SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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: October 31, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE
TRANSITION PERIOD FROM TO
Commission file number 0-9827
PETROLEUM HELICOPTERS, INC.
(Exact name of registrant as specified in its Charter)
Louisiana 72-0395707
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5728 JEFFERSON HIGHWAY
P. O. BOX 23502
NEW ORLEANS, LOUISIANA 70183
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(504) 733-6790
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the Issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at 12/2/94
Voting Common Stock 3,278,068
Non-Voting Common Stock 2,200,000
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
In thousands October 31, April 30,
(Current period unaudited) 1994 1994 (1)
ASSETS
Current assets:
Cash and cash equivalents $ 1,504 $ 5,452
Accounts receivable - net
of allowance 31,238 27,759
Inventory 24,747 24,850
Prepaid expenses 1,027 1,446
Refundable income taxes - 196
______ _______
Total current assets 58,516 59,703
______ _______
Notes receivable - 290
Investments 1,162 597
Property and equipment:
Cost 197,872 194,810
Less accumulated depreciation (111,009) (109,171)
86,863 85,639
Other assets 104 83
$ 146,645 $ 146,312
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and
accrued expenses $ 18,459 $ 15,740
Accrued vacation pay 4,687 4,687
Income taxes payable 738 -
Current portion of long-term debt 8,229 8,704
Total current liabilities 32,113 29,131
Long-term debt 26,694 31,849
Deferred income taxes 10,023 10,023
Stockholders' equity:
Voting common stock 273 273
Non-voting common stock 183 183
Additional paid-in capital 11,027 11,027
Retained earnings 66,332 63,826
77,815 75,309
$ 146,645 $ 146,312
======= =======
(1)The balance sheet at April 30, 1994 is condensed from the
audited financial statements at that date.
See notes to condensed consolidated financial statements.
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
In thousands, Three Months Ended Six Months Ended
except per October 31, October 31,
share amounts 1994 1993 1994 1993
(unaudited)
REVENUES:
Operating revenues $ 44,841 $ 47,658 $ 88,398 $ 95,276
Gain on equipment
disposals 184 397 956 441
Equity in net earnings
of investee companies 20 (12) 81 3
45,045 48,043 89,435 95,720
EXPENSES:
Direct expenses 39,267 44,170 78,517 86,720
Selling, general and
administrative expenses 2,626 2,373 5,074 4,797
Interest expense 732 728 1,488 1,330
42,625 47,271 85,079 92,847
Earnings before income
taxes 2,420 772 4,356 2,873
Income taxes 965 299 1,740 1,149
Net earnings $ 1,455 $ 473 $ 2,616 $ 1,724
====== ====== ====== ======
Net earnings per share $ .27 $ .08 $ .48 $ .31
====== ====== ====== ======
Weighted average common
shares outstanding 5,478 5,478 5,478 5,478
====== ====== ====== ======
Dividends paid per common
share $ .02 $ -0- $ .02 $ -0-
====== ====== ====== ======
See notes to condensed consolidated financial statements.
<PAGE>
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
In thousands Six Months Ended October 31,
(unaudited) 1994 1993
OPERATING ACTIVITIES:
Net earnings $ 2,616 $ 1,724
Depreciation 4,152 4,095
Gain on equipment disposals (956) (441)
Equity in net earnings
of investee companies (81) (3)
Changes in operating assets
and liabilities 484 1,700
Net cash provided by operating
activities 6,215 7,075
INVESTING ACTIVITIES:
Purchases of property and
equipment (6,348) (8,786)
Proceeds from equipment disposals 1,925 846
Net cash used by
investing activities (4,423) (7,940)
FINANCING ACTIVITIES:
Proceeds from long-term debt 4,500 29,030
Payments on long-term debt (10,130) (26,217)
Dividends paid (110) -
Net cash provided (used) by
financing activities (5,740) 2,813
Increase (decrease) in cash
and cash equivalents (3,948) 1,948
Cash and cash equivalents
at beginning of period 5,452 2,309
Cash and cash equivalents
at end of period $ 1,504 $ 4,257
======= =======
See notes to condensed consolidated financial statements.
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SIX MONTHS ENDED OCTOBER 31, 1994 AND 1993
(UNAUDITED)
A. These financial statements, except for the April 30, 1994
condensed balance sheet, have been prepared without audit in
compliance with the rules and regulations of the Securities and
Exchange Commission. Certain information and footnote
disclosures normally included in the financial statements have
been condensed or omitted pursuant to such rules and regulations;
however, the Company believes that this information is fairly
presented. It is suggested that these condensed consolidated
financial statements should be read in conjunction with the
Company's Annual Report on Form 10-K for the year ended April 30,
1994 and its accompanying notes and Management's Discussion and
Analysis of Financial Condition and Results of Operations.
B. In the opinion of management, the accompanying unaudited
condensed consolidated financial statements contain all
adjustments, consisting of only normal, recurring adjustments,
necessary to fairly present the financial results for the interim
periods presented.
C. The Company's financial results, particularly as it relates
to its domestic oil and gas operations, are influenced by
seasonal fluctuations. During the Company's third fiscal
quarter, there are historically more days of adverse weather
conditions and fewer hours of daylight than the other months of
the year. Consequently, flight hours are generally lower during
the winter than they are at other times of the year. This
produces a seasonal aspect to the Company's business and
typically results in reduced revenues from operations during
those months. Therefore, the results of operations for interim
periods are not necessarily indicative of the operating results
that may be expected for the full fiscal year.
D. Certain reclassifications have been made to the prior year's
financial statements in order to conform with the classifications
adopted for reporting in fiscal 1995.
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following is a comparison of the second quarter and the
first six months of the fiscal year ending April 30, 1995 with
the comparable periods of the prior fiscal year.
The Company is engaged in providing helicopter transporta-
tion and related services. The predominant portion of its
revenue is derived from transporting offshore oil and gas produc
tion and drilling workers on a worldwide basis. The Company also
performs helicopter transportation services for a variety of
hospital and medical programs and aircraft maintenance to outside
parties.
RESULTS OF OPERATIONS
Second Quarter Fiscal 1995 to Fiscal 1994
Operating revenues decreased $2.9 million, or 6%, to $44.8
million in the second quarter of fiscal 1995 compared to $47.7
million in the prior year period. The overall decrease was
primarily the result of a 6% decrease in flight hours from 55,967
to 52,821. Declines in domestic oil and gas and maintenance
revenues were partially offset by increases in the Company's
aeromedical and international markets.
Domestic oil and gas revenues declined $3.4 million, or 10%
from $33.6 million to $30.2 million. The decrease was primarily
related to the loss of three contracts which represented $3.3
million in revenues in the second quarter of fiscal 1994.
Aeromedical revenues increased $0.7 million, or 12% to $6.4
million in fiscal 1995 from $5.7 million in the same period of
fiscal 1994. Aeromedical flight hours increased 8% to 3,420 as
compared to 3,172. The increase is due to the addition of five
new programs and eight new dedicated aircraft during the past 18
months. The Company was recently awarded two new contracts that
will commence operations in the current fiscal year.
International oil and gas revenues increased 22% to $4.5
million from $3.7 million. Flight hours in the Company's
international markets increased 14% from 4,555 to 5,184. The
addition of two new programs involving two helicopters and one
fixed wing aircraft resulted in the improved revenues.
Other revenues, including maintenance, declined $1 million
to $3.7 million from $4.7 million.
The Company's operating margin improved to 12% for the
current quarter from 7% in the prior year's quarter. The in
crease is a direct result of the Company's efforts to control
costs. Consistent with the decline in revenues and flight hours,
direct operating costs declined 11% or $4.9 million. The de
crease resulted primarily from a decline in spare parts and
repairs and maintenance of $2.8 million. Cost of sales fell $0.9
million related to the reduction in maintenance revenues.
Helicopter rent and insurance declined $0.7 million and $0.5
million, respectively.
Selling, general and administrative expenses increased $0.2
million primarily as a result of a non-recurring $0.2 million
increase in professional fees related to the reincorporation of
the Company from Delaware to Louisiana and the Company's efforts
to acquire certain assets of Rocky Mountain Helicopters.
Second quarter interest expense was constant at $0.7 million
as the effect of higher interest rates was offset by lower
outstanding borrowings.
First Six Months Fiscal 1995 to First Six Months Fiscal 1994
On a year-to-date basis, the Company's operating revenues
declined 7%, or $6.9 million, from $95.3 million in the prior
year period to $88.4 million. Overall flight hours decreased 7%
to 104,893 from 112,964. Revenues derived from the domestic oil
and gas market decreased 13% from $68.2 million to $59.2 million.
Aeromedical, international helicopter services and technical
services revenues increased a combined 8% from $27.1 million to
$29.2 million and represented 33% of total revenues compared to
28% for the prior year period.
Equipment disposals increased $0.6 million from $0.4 million
in the prior period to $1 million in the current period. The
increase is due to the sale of six aircraft in the current
period compared to three in the prior fiscal year.
The Company's operating margin improved to 11% compared to
9% for the prior period. Direct operating costs decreased 9%
from $86.7 million to $78.5 million. Direct operating costs
decreased primarily by $2.9 million in repairs, maintenance and
spare parts expense, salaries and benefits of $1.3 million, cost
of sales of $1.6 million, helicopter rent of $0.8 million, fuel
$0.5 million and helicopter insurance of $0.5 million. The
decreases were a result of decreased revenues and flight hours.
