SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20459
FORM 10-Q
X Quarterly Report Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
For the quarterly period ended September 30, 1995
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. 0-9919
PSC INC.
(Exact name of registrant as specified in its charter)
New York 16-0969362
(State or other jurisdiction of (I. R. S. Employer ID #)
incorporation or organization)
675 Basket Road, Webster, New York 14580
- ---------------------------------- ------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (716) 265-1600
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 12 months preceding (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 November 3, 1995 there were 9,984,073 shares of common stock outstanding.
<PAGE>
PSC Inc. AND SUBSIDIARIES
INDEX
PAGE NUMBER
PART I FINANCIAL INFORMATION
Item 1 -Financial Statements
Consolidated Balance Sheets as of
September 30, 1995 (Unaudited) and
December 31, 1994......................................3 - 4
Consolidated Statements of Operations and
Retained Earnings for the three
and nine months ended:
September 30, 1995 (Unaudited) and
September 30, 1994 (Unaudited) ........................5 - 6
Consolidated Statements of Cash Flows
for the nine months ended:
September 30, 1995 (Unaudited) and
September 30, 1994 (Unaudited) ............................7
Notes to Consolidated Financial
Statements (Unaudited) ...............................8 - 10
Item 2 -Management's Discussion and Analysis of
Financial Condition and Results of
Operations ..........................................11 - 13
PART II OTHER INFORMATION
Item 1 -Legal Proceedings ...............................................14
Item 2 -Changes in Securities ...........................................14
Item 3 -Defaults upon Senior Securities .................................14
Item 4 -Submission of Matters to a Vote of Security Holders .......... 14
Item 5 -Other Information ...............................................14
Item 6 -Exhibits and Reports on Form 8-K ...........................16 - 73
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1: Financial Statements
PSC Inc. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(All amounts in thousands)
Sept.30, 1995 Dec.31, 1994
------------- ------------
(Unaudited)
ASSETS
CURRENT ASSETS
Cash and short-term investments ........................ $ 6,439 $ 2,720
Accounts receivable, net of allowance
for doubtful accounts of $439
and $576, respectively .............................. 16,434 13,139
Inventories ............................................ 10,794 6,446
Prepaid expenses and other ............................. 1,022 1,148
-------- --------
TOTAL CURRENT ASSETS ................................... 34,689 23,453
INVESTMENTS ............................................ 4,215 4,234
PROPERTY, PLANT AND EQUIPMENT, net
of accumulated depreciation of $3,664
and $3,327, respectively ....................... 21,271 16,459
DEFERRED TAX ASSETS .................................... 1,649 1,950
INTANGIBLE AND OTHER ASSETS, net of accumulated
amortization of $2,035 and $1,265, respectively ...... 9,246 6,667
-------- --------
TOTAL ASSETS ........................................... $ 71,070 $ 52,763
======== ========
SEE ACCOMPANYING NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
PSC Inc. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(All amounts in thousands)
(Continued)
Sept.30, 1995 Dec. 31, 1994
(Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt ................ $ 129 $ 300
Accounts payable ................................. 8,876 7,698
Accrued expenses ................................. 5,601 4,738
Accrued payroll and commissions .................. 1,549 1,570
Accrued acquisition related
restructuring costs ............................ 369 1,133
-------- --------
TOTAL CURRENT LIABILITIES ...................... 16,524 15,439
LONG-TERM DEBT, less current maturities .......... 525 13,309
OTHER LONG-TERM LIABILITIES ...................... 1,174 1,782
SHAREHOLDERS' EQUITY
Common stock, par value $.01;
25,000 authorized, 9,958 and
7,472 shares issued and outstanding ........... 100 75
Additional paid-in capital ....................... 45,647 20,288
Retained earnings ................................ 7,280 2,099
Cumulative translation adjustment ................ 57 8
Less treasury stock, 39 shares
repurchased, at cost ............................ (237) (237)
-------- --------
TOTAL SHAREHOLDERS' EQUITY ..................... 52,847 22,233
-------- --------
TOTAL LIABILITIES AND SHAREHOLDERS'
EQUITY ...................................... $ 71,070 $ 52,763
======== ========
SEE ACCOMPANYING NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
PSC Inc. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND RETAINED EARNINGS
(All amounts in thousands, except per share data)
(Unaudited)
Three Months Ended
September 30
1995 1994
NET SALES ................................................ $22,483 $13,220
COST OF SALES ............................................ 13,588 7,240
------- -------
Gross profit .................................... 8,895 5,980
OPERATING EXPENSES
Engineering, research and development ........... 1,238 983
Selling, general and administrative ............. 5,620 3,713
------- -------
Income from operations ..................... 2,037 1,284
INTEREST AND OTHER INCOME ................................ 429 118
------- -------
Income before provision for income taxes ... 2,466 1,402
INCOME TAX PROVISION ..................................... 900 492
------- -------
NET INCOME ............................................... $ 1,566 $ 910
======= =======
NET INCOME PER COMMON AND COMMON
EQUIVALENT SHARE ................................. $ .15 $ .12
======= =======
WEIGHTED AVERAGE NUMBER OF
COMMON AND COMMON EQUIVALENT
SHARES OUTSTANDING:
Common shares ............................................ 9,912 7,351
Common equivalent shares ................................. 831 434
------- -------
10,743 7,785
======= =======
RETAINED EARNINGS:
Retained earnings, beginning of period .......... $ 5,714 $ 4,444
Net income ...................................... 1,566 910
------- -------
Retained earnings, end of period ................ $ 7,280 $ 5,354
======= =======
SEE ACCOMPANYING NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
PSC Inc. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND RETAINED EARNINGS
(All amounts in thousands, except per share data)
(Unaudited)
Nine Months Ended Sept. 30
1995 1994
NET SALES .................................................. $66,060 $43,078
COST OF SALES .............................................. 37,355 22,775
------- -------
Gross profit ...................................... 28,705 20,303
OPERATING EXPENSES
Engineering, research and development ............. 3,455 2,790
Selling, general and administrative ............... 17,532 11,568
------- -------
Income from operations ....................... 7,718 5,945
INTEREST AND OTHER INCOME ................................. 556 129
------- -------
Income before provision for income taxes ..... 8,274 6,074
INCOME TAX PROVISION ....................................... 3,093 2,207
------- -------
NET INCOME ................................................. $ 5,181 $ 3,867
======= =======
NET INCOME PER COMMON AND COMMON
EQUIVALENT SHARE
Primary ........................................... $ .52 $ .51
======= =======
Fully diluted ..................................... $ .53 $ .50
======= =======
WEIGHTED AVERAGE NUMBER OF
COMMON AND COMMON EQUIVALENT
SHARES OUTSTANDING:
Primary:
Common shares .............................................. 9,122 7,293
Common equivalent shares ................................... 779 307
------- -------
9,901 7,600
======= =======
Fully Diluted:
Common shares .............................................. 9,122 7,293
Common equivalent shares ................................... 678 434
------- -------
9,800 7,727
======= =======
RETAINED EARNINGS:
Retained earnings, beginning of period ..................... $ 2,099 $ 1,487
Net income ................................................. 5,181 3,867
------- -------
Retained earnings, end of period ........................... $ 7,280 $ 5,354
======= =======
SEE ACCOMPANYING NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
PSC INC. and SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(All amounts in thousands)
(Unaudited)
Nine Months
Ended Sept. 30
1995 1994
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income ........................................... $ 5,181 $ 3,867
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation and amortization ................... 1,983 1,496
Gain on disposition of assets ................... (161) --
Decrease (increase) in assets:
Accounts receivable ......................... (3,780) (1,707)
Inventories ................................. (4,385) 520
Prepaid expenses and other .................. 126 (115)
Deferred tax assets ......................... 301 --
Increase (decrease) in liabilities:
Accounts payable ..................................... 1,178 (781)
Accrued expenses ..................................... 863 1,475
Accrued payroll and commissions ...................... (21) --
Accrued acquisition related restructuring costs ...... (891) --
------ ------
Net cash provided by operating activities ..... 394 4,755
------ ------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures ................................... (6,083) (8,028)
Additions to intangible assets ......................... (2,495) (28)
Purchase of investments, net ........................... -- (1,345)
------ ------
Net cash (used in) investing activities .... (8,578) (9,401)
------ ------
CASH FLOWS FROM FINANCING ACTIVITIES:
Additions to long-term debt .......................... 1,270 5,134
Principal repayments of long-term debt ............... (14,240) (118)
Payment of other long term liabilities ............... (559) --
Purchase of treasury shares .......................... -- (46)
Exercise of stock options and sale of stock .......... 24,709 217
Tax benefit from exercise or early disposition
of certain stock options ......................... 674 --
------- -------
Net cash provided by financing activities 11,854 5,187
------- -------
FOREIGN CURRENCY TRANSLATION ..................... 49 2
NET INCREASE IN CASH
AND SHORT-TERM INVESTMENTS .............. 3,719 543
CASH AND SHORT-TERM INVESTMENTS:
Beginning of period ..................... 2,720 6,221
------- -------
End of period ........................... $ 6,439 $ 6,764
======= =======
SEE ACCOMPANYING NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
PSC Inc. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED September 30, 1995 and 1994
(All amounts in thousands, except per share data)
(Unaudited)
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying consolidated financial statements have been prepared by
the Company without audit. In the opinion of management, these financial
statements include all adjustments necessary to present fairly the
Company's financial position as of September 30, 1995, and the results of
operations and its cash flows for the nine months ended September 30, 1995
and 1994. The results of operations for the three months and nine months
ended September 30, 1995 are not necessarily indicative of the results to
be expected for the full year.
Certain information and disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted. The accompanying financial
statements should be read in conjunction with the financial statements and
notes thereto included in the Company's December 31, 1994 annual report on
Form 10-K.
NET INCOME PER COMMON AND COMMON EQUIVALENT SHARE
Net income per common and common equivalent share is based on the weighted
average number of common and common equivalent shares (stock options
determined under the treasury stock method) outstanding during the period.
(2) INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out method)
or market. Elements of cost include materials, labor, and overhead and
consist of the following:
September 30, 1995 December 31, 1994
------------------ -----------------
Raw materials $ 8,355 $4,337
Work-in-process 1,568 1,605
Finished goods 871 504
-------- --------
$10,794 $6,446
======= ======
<PAGE>
PSC Inc. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED September 30, 1995 and 1994
(All amounts in thousands, except per share data)
(Unaudited)
(3) INVESTMENTS
The Company has classified its investment securities as held to maturity
in accordance with Statement of Financial Accounting Standards No. 115
(SFAS 115) "Accounting for Certain Investments in Debt and Equity
Securities." SFAS 115 requires debt and equity securities to be classified
into one of three categories: held to maturity, available for sale or
available for trading. Securities held to maturity are limited to debt
securities that the holder has the positive intent and the ability to hold
to maturity; these securities are reported at amortized cost.
At September 30, 1995, the investment portfolio was classified as follows:
Unrealized
Fair Holding Amortized
Value (Losses) Cost
Municipal Obligations:
After 1 year through 5 years $2,031 ($26) $2,057
After 5 years through 10 years 2,118 (40) 2,158
----- ---- -----
$4,149 ($66) $4,215
====== ===== ======
(4) ACCRUED EXPENSES
Accrued expenses consist of the following:
Sept. 30, 1995 Dec. 31, 1994
-------------- -------------
Accrued warranty cost $1,340 $ 1,250
Accrued royalty 1,712 1,332
Accrued income taxes 748 765
Other miscellaneous accrued expenses 1,801 1,391
------- --------
Total accrued expenses $5,601 $ 4,738
====== =======
(5) LONG-TERM DEBT
Long-term debt consists of the following:
Sept. 30, 1995 Dec. 31, 1994
--------------- --------------
Term loan $ -- $ 6,800
Construction loan -- 6,219
Capital lease obligations 654 590
------- --------
654 13,609
Less: current maturities 129 300
------- -------
$ 525 $13,309
====== =======
<PAGE>
PSC Inc. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED September 30, 1995 and 1994
(All amounts in thousands, except per share data)
(Unaudited)
(6) SHAREHOLDERS' EQUITY
Changes in the status of options under the Company's stock option plans
are summarized as follows:
Jan. 1, 1995 Jan. 1, 1994
to to
Sept. 30, 1995 Dec. 31, 1994
----------------- --------------
Options outstanding at
beginning of period ............................ 2,299 1,320
Options granted .................................. 105 1,354
Options exercised ................................ (173) (226)
Options forfeited/canceled ....................... (25) (149)
------ ------
Options outstanding at
end of period .................................. 2,206 2,299
====== ======
Number of options at end of period:
Exercisable ................................... 1,518 1,133
Available for grant ........................... 1,596 1,676
Average price of options
outstanding at end of period ................... $ 8.36 $ 8.02
During the nine month period ended September 30, 1995, employees purchased
approximately 10 shares at an average price of $9.16 per share under the
provisions of the Company's 1990 Employee Stock Purchase Plan.
<PAGE>
Item 2: Management's Discussion and Analysis of Financial Condition
and Results of Operations
The following discussion and analysis should be read in conjunction with the
Consolidated Financial Statements and Notes to Consolidated Financial Statements
of the Company's December 31, 1994 annual report on Form 10-K.
Results of Operation: Three Months Ended September 30, 1995 and 1994
- ---------------------
Net Sales. Net sales during the three months ended September 30, 1995 increased
$9.3 million or 70% compared with the same period in 1994. The increase is
primarily due to increased sales volume of the Company's handheld products and
the inclusion of the LazerData product group's line of fixed position scanners
acquired in December 1994. Geographically, domestic net sales increased by 66%
and international net sales increased by 88%. International net sales
represented approximately 20% of net sales in the third quarter of 1995 versus
18% of net sales in the third quarter of 1994.
Gross Profit. Gross profit during the three months ended September 30, 1995
increased $2.9 million or 49% compared with the same period in 1994. As a
percentage of sales, gross profit decreased from 45.2% to 39.6%. The decrease in
gross profit percentage is due to a change in the sales mix of the Company's
handheld products, lower scan engine average selling prices associated with
higher OEM volume purchases, and the inclusion of the LazerData product group.
LazerData's operating results reflect lower gross profit margins than historical
gross profit margins of the Company. The Company expects to achieve future
operating synergies, particularly in the areas of purchasing and manufacturing
automation of components, to lower LazerData's manufacturing costs. However,
there can be no assurance that the Company will be able to achieve future
operating synergies at LazerData.
Engineering, Research and Development. Engineering, Research and Development
(ER&D) expenses increased $0.3 million or 26%, as compared to the same period in
1994. As a percentage of sales, ER&D was 5.5% in the third quarter of 1995
versus 7.4% in the third quarter of 1994. The dollar increases were primarily
related to the Company's new product development for its handheld laser scanner
products and its LazerData product group's fixed position scanners.
Selling, General and Administrative. Selling, General and Administrative (SG&A)
expenses increased $1.9 million or 51%, as compared to the same period in 1994.
However, as a percentage of sales, SG&A was 25% in 1995 and 28% in 1994. The
increased dollar amount is primarily due to increased promotion and advertising
expenses to support a higher revenue base and higher royalty expenses related to
sales volume.
Acquisition Related Restructuring and Other Costs. During the 1994 fourth
quarter, the Company recognized a pre-tax restructuring charge of $3.0 million.
