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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For quarter ended September 30, 1997
Commission file number 1-467
WILSHIRE OIL COMPANY OF TEXAS
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(Exact name of registrants as specified in its charter)
DELAWARE 84-0513668
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
921 BERGEN AVENUE -- JERSEY CITY, NEW JERSEY 07306-4204
- -------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number -- including area code (201) 420-2796
NO CHANGE
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Former name, former address and former fiscal year,
if changed since last reports.
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
--- ---
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the close of the period by this report.
Common Stock $1 Par Value -- 9,265,291
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<PAGE>
WILSHIRE OIL COMPANY OF TEXAS
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INDEX
Page No.
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PART I -- FINANCIAL INFORMATION
Financial Information:
Consolidated Balance Sheets --
September 30, 1997 and December 31, 1996 ................... 1
Consolidated Statements of Operations --
Nine months ended September 30, 1997 and 1996 .............. 2
Consolidated Statements of Operations --
Three months ended September 30, 1997 and 1996 ............. 3
Consolidated Statement of Cash Flows --
Nine months ended September 30, 1997 and 1996 .............. 4
Notes to Consolidated Financial Statements ................. 5
Management's Discussion and Analysis
of Financial Condition and Results of Operations ........... 6 & 7
PART II -- OTHER INFORMATION .......................................... 8
<PAGE>
WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(000's Omitted, Except Share Data)
(Unaudited)
September 30, December 31,
1997 1996
------------- ------------
ASSETS
- ------
CURRENT ASSETS:
Cash and cash equivalents ........................ $ 932 $ 1,192
Accounts receivable (Note 1) ..................... 1,139 1,855
Marketable securities, at market
value in 1997 and 1996 ........................ 17,376 24,106
Prepaid expenses and other current assets ........ 239 442
-------- --------
Total current assets ...................... 19,686 27,595
-------- --------
INVESTMENT IN PREFERRED STOCK OF
THE TRUST COMPANY OF NEW JERSEY .................. 3,000 3,000
-------- --------
PROPERTY AND EQUIPMENT
Oil and gas properties, using the
full cost method of accounting ................. 133,696 131,655
Real estate properties ........................... 42,764 40,534
Other property and equipment ..................... 410 430
-------- --------
176,870 172,619
Less -- Accumulated depreciation,
depletion and amortization ............... 107,804 104,836
-------- --------
69,066 67,783
-------- --------
$ 91,752 $ 98,378
======== --------
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES:
Current portion of long-term debt ................ $ 4,150 $ 2,911
Accounts payable ................................. 1,611 2,197
Accrued and other liabilities .................... 2,178 2,932
-------- --------
Total current liabilities ................. 7,939 8,040
-------- --------
LONG -- TERM DEBT, less current portion ............ 37,614 46,299
-------- --------
DEFERRED INCOME TAXES .............................. 15,256 16,411
-------- --------
SHAREHOLDERS' EQUITY
Common stock, $1 par value,
15,000,000 shares authorized;
issued 10,013,544
shares in 1997 and 1996 ........................ 10,014 10,014
Capital in excess of par value ................... 10,394 9,700
Unrealized gain on marketable securities
($5,400 in 1997 and $9,047 in 1996),
net of deferred income taxes ................... 2,973 4,976
Retained earnings ................................ 14,980 10,237
-------- --------
38,361 34,927
Less --
Treasury stock, 748,253 and 765,169
shares in 1997 and 1996, at cost ......... 4,745 4,851
Cumulative foreign currency
translation adjustment ................... 2,673 2,448
-------- --------
30,943 27,628
-------- --------
$ 91,752 $ 98,378
======== ========
1
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WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(000's Omitted, Except Share Data)
(Unaudited)
For The Nine Months Ended
-----------------------------
September 30, September 30,
1997 1996
------------- -------------
REVENUES
Oil & Gas ........................................ $ 4,394 $ 4,237
Real Estate ...................................... 7,269 6,923
---------- ----------
Total Revenues .......................... 11,663 11,160
COSTS AND EXPENSES
Oil and Gas Production Expenses .................. 1,831 1,817
Real Estate Operating Expenses ................... 4,141 3,950
Depreciation, depletion and amortization ......... 3,023 3,051
General and Administrative ....................... 1,251 1,036
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Total Costs and Expenses ................ 10,246 9,854
---------- ----------
Income from Operations .................. 1,417 1,306
OTHER INCOME ..................................... 481 347
GAIN ON SALES OF MARKETABLE SECURITIES (Note 3) .. 8,216 7,208
INTEREST EXPENSE ................................. (2,663) (2,935)
---------- ----------
Income before provision
for income taxes ............................. 7,451 5,926
PROVISION FOR INCOME TAXES ....................... 2,708 1,845
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Net income .............................. $ 4,743 $ 4,081
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AVERAGE NUMBER OF SHARES OF