Selling, general, and administrative expenses increased $0.3
million from $4.8 million to $5.1 million. The 6% six month
period to period increase primarily resulted from the non-recur
ring $0.2 million increase in professional fees described above.
The $0.2 million increase in year-to-date interest expense
was a result of rising interest rates offset by a decrease in
average debt outstanding.
LIQUIDITY AND CAPITAL RESOURCES
Working capital as of the quarter ended October 31, 1994 was
$26.4 million compared to $30.6 million at April 30, 1994, the
Company's fiscal year end. The Company had total long-term debt
of approximately $34.9 million and helicopter lease commitments
of approximately $61.3 million as of October 31, 1994. Stock
holders' equity rose $2.5 million to $77.8 million at October 31,
1994. The increase was generated entirely from operating profits
net of $0.1 million for dividends paid to shareholders during the
quarter ended October 31,1994.
Cash decreased $3.9 million during the six month period. Net
cash provided by operations was $6.2 million. Cash aggregating
$4.4 million was used in investing activities, primarily for the
purchase of aircraft, and $5.7 million was used to reduce long-
term debt and the payment of dividends.
Certain covenants contained in the Company's financing
agreement prohibit the Company from incurring debt above the
amount available, $14.8 million and $13.5 million at October 31,
1994, under its present revolving credit and term loan facili
ties, respectively. Other covenants included in the financing
agreement restrict the amount of dividends, capital expenditures,
and investments.
The Company believes its cash flow from operations in
conjunction with its credit capacity is sufficient to meet its
planned requirements for the forthcoming fiscal year.
RESULTS AT A GLANCE (Unaudited)
The following table provides a summary of critical operating
and financial statistics (thousands of dollars, except per share
amounts, financial ratios, flight hours and general statistics):
OPERATIONS
Six Months Ended October 31,
1994 1993
Operating revenues $ 88,398 $ 95,276
Expenses 85,079 92,847
Net earnings 2,616 1,724
Net earnings per share .48 .31
Annualized return on
shareholders' equity 6.8% 4.7%
Total flight hours 104,893 112,964
FINANCIAL SUMMARY October 31,1994 April 30,1994
Net working capital $ 26,403 $ 30,572
Net book value of
property and equipment 86,863 85,639
Long-term debt 26,694 31,849
GENERAL STATISTICS October 31,1994 April 30, 1994
Helicopters 251 266
Employees 1,650 1,697
<PAGE>
Part II - OTHER INFORMATION
Item 2. CHANGES IN SECURITIES
Pursuant to the reincorporation merger described more fully
under item 6(B), below, on October 26, 1994, the Company changed
its state of incorporation from Delaware to Louisiana by merging
with a Louisiana corporation organized for this purpose. Pursu
ant to the merger, each share of voting common stock, $.08 1/3
par value per share, of the Company outstanding prior to the
merger was converted into one share of voting common stock, $.10
par value per share, and each share of non-voting common stock,
$.08 1/3 par value per share, of the Company outstanding prior to
the merger was converted into one share of the non-voting common
stock, $.10 par value per share.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The annual meeting of the stockholders of the Company was
held on September 28, 1994, at which time the following matters
were submitted to a vote of stockholders:
(a) The election of the following to the Board of Directors:
Nominees For Withheld
Carroll W. Suggs 2,912,612 269
Leonard M. Horner 2,921,877 4
Robert E. Perdue 2,921,877 4
Robert G. Lambert 2,921,872 4
(b) A proposal to change the state of incorporation of the
Company from Delaware to Louisiana was approved by the
following vote: 2,364,728 for, 362,419 against, and
73,557 abstained.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
2.1 Agreement of Merger dated as of August 25, 1994 between
Petroleum Helicopters, Inc., a Delaware corporation, and Petroleum
Helicopters, Inc., a Louisiana corporation.
3.1 (i) Articles of Incorporation of the Company.
(ii) By-laws of the Company.
10.3 Amended and Restated Loan Agreement originally dated as of
January 31, 1986 Amended and Restated in its entirety as of July 9,
1993 among Petroleum Helicopters, Inc., Whitney National Bank,
First National Bank of Commerce, NationsBank of Texas, N.A. as
agent (incorporated by reference to Exhibit No. 10.3 to PHI's
Report on Form 10-K dated April 30, 1993).
10.8 Petroleum Helicopters, Inc. 1992 Non-Qualified Stock Option
and Stock Appreciation Rights Plan adopted by PHI's Board effective
May 1, 1992 and approved by the stockholders of PHI on September
30, 1992 (incorporated by reference to Exhibit No. 10.8 to PHI's
Report on Form 10-K dated April 30, 1993).
10.9 Form of Stock Option Agreement for the Grant of Non-Quali
fied Stock Options under the Petroleum Helicopters, Inc. 1992 Non-
Qualified Stock Option and Stock Appreciation Rights Plan dated
June 2, 1993 between PHI and certain of its key employees (incorpo
rated by reference to Exhibit No. 10.9 to PHI's Report on Form 10-K
dated April 30, 1993).
10.10 Employment Agreement between PHI and John H. Untereker dated
June 15, 1992 (incorporated by reference to Exhibit No. 10.10 to
PHI's Report on Form 10-K dated April 30, 1993).
10.11 Stock Option Agreement between PHI and John H. Untereker
dated April 12, 1993, but effective as of July 20, 1992 (incorpo
rated by reference to Exhibit No. 10.11 to PHI's Report on Form
10-K dated April 30, 1993).
27 Financial Data Schedule.
(b) Reports on Form 8-K:
On October 28, 1994, the Company filed a Form 8-K to report
that on October 26, 1994 the Company consummated its
reincorporation as a Louisiana corporation. The reincorporation
was approved by the Company's stockholders at its 1994 annual
meeting held on September 28, 1994 and is described in greater
detail in its Proxy Statement dated August 25, 1994. To effect the
reincorporation, Petroleum Helicopters, Inc. a Delaware corpora
tion, was merged into Petroleum Helicopters, Inc. a Louisiana
corporation organized for such purpose. The reincorporation merger
did not change the name, business or management of the Company.
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.
Petroleum Helicopters, Inc.
December 2, 1994 By: Carroll W. Suggs /s/
Carroll W. Suggs
Chairman of the Board
& Chief Executive Officer
December 2, 1994 By: John H. Untereker /s/
John H. Untereker
Vice President and
Chief Financial Officer
EXHIBIT 2
AGREEMENT OF MERGER
AGREEMENT OF MERGER ("Agreement") dated as of August 25,
1994 by and between Petroleum Helicopters, Inc., a Delaware
corporation ("PHI Delaware") and Petroleum Helicopters, Inc., a
Louisiana corporation ("PHI Louisiana"). PHI Delaware and PHI
Louisiana are hereinafter sometimes collectively referred to as
the "Constituent Corporations."
WHEREAS, PHI Delaware, as the sole shareholder of PHI
Louisiana, desires to effect a merger of PHI Delaware with and
into PHI Louisiana pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "DGCL") and the
Louisiana Business Corporation Law (the "LBCL");
WHEREAS, the respective Boards of Directors of PHI Delaware
and PHI Louisiana have determined that it is advisable and in the
best interests of their respective corporations that PHI Delaware
merge with and into PHI Louisiana upon the terms and subject to
the conditions herein provided, and have, by resolutions duly
adopted, approved this Agreement and authorized it to be executed
by the undersigned officers and directed that it be submitted to
a vote of the stockholders of PHI Delaware and the sole
stockholder of PHI Louisiana;
WHEREAS, the merger of the Constituent Corporations is
intended to be a reorganization as defined in Section 368 of the
Internal Revenue Code of 1986, as amended, and this Agreement
constitutes a plan of reorganization.
In consideration of the mutual agreements herein contained
and for other good and valuable consideration, the parties agree
that PHI Delaware shall be merged with and into PHI Louisiana and
that the terms and conditions of the merger, the mode of carrying
the merger into effect, the manner of converting the shares of
the Constituent Corporations and certain other provisions
relating thereto shall be as hereinafter set forth.
ARTICLE 1. The Merger
1.1 Merger. (a) Subject to receipt of the approvals of
this Agreement specified in Section 3.1 hereof, and in accordance
with the DGCL and the LBCL, at the Effective Time (as defined in
Section 1.4 hereof), PHI Delaware shall be merged with and into
PHI Louisiana (the "Merger"), with PHI Louisiana to be the
surviving corporation (the "Surviving Corporation").
(b) Upon consummation of the Merger, (i) the separate
existence of PHI Delaware shall cease, and (ii) the Merger shall
have the effects provided for herein and in Section 115 of the
LBCL and Section 259 of the DGCL.
1.2 The Closing. The Closing of the Merger contemplated
hereby will take place at the offices of PHI Delaware, 5728
Jefferson Highway, New Orleans, Louisiana, on a mutually
agreeable date as soon as practicable following satisfaction of
the conditions set forth in Section 3.1 hereof or, if no date has
been agreed to, on any date specified by either party to the
other upon ten days notice following satisfaction of such
conditions. The date on which the Closing occurs is herein
called the "Closing Date." At the Closing (a) PHI Delaware and
PHI Louisiana shall each provide to the other such proof of the
receipt of stockholder approval as the other party may reasonably
request, (b) the appropriate officers of PHI Delaware and PHI
Louisiana shall certify, execute and acknowledge this Agreement
in the manner required by law and shall execute, deliver and
acknowledge duplicate originals of the certificate of merger in
the form attached as Appendix A hereto (the "Certificate of
Merger") and (c) the parties shall take such further action as is
required to consummate the transactions contemplated by this
Agreement.
