<PAGE> 1
10-Q
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 For the Quarter Ended March 31, 1996
--------------
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: 1-7488
------
First Mississippi Corporation
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Mississippi 64-0354930
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 North Street, Jackson, MS 39202-3095
- --------------------------------------------------------------------------------
(Address of principal (Zip Code)
executive offices)
Registrant's Telephone Number, including Area Code: 601/948-7550
------------
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
----- -----
Class Outstanding at April 30, 1996
-------------------------- -----------------------------
Common Stock, $1 Par Value 20,614,491
<PAGE> 2
Part I. Financial lnformation
Item 1. Financial Statements
First Mississippi Corporation
Consolidated Balance Sheets (Unaudited)
(In Thousands of Dollars)
<TABLE>
<CAPTION>
Mar. 31 June 30
1996 1995
-------- -------
<S> <C> <C>
Assets:
Current assets
Cash and short-term investments $ 35,805 40,523
Accounts receivable 94,592 71,645
Inventories:
Finished products 28,373 24,850
Work in process 26,852 19,051
Raw materials and supplies 26,187 20,544
Product exchange agreements 636 --
-------- -------
Total inventories 82,048 64,445
-------- -------
Prepaid expenses and other current assets 11,145 11,218
Net current assets of discontinued operations -- 4,904
-------- -------
Total current assets 223,590 192,735
-------- -------
Investments and other assets 63,739 38,829
Property, plant and equipment 311,686 282,433
Less: accumulated depreciation,
depletion and amortization 151,685 136,969
-------- -------
160,001 145,464
Noncurrent assets of discontinued operations -- 67,689
-------- -------
$447,330 444,717
======== =======
Liabilities and Stockholders' Equity:
Current liabilities
Current instalments of long-term debt $ 14,631 15,076
Deferred revenue 3,517 2,048
Accounts payable 52,163 45,576
Accrued expenses and other current liabilities 18,982 19,928
-------- -------
Total current liabilities 89,293 82,628
-------- -------
Long-term debt 82,388 84,394
Deferred revenue and other liabilities 13,851 12,289
Deferred taxes 25,303 23,377
Long-term liabilities/Minority interest of disc. operations -- 9,033
Stockholders' equity:
Common stock 20,614 20,438
Additional paid-in capital 14,364 7,656
Retained earnings 201,517 204,902
-------- -------
Total stockholders' equity 236,495 232,996
-------- -------
$447,330 444,717
======== =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 3
First Mississippi Corporation
Consolidated Statements of Operations (Unaudited)
(In Thousands of Dollars and Shares, Except Per Share Amounts)
<TABLE>
<CAPTION>
3 Months ended 9 Months ended
Mar. 31 Mar. 31
--------------------- ---------------------
1996 1995 1996 1995
-------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenues:
Sales $156,792 157,825 441,361 418,904
Gain (loss) on investments 50 -- 50 (19)
Interest and other income 742 1,532 4,637 3,500
-------- ------- ------- -------
157,584 159,357 446,048 422,385
-------- ------- ------- -------
Costs and expenses:
Cost of sales 121,040 112,766 325,406 298,124
General, selling and
administrative expenses 13,582 11,962 43,660 34,660
Other operating expenses 1,836 1,859 4,860 5,316
Interest expense 2,338 2,361 7,062 7,190
-------- ------- ------- -------
138,796 128,948 380,988 345,290
-------- ------- ------- -------
Earnings before income taxes 18,788 30,409 65,060 77,095
Income tax expense 7,350 12,335 25,400 30,895
Equity in net earnings of equity investees 180 448 679 711
-------- ------- ------- -------
Earnings from continuing operations $ 11,618 18,522 40,339 46,911
Earnings (loss) from discontinued operations,net -- 1,132 (1,083) 708
-------- ------- ------- -------
Net earnings $ 11,618 19,654 39,256 47,619
======== ======= ======= =======
Earnings (loss) per common share:
Continuing operations $ 0.56 0.89 1.92 2.28
Discontinued operations -- 0.06 (0.05) 0.03
-------- ------- ------- -------
Earnings per common share $ 0.56 0.95 1.87 2.31
======== ======= ======= =======
Average shares outstanding 20,891 20,750 21,015 20,590
Cash dividend declared
per share $ 0.1000 0.0875 0.3000 0.2500
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 4
First Mississippi Corporation
Consolidated Statements of Cash Flows (Unaudited)
(In Thousands of Dollars)
<TABLE>
<CAPTION>
9 Months ended
Mar. 31
----------------------
1996 1995
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 39,256 47,619
Adjustments to reconcile earnings to
net cash provided by operating activities:
Depreciation, depletion and amortization 16,189 14,861
Deferred taxes and other items 2,309 16,132
Change in current assets and liabilities, net
of effects of dispositions (30,016) (10,484)
Net (earnings) loss of discontinued operations 1,083 (708)
-------- --------
Net cash provided by operating activities 28,821 67,420
Net cash provided by (used in) discontinued operations (3,129) 13,536
-------- --------
Net cash provided by operations 25,692 80,956
-------- --------
Cash flows from investing activities:
Capital expenditures (29,278) (17,297)
Collection of note receivable 15,000 --
Proceeds from sale of property, plant and equipment 9 26
Proceeds from disposition of investments and
other assets 376 --
Acquisition of investments and other assets (72) (1,319)
Investment in equity investees, net (3,776) --
-------- --------
Net cash used in investing activities of continuing operations (17,741) (18,590)
Net cash used in investing activities of discontinued operations (3,176) (19,796)
-------- --------
Net cash used in investing activities (20,917) (38,386)
-------- --------
Cash flows from financing activities:
Principal repayments of long-term debt (1,564) (6,223)
Dividends (6,099) (6,579)
Proceeds from issuance of long-term debt -- 151
Retirement of common stock (5,491) --
Proceeds from issuance of common stock 3,661 2,136
-------- --------
Net cash used in financing activities (9,493) (10,515)
-------- --------
Net increase (decrease) in cash and cash equivalents (4,718) 32,055
Cash and cash equivalents at beginning of period 40,523 2,973
-------- --------
Cash and cash equivalents at end of period $ 35,805 35,028
======== ========
Supplemental disclosures of cash flow information
Cash paid during the period for:
Interest , net of amounts capitalized $ 7,406 7,325
======== ========
Income taxes, net $ 20,904 13,918
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 5
First Mississippi Corporation and Consolidated Subsidiaries
Notes to Consolidated Financial Statements
(Unaudited. In Thousands of Dollars)
NOTE 1 - GENERAL
The financial statements included herein are unaudited and have been
prepared in accordance with generally accepted accounting principles for
interim financial reporting and Securities and Exchange Commission regulations.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations. In the
opinion of management, the financial statements reflect all adjustments (of a
normal and recurring nature) which are necessary to present fairly the
financial position, results of operations and cash flows for the interim
periods. These financial statements should be read in conjunction with the
Annual Report of the Company and Form 10-K for the year ended June 30, 1995.