The charge related to the integration of the Company's existing fixed position
scanner product lines with those of LazerData, which was acquired in December
1994. The restructuring program in part, provided for employee severance and
benefit costs for the elimination of approximately 12 manufacturing and
engineering support positions. As of September 30, 1995, all positions targeted
in the restructuring program have been eliminated. The amount of the
restructuring accrual at September 30, 1995 was approximately $0.9 million.
Restructuring actions are expected to be substantially completed by the end of
1995. There have been no re-allocations and/or re-estimates to date.
<PAGE>
Provision for Income Taxes. Provision for income taxes increased substantially
due to the increase in pre-tax net income. The Company's effective tax rate was
36.5% in 1995 versus 35.1% in 1994. The 1994 effective tax rate reflects the
utilization of net operating losses which are not available in 1995.
Results of Operation: Nine Months Ended September 30, 1995 and 1994
- --------------------
Net Sales. Net sales during the nine months ended September 30, 1995 increased
$23.0 million or 53% compared with the same period in 1994. The increase is
primarily due to increased sales volume of the Company's handheld products and
the inclusion of the recently acquired LazerData product group's line of fixed
position scanners. Geographically, domestic net sales increased by 47% and
international net sales increased by 82%. International net sales represented
approximately 21% of net sales in the first nine months of 1995 versus 18% of
net sales in the first nine months of 1994.
Gross Profit. Gross profit during the nine months ended September 30, 1995
increased $8.4 million or 41% compared with the same period in 1994. As a
percentage of sales, gross profit decreased from 47.1% to 43.5%. The decrease in
gross profit percentage is due to a change in the sales mix of the Company's
handheld products, lower scan engine average selling prices associated with
higher OEM volume purchases, and the inclusion of the LazerData product group.
Engineering, Research and Development. Engineering, Research and Development
(ER&D) expenses increased $0.7 million or 24%, as compared to the same period in
1994. As a percentage of sales, ER&D was 5.2% in the first nine months of 1995
versus 6.5% in the first nine months of 1994. The dollar increases were
primarily related to the Company's new product development for its handheld
laser scanner products and its LazerData product group's fixed position
scanners.
Selling, General and Administrative. Selling, General and Administrative (SG&A)
expenses increased $6.0 million or 52%, as compared to the same period in 1994.
However, as a percentage of sales, SG&A was 26.5% in 1995 and 26.9% in 1994. The
increased dollar amount is primarily due to higher patent related expenses,
higher royalty expenses related to sales volume, and increased promotion and
advertising expenses to support a higher revenue base. The increase in patent
related expenses was due to the increased number of patent applications being
filed and an increase in litigation expenses related to patent infringement
lawsuits.
Provision for Income Taxes. Provision for income taxes increased substantially
due to the increase in pre-tax net income. The Company's effective tax rate was
37.4% in 1995 and 36.3% in 1994. The 1994 effective tax rate reflects the
utilization of net operating losses which are not available in 1995.
<PAGE>
Liquidity and Capital Resources
The Company utilizes a number of measures of liquidity, including the following:
Sept. 30, 1995 Sept. 30, 1994
Cash provided by operations $ 394 $ 4,755
Working capital $18,165 $10,131
Long-term debt to capital 1.0% 20.8%
(Long-term debt to long-term debt plus equity)
Cash provided by operations decreased $4.4 million during the first nine months
of 1995 versus the first nine months of 1994 primarily due to increased accounts
receivables and inventories. Working capital increased $10.2 million from
December 31, 1994 primarily due to an increase of cash and short-term
investments ($3.7 million), accounts receivable ($3.3 million), and inventories
($4.3 million), offset, in part, by increases to accounts payable ($1.2
million). The increase in cash and short-term investments is principally the
result of the Company's secondary stock offering completed during the period.
The increases in accounts receivable, inventories, and accounts payable are due
to the higher sales and operating levels.
Property, plant and equipment expenditures totaled $6.1 million for the nine
months ended September 30, 1995 compared with $8.0 million for the nine months
ended September 30, 1994. The 1995 and 1994 expenditures primarily related to
the construction costs of the recently completed headquarters, manufacturing and
engineering facility. The 1995 expenditures also include additional
manufacturing equipment to increase capacity and upgrades to its data processing
systems.
During the nine months ended September 30, 1995, the Company completed its
secondary stock offering. The Company sold 2.3 million common shares at a price
of $11.00 per share. The net proceeds to the Company from the offering were
approximately $23.7 million. The Company used approximately $7.1 million of the
net proceeds from the offering to repay in full the outstanding indebtedness
under the Company's construction loan used to finance its new headquarters,
manufacturing and engineering facility. The Company also used approximately $6.8
million of the net proceeds from the offering to repay in full the outstanding
indebtedness under the Company's term loan that was used to finance the
acquisition of LazerData in December 1994.
The long-term debt to capital percentage decreased from 37.4% at December 31,
1994 to 1.0% at September 30, 1995. The decrease is due to the repayment in full
of the Company's construction loan and term loan, as discussed above.
At September 30, 1995, liquidity immediately available to the Company consisted
of cash and short-term investments of approximately $6.4 million. In addition,
in September 1995 the Company secured a new revolving loan agreement with
Manufacturers and Traders Trust Company pursuant to which the bank has agreed to
provide a line of credit totaling $20.0 million. It replaced the Company's
previous line of credit facility that totaled $5.0 million. The agreement
expires in September 2000. As of September 30, 1995, the Company had no
outstanding borrowings under this agreement. The Company believes that it has
adequate liquidity for the next twelve months to meet its current and
anticipated operating needs from the results of its operations, existing credit
facilities and working capital. As part of its overall business strategy, the
Company may from time to time evaluate other acquisition opportunities. The
funding for these future transactions, if any, may require the Company to obtain
additional sources of financing.
<PAGE>
Part II: OTHER INFORMATION
Item 1: Legal Proceedings:
On September 21, 1994, the Company filed a patent infringement lawsuit
in the United States District Court for the Western District of New
York, located in Rochester, New York, alleging that certain products of
Accu-Sort infringed the Company's patent for an optical scanning device
for detecting bar-codes, United States Letters Patent 4,652,750 (the
"750 Patent"). The suit sought an injunction to prevent further
infringement and also sought damages to compensate for past
infringement. Accu-Sort answered the complaint, asserting defenses of
non-infringement and invalidity, filed a counterclaim seeking a
declaratory judgment that the 750 Patent was invalid and not infringed,
and moved for summary judgment of non-infringement. At the same time,
the Company moved for summary judgment of infringement. On October 13,
1995, the Court granted Accu-Sort's motion for summary judgment of
non-infringement and denied the Company's motion for summary judgment
of infringement. The Company is appealing that decision.
On July 1, 1992, the Company filed two patent infringement lawsuits:
one against Spectra-Physics Scanning Systems, Inc. ("Spectra-Physics")
relating to the manufacture and sale of its SP300 and SP400 models and
one against Metrologic Instruments, Inc. ("Metrologic") relating to the
manufacture and sale of its 900 Series, in each case in the United
States District Court for the Western District of New York. The Company
alleges that each of Spectra-Physics and Metrologic has infringed the
Company's 750 Patent and seeks injunction enjoining Spectra-Physics and
Metrologic from further infringement and damages to compensate it for
such acts of infringement. Spectra-Physics and Metrologic have each
filed answers alleging invalidity, non-infringement and
unenforceability of the 750 Patent. Cross-motions for summary judgment
have been filed in the Spectra-Physics action and are pending. In an
order filed on October 31, 1995, the Court stayed all proceedings in
the Metrologic action pending final resolution of the Accu-Sort action
referred to in paragraph one of this section.
The matter set forth in paragraph 3 of Item 3 ("Legal Proceedings") of
the Company's Annual Report on Form 10-K for the fiscal period ended
December 31, 1994 is incorporated by reference.
Item 2: Changes in Securities: None
Item 3: Defaults upon Senior Securities: None
Item 4: Submission of Matters to a Vote of Security Holders:
Item 5: Other Information: None
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits:
10.1 Credit Facility Agreement dated September 28, 1995 between
Manufacturers and Traders Trust Company and the Company.
10.2 Amended and Restated Employment Agreement between the Company
and L. Michael Hone, as of September 14, 1995.
(b) Reports on Form 8-K: None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PSC Inc.
DATE: November 7, 1995 By: /s/ L. Michael Hone
---------------- -------------------
L. Michael Hone, Chairman,
Chief Executive Officer, and President
DATE: November 7, 1995 By: /s/ William J. Woodard
---------------- ---------------------
William J. Woodard
Vice President, Finance and Treasurer
(Principal Financial Officer)
DATE: November 7, 1995 By: /s/ Scott D. Deverell
----------------- ---------------------
Scott D. Deverell
(Principal Accounting Officer)
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
This Amended and Restated Credit Facility Agreement is made
September 28, 1995 by and between MANUFACTURERS AND TRADERS TRUST COMPANY
("Bank"), a domestic corporation with an office and principal place of business
located at One M&T Plaza, Buffalo, New York 14240 and PSC INC. ("Company"), a
domestic corporation with an office and principal place of business located at
675 Basket Road, Webster, New York 14580.
R E C I T A L S:
A. Company and Bank are parties to a Credit Facility Agreement
dated December 21, 1994 (as in effect on the date hereof, the "Existing Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by making of loans) by the Bank to the Company.
B. The parties hereto wish to amend and restate the Existing
Credit Agreement in its entirety to provide for, among other things, an increase
in the amount of availability under the revolving credit established thereunder,
a decrease in the pre-default interest rate applicable to borrowings outstanding
under the revolving line of credit, an extension of the revolving line of
credit's expiration date and deletion of the term loan therefrom as it has been
repaid in full, all as more specifically set forth herein.
C. As of the date hereof, there are no revolving loans
outstanding pursuant to the Existing Agreement.
P R O V I S I O N S :
NOW, THEREFORE, in consideration of the promises and obligations set
forth in this Agreement, and the execution of this Agreement by the other, Bank
and Company agree as follows:
<PAGE>
SECTION 1
Definitions
As used in this Agreement and the Documents (as both terms are
hereinafter defined) the following words and terms have the following meanings:
1.1 "Affiliate" means any Entity which directly or indirectly, or
through one or more intermediaries, Controls or is Controlled By or is Under
Common Control with Company or any Subsidiary.
1.2 "Agreement" means this Amended and Restated Credit Facility
Agreement, as extended, supplemented, modified or amended from time to time.
1.3 "Authorized Persons" means those persons listed in Schedule 1.3,
each of whom are authorized to borrow money from Bank under the terms of the
Revolving Credit.
1.4 "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a legal holiday in New York State and if the legal day
relates to a LIBOR Loan, an Interest Period or notice with respect to any LIBOR
Loan, a day on which dealings in dollar deposits are also carried on in the
London Interbank Market and banks are open for business in London.
1.5 "Capital Assets" means such items as are properly carried as fixed
assets, plants and equipment on the balance sheet of the Entity to which they
relate in accordance with Generally Accepted Accounting Principles.
1.6 "Capital Expenditure" means any expenditure to purchase a Capital
Asset (including capital leases), any expenditure which materially adds to the
value of a Capital Asset and/or appreciably prolongs the life of a Capital
Asset, in each case to the extent charged to a capital account in accordance
with Generally Accepted Accounting Principles Consistently Applied.
1.7 "Cash Flow" means for the 12 month period ending on the last day of
each Fiscal Year for the Company and the Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) Net Income plus
depreciation and amortization, less Capital Expenditures (other than capital
expenditures financed with purchase money indebtedness payable with a maturity
of longer than one year), less dividends (in cash, property or other
obligations), or distributions or other payments paid, made, or declared, or set
apart for sinking or analogous fund or for the account of stock, less amounts
paid for the repurchase of stock, warrants or other securities.
<PAGE>
1.8 "Cash Flow Coverage" means for the referenced period,
Cash Flow divided by Current Maturities of Long Term Debt.
1.9 "Collateral" means any interest in real property and/or in
fixtures, and/or in personal property, tangible or intangible (including all
federal and state licenses to the extent permitted by law), that secures payment
of the Indebtedness and/or performance of any obligation of the Company or any
Subsidiary to Bank under this Agreement and/or under the Documents or any of
them and/or under any other agreement executed by the Company and/or any
Subsidiary at any time in favor of Bank.
1.10 "Consistent Basis" or "Consistently Applied" means, in reference
to the application of GAAP, that the accounting principles observed in the
current period are comparable in all material respects to those applied in
preparation of the financial statements referred to in Section 3.12.
1.11 "Controls", (including the terms "Controlled By" or "Under Common
Control"), means but is not limited to the beneficial ownership (as defined in
Rule 13(d) promulgated by the Securities Exchange Commission pursuant to Section
13(d) of the Securities Exchange Act of 1934, as amended) of 20% or more of the
outstanding shares of the capital stock of any corporation having any voting
power for the election of directors, whether or not at the same time stock of
any other class or classes has or might have voting power by reason of the
happening of any contingency) or 20% or more of any equity interest in any
non-corporate entity, or any other interest through which the power to direct
the management or policies of a person may be exercised.
1.12 "Current Assets" means as of the date of determination, such
assets of the Company and the Subsidiaries as shall be (determined on a
consolidated basis without duplication in accordance with Generally Accepted
Accounting Principles) on a Consistent Basis after deduction of all applicable
reserves.
1.13 "Current Liabilities" means as of the date of determination, such
liabilities of the Company and the Subsidiaries as shall be determined on a
consolidated basis without duplication in accordance with Generally Accepted
Accounting Principles on a Consistent Basis, including, without limitation, all
obligations payable on demand or within one year after the date on which the
determination is made, and final maturities and sinking fund payments required
to be made within one year after the date on which the determination is made,
but excluding all such liabilities or obligations which are renewable or
extendable at the option of the Company to a date more than one year from such
date.
<PAGE>
1.14 "Current Maturities of Long Term Debt" means the sum of all
scheduled and unscheduled principal payments (or sinking fund payments) due to
be paid in the next Fiscal Year to reduce (or to be used in the future to
reduce) the long term liabilities (i.e., liabilities with a maturity of more
than one year) of the Company and the Subsidiaries.
1.15 "Documents" means all papers and instruments, agreements and other
writings executed by the Company and/or any Subsidiary in connection with the
Existing Credit Agreement and/or this Agreement, including but not limited to
the Note, each Guaranty and each Subordination Agreement, all as executed,
supplemented, modified or amended from time to time, and all Officer's
Certificates.
1.16 "Effective Date" means the first date on which the conditions
precedent set forth in Section 4 below are met to Bank's satisfaction.
1.17 "Entity" means any person, partnership, corporation, joint
venture, governmental agency, or business association of any kind.
1.18 "Environmental Laws" means all Federal, state, and local laws,
statutes, ordinances, rules and regulations relating to the environment, as well
as judicial and administrative rulings, regulations and interpretations relating
thereto, including but not limited to those relating to Hazardous Substances.
1.19 "Environmental Permits" means all licenses, permits, approvals and
consents required by any applicable Environmental Laws, and all judicial and
administrative orders applicable to or binding upon the Company and/or upon any
of the Subsidiaries that have been issued in connection with its ownership,
lease or use of the Real Property or storage, treatment, generation, processing
or disposal of Hazardous Substances thereon.