1.3 Filing of Certificate of Merger. Immediately following
the execution, delivery and acknowledgment of duplicate originals
of the Certificate of Merger, one duplicate original shall be
delivered to the Secretary of State of Delaware for filing and
recordation in the manner required by law, and, immediately
thereafter, a second duplicate original shall be delivered to the
Secretary of State of Louisiana for filing and recordation in the
manner required by law. A certified copy of the Certificate of
Merger shall be recorded in the office of the recorder of the
county in the State of Delaware in which the registered office of
PHI Delaware is located, and a duplicate original of the
certificate of merger issued by the Secretary of State of
Louisiana shall be filed for record in the Office of the Recorder
of Mortgages of the parish in which PHI Louisiana has its
registered office and in the Office of the Recorder of
Conveyances of each parish in which PHI Delaware has immovable
property.
1.4 The Effective Date and Time. The Merger shall be
effective at the date and time specified in the Certificate of
Merger. The date on which and the time at which the Merger shall
become effective is herein referred to as the "Effective Date"
and "Effective Time," respectively.
1.5 Additional Actions. If at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that
any further assignments or assurances in law or any other acts
are necessary or desirable to (a) vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation, title to and
possession of any property or right of PHI Delaware acquired or
to be acquired by reason of, or as a result of, the Merger, or
(b) otherwise carry out the purposes of this Agreement, PHI
Delaware and its proper officers and directors shall be deemed to
have granted hereby to the Surviving Corporation an irrevocable
power of attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary or
proper to vest, perfect or confirm title to and the possession of
such property or rights in the Surviving Corporation and
otherwise to carry out the purposes of this Agreement; and the
proper officers and directors of the Surviving Corporation are
hereby fully authorized in the name of PHI Delaware or otherwise
to take any and all such action.
ARTICLE 2. Manner, Basis and Effect of Converting Shares
2.1 Conversion of Shares. At the Effective Time:
(a) Each share of voting common stock, par value $.08-
1/3 per share, of PHI Delaware ("Delaware Voting Common Stock"),
issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into one fully paid and
nonassessable share of voting common stock, par value $.10 per
share, of PHI Louisiana ("Louisiana Voting Common Stock");
(b) Each share of non-voting common stock, par value
$.08-1/3 per share, of PHI Delaware ("Delaware Non-Voting Common
Stock" and, together with the Delaware Voting Common Stock, the
"Delaware Stock"), issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into one
fully paid and nonassessable share of non-voting common stock,
par value $.10 per share, of PHI Louisiana ("Louisiana Non-Voting
Common Stock" and, together with the Louisiana Voting Common
Stock, the "Louisiana Stock");
(c) Each share of Delaware Voting Common Stock held in
the treasury of PHI Delaware immediately prior to the Effective
Time shall by virtue of the Merger be converted into one fully
paid and nonassessable share of Louisiana Voting Common Stock;
(d) Each share of Delaware Non-Voting Common Stock
held in the treasury of PHI Delaware immediately prior to the
Effective Time shall by virtue of the Merger be converted into
one fully paid and nonassessable share of Louisiana Non-Voting
Common Stock; and
(e) Each share of Louisiana Voting Common Stock issued
and outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holder thereof, be cancelled and retired and shall cease to
exist.
2.2 Effect of Conversion. At and after the Effective Time,
each stock certificate that immediately prior to the Effective
Time represented outstanding shares of Delaware Stock ("Delaware
Stock Certificates") shall be deemed for all purposes to evidence
ownership of, and to represent, the number of shares of Louisiana
Stock into which the share of Delaware Stock represented by such
certificates immediately prior to the Effective Time shall have
been converted pursuant to Section 2.1 hereof. The registered
owner of any Delaware Stock Certificate outstanding immediately
prior to the Effective Time, as such owner appears in the books
and records of PHI Delaware or its transfer agent immediately
prior to the Effective Time, shall, until such certificate is
surrendered for transfer or exchange, have and be entitled to
exercise any voting, dividend, distribution and all other rights
with respect to the shares of Louisiana Stock into which the
shares represented by any such certificate have been converted.
ARTICLE 3. Approval; Amendment; Termination; Miscellaneous
3.1 Approval. This Agreement shall be submitted for
approval to the stockholders of PHI Delaware at its 1994 annual
meeting of stockholders and to PHI Delaware as the sole
shareholder of PHI Louisiana. Consummation of the transactions
contemplated by this Agreement shall be subject to, and
controlled upon, the approval of the stockholders of both parties
hereto.
3.2 Amendment. Subject to applicable law, this Agreement
may be amended, modified or supplemented by written agreement of
the Constituent Corporations at any time prior to the Effective
Time, except that after shareholder approval contemplated by
Section 3.1 hereof, there shall be no amendments that (a) alter
or amend the amount or kind of shares to be received by
stockholders in the Merger, (b) alter or amend any term of the
Articles of Incorporation of PHI Louisiana, or (c) alter or amend
any of the terms and conditions of this Agreement if such
alteration or amendment would adversely affect the holders of any
class of stock of either of the Constituent Corporations.
3.3 Abandonment. At any time prior to the Effective Time,
this Agreement may be terminated and the Merger may be abandoned
by the Board of Directors of either PHI Louisiana or PHI
Delaware, or both, notwithstanding approval of this Agreement by
the sole shareholder of PHI Louisiana or the stockholders of PHI
Delaware, or both.
3.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute a
single instrument.
3.5 Registered Agent in Louisiana. The name and address of
the registered agent in Louisiana upon whom any process, notice
or demand against PHI Delaware or the Surviving Corporation may
be served is:
Robert D. Cummiskey, Jr.
Petroleum Helicopters, Inc.
5728 Jefferson Highway
P.O. Box 23502
New Orleans, Louisiana 70183
3.6 Designated Agent in Delaware. The Surviving
Corporation agrees that it may be served with process in the
State of Delaware in any proceeding for enforcement of any
obligation of PHI Delaware, as well as for enforcement of any
obligation of the Surviving Corporation arising from the Merger,
and the Surviving Corporation irrevocably appoints the Delaware
Secretary of State as its agent to accept service of process in
any suit or other proceedings; a copy of such process shall be
mailed by the Delaware Secretary of State to:
Robert D. Cummiskey, Jr.
Petroleum Helicopters, Inc.
5728 Jefferson Highway
P.O. Box 23502
New Orleans, Louisiana 70183
IN WITNESS WHEREOF, PHI Delaware and PHI Louisiana have
caused this Agreement to be signed by their respective duly
authorized officers as of the date first above written.
PETROLEUM HELICOPTERS, INC.,
Attest: a Delaware Corporation
By: /s/Robert D. Cummiskey, Jr. By: /s/ Carroll W. Suggs
____________________________ ___________________________
Robert D. Cummiskey, Jr. Carroll W. Suggs
Secretary Chairman of the Board and
Chief Executive Officer
PETROLEUM HELICOPTERS, INC.,
Attest: a Louisiana Corporation
By: /s/ Robert D. Cummiskey, Jr. By: /s/ Carroll W. Suggs
_____________________________ ___________________________
Robert D. Cummiskey, Jr. Carroll W. Suggs
Secretary Chairman of the Board,
President and
Chief Executive Officer
<PAGE>
CERTIFICATE OF SECRETARIES
The undersigned Secretary of Petroleum Helicopters, Inc., a
Delaware corporation, and the undersigned Secretary of Petroleum
Helicopters, Inc., a Louisiana corporation, hereby certify with
respect to the corporation of which they serve in such capacity
that this Agreement of Merger has been approved by the
stockholders of such corporations in the manner required by law.
Dated: September 28, 1994 _______________________________________
Robert D. Cummiskey, Jr.
Secretary, Petroleum Helicopters, Inc.,
a Delaware corporation
_______________________________________
Robert D. Cummiskey, Jr.
Secretary, Petroleum Helicopters, Inc.,
a Louisiana corporation
CERTIFICATE OF OFFICERS
Pursuant to Section 112 of the Louisiana Business
Corporation Law, the undersigned corporations have caused this
Agreement of Merger to be executed by their respective duly
authorized officer.
Dated: September 28,1994 PETROLEUM HELICOPTERS, INC.,
a Delaware corporation
By: /s/ John H. Untereker
__________________________________
John H. Untereker
Vice President and Chief Financial Officer
PETROLEUM HELICOPTERS, INC.,
a Louisiana corporation
By: /s/ Carroll W. Suggs
_________________________________
Carroll W. Suggs
Chairman of the Board, President
and Chief Executive Officer
<PAGE>
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF JEFFERSON
BEFORE ME, the undersigned, personally came and appeared
John H. Untereker, the Vice President and Chief Financial Officer
of Petroleum Helicopters, Inc., a Delaware corporation, and
Carroll W. Suggs, the Chairman of the Board, President and Chief
Executive Officer of Petroleum Helicopters, Inc., a Louisiana
corporation, known to me to be the persons and officers whose
names are subscribed to the foregoing instrument, and being duly
sworn, declared and acknowledged before me and the undersigned
competent witnesses that they were each authorized to and
executed the foregoing Agreement of Merger in such capacities on
behalf of each such corporation for the purposes therein
expressed and as their free act and deed.