COMMON STOCK OUTSTANDING ....................... 9,264,663 9,304,676
---------- ----------
INCOME PER COMMON SHARE .......................... $ .51 $ .44
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2
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WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(000's Omitted, Except Share Data)
(Unaudited)
For The Three Months Ended
----------------------------
September 30, September 30,
1997 1996
------------ ------------
REVENUES
Oil & Gas ........................................ $ 1,552 $ 1,507
Real Estate ...................................... 2,478 2,337
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Total Revenues .......................... 4,030 3,844
COSTS AND EXPENSES
Oil and Gas Production Expenses .................. 647 592
Real Estate Operating Expenses ................... 1,416 1,316
Depreciation, depletion and amortization ......... 908 1,150
General and Administrative ....................... 445 183
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Total Costs and Expenses ................ 3,416 3,241
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Income from Operations .................. 614 603
OTHER INCOME ..................................... 111 246
GAIN ON SALES OF MARKETABLE SECURITIES (Note 3) .. 2,215 1,535
INTEREST EXPENSE ................................. (844) (951)
---------- ----------
Income before provision for income taxes ....... 2,096 1,433
PROVISION FOR INCOME TAXES ....................... 835 407
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Net income .............................. 1,261 $ 1,026
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AVERAGE NUMBER OF SHARES OF
COMMON STOCK OUTSTANDING: ...................... 9,265,301 9,285,760
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INCOME PER COMMON SHARE .......................... $ .14 $ .11
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3
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WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(000's Omitted)
(Unaudited)
For The Nine Months Ended
---------------------------
September 30, September 30,
1997 1996
------------- -------------
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income ....................................... $ 4,743 $ 4,081
Adjustments to reconcile net income to net
cash provided by operating activities -
Depreciation, depletion and amortization ......... 2,968 3,051
Deferred income tax provision .................... 483 1,359
Amortization (adjustment) of deferred and
unearned compensation in connection
with non-qualified stock option plan, net ..... 694 (59)
Gain on sales of marketable securities ........... (8,216) (7,208)
Foreign currency transactions .................... -- --
Changes in operating assets and liabilities --
(Increase) decrease in receivables ............... 716 172
(Increase) decrease in prepaid expenses and other
current assets ................................ 203 65
Increase (decrease) in accounts payable,
accrued and other liabilities ................ (876) (1,185)
-------- --------
Net cash provided by (used in)
operating activities .............................. $ 715 $ 276
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures, net ........................ (4,251) (5,026)
Purchase of marketable securities ................ (344) (167)
Proceeds from sales and redemptions of
securities ..................................... 11,648 8,566
-------- --------
Net cash provided by (used in)
investing activities .......................... $ 7,053 $ 3,373
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of long term debt ......... 1,608 3,950
Principal payment of long term debt .............. (9,054) (7,016)
Purchase of treasury stock ....................... (2) (656)
Exercise of Stock Options ........................ 108 --
Cash Dividends ................................... (463) (465)
Other ............................................ -- 18
-------- --------
Net cash provided by (used in)
financing activities ........................... ($ 7,803) ($ 4,169)
-------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH ............. (225) 7
-------- --------
Net increase (decrease) in cash and
cash equivalents .............................. (260) (513)
CASH AND CASH EQUIVALENTS AT
BEGINNING OF PERIOD ............................... 1,192 1,601
-------- --------
CASH AND CASH EQUIVALENTS AT
END OF PERIOD ..................................... $ 932 $ 1,088
-------- --------
SUPPLEMENTAL DISCLOSURES TO THE
STATEMENTS OF CASH FLOWS:
Cash paid during the period for --
Interest, net of amounts capitalized ............ $ 2,539 $ 2,742
Income taxes, net ............................... 1,394 2,884
-------- --------
4
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WILSHIRE OIL COMPANY OF TEXAS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1997 (Unaudited)
1. FINANCIAL STATEMENTS
The condensed financial statements included herein have been prepared by
the Registrant, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, although the
Registrant believes that the disclosures are adequate to make the
information presented not misleading. It is suggested that these condensed
financial statements be read in conjunction with the financial statements
and the notes thereto included in the Company's latest annual report on
Form 10-K This condensed financial information reflects, in the opinion of
management, all adjustments necessary to present fairly the results for the
interim periods. The results of operations for such interim periods are not
necessarily indicative of the results for the full year.