NOTE 2 - DISCONTINUED OPERATIONS
On September 24, 1995, the board of directors of First Mississippi
Corporation approved the distribution of its 14,750,000 common shares of
FirstMiss Gold Inc. to its shareholders. First Mississippi received a ruling
from the Internal Revenue Service in April 1995 that allowed the distribution
with no federal income tax impact to either First Mississippi or its
shareholders. The distribution occurred October 20, 1995. The March 31, 1996,
consolidated balance sheet includes the $31.3 million reduction to retained
earnings in connection with the distribution of the FirstMiss Gold stock. Each
First Mississippi shareholder received approximately seven-tenths of a common
share of FirstMiss Gold Inc. for each share of First Mississippi owned.
The net assets and liabilities of the discontinued operations (primarily
FirstMiss Gold) have been segregated in the consolidated financial statements
presented. The following is the composition of those net assets and liabilities
at June 30, 1995:
<TABLE>
<S> <C>
Receivables $ 1,856
Inventories 9,554
Prepaid expenses and other current assets 1,176
Accounts payable (6,522)
Accrued expenses and other current liabilities (1,160)
--------
Net current assets (liabilities) of discontinued operations $ 4,904
========
Noncurrent assets of discontinued operations $ 67,689
========
Long-term liabilities of discontinued operations 3,032
Minority interest of discontinued operations 6,001
--------
Long-term liab./minority interest of discontinued operations $ 9,033
========
</TABLE>
<PAGE> 6
The statements of operations have been reclassified to separate discontinued
and continuing operations. Revenues and net earnings (losses) of the
discontinued operations, including the tax benefits of excess percentage
depletion, for the three and nine month periods ended March 31, 1996, and March
31, 1995, were as follows:
<TABLE>
<CAPTION>
3 Months Ended 9 Months Ended
March 31 March 31
------------------ --------------------
1996 1995 1996 1995
------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenues $ -- 18,455 17,961 58,314
======= ======= =======
Earnings (loss) before taxes -- 1,186 (2,118) (435)
Income tax benefit -- 89 750 1,090
Minority interest -- (143) 285 53
------- ------- -------
Earnings (loss) from disc. operations, net $ -- 1,132 (1,083) 708
======= ======= =======
</TABLE>
NOTE 3 - NONCURRENT NOTE RECEIVABLE
Included in investments and other assets at March 31, 1996, is $23.9
million in principal and interest related to a promissory note due September
2000 from FirstMiss Gold Inc. The $52.5 million note balance at the October 20,
1995, spinoff date was reduced in November by FirstMiss Gold by $15.0 million,
using proceeds generated from a public stock offering. In addition, the note
was offset by $13.9 million, representing payment for tax attributes utilized
by First Mississippi. Interest accrues at a LIBOR based rate, currently 6.625%,
and is added to the note. Cash advances to FirstMiss Gold for the period July
1, 1995, to October 20, 1996, were $8.9 million.
NOTE 4 - COMMITMENTS AND CONTINGENT LIABILITIES
At March 31, 1996, the Company had no open contracts for hedging its
anticipated purchases of natural gas for fertilizer operations.
<PAGE> 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations - Nine months ended March 31, 1996,
compared to the nine months ended March 31, 1995
Consolidated Results
Earnings from continuing operations for the nine months ended March 31,
1996, were down 14% versus the same period last year, despite a 5% increase in
sales, as the gross margin percentage declined from 29% to 26%, primarily due
to lower fertilizer unit margins. In addition, general, selling and
administrative expenses were up $9.0 million, primarily due to increased
unallocated corporate expenses. Results of discontinued gold operations were a
net loss of $1.1 million versus a profit of $0.7 million in the prior year.
Segment Operations
First Mississippi Corporation
Industry Segment Information
(In Thousands of Dollars)
<TABLE>
<CAPTION>
9 Months Ended
March 31
------------------------
1996 1995
--------- ---------
<S> <C> <C>
Sales
Chemicals $ 164,630 152,392
Fertilizer 168,882 179,958
Combustion, Thermal Plasma, and Other 107,849 86,554
--------- ---------
Total $ 441,361 418,904
========= =========
Operating profit (loss) before income taxes
Chemicals $ 33,501 29,912
Fertilizer 53,008 62,617
Combustion, Termal Plasma, and Other (6,140) (4,706)
--------- ---------
Total 80,369 87,823
========= =========
Unallocated corporate expenses (12,167) (6,369)
Interest income (expense), net (3,089) (4,326)
Other income (expense), net (53) (33)
--------- ---------
Total $ 65,060 77,095
========= =========
</TABLE>
Chemicals sales and pretax operating profits were up 8% and 12%,
respectively, versus the prior year, primarily due to higher
hydroxylamine-based electronic chemicals volume. Operating results were also
aided by a 10% increase in aniline volume as per unit contribution remained
steady. Expansion
<PAGE> 8
begun at the Tyrone, Pa., custom manufacturing facility in the first half of
fiscal 1996 has been completed and placed in service. Additional expansion to
increase capacity by approximately 40% will begin this spring. Negotiations are
continuing with Bayer Corp. on a long-term aniline supply contract and
construction of an aniline plant in Baytown, Texas, to supply Bayer's proposed
new MDI complex at Baytown. Bayer's new facility is expected to come on-stream
in 1998.
Fertilizer sales and pretax operating profit were down 6% and 15%,
respectively, versus last year primarily due to lower ammonia prices. Results
were also hurt by higher production cost caused by increased natural gas
prices. Average ammonia prices for the nine months were 14% below the same
period a year ago, while urea prices were up 23%. The average price of natural
gas purchased at spot prices for production increased 32%; however, hedging
gains of $1.1 million, versus hedging losses of $4.8 million prior year,
reduced the overall average gas price increase to 11%. At March 31, 1996, the
Company had no open contracts for hedging its anticipated purchases of natural
gas. A capacity expansion under way at AMPRO is ahead of schedule and expected
to be completed in December 1996 and is projected to increase AMPRO production
capacity by approximately 25%.
Combustion, Thermal Plasma and Other losses for the nine months were up
30% over the prior year primarily due to lower combustion product margins.
