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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 June 30, 1998
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 -- 9,330,614
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<PAGE>
WILSHIRE OIL COMPANY OF TEXAS
INDEX
Page No.
--------
PART I -- FINANCIAL INFORMATION
Financial Information:
Condensed Consolidated Balance Sheets --
June 30, 1998 (Unaudited) and December 31, 1997 ......... 1
Consolidated Statements of Income --
(Unaudited) Six months ended June 30, 1998 and 1997 ..... 2
Consolidated Statements of Income --
(Unaudited) Three months ended June 30, 1998 and 1997 ... 3
Consolidated Statements of Cash Flows --
(Unaudited) Six months ended June 30, 1998 and 1997 ..... 4
Notes to (Unaudited) Consolidated Financial Statements .... 5 & 6
Management's Discussion and Analysis
of Financial Condition and Results of Operations ........ 7, 8, & 9
PART II -- OTHER INFORMATION ........................................ 10
<PAGE>
WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(000's Omitted, Except Share Data)
June 30, December 31,
1998 1997
----------- ------------
(Unaudited)
ASSETS
CURRENT ASSETS
Cash and cash equivalents ....................... $ 4,704 $ 5,534
Accounts receivable ............................. 822 1,061
Marketable securities, stated at
market value ................................. 11,242 17,947
Prepaid expenses and other current assets ....... 1,291 949
-------- --------
Total current assets ..................... 18,059 25,491
-------- --------
PROPERTY AND EQUIPMENT
Oil and gas properties, using the
full cost method of accounting ............... 135,933 133,509
Real estate properties .......................... 55,608 50,901
Other property and equipment .................... 386 421
-------- --------
191,927 184,831
Less -- Accumulated depreciation,
depletion and amortization .............. 110,279 108,293
-------- --------
81,648 76,538
-------- --------
$ 99,707 $102,029
======== --------
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt ............... $ 3,500 $ 3,324
Accounts payable ................................ 1,431 1,856
Accrued and other liabilities ................... 1,633 3,110
-------- --------
Total current liabilities ................ 6,564 8,290
-------- --------
LONG-TERM DEBT, less current portion .............. 51,462 51,587
-------- --------
DEFERRED INCOME TAXES AND OTHER
NONCURRENT LIABILITIES ......................... 12,420 13,415
-------- --------
SHAREHOLDERS' EQUITY
Common stock, $1 par value,
15,000,000 shares authorized;
10,013,544 shares issued .................... 10,014 10,014
Capital in excess of par value ................. 9,788 9,522
Unrealized gain on marketable
securities of $1,330 in 1998 and $2,943
in 1997, net of related income taxes ........ 732 1,619
Retained earnings .............................. 16,111 14,267
-------- --------
36,645 35,422
Less --
Treasury stock, 682,930 and 888,724
shares in 1998 and 1997, at cost .... 4,261 3,857
Cumulative translation adjustment ..... 3,123 2,828
-------- --------
29,261 28,737
-------- --------
$ 99,707 $102,029
======== ========
1
<PAGE>
WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(000's Omitted, Except Share Data)
(Unaudited)
FOR THE SIX MONTHS ENDED
------------------------
June 30, June 30,
1998 1997
------- -------
REVENUES
Oil & Gas ........................................ $ 2,533 $ 2,842
Real Estate ...................................... 5,622 4,791
------- -------
Total Revenues .......................... 8,155 7,633
COSTS AND EXPENSES
Oil and Gas Production Expenses .................. 1,210 1,184
Real Estate Operating Expenses ................... 3,362 2,725
Depreciation, depletion and amortization ......... 1,986 2,115
General and Administrative ....................... 754 806
------- -------
Total Costs and Expenses ................ 7,312 6,830
------- -------
Income from Operations .................. 843 803
OTHER INCOME ..................................... 379 370
GAIN ON SALES OF MARKETABLE
SECURITIES (Note 3) ........................... 3,543 6,001
INTEREST EXPENSE ................................. (1,989) (1,819)
------- -------
Income before provision
for income taxes ........................... 2,776 5,355
PROVISION FOR INCOME TAXES ....................... 932 1,873
------- -------
Net income ................................. $ 1,844 $ 3,482
======= =======
BASIC EARNINGS PER SHARE ......................... $ .20 $ .36
======= =======
DILUTED EARNINGS PER SHARE ....................... $ .20 $ .36
======= =======
2
<PAGE>
WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(000's Omitted, Except Share Data)