1.20 "ERISA" means Title IV of the Employee Retirement Income Security
Act of 1974 ("ERISA"), as amended from time to time.
1.21 "ERISA Affiliate" means any corporation or trade or business that
is a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the IRC) as the Company or is under common control (within the
meaning of Section 414(c) of the IRC) with the Company.
1.22 "Eurocurrency Reserve Rate" means, for any LIBOR Loan for any
Interest Period therefor, the daily average of the stated maximum rate
(expressed as a decimal) at which reserves (including any marginal,
supplemental, or emergency reserves) are required to be maintained during such
Interest Period (or any part thereof)
<PAGE>
under Regulation D by the Bank against "Eurocurrency liabilities" (as such term
is used in Regulation D), but without the benefit or credit of proration,
exemptions, or offsets that might otherwise be available to the Bank from time
to time under Regulation D. Without limiting the effect of the foregoing, the
Eurocurrency Reserve Rate shall reflect any other reserves required to be
maintained by the Bank against any category of liabilities that includes
deposits by reference to which the LIBOR Rate for LIBOR Loans is determined, or
any category of extension or credit or other assets that include LIBOR Loans.
1.23 "Existing Agreement" has the meaning assigned to such
phrase in the recitals to this Agreement.
1.24 "Existing Note" means the $5,000,000 Revolving Credit Note dated
December 21, 1994, executed by Company in favor of Bank pursuant to the Existing
Agreement.
1.25 "Event of Default" means an Event of Default as described
under Section 7 hereof.
1.26 "Fiscal Year" means the 12 month period beginning on January 1, of
each calendar year and ending on December 31st of that year.
1.27 "Generally Accepted Accounting Principles" or "GAAP" means those
principles, methods and practices set forth in Opinions and Pronouncements of
the Accounting Principles Board and the Financial Accounting Standards Board of
the American Institute of Certified Public Accountants.
1.28 "Guarantors" means PSC Bar Code Ltd., PSC Scanning Systems, Inc.,
The PSC Foreign Sales Corporation, LazerData Holding Corp., LazerData
Corporation and Instaread Corporation.
1.29 "Guaranty" means any agreement or instrument which is a
continuing guaranty of payment of the Indebtedness in an unlimited
amount, whenever and wherever arising.
1.30 "Hazardous Substances" as used in this Agreement includes all
items set forth in 42 U.S.C. ss.9601(14), and petroleum and petroleum products,
natural gas, explosives, radon, asbestos, polychlorinated biphenyl and
pesticides (except to the extent that a pesticide registered under 7 U.S.C.
ss.136(a)-(y) is normally applied).
1.31 "Increased Cost" means any additional amounts sufficient to
compensate Bank for any increased cost of funding or maintaining a LIBOR Loan as
a result of any law (other than changes in tax laws imposed on the overall net
income or similar measures of profitability of Bank) or guideline adopted
pursuant to or arising
<PAGE>
out of the July, 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Conversions of Capital Measurement
and Capital Standards", or the adoption after the date of this Agreement of any
law or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or the administration of any of the foregoing
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by Bank or Bank's
holding company, if any, with any request or direction regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, which has or would have the effect of reducing the
rate of return of Bank's capital or the capital of Bank's holding company, if
any, as a direct consequence of the transactions contemplated by this Agreement
and related documents and agreements, the existence of Bank's commitment to
provide LIBOR Loans or the Revolving Credit to a level below that which Bank or
Bank's holding company, if any, would have achieved but for such adoption,
change or compliance (taking into consideration Bank's policies on capital
adequacy).
1.32 "Indebtedness" means any and all monetary obligations owed by
Company and/or any Subsidiary to Bank under this Agreement, and/or under any
Document, and/or under any other agreement, note or obligation, whether
previously executed by Company and/or any Subsidiary in favor of Bank or to be
executed in the future by Company and/or any Subsidiary in favor of Bank,
whether such monetary obligations are now existing or hereafter incurred,
matured or unmatured, direct or contingent, secured or unsecured and regardless
of whether they are represented by this Agreement, a Note, other instrument,
bond, guaranty, other evidence of indebtedness or otherwise, including any
extensions, renewals or changes in the form thereof, whether from time to time
reduced and thereafter increased or entirely extinguished and thereafter
reincurred.
1.33 "Insolvency" means with respect to any Entity on a particular
date, that on such date: (i) the fair value of the assets of such Entity is less
than the total amount of liabilities, including, without limitation, contingent
liabilities of such Entity; or (ii) the present fair salable value of the assets
of such Entity is less than the amount that will be required to pay the probable
liability of such Entity on its debts as they become absolute and matured, or
such other liabilities, contingent obligations and other commitments as they
mature in the normal course of business; or (iii) such Entity intends to, and/or
believes that it will incur debts or liabilities beyond such Entity's ability to
pay as such debts and liabilities mature; or (iv) such Entity is engaged in
business or in a transaction for which such Entity's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice
<PAGE>
in the industry in which such Entity is engaged. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
1.34 "Interest Period" means, with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made or converted from a Prime
Loan, or the last day of the immediately preceding Interest Period for a LIBOR
Loan, and ending on the numerically corresponding day in the first, second, or
third calendar month thereafter, as the Company may select as provided in
Section 2.4, except that each Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing, (i) if any Interest Period for
any Revolving Credit Loan would otherwise end after the Revolving Credit
Expiration Date, such Interest Period shall end on the Revolving Credit
Expiration Date; (ii) if any Interest Period for any LIBOR Loan would otherwise
end after the Termination Date, such Interest Period shall end on the
Termination Date; (iii) each Interest Period that would otherwise end on a day
which is not a Business Day, shall end on the next succeeding Business Day (or,
if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and (iv) notwithstanding clauses
(i), (ii) and (iii) above, no Interest Period shall have a duration of less than
one month without Bank's consent and, if the Interest Period for any LIBOR Loan
would otherwise be a shorter period, such Loan shall not be available hereunder
for such period.
1.35 "IRC" means that the Internal Revenue Code of 1986, as
amended from time to time.
1.36 "LIBOR Base Rate" means, with respect to any Interest Period for a
LIBOR Loan, the rate per annum equal to the quotient obtained by dividing (and
rounded upward to the nearest 1/100 of 1%) (i) the LIBOR Rate (as determined
below) on a date two Business Days prior to the beginning of an Interest Period
("Interest Setting Date"), at which deposits in United States Dollars for a
period and in an amount, comparable to the Interest Period and the principal
amount of the LIBOR Loan are offered to prime banks in the London Interbank
market at 11:00 a.m. (London time) on that day ("Reference Bank") by (ii) a
percentage equal to 100% minus the Eurocurrency Reserve Rate. The LIBOR Rate
shall be determined by the Bank on the Interest Setting Date from Telerate Page
3750 as of 11:00 a.m. (London time) on such date, or if such
<PAGE>
page or such service ceases to display such information, from such other service
or method as Bank may select. The LIBOR Rate shall be further adjusted on the
first day of each Interest Period to reflect any Increased Cost.
1.37 "LIBOR Loan" means a Loan, the interest rate on which is
determined on the basis of the LIBOR Base Rate plus the applicable margin.
1.38 "Lien" means any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind with respect to the referenced real or personal
property (whether recorded or unrecorded), or any property that is owned under
or pursuant to a conditional sales agreement, capital lease or other title
retention agreement (other than an operating lease).
1.39 "Margin Stock" means "margin stock" within the meaning of Federal
Reserve Board Regulations U and X.
1.40 "Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been, or must be made by the
Company or an ERISA Affiliate and which is covered by Title IV of ERISA.
1.41 "Net Income" means the net income of the Company and the
Subsidiaries for the relevant period determined on a consolidated basis without
duplication in accordance with GAAP Consistently Applied (but excluding, in any
event extraordinary and unusual items of revenue or net earnings and losses,
revenues or expenses attributable to any Entity or assets acquired through any
method during the relevant period and any income or loss attributable to equity
of Affiliates).
1.42 "Officers' Certificate" means a certificate signed by the
President or Chief Financial Officer of the Entity required to provide such
certificate and by one other officer of such Entity wherein such officers
certify to the truth of certain statements made therein.
1.43 "Plan" means an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate that is covered by Title IV of
ERISA, other than a Multiemployer Plan.
1.44 "Post-Default Rate" means a floating rate per annum equal to 1%
plus the Prime Rate as in effect from time to time.
1.45 "Prime Loan" means a Loan, the interest rate on which is
determined on the basis of the Prime Rate plus the applicable margin.
<PAGE>
1.46 "Prime Rate" means the rate of interest from time to time
announced by the Bank as its prime commercial lending rate.
1.47 "Real Property" means all real property owned by, leased
or occupied by the Company and/or any Subsidiary.
1.48 "Revolving Credit" means the revolving line of credit
established under Section 2.1 below
1.49 "Revolving Credit Availability" shall have the meaning
given to such phrase in Section 2.2.1.
1.50 "Revolving Credit Expiration Date" means September 30,
2000 or if earlier, the Termination Date.
1.51 "Revolving Credit Loan" or "Loan" means a Loan made under the
Revolving Credit, which may be a Prime Loan or LIBOR Loan.
1.52 "Subordination Agreement" means an agreement pursuant to which a
Subsidiary or other Affiliate executing the same agrees to subordinate any
amounts owed to such Entity by the Company to the Company's Indebtedness to the
Bank on terms and conditions satisfactory to the Bank.
1.53 "Subsidiary" means any corporation created and existing under the
laws of any state of the United States or any nation, in which the Company owns,
directly, indirectly or otherwise, more than 20% of the outstanding shares of
capital stock.
1.54 "Tangible Net Worth" means on the date of determination, the sum
for the Company and the Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of the capital stock, additional paid-in
capital and retained earnings (or, in the case of an additional paid-in capital
or retained earnings deficit, minus the amount of the deficit) minus treasury
stock, and all intangible items, including unamortized debt discount and
expense, unamortized research and development expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names, copyrights
and all similar items which are required to be classified as intangibles in
accordance with GAAP, in each case as determined in accordance with Generally
Accepted Accounting Principles on a Consistent Basis.
1.55 "Termination Date" means the date on which the
Indebtedness is accelerated pursuant to Section 6.2.
1.56 "Total Liabilities" means on the date of determination, the sum of
all liabilities of the Company and the Subsidiaries as determined on a
consolidated basis in accordance with Generally Accepted Accounting Principals
on a Consistent Basis.
<PAGE>
Unless otherwise defined herein, all accounting definitions shall have
the definitions given to them under Generally Accepted Accounting Principles.
Unless the context otherwise requires, references to "Sections" are to
sections of this Agreement, and references to "Schedules" and "Exhibits" are to
schedules and exhibits attached hereto. Any term defined herein, unless the
context otherwise requires, may be used in the singular or the plural depending
on the reference.
END OF SECTION 1
<PAGE>
SECTION 2
Financial Commitments
2.1 Revolving Credit.
2.1.1 Subject to the terms and conditions herein, Bank hereby
establishes for the benefit and account of the Company the Revolving Credit. On
and after the date hereof through the Revolving Credit Expiration Date, the
Company may borrow, repay and re-borrow from Bank under the Revolving Credit,
one or more Revolving Loans with an aggregate maximum principal amount not at
any time exceeding the Revolving Credit Availability. In addition to the other
conditions herein, Bank shall have no obligation to make a Revolving Loan under
the Revolving Credit if at the time of the request and/or the making of the Loan
an Event of Default or any condition or circumstance exist, which, with notice,
lapse of time or both, could constitute an Event of Default and/or the Bank
shall have accelerated or demanded payment of any Indebtedness.
2.1.2 Any loans heretofore made by Bank (the "Existing Loans")
to the Company pursuant to Section 2.1.1 of the Existing Credit Agreement, and
outstanding on the Effective Date shall be designated as and deemed to be
Revolving Credit Loans hereunder, subject to the terms and conditions hereof.
2.1.3 Each Revolving Credit Loan may be either a Prime Loan or
a LIBOR Loan, provided that LIBOR Loans shall only be in minimum principal
amounts of $250,000.00 or such greater amount in increments of $100,000.00. Each
Prime Loan outstanding under the Revolving Credit shall, prior to an Event of
Default, accrue interest at the floating rate of Bank's Prime Rate. Each LIBOR
Loan outstanding under the Revolving Credit shall, prior to an Event of Default,
accrue interest during the applicable Interest Period at the fixed rate of 0.95%
(ninety-five basis points) above the LIBOR Base Rate. The Company may convert
Loans under the Revolving Credit from a Prime Loan to a LIBOR Loan at any time
or convert a LIBOR Loan to a Prime Loan at the end of the Interest Period for
the LIBOR Loan, in each case in accordance with and subject to the terms herein.
2.1.4 The Revolving Credit Loans shall be evidenced by the
Amended and Restated Revolving Credit Note substantially in the form of Exhibit
2.1.4, dated the Effective Date and payable to the order of the Bank in the
principal amount of Twenty Million Dollars ($20,000,000.00). The Revolving
Credit Loans shall all mature and be due and payable on the Revolving Credit
Expiration Date. Accrued interest on the Revolving Credit Loans shall be payable
on the first Business Day of each month commencing on first month after the
first Revolving Credit Loan is made and continuing thereafter until all
Revolving Credit Loans are paid in full.
<PAGE>
Payments of accrued interest on Revolving Credit Loans shall also be due and
payable on the date the Revolving Credit Loans are paid in full (whether at
stated maturity or by acceleration) or when any permitted prepayment is made or
when one type of Loan is converted to another type of Loan, except that interest
accruing at the Post-Default Rate shall be payable from time to time on demand.
2.1.5 Bank shall process a Revolving Credit Loan by crediting
the principal amount thereof to the Company's checking account maintained with
Bank or otherwise making the proceeds of the Revolving Credit Loan available to
the Company and upon doing either of the foregoing, the Revolving Credit Loan
shall be deemed made by Bank. The Company's right to borrow Revolving Credit
Loans under the Revolving Credit and Bank's obligation to advance such Loans
shall expire on the Revolving Credit Expiration Date.
2.1.6 Requests for Revolving Credit Loans may be made by the
Company orally by an Authorized Person or in a writing (which includes without
limitation a facsimile transmission), signed by an Authorized Person. The
minimum amount of a Revolving Credit Loan shall be $25,000.00 or the unused
portion of the Revolving Credit Line Availability, if less than $25,000.00,
subject to the limitations on the minimum principal amounts of LIBOR Loans
provided for in Section 2.1.3. The Company shall confirm an oral request for a
Revolving Loan request by mailing written confirmation to the Bank within three
Business Days of such a request. The Company's failure to provide such written
confirmation shall not impose any obligation on Bank to verify any prior oral
instructions. The Company may from time to time add to or delete from the list
of Authorized Persons by giving Bank written notice of such changes. Notice
shall be sent to Bank at 44 Exchange Street, Rochester, New York 14614, to the
attention of Mr. Timothy Jones, Assistant Vice President.
2.1.7 Commencing January 10, 1996 and on the tenth (10th) day
of each April, July, October and January thereafter through the Revolving Credit
Expiration Date, the Company shall pay to the Bank a facility fee on the daily
average unused amount of the Revolving Credit Availability for the previous
calendar quarter at a rate per annum equal to 1/8 of one percent (0.125%).