2. DESCRIPTION OF BUSINESS:
Wilshire Oil Company of Texas is a diversified corporation engaged in oil
and gas exploration and production and real estate operations. The
Company's oil and gas operations are conducted both in its own name and
through several wholly-owned subsidiaries in the United States and Canada.
Crude oil and natural gas productions are sold to oil refineries and
natural gas pipeline companies. The Company's real estate holdings are
located in the states of Arizona, Florida, New Jersey, Texas and Georgia.
The Company also maintains investments in marketable securities.
3. GAIN ON SALES OF MARKETABLE SECURITIES
The Company realized gains from the sales of marketable securities of
$8,216,000 and $7,208,000 for the nine months ended September 30, 1997 and
1996, respectively, and $2,215,000 and $1,535,000 for the three months
ended September 30, 1997 and 1996, respectively.
5
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Net income for the nine months ended September 30 increased from $4,081,000
in 1996 to $4,743,000 in 1997. Net income for the quarter ended September 30
increased from $1,026,000 in 1996 to $1,261,000 in 1997.
Consolidated revenues for the nine months ended September 30 increased from
$11,160,000 in 1996 to $11,663,000 in 1997. Oil and gas revenues increased from
$4,237,000 to $4,394,000 and real estate revenues increased from $6,923,000 to
$7,269,000.
Total costs and expenses were comparable from period to period amounting to
$10,246,000 in 1997 and $9,854,000 in 1996. Oil and gas production expense
increased by $14,000 and depreciation, depletion and amortization decreased by
$28,000. General and administrative expense increased by $215,000, principally
due to increased charges related to the Company's non-qualified stock option
plan. Real estate operating expenses increased by $191,000.
Interest expense decreased from $2,935,000 in the first nine months of 1996
to $2,663,000 in 1997. This decrease is attributable to a reduced level of
long-term debt and lower interest rates in general in 1997. Gain on sales of
marketable securities was $8,216,000 in 1997 as compared with $7,208,000 in
1996. The provision for income taxes includes Federal, state, and Canadian
taxes. Differences between the effective tax rate and the statutory income tax
rates are due to foreign resource tax credits in Canada and the dividend
exclusion in the United States.
ACCOUNTING FOR CERTAIN INVESTMENTS IN DEBT AND EQUITY SECURITIES
The Company has adopted Statement of Financial Accounting Standards No. 115
"Accounting for Certain Investments in Debt and Equity Securities" (SFAS 115).
The investments of the Company are principally equity securities, held for
indefinite periods of time. These securities are carried at fair value and the
difference between cost and fair value is charged/credited directly to
shareholders' equity net of income taxes. As of September 30, 1997, the gross
unrealized gain on marketable securities was $5.4 million. This amount, net of
related deferred income taxes of $2.4 million, is included as a credit to
shareholders' equity in the Company's September 30, 1997 consolidated balance
sheet.
6
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1997 the Company had approximately $12 million in
marketable securities at cost, with a market value of approximately $17 million.
The current ratio at September 30, 1997 was 2.5 to 1 on a market basis, which
management considers adequate for the Company's current business. The Company's
working capital was approximately $12 million at September 30, 1997.
The Company anticipates that cash provided by operating activities and
investing activities will be sufficient to meet its capital requirements to
acquire oil and gas properties and to drill and evaluate these and other oil and
gas properties presently held by the Company. The level of oil and gas capital
expenditures will vary in future periods depending on market conditions,
including the price of oil and the demand for natural gas, and other related
factors. As the Company has no material long-term commitments with respect to
its oil and gas capital expenditure plans, the Company has a significant degree
of flexibility to adjust the level of its expenditures as circumstances warrant.
