<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_______________________
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934.
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1995
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 1-286-2
FOSTER WHEELER CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-1855904
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Perryville Corporate Park, Clinton, N. J. 08809-4000
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (908) 730-4000
(Not Applicable)
Former name, former address and former fiscal year, if changed since
last report.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes (X) No ( )
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of June 30, 1995 was 35,857,427 shares.
<PAGE> 2
FOSTER WHEELER CORPORATION
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C> <C>
Part I Financial Information:
Item 1 - Financial Statements:
Condensed Consolidated Balance Sheet at
June 30, 1995 and December 30, 1994 2
Condensed Consolidated Statement of Earnings
Three and Six Months Ended June 30, 1995 and
July 1, 1994 3
Condensed Consolidated Statement of Cash Flows
Six Months Ended June 30, 1995 and
July 1, 1994 4
Notes to Condensed Consolidated Financial
Statements 5 - 7
Item 2 - Management's Discussion and Analysis of
Financial Condition and Results of Operations 8 - 9
Part II Other Information:
Item 2 - Changes in Securities 10
Item 5 - Other Information 10
Item 6 - Exhibits and Reports on Form 8-K 10
</TABLE>
- 1 -
<PAGE> 3
PART I. FINANCIAL INFORMATION
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
ITEM 1. - FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEET
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
June 30, 1995 December 30,
ASSETS (Unaudited) 1994
------ ------------- ------------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 199,725 $ 235,801
Short-term investments 96,157 118,561
Accounts and notes receivable 585,764 496,981
Contracts in process 242,326 171,144
Inventories 35,847 27,634
Prepaid and refundable income taxes 46,537 47,543
Prepaid expenses 15,608 15,045
---------- ----------
Total Current Assets 1,221,964 1,112,709
Notes and accounts receivable - long-term 57,831 51,658
Investments and advances 52,686 42,665
Land, buildings and equipment - at cost less
accumulated depreciation: 1995 - $270,657;
1994 - $249,590 566,212 566,156
Cost in excess of net assets of subsidiaries acquired 67,563 68,629
Deferred charges and prepaid pension cost 221,335 215,616
Deferred income taxes 3,958 5,901
---------- ----------
Total Assets $2,191,549 $2,063,334
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current Liabilities:
Current installments on long-term debt $ 32,669 $ 32,565
Bank loans 110,070 77,350
Accounts payable and accrued expenses 333,528 351,209
Estimated cost to complete long-term contracts 339,252 294,881
Advance payments by customers 89,565 104,239
Income taxes 34,309 30,335
---------- ----------
Total Current Liabilities 939,393 890,579
Long-term debt, less current installments 515,618 466,637
Other long-term liabilities, deferred credits,
postretirement benefits other than pensions
and minority interest in subsidiary companies 226,551 229,973
Deferred income taxes 21,733 19,651
---------- ----------
Total Liabilities 1,703,295 1,606,840
---------- ----------
Stockholders' Equity:
Common stock 35,868 35,833
Paid-in capital 38,870 38,266
Retained earnings 444,021 420,861
Accumulated translation adjustment (30,210) (37,915)
---------- ----------
488,549 457,045
Less cost of treasury stock 295 551
---------- ----------
Total Stockholders' Equity 488,254 456,494
---------- ----------
Total Liabilities and Stockholders' Equity $2,191,549 $2,063,334
========== ==========
</TABLE>
See notes to financial statements.
- 2 -
<PAGE> 4
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF EARNINGS
(IN THOUSANDS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------------------- -----------------------------
June 30, 1995 July 1, 1994 June 30, 1995 July 1, 1994
------------- ------------ ------------- ------------
<S> <C> <C> <C> <C>
Revenues:
Operating revenues $ 678,733 $ 571,247 $ 1,314,726 $ 1,040,892
Other income 7,497 8,377 15,149 16,708
----------- ----------- ----------- -----------
Total revenues 686,230 579,624 1,329,875 1,057,600
----------- ----------- ----------- -----------
Cost and expenses:
Cost of operating revenues 587,829 494,000 1,134,056 886,526
Selling, general and administrative expenses 56,779 49,411 110,909 99,142
Other deductions 13,153 9,554 27,049 18,445
Minority interest 641 1,034 1,804 2,057
----------- ----------- ----------- -----------
Total costs and expenses 658,402 553,999 1,273,818 1,006,170
----------- ----------- ----------- -----------
Earnings before income taxes 27,828 25,625 56,057 51,430
----------- ----------- ----------- -----------
Provision for income taxes:
Federal and foreign 7,817 7,921 17,042 17,162
State 1,121 1,045 2,245 2,206
----------- ----------- ----------- -----------
8,938 8,966 19,287 19,368
----------- ----------- ----------- -----------
Net earnings $ 18,890 $ 16,659 $ 36,770 $ 32,062
=========== =========== =========== ===========
Weighted average number of common
shares outstanding 35,846,274 35,799,788 35,832,661 35,765,403
=========== =========== =========== ===========
Earnings per share $ .53 $ .47 $ 1.03 $ .90
=========== =========== =========== ===========
Cash dividends paid per common share $ .195 $ .185 $ .38 $ .35
=========== =========== =========== ===========
</TABLE>
See notes to financial statements.