IN WITNESS WHEREOF, the witnesses and I have hereunto
affixed our hands on this 28th day of September, 1994.
WITNESSES:
__________________________ ___________________________
NOTARY PUBLIC
__________________________
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
of
PETROLEUM HELICOPTERS, INC.
(a Delaware corporation)
with and into
PETROLEUM HELICOPTERS, INC.
(a Louisiana corporation)
(filed pursuant to Section 253(a) of the General Corporation Law
of the State of Delaware and pursuant to Section 112G(1)(a) of
the Louisiana Business Corporation Law)
In order to effect the merger of Petroleum Helicopters,
Inc., a Delaware corporation ("PHI Delaware"), with and into
Petroleum Helicopters, Inc., a corporation organized under the
laws of the State of Louisiana on the 23rd day of August, 1994
("PHI Louisiana"), PHI Delaware certifies pursuant to Section
253(a) of the General Corporation Law of the State of Delaware
and the undersigned Vice President and Secretary of PHI Delaware
certify pursuant to Section 112G(1)(a) of the Louisiana Business
Corporation Law that:
First: PHI Delaware was incorporated in accordance with the
laws of the State of Delaware in 1949;
Second: PHI Delaware owns all of the outstanding shares of
each class of capital stock of PHI Louisiana;
Third: On July 26, 1994, PHI Delaware's Board of Directors
duly adopted the following resolutions:
RESOLVED, that the Agreement of Merger (the
"Merger Agreement") by and between PHI and the
Petroleum Helicopters, Inc., a Louisiana corporation
and a wholly owned subsidiary of PHI (the "Louisiana
Corporation"), is hereby approved in the form presented
to the Board and PHI's Chairman and Chief Executive
Officer is hereby authorized to execute and deliver the
Merger Agreement on behalf of PHI in such form with
those changes as she, in her sole discretion, shall
deem necessary or appropriate;
FURTHER RESOLVED, that upon approval of the Merger
Agreement by PHI's stockholders at PHI's next annual
meeting of stockholders, PHI's Secretary is hereby
authorized and directed to certify such fact on the
Merger Agreement;
FURTHER RESOLVED, that upon satisfaction of the
conditions set forth in the Merger Agreement, PHI's
Chairman and Chief Executive Officer and PHI's Vice
President and Chief Financial Officer and all other
appropriate officers of PHI are hereby authorized to
execute, acknowledge, certify and file on behalf of PHI
any certificates of merger required by law, including,
without limitation, the Certificate of Ownership and
Merger attached as Appendix A to the Merger Agreement;
FURTHER RESOLVED, that each of PHI's Chairman and
Chief Executive Officer and PHI's Vice President and
Chief Financial Officer is hereby authorized to execute
and deliver on behalf of PHI a consent by which PHI,
acting in its capacity as the sole stockholder of the
Louisiana Corporation, approves the Merger Agreement;
and
FURTHER RESOLVED, that the appropriate officers of
PHI are hereby authorized to take all other actions, to
pay all expenses and costs and to execute and deliver,
or cause to be executed and delivered, in the name of
and on behalf of PHI all further agreements,
certificates, instruments and documents, that they, in
their sole discretion, deem to be necessary or
advisable in order to consummate the transactions
contemplated by the Merger Agreement, including,
without limitation, filing any notices or applications
required under the "blue sky" laws of any jurisdiction
and filing any letters of notification with the
National Association of Securities Dealers, Inc. as may
be required or requested;
Fourth: The Merger Agreement, as approved by PHI Delaware's
Board of Directors on July 26, 1994, includes the following
provisions for the pro rata issuance of stock of PHI Louisiana to
the holders of stock of PHI Delaware:
(1) Each share of voting common stock, par value
$.08-1/3 per share, of PHI Delaware, issued and
outstanding immediately prior to the time at which the
Merger (as defined below) shall be effective (the
"Effective Time"), shall, by virtue of the Merger and
without any action on the part of the holder thereof,
be converted into one fully paid and nonassessable
share of voting common stock, par value $.10 per share,
of PHI Louisiana;
(2) Each share of non-voting common stock, par
value $.08-1/3 per share, of PHI Delaware, issued and
outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into
one fully paid and nonassessable share of non-voting
common stock, par value $.10 per share, of PHI
Louisiana;
(3) Each share of voting common stock, par value
$.08-1/3 per share, of PHI Delaware, held in the
treasury of PHI Delaware immediately prior to the
Effective Time shall by virtue of the Merger be
converted into one fully paid and nonassessable share
of voting common stock, par value $.10 per share, of
PHI Louisiana;
(4) Each share of non-voting common stock, par
value $.08-1/3 per share, of PHI Delaware, held in the
treasury of PHI Delaware immediately prior to the
Effective Time shall by virtue of the Merger be
converted into one fully paid and nonassessable share
of non-voting common stock, par value $.10 per share,
of PHI Louisiana; and
(5) Each share of voting common stock of PHI
Louisiana, issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof,
be cancelled and retired and shall cease to exist;
Fifth: On September 28, 1994, the stockholders of PHI
Delaware approved the merger of PHI Delaware with and into PHI
Louisiana (the "Merger") in accordance with the requirements of
Section 112 of the Louisiana Business Corporation Law and Section
253 of the General Corporation Law of the State of Delaware;
Sixth: This certificate has been or will be filed with the
Secretaries of State of the States of Delaware and Louisiana, and
the Merger shall be effective under the laws of each respective
state as of 11:00 a.m. C.D.S.T. on October 26, 1994, provided
that this certificate has been filed with and recorded by the
Secretary of State of the other respective state at or prior to
such time; and
Seventh: Under Section 3.6 of the Agreement of Merger dated
as of August 25, 1994 by and between PHI Delaware and PHI
Louisiana, PHI Louisiana has agreed that it may be served with
process in the State of Delaware in any proceeding for
enforcement of any obligation of PHI Delaware, as well as for
enforcement of any obligation of PHI Louisiana, and irrevocably
appointed the Secretary of State of Delaware as its agent to
accept service of process in any such suit or other proceeding
and has specified the address to which a copy of such process
shall be mailed by the Secretary of State of Delaware as follows:
Robert D. Cummiskey, Jr., Petroleum Helicopters, Inc., 5728
Jefferson Highway, New Orleans, Louisiana 70123.
**********
IN WITNESS WHEREOF, this Certificate of Ownership and Merger
has been executed on this ___ day of September, 1994 by PHI
Delaware, acting through its Chairman of the Board and Chief
Executive Officer and by PHI Delaware's Vice President and Chief
Financial Officer and PHI Delaware's Secretary.
PETROLEUM HELICOPTERS, INC.,
Attest: a Delaware Corporation
By: ______________________ By: _______________________________
Robert D. Cummiskey, Jr. Carroll W. Suggs
Secretary Chairman of the Board and
Chief Executive Officer
_______________________________
John H. Untereker
Vice President and Chief Financial Officer
_______________________________
Robert D. Cummiskey, Jr.
Secretary
Signature page to
Certificate of Ownership and Merger
of Petroleum Helicopters, Inc., a Delaware corporation
with and into Petroleum Helicopters, Inc., a Louisiana
corporation
<PAGE>
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF JEFFERSON
BEFORE ME, the undersigned, personally came and appeared
Carroll W. Suggs, the Chairman of the Board and Chief Executive
Officer, of Petroleum Helicopters, Inc., a Delaware corporation
("PHI Delaware"), John H. Untereker, PHI Delaware's Vice
President and Chief Financial Officer and Robert D. Cummiskey,
Jr., PHI Delaware's Secretary, known to me to be the persons and
officers whose names are subscribed to the foregoing instrument,
and being duly sworn, declared and acknowledged before me and the
undersigned competent witnesses that they were each authorized to
and executed the foregoing Certificate of Ownership and Merger in
such capacities on behalf of PHI Delaware for the purposes
therein expressed and as their free act and deed.
IN WITNESS WHEREOF, the witnesses and I have hereunto
affixed our hands on this ___ day of September, 1994.
WITNESSES:
_________________________ _______________________________
NOTARY PUBLIC
_________________________
EXHIBIT 3 (i)
ARTICLES OF INCORPORATION
of
PETROLEUM HELICOPTERS, INC.
ARTICLE I
Name
The name of the corporation is Petroleum Helicopters, Inc.
(the "Corporation").
ARTICLE II
Purpose
The Corporation's purpose is to engage in any lawful
activity for which corporations may be formed under the Business
Corporation Law of Louisiana.
ARTICLE III
Capital
A. The Corporation is authorized to issue 12,500,000
shares of voting common stock, par value $.10 per share (the
"Voting Common Stock"), 12,500,000 shares of non-voting common
stock, par value $.10 per share (the "Non-Voting Common Stock"),
and 10,000,000 shares of preferred stock, no par value per share
(the "Preferred Stock").
B. Each share of Voting Common Stock shall entitle the
holder thereof to one vote with respect to such share of Voting
Common Stock on each matter properly submitted to the
Corporation's shareholders for their vote, consent, waiver,
release or other action. Unless otherwise required by law,
holders of the Non-Voting Common Stock shall not be entitled to
any voting rights. Except with respect to voting rights, each
share of Voting Common Stock and Non-Voting Common Stock shall be
identical in all other respects.