The Company plans to actively continue its exploration and production
activities as well as search for the acquisition of oil and gas producing
properties and of companies with desirable oil and gas producing properties.
There can be no assurance that the Company will in fact locate any such
acquisitions.
During the nine months ended September 30, 1997, the Company acquired four
real estate properties at an aggregate purchase price of approximately $1.9
million. Subsequent to September 30, 1997, the Company acquired a 132 unit
garden apartment complex in suburban New Jersey at an aggregate purchase price
of approximately $4 million. All of these transactions were financed with
first-mortgage loans. The Company will explore other real estate acquisitions as
they arise. The timing of any such acquisition will depend on, among other
things, economic conditions and the favorable evaluation of specific
opportunities presented to the Company. The Company is currently planning
further acquisitions of investment properties during the next year. Accordingly,
while the Company anticipates that it will actively explore these and other real
estate acquisition opportunities, no assurance can be given that any such
acquisition will occur.
Subsequent to September 30, 1997, the Company refinanced the original 1992
mortgage loans on the Company's first two real estate property acquisitions.
These properties were acquired in 1992 at an aggregate cost of approximately $11
million. Due to the significant appreciation in the value of these properties,
the Lender granted first- mortgage loans in the aggregate amount of $17.5
million, which is $6.5 million in excess of the Company's original cost of these
properties. These funds were borrowed on a long-term basis at favorable rates.
The proceeds of these loans were used to pay off the higher-rate original
first-mortgage loans of $9 million, pay off $3.2 million of other higher-rate
debt, and for investment and working capital purposes.
Net cash provided by (used in) operating activities was $715,000 and
$276,000 in the first nine months of 1997 and 1996, respectively. The changes
principally relate to changes in operating assets and liabilities.
Net cash provided by (used in) investing activities was $7,053,000 and
$3,373,000 in the first nine months of 1997 and 1996, respectively. Variations
in purchases of marketable securities, proceeds from sales of marketable
securities, and capital expenditures, including the 1997 acquisitions of $1.9
million of real estate properties, contributed to these changes. Included in
proceeds from sales and redemptions of securities of $11,648,000 for the nine
months ended September 30, 1997 are redemptions of 15,000 shares, at par,
aggregating $1,500,000, of preferred stock of The Trust Company of New Jersey.
Net cash provided by (used in) financing activities was $(7,803,000) and
$(4,169,000) in the first nine months of 1997 and 1996, respectively. The
variation relates to both the issuance of long-term debt in connection with
purchases of real estate properties during 1997 and 1996 and principal payments
of long-term debt.
The Company believes it has adequate capital resources to fund operations
for the foreseeable future.
7
<PAGE>
PART II -- OTHER INFORMATION
ITEM 1, 2, 3, 4, 5 -- NOT APPLICABLE
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.1 Registrant's By-laws, as amended
27.1 Financial Data Schedule
(b) No Form 8-K was filed during the quarter ended September 30, 1997.
8
<PAGE>
S I G N A T U R E S
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.
WILSHIRE OIL COMPANY OF TEXAS
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(Registrant)
Date: November 11, 1997 By: /s/ S. WILZIG IZAK
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S. Wilzig Izak
Chairman of the Board and
Chief Executive Officer
(Duly Authorized Officer and
Chief Financial Officer)
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WILSHIRE OIL COMPANY OF TEXAS
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BY-LAWS
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AS AMENDED AND RESTATED
THROUGH
JUNE 5, 1997
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<PAGE>
WILSHIRE OIL COMPANY OF TEXAS
BY-LAWS
ARTICLE I.
Stockholders.
Section 1. The Annual Meeting of the Stockholders of the Corporation shall
be held each year, on such date, at such time and at such place, either within
or without the State of Delaware, as may be designated by the Board of
Directors, from time to time, and stated in the Notice of the Meeting, for the
purpose of electing Directors and transacting such other business as may
properly be brought before the meeting.
Section 2. Special meetings of the stockholders may be held upon call of
the Board of Directors or the Executive Committee, if any, or the Chairman of
the Board, if any, or the President, at such time and at such place within or
without the State of Delaware as may be stated in the call and notice.