Sales rose 25% on increased combustion and steel sales. On February 20, 1996,
the company announced that it had signed a letter of intent for the sale of the
assets of its steel operation; however, those negotiations were terminated in
April. The $50 million value of that transaction approximated the net book
value of the steel assets. The company is continuing to pursue the sale of
these assets.
Unallocated corporate expenses were up $5.8 million over prior year. The
increase was primarily due to incentive payments tied to stock appreciation,
expenses related to the FirstMiss Gold spin-off and additional corporate
expenses following Chemicals' July 1, 1995 restructuring. The incentive program
accounted for approximately half of the increase. Net interest expense for the
nine months was lower versus prior year due to increased interest income.
Results of Operations - Three months ended March 31, 1996,
compared to the three months ended March 31, 1995
Consolidated Results
Earnings from continuing operations for the three months ended March 31,
1996, were down 37% as the gross margin percentage declined from 29% to 23%
versus the same period prior year, primarily due to lower fertilizer unit
margins. Results of discontinued operations for the prior year included a $1.1
million after tax profit from gold operations.
<PAGE> 9
Segment Operations
First Mississippi Corporation
Industry Segment Information
(In Thousands of Dollars)
<TABLE>
<CAPTION>
3 Months Ended
March 31
------------------------
1996 1995
--------- ---------
<S> <C> <C>
Sales
Chemicals $ 59,548 52,073
Fertilizer 59,653 72,940
Combustion, Thermal Plasma, and Other 37,591 32,812
--------- ---------
Total $ 156,792 157,825
========= =========
Operating profit (loss) before income taxes
Chemicals $ 12,192 9,234
Fertilizer 14,713 25,533
Combustion, Thermal Plasma, and Other (4,205) (909)
--------- ---------
22,700 33,858
Unallocated corporate expenses (2,553) (2,336)
Interest income (expense), net (1,356) (1,115)
Other income (expense), net (3) 2
--------- ---------
Total $ 18,788 30,409
========= =========
</TABLE>
Chemicals pretax operating profits were up 32% versus the same period
prior year as sales grew 14% on an increase in aniline and other intermediate
chemicals and electronic chemicals volume. Electronic chemicals sales were up
49% from the prior year but about the same as second quarter of this year.
Fertilizer pretax operating profits were down 42% as sales declined,
primarily due to a 12% decrease in average unit price, and as production cost
increased on higher average natural gas prices. The average price of natural
gas purchased at spot prices for production increased 104%; however, hedging
gains of $1.1 million, versus hedge losses of $2.2 million prior year, reduced
the overall average gas price increase to 54%. In April 1996, the company
acquired for approximately $11 million, a 50% interest in an ammonia terminal
and related facilities in Pasadena, Texas, to improve access to gulf coast
industrial customers.
Combustion, Thermal Plasma and Other losses for the quarter were up $3.3
million primarily due to lower combustion product margins due to cost overruns
in several product lines. Sales rose 15% on increased combustion and steel
sales.
<PAGE> 10
Unallocated corporate expenses for the current quarter were up 9% over
prior year primarily due to additional corporate expense following Chemicals'
July 1, 1995 restructuring. Net interest expense for the current quarter was
higher versus prior year due to decreased interest income.
Discontinued Operations
Discontinued operations include the results of FirstMiss Gold Inc., the
stock of which was distributed to the shareholders of First Mississippi
Corporation on October 20, 1995. On September 24, 1995, First Mississippi and
FirstMiss Gold entered into certain agreements related to the distribution,
which were summarized as part of Form 8-K filed as of that date.
Capital Resources and Liquidity
Cash flow from operations was $25.7 million, down from $81 million for the
prior year. The decrease was primarily due to increased working capital in
combustion operations due to sales growth, the use of cash in discontinued gold
operations, and lower earnings. Cash flow used in investing activities was down
from the prior year due to the receipt in November 1995 of $15.1 million from
FirstMiss Gold related to a promissory note. Cash flow used in financing
activities for the current year included $5.5 million for the purchase of
235,900 shares of First Mississippi common stock, which represented
approximately 25% of the $20.0 million repurchase authorization announced in
May 1995.
<PAGE> 11
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 3(ii) Bylaws as amended February 27, 1996
Exhibit 4 Revolver Credit Amendment dated April 1, 1996
Exhibit 27 Financial Data Schedules
(b) Reports on Form 8-K
No reports on Form 8-K were filed for the quarter ending March
31, 1996.
<PAGE> 12
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.
FIRST MISSISSIPPI CORPORATION
May 10, 1996 /s/ J. Kelley Williams
- ----------------------- -----------------------------------------
Date J. Kelley Williams
Chairman and Chief Executive Officer
May 10, 1996 /s/ R. Michael Summerford
- ----------------------- -----------------------------------------
Date R. Michael Summerford
Vice President & Chief Financial Officer
<PAGE> 13
INDEX TO EXHIBITS
Exhibits
Number Description
- -------- -----------
Exhibit 3(ii) Bylaws as amended February 27, 1996
Exhibit 4 Revolver Credit Amendment dated April 1, 1996
Exhibit 27 Financial Data Schedules
<PAGE> 1
Exhibit 3(ii)
BYLAWS
OF
FIRST MISSISSIPPI CORPORATION
(With all Amendments through February 27, 1996)
ARTICLE I.
NAME AND OFFICES
1.1 The name of this corporation shall be FIRST MISSISSIPPI CORPORATION.
1.2 The principal or home office shall be in the City of Jackson, County
of Hinds, State of Mississippi.
1.3 The corporation may also have offices at such other places as the
board of directors may from time to time appoint or as the business of the
corporation may require.
ARTICLE II.
STOCKHOLDERS' MEETINGS
2.1 The place of all meetings of the stockholders shall be the principal
office of the corporation in the City of Jackson, County of Hinds, State of
Mississippi, or such other place within or without the State of Mississippi as
shall be determined from time to time by the board of directors, and the place
at which such meeting shall be held shall be stated in the call and notice of
the meeting.
2.2 The annual meeting of the stockholders of the corporation for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting
shall be held each year upon such date as may be determined by the board of
directors. If the annual meeting of the stockholders is not held as herein
prescribed, or the election of directors shall not be had at such meeting or an
adjournment thereof, the election of directors may be held at any meeting
thereafter called pursuant to these bylaws.
