<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange -
- -
Act of 1934
For the quarterly period ended March 27, 1998
Commission file Number 0-6508
IEC ELECTRONICS CORP.
-----------------------------------------------------
(Exact name of registrant as specified in its charter.)
Delaware 13-3458955
----------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
105 Norton Street, Newark, New York 14513
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices (Zip Code)
(315) 331-7742
- --------------------------------------------------------------------------------
Registrant's telephone number, including area code:
Indicate by check mark whether the registrant(1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date:
Common Stock, $0.01 Par Value - 7,559,951 shares as of May 6, 1998.
Page 1 of 15
<PAGE>
PART 1 FINANCIAL INFORMATION
Page
Number
Item 1. Financial Statements
Consolidated Balance Sheets as of :
March 27, 1998 (Unaudited) and September 30, 1997............. 4
Consolidated Statements of Income
for the three months ended:
March 27, 1998 (Unaudited) and
March 28, 1997 (Unaudited).................................... 5
Consolidated Statements of Income
for the six months ended:
March 27, 1998 (Unaudited) and
March 28, 1997 (Unaudited).................................... 6
Consolidated Statement of Cash Flows
for the six months ended:
March 27, 1998 (Unaudited) and
March 28, 1997 (Unaudited).................................... 7
Notes to Consolidated Financial
Statements (Unaudited)......................................... 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations.....................10
PART II
Item 1. Legal Proceedings.............................................. 12
Item 2. Changes in Securities.......................................... 12
Page 2 of 15
<PAGE>
Item 3. Defaults Upon Senior Securities................................ 12
Item 4. Submission of Matters to a Vote of Security Holders............ 12
Item 5. Other Information.............................................. 12
Item 6. Exhibits and Reports on Form 8-K............................... 12
Signature ............................................................. 13
Page 3 of 15
<PAGE>
<TABLE>
IEC ELECTRONICS CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
MARCH 27, 1998 AND SEPTEMBER 30, 1997
(in thousands, except for share and per share data)
<CAPTION>
MARCH 27,1998 SEPTEMBER 30,1997
---------------- ------------------
ASSETS (Unaudited)
<S> <C> <C>
Current Assets:
Cash and cash equivalents $1,604 $3,921
Accounts receivable 36,956 49,045
Inventories 27,994 45,360
Income taxes receivable 101 -
Deferred income taxes 1,900 1,900
Other current assets 341 98
--------- ----------
Total current assets 68,896 100,324
--------- ----------
Property, Plant and Equipment, net 39,336 39,391
---------- ----------
Other Assets:
Cost in excess of net assets acquired, net 12,110 12,346
Other assets 9 9
----------- ----------
Total other assets 12,119 12,355
----------- ----------
$120,351 $152,070
=========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Borrowings under lines of credit $12,000 $10,530
Current portion of long-term debt 3,628 3,291
Accounts payable 13,333 43,904
Accrued payroll and related expenses 3,457 5,611
Accrued income taxes - 1,887
Other accrued expenses 361 479
------- -------
Total current liabilities 32,779 65,702
------- -------
Deferred Income Taxes 3,919 3,919
------- -------
Long-Term Debt 6,708 6,988
------- -------
Shareholders' Equity:
Preferred stock, par value $.01 per share
Authorized - 500,000 shares
Outstanding - 0 shares - -
Common stock, par value $.01 per share
Authorized - 50,000,000 shares
Outstanding - 7,559,951 shares and
7,552,201 shares 75 75
Additional paid-in capital 38,478 38,430
Retained earnings 38,803 37,367
Treasury Stock, at cost - 20,573 shares -411 -411
------- -------
Total shareholders' equity 76,945 75,461
------- -------
$120,351 $152,070
======= =======
<FN>
The accompanying notes to unaudited consolidated financial
statements are an integral part of these balance sheets
</FN>
</TABLE>
Page 4 of 15
<PAGE>
<TABLE>
IEC ELECTRONICS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE MONTHS ENDED MARCH 27, 1998 AND MARCH 28, 1997
(in thousands, except per share data)
<CAPTION>
3 MONTHS ENDED 3 MONTHS ENDED
MARCH 27, 1998 MARCH 28, 1997
-------------- ------------------
(Unaudited) (Unaudited)
<S> <C> <C>
Net sales $71,045 $61,103
Cost of sales 66,738 54,015
------- -------
Gross profit 4,307 7,088
Selling and administrative expenses 4,043 3,706
Customer bankruptcy write-off 1,130 -
------- -------
Operating income(loss) (866) 3,382
Interest expense (598) (384)
Other income, net 17 82
------- -------
Income (loss) before income taxes (1,447) 3,080
Provision for(Benefit from)Income taxes (556) 1,208
------- -------
Net Income(Loss) ($891) $1,872
======= =======
Net income (loss) per share:
Basic ($0.12) $0.25
Diluted ($0.12) $0.25
Weighted average number of shares:
Basic 7,539 7,415
Diluted 7,649 7,511
<FN>
The accompanying notes to unaudited consolidated financial
statements are an integral part of these financial statements.