Section 3. Except as otherwise herein provided, notice of the time and
place of every meeting of the stockholders shall be delivered personally or
mailed at least ten days previous thereto to each stockholder of record entitled
to vote at the meeting, at the address furnished by him to the Corporation or
its Transfer Agent. Such further notice shall be given as may be required by
law. Any meeting may be held without notice if notice thereof is waived, whether
before or after such meeting, by all of the stockholders entitled to vote
thereat.
Section 4. At every meeting of the stockholders the holders of record of a
majority of the outstanding shares of stock of the Corporation, entitled to vote
at the meeting, whether present in person or represented by proxy, shall, except
as otherwise provided by law, or by the Certificate of Incorporation, constitute
a quorum. If at any meeting there shall be no quorum, the holders of record,
entitled to vote, of a majority of such shares of stock so present or
represented may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall have been obtained, when any
business may be transacted which might have been transacted at the meeting as
first convened had there been a quorum.
Section 5. Unless otherwise provided in the Certificate of Incorporation of
the Corporation, meetings of the stockholders shall be presided over by the
Chairman of the Board, if any, or the President or, if neither is present, by a
person selected by the Board of Directors, or if no selection is made, by a
Chairman to be chosen at the meeting. The Secretary of the Corporation or, if he
is not present, an Assistant Secretary of the Corporation, if present, shall act
as Secretary of the meeting, but if no such officer is present a Secretary shall
be chosen at the meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such
<PAGE>
rules, regulations and procedures and to do all such acts and things as are
necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allocated to questions or comments on the
affairs of the Corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof and the opening and closing of the
voting polls.
Section 6. Each stockholder entitled to vote at any meeting shall have one
vote in person or by proxy for each share of stock held by him which has voting
power upon the matter in question at the time, but no proxy shall be voted on
after three years from its date, unless such proxy provides for a longer period,
and, except when the stock transfer books of the Corporation shall have been
closed or a date shall have been fixed in advance as a record date for the
determination of stockholders entitled to vote, as hereinafter provided, no
share of stock shall be voted on at any election for directors which shall have
been transferred on the books of the Corporation within twenty days next
preceding such election of directors.
Section 7. The Board of Directors shall have power to close the stock
transfer books of the Corporation for a period not exceeding sixty days
preceding the date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of stock shall go into effect or for a period of not
exceeding sixty days in connection with obtaining the consent of stockholders
for any purpose; provided, however, that in lieu of closing the stock transfer
books as aforesaid, the Board of Directors may fix in advance a date, not
exceeding sixty days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of stock shall go into
effect, or a date in connection with obtaining such consent, as a record date
for the determination of the stockholders entitled to notice of, and to vote at,
any such meeting and any adjournment thereof, or entitled to receive payment of
any such dividend, or to any such allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of stock, or to give such
consent, and in such case such stockholders and only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record date
fixed as aforesaid.
Section 8. The provisions of this Article I, and of these By-Laws, are
subject to the provisions of the Certificate of Incorporation of the
Corporation, as from time to time amended, and in the case of any inconsistency
between the provisions of these By-Laws and of the Certificate of Incorporation
the Certificate of Incorporation shall govern and such inconsistency shall be
resolved so as to carry into effect the intent and purposes of the provisions of
the Certificate of Incorporation.
Section 9. Advance Notice of Stockholder Proposals. At any annual or
special meeting of stockholders, proposals by stockholders and persons nominated
for election as directors by stockholders shall be considered only if advance
notice thereof has been timely given
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<PAGE>
as provided herein and such proposals or nominations are otherwise proper for
consideration under applicable law and the certificate of incorporation and
by-laws of the Corporation. Notice of any proposal to be presented by any
stockholder or of the name of any person to be nominated by any stockholder for
election as a director of the Corporation at any meeting of stockholders shall
be delivered to the Secretary of the Corporation at its principal executive
office not less than 60 nor more than 90 days prior to the date of the meeting;
provided, however, that if the date of the meeting is first publicly announced
or disclosed (in a public filing or otherwise) less than 70 days prior to the
date of the meeting, such advance notice shall be given not more than ten days
after such date is first so announced or disclosed. Public notice shall be
deemed to have been given more than 70 days in advance of the annual meeting if
the Corporation shall have previously disclosed, in these by-laws or otherwise,
that the annual meeting in each year is to be held on a determinable date,
unless and until the Board determines to hold the meeting on a different date.