2.3 The voting at all meetings of the stockholders may be viva voce, but
twenty five percent (25%) of the stockholders present in person and by proxy
may demand a stock vote whereupon such stock vote shall be taken. Persons
voting proxies certified to by the secretary or assistant secretary of the
corporation may vote the proxies as a whole. Persons
<PAGE> 2
voting proxies not certified by the secretary or assistant secretary shall
state the name for whom the proxy is held and the number of shares voted by
proxy.
2.4 Every stockholder shall have the right to vote in person or by proxy
the number of shares of stock owned by him for as many persons as there are
directors to be elected or to cumulate said shares so as to give one candidate
as many votes as the number of directors to be elected multiplied by the number
of his shares of stock shall equal or distribute them on the same principle
among as many candidates as he shall see fit. The persons receiving the most
votes from among the candidates shall be elected.
2.5 At any meeting of the stockholders, every stockholder having the right
to vote shall be entitled to vote in person or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not
more than eleven months prior to said meeting, unless said instrument provides
for a longer period. Each stockholder shall have one vote for each share of
stock having voting power, registered in his name on the books of the
corporation, and except where the transfer books of the corporation shall have
been closed or a date has been fixed as a record date for the determination of
its stockholders entitled to vote, no share of stock shall be voted at the
annual meeting of the stockholders which shall have been transferred on the
books of the corporation within twenty days next preceding such meeting. If
more than one proxy shall be presented from the same stockholder, the last one
executed shall govern. The date shown thereon shall be prima facie correct; but
if any is found by the board of directors or by the inspectors of election or
by a committee appointed by the board of directors to have been postdated, the
same shall be void. In case of any conflict the action of the board of
directors thereon shall govern.
2.6 A complete list of the stockholders entitled to vote at any
stockholders meeting, arranged in alphabetical order, and the number of voting
shares held by each, shall be prepared by the secretary, who shall have charge
of the stock ledger, and filed in the principal office of the corporation or in
the office where the meeting is to be held, beginning no later than two (2)
days after the notice of such meeting is given, and shall, during the usual
hours for business, and during the whole time of said meeting or any
adjournment thereof, be open to the examination of any stockholder, his agent
or attorney.
2.7 Special meetings of the stockholders may be called by the chairman of
the board of directors or by the chief executive officer, or by majority of the
board of directors and shall be called at any time by the chairman of the board
of directors, or the chief executive officer, or the president/chief operating
officer, or any vice president, or the secretary or the chief financial
officer, upon the written request of stockholders owning one-tenth (1/10) of
the outstanding stock of the corporation entitled to vote at such meeting. The
purpose or purposes for which a special meeting is called shall be stated in
the written or printed notice of the meeting.
2.8 Notice of the time and place of the annual meeting of stockholders
shall be given by mailing written or printed notice of the same at least ten
(10) days, and not more than sixty (60) days, prior to the meeting, and notice
of the time and place of special meetings shall be given by written or printed
notice of the same at least ten (10) days and not more than sixty (60)
<PAGE> 3
days prior to the meeting, with postage prepaid, to each stockholder of record
of the corporation entitled to vote at such meeting, and addressed to the
address appearing on the stock transfer
books of the corporation. The board of directors may fix in advance a date, not
exceeding seventy (70) days preceding the date of any meeting of stockholders,
as a record date for the determination of the stockholders entitled to notice
of and to vote at any such meeting. No notice need be given of any adjourned
meeting of the stockholders except as required by law.
2.9 A quorum at any annual or special meeting of stockholders shall
consist of stockholders representing, either in person or by proxy, a majority
of the outstanding capital stock of the corporation entitled to vote at such
meeting.
2.10 At each meeting of stockholders the board of directors or the
presiding officer shall have the right, at their sole option, to appoint one or
more inspectors of election. The inspectors shall receive all proxies and
ballots, determine all challenges and questions arising in connection with the
right to vote, and count and tabulate all votes, ballots or consents and
determine the result. If for any reason the board of directors or the presiding
officer fails to appoint at least one inspector, then in that event the
secretary of the corporation or any other corporate official designated by the
presiding officer shall be empowered with all of the responsibilities and
authority of the inspectors of election.
2.11 At the annual meeting of stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be specified in the
notice of meeting given by or at the direction of the board of directors,
otherwise properly brought before the meeting by or at the direction of the
board of directors or otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before the annual meeting by a
stockholder, including the nomination of a director, the stockholder must have
given timely notice thereof in writing to the secretary of the corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the corporation not more than five (5)
business days after the giving of the notice of the date and place of the
meeting to the stockholders as required in Section 2.8 of these bylaws. A
stockholder's notice to the secretary shall inform as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and record
address of the stockholder proposing such business, (iii) the class and numbers
of shares of the corporation which are beneficially owned by the stockholder
and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the bylaws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the procedures set
forth in this Section 2.11. The presiding officer of the annual meeting shall,
if the facts warrant, determine and declare at the meeting that business was
not properly brought before the meeting in accordance with the provisions of
this Section 2.11, and if he should so determine, he shall so declare to the
meeting, and any such business not properly before the meeting shall not be
transacted.
<PAGE> 4
ARTICLE III.
BOARD OF DIRECTORS
3.1 The management of the affairs, property, and business of the
corporation shall be vested in a board of directors, who shall be chosen as
hereinafter set forth and who shall hold office until their successors are
elected and qualify or until their earlier death, resignation or removal.
Directors shall be stockholders and a transfer by a director of all of his
stock in the corporation shall operate as a resignation of his office. In
addition to the powers and authorities by these bylaws and the charter of
incorporation expressly conferred upon it, the board of directors may exercise
all such powers of the corporation and do all such lawful acts and things as
are not by law or by the charter or by these bylaws required to be exercised or
done by the stockholders.
The board of directors will adopt corporate governance guidelines to
set forth policies and procedures to organize themselves and oversee operations
of the corporation. These guidelines shall be adopted, as well as amended or
modified, only by the affirmative vote of not less than two-thirds (2/3) of all
directors, except that the affirmative vote of not less than four-fifths (4/5)
of all directors shall be required to amend, modify, add to or delete from any
guideline which directly relates to a matter which, under these bylaws, would
require not less than a four-fifths (4/5) vote of the directors to amend,
modify, add to or delete therefrom.
3.2 The board of directors shall consist of twelve (12) persons. Directors
who change employment or retire or become disabled will offer written
resignation as a result of such event to the Committee on Director Affairs (or
successor committee) which will make a recommendation with respect to continued
service to the board of directors for action. Each existing director on August
22, 1995 who had completed less than nine (9) consecutive years of service on
the board of directors on that date will offer a written resignation upon the
completion of nine (9) consecutive years of service if under age 65 at that
time. In addition, all directors who were under age 65 on August 22, 1995 will
offer a written resignation upon reaching age 65. Future directors will offer
resignations upon completion of nine (9) consecutive years of service prior to
age 65 and again upon reaching age 65. In each case, the Committee on Director
Affairs (or successor committee) will make a recommendation with respect to
continued service to the board of directors for action. Directors will retire
at age 70.