<PAGE>
2.2 Revolving Credit Availability.
2.2.1 On the Effective Date, the Company shall have the option
to elect the Revolving Credit Availability to be $5,000,000.00, $10,000,000.00,
$15,000,000.00 or $20,000,000.00 (which amount is subject to reduction under
Section 2.2.2 below). The Company shall make it's election by delivery on the
Effective Date of a certificate executed by the Company's Chief Financial
Officer. If on the Effective Date, the Company elects the Revolving Credit
Availability to be less than $20,000,000.00, then after the Effective Date,
subject to the terms and conditions herein, the Company may elect to increase
the Revolving Credit Availability by increments of $5,000,000.00 up to a maximum
$20,000,000.00 less the amount of any permanent reductions previously made
pursuant to Section 2.2.2, provided that each of the following conditions are
fulfilled to the satisfaction of Bank:
2.2.1.1 The Company shall have given notice pursuant
to and in compliance with Section 2.5 below.
2.2.1.2 The Company shall have delivered to the Bank
an Officer's Certificate in the form of Exhibit
2.2.1.2 and shall have given notice pursuant to and
in compliance with Section 2.5 below.
2.2.1.3 The Company shall have paid to the Bank a
facility fee equal to 0.10% (ten basis points) of the
amount of the requested increase in the Revolving
Credit Availability.
2.2.1.4 No Event of Default shall have occurred and
no condition shall exist which, with notice or elapse
of time, or both, would constitute an Event of
Default and/or the Bank shall not have accelerated
demand of payment of any Indebtedness.
2.2.2 The Borrower may, at any time or from time to time,
permanently reduce the aggregate unused amount of the Revolving Credit
Availability by giving written notice thereof as provided in Section 2.3 below,
provided each partial reduction shall be in an aggregate amount at least equal
to $100,000.00 or in multiples thereof.
2.3 Optional Prepayments and Conversions.
2.3.1 The Company may prepay Loans or convert Loans from one
type of Loan (i.e., Prime Loan or LIBOR Loan) to another type of Loan or
continue a Loan of one type as the same type of Loan, at any time and from time
to time, provided that:
<PAGE>
2.3.1.1 The Company shall give the Bank the
notice required under Section 2.5.1;
2.3.1.2 In the case of a conversion, Section 2.4
is not violated;
2.3.1.3 LIBOR Loan prepayments or conversions are
made only on the last day of the Interest Period
for such Loans; and
2.3.1.4 Prepayments are only in minimum amounts
of $100,000.00 or in integral amounts thereof.
2.4 Limitation on LIBOR Loans. The Company shall specify in the notice
provided to the Bank for a borrowing, continuation or conversion of a LIBOR Loan
the duration of each Interest Period for the LIBOR Loan, which may be for one,
two or three calendar months. No more than six separate Interest Periods in
respect of LIBOR Loans that are Revolving Credit Loans may be outstanding at any
one time.
2.5 Additional Terms
2.5.1 Notices by the Company to the Bank (together with any
applicable certificates) of increases, or permanent reductions in the Revolving
Credit Availability, of borrowings, conversions, continuations and optional
prepayments of Revolving Credit Loans or of Interest Period durations shall be
irrevocable and shall be effective only if received by the Bank not later than
12:00 p.m. Rochester, New York time on the number of Business Days prior to the
date of the relevant increase, reduction, termination, borrowing, conversion,
continuation or prepayment or for the first day of such Interest Period
specified below:
Notice and Certificate (if applicable) Number of Business Days
Increase of Revolving Credit
Availability 5
Permanent Reduction
of Revolving Credit Availability 3
Borrowing or Prepayment of, or Same day, provided notice is given
Conversion into, Prime Loans prior to 12:00 p.m. Rochester, New
York time
Borrowing or Prepayment of, or
Conversions into, Continuations
as, or duration of Interest Period
for LIBOR Loans 2
<PAGE>
Each such notice of increase or permanent reduction in Revolving Credit
Availability shall specify the amount to be increased or permanently reduced and
in the case of an increase, shall be accompanied by payment of the required
facility fee or an authorization to deduct such payment from the Company's
checking account maintained at the Bank. Each such notice of borrowing,
conversion, continuation or optional prepayment shall specify the type of Loan
to be borrowed, converted, continued or prepaid and the amount and type of Loan
to be borrowed, converted, continued or prepaid and the date of borrowing,
conversion, continuation or optional prepayment (which shall be a Business Day).
Each such notice of the duration of an Interest Period shall specify the Loans
to which such Interest Period is to relate. In the event that the Company fails
to select the type of Loan, or the duration of any Interest Period for any LIBOR
Loan, within the time period and otherwise as provided herein, such Loan (if
outstanding as a LIBOR Loan) will be automatically converted into a Prime Loan
on the last day of the then current Interest Period for such Loan, or (if
outstanding as a Prime Loan), remain as, or (if not then outstanding) will be
made as a Prime Loan.
2.5.2 The date, type, interest rate and duration of Interest
Period (if applicable) of each Loan made by the Bank to the Company, and each
payment made on account of the principal thereof, shall be recorded on the books
of the Bank and, prior to any transfer of the Revolving Credit Note, the Bank
shall endorse on the schedule attached thereto all such appropriate information;
provided, that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Company to make a payment
when due of any amount owing hereunder or under the Note.
2.5.3 The Bank is authorized to act on oral or written
instructions given pursuant to this Section 2 of any person identifying himself
as an Authorized Person and the Company will be bound by such instructions. The
Company hereby indemnifies and holds Bank harmless from any liability (including
reasonable attorneys' fees) which may arise as a result of Bank's reliance on
such requests and/or instructions received from an Authorized Person whether
oral or written.
2.5.4 Interest on all Loans shall be calculated on the basis
of a 360 day year for the actual number of days elapsed. Changes in the accruing
interest rate on all Prime Loans as a result of a change in Bank's Prime Rate
shall be effective on the date that such change is made by Bank, without notice
to the Company. Notwithstanding anything herein to the contrary, after and
during the continuation of an Event of Default, interest shall accrue on all
Loans at the higher of the rate then accruing on each Loan or the Post-Default
Rate. At no time shall the Company be obligated or required to pay interest
hereunder at a rate which
<PAGE>
exceeds the maximum rate permitted by applicable law or regulation. If by the
terms of this Agreement or the Note, the Company is at anytime required or
obligated to pay interest at a rate in excess of such maximum rate, such rate of
interest shall be deemed to be immediately reduced to such maximum legal rate,
and each payment of interest that exceeds the maximum rate shall be deemed a
voluntary prepayment of principal.
2.5.5 If any payment owed by the Company to Bank under any
Note is not made within five days of the date when due, the Company shall pay
Bank a late charge equal to the greater of $50.00 or 5% of the overdue payment
or Bank's then current late charge as announced by Bank then time to time.
2.5.6 All payments due under this Agreement and/or under any
Note shall be made no later than 3:00 p.m. Rochester, New York time on the date
when due, at Bank's principal place of business in lawful money of the United
States. Unless otherwise applied by Bank in its sole discretion, all payments
shall be applied first to unpaid late charges, if any, then to accrued interest,
then to principal on the obligation to which the payment relates.
End of Section 2
<PAGE>
SECTION 3
Representations and Warranties
The Company represents and warrants to Bank that:
3.1 Corporate Existence. The Company and each Subsidiary is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and duly authorized to do business in
every other place where the character of its property or the nature of its
business makes such licensing or qualification to do business necessary and
where any failure to so qualify would have a material adverse effect on the
Company and the Subsidiaries, taken as a whole.
3.2 Affiliates and Subsidiaries. Except as described in Schedule 3.2,
neither the Company nor any of the Subsidiaries have any Affiliates or
Subsidiaries. Neither the Company nor the Subsidiaries are bound by any
agreements, warrants, rights, options, commitments or other agreements that may
require them to sell or issue to anyone any securities of any Subsidiary. None
of the capital stock of the Subsidiaries is pledged to anyone and no one has a
claim of any kind to such stock.
3.3 Organizational Documents. The Company has furnished to Bank,
currently effective, certified copies of the Company's and each Subsidiary's
Certificates of Incorporation (or equivalent document under applicable law) and
all amendments thereto or other certificate filed with the Secretary of State of
New York (or the applicable governmental authority in the jurisdiction of
formation), and a copy of the Company's and each Subsidiary's currently
effective By-Laws (or equivalent document under applicable law), certified by
each corporation's secretary.
3.4 Power, Authority and Enforceability. The execution and delivery of
this Agreement and the borrowings to be made hereunder, the execution of the
Documents, the consummation of the transactions herein contemplated, and the
performance of any term, covenant or condition herein provided for, are within
the corporate powers of the Company and have been duly authorized by all proper
and necessary corporate action by the Company and are not in conflict with, nor
will result in a breach under the Certificate of Incorporation, By-Laws, any
indenture, or any corporate resolution or restriction of the Company. This
Agreement and all Documents required to be executed by the Company in connection
with this Agreement, when executed and delivered to Bank, will constitute legal,
authorized, valid and binding obligations of the Company, enforceable in
accordance with its respective terms, subject to the laws governing bankruptcy,
insolvency and moratorium and the principles of equity and other laws affecting
creditors rights generally.
<PAGE>
3.5 Capitalization. The Company's entire authorized capital common
stock consists of 25,000,000 shares of common stock, par value $.01 per share,
of which as of the date hereof 9,950,000 shares are issued and outstanding. All
outstanding shares of the Company's common stock are duly authorized, validly
issued, fully paid, non-assessable and do not have preemptive rights. The
Company has complied with all Federal and state laws relating to the issuance of
securities.
3.6 Approvals. No consent, approval, permit, authorization, or
declaration to or filing with any governmental authority is required for the
Company or any Subsidiary to complete the transactions contemplated by this
Agreement or any of the Documents.
3.7 Title to the Company's Assets. The Company and each Subsidiary has
good, valid and indefeasible title to all of its assets, free and clear of any
Liens of any kind, except for Liens in favor of Bank, Liens described in
Schedule 3.7 and the following Liens:
3.7.1 Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being
contested in good faith and by appropriate proceedings and for
which adequate reserves with respect thereto are maintained on
the books of the Company, or affected Subsidiaries, as the
case may be, in accordance with GAAP;
3.7.2 carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30
days, or which are being contested in good faith and by
appropriate proceeds;
3.7.3 pledges or deposits under Workers'
Compensation, Unemployment Insurance and other Social
Security legislation; and
3.7.4 deposits to secure the performance of bids, trade
contracts (other than borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business.
3.8 Intellectual Property. The Company and each Subsidiary has all
necessary permits contracts, trademarks, trade names, copyrights and licenses to
carry on their respective businesses as now conducted without known conflict
with the valid permits, contracts, trademarks, trade names, copyrights or
licenses of others.
<PAGE>
3.9 Material Agreements and Certain Liabilities. Set forth on Schedule
3.9 is a complete and correct list of each credit agreement, loan agreement,
note, indenture, guarantee, letter of credit or other arrangement to which the
Company or any Subsidiary is a party and that provides for or otherwise relates
to indebtedness or any extension of credit in excess of $500,000.00. Neither
Company, nor any Subsidiary has been notified that it is in material breach of
the payment or performance of any material agreement (including without
limitation those listed on Schedule 3.9 and those contracts and agreements with
their customers), or that any customer has a material offset against or defense
to sums it owes any of them under any material contract. Neither the making of
this Agreement nor the performance of or compliance with the terms of this
Agreement or any Document called for hereunder will result in the creation or
imposition of any Lien upon any of the property or assets of the Company or any
Subsidiary, by operation of law or pursuant to the terms of any agreement,
instrument or otherwise. Neither the Company nor any Subsidiary is a party to
any negative pledge agreement or other type of agreement prohibiting or
restricting its ability to grant a Lien on its assets. Neither the Company nor
any Subsidiary is liable, directly or indirectly, for the payment or collection
of any liability, indebtedness, claim or obligation of any Entity, except
guaranties in favor of Bank and the Company's Guaranty of Performance and
Payment in favor of Manufacturers Hanover and Trust Company referred to in
Section 6.1 below, and does not have any other contingent liability of any
nature or kind or any so called "off balance sheet" liabilities.
3.10 Company's Financial Statements. The Company has provided to the
Bank true and complete copies of the Company's audited consolidated and
consolidating statements of income, retained earnings and cash flow for the
Fiscal Year ended December 31, 1994 and the corresponding balance sheet dated as
of December 31, 1994 and quarterly consolidated and consolidating statements of
income, retained earnings and cash flow for each of the fiscal quarters ended as
of March 31, 1995 and June 30, 1995 and each corresponding balance sheet dated
as of such dates. Each of the foregoing financial statements were prepared in
accordance with Generally Accepted Accounting Principles Consistently Applied
and are correct and complete in all respects and truly represent the
consolidated financial condition of the Company as of the dates of the balance
sheets and the results of operations of the Company on a consolidated basis for
the period covered by the statements of income. As of the date hereof, there has
been no adverse change in the consolidated financial condition of the Company,
or its assets as reflected in the most recent consolidated financial statements
delivered to Bank.
<PAGE>
3.11 Litigation. Except as described in Schedule 3.11, there is no
litigation or any action or proceeding to which the Company, or any Subsidiary
is a party before any court, commission or administrative agency or other
governmental authority pending, or, to the knowledge of the Company threatened
against or affecting the Company, or any Subsidiary which could materially
adversely affect the Company's business, financial condition or financial
performance in excess of $250,000.00. Neither the Company nor any Subsidiary is
in default with respect to any order, writ, injunction or decree of any court or
any federal, state, municipal or other governmental agency or instrumentality,
domestic or foreign.
3.12 Taxes. To the best of the Company's knowledge, no investigation of
the tax liability of the Company, or any Subsidiary by any state or federal
agency or authority is pending or threatened. The Company and each Subsidiary
has filed all returns which have become due or which are required by law to be
filed (including but not limited to franchise tax returns), and have paid all
taxes which have or may become due pursuant to those returns (including but not
limited to franchise taxes) or pursuant to any assessment received by them.
3.13 Compliance with Laws. To the best of the Company's knowledge, all
present and anticipated conduct of the businesses of the Company, and each
Subsidiary and present and anticipated ownership and use of their assets is in
full compliance in all material respects with all applicable laws, regulations
and orders of any governmental authority or agency including but not limited to
zoning, building, health, safety, OSHA, environmental and equal employment laws,
rules, regulations and orders. The Company and each Subsidiary has filed all
necessary notices, reports, registrations and other filings required to be made
with any governmental authority for which the failure to file would have a
material adverse effect on any of them, including without limitation in the case
of the Company, all reports, statements and filings required under the
Securities Exchange Act of 1934, as amended.
3.14 True and Complete Disclosure. Neither this Agreement, nor any
other Document or writing delivered to Bank by the Company (which has not been
superseded by another writing delivered by Company to Bank prior to the date
hereof and which Company has specifically identified as superseding a prior
writing delivered to Bank) or any Subsidiary or by any of their respective
officers or agents, nor any financial statement or certificates delivered to
Bank by any of them contain any untrue or incorrect statement or omit any fact
necessary to make any statement contained therein, not misleading. The Company
has not failed to disclose to Bank any fact that has had or can be reasonably
expected to have a
<PAGE>
materially adverse effect on the assets or condition (financial or
otherwise) of the Company or any Subsidiary.