- 3 -
<PAGE> 5
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS OF DOLLARS)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended
---------------------------------
June 30, 1995 July 1, 1994
------------- ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 36,770 $ 32,062
Adjustments to reconcile net earnings
to cash flows from operating activities:
Depreciation and amortization 24,372 21,069
Noncurrent deferred tax 3,656 11,019
Other (2,938) (1,616)
Changes in assets and liabilities:
Receivables (83,493) (8,030)
Contracts in process and inventories (77,598) (59,796)
Accounts payable and accrued expenses (23,052) 11,209
Estimated cost to complete long-term contracts 39,375 (23,278)
Advance payments by customers (16,923) 28,813
Income taxes 4,699 (3,481)
Other assets and liabilities (6,421) (12,878)
--------- ---------
NET CASH USED BY OPERATING ACTIVITIES (101,553) (4,907)
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (21,021) (18,038)
Proceeds from sale of property plant and equipment 429 5,342
Changes in short-term investments 21,686 469
Changes in investments and advances (9,219) (4,883)
Partnership distribution (4,883) (3,053)
--------- ---------
NET CASH USED BY INVESTING ACTIVITIES (13,008) (20,163)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends to stockholders (13,610) (12,511)
Proceeds from exercise of stock options 478 2,137
Proceeds from long-term debt 54,650 4,771
Repayment of long-term debt (5,647) (4,095)
Changes in short-term debt 31,708 40,615
--------- ---------
NET CASH PROVIDED BY FINANCING ACTIVITIES 67,579 30,917
--------- ---------
Effect of exchange rate changes on cash and
cash equivalents 10,906 14,900
--------- ---------
INCREASE/(DECREASE) IN CASH AND CASH EQUIVALENTS (36,076) 20,747
Cash and cash equivalents at beginning of year 235,801 249,514
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 199,725 $ 270,261
========= =========
Cash paid during period:
-Interest (net of amount capitalized) $ 22,849 $ 17,518
-Income taxes $ 10,641 $ 7,563
</TABLE>
See notes to financial statements.
- 4 -
<PAGE> 6
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
1. The condensed consolidated balance sheet as of June 30, 1995, and the
related condensed consolidated statements of earnings and cash flows for
the three and six month periods ended June 30, 1995 and July 1, 1994 are
unaudited. In the opinion of management, all adjustments necessary for a
fair presentation of such financial statements have been included. Such
adjustments only consisted of normal recurring items. Interim results are
not necessarily indicative of results for a full year.
The financial statements and notes are presented as permitted by Form 10-Q
and do not contain certain information included in the Corporation's 1994
Annual Report, Form 10-K filed March 24, 1995 which should be read in
conjunction with this report.
2. In the ordinary course of business the Corporation and its subsidiaries
enter into contracts providing for assessment of damages for nonperformance
or delays in completion. Suits and claims have been or may be brought
against the Corporation by customers alleging deficiencies in either
equipment design or plant construction. The Corporation and its
subsidiaries also routinely become involved in litigation relating to
patents and other intellectual property. There are several actions of that
nature presently pending. If the presently pending suits described above
were sustained in substantially the amounts asserted, they would have a
material adverse effect on the Corporation's financial condition and
results of operations. However, based on its knowledge of the facts and
circumstances relating to the Corporation's liabilities, if any, and to its
insurance coverage, management believes that the disposition of such suits
will not result in charges against assets or earnings materially in excess
of amounts provided in the accounts.
The Corporation and its subsidiaries, along with many other companies, are
codefendants in numerous lawsuits pending in the United States and Canada,
in which plaintiffs claim damages for personal injury or property damage
alleged to arise from exposure to or use of asbestos. At June 30, 1995 and
July 1, 1994, the suits pending numbered approximately 63,000 and 42,800,
respectively. It is anticipated that a substantial number of similar suits
will be filed in the future. Since the inception of asbestos-related
litigation against the Corporation and its subsidiaries, approximately
52,000 lawsuits have been terminated without any payment or with only
nominal payments by the insurers for the Corporation and its subsidiaries.
Based on its knowledge of relevant facts and circumstances, on its
determination of the availability and extent of insurance coverage, and on
the advice of the Corporation's special counsel, the management of the
Corporation is of the opinion that the ultimate disposition of pending and
future asbestos-related lawsuits will not result in material charges
against assets or earnings. The asbestos litigation herein described does
not relate to any activities currently being carried on by the Corporation
or its subsidiaries.
3. The Corporation's unsecured debt contains the following restrictions:
The Note Agreement pursuant to which the 8.58% notes were issued and the
Revolving Credit Agreement require that consolidated Tangible Net Worth, as
defined in the agreements, be at least $400,000 plus 25% of earnings from
1991 and thereafter. At June 30, 1995, the consolidated Tangible
- 5 -
<PAGE> 7
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
(Continued)
Net Worth was $547,297. The Note Agreement and the Revolving Credit Agreement
also require the maintenance of certain capitalization ratios. Both agreements
require that the ratio of Indebtedness to Tangible Net Worth, as those terms
are defined in the agreements, not exceed .65 to 1. At June 30, 1995 this
ratio was .62 to 1.
4. A total of 2,550,473 shares were reserved for issuance under the stock
option plans; of this total 1,548,878 were not under option.
5. Foster Wheeler Corporation had a backlog of firm orders as of June 30, 1995
of $5,635,589 as compared to a backlog as of July 1, 1994 of $4,264,214.
6. Earnings per share data have been computed on the weighted average number
of shares of common stock outstanding. Outstanding stock options have been
disregarded because their effect on earnings per share would not be
significant.
7. Interest income and cost for the following periods are:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
--------------------------- --------------------------------
June 30, 1995 July 1, 1994 June 30, 1995 July 1, 1994
------------- ------------ ------------- ------------
<S> <C> <C> <C> <C>
Interest income $ 5,639 $5,925 $11,535 $12,104
======= ====== ======= =======
Interest cost $11,338 $8,847 $22,431 $17,063
======= ====== ======= =======
</TABLE>
Included in interest cost is interest capitalized on self-constructed
assets which is insignificant for all periods noted.