3.3 The first board of directors shall consist of three groups, the terms
of office thereof expiring as follows: The first group at the annual
stockholders' meeting in 1958; the second group at such meeting in 1959 and the
third group at such meeting in 1960. Thereafter, the directors of the
corporation shall be divided into three groups which shall be as nearly equal
as may be possible. At each annual stockholders' meeting held thereafter, the
successors of the group of directors whose terms expire in that year shall be
elected to hold office for a full term of three years (subject to retirement
and resignation as required by Section 3.2), so
<PAGE> 5
that the term of office of one group of directors shall expire each year;
provided, however, that the term of office of the directors of each group shall
continue until the election and qualification of the successors to the
directors of such group. After the division of directors into groups, any
additional directors who may be elected as herein provided shall be assigned to
the various groups so as to maintain the number in each group as nearly equal
as possible.
3.4 The board of directors shall by resolution entered on its minutes
determine and fix the authority and duties of officers and employees with
respect to the signing on behalf of the corporation of all checks, drafts,
deeds, leases, contracts, assignments, and other instruments, documents and
papers of every kind and character whatsoever.
3.5 All vacancies in the board of directors, whether caused by
resignation, death, increase in the number of directors, or otherwise, shall be
filled by election by the board of directors. If the term of the replacement or
new director extends beyond the next meeting of stockholders, then the balance
of the term beyond that stockholders' meeting is subject to confirmation by a
vote of the stockholders. Each such director elected shall hold office until
his successor is elected and qualifies.
3.6 Regular meetings of the board of directors may be held at the
principal office of the corporation or at such other place or places, within or
without the State of Mississippi, as the board of directors may from time to
time designate, and at such meetings any and all business of the corporation
may be transacted without the necessity of stating in the call the matters to
be considered.
If, in the opinion of the chairman of the board of directors or the chief
executive officer, there exists a reason to do so, the board of directors or
any committee of the board of directors may meet by a telephone conference
hookup (or similar electronic means in which all participants can hear each
other). All business presented and discussed at said telephone meeting shall be
set forth in the minutes of said meeting, and the minutes shall be mailed to
all directors as soon as possible following said meeting.
Any director who is unable to attend a board of directors or committee
meeting in person may participate by means of telephone hookup (or similar
electronic means in which all participants can hear each other) and such
participation shall constitute his presence in person at such meeting.
3.7 Special meetings of the board of directors may be called at any time
by the chairman of the board or chief executive officer or by two-thirds (2/3)
of the number of directors specified in Section 3.2, to be held at the
principal office of the corporation or at such other place within or without
the State of Mississippi, as may be designated in such call, and at such
meetings any and all business of the corporation may be transacted without the
necessity of stating in the call the matters to be considered. The provisions
of Section 3.6 regarding telephone conference hookup and telephone attendance
at regular meetings shall also apply to special meetings.
<PAGE> 6
3.8 Notice of all meetings of the board of directors shall be given in
writing to each director by not less than two (2) days service of the same by
delivery in person, by telegraph, teletype, or other form of wire or wireless
communication, or by not less than five (5) days service of the same by letter;
provided, however, if the chairman of the board or the chief executive officer
or two-thirds (2/3) of the number of directors specified in Section 3.2
determines that circumstances require the board of directors to meet on less
than two days' notice, then a meeting may be held on lesser (but in no event
less than eight hours') notice, if each director is notified of the time and
place of such meeting by at least one of the following means: (1) orally,
whether in person or by a telephone conversation in which the director
personally participates, or (2) in a writing actually received by such
director, which is delivered to him in person, by telegraph, teletype or other
form of wire or wireless communication, or private carrier. For the purpose of
the preceding sentence, a written notice is deemed to have been "actually
received" by a director if it is delivered to his designated address as it
appears in the books of the corporation during normal business hours at least
eight hours before the time for the meeting Provided, that by unanimous consent
of the directors executed before or after any such meeting, meetings at any
time or place may be held without notice.
3.9 A quorum at all meetings of the board of directors shall consist of a
majority of the whole board. Unless otherwise provided by law, by the charter
of incorporation or by these bylaws, the act of the majority of the directors
at a meeting at which a quorum is present shall be the act of the board of
directors, except for the following: (a) the affirmative vote of not less than
two-thirds (2/3) of all directors shall be required to approve any plan of
merger, consolidation or reorganization and to recommend to the stockholders
any merger, consolidation or reorganization of the corporation into or with any
other corporation, domestic or foreign, (b) the affirmative vote of not less
than two-thirds (2/3) of all directors shall be required to modify, add to or
delete from these bylaws, and (c) the affirmative vote of not less than
four-fifths (4/5) of all directors shall be required to amend, modify or delete
Section 3.2 or Section 3.3 of these bylaws.
3.10 Standing or temporary committees will be appointed from its own
number by the board of directors from time to time, and the board of directors
may from time to time invest such committees with such powers as it may see
fit, subject to such conditions or restrictions as may be prescribed by law or
by such board.
3.11 Directors shall be paid such compensation as shall be fixed by
resolution of the board of directors. In addition, a fixed per diem plus
expenses of attendance, if any, may be allowed for attendance at each regular
or special meeting of the board of directors or for attending committee
meetings or for performing special services at the request of the chief
executive officer. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor; however, the number of active employee directors will be
limited to one.
ARTICLE IV.
OFFICERS
<PAGE> 7
4.1 The officers of the corporation shall be a chairman of the board of
directors, a chief executive officer, a president/chief operating officer, such
vice presidents as may be designated by the board of directors, a secretary, a
chief financial officer, and a general counsel, each of whom shall be elected
by the affirmative vote of two-thirds (2/3) of all directors, and who shall
hold office at the pleasure of the board of directors for a term of one year
and thereafter until their successors are elected and qualify. The board of
directors may also choose such additional officers as they may deem desirable.
The chairman of the board must be a member of the board of directors. The board
of directors may combine any two offices in one person except the offices of
president/chief operating officer and secretary. Any officer may be removed by
the affirmative vote of two-thirds (2/3) of all directors.