Any stockholder who gives notice of any such proposal shall deliver therewith
the text of the proposal to be presented and a brief written statement of the
reasons why such stockholder favors the proposal and setting forth such
stockholder's name and address, the number and class of all shares of each class
of stock of the Corporation beneficially owned by such stockholder and any
material interest of such stockholder in the proposal (other than as a
stockholder). Any stockholder desiring to nominate any person for election as a
director of the Corporation shall deliver with such notice a statement in
writing setting forth the name of the person to be nominated, the number and
class of all shares of each class of stock of the Corporation beneficially owned
by such person, the information regarding such person required by paragraphs
(a), (e) and (f) of Item 401 of Regulation S-K adopted by the Securities and
Exchange Commission (or the corresponding provisions of any regulation
subsequently adopted by the Securities and Exchange Commission applicable to the
Corporation), such person's signed consent to serve as a director of the
Corporation if elected, such stockholder's name and address and the number and
class of all shares of each class of stock of the Corporation beneficially owned
by such stockholder. As used herein, shares "beneficially owned" shall mean all
shares as to which such person, together with such person's affiliates and
associates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934),
may be deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, as well as all shares as to which such person,
together with such person's affiliates and associates, has the right to become
the beneficial owner pursuant to any agreement or understanding, or upon the
exercise of warrants, options or rights to convert or exchange (whether such
rights are exercisable immediately or only after the passage of time or the
occurrence of conditions). The person presiding at the meeting, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall determine whether such notice has been duly given and shall
direct that proposals and nominees not be considered if such notice has not been
given.
Section 10. Inspectors. Prior to any meeting of stockholders, the Board of
Directors or the Chief Executive Officer shall appoint one or more inspectors to
act at such meeting and make a written report thereof and may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at the meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict
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<PAGE>
impartiality and according to the best of his or her ability. The inspectors
shall ascertain the number of shares outstanding and the voting power of each,
determine the shares represented at the meeting and the validity of proxies and
ballots, count all votes and ballots, determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination
by the inspectors and certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons to assist them in the performance
of their duties. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxy or vote, nor any revocation thereof
or change thereto, shall be accepted by the inspectors after the closing of the
polls. In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record holder owner to cast or more votes than the stockholder holds of record.
If the inspectors consider other reliable information for such purpose, they
shall, at the time they make their certification, specify the precise
information considered by them, including the person or persons from whom they
obtained the information, when the information was obtained, the means by which
the information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
ARTICLE II.
Board of Directors.
Section 1. The Board of Directors of the Corporation shall consist of nine
persons. Directors shall hold office until the third Annual Meeting of
Stockholders next succeeding their election, or until their successors shall
have been elected and shall have qualified. A majority of the Directors then in
office, but in no event less than five Directors, shall constitute a quorum
present, the Directors present may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall have
been obtained, when any business may be transacted which might have been
transacted at the meeting as first convened had there been a quorum.
Whenever any vacancy shall have occurred in the Board of Directors by
death, resignation or otherwise, or the number of Directors shall be increased
by amendment of this Section, such vacancy may be filled, or the additional
directors may be elected, by the vote of a majority of the directors then in
office.
Section 2. Meetings of the Board of Directors shall be held at such place
within or without the State of Delaware as may from time to time be fixed by
resolution of the Board or as
-4-
<PAGE>
may be specified in the call of any meeting. Regular meetings of the Board shall
be held at such time as may from time to time be fixed by resolution of the
Board, and notice of such meetings need not be given. Special meetings of the
Board may be held at any time upon call of the Chairman of the Board, if any, or
the President, by oral, telegraphic or written notice, duly served on or given,
sent or mailed to each director not less than two days before any such meeting.
A meeting of the Board may be held without notice immediately after the annual
meeting of the stockholders at the same place at which such meeting is held.
Meetings may be held at any time without notice if all the directors are present
or if those not present waive notice of the meeting in writing or by telegram,
before or after any such meeting.
Directors and members of committees shall be reimbursed for their necessary
traveling expenses incurred in attending meetings of the Board or such
committees and shall be paid such reasonable fees for their attendance as the
Board of Directors may fix.
ARTICLE III.
Officers.