- 6 -
<PAGE> 8
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
(Continued)
8. Changes in stockholders' equity for the six months ended June 30, 1995 were
as follows:
<TABLE>
<CAPTION>
Common Stock Accumulated Treasury Stock Total
---------------- Paid-in Retained Translation ---------------- Stockholders'
Shares Amount Capital Earnings Adjustment Shares Amount Equity
------ ------ ------- -------- ---------- ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance December 30, 1994 35,832,664 $35,833 $38,266 $420,861 $(37,915) 20,129 $(551) $456,494
Net earnings 36,770 36,770
Dividends paid - common (13,610) (13,610)
Sold under stock options 35,567 35 443 478
Tax benefits related to stock options 115 115
Treasury stock issued under
incentive plans 46 (9,325) 256 302
Current period translation
adjustment 7,705 7,705
---------- ------- ------- -------- -------- ------ ----- --------
Balance June 30, 1995 35,868,231 $35,868 $38,870 $444,021 $(30,210) 10,804 $(295) $488,254
========== ======= ======= ======== ======== ====== ===== ========
</TABLE>
- 7 -
<PAGE> 9
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
ITEM 2.-MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (UNAUDITED)
The following is Management's Discussion and Analysis of certain significant
factors which have affected the financial condition and results of operations
of the Corporation for the periods indicated below. This discussion and
analysis should be read in conjunction with the 1994 Annual Report, Form 10-K
filed March 24, 1995.
A. Consolidated results of operations for three and six months ended June 30,
1995 vs. three and six months ended July 1, 1994.
The backlog of unfilled orders as of June 30, 1995 totaled $5.6 billion,
the highest in the history of the Corporation. This represented an
increase of approximately $1.4 billion (32%) over the amount reported at
July 1, 1994. Approximately 63% of this increase was due to the
acquisition of an environmental company in October 1994 in the Engineering
and Construction Group. The Energy Equipment Group recorded a 23% increase
in unfilled orders due primarily to the orders taken by Foster Wheeler
Energia, S.A.
New orders booked for the three and six months ended June 30, 1995 amounted
to approximately $900 million and $1.9 billion, respectively. These
amounts represented increases of 30% for the three month period and 20% for
the six month period in comparison to 1994. The primary reason for this
increase was the significant amount of bookings reported by Foster Wheeler
Environmental Corporation in the United States and Foster Wheeler Energia,
S.A. in Spain. The increase reported by these two entities was partially
offset by a reduction in new orders booked by Foster Wheeler Limited U.K.
in the Engineering and Construction Group and Foster Wheeler Energy
Corporation in the Energy Equipment Group.
Operating revenues for the three and six months ended June 30, 1995
increased approximately $100 million and $270 million, respectively, in
comparison to 1994. The Engineering and Construction Group was primarily
responsible for the increase in operating revenues. Approximately 70% of
this increase arose in the United States, mainly related to Foster Wheeler
Environmental Corporation with the balance reported in Europe from all
locations.
For the first six months of 1995 other income decreased slightly, primarily
due to the recognition of a gain on sale of fixed assets recorded in 1994.
Approximately 76% of other income in 1995 is interest income. Other
deductions for the three and six months period increased $3.6 million and
$8.6 million, respectively. These increases were primarily due to higher
interest expense and increased amortization of cost in excess of net assets
of subsidiary acquired due to acquisition of an environmental company in
October 1994. In comparing both the three and six month periods, selling,
general and administrative expenses increased approximately 15% and 12%,
respectively, compared to 1994, also due to the same acquisition as above.
- 8 -
<PAGE> 10
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
ITEM 2.-MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (UNAUDITED)
(CONTINUED)
Net earnings increased by approximately $4.7 million (15%) for the six month
period and by $2.2 million (13%) for the three month period. The increase was
primarily due to the increased earnings in the Engineering and Construction
Group as reported by Foster Wheeler Limited U.K., Foster Wheeler Italiana and
the inclusion of Foster Wheeler Environmental Corporation for 1995, offset by
reduced earnings in the Energy Equipment Group, principally Foster Wheeler
Energy Corporation.
B. Consolidated Financial Position (in millions)
Stockholder's equity for the six months ended June 30, 1995 increased $31.8
from year end 1994. The increases from net earnings of $36.8 and the
change in the accumulative translation adjustment of $7.7 were partially
offset by dividends to stockholders of $13.6.
Since December 30, 1994, cash and cash equivalents have decreased by $36.1.
Cash generated from earnings of $61.9 reduced by an increase in funding of
working capital resulted in a use of cash from operating activities of
$101.6. Cash was used to pay dividends of $13.6, capital expenditures of
$21.0 and long-term debt of $5.6.
In June 1995, the Corporation announced it has agreed to acquire the Power
Generation Business of A. Ahlstrom Corporation (a Finnish company). The
parties have entered into a due diligence period. The closing is expected
to occur in September 1995. It is estimated that the purchase price will
be in the range of $210-$220 million. In addition, the Corporation has
entered into two memorandums of understanding for the following:
a) The purchase of the assets of Zack Power and
Industrial Company, a construction company in Gary,
Indiana for approximately $2.5 million, closing
expected in the third quarter.
b) The purchase of the assets of TPA, Inc., a sulfur
recovery company in Dallas, Texas for approximately
$16.0 million, closing expected in September.
The Corporation is in the process of establishing a new $500 million
revolving credit facility with a group of banks. This facility will be
used to refinance borrowings under the existing Revolving Credit Agreement,
to finance the purchase of the Ahlstrom Pyropower Sector and to provide for
working capital requirements. It is expected that this facility will close
by the end of August 1995. The Corporation also intends to file a $500
million Universal Shelf Registration Statement with the Securities and
Exchange Commission for future access to the public market.
- 9 -
<PAGE> 11
PART II. OTHER INFORMATION
FOSTER WHEELER CORPORATION AND SUBSIDIARIES
ITEM 2. - CHANGES IN SECURITIES
(b) Note 3 of the Notes to Condensed Consolidated Financial Statements
which appears on Page 5 of Part I of this Report is incorporated
herein by reference.