4.2 The chairman of the board shall preside at all meetings of the
directors and stockholders, and shall be ex-officio member of all standing
committees of the board of directors, unless precluded by conflict of interest,
including but not limited to conflicts specified in corporate governance
guidelines as adopted by the board of directors; provided, however, that if the
chairman of the board also serves as the chief executive officer, he shall not
be a member of the Compensation and Human Resources Committee. He shall perform
all such other duties as are incident to his office or properly required of him
by the board of directors, or as specified in corporate governance guidelines
as adopted by the board of directors, including scheduling and setting agendas
for board meetings, serving as primary representative of the board with the
chief executive officer, and monitoring and evaluating the chief executive
officer's performance. If the chairman is also the chief executive officer, he
will discharge the duties and responsibilities of that position in addition to
those responsibilities of the chairman, unless precluded by conflict of
interest, including but not limited to conflicts specified in corporate
governance guidelines as adopted by the board of directors.
4.3 The chief executive officer shall be the principal officer of the
corporation and shall have general supervision of the affairs of the
corporation. He shall be primarily responsible for implementing policies of the
board of directors and conducting the business of the corporation. He shall
make reports to the board of directors and stockholders, and shall perform all
such other duties as are incident to his office or are properly required of him
by the board of directors. The chief executive officer may also serve as the
chairman of the board of directors and/or president/chief operating officer.
4.4 The president/chief operating officer shall have certain duties and
supervise specific affairs of the corporation as properly required of him by
the board of directors from time to time. He shall exercise the functions of
the chief executive officer in the absence or disability of the chief executive
officer, unless and until the board of directors designates another person to
assume such functions.
4.5 The vice-presidents, which may include an executive vice-president,
shall have such powers and discharge such duties as may be assigned to them
from time to time by the board of directors.
4.6 The secretary shall issue notices for all meetings, except that the
notice for special meetings of directors called at the request of the required
two-thirds (2/3) members as
<PAGE> 8
provided in Section 3.7 may be issued by such directors, shall keep minutes of
all meetings, shall have charge of the seal and the corporate books, and shall
make such reports and perform such other duties as are incident to his office,
or are properly required of him by the board of directors.
4.7 The chief financial officer shall have the custody of all monies and
securities of the corporation and shall keep regular books of account. Except
as may be otherwise provided by the board of directors under Section 6.2, he
shall disburse the funds of the corporation, or as may be ordered by the board
of directors, taking proper voucher for disbursement, and shall render to the
board of directors, from time to time as may be required of him, an account of
all transactions as chief financial officer and of the financial condition of
the corporation. He shall perform all duties incident to his office or which
are properly required of him by the board of directors.
4.8 The general counsel, subject to the supervision of the board of
directors, shall be responsible for all matters of legal import.
4.9 In the case of absence or inability or failure to act of any officer
of the corporation and of any person herein authorized to act in his place, the
board of directors may from time to time delegate the powers or duties of such
officer to any other officer, or any director or other person whom it may
select in either case by the affirmative vote of two-thirds (2/3) of all
directors.
4.10 Vacancies in any office arising from any cause may be filled by the
directors at any regular or special meetings by the affirmative vote of
two-thirds (2/3) of all directors.
4.11 The board of directors may appoint such other officers and agents as
it shall deem necessary or expedient, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
4.12 The salaries of all officers and agents of the corporation shall be
fixed by the board of directors.
4.13 The board of directors may by resolution require any or all of the
officers to give bonds to the corporation with sufficient surety or sureties,
conditioned for the faithful performance of the duties of their respective
offices, and to comply with such other conditions as may from time to time be
required by the board of directors. The premiums and other cost of such bonds
may be paid by the corporation.
ARTICLE V.
STOCK
<PAGE> 9
5.1 Certificates of capital stock shall be issued in numerical order and
each stockholder shall be entitled to a certificate certifying to the number of
shares owned by him. Such certificates shall be executed by such officers or
agents (which may include a registrar and transfer agents) as the board of
directors may by resolution entered upon its minutes determine, and the board
may determine which, if any, of the signatures thereon may be facsimile.
5.2 In case any officer who has signed, or whose facsimile signature has
been used on, a certificate, has ceased to be an officer before the certificate
has been delivered, such certificates may, nevertheless, be adopted and issued
and delivered by the corporation as though the officer who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon, had not ceased to be such officer of the corporation.
5.3 Transfer of stock shall be made only upon the transfer books of the
corporation, kept at the office of the corporation or at the office of any
transfer agents or registrar and before a new certificate is issued, the old
certificate shall be surrendered for cancellation.
5.4 Registered stockholders only shall be entitled to be treated by the
corporation as the holders in fact of the stock standing in their respective
names, and the corporation shall not be bound to recognize any equitable or
other claim to or interest in any shares on the part of any other person,
whether or not it shall have express or other notice thereof.
5.5 In case of loss or destruction of any certificate of stock, another
may be issued in its place upon proof of such loss or destruction, and upon the
giving of a satisfactory bond of indemnity to the corporation in such sum as
the board of directors may provide.
5.6 The board of directors shall have power and authority to make all
rules and regulations as it may deem expedient concerning the issue, transfer,
conversion, and registration of certificates for share of the capital stock of
the corporation, not inconsistent with the laws of Mississippi, the charter of
the corporation and these bylaws.
5.7 The board of directors shall have power to close the stock transfer
books of the corporation for a period not exceeding seventy (70) days preceding
the date of any meeting of stockholders, or the date when any redemption or
purchase of capital stock shall go into effect, or for a period of not
exceeding seventy (70) days in connection with obtaining the consent of
stockholders for any purpose, provided, however, that in lieu of closing the
stock transfer books as aforesaid, the board of directors may fix in advance a
date, not exceeding seventy (70) days preceding the date of any meeting of
stockholders, or the date when any redemption or purchase of capital stock
shall go into effect, or a date in connection with obtaining such consent, as a
record date for the determination of the stockholders entitled to notice of and
to vote at any such meeting, and any adjournment thereof, or to exercise the
rights in respect of any such redemption or purchase of capital stock, or to
give such consent, and in such case such stockholders of record on the date so
fixed shall be entitled to such notice of and to vote at such meeting, and any
adjournment thereof, or to exercise such rights, or to give such consent, as
the case may be, notwithstanding any transfer of stock on the books of the
corporation after any such record date fixed as aforesaid.
<PAGE> 10
5.8 The common stock of the corporation shall be issued in such amounts
and shall be sold at such price or prices, not less than par, as the board of
directors may from time to time and at any time determine.
5.9 Dividends upon common stock shall be payable as and when declared by
the board of directors at its discretion.