Section 1. The Board of Directors, as soon as may be after the election of
directors held in each year, shall elect from their number a Chairman of the
Corporation, and shall also elect one or more Senior Vice-Presidents,
Vice-Presidents, a Secretary and Treasurer, and from time to time may appoint
such Assistant Vice-Presidents, Assistant Secretaries, Assistant Treasurers and
other officers, agents and employees as it may deem proper. The Board of
Directors may also elect a President of the Company. Any two offices may be held
by the same person; and more than two offices, other than the offices of
President and Secretary, may be held by the same person.
Section 2. The term of office of all officers shall be one year, or until
their respective successors are chosen and qualified; but any officer may be
removed from office at any time by the affirmative vote of a majority of the
members of the whole Board.
Section 3. Subject to such limitations as the Board of Directors may from
time to time prescribe, the officers of the Corporation shall each have such
powers and duties as from time to time may be conferred by the Board of
Directors. The Board of Directors may require the Treasurer, the Assistant
Treasurers and any other officers, agents or employees of the Corporation to
give bond for the faithful discharge of their duties, in such sum and of such
character as the Board may from time to time prescribe.
Section 4. The Chairman of the Board, if any, or in his absence or
inability to act, the President, shall have the power to vote or give a proxy
for the voting of all shares of stock of any corporation owned by the
Corporation at any meeting of the stockholders of any such corporation.
-5-
<PAGE>
ARTICLE IV.
Certificates of Stock.
Section 1. The interest of each stockholder in the Corporation shall be
evidenced by a certificate or certificates for shares of stock of the
Corporation, in such form as the Board of Directors may from time to time
prescribe. The certificates for shares of stock of the Corporation shall be
signed by the President or a Vice-President and by the Secretary or the
Treasurer or an Assistant Secretary or an Assistant Treasurer, and shall be
countersigned and registered in such manner, if any, as the Board may by
resolution prescribe; provided, however, that, in case such certificates are
required by such resolution to be signed by a transfer agent or an assistant
transfer agent or by a transfer clerk acting on behalf of the Corporation and by
a registrar, the signatures of any such President, Vice-President, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary may be facsimile.
Section 2. The shares of stock of the Corporation shall be transferable on
the books of the Corporation by the holders thereof in person or by duly
authorized attorney, upon surrender for cancellation of certificates for a like
number of shares of the same class of stock, with duly executed assignment and
power of transfer endorsed thereon or attached thereto, and with such proof of
the authenticity of the signatures as the Corporation or its agent may
reasonably require.
Section 3. No certificate for shares of stock of the Corporation shall be
issued in place of any certificate alleged to have been lost, stolen or
destroyed, except upon production of such evidence of the loss, theft or
destruction and upon indemnification of the Corporation and its agents to such
extent and in such manner as the Board of Directors may from time to time
prescribe.
ARTICLE V.
Checks, Notes, Etc.
All checks and drafts on the Corporation's bank accounts and all bills of
exchange and promissory notes, and all acceptances, obligations and other
instruments for the payment of money, shall be signed by such officer or
officers or agent or agents as shall be thereunto authorized from time to time
by the Board of Directors.
ARTICLE VI.
Fiscal Year.
The fiscal year of the Corporation shall be as determined by
resolution of the Board of Directors.
-6-
<PAGE>
ARTICLE VII
Corporate Seal.
The corporate seal shall have inscribed thereon the name of the Corporation
and the year of its incorporation, and shall be in such form as may be approved
by the Board of Directors, which shall have power to alter the same at pleasure.
ARTICLE VIII
Offices.
The Corporation and the stockholders and the directors may have offices
outside of the State of Delaware, at such places as shall be determined from
time to time by the Board of Directors.
ARTICLE IX
Amendments.
The By-Laws of the Corporation may be altered, amended, added to or
repealed at any meeting of the Board of Directors, by the affirmative vote of a
majority of the total number of directors, if notice of the proposed change is
given in the notice of the meeting or if all of the directors are present at the
meeting, or if all directors not present at the meeting assent in writing to
such change; PROVIDED, however, that no change of the time or place for the
annual meeting of the stockholders for the election of directors shall be made
except in accordance with the laws of the State of Delaware. By-Laws made by the
directors may be altered or repealed by the stockholders having voting power, or
by the directors.
-7-
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