3.15 ERISA. Neither the Company nor any Subsidiary sponsors or
maintains for its employees any Plan or sponsors or participates in any manner
in any Multi-Employer Plan other than the Plan described in Schedule 3.15 (the
"Existing Plan"). The Existing Plan is qualified under IRC Section 401 and the
Company has received a favorable determination letter to that effect from the
Internal Revenue Service. To the best of Company's knowledge , the Existing Plan
is in full compliance with all existing laws, rules and regulations and is not
underfunded.
3.16 Environmental Matters. Neither the Company nor any Subsidiary is a
party to any existing action or administrative proceeding involving any
Environmental Law and the Company is not aware of any threatened action,
administrative proceeding or claim against the Company and/or against any
Subsidiary involving any Environmental Law. Further, to the best knowledge of
the Company, the Company and each Subsidiary is in compliance with all
Environmental Laws and has all necessary Environmental Permits.
3.17 Insolvency. Neither Company nor any Subsidiary is Insolvent nor
will become Insolvent as a result of the transactions contemplated under this
Agreement or any Document nor any other transaction or business which the
Company or any Subsidiary contemplates.
3.18 Illegal Activities. Neither the Company nor any Subsidiary, nor to
the knowledge of the Company, any of their respective directors, officers,
agents, employees, or other persons associated with or acting on behalf of any
of them has, directly or indirectly, violated any laws pertaining to illegal
gifts or payments or similar matters in connection with their respective
businesses.
3.19 Investment Company Act. Neither the Company, nor any
Subsidiary is an "investment company", or a company "controlled" by
an "investment company", within the meaning or the Investment
Company Act of 1940, as amended.
3.20 Use of Proceeds. Neither Company nor any Subsidiary is engaged
principally , or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock, and no part of the proceeds of any extension of
credit hereunder will be used to buy or carry any Margin Stock.
3.21 Existing Agreement, Etc. Valid. The Existing Agreement
and the Existing Note and each Guaranty and Subordination Agreement
executed and delivered pursuant to the Existing Agreement are all
<PAGE>
in full force and effect and are the valid and binding obligations of Company
and/or of the other Entity which executed them, and there are no offsets or
defenses of any nature or kind relating thereto.
3.22 No Default Under Existing Agreement, Etc. Company is not in
default under the Existing Agreement or the Existing Note and no Subsidiary is
in default of or has breached the Guaranty or Subordination Agreement executed
and delivered pursuant to the Existing Agreement, and no condition exists,
which, with notice, lapse of time or both, would constitute a default under the
Existing Agreement, the Existing Note or Guaranty or Subordination Agreement
executed pursuant to the Existing Agreement.
End of Section 3
<PAGE>
SECTION 4
Conditions Precedent to Financial Commitment
Bank's obligation to make the financial commitments described in
Section 2 is subject to the performance by the Company of all covenants and
conditions to be performed by it on or prior to the Effective Date and to the
accuracy and correctness of all representations and warranties contained in this
Agreement on and as though made on the Effective Date and to the following
further conditions being satisfied on or prior to the Effective Date:
4.1 Officer's Certificate. The Company shall have provided
Bank with an Officer's Certificate which will be substantially in
the form of Exhibit 4.1, which shall:
4.1.1 Set forth the names and addresses of its
officers.
4.1.2 Contain the signatures of its officers authorized to
execute this Agreement, the Documents and any other agreements
or instruments to be executed by it.
4.1.3 Set forth the names of its directors.
4.1.4 Have attached thereto copies of its Certificate
of Incorporation and all amendments thereto.
4.1.5 Have attached thereto copies of its current By-
Laws and all amendments thereto.
4.2 Subsidiary Acknowledgements. Each Subsidiary shall have executed
and delivered to Bank an acknowledgement and agreement as to the enforceability
of and lack of defenses or offsets to its obligations under the Guaranty and
Subordination Agreement that it previously executed and delivered to the Bank in
connection with the Existing Credit Agreement, which shall be in a form and
substance satisfactory to Bank.
4.3 Authorizing Resolutions. The Company shall have delivered to Bank a
certificate executed by its secretary, affirming the continued effectiveness of
resolutions duly adopted by its Board of Directors which shall, among other
things:
4.3.1 Approve the form of this Agreement and all of
the Documents.
<PAGE>
4.3.2 Authorize the execution, delivery and
performance of the obligations under this Agreement and
the Documents.
4.3.3 Authorize the President or any other officer to take
such other actions as are necessary or desirable to carry out
the transactions contemplated under this Agreement and the
Documents.
The certificate required under this Section 4.3 shall be in the form of
Exhibit 4.3 with the blanks appropriately completed.
4.4 Enforceability. On the Effective Date, Bank and its attorneys shall
be satisfied in their sole discretion that this Agreement and all Documents are
all valid and binding obligations of the Entity which executed them, enforceable
according to their respective terms.
4.5 Amended and Restated Revolving Credit Note. On the Effective Date,
the Company shall have executed and delivered to the Bank the Amended and
Restated Revolving Credit Note in the principal amount of Twenty Million Dollars
($20,000,000.00).
4.6 No Material Adverse Change. There shall have been no
material adverse change in the business, assets or condition
(financial or otherwise), of the Company since June 30, 1995.
4.7 No Liens. The Company shall have no Liens other than those
permitted under Section 3.7 and shall have provided the Bank with certified
copies of Requests for Information (Form UCC-11) from both the Monroe County
Clerk's Office and the New York Department of State which shall show no Liens on
the assets of the Company or any Subsidiary, except for the Liens permitted
under Section 3.2.
4.8 Opinion Letter. The attorneys for the Company and each Subsidiary
shall have delivered to Bank an opinion letter which shall be in the form of
Exhibit 4.8 and dated as of the Effective Date. The contents of the opinion and
any limitations shall be satisfactory to Bank and its attorneys in their sole
discretion.
4.9 Evidence of Insurance. The Company will provide Bank with
satisfactory evidence of its compliance with the requisite insurance coverage
called for in Section 5.11 of this Agreement.
4.10 Legal Details. All legal details in connection with the
Agreement and all Documents shall have met with the approval of
Bank and Woods, Oviatt, Gilman, Sturman & Clarke, LLP, Counsel for
Bank.
<PAGE>
Bank, at its sole option, may extend the time in which the Company is
required to provide any of the Documents required to be delivered under this
Agreement or to satisfy or otherwise fulfill any condition set forth above. Such
extensions may be written or oral, express or implied. Such extensions shall not
operate as a waiver of the requirement that such Document be provided, and the
Company's failure to provide such Document or Documents to Bank after the
Effective Date shall, after three days' (or less if reasonable under the
circumstances) advance notice to the Company, at Bank's option, constitute an
Event of Default under Section 7 of this Agreement. The requirement that the
Company deliver to Bank any Document called for under this Agreement, may only
be waived in a writing signed by Bank.
End of Section 4
<PAGE>
SECTION 5
Affirmative Covenants
The Company covenants and agrees that, until the Indebtedness is paid
in full and the Company does not have any further rights to borrow hereunder,
the Company shall do each of the following:
5.1 Annual Financial Statement Furnish to Bank as soon as available,
and in any event within 90 days after the end of each Fiscal Year, copies of the
Company's annual consolidated and consolidating statements of income, retained
earnings and cash flow for such Fiscal Year, as well as consolidated and
consolidating balance sheets as of the end of such Fiscal Year, setting forth in
each case in comparative form the corresponding figures of the preceding Fiscal
Year. All such statements shall be in reasonable detail, including all
supporting schedules and comments, audited by an independent public accounting
firm of recognized standing, selected by the Company and satisfactory to Bank.
All statements shall be prepared in accordance with Generally Accepted
Accounting Principles Consistently Applied and carry the unqualified opinion of
such accounting firm.
5.2 Quarterly Financial Statements. Furnish to Bank within 45 days of
the end of each of the first three quarterly fiscal periods of each Fiscal Year
of the Company, consolidated and consolidating statements of income, retained
earnings and cash flow of the Company for such period and for the period from
the beginning of the respective Fiscal Year to the end of such period, and
related consolidated and consolidating balance sheets as the end of the period,
setting forth in each case in comparative form the corresponding consolidated
figures for the corresponding period in the preceding Fiscal Year. All
statements shall be in reasonable detail, subject to year end adjustments and
certified by the Chief Financial Officer of the Company to have been prepared in
accordance with Generally Accepted Accounting Principles Consistently Applied by
the Company during the period covering the quarterly financial statement.
5.3 SEC Documents. Furnish to the Bank promptly, upon their becoming
available, copies of all registration statements, prospectuses, reports or
notices, if any, which the Company shall have filed with the Securities Exchange
Commission (or any governmental agency substituted therefor), or any national
securities exchange, and promptly upon the mailing thereof to the shareholders
of the Company, generally, copies of all financial statements, reports and proxy
statements so mailed.
5.4 Other Information. Furnish to Bank such additional
financial statements and other information as Bank may from time to
time reasonably request.
<PAGE>
5.5 Access to Records and Inspection. Permit Bank, by its officers and
agents, upon reasonable notice to have and inspect at all reasonable times the
minute books, other corporate records and books of account and financial records
of the Company and the Subsidiaries and their respective properties and assets.
5.6 Notice of Extraordinary or Special Reports, Etc. Furnish
-----------------------------------------------
to Bank, promptly after being filed or distributed, any extraordinary or
special reports or statements which the Company and/or any Subsidiary was
required to make or file with any governmental authority or agency. Upon written
request of Bank, the Company shall make available to the Bank and cause each
Subsidiary to make available to the Bank for examination copies of all such
reports or statements, and copies of orders in any proceedings to which the
Company and/or any Subsidiary is a party and that is issued by any court or
governmental authority. Further, the Company shall promptly notify the Bank of
any release of a Hazardous Substance at any Real Property.
5.7 Notice of Litigation. Notify Bank promptly in writing if any
litigation or proceeding is instituted or threatened in writing against the
Company and/or against any Subsidiary, in which the total recovery demanded is
in excess of $500,000.00 which is not covered by insurance, or of any other
event or condition which materially and adversely affects or threatens to affect
the business, assets or condition, financial or otherwise, of the Company and/or
any Subsidiary.
5.8 Notice of Event of Default. As promptly as practicable, notify Bank
of the occurrence of any Event of Default, or any breach of any obligation under
this Agreement and/or under any Document of which the Company obtains knowledge.
5.9 Taxes. File all Federal tax returns and all state and local tax
returns that are required to be filed, except for the failure to file which
would not singly or in the aggregate have a material adverse effect on the
financial condition of the Company and the Subsidiaries (taken as a whole), and
has or will have been timely paid or caused to be paid all taxes as shown on
said returns or any assessment received except to the extent that any such taxes
being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established.
5.10 Discharge of Liabilities. Pay and discharge when due all of the
respective material liabilities, obligations and taxes of the Company and each
Subsidiary, except as such obligations are being duly contested in good faith by
appropriate proceedings, provided an appropriate reserve has been provided
therefor.
<PAGE>
5.11 Insurance. Maintain or cause to be maintained insurance, of kinds
and amounts and with insurance companies reasonably satisfactory to the Bank.
The Company shall provide to the Bank, no less often than annually, and upon its
request, a detailed list, with evidence satisfactory to the Bank, of its
insurance carriers and coverage, and shall obtain such additional insurance as
the Bank may reasonably request. Hazard insurance policy shall name the Bank as
an additional insured for personalty, and all policies shall provide for at
least 30 days prior notice of cancellation to the Bank.
5.12 Maintenance of Corporate Existence. Do all things necessary to
maintain and preserve the corporate existences and all franchises, rights and
privileges necessary for the proper conduct of the businesses of the Company and
the Subsidiaries in full force and effect, and comply with the requirements of
all applicable laws and all rules, regulations and regulatory agencies and
authorities having jurisdiction over it. Further, the Company and each of the
Subsidiaries shall maintain adequate records and books of account, in which
complete entries are made in accordance with GAAP Consistently Applied.
5.13 Additional Opinion, Etc. Furnish from time to time in form
satisfactory to Bank and Bank's counsel such supporting opinions, certificates,
consents and assurances as are required pursuant to the terms of this Agreement
or any Document.
5.14 ERISA. Comply in all material respects with the provisions of
ERISA and the regulations and interpretations related thereto, the failure to
comply with which would have a material adverse effect on the Company or any
Subsidiary.
5.15 Removal of Hazardous Materials. Promptly remove and/or
remedy, at its own expense, any environmental contamination and/or
Hazardous Substances required to be removed from any Real Property
or remedied by law.
5.16 Current Ratio. Maintain at all times a ratio of Current
Assets to Current Liabilities equal to or greater than 1.50 to 1.0.
5.17 Leverage Ratio. Maintain at all times a ratio of Total
Liabilities to Tangible Net Worth equal to or less than 3.0 to 1.0.
5.18 Tangible Net Worth.
5.18.1 Have, as of the end of each Fiscal Year, commencing
with the Fiscal year ended December 31, 1995 a Tangible Net
Worth of $10,000,000.00 or more; and
5.18.2 Not allow its Tangible Net Worth as of the end
of any Fiscal Year to decrease by more than 10% from its
<PAGE>
Tangible Net Worth as of the last day of the previous Fiscal
Year, provided, however, that solely for purposes of
calculating the perecentage decrease under this Section
5.18.2, any restructuring charges or write-downs totalling
$10,000,000.00 or less with respect to any business or group
of assets acquired by the Company after the date hereof shall
not be taken into account.
5.19 Cash Flow Covenant. Have, for each Fiscal Year Cash Flow
Coverage equal to or greater than 1.3 to 1.0.
End of Section 5
<PAGE>
SECTION 6
Negative Covenants
The Company covenants and agrees that until the Indebtedness is paid in
full and the Company has no further rights to borrow hereunder, neither the
Company nor any Subsidiary shall do any of the following, without the prior
written consent of Bank.
6.1 Guarantees, Etc. Be liable as surety, guarantor, endorser, or
assume the payment of any debt, obligation or dividend of any individual,
corporation or other Entity, except for: (i) the endorsement of checks and other
negotiable instruments for deposit or collection in the ordinary course of their
businesses; (ii) Guarantees in favor of Bank; (iii) a Guaranty of Performance
and Payment dated as of December 19, 1988 executed by the Company in favor of
Manufacturers Hanover Trust Company pursuant to which the Company's maximum
liability is $930,000.00, as it is in effect on the date hereof; and (iv) other
guarantees given by Company, provided that the Company's obligations and
liability under all such guarantees do not at any time exceed $500,000.00 in the
aggregate.
6.2 Loans, Etc. Lend or advance money (excluding advances to employees
in the ordinary course of business or pursuant to the terms of the Company's
1994 Stock Option Plan and the Company's 1987 Stock Option Plan) to any Entity
(including advances to any officer, director, shareholder or employee to allow
such Entity to acquire the assets of any Entity or to allow such Entity to
acquire stock of any Entity) except for loans made by the Company that do not
singly or in the aggregate have an unpaid balance at any time of greater than
$500,000.00.