ARTICLE VI.
MISCELLANEOUS
6.1 Any part of or all of the cash dividends payable upon any shares of
capital stock may be applied, in the discretion of the board of directors, to
the payment of any indebtedness of the holder of such stock to the corporation.
6.2 The monies of the corporation shall be deposited in the name of the
corporation in such bank or banks or trust company or trust companies as the
board of directors shall designate, and shall be drawn out only by check signed
by persons designated by resolution by the board of directors.
6.3 The fiscal year of the corporation shall be determined by the board of
directors.
6.4 With the notice of the annual meeting of the stockholders there shall
be mailed a general report of the business of the corporation and a report of
the general financial condition of the corporation and its property.
6.5 (a) Notwithstanding this Section of these bylaws, except as set forth
in paragraph (b) of this Section, the affirmative vote or consent of the
holders of not less than four-fifths of the outstanding shares of stock of the
corporation entitled to vote in elections of directors shall be required:
(1) to adopt any agreement for, or to approve, the merger or
consolidation of the corporation or any subsidiary (as hereinafter
defined) with or into any other person (as hereinafter defined),
(2) to authorize any sale, transfer or exchange to any other person of
all or substantially all of the assets of the corporation or any
subsidiary, or
(3) to authorize the issuance or transfer by the corporation or any
subsidiary of any voting securities of the corporation or any
subsidiary in exchange or
<PAGE> 11
payment for the securities or assets of any other person, if such
authorization is otherwise required by law or by agreement between
the corporation and any national securities exchange or by any other
agreement to which the corporation or any subsidiary is a party.
(b) The provisions of paragraph (a) of this Section shall not apply, and
the provisions of Mississippi law shall apply, to (1) any transaction described
therein if the board of directors by resolution shall have approved by
two-thirds vote of all directors a memorandum of understanding with such other
person setting forth the principal terms of such transaction and such
transaction is substantially consistent therewith; or (2) any transaction
described therein if such other person is a corporation of which a majority of
the outstanding shares of all classes of stock entitled to vote in elections of
directors is owned of record or beneficially by the corporation or its
subsidiaries.
(c) The affirmative vote or consent of the holders of not less than
four-fifths of the outstanding shares of stock of the corporation entitled to
vote in elections of directors shall be required for the adoption of any plan
for the dissolution of the corporation if the board of directors shall not
have, by resolution adopted by two-thirds vote of all directors, recommended to
the stockholders the adoption of such plan for dissolution of the corporation.
If the board of directors shall have so recommended to the stockholders such
plan for dissolution of the corporation, the provisions of Mississippi law
shall apply.
(d) For the purposes of this Section,
(1) a "subsidiary" is any corporation more than 49 percent of the voting
securities of which are owned, directly or indirectly, by the
corporation;
(2) a "person" is any individual, corporation, or other entity.
(e) The board of directors shall have the power and duty to determine, for
purposes of this Section, on the basis of information known to such board,
whether a proposed transaction is substantially consistent with any memorandum
of understanding of the character referred to in paragraph (b) of this Section.
Any such determination shall be conclusive and binding for all purposes of
this Section.
ARTICLE VII.
BOOKS AND RECORDS
7.1 The books, accounts and records of the corporation shall be kept at
the home office of the corporation except as the board of directors may from
time to time appoint. The board of directors shall determine whether and to
what extent the accounts and books of the corporation, or any of them, other
than the stock ledger, shall be open to the inspection of the
<PAGE> 12
stockholders, and no stockholder shall have any right to inspect any account or
book or document of the corporation except as conferred by law or by resolution
of the stockholders or directors.
ARTICLE VIII.
NOTICES
8.1 Unless otherwise provided in these bylaws, whenever the provisions of
the charter of incorporation or these bylaws require notice to be given to any
director, officer, or stockholder, such notice may be given in writing by
handing a copy thereof to such person or by depositing a copy thereof in a post
office or letter box in postpaid, sealed envelope, addressed to such director,
officer, or stockholder at his or her address as the same appears in the books
of the corporation, and the time when the same shall be mailed shall be deemed
to be the time of the giving of such notice. Any such notice may be contained
in any periodic publication of the corporation or any house organ thereof which
is mailed as provided in this Section.
8.2 A waiver of any notice in writing, signed by a stockholder, director,
or officer, whether before or after the time stated in said waiver for holding
a meeting, shall be deemed equivalent to a notice required to be given to any
director, officer or stockholder.
ARTICLE IX.
SEAL
9.1 The corporate seal of the corporation shall consist of two concentric
circles, between which shall be the name of the corporation and the year of its
incorporation and in the center shall be inscribed the word "Seal".
<PAGE> 1
Exhibit 4
WAIVER AND AMENDMENT NO. 1
WAIVER AND AMENDMENT NO. I dated as of April 1, 1996 to the Credit
Agreement (as amended, the "Credit Agreement") among FIRST MISSISSIPPI
CORPORATION, the BANKS signatory thereto and THE CHASE MANHATTAN BANK, N. A.,
as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
WHEREAS, the Company has requested that the Credit Agreement be amended
to, among other things, reduce the interest rate margins, commitment fees and
letter of credit fees thereunder and to eliminate the Consolidated Working
Capital covenant contained in Section 8. 1 0;
WHEREAS, on October 20, 1995, the Company distributed its 14,750,000
common shares of FirstMiss Gold Inc., plus cash resulting from any fractional
shares created by the distribution formula, to its shareholders through a
tax-free spin-off (such cash payments and distributions of FirstMiss Gold Inc.
common stock hereinafter referred to as the "Distributions");
WHEREAS, the Company has requested that the Distributions being excluded
from the calculation of the ratio described in Section 8.13 of the Credit
Agreement;
WHEREAS, the Company has requested that the Letter of Credit sublimit be
increased from $20,000,000 to $40,000,000;
WHEREAS, the Banks are agreeable to such requests;
NOW, THEREFORE, the parties hereto agree as follows:
1. Waiver. The Banks hereby waive the inclusion by the Company of the
Distributions in calculating the cash flow ratio contained in Section 8.13 of
the Credit Agreement.
2. Amendments. (a) Section 1.01 of the Credit Agreement is hereby amended
by restating the following defined terms as follows:
"Applicable Margin" shall mean for any Applicable Margin Period that
the ratio of total Debt of the Company and its Consolidated Subsidiaries
on a consolidated basis to Consolidated Net Worth is:
<TABLE>
<CAPTION>
Base Rate Loans Eurodollar Loans
--------------- ----------------
<S> <C> <C>
(i) greater than or equal to .75 0% 1.00%
(ii) less than .75, but greater than or equal to .50 0% 0.75%
(iii) less than .50 0% 0.50%
</TABLE>
For the purposes of this clause, the ratio upon which a determination of
"Applicable Margin" is based shall be computed on the basis of the
Relevant Financial Information."