ITEM 5. - OTHER INFORMATION
None
ITEM 6. - EXHIBITS AND REPORTS ON FORM 8-K
a) The following Exhibits are required by Item 601 of Regulation S-K:
Exhibit 3) By-laws of Registrant as amended through June 27, 1995
and filed as part of this report.
Exhibit 27) Financial Data Schedule (For the informational
purposes of the Securities and Exchange Commission only.)
b) Reports on Form 8-K
None
- 10 -
<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.
FOSTER WHEELER CORPORATION
---------------------------------
(Registrant)
Date: August 11, 1995 /S/ Richard J. Swift
--------------- ----------------------------------
Richard J. Swift
(Chairman, President and
Chief Executive Officer)
Date: August 11, 1995 /S/ David J. Roberts
--------------- ----------------------------------
David J. Roberts
(Vice Chairman and
Chief Financial Officer)
- 11 -
<PAGE> 13
Exhibit Index
-------------
Exhibit
No. Description
------- -----------
3 By-laws of Registrant as amended through June 27, 1995
and filed as part of this report.
27 Financial Data Schedule
<PAGE> 1
EXHIBIT NO. 3
FOSTER WHEELER CORPORATION
(A NEW YORK CORPORATION)
________________________
BY-LAWS
AS AMENDED TO JUNE 27, 1995
<PAGE> 2
FOSTER WHEELER CORPORATION
---------
BY-LAWS
---------
TABLE OF CONTENTS*
---------
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1.1 Place of Meetings. . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Annual Meetings. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3 Special Meetings . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.4 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.5 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.6 Organization of Meetings . . . . . . . . . . . . . . . . . . 2
SECTION 1.7 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.8 List of Shareholders . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.9 Inspectors of Election . . . . . . . . . . . . . . . . . . . 2
SECTION 1.10 Nomination of Directors. . . . . . . . . . . . . . . . . . . 2
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 Term and Qualification . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Places of Directors' Meetings. . . . . . . . . . . . . . . . 3
SECTION 2.4 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.5 Special Meetings . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.6 Notice of Special Meetings . . . . . . . . . . . . . . . . . 4
SECTION 2.7 Organization of Meetings . . . . . . . . . . . . . . . . . . 4
SECTION 2.8 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.9 Action Without Meeting . . . . . . . . . . . . . . . . . . . 4
SECTION 2.10 Telephonic Meetings. . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.12 Directors Emeritus . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
COMMITTEES
SECTION 3.1 Executive Committee. . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.2 Powers of Executive Committee. . . . . . . . . . . . . . . . 5
SECTION 3.3 Quorum of Executive Committee; Procedure . . . . . . . . . . 5
SECTION 3.4 Other Committees . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.5 Compensation and Expenses. . . . . . . . . . . . . . . . . . 5
_____________
* This Table of Contents is included for convenience of reference and is not
part of the By-Laws as originally accepted or amended.
(i)
<PAGE> 3
ARTICLE IV
OFFICERS
SECTION 4.1 General Provisions . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.2 Election of Officers . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.3 Chairman of the Board. . . . . . . . . . . . . . . . . . . . 6
SECTION 4.4 Vice Chairman. . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.5 President. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.6 Vice Presidents. . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.7 Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.8 Assistant Secretaries. . . . . . . . . . . . . . . . . . . . 6
SECTION 4.9 Controller . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.10 Assistant Controllers. . . . . . . . . . . . . . . . . . . . 6
SECTION 4.11 Treasurer. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.12 Assistant Treasurers . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.13 General Counsel. . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4.14 Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4.15 Retirement; Vacancies. . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
CAPITAL STOCK
SECTION 5.1 Certificates . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.2 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.3 Fixing of Record Date. . . . . . . . . . . . . . . . . . . . 7
SECTION 5.4 Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.5 Lost Stock Certificates. . . . . . . . . . . . . . . . . . . 7
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.2 Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.3 Resignations . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.4 Checks, Drafts, Notes and Other Negotiable Instruments . . . 8
SECTION 6.5 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.6 Indemnification and Insurance. . . . . . . . . . . . . . . . 8
SECTION 6.7 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 9
(ii)
<PAGE> 4
BY-LAWS
of
FOSTER WHEELER CORPORATION
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1. Place of Meetings. All meetings of the shareholders of the
Corporation shall be held at such place either within or without the State of
New York as shall be fixed by the Board of Directors and specified in the
notice or waiver of notice of meeting.
SECTION 1.2. Annual Meeting. (a) The annual meeting of shareholders for
the election of directors and for the transaction of such other business as
properly may be brought before the meeting shall be held during the month of
April in each year on such date and at such time as the Board of Directors
shall specify by resolution.
(b) At any annual meeting of shareholders of the Corporation, only such
business shall be conducted as shall have been brought before the meeting (i)
by or at the direction of the Board of Directors or (ii) by any shareholder of
the Corporation who complies with the procedures set forth in this Section 1.2.
For business to be properly brought before an annual meeting by a shareholder,
the shareholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation. To be timely, a shareholder's notice must be
received by the Secretary at the Corporation's principal executive offices not
less than 120 calendar days in advance of the date of the Corporation's proxy
statement released to shareholders in connection with the previous year's
annual meeting of shareholders. To be in proper written form, a shareholder's
notice to the Secretary shall set forth in writing as to each matter the
shareholder 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 address,
as they appear on the Corporation's books, of the shareholder proposing such
business, (iii) the class and number of shares of the Corporation which are
beneficially owned by the shareholder and (iv) any material interest of the
shareholder in such business. Notwithstanding anything in the By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 1.2. The chairman of
an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance
with the provisions of this Section 1.2, and, if he should so determine, he
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
SECTION 1.3. Special Meetings. Special meetings of shareholders may be
held whenever called in the manner and with the notice specified in the
Certificate of Incorporation. The business transacted at all special meetings
shall be limited to the purposes stated in the notice thereof.