(Unaudited)
FOR THE THREE MONTHS ENDED
-------------------------
June 30, June 30,
1998 1997
------- --------
REVENUES
Oil & Gas ........................................ $ 1,207 $ 1,422
Real Estate ...................................... 2,895 2,450
------- -------
Total Revenues .......................... 4,102 3,872
COSTS AND EXPENSES
Oil and Gas Production Expenses .................. 617 601
Real Estate Operating Expenses ................... 1,754 1,401
Depreciation, depletion and amortization ......... 1,135 1,272
General and Administrative ....................... 356 437
------- -------
Total Costs and Expenses ................ 3,862 3,711
------- -------
Income from Operations ......... 240 161
OTHER INCOME ..................................... 256 180
GAIN ON SALES OF MARKETABLE
SECURITIES (Note 3) ........................... 2,048 3,312
INTEREST EXPENSE ................................. (953) (896)
------- -------
Income before provision
for income taxes ........................... 1,591 2,757
PROVISION FOR INCOME TAXES ....................... 527 991
------- -------
Net income ................................ $ 1,064 $ 1,766
======= =======
BASIC EARNINGS PER SHARE ......................... $ .11 $ .19
======= =======
DILUTED EARNINGS PER SHARE ....................... $ .11 $ .18
======= =======
3
<PAGE>
WILSHIRE OIL COMPANY OF TEXAS AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(000's Omitted)
(Unaudited)
For The Six Months Ended
------------------------
June 30, June 30,
1998 1997
-------- --------
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income ........................................... $ 1,844 $ 3,482
Adjustments to reconcile net income to net
cash used in operating activities --
Depreciation, depletion and amortization ............. 1,986 2,115
Deferred income tax provision (benefit) .............. (269) 244
Amortization (adjustment) of deferred and
unearned compensation in connection
with non-qualified stock option plan, net ........ 266 (20)
Gain on sales of marketable securities ............... (3,543) (6,001)
Foreign currency transactions ........................ -- --
Changes in operating assets and liabilities --
(Increase) decrease in receivables .................. 239 643
(Increase) in prepaid expenses and other
current assets ................................... (342) (233)
Increase (decrease) in accounts payable,
accrued and other liabilities .................... (1,902) 182
-------- --------
Net cash provided by (used in)
operating activities ............................. $ (1,721) $ 412
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures, net ............................ (7,096) (2,730)
Purchases of marketable securities ................... (1,914) (344)
Proceeds from sales and redemptions of securities ... 10,549 8,053
-------- --------
Net cash provided by (used in)
investing activities ............................. $ 1,539 $ 4,979
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of long term debt ............ 5,650 1,615
Principal payment of long term debt ................. (5,599) (7,149)
Purchase of treasury stock .......................... (404) --
Exercise of stock options ........................... -- 108
Other ............................................... -- --
-------- --------
Net cash provided by (used in)
financing activities ............................. $ (353) $ (5,426)
-------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH ................ (295) (198)
-------- --------
Net increase (decrease) in cash and
cash equivalents ................................. (830) (233)
CASH AND CASH EQUIVALENTS AT
BEGINNING OF PERIOD ................................. 5,534 1,192
-------- --------
CASH AND CASH EQUIVALENTS AT
END OF PERIOD ....................................... $ 4,704 $ 959
======== ========
SUPPLEMENTAL DISCLOSURES TO THE
STATEMENTS OF CASH FLOWS:
Cash paid during the period for --
Interest ............................................ $ 1,956 $ 1,790
Income taxes ........................................ $ 1,256 $ 1,231
4
<PAGE>
WILSHIRE OIL COMPANY OF TEXAS
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1998 (Unaudited)
1. FINANCIAL STATEMENTS
The condensed consolidated 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
consolidated 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. All such adjustments are of a normal
recurring nature. 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
$3,543,000 and $6,001,000 for the six months ended June 30, 1998 and 1997,
respectively, and $2,048,000 and $3,312,000 for the three months ended June
30, 1998 and June 30, 1997, respectively.