6.3 Issuance of Preferred or Preference Stock, etc. Issue, distribute
or otherwise permit to be outstanding at any time, any preferred, preference or
other stock (i) that requires the Company, to purchase such stock or permits the
holder thereof to require the Company to purchase such stock, (ii) that provides
for a dividend or distribution rate which is higher than is being paid by
Entities of a similar creditworthiness as the Company under then prevailing
general economic and market conditions, or (iii) that if issued as of the first
day of the immediately preceding Fiscal Year and, assuming all dividends and
other payments provided for in connection therewith had been paid out, would not
have resulted in the Company having violated Section 5.19 as of the last day of
the previous Fiscal Year.
<PAGE>
6.4 Liens Mortgage, pledge, assign, grant a security interest in, cause
any Lien to attach to or any levy to be made on any assets, real or personal,
tangible or intangible, of the Company or any Subsidiary (whether now owned or
hereafter acquired) except for:
6.4.1 Taxes, assessments or changes which are not delinquent,
or if delinquent, which are being contested in good faith and
by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or the
affected Subsidiary, as the case may be, in accordance with
GAAP;
6.4.2 Deposits or pledges in connection with or to
secure the payment of workmen's compensation,
unemployment insurance, social security or other
statutory obligations;
6.4.3 Any Lien in favor of Bank;
6.4.4 Mortgages, conditional sale contracts, security
interests or other arrangements for the retention of title
incurred after the date hereof given to secure the payment of
the purchase price incurred in connection with the acquisition
of Capital Assets useful and intended to be used in carrying
on the business of the Company or any Subsidiary, provided
that (i) the Lien shall attach solely to the property acquired
or purchased, (ii) at the time of acquisition of such Capital
Asset, the aggregate amount remaining unpaid on all
indebtedness secured by Liens on such Capital Assets whether
or not assumed by the Company or a Subsidiary shall not exceed
an amount equal to 100% of the lesser of the total purchase
price or the fair market value thereof at the time of
acquisition of such Capital Asset, and (iii) all such
indebtedness shall have been incurred without violation of the
requirements of this Agreement, including after giving effect
to the debt incurred in connection therewith; and
6.4.5 Liens given in connection with debt other than the
Indebtedness, provided that (i) at the same time, such Liens
are granted to any other lender the Liens covering the same
collateral are granted to and in favor of Bank to secure the
Indebtedness, (ii) those Liens in favor of the Bank are of the
same priority and on a pari passu basis with the Liens granted
the other lender, (iv) the Liens granted the other lender are
subject to an intercreditor agreement which provides for a pro
rata sharing of the proceeds from the collateral covered by
such Liens on the basis of debt owed to such other lender
<PAGE>
and is otherwise satisfactory to Bank in all respects (v) the
other lender's debt secured by such Liens is otherwise
satisfactory to Bank in all respects and such other debt shall
have been incurred without otherwise violating the
requirements of this Agreement, including after giving effect
to such debt.
6.5 Mergers, Etc. Merge or consolidate with, or into, or otherwise
combine with any other Entity (whether as a result of a reorganization, exchange
of stock or assets or otherwise) in any way or manner whatsoever, or create or
acquire any new Subsidiary or the assets or stock of any other Entity or make
any acquisitions of any businesses in any form. Notwithstanding the foregoing,
the Company may engage in (i) a merger, consolidation or asset acquisition, if,
after full conversion of any convertible securities issued in connection
therewith, the shareholders of the corporations which merge into the Company or
the owner or owners of the assets acquired by the Company would be the
beneficial owners of less than 50% of the voting power of the Company or (ii) a
merger with any Subsidiary, provided, however, that in the case of any such
permitted transactions the Company shall be the continuing or surviving
corporation, and after giving effect to the relevant transaction no Event of
Default or event which, with the passage of time or the giving of notice, could
constitute an Event of Default shall have occurred, and after giving effect to
such transaction, the Company would not have violated any of the covenants
herein, including without limitation the financial covenants.
6.6 Transfer of Assets. Except for sales of assets after the date of
the Existing Agreement (all of which do not have an aggregate fair market value
in excess of $500,000.00) or assets which are transferred by the Company to a
Subsidiary which has executed and delivered a Guaranty to the Bank or assets
transferred by a Subsidiary to the Company, sell, transfer, lease or license to
or assign any assets to any Entity except for sales of inventory in the ordinary
course of business.
6.7 Creation of Multi-Employer Plans. Participate in,
sponsor in any manner, or become liable under any Multi-Employer
Plan.
6.8 Licenses. Enter into as a licensor, any license agreements unless
the Company receives under the license fair market value compensation for the
rights licensed by the Entity granting the license.
6.9 Transactions with Affiliates. Enter into or be a party to any
transaction or arrangement with any Affiliate (not including transactions
between or among the Company and any Subsidiary existing as of the date hereof),
including, without limitation, the purchase from, sale to or exchange of
property with, or the
<PAGE>
rendering of any service by or for, any other Affiliate, except in the ordinary
course of business and pursuant to the reasonable requirements of the Company's
business and upon fair and reasonable terms no less favorable to the Company
that would apply in comparable arms length transactions with a person other than
Affiliate.
End of Section 6
<PAGE>
SECTION 7
Defaults and Remedies
7.1 Events of Default. The occurrence of one or more of the events
described in Sections 7.1.1 through 7.1.22 below shall constitute an Event of
Default under this Agreement:
7.1.1 The Company's failure to pay interest and/or principal
on any Indebtedness or any fee or other amount due hereunder
within 10 days of when due.
7.1.2 The occurrence of any breach of or default under any
Guaranty or Subordination Agreement or any breach of or
default by Company under any or any other Document executed by
Company or any Subsidiary in favor of Bank at any time whether
or not related to this Agreement or the transactions
contemplated hereunder.
7.1.3 The failure of Company or any Subsidiary to pay when
due, any other indebtedness for borrowed money due under any
other agreement with any creditor other than Bank or to
otherwise default therein, provided such failure to pay or
default gives the holder thereof the right to accelerate or
demand payment thereof and such amount is $500,000.00 or
greater.
7.1.4 Falsity of any representation or warranty made
by the Company and/or by any Subsidiary under this
Agreement, and/or under any Document.
7.1.5 Failure by the Company and/or by any Subsidiary, in the
observance or performance of any term, covenant (financial or
otherwise), or condition contained in this Agreement and/or in
any Document, provided, however, it shall not be an Event
Default hereunder if the Company or any Subsidiary fails to
observe or perform any obligations under Sections 5.1, 5.2,
5.3, 5.9 or 5.11 unless any such failure shall continue
unremedied for a period of 30 (or more) days after notice
thereof to the Company by the Bank.
7.1.6 Existence of or creation of a Lien (voluntary or
involuntary), not permitted hereunder, upon any assets of the
Company and/or of any Subsidiary, which is not discharged or
satisfied within 15 days of creation.
7.1.7 Entry of one or more judgments for the payment
of money in excess of $500,000.00 (either singly or in
the aggregate) against the Company and/or against any
<PAGE>
Subsidiary, (unless fully covered by insurance by an insurer
which has not given notice of disclaimer with respect to such
judgment) and failure to discharge or bond any such judgment
or to have it stayed pending appeal within 30 days from the
entry thereof, or, if such judgment shall be affirmed on
appeal, failure to discharge such judgment within 30 days from
the entry of such affirmance.
7.1.8 Issuance of one or more orders of attachment (which term
shall be deemed to include the filing of any Federal tax
lien), against the Company and/or against any Subsidiary
and/or against any of their respective assets in the amount of
$500,000.00 or greater (either singly or in the aggregate),
which is not bonded, discharged or stayed within 30 days of
its issuance or filing.
7.1.9 A case under Title 11 of the United States Code, or any
proceeding under any other Federal or state bankruptcy,
insolvency or other law relating to the relief of debtors, the
readjustment, composition or extension of indebtedness or
reorganization, (whether such law is now in existence or
hereafter enacted), is commenced by or against the Company
and/or by or against any Subsidiary, provided, however, it
shall not be an Event of Default hereunder if such a case or
proceeding is commenced without the application or consent of
the Company or any of its Subsidiaries and the order, judgment
or decree approving the same continues unstayed and in effect
for a period of 60 days or more.
7.1.10 A custodian, as defined in Title 11 of the United
States Code, shall have been appointed or taken possession of
substantially all of the property of the Company and/or of any
Subsidiary.
7.1.11 Voluntary suspension or cessation of all or a
substantial part of the business of the Company.
7.1.12 Sale by the Company and/or by any Subsidiary of any
assets material to the operation of the businesses of the
Company and its Subsidiaries taken as a whole.
7.1.13 Dissolution, merger or consolidation of the
Company except as permitted in Section 6.5.
7.1.14 Failure of the Company to maintain its
corporate existence in good standing for a period of more
than 30 days.
<PAGE>
7.1.15 Insolvency of the Company.
7.1.16 The Company challenges, commences or joins as a party
to any action or proceeding in which the validity,
enforceability or binding effect of this Agreement or any
Document is challenged.
7.1.17 The Company and/or any of its officers, directors, or
employees engages in any "prohibited transaction" as defined
in Section 406 of ERISA (other than a prohibited transaction
exempt under Sections 407 or 408 of ERISA), with respect to
the Existing Plan or any Plan hereafter created by the Company
which would be subject to penalty under Section 502(i) of
ERISA or tax under Section 4975 of the IRC.
7.1.18 Failure of the Existing Plan or Plan hereafter
established by the Company to satisfy Section 401(a) of
the IRC.
7.1.19 Failure of the Company to comply with the
reporting and disclosure requirements of ERISA Title I.
7.1.20 Imposition upon the Company of any excise tax under
Chapter 43 of the Code relating to employee benefit matters
which either individually or in the aggregate with all other
excise taxes exceeds $500,000.00.
7.1.21 Failure of any plan of deferred compensation for the
Company to qualify for the "top hat exemption" under Sections
201(2), 301(a) (3) and 401(a) (1) of ERISA.
7.1.22 The Company and/or any officer or director of the
Company is convicted of a criminal violation under any Federal
or state securities laws or the Racketeering Influence and
Corruption Act and/or any other criminal law.
7.2 Remedies. Upon the occurrence of an Event of Default under this
Agreement, Bank may, at its sole option, terminate, without notice, to the
Company, the Company's rights to borrow under the Revolving Credit and declare
all the Indebtedness, immediately due and payable without presentment, demand,
protest, notice of protest or notice of dishonor of any kind, all of which are
hereby expressly waived by the Company. In addition, upon the occurrence of an
Event of Default under this Agreement, Bank may proceed to protect and enforce
its rights hereunder and under the Documents and realize on any Collateral, in
any manner or order it deems expedient. In addition to all other rights
hereunder or under law, upon the occurrence of an Event of Default, Bank shall
have the right to institute proceedings in equity or other
<PAGE>
appropriate proceedings for the specific performance of any covenant or
agreement made in this Agreement or in any Document or for an injunction against
the violation of any of the terms of this Agreement or of any Document or in aid
of the exercise of any power granted in this Agreement or in any Document or by
law or otherwise. All Bank's rights and remedies under this Agreement and under
the Documents and under law and equity are cumulative and not exclusive of any
thereof or of any other rights or remedies available to Bank. No course of
dealing between the Company, and Bank or any delay or omission in exercising any
right or remedy of Bank shall operate as a waiver of any right or remedy, and
every right and remedy may be exercised from time to time and as often as shall
be deemed appropriate by Bank.
7.3 Waivers. Bank may, by written notice to the Company, at any time
and from time to time, waive in whole or in part, and absolutely and
unconditionally, any Event of Default under this Agreement. Any such waiver
shall be only for such period and subject to such conditions or limitations as
may be specified in any such notice. No such waiver shall extend to any other
Event of Default or any subsequent Event of Default of the condition waived nor
shall any waiver impair Bank's rights upon the occurrence of any subsequent
Event of Default of the condition waived or any other Event of Default under
this Agreement.
End of Section 7
<PAGE>
SECTION 8
Miscellaneous Terms and Provisions
8.1 Successors and Assigns. This Agreement shall bind the successors
and assigns of Bank and the Company, and shall inure to the benefit of Bank's
successor and assigns, but not those of Company. Neither this Agreement nor any
of the Company's rights hereunder may be assigned however, without the prior
written consent of Bank.
8.2 Choice of Law and Choice of Forum. This Agreement and all Documents
executed and to be executed pursuant to this Agreement shall be deemed to be
contracts made under New York law and shall be construed in accordance with New
York law, without reference to conflict principles. Any litigation involving the
Agreement and/or any of the Documents shall, at Bank's sole option, be tried in
a court located in Monroe County, New York. THE COMPANY HEREBY WAIVES THE RIGHT
TO A JURY TRIAL IN ANY LITIGATION OF ANY NATURE OR KIND IN WHICH BANK AND THEM
OR EITHER OF THEM ARE PARTIES.
8.3 Notices. Except as otherwise specified in this Agreement, all
notices, statements, requests and demands provided for in this Agreement shall
be deemed to have been given or made when delivered at or mailed postage prepaid
to the Company at the address set forth above, Attn: President, and when
delivered at or received postage prepaid to Bank at the address set forth above
with a copy to 44 Exchange Street, Rochester, New York 14614, Attn: Mr. Timothy
Jones, Assistant Vice President. No other written method of giving or making
notices, statements, requests or demands is hereby precluded. Bank and the
Company may change the address to which notices are to be sent by mailing notice
of the change to the other party.
8.4 Modifications. This Agreement cannot be modified or terminated
orally but only by a writing signed by the party against whom modification or
termination is sought. This provision may not be waived orally.
8.5 Survival of Representative, Etc. All agreements, representations
and warranties made by the Company in this Agreement or by any person in any
Officers' Certificate or other Document delivered to Bank in connection with the
transactions contemplated by this Agreement, shall survive execution and
delivery of, and payment of the Revolving Credit Note and shall continue in full
force and effect so long as any Indebtedness is outstanding, or so long as the
Company has any rights to borrow under the Revolving Credit, whichever date is
later.
8.6 Handwritten Changes. No handwritten modifications or
deletions in this Agreement and/or in any Document shall be
effective unless initialed by duly authorized representatives of
<PAGE>
both Bank and the Company. This provision shall not apply to handwritten
insertions to complete blanks in the Agreement and/or in the Documents.
8.7 Set-Off. The Company agrees that Bank shall have the
right to set-off toward payment of the Indebtedness:
8.7.1 Any indebtedness, matured or unmatured, due or
to become due, owed by Bank to the Company; and,
8.7.2 Any monies, claims or other property belonging
to the Company held by Bank now or at any time on
deposit.
The Company hereby assigns and grants Bank a first and prior lien upon
such claims and properties including but not limited to all bank accounts
maintained at Bank. The rights granted Bank under this Section 8.7 shall not
limit or modify Bank's common law right of set-off.
8.8 Costs and Expenses. The Company will reimburse Bank on demand, or
without demand in case of the occurrence of any Event of Default specified in
the Agreement, for any and all necessary out-of-pocket expenses, including
Bank's reasonable attorneys' fees and disbursements, paid or incurred by Bank in
connection with this Agreement and/or the Documents, whether incident to:
8.8.1 Administration of this Agreement and the
Documents; or
8.8.2 Handling, collection, enforcement, preservation or
protection of the Note or any other Indebtedness, hereunder or
under any Documents, or of any other right or claim, including
enforcement of Bank's rights in Collateral and in all
proceedings arising under the Bankruptcy Code, including but
not limited to obtaining adequate protection and/or relief
from the automatic stay.