C. Shares of Preferred Stock may be issued from time to
time in one or more series. Authority is hereby vested in the
Corporation's board of directors (the "Board"), subject to
Article IV, to amend these articles of incorporation from time to
time to fix the preferences, limitations and relative rights as
among the shares of Preferred Stock, Voting Common Stock and Non-
Voting Common Stock, and to establish and fix variations in the
preferences, limitations and relative rights as between different
series of Preferred Stock.
ARTICLE IV
Voting of Shareholders
A. The affirmative vote of the holders of a majority of
the total voting power of the Corporation shall decide any matter
properly brought before a shareholders' meeting duly organized
for the transaction of business unless by express provision of
law or these Articles of Incorporation a different vote is
required, in which case such express provision shall govern.
Directors shall be elected by plurality vote.
B. (1) For purposes of this paragraph B, the following
terms shall have the meanings specified below:
"Beneficial Ownership," "Beneficially
Owned," or "Beneficially Own" refers to
beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in
paragraph (d)(1)(i) thereof) promulgated by
the Securities and Exchange Commission as
such rule may be amended from time to time.
"FAA" means the Federal Aviation
Administration.
"Non-Citizen Owned Shares" means any
issued and outstanding Voting Securities that
are owned of record, Beneficially Owned, or
otherwise controlled by any Person or Persons
who are not United States Citizens.
"Permitted Percentage" means one percent
less than the percentage of the voting
interest in the Corporation that may be owned
or controlled by Persons who are not United
States Citizens without loss, under Section
1301(16) of Title 49 of the United States
Code or any successor or other applicable law
or regulation, of the United States Citizen
status of the Corporation or any Subsidiary.
"Person" means any individual,
corporation, partnership, trust or other
entity of any nature whatsoever.
"Subsidiary" means any corporation of
which a majority of any class of equity
security is owned, directly or indirectly, by
the Corporation.
"United States Citizen" means any Person
who is a Citizen of the United States as
defined in Section 1301(16) of Title 49 of
the United States Code, as in effect on the
date in question, or any successor statute or
regulation.
"Voting Securities" means the Voting
Common Stock, any other voting stock of the
Corporation, and any bonds, debentures or
similar obligations granted voting rights by
the Corporation.
(2) The Corporation holds an operating
certificate issued by the FAA pursuant to the
regulations promulgated under the Federal Aviation Act
of 1958, as amended, and the Board and shareholders
deem the retention of the Corporation's rights under
such certificate to be of material importance to the
Corporation. As long as the Corporation holds, or the
Board deems it desirable for the Corporation to hold,
its current operating certificate or any other
certificate issued by the FAA pursuant to the Federal
Aviation Act of 1958, as amended, and the regulations
promulgated thereunder or any successor statute or
regulation, it shall be the Corporation's policy that
the number of Non-Citizen Owned Shares shall not exceed
the Permitted Percentage.
(3) If at any time the voting interest of Non-
Citizen Owned Shares exceeds the Permitted Percentage,
then (i) the voting power otherwise attributable to
each Non-Citizen Owned Share shall be immediately and
automatically reduced on a pro rata basis (based on the
proportion of the voting power otherwise attributable
to such Non-Citizen Owned Share to the total voting
power attributable to all Non-Citizen Owned Shares)
without any further action by the Corporation so that
the maximum number of votes that may be cast by the
holders of all Non-Citizen Owned Shares shall equal the
Permitted Percentage and (ii) the total voting power of
any affected class or series of Voting Securities shall
also be immediately and automatically reduced without
any further action by the Corporation by the total
number of votes by which the voting power of Non-
Citizen Owned Shares of such class or series was
reduced pursuant to clause (i) of this subparagraph
(3).
(4) In determining the citizenship of any Person
who Beneficially Owns Voting Securities, the
Corporation may rely on the Corporation's stock
transfer records and the citizenship provided by any
Person shown as the Record Owner and any Person who the
Corporation has reasonable cause to believe
Beneficially Owns such voting securities. The Board
may establish procedures to monitor the Beneficially
Ownership and control of Voting Securities, to make any
reasonable determination regarding the Beneficial
Ownership and control of Voting Securities, and to take
any actions deemed necessary or desirable to ensure
that the voting interest of Non-Citizen Owned Shares
does not exceed the Permitted Percentage. The Board
may, but unless expressly provided otherwise is not
required to, rely on any statutes, regulations,
policies, procedures, rulings, or determinations of the
FAA, or any successor governmental authority, in
deciding the extent to which Voting Securities are
Beneficially Owned or controlled by United States
Citizens.
(5) The Corporation may by notice in writing
(which may be included in a proxy or ballot distributed
to the Corporation's shareholders) require any Person
that is a holder of record of Voting Securities or that
the Corporation has reasonable cause to believe
Beneficially Owns or controls Voting Securities to
certify in such manner as the Corporation shall deem
appropriate (including execution of a proxy or ballot)
that, to the knowledge of such Person:
(a) all Voting Securities owned of
record, Beneficially Owned, or controlled by
such Person are owned and controlled only by
United States Citizens; or
(b) the number and class or series of
Non-Citizen Owned Shares owned of record,
Beneficially Owned, or controlled by such
Person are as set forth in such certificate.
The Corporation may require any Person certifying as to
the ownership or control of Voting Securities in
response to clause (a) of this subparagraph (5) to
provide such further information as the Corporation may
reasonably request in order to implement the provisions
of this paragraph B. If any Person fails to provide
such certificate or other information, the Corporation
may presume that all such Voting Securities are Non-
Citizen Owned Shares.
C. Special meetings of the shareholders may be called at
any time by the Board or the officers of the Corporation as
provided in the Corporation's by-laws or upon the written request
of any shareholder or group of shareholders holding in the
aggregate at least 40% of the total voting power of the
Corporation. Upon receipt of such a shareholder request, the
Secretary shall call a special meeting of shareholders to be held
at the registered office of the Corporation at such time as the
Secretary may fix, not less than 15 nor more than 60 days after
the receipt of such request, and if the Secretary shall neglect
or refuse to fix such time or to give notice of the meeting, the
shareholder or shareholders making the request may do so. Such
request must state the specific purpose or purposes of the
proposed special meeting and the business to be conducted thereat
shall be limited to such purpose or purposes.
ARTICLE V
Directors
A. The Board shall consist of such number of persons as
shall be designated in the Corporation's by-laws. No decrease in
the number of directors shall shorten the term of any incumbent
director.
B. Any director absent from a meeting of the Board or any
committee thereof may be represented by any other director, who
may cast the vote of the absent director according to the written
instructions, general or special, of the absent director.
ARTICLE VI
Limitation of Liability and Indemnification
A. To the fullest extent permitted by the Business
Corporation Law of Louisiana, no director or officer of the
Corporation shall be liable to the Corporation or to its
shareholders for monetary damages for breach of his fiduciary
duty as a director or officer.
B. The Board may (1) cause the Corporation to enter into
contracts with directors and officers providing for the
limitation of liability set forth in this Article VI and for
indemnification of directors and officers to the fullest extent
permitted by law, (2) adopt by-laws or resolutions providing for
indemnification of directors, officers and other persons to the
fullest extent permitted by law and (3) cause the Corporation to
exercise the powers set forth in La.R.S. 12:83F, notwithstanding
that some or all of the members of the Board acting with respect
to the foregoing may be parties to such contracts or
beneficiaries of such by-laws or resolutions.
C. No amendment or repeal of any by-law or resolution
relating to indemnification shall adversely affect any person's
entitlement to indemnification whose claim thereto results from
conduct occurring prior to the date of such amendment or repeal.
D. Any amendment or repeal of this Article VI shall not
adversely affect any elimination or limitation of liability of a
director or officer of the Corporation under this Article VI with
respect to any action or inaction occurring prior to the time of
such amendment or repeal.
ARTICLE VII
Reversion
Cash, property or share dividends, shares issuable to share-
holders in connection with a reclassification of stock, and the
redemption price of redeemed shares, which are not claimed by the
shareholders entitled thereto within one year after the dividend
or redemption price became payable or the shares became issuable,
despite reasonable efforts by the Corporation to pay the dividend
or redemption price or deliver the certificates for the shares to
such shareholders within such time, shall, at the expiration of
such time, revert in full ownership to the Corporation, and the
Corporation's obligation to pay such dividend or redemption price
or issue such shares, as the case may be, shall thereupon cease;
provided that the Board may, at any time, for any reason
satisfactory to it, but need not, authorize (A) payment of the
amount of any cash or property dividend or redemption price or
(B) issuance of any shares, ownership of which has reverted to
the Corporation pursuant to this Article VII, to the persons or
entity who or which would be entitled thereto had such reversion
not occurred.
ARTICLE VIII
Incorporator
The name and post office address of the incorporator is:
Robert D. Cummiskey, Jr.
Petroleum Helicopters, Inc.
5728 Jefferson Highway
New Orleans, Louisiana 70123
Dated: August 23, 1994
WITNESSES:
______________________________ ______________________________
Robert D. Cummiskey, Jr.
Incorporator
______________________________
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned, personally came and appeared
Robert D. Cummiskey to me known to be the person who signed the
foregoing instrument as Incorporator, and who, having been duly
sworn, acknowledged and declared, in the presence of the two
witnesses whose names are subscribed above, that he signed such
instrument as his free act and deed for the purposes mentioned
therein.