4. COMPREHENSIVE INCOME
Effective January 1, 1998, the Company adopted the provisions of Statement
of Financial Accounting Standards No. 130, "Reporting Comprehensive
Income," which modifies the financial statement presentation of
comprehensive income and its components. Reclassification of financial
statements for earlier periods is required.
5
<PAGE>
Comprehensive income, representing all changes in shareholders' equity
during the period, other than changes resulting from the Company's common stock,
for the six months ended June 30, 1998 and 1997 is as follows:
Six Months Ended
June 30,
-----------------------
1998 1997
---------- ----------
Net income ............................................ $1,844,000 $3,482,000
Other comprehensive income (loss), net of taxes
Foreign currency translation adjustments ............ (295,000) (198,000)
Unrealized gain on available-for-sale securities .... 1,451,000 2,260,000
Less: Reclassification adjustment for gains
included in net income, net of income tax
effect of $1,205,000 and $2,040,000 in
1998 and 1997, respectively ................... (2,338,000) (3,961,000)
---------- ---------
Other comprehensive income (loss) ..................... (1,182,000) (1,899,000)
---------- ---------
Comprehensive income .................................. $ 662,000 $1,583,000
========== ==========
5. EARNINGS PER SHARE
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings per Share" (SFAS No. 128),
which requires presentation in the Consolidated Statement of Income of both
basic and diluted earnings per share. Earnings per share amounts have been
presented, and where appropriate, restated to conform to the SFAS No. 128
requirements.
The following table sets forth the computation of basic and diluted
earnings per share --
<TABLE>
<CAPTION>
Six Months Ended June 30, Three Months Ended June 30,
--------------------------- --------------------------
1998 1997 1998 1997
---------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
Numerator--
Net income ............................ $1,844,000 $3,482,000 $1,064,000 $1,766,000
========== ========== ========== ==========
Denominator--
Weighted average common shares
outstanding -- Basic ................ 9,366,087 9,542,139 9,383,830 9,543,357
Incremental shares from assumed
conversions of stock options ........ 81,746 69,573 88,747 70,591
---------- ---------- ---------- ----------
Weighted average common shares
outstanding -- Diluted .............. 9,447,833 9,611,712 9,472,577 9,613,948
========== ========== ========== ==========
Basic earnings per share ................ $0.20 $0.36 $0.11 $0.19
Diluted earnings per share .............. $0.20 $0.36 $0.11 $0.18
</TABLE>
6
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Net income for the six months ended June 30 was $1,844,000 in 1998 as
compared to $3,482,000 in 1997.
Consolidated revenues for the six months ended June 30 increased from
$7,633,000 in 1997 to $8,155,000 in 1998. Oil and gas revenues decreased from
$2,842,000 in 1997 to $2,533,000 in 1998, due to declines in the price of crude
oil. Real estate revenues increased from $4,791,000 in 1997 to $5,622,000 in
1998. This increase is due to higher rents and the operations of the properties
acquired in 1997 and 1998.
Total costs and expenses for the six months ended June 30 were $7,312,000
in 1998 compared with $6,830,000 in 1997. Oil and gas production expense
increased by $26,000, real estate operating expenses increased by $637,000,
depreciation, depletion and amortization decreased by $129,000, and general and
administrative expenses decreased by $52,000. The increase in real estate
operating expenses is attributable to the properties acquired in 1997 and 1998.
Gain on sales of marketable securities was $3,543,000 in 1998 as compared
with $6,001,000 in 1997. The Company realized $2.5 million less in gains in 1998
than in 1997.
Interest expense was $1,989,000 in the first six months of 1998 as compared
with $1,819,000 in 1997. This increase in interest expense is attributable to
new first-mortgage indebtness associated with the Company's real estate
acquisitions during the past twelve months.