SECTION 1.4. Notice of Meetings. Written notice of every meeting of
shareholders stating the purpose for which the meeting is called and the time
and place thereof shall be mailed, postage prepaid, not less than ten nor more
than 50 days prior to the date set for the meeting, to each shareholder
entitled to vote at such meeting as of the record date established by the Board
of Directors pursuant to Section 5.3. Such notice shall be directed to a
shareholder at his address as it shall appear on the books of the Corporation
unless he shall have filed with the Secretary of the Corporation a written
request that notices intended for him be mailed to some other address, in which
case it shall be mailed to the address designated in such request.
SECTION 1.5. Quorum. At any meeting of shareholders, except as otherwise
expressly required by statute, by the Certificate of Incorporation, or by these
By-Laws, the holders of record of a majority of the shares of stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of any business. If,
however, such quorum shall not be present at any meeting of the
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shareholders, the shareholders present in person or by proxy shall have power
to adjourn the meeting from time to time, without notice other than
announcement at the meeting of the time and place of the holding of the
adjourned meeting, until a quorum shall be present. At such adjourned meeting
at which a quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally called.
SECTION 1.6. Organization of Meetings. At all meetings of shareholders,
unless otherwise determined by the Board of Directors, the Chairman of the
Board or, in his absence, the Vice Chairman, if one is elected, and if not the
President shall preside and the Secretary or an Assistant Secretary shall act
as Secretary.
SECTION 1.7. Voting. At each meeting of shareholders each shareholder
shall be entitled to one vote, in person or by proxy, for each share of stock
registered in the name of such shareholder as of the record date fixed by the
directors, unless otherwise provided in the Certificate of Incorporation.
SECTION 1.8. List of Shareholders. A list of shareholders as of the
record date, certified by the corporate officer responsible for its preparation
or by the transfer agent of the Corporation, shall be produced at any meeting
of shareholders upon the request thereat or prior thereto of any shareholder.
SECTION 1.9. Inspectors of Election. One or more inspectors of election
may be appointed by the Board of Directors to act at any meeting of
shareholders, or, if the Board fails to act, the chairman of the meeting may
appoint an inspector or inspectors. An inspector of election may or may not be
a shareholder, but shall not be a candidate for the office of director.
The inspector(s) shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders.
Each inspector, before entering upon the discharge of his duties, shall be
sworn faithfully to execute the duties of an inspector at such meeting with
strict impartiality, and according to the best of such person's ability.
SECTION 1.10. Nomination of Directors. (a) Only persons who are nominated
in accordance with the procedures set forth in this Section 1.10 shall be
eligible for election as directors, and no person shall be elected as a
director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 1.10. No nominations for directors other than those
made by the nominating committee shall be voted upon at the annual meeting
unless other nominations by shareholders are made in accordance with the
provisions of this Section 1.10.
(b) The Committee on Nominees for Directors and Officers shall recommend
to the Board of Directors nominees for election as Directors. The Board of
Directors shall thereafter by resolution adopted at least 20 days before the
annual meeting select Corporation nominees for election as Directors. Such
resolution shall be reflected in the minutes of the Corporation as of the date
of its adoption.
(c) Nominations of individuals for election to the Board of Directors of
the Corporation at an annual meeting of shareholders may be made by any
shareholder of the Corporation entitled to vote for the election of directors
at that meeting who complies with the notice procedures set forth in this
Section 1.10. A shareholder's notice shall be received by the Secretary at the
Corporation's principal executive offices not less than 120 calendar days in
advance of the date of the Corporation's proxy statement released to
shareholders in connection with the previous year's annual meeting of
shareholders. Such shareholder's notice shall set forth (1) 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 Corporation's stock which are beneficially
owned by such person and (iv) any other information relating to such person that
is required to be disclosed in solicitations of proxies with respect to
nominees for election as directors, 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 (2) as to the shareholder giving the
notice (i) the name and address, as they appear on the
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books of the Corporation, of such shareholder, (ii) the class and number of
shares of the stock of the Corporation which are beneficially owned by such
shareholder, and (iii) the period of time such shares have been owned.
(d) At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the Secretary of
the Corporation the information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee, together with the required
written consents.
(e) The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these By-Laws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
(f) Ballots bearing the names of all the persons nominated by the Board of
Directors and by shareholders shall be provided for use at the annual meeting.
If the Board of Directors shall fail or refuse to act at least 20 days prior to
the annual meeting, nominations for directors may be made at the annual meeting
by any shareholder entitled to vote and shall be voted upon.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1. Term and Qualifications. The business, property and affairs
of the Corporation shall be overseen and controlled by the Board of Directors.
Each director shall be the owner of at least 100 shares of common stock of the
Corporation at the time of his election and at least 1,000 shares by the third
anniversary of such election, provided shares of common stock of the Corporation
are generally available for purchase. Directors holding office on June 27, 1995
shall not be required to own 1,000 shares of such stock until June 27, 1998.
Directors elected to the Board of Directors after July 1, 1995 must retire from
the Board before reaching age 70. Directors elected before such date shall not
serve as a Director once attaining the age of 72.
The directors shall be elected for the terms specified in the Certificate
of Incorporation and shall hold office until their respective successors are
duly elected and qualified. The number of directors may be increased or
decreased from time to time by a majority of the entire Board of Directors
within the limits specified in the Certificate of Incorporation but no decrease
of the number of directors shall change the term of office of any director in
office at the time thereof. If the number of directors is increased, the
additional director or directors shall be elected and shall serve as specified
in the Certificate of Incorporation.
As used in these By-Laws, "entire Board of Directors" means the total
number of directors which the Corporation would have if there were no vacancies
in the Board of Directors.
If the status of a director changes, the director shall submit his
resignation from the Board of Directors to the Chairman of the Board who shall
recommend to the Committee on Nominees for Directors and Officers either to
accept such resignation or to request the director to reconsider and continue
to serve on the Board. The Committee shall then make its recommendation to the
Board. For purposes of this SECTION of the By-Laws, change of status shall mean
retirement, change of employer or occupation, or material change in
responsibilities.