IN WITNESS WHEREOF, the appearer, witnesses and I have
hereunto fixed our hands on this 23rd day of August, 1994 at New
Orleans, Louisiana.
WITNESSES:
______________________________ ______________________________
Robert D. Cummiskey, Jr.
Incorporator
______________________________
________________________________________
Notary Public
EXHIBIT 3 (ii)
Adopted 8/25/94
Amended 9/28/94
BY-LAWS
of
PETROLEUM HELICOPTERS, INC.
SECTION I
OFFICES
1.1 Principal Office. The principal office of the
Corporation shall be located at 5728 Jefferson Highway, Harahan,
Louisiana 70123.
1.2 Additional offices. The Corporation may have such
offices at such other places as the Corporation's Board of
Directors (the "Board") may from time to time determine or the
business of the Corporation may require.
SECTION 2
SHAREHOLDERS MEETINGS
2.1 Place of Meetings. Unless otherwise required by law or
these By-laws, all meetings of the shareholders shall be held at
the principal office of the Corporation or at such other place,
within or without the State of Louisiana, as may be designated by
the Board.
2.2 Annual Meetings; Notice Thereof. An annual meeting of
the shareholders shall be held on the second Thursday of
September in each year, at 10:00 a.m., or at such other date or
at such other time specified as the Board shall designate, for
the purpose of electing directors and for the transaction of such
other business as may be properly brought before the meeting. If
no annual shareholders' meeting is held for a period of eighteen
months, any shareholder may call such meeting to be held at the
registered office of the Corporation as shown on the records of
the Secretary of State of Louisiana.
2.3 Special Meetings. Special meetings of the share-
holders, for any purpose or purposes, may be called by the
Chairman of the Board, Chief Executive Officer and President (the
"Chairman, CEO and President") or the Board or by the
shareholders as provided in the Articles of Incorporation.
2.4 Notice of Meetings. Except as otherwise provided by
law, the authorized person or persons calling a shareholders'
meeting shall cause written notice of the time, place and purpose
of the meeting to be given to all shareholders entitled to vote
at such meeting, at least ten days and not more than sixty days
prior to the day fixed for the meeting. Notice of the annual
meeting need not state the purpose or purposes thereof, unless
action is to be taken at the meeting as to which notice is
required by law or the By-laws. Notice of a special meeting shall
state the purpose or purposes thereof, and the business conducted
at any special meeting shall be limited to the purpose or
purposes stated in the notice.
2.5 List of Shareholders. At every meeting of
shareholders, a list of shareholders entitled to vote, arranged
alphabetically and certified by the Corporation's Secretary or by
the agent of the Corporation having charge of transfers of
shares, showing the number and class of shares held by each such
shareholder on the record date for the meeting, shall be produced
on the request of any shareholder.
2.6 Quorum. At all meetings of shareholders, the holders
of a majority of the total voting power of the Corporation shall
constitute a quorum; provided that this subsection shall not have
the effect of reducing the vote required to approve or affirm any
matter that may be established by law, the Articles of
Incorporation or these By-laws.
2.7 Voting. When a quorum is present at any meeting, the
vote of the holders of a majority of the voting power present in
person or represented by proxy shall decide each question brought
before such meeting, unless the question is one upon which, by
express provision of law or the Articles of Incorporation, a
different vote is required, in which case such express provision
shall govern and control the decision of such question. Directors
shall be elected by plurality vote.
2.8 Proxies-General. At any meeting of the shareholders,
every shareholder having the right to vote shall be entitled to
vote in person or by proxy appointed by an instrument in writing
executed by such shareholder and bearing a date not more than
eleven months prior to the meeting, unless the instrument
provides for a longer period, but in no case will an outstanding
proxy be valid for longer than three years from the date of its
execution. The person appointed as proxy need not be a
shareholder of the Corporation.
2.9 Execution of Proxies. Any proxy must be executed by a
shareholder or the shareholder's authorized officer, director,
employee or agent. Any signature on a proxy may be affixed by
any reasonable means, including but not limited to facsimile
signature.
2.10 Electronically Transmitted Proxies. A shareholder may
authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telegram,
cablegram or other means of electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or similar agent duly
authorized by the person who will be the holder of the proxy to
receive such transmission; provided, however, that any such
telegram, cablegram or other means of electronic transmission
shall be submitted with information from which the Corporation
may determine that the telegram, cablegram or other electronic
transmission was authorized by the shareholder. If it is
determined that such electronic transmissions are valid, the
inspectors or other persons making that determination shall
specify the information upon which they relied.
2.11 Validity of Copies and other Reproductions of Proxies.
Any copy, facsimile, telecommunication or other reliable
reproduction of the writing or transmission created pursuant
hereto may be substituted or used in lieu of the original writing
or transmission for all purposes for which the original writing
or transmission could be used; provided, however, that such copy,
facsimile telecommunication or other reliable reproduction shall
be a complete reproduction of the entire original writing or
transmission.
2.12 Voting Power Present or Represented. For purposes of
determining the amount of voting power present or represented at
any annual or special meeting of shareholders with respect to
voting on a particular proposal, shares as to which the proxy
holders have been instructed to abstain from voting on the
proposal, and shares that have been precluded from voting
(whether by law, regulations of the Securities and Exchange
Commission, rules or by-laws of any self-regulatory organization
or otherwise), will not be treated as present.
2.13 Adjournments. Adjournments of any annual or special
meeting of shareholders may be taken without new notice being
given unless a new record date is fixed for the adjourned
meeting, but any meeting at which directors are to be elected
shall be adjourned only from day to day until such directors
shall have been elected.
2.14 Withdrawal. If a quorum is present or represented at a
duly organized meeting, such meeting may continue to do business
until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum as fixed in Section 2.6
of these By-laws, or the refusal of any shareholders present to
vote.
2.15 Lack of Quorum. If a meeting cannot be organized
because a quorum has not attended, those present may adjourn the
meeting to such time and place as they may determine, subject,
however, to the provisions of Section 2.15 hereof. In the case
of any meeting called for the election of directors, those who
attend the second of such adjourned meetings, although less than
a quorum as fixed in Section 2.6 hereof, shall nevertheless
constitute a quorum for the purpose of electing directors.
2.16 Presiding officer. The Chairman, CEO and President or
in his or her absence, a chairman designated by the Board, shall
preside at all shareholders' meetings.
2.17 Definitions of Shareholder, Voting Power and Voting
Power Present. As used in these By-laws, and unless the context
otherwise requires, (a) the term "shareholder" shall mean a
person who is (i) the record holder of shares of the
Corporation's voting stock or (ii) a registered holder of any
bonds, debentures or similar obligations granted voting rights by
the Corporation pursuant to La. R.S. 12:75, (b) the term "voting
power" shall mean the right vested by law, these By-laws or the
Articles of Incorporation in the shareholders to vote in the
determination of a particular question or matter and (c) the term
"total voting power" shall mean the total number of votes that
the shareholders are entitled to cast in the determination of a
particular question or matter.
SECTION 3
DIRECTORS
3.1 Powers; Number. All of the corporate powers shall be
vested in, and the business and affairs of the Corporation shall
be managed by, the Board, which shall consist of four natural
persons; provided that, if after proxy materials for any meeting
of shareholders at which directors are to be elected are mailed
to shareholders any person or persons named therein to be
nominated at the direction of the Board becomes unable or
unwilling to serve, the foregoing number of authorized directors
shall be automatically reduced by a number equal to the number of
such persons unless the Board, by a majority vote of the entire
Board, selects an additional nominee; provided that in no event
shall the number of directors so authorized, nominated and
elected be less than the number required by law. No amendment to
this Section to decrease the number of directors shall shorten
the term of any incumbent director. No director need be a
shareholder.
3.2 Powers. The Board may exercise all such powers of the
Corporation and do all such lawful acts and things that are not
by law, the Articles of Incorporation or these By-laws directed
or required to be done by the shareholders.
3.3 General Election. At each annual meeting of share-
holders, directors shall be elected to succeed those directors
whose terms then expire. Such newly elected directors shall serve
until the next succeeding annual meeting of shareholders after
their election and until their successors are elected and
qualified. A director elected to fill a vacancy shall hold office
for a term expiring at the next annual meeting and until his
successor is elected and qualified. No decrease in the number of
directors constituting the Board shall shorten the term of any
incumbent director.
3.4 Vacancies. Except as otherwise provided in the
Articles of Incorporation or these By-laws (a) the office of a
director shall become vacant if he dies, resigns or is removed
from office and (b) the Board may declare vacant the office of a
director if he (i) is interdicted or adjudicated an incompetent,
(ii) is adjudicated a bankrupt, (iii) in the sole opinion of the
Board becomes incapacitated by illness or other infirmity so that
he is unable to perform his duties for a period of six months or
longer, or (iv) ceases at any time to have the qualifications
required by law, the Articles of Incorporation or these By-laws.
3.5 Filling Vacancies. In the event of a vacancy (includ-
ing any vacancy resulting from an increase in the authorized
number of directors, or from failure of the shareholders to elect
the full number of authorized directors), the remaining
directors, even though not constituting a quorum, may fill any
vacancy on the Board for the unexpired term by a majority vote of
the directors remaining in office, provided that the shareholders
shall have the right, at any special meeting called for the
purpose prior to such action by the Board, to fill the vacancy.