The provision for income taxes includes Federal, state and Canadian taxes.
Differences between the effective tax rate and the statutory income tax rates
are principally due to foreign resource tax credits in Canada and the dividend
exclusion in the United States.
7
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 1998 the Company had approximately $9.9 million in marketable
securities at cost, with a market value of approximately $11.2 million. The
current ratio at June 30, 1998 was 2.75 to 1, which management considers
adequate for the Company's current business. The Company's working capital was
approximately $11.5 million at June 30, 1998.
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 six months ended June 30, 1998, the Company acquired two real
estate properties from The Trust Company of New Jersey ("TCNJ") at an aggregate
purchase price of approximately $4.4 million. These transactions were financed
by first-mortgage loans from TCNJ. 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.
Net cash provided by (used in) operating activities was ($1,721,000) in
1998 and $412,000 in 1997. The decrease in 1998 was primarily due to changes in
operating assets and liabilities.
Net cash provided by (used in) investing activities was $1,539,000 in 1998
and $4,979,000 in 1997. The variations principally relate to purchases of real
estate properties and transactions in securities. Purchases of real estate
properties amounted to $4,400,000 in 1998 and $1,900,000 in 1997. Proceeds from
sales and redemptions of securities amounted to $10,549,000 in 1998 and
$8,053,000 in 1997. Included in these amounts are redemptions, at par, of
preferred stock of TCNJ, aggregating $1,500,000 in 1998 and $750,000 in 1997.
8
<PAGE>
Net cash provided by (used in) financing activities was ($353,000) in 1998
and ($5,426,000) in 1997. The variation principally relates to the issuance of
long-term debt in connection with the purchases of real estate properties during
the respective quarters as well as principal payments of long-term debt.
The Company believes it has adequate capital resources to fund operations
for the foreseeable future.
"YEAR 2000 ISSUE"
The Company continues to evaluate what effects, if any, Year 2000 issues
may have on its operations. At present, the Company does not believe such issues
will have any material adverse effect in its operations, liquidity or on its
consolidated financial statements.
FOWARD-LOOKING STATEMENTS
This Report on Form 10-Q for the quarter ended June 30, 1998 contains
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. All statements included herein other than
statements of historical fact are forward-looking statements. Although the
Company believes that the underlying assumptions and expectations reflected in
such forward-looking statements are reasonable, it can give no assurance that
such expectations will prove to be correct. The Company's business and prospects
are subject to a number of risks which could cause actual results to differ
materially from those reflected in such forward-looking statements, including
volatility of oil & gas prices, the need to develop and replace reserves, risks
involved in exploration and drilling, uncertainties about estimates of reserves,
environmental risks relating to the Company's oil & gas and real estate
properties, competition, the substantial capital expenditures required to fund
the Company's oil & gas and real estate operations, market and economic changes
in areas where the Company holds real estate properties, interest rate
fluctuations, government regulation, and the ability of the Company to implement
its business strategy.
9
<PAGE>
PART II -- OTHER INFORMATION
Item 6 -- Exhibits and Reports on Form 8-K
- --------- --------------------------------
(a) Exhibits
3.2 Bylaws of the Company, as amended and restated June 11, 1998
27.1 Financial Data Schedule
(b) No Form 8-K was filed during the quarter ended June 30, 1998.
10
<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
(Registrant)
Date: August 13, 1998 By: /s/ S. WILZIG IZAK
-----------------------------------
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
----------
BY-LAWS
----------
AS AMENDED AND RESTATED
THROUGH
JUNE 11, 1998
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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.
<PAGE>
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 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.
-2-
<PAGE>
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 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
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<PAGE>
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 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 seven
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 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, at which time 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.
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<PAGE>
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 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
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<PAGE>
any corporation owned by the Corporation at any meeting of the stockholders of
any such corporation.
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.
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<PAGE>
ARTICLE VI.
Fiscal Year.
The fiscal year of the Corporation shall be as determined by resolution of
the Board of Directors.
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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