8.9 Performance for the Company. If the Company shall fail to do any
act or thing which it has covenanted to do hereunder, Bank may (but shall not be
obligated to), on oral or written notice to the Company, do the same or cause it
to be done, either in its name or in the name and on behalf of the Company and
the Company hereby irrevocably authorizes Bank so to act. All sums expended
pursuant to this Section shall be payable with interest on demand and shall
constitute a portion of the Indebtedness.
8.10 Indemnity. The Company hereby indemnifies and holds Bank, its
employees, agents, officers and directors harmless from and against any claims,
actions, demands, penalties, fines, liabilities, settlements, costs, or expenses
(including but not limited to reasonable attorneys' fees, consultant fees,
investigation and laboratory fees, court costs and litigation
<PAGE>
expenses) of any nature or kind whatsoever, known or unknown,
arising out of, or in any way related to:
8.10.1 The past, present or future disposal or release
of any Hazardous Substance on Real Property.
8.10.2 Any personal injury (including wrongful death), or
property damage (real or personal), arising out of the
Company's use, storage, disposal or release of any Hazardous
Substance.
8.10.3 Any action, arbitration or administrative proceeding
brought or threatened as a result of the Company's use,
storage, disposal or release of any Hazardous Substance.
8.10.4 Any violation of law, order, regulation, requirement or
demand of any governmental authority, in any way related to
the Company's use, storage, disposal or release of any
Hazardous Substance.
8.11 Entire Agreement. This Agreement and the Documents executed in
connection herewith constitute the entire agreement between the parties hereto
relating to the financial commitments provided for herein and supersede all
prior writings or agreements pertaining hereto.
8.12 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original.
End of Section 8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Timothy Jones
Name: Timothy Jones
Title: Assistant Vice President
PSC INC.
By: /s/ William J. Woodard
Name: William J. Woodard
Title: Vice President - Finance
and Treasurer
STATE OF NEW YORK)
COUNTY OF MONROE ) SS:
On the 28 day of September, 1995, before me personally came TIMOTHY
JONES, To me known, who being by me duly sworn, did depose and say that he
resides at Rochester, New York; that he is an Assistant Vice President of
MANUFACTURERS AND TRADERS TRUST COMPANY, the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto pursuant
to authority granted him by the board of directors of said corporation.
---------------------------------
Notary Public
STATE OF NEW YORK)
COUNTY OF MONROE ) SS:
On the 28 day of September, 1995, before me personally came WILLIAM J.
WOODARD, to me known, who being by me duly sworn, did depose and say that he
resides at Rochester, New York; that he is the Vice President - Finance and
Treasurer of PSC INC., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
---------------------------------
Notary Public
<PAGE>
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$20,000,000.00 September 28th, 1995
Rochester, New York
FOR VALUE RECEIVED, PSC INC. (the "Company"), a New York corporation,
promises to pay to MANUFACTURERS AND TRADERS TRUST COMPANY (the "Bank") at its
principal offices at One M&T Plaza, Buffalo, New York 14240, the principal sum
of TWENTY MILLION DOLLARS and NO CENTS ($20,000,000.00) (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Revolving Credit
Loans made by the Bank to the Company under the Restated Credit Agreement
referred to below), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
for in the Restated Credit Agreement, and to pay interest on the unpaid
principal amount of each such Revolving Credit Loan, at such office, in like
amount in immediately available funds, for the period commencing on the date
such Revolving Credit Loan is made and continuing until such Revolving Credit
Loan shall be paid in full, at the rates per annum and on the dates provided for
in the Restated Credit Agreement.
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of each Revolving Credit Loan made by the Bank to the Company, and
each payment made on account of the principal thereof, shall be recorded by the
Bank on its books and, prior to any transfer of this Note, endorsed by the Bank
on the schedule attached hereto or any continuation thereof, provided the
failure of the Bank to make any such recordation or endorsement shall not affect
the obligation of the Company to make a payment when due of any amount owing
under the Restated Credit Agreement or hereunder in respect of the Revolving
Credit Loans made by the Bank.
This Note is the Amended and Restated Revolving Credit Note referred to in
the Amended and Restated Credit Facility Agreement dated as of September 28,
1995 ("Restated Credit Agreement") between the Company and the Bank and
evidences Revolving Credit Loans made by the Bank thereunder. This Note is given
in replacement of and in substitution for, but not in payment of a certain
$5,000,000.00 Revolving Credit Note dated December 21, 1994 issued by the
Company to the Bank in connection with the Existing Agreement. Terms used but
not defined in this Note have the respective meanings assigned to them in the
Restated Credit Agreement.
The Restated Credit Agreement provides for, among other things, the
acceleration of the maturity of this Note upon the occurrence of certain events
and for the prepayments of the Revolving Credit Loans evidenced hereby upon the
terms and conditions specified therein.
<PAGE>
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York and may not be amended or modified orally
but only by writing signed by the Company and the Bank.
IN WITNESS WHEREOF, the Company has executed this Note as of the day and
year first above written.
PSC INC.
By:
Name: William J. Woodard
Title: Vice President - Finance
and Treasurer
STATE OF NEW YORK )
COUNTY OF MONROE )ss:
On this 28th day of September, 1995, before me personally came William J.
Woodard, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President - Finance and Treasurer of PSC Inc., the corporation
described in and which executed the above instrument; and that he signed his
name thereto by order of the board of directors of said corporation.
Notary Public
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of September 14, 1995 by and between PSC
Inc., a New York corporation ("PSC" or the "Company") and L. MICHAEL HONE
("Employee").
RECITALS
PSC and the Employee entered into an Employment Agreement as of March 1,
1989 which was amended as of October 16, 1989 and further amended as of December
11, 1989. The Employment Agreement was amended and restated on August 1, 1991
and further amended as of December 20, 1993 and currently will expire on
December 31, 1997.
Employee has made a major contribution to the successful growth and
development of PSC and it desires to retain his unique experience, background,
ability and services;
Accordingly, the parties desire to amend in certain respects and restate in
its entirety said Employment Agreement. NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants contained in this Agreement, the parties
agree as
follows:
1. Definitions.
Business of the Company. The Business of the Company is the development,
manufacturing and marketing of technologies, products and services for the
automatic identification and keyless data entry industry, and includes, but is
not limited to, products, services, applications, systems and technologies
relating to bar coded data, magnetic stripe encoded data, radio frequency
communications of bar coded or related data, optical character recognition,
machine vision as applied to the recognition of bar coded data, electronic
interchange of bar coded or related data. The Business of the Company shall also
include any business in which the Company is actually engaged or as to which it
is doing research and development during Employee's employment with the Company.
Cause. Conduct described in Section 11(b).
<PAGE>
Change of Control. An event described in Section 12.
Company. PSC, its subsidiaries and divisions and all entities controlled
by, under common control with or controlling PSC.
Confidential Information. The information described in Section 7. Exclusive
Invention(s). Certain Inventions described in Section 6(a). Inventions. All
ideas, discoveries, computer programs, works of authorship, products, processes,
designs, improvements, innovations and inventions.
Invention Disclosure Period. The Term.
Non-approved Change of Control. An event described in Section 12.
Non-Exclusive Invention(s). Certain Inventions described in Section 6(a). Term.
That period described in Section 3.
2. Employment. PSC hereby employs the Employee as President and Chief
Executive Officer and Chairman. Employee hereby accepts such employment and
agrees to remain in the employ of PSC for the Term to perform any and all
reasonable and lawful duties prescribed by PSC's Board of Directors and to abide
by the terms and conditions of this Agreement. During the Term, in good faith,
Employee shall exert all reasonable efforts to promote the interests of the
Company and shall devote substantially all of his entire working time, attention
and energies to the business of the Company.
3. Term of Employment. The term of employment under this Agreement shall
commence as of the date of this Agreement and shall terminate on December 31,
1999 (the "Initial Term"); provided, however that the term of this Agreement
shall be automatically extended for an additional term of two years (an
"Additional Term") upon the end of the Initial Term, unless either the Employee
or the Company shall have given written notice to the other at least one hundred
eighty (180) days prior thereto that the term of this Agreement shall not be so
extended.
4. Compensation.
a. Base Salary. For all services to be rendered to the Company by Employee
in any capacity, including, without limitation, services as an officer, director
or member of any committee of the Board of Directors and the performance of any
duties assigned to him by the Board of Directors, PSC shall pay to Employee a
salary at the annual rate of not less than $325,000 ("Base Salary"). Base Salary
shall be payable in accordance with the customary payroll practices of PSC,
subject to such deductions and withholdings as may be required by law or agreed
to by Employee.
<PAGE>
b. Recognition Bonus. In recognition of the significant contributions of
the Employee to the successful growth and development of the Company, and in
consideration of the Employee's agreement to extend the term of this Employment
Agreement, PSC shall pay to the Employee, within 30 days after receipt of the
Company's audited financial statements for each calendar year during the Initial
Term or the Additional Term, if any, of this Agreement, a bonus of not less than
twenty-five percent (25%) of the Base Salary then in effect; provided, that, for
the year ending December 31, 1995, the bonus paid to the Employee shall be equal
to an amount not less than twenty-five percent (25%) of the sum of (x) the
portion of Base Salary allocable to the period commencing on the date of this
Agreement and ending on December 31, 1995, and (y) the amount of salary paid by
PSC to the Employee for the period commencing on January 1, 1995 and ending on
the date immediately preceding the date of this Agreement.
c. Performance Bonus. Unless otherwise agreed between Board of Directors
and Employee, beginning January 1, 1996, if, for any calendar year during the
Initial Term or the Additional Term, if any, the Company achieves or exceeds in
the aggregate the respective percentages set forth below of those elements of
the business plan for such year (as adopted by the Board of Directors prior to
the beginning of such year), identified by mutual agreement of the Board of
Directors and the Employee as the Employee's performance goal for such year (the
"Performance Goal"), the Employee shall be paid a performance bonus for such
year in an amount equal to the percentage of the Base Salary for such year set
forth opposite such Performance Goal percentage below:
% of Performance Goal Achieved % of Base Salary
90-99% not less than 25%
100-109% not less than 50%
110-119% not less than 75%
120% or more not less than 95%
Any compensation paid to the Employee under this Section 4(c) shall be in
addition to the Base Salary and the Recognition Bonus and shall be in lieu of
any awards to Employee under the Company's current Management Incentive Plan or
any successor plan.
<PAGE>
5. Benefits.
The Employee shall be entitled to the following benefits:
a. General. In addition to his salary, Employee shall also be entitled
throughout the Term to all benefits of full time employees or officers as set
forth in the Company's Policy Manual as to which he meets the eligibility
requirements universally applicable to all employees and such other benefits as
may be accorded to executives of his rank by written notification from the
Company given from time to time.
b. Insurance. During the Initial Term and the Additional Term, if any, the
Company shall pay or reimburse to the Employee the premiums associated with a
personal life insurance policy with a minimum coverage of $5,000,000 in term
insurance, which policy shall be owned by the Employee.
c. Vacations. The Employee shall be entitled to twenty-five (25) days of
vacation per annum, to be taken at such times and intervals as shall be
determined by the Employee, subject to the reasonable business needs of the
Company. The vacation days not used during any year during the Initial Term or
the Additional Term, if any, may, at the Employee's option, be accumulated and
carried forward to be used during any subsequent year during the Initial Term or
the Additional Term, if any; provided, however, that the Employee may not use
more than forty (40) days of vacation in any one calendar year. Upon termination
of the Employee's employment hereunder, or upon the request of the Employee at
any time, the Company shall pay to the Employee an amount equal to the number of
vacation days accumulated, multiplied with respect to each such day by the Base
Salary which was in effect for the year to which such vacation day relates.
d. Supplemental Retirement Benefits. During the Initial Term and the
Additional Term, if any, the Company shall develop, maintain and provide to the
Employee a supplemental retirement benefit plan or a split dollar insurance
plan, on terms and conditions mutually satisfactory to the Company and the
Employee, to provide the Employee upon retirement with at least 60% replacement
of the Employee's compensation. For purposes of this Section, compensation means
the average of Employee's aggregate Base Salary and Performance Bonus for the
year in which Employee retires and the two immediately preceding years. In
calculating the 60% replacement target the Company shall be credited with all
employer matching contributions, social security payments and split dollar
supplemental retirement benefits received by Employee.
6. Inventions.
a. Employee shall promptly disclose in writing to the Company's patent
counsel or to the Company all Inventions, whether patentable, copyrightable or
neither, made, developed or created by him (alone or in conjunction with others,
during regular hours of work or otherwise, with or without the use of the
Company's facilities or materials) during the Invention Disclosure Period. Those
Inventions that are directly useful in and related to the Business of the
Company are hereinafter referred to as "Exclusive Inventions". Those Inventions
made, developed or created during the Invention Disclosure Period that may be
indirectly useful or related to the Business of the Company are hereinafter
referred to as the "Non-Exclusive Inventions".
<PAGE>
b. The Company will review all disclosures made in accordance with Section
6(a) and, unless the Company advises the Employee in writing within 30 days of
the disclosure by the Employee that the Company is willing to release all rights
in the Invention being disclosed by Employee, it will be conclusively deemed
that the Company has an interest in the Invention being disclosed. The Company
shall, in any event, advise Employee in writing within 30 days of the disclosure
by the Employee whether it considers such Invention to be an Exclusive Invention
or Non-Exclusive Invention, as such terms are defined in paragraph (a) of this
Section. If Employee does not agree with any determination so made, as evidenced
by written notice to the Company delivered within 10 days of receipt of the
Company's determination, then the parties agree that the matter will be
submitted to the Company's patent counsel, for a final and binding determination
as to whether the Invention is an Exclusive Invention or a Non-Exclusive
Invention, as such terms are described above. Employee may designate his own
patent counsel who shall promptly confer with the Company's patent counsel and
if the two shall be unable to agree upon a determination as to whether the
Invention is an Exclusive Invention or a Non-Exclusive Invention, they shall
mutually designate a third patent counsel whose determination will be final and
binding.
c. Employee agrees that Exclusive Inventions shall be the exclusive
property of the Company and that in the absence of disclosure by Employee of any
Inventions which fall within the scope of Section 6(a), any nondisclosed
Inventions shall be the exclusive property of the Company and shall also be
deemed Exclusive Inventions for all purposes under this Agreement. Employee will
assign to the Company all his rights and interests in and to all Exclusive
Inventions and all copyrights and all patents, including all divisions,
reissues, continuations, continuations-in-part and extensions thereof, which may
be obtained on the Exclusive Inventions by Employee or the Company, in this and
all foreign countries and Employee hereby authorizes the Register of Copyrights
and Commissioner of Patents and Trademarks to issue all copyrights and patents
to the Company or to any entity designated by the Company. Employee agrees to
execute, acknowledge and deliver to the Company, at the Company's expense, any
and all applications for letters patent or copyrights in this or any foreign
countries relating to the Exclusive Inventions, to take any further actions as
may reasonably be considered necessary by the Company to obtain, enforce or
defend any letters patent in any foreign countries, or to vest title in the
Exclusive Inventions in the Company or its assigns designated by the Company or
their assigns or to obtain from the Company or its assigns designated by the
Company any other legal rights pertaining to or protecting the Exclusive
Inventions in this or any foreign countries.
