
Company other than by resigning for good reason. The compensation and benefits
which the Company is required to pay Executive pursuant to this section 4.3 are
the only compensation and benefits to which the Executive is entitled upon a
termination or resignation of employment.
(d) Cooperation. As a condition to receipt of the severance benefits
described in this section 4.3, Executive shall provide Company with such
information pertaining to his employment with Company as he may have and shall
assist Company to transfer his duties to such successor
6
<PAGE> 7
or successors as Company may designate. Company shall reimburse Executive for
all reasonable out-of-pocket expenses he incurs in fulfilling his obligation
under the preceding sentience.
(e) Release. As a condition to receipt of the severance benefits described
in this section 4.3, Executive shall deliver an effective, executed release to
Company in the form attached to this Agreement as Exhibit "A" on or before the
Employment Ending Date.
(f) Acceleration Election. Company may, at its sole option and in its sole
and absolute discretion, at any time or from time to time, accelerate the time
and the manner of making any one or more payments required under this section
4.3.
(g) Taxes. Company shall withhold from payments to Executive and remit to
the appropriate government agencies such payroll taxes and income withholding as
Company determines is or may be necessary under applicable law with respect to
amounts paid to Executive under this section 4.3.
(h) General Obligation. The rights and benefits of Executive to receive
payments under this section 4.3 shall be solely those of an unsecured creditor
of Company.
SECTION FIVE. RESTRICTIVE COVENANTS
5.1 Confidentiality. Executive acknowledges a duty of confidentiality owed to
Company and shall not, at any time during or after his employment by Company,
retain in writing, use, divulge, furnish, or make accessible to anyone, without
the express authorization of the Board, any trade secret, private or
confidential information or knowledge of Company or any of its affiliates
obtained or acquired by him while so employed. All computer software, address
books, rolodexes, business cards, telephone lists, customer fists, price lists,
contract forms, catalogs, books, records, and files and know-how acquired while
an employee of Company, are acknowledged to be the property of Company and shall
not be duplicated, removed from Company's possession or made use of other than
in pursuit of Company's business. Upon the Employment Ending Date, Executive
shall deliver to Company, without further demand, all copies thereof which are
then in his possession or under his control.
5.2 Inventions and Improvements. During the term of his employment, Executive
shall promptly communicate to Company all ideas, discoveries and inventions
which are or may be useful to Company or its business. Executive acknowledges
that all ideas, discoveries, inventions, and improvements which are made,
conceived, or reduced to practice by him and every item of knowledge relating to
Company's business interests (including potential business interests) gained by
him during his employment hereunder are the property of Company, and Executive
hereby irrevocably assigns all such ideas, discoveries, inventions,
improvements, and knowledge to Company for its sole use and benefit, without
additional compensation. The provisions of this Section shall apply whether such
ideas, discoveries, inventions, improvements or knowledge are conceived, made or
gained by him alone or with others; whether during or after usual working
7
<PAGE> 8
hours, whether on or off the job, whether applicable to matters directly or
indirectly related to Company's business interests (including potential business
interests), and whether or not within the specific realm of his duties. Any of
Executive's ideas, inventions, and improvements relating to Company's business
interests or potential business interests and conceived during the severance
period shall, for the purposes of this Agreement, be deemed to have been
conceived before the Employment Ending Date. Executive shall, upon request of
Company, but at no expense to Executive, at any time during or after his
employment with Company, sign all instruments and documents requested by Company
and otherwise cooperate with Company to protect its right to such ideas,
discoveries, inventions, improvements, and knowledge, including applying for,
obtaining, and enforcing patents and copyrights thereon in any and all
countries.
5.3. Noncompetition; Nonsolicitation. Executive shall not, without Company's
prior written approval, either directly or indirectly, for his own account or
for the account of another person or entity, for a period of two years from and
after the Employment Termination Date:
(a) acquire or hold a significant financial interest in any competitor of
Company or of any affiliate;
(b) compete with Company or any affiliate in soliciting any business from
any person or entity that was at any time during the two years immediately
preceding the Employment Ending Date a client or potential client of Company or
any affiliate, as to which client or potential client Company or an affiliate
had rendered a significant volume of service or had a significant amount of
direct business contact for the purpose of soliciting future business; or
(c) render services to any competitor of Company or an affiliate, if such
services are similar in nature (in whole or in part) to services Executive
rendered to Company or any affiliate at any time during the two years
immediately preceding the Employment Ending Date.
(d) solicit, hire or otherwise induce any employee of Company or an
affiliate to leave the employment of Company or the affiliate, or induce any
such employee to become an employee of, or otherwise become associated with, any
company or business other than Company or the affiliate. This paragraph shall
apply to inducement, hiring or solicitation of any employee of Company or an
affiliate, regardless of position.