SECTION 2.2. Vacancies. If the office of any director becomes vacant for
any reason, a successor shall be selected in the manner and for the term
specified in the Certificate of Incorporation.
SECTION 2.3. Places of Directors' Meetings. The Board of Directors may
hold meetings at such place or places within or without the State of New York
as the Board of Directors may from time to time determine or as specified or
fixed in the respective notices or waivers of notice thereof.
SECTION 2.4. Regular Meetings. Regular meetings of the Board of
Directors shall be held without notice on the last Tuesday of each month,
except May, August and December, if not a legal holiday, or, if a legal
holiday, then on the next succeeding day not a legal holiday, at ten thirty
o'clock a.m., or on such other date or at such other time as may be determined
by the Board of Directors, except that one meeting shall be held immediately
following adjournment of each annual meeting of shareholders and such meeting
shall be in lieu of the meeting to be held in the month of such annual meeting.
Any business may be conducted at any regular meeting, except
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as may be otherwise specifically provided by statute or by the Certificate of
Incorporation or by Section 6.7 or other provisions of these By-Laws.
SECTION 2.5. Special Meetings. Special meetings of the Board of
Directors shall be called by the Secretary when directed to call such meetings
by the Chairman of the Board or, if the Chairman is incapacitated, by the
written request of a majority of directors.
SECTION 2.6. Notice of Special Meetings. Notice of the time, date, place
and purpose of each special meeting of the Board of Directors shall be mailed
to each director, addressed to him at his residence or usual place of business,
at least two days before the day on which the meeting is to be held, or shall
be given to him at such place personally or by telegraph or telephone not later
than the day before the day on which the meeting is to be held. Notice of any
meeting need not be given to any director if waived by him in writing either
before or after such meeting. At any meeting at which every member of the Board
of Directors shall be present, though held without notice, any business may be
transacted which might have been transacted if the meeting had been duly
called.
SECTION 2.7. Organization of Meetings. At all meetings of the Board of
Directors, the Chairman of the Board or, in his absence, the Vice Chairman, if
one is elected, and if not the President shall preside and the Secretary shall
act as secretary. In the absence of such officers, a chairman or secretary of
the meeting, or both, as the case may be, shall be elected from those present.
SECTION 2.8. Quorum. At each meeting of the Board of Directors, the
presence of at least a majority of the entire board shall constitute a quorum
for the transaction of any business and any act of the directors present at a
meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation or by these By-Laws.
SECTION 2.9. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee,
as the case may be, consent in writing to the adoption of a resolution
authorizing the action and such resolution and written consents thereto by the
members of the Board of Directors or committee are filed with the minutes of
the proceedings of the Board of Directors or committee.
SECTION 2.10. Telephonic Meetings. At the request of the Chairman any
one or more members of the Board or any Committee thereof may participate in a
special meeting, or for quorum purposes in any meeting, of such Board or
Committee by means of conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the
same time. Participation by such means shall constitute presence at the
meeting.
SECTION 2.11. Compensation. The Chairman of the Board and each director
shall be entitled to receive such compensation and expense allowances as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
SECTION 2.12. Directors Emeritus. The Board of Directors may appoint any
former director as a director emeritus for terms of one year to serve on an
advisory committee to the Board of Directors consisting of all directors
emeritus. Directors emeritus shall receive fees or other compensation fixed by
the Board of Directors not to exceed fees and compensation paid to regular
members of the Board of Directors. Directors emeritus shall be eligible to
attend all meetings of the Board of Directors but shall not be eligible to vote
or be counted in determining the presence of a quorum.
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ARTICLE III
COMMITTEES
SECTION 3.1. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors, may designate an
Executive Committee to serve at the pleasure of the Board of Directors,
consisting of not less than three nor more than seven members of the Board of
Directors, including the Chairman of the Board and the President. Any vacancy
occurring in the Executive Committee, from whatever cause, may be filled by a
majority of the entire Board of Directors. Each member of the Executive
Committee shall hold office, so long as he shall remain a director, until his
successor is duly appointed and qualified, or a majority of the Board of
Directors designates a new Executive Committee.
The Executive Committee shall keep full and accurate minutes of all its
proceedings and report the same, together with a statement of all business
transacted by it, to the Board of Directors at the next regular meeting
thereof.
SECTION 3.2. Powers of Executive Committee. During the intervals between
meetings of the Board of Directors, the Executive Committee shall have and may
exercise all of the powers of the Board of Directors, except as restricted by
law, in all cases in which specific directions have not been given by the Board
of Directors.
SECTION 3.3. Quorum of Executive Committee; Procedure. At all meetings
of the Executive Committee, the presence of a majority of its members shall be
necessary to constitute a quorum, and the concurrence or consent of a majority
of the members present shall be necessary for action on any matter.
The Executive Committee shall fix its own rules of procedure and meet at
such times and places as the Chairman of the Board may direct.
SECTION 3.4. Other Committees. The Board of Directors may from time to
time, by resolution passed by a majority of the entire Board of Directors,
designate one or more committees of the Board of Directors in addition to the
Executive Committee and delegate to any of them such powers and duties, not
inconsistent with statute or these By-Laws, as the Board of Directors may
determine.
SECTION 3.5. Compensation and Expenses. Each member of the Executive
Committee and other committees shall be entitled to receive such compensation
and expense allowance for attendance at meetings of their respective committees
as the Board of Directors from time to time may fix and determine.
ARTICLE IV
OFFICERS
SECTION 4.1. General Provisions. The principal officers of the
Corporation shall be a Chairman of the Board, a Vice Chairman, a President, one
or more Vice Presidents (the number thereof and variations in title to be
determined by the Board of Directors), a Secretary, a Treasurer, a Controller,
and such other officers as the Board of Directors may designate. Any two
offices except those of Chairman of the Board and Vice Chairman or President
and Secretary may be held by the same person.