3.6 Notice of Shareholder Nominees. Only persons who are
nominated in accordance with the procedures set forth in this
Section 3.6 shall be eligible for election as directors. Nomina-
tions of persons for election to the Board may be made at a
meeting of shareholders by or at the direction of the Board or by
a shareholder entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in
this Section 3.6. Such nominations, other than those made by or
at the direction of the Board, shall be made pursuant to timely
notice in writing to the Corporation's Secretary. To be timely,
a shareholder's notice must be delivered or mailed and received
at the principal executive offices of the Corporation not less
than 45 days nor more than 90 days prior to the meeting;
provided, however, that if less than 55 days notice or prior
public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be
received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made. Such shareholder's
notice shall set forth the following:
(a) as to each person whom the shareholder proposes to
nominate for election or re-election as a director (i) the
name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the capital
stock of the Corporation of which such person is the
beneficial owner and the number of votes such person is
entitled to cast at the shareholders' meeting and (iv) any
other information relating to such person that would be
required to be disclosed in solicitations of proxies for
election of directors, or would be otherwise required, in
each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (including without
limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a
director if elected); and
(b) as to the shareholder giving the notice (i) the
name and address of such shareholder and (b) the class and
number of shares of the capital stock of the Corporation of
which such shareholder is the beneficial owner and the
number of votes such person is entitled to cast at the
shareholders' meeting. If requested in writing by the
Corporation's Secretary at least 15 days in advance of the
meeting, such shareholder shall disclose to the Secretary,
within 10 days of such request, whether such person is the
sole beneficial owner of the shares held of record by him;
and, if not, the name and address of each other person known
by the shareholder of record to claim a beneficial interest
in such shares.
At the request of the Board, any person nominated by or at the
direction of the Board for election as a director shall furnish
to the Corporation's Secretary that information required to be
set forth in a shareholder's notice of nomination that pertains
to the nominee. If a shareholder seeks to nominate one or more
persons as directors, the Secretary shall appoint two inspectors
(the "Inspectors"), who shall not be affiliated with the
Corporation, to determine whether a shareholder has complied with
this Section 3.6. If the Inspectors shall determine that a
shareholder has not complied with this Section 3.6, the
Inspectors shall direct the chairman of the meeting to declare to
the meeting that a nomination was not made in accordance with the
procedures prescribed by the Articles of Incorporation or these
By-laws; and the chairman shall so declare to the meeting and the
defective nomination shall be disregarded.
3.7 Compensation of Directors. Directors as such, shall
receive such compensation for their services as may be fixed by
resolution of the Board and shall receive their actual expenses
of attendance, if any, for each regular or special meeting of the
Board; provided that nothing herein contained shall be construed
to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
SECTION 4
MEETINGS OF THE BOARD
4.1 Place of Meetings. The meetings of the Board may be
held at such place within or without the State of Louisiana as a
majority of the directors may from time to time appoint.
4.2 Initial Meetings. The first meeting of each newly
elected Board shall be held immediately following the share-
holders' meeting at which the Board is elected and at the same
place as such meeting, and no notice of such first meeting shall
be necessary for the newly elected directors in order legally to
constitute the meeting.
4.3 Regular Meetings; Notice. Regular meetings of the
Board may be held at such times as the Board may from time to
time determine. No notice of regular meetings of the Board shall
be required provided that the date, time and place of regular
meetings are fixed by the Board.
4.4 Special Meetings; Notice. Special meetings of the
Board may be called by the Chairman, CEO and President on
reasonable notice given to each director, either personally or by
telephone, mail or by telegram. Special meetings shall be called
by the Chairman, CEO and President, or the Secretary in like
manner and on like notice on the written request of a majority of
the directors and if such officers fail or refuse, or are unable
within 24 hours to call a meeting when requested, then the
directors making the request may call the meeting on two days'
written notice given to each director. The notice of a special
meeting of directors need not state its purpose or purposes, but
if the notice states a purpose or purposes and does not state a
further purpose to consider such other business as may properly
come before the meeting, the business to be conducted at the
special meeting shall be limited to the purposes stated in the
notice.
4.5 Waiver of Notice. Directors present at any regular or
special meeting shall be deemed to have received due, or to have
waived, notice thereof, provided that a director who participates
in a meeting by telephone (as permitted by Section 4.9) shall not
be deemed to have received or waived due notice if, at the
beginning of the meeting, he objects to the transaction of any
business because the meeting is not lawfully called.
4.6 Quorum. A majority of the Board shall be necessary to
constitute a quorum for the transaction of business, and except
as otherwise provided by law or the Articles of Incorporation or
these By-laws, the acts of a majority of the entire Board at a
meeting at which a quorum is present shall be the acts of the
Board. If a quorum is not present at any meeting of the Board,
the directors present may adjourn the meeting from time to time
without notice other than announcement at the meeting, until a
quorum is present.
4.7 Withdrawal. If a quorum is present when the meeting
convened, the directors present may continue to do business,
taking action by vote of a majority of a quorum as fixed in
Section 4.6, until adjournment, notwithstanding the withdrawal of
enough directors to leave less than a quorum as fixed in Section
4.6 or the refusal of any director present to vote.
4.8 Action by Consent. Any action that may be taken at a
meeting of the Board or any committee thereof, may be taken by a
consent in writing signed by all of the directors or by all
members of the committee, as the case may be, and filed with the
records of proceedings of the Board or such committee.
4.9 Meetings by Telephone or Similar
Communication. Members of the Board may participate at and be
present at any meeting of the Board or any committee thereof by
means of conference telephone or similar communications equipment
if all persons participating in such meeting can hear and
communicate with each other. Participation in a meeting pursuant
to this Section 4.9 shall constitute presence in person at such
meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or
convened.
SECTION 5
COMMITTEES OF THE BOARD
5.1 General. The Board may designate one or more
committees, each committee to consist of two or more of the
directors (and one or more directors may be named as alternate
members to replace any absent or disqualified regular members),
which, to the extent provided by resolution of the Board or the
By-laws, shall have and may exercise the powers of the Board in
the management of the business and affairs of the Corporation,
and may have power to authorize the seal of the Corporation to be
affixed to documents, but no such committee shall have power or
authority in reference to amending the Articles of Incorporation,
adopting an agreement of merger or consolidation, recommending to
the shareholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation
or a revocation of dissolution, removing or indemnifying
directors or amending the By-laws; and unless the resolution
expressly so provides, no such committee shall have the power or
authority to declare a dividend or authorize the issuance of
stock. Such committee or committees shall have such name or
names as may be stated in the By-laws, or as may be determined,
from time to time, by the Board. Any vacancy occurring in any
such committee shall be filled by the Board, but the Chairman of
the Board, Chief Executive Officer and President may designate
another director to serve on the committee pending action by the
Board. Each such member of a committee shall hold office during
the term of the Board constituting it, unless otherwise ordered
by the Board.
5.2 Compensation Committee. The Board shall establish a
Compensation Committee consisting of two directors each of whom
shall (i) be a "disinterested person" as defined under Article
16b-3 promulgated under the Securities Exchange Act of 1934, as
amended, and (ii) not serve, and shall not have served in the
past, as an officer or employee of the Corporation or any of its
affiliates. The Compensation Committee shall determine the
compensation to be paid to officers and employees of the
Corporation. In the event of a disagreement between two members
of the Compensation Committee, which cannot in good faith be
resolved, the disagreement will be resolved by the affirmative
vote of a majority of the entire Board.
5.3 Audit Committee. The Board shall establish an Audit
Committee consisting of at least two directors who are not
officers or employees of the Corporation or any of its
affiliates. The Audit Committee shall serve as a focal point for
communication between noncommittee directors, the independent
accountants and management. The Audit Committee shall make
recommendations to the Board concerning the selection and
retention of the Corporation's independent auditors, review the
results of audits of the Corporation by its independent auditors,
discuss audit representations with management, and report the
results of its review to the Board.
5.4 Procedures for Committees. Each committee shall keep
written minutes of its meetings and all actions taken by a
committee shall be reported to the Board at its next meeting,
whether regular or special. Failure to keep written minutes or
to make such reports shall not affect the validity of action
taken by a committee. Each committee shall adopt such rules (not
inconsistent with the Articles of Incorporation, these By-laws or
any regulations specified for such committee by the Board) as it
shall deem necessary for the proper conduct of its functions and
the performance of its responsibilities.
SECTION 6
REMOVAL OF BOARD MEMBER
Any director or the entire Board may be removed at any time
by the affirmative vote of not less than a majority of the voting
power present at a meeting of shareholders duly called for that
purpose. The shareholders at such meeting may proceed to elect a
successor or successors for the unexpired term of the director or
directors removed. Except as provided in this Section 6,
directors shall not be subject to removal.
SECTION 7
NOTICES
7.1 Form of Delivery. Whenever under the provisions of law
the Articles of Incorporation or these By-laws notice is required
to be given to any shareholder or director, it shall not be
construed to mean personal notice unless otherwise specifically
provided in the Articles of Incorporation or these By-laws, but
such notice may be given by mail, addressed to such shareholder
or director at his address as it appears on the records of the
Corporation, with postage thereon prepaid. Such notices shall be
deemed to have been given at the time they are deposited in the
United States mail. Notice to a director pursuant to Section 4.4
hereof may also be given personally or by telephone or telegram
sent to his or her address as it appears on the Corporation's
records.