Upon the breach by Executive of his obligations under this section 5.3, in
addition to Company's right to obtain appropriate injunctive relief as set forth
in section 5.4 of this Agreement, Company's obligation to make severance
payments or provide severance benefits to Executive under section 4 of this
Agreement shall terminate immediately and Executive shall, within 10 days after
written demand by Company, repay to Company all severance payments previously
made to Executive as well as an amount equal to the cost of severance benefits
previously provided to Executive.
8
<PAGE> 9
5.4. Injunctive and Other Relief.
(a) Executive acknowledges and agrees that his obligations contained in
this Agreement are fair and reasonable in light of the consideration paid under
this Agreement, and that damages alone shall not be an adequate remedy for any
breach by Executive of those obligations. Accordingly, Executive expressly
agrees that, in addition to any other remedies which Company may have, Company
shall be entitled to injunctive relief in any court of competent jurisdiction
for any breach or threatened breach of any of those obligations by Executive.
Nothing contained in this Agreement, including, without limitation, Section 6.1
hereof, shall prevent or delay Company from seeking, in any court of competent
jurisdiction, specific performance or other equitable remedies in the event of
any breach or intended breach by Executive of any of his obligations under this
Agreement.
(b) Notwithstanding the equitable relief available to Company, the
Executive, in the event of a breach of his obligations contained in Section 5
hereof, understands and agrees that the uncertainties and delay inherent in the
legal process would result in a continuing breach for some period of time, and
therefore, continuing injury to Company until and unless Company can obtain
appropriate equitable relief. Therefore, in addition to such equitable relief,
Company shall be entitled to monetary damages for any such period of breach
until the termination of such breach, in an amount deemed reasonable to cover
all actual and consequential losses, plus all moneys received by Executive as a
result of said breach, and all costs and attorneys' fees incurred by Company in
enforcing this Agreement. If Executive should use or reveal to any other person
or entity any confidential information in violation of this Agreement, this will
be considered a continuing violation on a daily basis for so long a period of
time as such confidential information is made use of by Executive or any such
other person or entity.
SECTION SIX. MISCELLANEOUS
6.1 Arbitration.
(a) Except as et forth in the last sentence of this Paragraph 6.1, all
disputes arising out of or relating to this Agreement which cannot be settled by
the parties shall promptly be submitted to and settled exclusively by
arbitration in West Chester, Pennsylvania in accordance with the laws of the
Commonwealth of Pennsylvania by three arbitrators, one of whom shall be
appointed by the Company, one by the Executive and the third of whom shall be
appointed by the first two arbitrators. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators which shall be as provided in this
section 6.1. Judgment upon the award rendered by a majority decision of the
arbitrators may be entered in any court having jurisdiction thereof. The Company
shall, however, have the right to seek and obtain preliminary injunctive relief,
in a court of competent jurisdiction, for any existing or threatened violation
by Executive of Section Five of this Agreement.
9
<PAGE> 10
(b) The arbitrators shall award to the prevailing party in any such
arbitration or preliminary injunction proceeding, in addition to any other
appropriate relief, the costs and expenses (including reasonable attorneys fees)
incurred by that party in connection with the enforcement of that party's rights
under this Agreement, unless the arbitrators shall determine that under the
circumstances such an award would be unjust.
6.2. Prior Employment. Executive represents and warrants that he is not a party
to any other employment, non-competition or other agreement or restriction which
could interfere with his employment with Company or with his or Company's rights
and obligations under this Agreement; and that his acceptance of employment with
Company and the performance of his duties under this Agreement will not breach
the provisions of any contract, agreement, or understanding to which he is party
or any duty owed by him to any other person.
6.3. Severability. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts of this Agreement, except that in the event that the Release
described in section 4.3 (e) hereof is given by Executive and is determined to
be invalid or unenforceable, such that Executive is permitted to maintain
against Company any claim purported to be released under that Release, then
Company's obligation to provide severance payments and benefits under Section
4.3 of this Agreement shall be deemed null and void and Executive shall repay to
Company any of those severance payments and benefits already paid Company. In
the event that any provision hereof is determined to be invalid or unenforceable
by a court of competent junctions Executive and Company shall negotiate in good
faith to provide Company and Executive with protection as nearly equivalent to
that found to be invalid or unenforceable and if any such provision shall be so
determined to be invalid or unenforceable by reason of the duration or
geographical scope of the covenants contained therein, such duration or
geographical scope, or both, shall be considered to be reduced to a duration or
geographical scope to the extent necessary to cure such invalidity.
6.4. Assignment. This Agreement shall not be assignable by Executive, and shall
be assignable by Company only to any person or entity which may become a
successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.5. Notices. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service, or by registered or certified mail, postage prepaid, return receipt
requested, (confirmed by U.S. mail), addressed as set forth below or to such
other person and/or at such other address as may be furnished in writing by any
party hereto to the other. Any such notice shall be deemed to have been given as
of the date received, in the case of personal delivery, or on the date shown on
the receipt or confirmation therefor, in all other cases. Any and all service of
process and any other notice in any such action, suit or proceeding shall be
effective against any party if given as provided in this Agreement; provided
10
<PAGE> 11
that nothing herein shall be deemed to affect the right of any party to serve
process in any other manner permitted by law.