SECTION 4.2. Election of Officers. The Board of Directors shall elect,
at its first meeting after its election by the shareholders, a Chairman of the
Board and a President from among its number and one or more Vice Presidents, a
Secretary, a Treasurer and a Controller. The Board of Directors may elect a
Vice Chairman from among its number and such other officers including one or
more Assistant Secretaries, Assistant Controllers and Assistant Treasurers, as
it shall deem necessary, who shall have such authority and perform such duties
as may be prescribed by the Board of Directors. Each officer so elected shall
hold office until the first meeting of the Board of Directors following the
next annual meeting of shareholders for the election of directors and until his
successor is elected, except in the event of his death, resignation or removal
or the earlier termination of his term of office.
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SECTION 4.3. Chairman of the Board. Except as otherwise provided in
these By-Laws, the Chairman of the Board shall preside at all meetings of the
shareholders and of the Board of Directors. He shall be the chief executive
officer of the Corporation and shall perform all functions and duties
incidental to that position, and shall have such additional powers and duties as
may from time to time be assigned to him by the Board of Directors.
SECTION 4.4. Vice Chairman. In the event of the absence or incapacity
of the Chairman of the Board, the Vice Chairman shall preside at meetings of
the shareholders and the Board of Directors, and shall have such other duties as
the Chairman of the Board or the Board of Directors may assign from time to
time.
SECTION 4.5. President. The President shall be the chief operating
officer of the Corporation and shall perform all functions and duties
incidental to that position and such other duties as may from time to time be
assigned to him by the Chairman of the Board or the Board of Directors.
SECTION 4.6. Vice Presidents. Vice Presidents shall have such powers
and perform such duties as may be assigned by the President or the Chairman of
the Board. The Board of Directors in its discretion may assign to the titles of
individual vice presidents terms such as "executive", "senior", "special", or
others indicative of levels or areas of responsibility.
SECTION 4.7. Secretary. The Secretary shall record or cause to be
recorded in books provided for that purpose the minutes of the meetings of the
shareholders, the Board of Directors, and all committees of which a secretary
shall have been appointed. He shall be responsible for keeping the list of
shareholders, and shall give or cause to be given notice of all meetings of
shareholders, directors and committees. He shall have custody of the seal of
the Corporation and shall perform such other duties as may from time to time be
assigned by the Chairman of the Board or the President. He shall perform in
general all duties incident to the office of Secretary.
SECTION 4.8. Assistant Secretaries. The Board of Directors may from time
to time appoint additional Assistant Secretaries. In the event of the absence
or disability of the Secretary, his duties and powers shall be performed and
exercised by an Assistant Secretary.
SECTION 4.9. Controller. The Controller shall maintain adequate records
of all assets, liabilities and transactions of the Corporation. He shall see
that adequate audits thereof are regularly made, and shall be charged with the
preparation and filing of tax returns and the supervision of all matters
relating to taxes. He shall render financial and accounting reports as required
by the Chairman of the Board, the President or the Board of Directors or as
necessary to the proper conduct of business.
SECTION 4.10. Assistant Controllers. The Board of Directors may from
time to time appoint one or more Assistant Controllers, who shall perform the
duties and exercise the powers of the Controller in his absence or disability.
SECTION 4.11. Treasurer. The Treasurer shall have charge and custody of
and be responsible for all funds and securities of the Corporation and shall
deposit all such funds to the credit of the Corporation in such depositories as
may be designated from time to time by the Board of Directors. He shall
disburse the funds of the Corporation as may from time to time be ordered by
the Chairman of the Board or the President. He shall render to the Chairman of
the Board, the President, Board of Directors and shareholders upon request an
account of all his transactions as Treasurer.
SECTION 4.12. Assistant Treasurers. The Board of Directors may from time
to time appoint one or more Assistant Treasurers, who shall perform the duties
and exercise the powers of the Treasurer in his absence or disability.
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SECTION 4.13. General Counsel. The General Counsel shall be the chief
legal officer of the Corporation and shall perform all functions and duties
incidental to that position and such other duties as may from time to time be
assigned to him by the Chairman of the Board or by the Board of Directors.
SECTION 4.14. Salaries. The salaries of the officers of the Corporation
elected by the Board of Directors, except for those officers who are designated
as assistant officers, shall be fixed from time to time by the Board of
Directors.
SECTION 4.15. Retirement; Vacancies. Each officer shall retire on the
first day of the month following attainment of age 65; however at the request
of the Board of Directors, an officer may continue in that capacity after age 65
for a defined period. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the Board of Directors at any regular or
special meeting thereof.
ARTICLE V
CAPITAL STOCK
SECTION 5.1. Certificates. Certificates for shares of capital stock of
the Corporation shall be in such form as shall be approved by the Board of
Directors. All such certificates shall be signed by the Chairman of the Board,
President or a Vice President and by the Secretary or Treasurer or Assistant
Secretary or Assistant Treasurer, and sealed with the seal of the Corporation.
Such seal may be facsimile, engraved or printed. When any such certificate is
signed by a transfer agent or transfer clerk and by a registrar, the signatures
of any such officers upon such certificate may be facsimiles, engraved or
printed. Any certificate bearing the signature or facsimile signature of any
such officer may be issued by the Corporation, although he has ceased to be
such officer at the date of such issuance.
The Board of Directors may make such rules and regulations as it deems
advisable to the issue, transfer and registration of such certificates, and may
appoint a transfer agent or registrar or both, and require all such
certificates to bear the signature of such transfer agent, or registrar, or
both.