7.2 Waiver. Whenever any notice is required to be given by
law, the Articles of Incorporation or these By-laws, a waiver
thereof in writing signed by the person or persons entitled to
said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto. In addition, notice shall be
deemed to have been given to, or waived by, any shareholder or
director who attends a meeting of shareholders or directors in
person, or is represented at such meeting by proxy, without
protesting at the commencement of the meeting the transaction of
any business because the meeting is not lawfully called or
convened.
SECTION 8
OFFICERS
8.1 Designations. The Corporation's officers shall be a
Chairman, CEO and President (with all such offices to be held by
one person), a Secretary, a Chief Operating Officer, a Chief
Financial Officer and a Treasurer. The Corporation may also have
one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Any two offices may be held by one person, provided
that no person holding more than one office may sign, in more
than one capacity, any certificate or other instrument required
by law to be signed by two officers.
8.2 Appointment of Certain Officers. At the first meeting
of each newly elected Board, or at such other time when there
shall be a vacancy, the Board shall elect a Chairman, CEO and
President, a Secretary, a Chief Operating Officer, a Chief
Financial Officer and a Treasurer, each of whom shall serve for
one year and until his or her successor is elected and has
qualified.
8.3 Appointment of Other Officers. As soon as practicable
after his or her election, the Chairman, CEO and President may
appoint one or more Vice Presidents, Assistant Secretaries and
Assistant Secretaries. The Chairman, CEO and President shall,
following such appointment or appointments, cause to be filed
with the minutes of the meeting of the Board an instrument
specifying the officers selected. The Chairman, CEO and
President may also appoint such other officers, employees and
agents of the Corporation as he or she may deem necessary, or may
vest the authority to appoint such other officers, employees and
agents in such other of the Corporation's officers as he or she
deems appropriate subject in all cases to his or her discretion.
Subject to these By-laws, all of the officers, employees and
agents of the Corporation shall hold their offices or positions
for such terms and shall exercise such powers and perform such
duties as shall be specified from time to time by the Board or
the Chairman, CEO and President.
8.4 Removal. The Board or the Chairman, CEO and President
may remove any officer with or without cause at any time. Any
such removal shall be without prejudice to the contractual rights
of such officers, if any, with the Corporation, but the election
of an officer shall not in and of itself create contractual
rights. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise may be filled by the
Chairman, CEO and President until the next regular or special
meeting of the Board.
8.5 The Chairman, CEO and President. The Chairman, CEO and
President shall have general and active responsibility for the
management of the Corporation's business, shall be responsible
for implementing all orders and resolutions of the Board, shall
be the Corporation's chief operating officer, shall supervise the
daily operations of the Corporation's business and shall preside
at meetings of the Board and of the shareholders.
8.6 The Vice Presidents. The Vice Presidents in the order
specified by the Chairman, CEO and President or, if not so
specified, in the order of their seniority shall, in the absence
or disability of the Chairman, CEO and President, perform the
duties and exercise the powers of the President, and shall
perform such other duties as the Chairman, CEO and President
shall prescribe.
8.7 The Secretary. The Secretary shall attend all meetings
of the Board and all meetings of the shareholders, record all
votes and the minutes of all proceedings in a book to be kept for
that purpose, give, or cause to be given, notice of all meetings
of the shareholders and special meetings of the Board, and
perform such other duties as may be prescribed by the Board or
Chairman, CEO and President. The Secretary shall also keep in
safe custody the Corporation's seal, if any, and affix the seal
to any instrument requiring it.
8.8 The Chief Operating Officer. The Chief Operating
Officer shall be the Corporation's principal operations officer
and shall manage the Corporation's operational affairs and direct
the activities of officers and other employees responsible for
engineering, quality assurance and materials, oil and gas and
technical services marketing, pilots, sector managers, domestic
operations, field maintenance (135 maint), and overhaul and
repair (145 maint). The Chief Operating Officer shall also
perform such other duties as may be requested from time to time
by the Board, the Chairman, CEO and President, or the By-laws.
8.9 The Chief Financial Officer. The Chief Financial
Officer shall be the Corporation's principal financial officer
and shall manage the Corporation's financial affairs and direct
the activities of the Treasurer and other officers responsible
for the Corporation's financial affairs. The Chief Financial
Officer may sign, execute and deliver in the name of the
Corporation contracts, bonds and other obligations, shall be
responsible for all of the Corporation's internal and external
financial reporting and shall perform such other duties as may be
prescribed from time to time by the Board, the Chairman, CEO and
President or by the By-laws.
8.10 The Treasurer. As directed by the Chief Financial
Officer, the Treasurer shall have general custody of all funds
and securities of the Corporation. The Treasurer may sign, with
the Chairman, CEO and President, Chief Financial Officer or such
other person or persons as may be designated for the purpose by
the Board, all bills of exchange or promissory notes of the
Corporation. The Treasurer shall perform such other duties as
may be prescribed from time to time by the Chief Financial
Officer or the By-laws.
SECTION 9
STOCK
9.1 Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by the President
or a Vice President and the Secretary or an Assistant Secretary
evidencing the number and class (and series, if any) of shares
owned by him, containing such information as required by law and
bearing the seal of the Corporation. If any stock certificate is
manually signed by a transfer agent or registrar other than the
Corporation itself or an employee of the Corporation, the signa-
ture of any such officer may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
9.2 Missing Certificates. The President or any Vice
President may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or
destroyed. As a condition precedent to the issuance of a new
certificate or certificates, the officers of the Corporation
shall, unless dispensed with by the President, require the owner
of such lost, stolen or destroyed certificate or certificates, or
his legal representative, (i) to advertise or give the
Corporation a bond or (ii) enter into a written indemnity
agreement, in each case in an amount appropriate to indemnify the
Corporation against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9.3 Transfers. Upon surrender to the Corporation or the
transfer agent of the Corporation, of a certificate for shares
duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction
upon its books.
SECTION 10
DETERMINATION OF SHAREHOLDERS
10.1 Record Date. For the purpose of determining share-
holders entitled to notice of and to vote at a meeting, or to
receive a dividend, or to receive or exercise subscription or
other rights, or to participate in a reclassification of stock,
or in order to make a determination of shareholders for any other
proper purpose, the Board may fix in advance a record date for
determination of shareholders for such purpose, such date to be
not more than sixty days and, if fixed for the purpose of
determining shareholders entitled to notice of and to vote at a
meeting, not less than ten days, prior to the date on which the
action requiring the determination of shareholder is to be taken.
10.2 Registered Shareholders. Except as otherwise provided
by law, the Corporation, and its directors, officers and agents
may recognize and treat a person registered on its records as the
owner of shares, as the owner in fact thereof for all purposes,
and as the person exclusively entitled to have and to exercise
all rights and privileges incident to the ownership of such
shares, and rights under this Section 10.2 shall not be affected
by any actual constructive notice that the Corporation, or any of
its directors, officers or agents, may have to the contrary.
SECTION 11
MISCELLANEOUS
11.1 Dividends. Except as otherwise provided by law or the
Articles of Incorporation, dividends upon the stock of the
Corporation may be declared by the Board at any regular or
special meeting. Dividends may be paid in cash, property, or in
shares of stock.
11.2 Checks. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or
such other person or persons as the Chairman, CEO and President
or the Board may from time to time designate. Signatures of the
authorized signatories may be by facsimile.
11.3 Fiscal Year. The Board may adopt for and on behalf of
the Corporation a fiscal or a calendar year.
11.4 Seal. The Board may adopt a corporate seal, which seal
shall have inscribed thereon the name of the Corporation. The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. Failure to
affix the seal shall not, however, affect the validity of any
instrument.
11.5 Gender. All pronouns and variations thereof used in
these By-laws shall be deemed to refer to the masculine, feminine
or neuter gender, singular or plural, as the identity of the
person, persons, entity or entities referred to require.
SECTION 12
INDEMNIFICATION
The Corporation shall indemnify to the full extent permitted
by law any director, officer or employee against any expenses or
costs, including attorneys' fees, actually or reasonably incurred
by him or her in connection with any threatened, pending or
completed claim, action, suit or proceeding, whether criminal,
civil, administrative or investigative, against such person or as
to which he or she is involved solely as a witness or person
required to give evidence because he or she is a director,
officer or employee of the Corporation or serves or served at the
request of the Corporation with any other enterprise as a
director, officer or employee. For purposes of this Section 12,
the term "Corporation" shall include any predecessor of this
Corporation and any constituent corporation (including any
constituent of a constituent) absorbed by the Corporation in a
consolidation or merger; the term "other enterprises" shall
include any corporation, partnership, joint venture, trust or
employee benefit plan; service "at the request of the
Corporation" shall include service as a director, officer or
employee of the Corporation that imposes duties on, or involves
services by, such director, officer or employee with respect to
an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee
benefit plan shall be deemed to be indemnifiable expenses; and
action by a person with respect to an employee benefit plan that
such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be
action not opposed to the best interests of the Corporation.
SECTION 13
AMENDMENTS
The Corporation's By-laws may be amended or repealed only by
a majority of the Board or the affirmative vote of the holders of
at least a majority of the voting power present at any regular or
special meeting of shareholders, the notice of which states that
the proposed amendment or repeal is to be considered at the
meeting.
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