If to Company:
One Weston Way
West Chester, PA 19103-7085
Attention: Vice President, Human Resources
With a copy to:
F. Douglas Raymond, Esq.
Drinker Biddle & Reath
Philadelphia National Bank Building
1345 Chestnut Street
Philadelphia, PA 19107-3496
If to Executive:
Patrick G. McCann
172 Jericho Valley Dr.
Wrightstown, PA 18940
6.6. Entire Agreement and Modification. This Agreement constitutes the entire
agreement between the Company and the Executive with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification, or waiver of this Agreement shall
not be effective unless in writing and signed by the party against whom
enforcement is sought. The failure by any party to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall a party's waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
6.7. Governing Law. This Agreement is made pursuant to, and shall be construed
and enforced in accordance with, the internal laws of the Commonwealth of
Pennsylvania (and United States federal law, to the extent applicable), without
giving effect to otherwise applicable principles of conflicts of law.
6.8. Headings; Counterparts. The headings of paragraphs in this Agreement are
for convenience only and shall not affect its interpretation. This Agreement may
be executed in two or more counterparts, each of which shall be deemed to be an
original and all of which, when taken together, shall be deemed to constitute
but one and the same Agreement.
6.9. Further Assurances. Each of the parties hereto shall execute such further
instruments and take such other actions as any other party shall reasonably
request in order to effectuate the purposes of this Agreement.
11
<PAGE> 12
6.10. Non-Alienation. None of the rights or payments contemplated under this
Agreement may be sold, given away, assigned, transferred, pledged, mortgaged,
alienated, hypothecated or in any way encumbered or disposed of by Executive, or
any executor, administrator, heir, legatee, distributee, relative or any other
person or entity, whether or not in being, claiming under Executive by virtue of
this Agreement, and none of the rights or benefits contemplated by this
Agreement shall be subject to execution, attachment or similar process. Any
sale, gift, assignment, transfer, pledge, mortgage, alienation, hypothecation or
encumbrance, or other disposition of this Agreement or of such rights or
benefits contrary to the foregoing provisions, or the levy or any attachment or
similar process thereon, shall be null and void and without effect.
6.11. Right to Use Likeness. Executive hereby grants to Company the absolute
right and permission to copyright and use, re-use and/or publish for lawful
business purposes, any photographic portraits or pictures of Executive (and
printed matter in conjunction therewith) in which Executive may be included in
whole or in part or composite, for art, advertising, or trade.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
ATTEST: ROY F. WESTON, INC.
/s/ By /s/ William L. Robertson
- ------------------------------ ------------------------------
William L. Robertson
CEO
/s/ Patrick G. McCann
- ------------------------------
Patrick G. McCann
Executive
12
<PAGE> 1
Exhibit 11
ROY F. WESTON, INC. AND SUBSIDIARIES
STATEMENTS OF COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
Three Months Ended March 31,
1998 1997
---------- ----------
(Thousands of Dollars)
<S> <C> <C>
BASIC
Net income $ 207 $ 396
========== ==========
Weighted average shares outstanding 9,880,861 9,659,203
========== ==========
Basic earnings per share $ .02 $ .04
========== ==========
DILUTED
Net income $ 207 $ 396
========== ==========
Weighted average number of shares used in calculating
basic earnings per share 9,880,861 9,659,203
ADD:
Dilutive impact of stock options 23,613 --
---------- ----------
Weighted average number of shares used in calculating
diluted earnings per share 9,904,474 9,659,203
========== ==========
Diluted earnings per share $ .02 $ .04
========== ==========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET OF MARCH 31, 1998 AND THE CONSOLIDATED STATEMENT OF
INCOME FOR THE THREE MONTHS ENDED MARCH 31, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<CASH> 7,018
<SECURITIES> 6,268
<RECEIVABLES> 68,684<F1>
<ALLOWANCES> 1,690
<INVENTORY> 0
<CURRENT-ASSETS> 89,968
<PP&E> 51,178
<DEPRECIATION> 41,284
<TOTAL-ASSETS> 117,539
<CURRENT-LIABILITIES> 43,093
<BONDS> 15,449
0
0
<COMMON> 1,175
<OTHER-SE> 54,654
<TOTAL-LIABILITY-AND-EQUITY> 117,539
<SALES> 0
<TOTAL-REVENUES> 54,677
<CGS> 0
<TOTAL-COSTS> 54,329
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 238
<INTEREST-EXPENSE> 373
<INCOME-PRETAX> 345
<INCOME-TAX> 138
<INCOME-CONTINUING> 207
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 207
<EPS-PRIMARY> .02
<EPS-DILUTED> .02
<FN>
<F1>INCLUDES 19,596 OF UNBILLED COSTS AND ESTIMATED EARNINGS THEREON.
</FN>
</TABLE>