SECTION 5.2. Record. A record shall be kept of the names of the person,
firm or corporation owning the stock represented by each certificate for stock
of the Corporation issued, the number of shares represented by each such
certificate and the date thereof, and, in the event of cancellation, the date
of cancellation. The person in whose name the shares of stock stand on the
books of the Corporation shall be deemed the owner thereof for all purposes as
regards the Corporation.
SECTION 5.3. Fixing of Record Date. The Board of Directors may fix a day
not more than 50 days prior to the day of holding any meeting of shareholders
as the time as of which shareholders entitled to notice of and to vote at such
meeting shall be determined, and all persons who are holders of record at such
time and no others shall be entitled to notice of and to vote at such meeting.
The Board of Directors may also fix a day not exceeding 40 days preceding the
date fixed for the payment of any dividend or for the delivery of evidences of
rights, as the time as of which shareholders entitled to receive any such
dividend or rights shall be determined.
SECTION 5.4. Transfers. Stock certificates shall be transferable (so far
as the Corporation is concerned) only on the books of the Corporation on
surrender of the certificates properly endorsed and stamped, and accompanied by
such waivers and certificates as may be legally required, whereupon the old
certificates shall be canceled and new certificates issued to the transferees in
lieu thereof.
SECTION 5.5. Lost Stock Certificates. Any person claiming a certificate
of stock to be lost or destroyed shall make affidavit or affirmation of the
fact to the Corporation. Unless otherwise determined by the Board of Directors,
the proper officers of the Corporation shall issue a new certificate
representing the same number of shares only after the person claiming to be the
owner, or his legal representative, shall have given the Corporation a bond of
indemnity, in form and with surety or sureties and in an amount approved by the
Corporation's counsel.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Fiscal Year. The Corporation's fiscal year is the 52 or
53-week annual accounting period ending the last Friday in December for
domestic operations, and December 31 for foreign operations.
SECTION 6.2. Corporate Seal. The corporate seal of the Corporation
shall be circular in form with the name of the Corporation in the circumference
and "New York" in the center.
SECTION 6.3. Resignations. Any director or officer of the Corporation
may resign his office at any time upon presenting his written resignation to
the Board of Directors, and unless some time be fixed for the taking effect of
such resignation, the same shall become effective immediately. The acceptance
of a resignation shall not be required to make it effective.
SECTION 6.4. Checks, Drafts, Notes and Other Negotiable Instruments. All
checks, drafts, notes and other negotiable instruments made by the Corporation
shall be signed by such officer or officers or agents as the Chairman of the
Board or the President from time to time may designate.
SECTION 6.5. Waiver of Notice. Any shareholder, officer or director may
waive any notice required to be given under these By-Laws.
SECTION 6.6. Indemnification and Insurance. (a) Right to
Indemnification. Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, or appeal
thereof, whether civil, criminal, administrative or investigative (hereinafter
a "proceeding"), by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the New York Business Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including, but not
limited to, all attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in subsection (b)
of this Section 6.6, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred
in this subsection (a) shall be a contract right and shall include the right to
be paid by the Corporation the expenses (including, without limitation,
attorneys' fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the New York Business
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section 6.6 or otherwise. The Corporation may, by action
of its Board of Directors, provide indemnification to employees and agents of
the Corporation with the same scope and effect as the foregoing indemnification
of directors and officers, or on such other terms and conditions as the Board
of Directors may deem necessary or desirable.
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(b) Right of Claimant to Bring Suit. If a claim under subsection (a) of
this Section 6.6 is not paid in full by the Corporation within 30 days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense (including, without limitation, attorneys'
fees) of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the New York Business Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, or any part thereof, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
New York Business Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, or any part thereof, independent
legal counsel, or its shareholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
(c) Non Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 6.6 shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation,by-law, agreement, vote of
shareholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, to the fullest extent allowed by law,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the New York Business Corporation
Law.
SECTION 6.7. Amendments. These By-Laws may be amended or repealed, or
new By-Laws may be adopted at any time by the affirmative vote of the holders
of a majority of the stock entitled to vote at any meeting of shareholders or
by the affirmative vote of a majority of the entire Board of Directors at any
meeting of the Board of Directors. No proposal to amend the By-Laws shall be
acted upon at any meeting of the Board of Directors unless notice of such
proposal, setting out the substance of the proposed amendment, has been given
to each director at least five business days prior to the meeting at which
such proposal is to be acted upon or unless all directors unanimously waive
giving of such notice.
-------------------------------------------------------------
SECRETARY'S CERTIFICATE
I, the undersigned, Secretary of Foster Wheeler Corporation, do hereby certify
that the foregoing is a true copy of the By-Laws of said Corporation as amended
to the date hereof, and that said By-Laws are now in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said
Corporation this day of 19
(CORPORATE SEAL) Secretary
9
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary of financial information extracted from the
condensed cosolidated balance sheet and statement of earnings for the 6 months
ended June 30, 1995 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-29-1995
<PERIOD-START> DEC-31-1994
<PERIOD-END> JUN-30-1995
<CASH> 199,725
<SECURITIES> 96,157
<RECEIVABLES> 585,764
<ALLOWANCES> 0
<INVENTORY> 278,173
<CURRENT-ASSETS> 1,221,964
<PP&E> 836,869
<DEPRECIATION> 270,657
<TOTAL-ASSETS> 2,191,549
<CURRENT-LIABILITIES> 939,393
<BONDS> 515,618
<COMMON> 35,868
0
0
<OTHER-SE> 452,386
<TOTAL-LIABILITY-AND-EQUITY> 2,191,549
<SALES> 1,314,726
<TOTAL-REVENUES> 1,329,875
<CGS> 1,134,056
<TOTAL-COSTS> 1,134,056
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 22,431
<INCOME-PRETAX> 56,057
<INCOME-TAX> 19,287
<INCOME-CONTINUING> 36,770
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 36,770
<EPS-PRIMARY> 1.03
<EPS-DILUTED> 1.03
</TABLE>