(b) Section 1.0 I of the Credit Agreement is hereby further amended by
deleting the definitions of "Gold Loan" and "Gold Subsidiaries" in their
entirety.
(c) The first paragraph of Section 2.02(a) is hereby amended by deleting
the figure "$20,000,000" in the penultimate line thereof and substituting
therefor the figure "$40,000,000."
(d) Section 2.02(a)(iii) )x) is hereby amended by restating it to read as
follows:
<PAGE> 2
"(iii) (x) The Company shall pay to the Agent for the account of each
Bank a letter of credit fee, during the period each Letter of Credit
is outstanding, on the daily average undrawn face amount of such
Letter of Credit at a rate per annum equal to the percentage set
forth below which corresponds to the ratio of total Debt of the
Company and its Consolidated Subsidiaries on a consolidated basis
to Consolidated Net Worth which is in effect on such day:
<TABLE>
<S> <C>
(1) greater than or equal to .75 0.875%
(2) less than .75, but greater than or equal to .50 0.625%
(3) less than .50 0.375%
</TABLE>
For the purposes of this provision, the ratio upon which a
determination of the commitment fees are based shall be computed on
the basis of the Relevant Financial Information. Accrued letter of
credit fees payable to any Bank shall be payable in arrears quarterly
on each Quarterly Date and on each Bank's Tranche A Commitment
Termination Date."
(e) Section 2.06 of the Credit Agreement is hereby amended by restating it
as follows:
"Section 2.06 Commitment Fee. The Company shall pay to the Agent for
the account of each Bank a commitment fee, for each day such Bank's
Commitment is in effect, on the daily average unused amount of such Bank's
Commitment at a rate per annum equal to the percentage set forth below
which corresponds to the ratio of total Debt of the Company and its
Consolidated Subsidiaries on a consolidated basis to Consolidated Net
Worth which is in effect on such day:
<TABLE>
<S> <C>
(i) greater than or equal to .75 0.375%
(ii) less than .75, but greater than or equal to .50 0.300%
(iii) less than .50 0.225%.
</TABLE>
For the purposes of this provision, the ratio upon which a determination
of the commitment fees are based shall be computed on the basis of the
Relevant Financial Information. Accrued commitment fees payable to any
Bank shall be payable in arrears quarterly on each Quarterly Date and on
the earlier of the date the Commitments are terminated or such Bank's
Tranche A or Tranche B Commitment Termination Date, as the case may be."
(f) Section 8.05 of the Credit Agreement is hereby amended by deleting the
parenthetical phrase "(other than a Gold Subsidiary)" in each place therein
where it appears.
(g) Section 8. 10 is hereby amended by restating it to read "INTENTIONALLY
DELETED".
(h) Section 8.12 of the Credit Agreement is hereby amended by deleting the
parenthetical phrase "(excluding Debt outstanding under the Gold Loan on the
date of this Agreement)" contained therein.
3. Representations and Warranties. The Company hereby represents and
warrants that: (i) the representations and warranties contained in Section 7 of
the Credit Agreement are true and correct on the date hereof as though made on
the date hereof, except in Section 7.02, all dates specified as June 30, 1992
should be deleted and replaced with June 30, 1995 and all dates specified as
September 30, 1992 should be deleted and replaced with December 31, 1995; and
in Section 7.09, the date specified as June 30, 1982 should be deleted and
replaced with June 30, 1988 and (ii) after giving effect to this Waiver and
Amendment, no Default or Event of Default has occurred and is continuing.
<PAGE> 3
4. Effect of Waiver and Amendment. This Waiver and Amendment does not
constitute a waiver of any other provision of the Credit Agreement or a waiver
of any right, power or privilege of the Banks or the Agent or of any future
compliance with Section 8.13 or any other provision of the Credit Agreement. On
and after the date this Waiver and Amendment becomes effective in accordance
with Section 4 hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof', or words of like import referring to the
Agreement, and each reference in the Notes referring to "the Agreement",
"thereunder", "thereof", or words of like import shall mean the Credit
Agreement as amended by this Amendment. The Credit Agreement, as amended by
this Waiver and Amendment, is and shall continue to be in full force and effect
and is hereby ratified and confirmed in all respects.
5. Miscellaneous. This Waiver and Amendment (i) may be executed in one or
more counterparts by the parties hereto, (ii) shall become effective when
counterparts hereof have been executed by the parties, and (iii) SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
FIRST MISSISSIPPI CORPORATION BANK OF AMERICA ILLINOIS (as successor in
interest to Continental Bank, N.A.)
By: \s\ R. Michael Summerford
--------------------------
Name: R. Michael Summerford By: \s\ Deirdre B. Doyle
------------------------------------
Title: Vice President Name: Deirdre B. Doyle
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
as a Bank and as Agent
DEPOSIT GUARANTY NATIONAL BANK
By: \s\ Michael J. McGovern
--------------------------
Name: Michael J. McGovern
Title: Managing Director By: \s\ Anthony Thomas
-----------------------------------
Name: Anthony Thomas
Title: Senior Vice President
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1996
<PERIOD-START> JUL-01-1995
<PERIOD-END> MAR-31-1996
<CASH> 35,805
<SECURITIES> 0
<RECEIVABLES> 95,583
<ALLOWANCES> 991
<INVENTORY> 82,048
<CURRENT-ASSETS> 223,590
<PP&E> 311,686
<DEPRECIATION> 151,685
<TOTAL-ASSETS> 447,330
<CURRENT-LIABILITIES> 89,293
<BONDS> 82,388
<COMMON> 20,614
0
0
<OTHER-SE> 215,881
<TOTAL-LIABILITY-AND-EQUITY> 447,330
<SALES> 441,361
<TOTAL-REVENUES> 446,048
<CGS> 325,406
<TOTAL-COSTS> 325,406
<OTHER-EXPENSES> 4,860
<LOSS-PROVISION> 244
<INTEREST-EXPENSE> 7,062
<INCOME-PRETAX> 65,060
<INCOME-TAX> 25,400
<INCOME-CONTINUING> 40,339
<DISCONTINUED> (1,083)
<EXTRAORDINARY> 0
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<NET-INCOME> 39,256
<EPS-PRIMARY> 1.87
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</TABLE>