7. Confidential Information. Employee agrees that during the Initial Term
and the Additional Term, if any, and for five years thereafter, he will not,
except as required by the performance of his duties under this Agreement,
disclose or authorize anyone else to disclose or use or make known for his or
another's benefit, any confidential information or knowledge or data of the
Company, whether or not patentable or copyrightable, in any way acquired by
Employee from the inception of his employment with the Company through the
expiration of the Term (herein "Confidential Information"). Confidential
Information, for the purposes of this Agreement, shall include, but not be
limited to, matters not readily available to the public which are:
<PAGE>
a. of a technical nature, such as, but not limited to, methods, know-how,
formulae, compositions, drawings, blueprints, compounds, processes, discoveries,
machines, prototypes, inventions, computer programs;
b. of a business nature, such as, but not limited to, information about
sales or lists of customers, prices, costs, purchasing, profits, markets,
strengths and weaknesses of products, business processes, business and marketing
plans and activities and employee personnel records;
c. pertain to future developments, such as, but not limited to, research
and development, future marketing or merchandising plans or ideas.
Immediately upon termination of Employee's services, Employee shall deliver
to the Company all originals and copies of everything in his possession or under
this control which embodies or contains any Confidential Information, including,
without limitation, all documents, correspondence, specifications, blueprints,
notebooks, reports, sketches, formulae, computer programs, computer discs,
prototypes, price lists, customer lists or information, samples, and all other
materials.
Confidential Information shall not include information which (i) is
published or otherwise becomes generally available to the public other than by a
breach of confidentiality, or (ii) Employee can show by documentation was
properly in his possession prior to his employment with the Company, or (iii)
becomes available to Employee from an independent source without breach of this
Agreement or violation of law, or (iv) is independently developed by Employee
without the use of the Company's Confidential Information.
8. Records. Employee will keep and maintain adequate and current written
records of any and all Inventions at all stages of their development in the form
of notebooks, sketches, drawings and reports. These records and any copies of
them shall be available to and remain the property of the Company.
<PAGE>
9. Covenant Not to Compete.
a. In light of the special and unique services that have been and will be
furnished to the Company by Employee and the Confidential Information that has
been and will be disclosed to him during his employment, Employee agrees that
during the Initial Term and the Additional Term, if any, and for a period of
thirty-six (36) months thereafter he will not, without the written consent of
the Company, directly or indirectly, whether as principal, agent, officer,
director, consultant, employee, partner, stockholder or owner of or in any
capacity with any corporation, partnership, business, firm, individual company
or any entity located any where in the world engage in, or assist another to
engage in, any work or activity in any way competitive with the Business of the
Company. However, nothing herein shall prevent Employee from owning not more
than five percent (5%) of the outstanding publicly traded shares of common stock
of a corporation, as to which corporation Employee has no relationship other
than as a shareholder.
Employee specifically agrees that because of his special expertise and the
special and unique services that he will be furnishing the Company, and because
of the Confidential Information that has been acquired by him or that will be
disclosed to him during his employment with the Company, the above stated
geographic areas and time period, in and during which he will not compete with
the Company, are reasonable in scope and duration and are necessary to afford
the Company just and adequate protection against the irreparable damage which
would result to the Company from any activities prohibited by this Section.
b. If Employee in any way breaches the obligations specified in this
Section, the Company shall have the right, in addition to any other remedies
available to it, to terminate the further payment of any amounts due or the
further provision of any benefits under Section 4 and 5 hereof, if, and only if,
the Employee is terminated in accordance with the provisions of Section 11
below.
c. If any provision hereof is found to be unreasonably broad, it shall
nevertheless be enforceable to the extent reasonably necessary for the
protection of the Company and to carry out to the fullest extent the parties'
mutual intent in entering into this Agreement, which intent is that the
provisions of this Section will be strictly enforced as agreed to.
<PAGE>
10. Injunctive Relief. Employee agrees that in the event of a breach or
threatened breach by the Employee of any of the provisions of Section 6, 7 or 9
hereof, the Company shall be entitled to an injunction restraining the Employee
from such breach or threatened breach without posting any bond or other
security. Nothing herein, however, shall be construed as prohibiting the Company
from pursuing, in conjunction with an injunction or otherwise, any other
remedies available to the Company for such breach or threatened breach,
including the recovery of damages from the Employee.
11. Termination of Employment.
a. Death or Disability of Employee. The employment of Employee under this
Agreement shall terminate if he dies or, at the option of the Company, if he
shall be prevented from performing his duties under this Agreement because of
disability or illness for a continuous period of 365 days.
b. Termination for Cause. The parties acknowledge that among the several
justifications for payment of the compensation and benefits set forth in
Sections 4 and 5 hereof are Employee's continued good faith and reasonable
efforts to promote the interests of the Company. The Company shall have the
right to terminate the services of Employee at any time without further
liability or obligations to Employee upon the happening of any of the following
events:
(i) Employee engages in dishonesty, willful misconduct, any criminal act
(other than minor infractions) or habitual neglect of his duties, which is
inconsistent with the foregoing acknowledged exercise of good faith and
reasonable efforts or with the responsibilities associated with Employee's
duties under this Agreement, or which is seriously detrimental to the Company;
or
(ii) Employee violates or breaches in any material respect any material
term, covenant, or condition contained in this Agreement.
Termination of the services of Employee for cause pursuant to the
provisions of Section 11(b)(i) or (ii) above shall not be effective unless and
until acted upon by the Board of Directors and unless and until written notice
shall have been given to Employee which notice shall include (i) identification
with specificity of the provisions of this Agreement on which the termination is
based and (ii)identification with specificity of each and every factual basis or
incident upon which the termination is based.
c. Termination Upon Change in Control. Upon the termination by the Company
of the employment of Employee as a result of a Change in Control (as hereinafter
defined) or upon the resignation of Employee based upon a reasonable
determination that, as a result of a Non-Approved Change in Control (as
hereinafter defined), he is or will be unable to exercise the authorities,
powers, functions or duties attached to his position:
<PAGE>
(i) in the event of termination hereunder of the Employee's employment with
the Company, the Company will pay to the Employee an amount equal to 3 times the
Base Salary and bonus payable pursuant to Section 4(b) as then in effect, and
all benefits provided for in Section 5 shall continue for a period of 3 years
after such termination.
(ii) The Company agrees to pay all the legal fees reasonably and
necessarily incurred by Employee in connection with any legal action which may
be required on his part to collect the Company's obligations under this Section
11(c).
d. Termination without Cause. Any termination of the services of Employee
for reasons other than those specified in Sections 11(a), (b) or (c) above shall
be deemed to be "without cause", and the Company shall be obligated to continue
to pay to Employee the compensation and benefits provided for by Sections 4 and
5 of this Agreement. Said compensation and benefits shall be paid in the same
manner, at the same times, and for the same term as specified in Sections 3 and
4.
e. Forgiveness of Indebtedness. In the event of any termination of the
services of the Employee hereunder, including termination as the result of death
or disability under Section 11(a) but not including termination for cause
pursuant to Section 11(b), the indebtedness of the Employee to the Company
pursuant to each of the promissory notes dated April 3, 1995 and April 17, 1995,
respectively between the Employee and the Company shall be forgiven and
extinguished and the Company shall pay or reimburse to the Employee the amount
of taxes incurred by the Employee in connection with any forgiveness of
indebtedness hereunder. Notwithstanding the foregoing sentence, if the Employee
shall voluntarily terminate his services without cause during the Initial Term
or the Additional Term, said indebtedness shall not be forgiven or extinguished
and Employee shall remain liable for the indebtedness in accordance with the
terms and provisions of said notes.
<PAGE>
f. Consultant Status. Upon any termination of the services of the Employee
hereunder pursuant to Section 11(c) or (d) above, the Employee shall remain
available to provide services to the Company as a consultant as the Board of
Directors may request from time to time for a period expiring 30 days after the
latest date upon which any option held by the Employee on the date of such
termination (whether or not vested upon the date of such termination ) is
exercisable; and Employee agrees to serve as a consultant to the Company for
such period, performing such duties as may be mutually agreed upon by the
Employee and the Board of Directors. This Agreement shall stay in full force and
effect during any such consultancy period, provided, however, that the
provisions of Section 4 and 5 above shall not apply during such period and the
compensation of the Employee for his services as a consultant during such period
shall be $1,000 per annum plus such additional remuneration as the Employee and
the Board of Directors shall mutually agree upon in connection with the services
rendered. All options held by the Employee on the date of any such termination
shall remain in effect in accordance with their respective terms, with all
references therein to the Employee being deemed to be references to the Employee
in his capacity as a consultant pursuant to this Section 11(f).
g. Severance. In the event of the termination of the services of the
Employee hereunder (i) for disability pursuant to Section 11(a) above, or (ii)
without cause pursuant to Section 11(d) above, or (iii) at the expiration of
theTerm of this Agreement or at the expiration prior to age 60 of any mutually
agreed upon extension of his employment, the Company will pay to the Employee in
thirty-six (36) equal monthly installments over the three-year non-competition
period described in Section 9 above an amount equal to 3 times the Base Salary
and bonus payable pursuant to Section 4(b) as then in effect; the provisions of
Sections 6, 7, 8, 9 and 10 shall remain in full force and effect and all
benefits provided for in Section 5 shall continue for a period of 3 years after
such termination.
12. Limitations. Notwithstanding anything in this Agreement to the
contrary, the maximum amount of cash and other benefits payable (whether on a
current or deferred basis and whether or not includible in income for income tax
purposes) under Section 11(c)(i) or 11(f) of this Agreement (the "Contract
Benefits") shall be limited to the extent necessary to avoid causing any portion
of such Contract Benefits, or any other payment in the nature of compensation to
the Employee, to be treated as a "parachute payment" within the meaning of
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended. Any
adjustment required to satisfy the limitation described in the preceding
sentence shall be accomplished first by reducing any cash payments that would
otherwise be made to the Employee and then, if further reductions are necessary,
by adjusting other benefits as determined by the Company.
<PAGE>
For purposes of this Agreement, a "Change in Control" shall be deemed to
have occurred (i) on the date that any person or group deemed a person under
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, other than
the Company, in a transaction or series of transactions, has become the
beneficial owner, directly or indirectly (with beneficial ownership as
determined as provided in Rule 13d-3, or any successor rule under such Act), of
30% or more of the outstanding voting securities of the Company; or (ii) on the
date on which one third or more of the members of the Board of Directors shall
consist of person other than Current Directors (for these purposes, a "Current
Director" shall mean any member of the Board of Directors elected at or
continuing in office after, the 1995 Annual Meeting of Shareholders, any
successor of a Current Director who has been approved by a majority of the
Current Directors then on the Board, and any other person who has been approved
by a majority of the current Directors then on the Board); or (iii) on the date
of approval providing for (x) the merger or consolidation of the Company with
another corporation where the shareholders of the Company, immediately prior to
the merger or consolidation, would not beneficially own, immediately after the
merger or consolidation, shares entitling such shareholders to 50% or more of
all votes (without consideration of the rights of any class of stock to elect
directors by a separate class vote) to which all shareholders of the corporation
would be entitled in the election of directors or where the members of the Board
of Directors of the Company, immediately prior to the merger or consolidation,
would not, immediately after the merger or consolidation, constitute a majority
of the Board of Directors of the corporation issuing cash or securities in the
merger or consolidation or (y) the sale or other disposition of all or
substantially all the assets of the Company.
A "Non-Approved Change in Control" shall mean a Change in Control that has
not been approved by a majority of the Current Directors.
13. Notices. All notice given in connection with this Agreement shall be in
writing and shall be delivered either by personal delivery, by telegram, telex,
telecopy or similar facsimile means, by certified or registered mail, return
receipt requested, or by express courier or delivery services, addressed to the
parties hereto at the following addresses:
To Hone: To PSC:
L. Michael Hone PSC Inc.
4 Fawn Road 675 Basket Road
Pittsford, NY 14534 Webster, NY 14580
FAX: 265-6406 FAX: 265-6400
or at such other address and number as either party shall have previously
designated by written notice given to the other party in the manner hereinabove
set forth. Notice shall be deemed given when received, if sent by telegram,
telex, telecopy or similar facsimile means (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications sent by
telex, telecopy or other facsimile means); and when delivered and receipted for
(or upon the date of attempted delivery where delivery is refused), if
hand-delivered, sent by express courier or delivery services, or sent by
certified or registered mail, return receipt requested.
14. Waiver. Any waiver of a breach of any of the terms of this Agreement
shall not operate as a waiver of any other breach of such terms or of any other
terms, nor shall failure to enforce any term hereof operate as a waiver of any
such term or of any other term.
<PAGE>
15. Severability. If any term of this Agreement or the application thereof
is held invalid or unenforceable, the validity or unenforceability shall not
effect any other term of this Agreement which can be given effect without the
invalid or unenforceable term.
16. Governing Law; Venue. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of New York,
without reference to conflict of law principles of any jurisdiction (including
without limitation New York) which would result in the application of the
domestic substantive laws of any other jurisdiction. The parties consent to the
exclusive jurisdiction of the Supreme Court of New York, Monroe County or of the
United States District Court for the Western District of New York for any legal
action instituted by any party against any other with respect to the subject
matter hereof.
17. Prior Agreements. This Agreement supersedes all previous agreements
related to the subject matter herein, including without limitation the
"Employment Agreement" between the Company and L. Michael Hone dated as of the
first day of January 1988, "Amendment No. 1 to Employment Agreement" between the
Company and L. Michael Hone dated February 27, 1989, "Amended and Restated
Employment Agreement" between the Company and L. Michael Hone dated as of the
first day of August 1991, and "Amendment No. 1 to Employment Agreement" between
the Company and L. Michael Hone dated December 20, 1993.
18. Termination of Obligations. Employee agrees that in the event his
employment with the Company is terminated for any reason, that he will meet with
a representative of the Company and discuss, among other matters, the provisions
of this Agreement and the Employee's obligations hereunder.
19. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof. This agreement may not be
amended or changed except by a writing signed by both parties.
<PAGE>
IN WITNESS WHEREOF, Employee has executed this Agreement and the Company
has caused this Agreement to be executed as of the date set forth above.
PSC Inc.
s/s William J. Woodard
By:William J. Woodard
Attest: Its: Vice President, Finance & Treasurer
C. J. Ruiz
/s/
L. Michael Hone
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JUL-01-1995
<PERIOD-END> SEP-30-1995
<CASH> 6,439
<SECURITIES> 0
<RECEIVABLES> 16,434
<ALLOWANCES> 439
<INVENTORY> 10,794
<CURRENT-ASSETS> 34,689
<PP&E> 21,271
<DEPRECIATION> 3,664
<TOTAL-ASSETS> 71,070
<CURRENT-LIABILITIES> 16,524
<BONDS> 0
<COMMON> 100
0
0
<OTHER-SE> 52,747
<TOTAL-LIABILITY-AND-EQUITY> 71,070
<SALES> 66,060
<TOTAL-REVENUES> 66,060
<CGS> 37,355
<TOTAL-COSTS> 20,987
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 8,274
<INCOME-TAX> 3,093
<INCOME-CONTINUING> 5,181
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,181
<EPS-PRIMARY> .52
<EPS-DILUTED> .53
</TABLE>