</FN>
</TABLE>
Page 5 of 15
<PAGE>
<TABLE>
IEC ELECTRONICS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE SIX MONTHS ENDED MARCH 27, 1998 AND MARCH 28, 1997
(in thousands, except per share data)
<CAPTION>
6 MONTHS ENDED 6 MONTHS ENDED
MARCH 27, 1998 MARCH 28, 1997
-------------- ------------------
(Unaudited) (Unaudited)
<S> <C> <C>
Net sales $165,161 $111,625
Cost of sales 152,165 99,829
------- -------
Gross profit 12,996 11,796
Selling and administrative expenses 8,343 6,558
Customer bankruptcy write-off 1.130 -
------- -------
Operating income 3,523 5,238
Interest expense (1,246) (774)
Other income, net 60 178
------- -------
Income before income taxes 2,337 4,642
Provision for Income taxes 901 1,857
------- -------
Net Income $1,436 $2,785
======= =======
Net income per share:
Basic $0.19 $0.38
Diluted $0.19 $0.37
Weighted average number of shares:
Basic 7,537 7,415
Diluted 7,717 7,498
<FN>
The accompanying notes to unaudited consolidated financial
statements are an integral part of these financial statements.
</FN>
</TABLE>
Page 6 of 15
<PAGE>
<TABLE>
IEC ELECTRONICS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED MARCH 27, 1998 AND MARCH 28, 1997
(in thousands)
<CAPTION>
6 MONTHS 6 MONTHS
ENDED ENDED
MARCH 27, MARCH 28,
1998 1997
------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C>
Cash Flows from Operating Activities:
Net Income $1,436 $2,785
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 4,900 4,703
Increase in other assets - (38)
Gain on sale of fixed assets - (14)
Amortization of cost in excess of net assets
acquired 237 237
Changes in operating assets and liabilities:
Decrease (Increase)in accounts receivable 12,089 (9,617)
Decrease (Increase) in inventories 17,366 (5,111)
(Increase)Decrease in income taxes receivable (101) 757
Increase in other current assets (242) (3)
(Decrease)Increase in accounts payable (30,571) 11,172
(Decrease)Increase in accrued payroll and related
expenses (2,153) 196
(Decrease)Increase in accrued income taxes (1,887) 724
Decrease in other accrued expenses (119) (11)
------- -------
Net cash provided by operating activities 955 5,780
------- -------
Cash Flows from Investing Activities:
Purchases of property, plant and equipment (4,845) (3,282)
Proceeds from sale of property - 14
Merger related costs (1) (1)
------- --------
Net cash used in investing activities (4,846) (3,269)
------- --------
Cash Flows from Financing Activities:
Exercise of stock options 48 -
Net borrowings under line of credit agreements 13,000 -
Line of Credit repayments (9,030) -
Principal payments on long-term debt (2,444) (1,494)
-------- ---------
Net cash provided by(used in)financing activities 1,574 (1,494)
-------- ---------
Net (decrease)increase in cash and cash equivalents (2,317) 1,017
Cash and cash equivalents at beginning of period 3,921 1,482
-------- ---------
Cash and cash equivalents at end of period $1,604 $2,499
========== ==========
Supplemental Disclosures of Cash Flow Information:
Cash paid during the period for:
Interest $1,247 $774
Income taxes $2,889 $743
========== ==========
Cash received during the period for:
Income taxes $ - $367 -
========== ==========
<FN>
The accompanying notes to unaudited consolidated financial
statements are an integral part of these financial statements.
</FN>
</TABLE>
Page 7 of 15
<PAGE>
IEC ELECTRONICS CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 27, 1998
Dollar amounts are presented in thousands
(1) Business and Summary of Significant Accounting Policies
Business
- --------
IEC Electronics Corp. (IEC) is an independent contract manufacturer of complex
printed circuit board assemblies and electronic products and systems. IEC offers
its customers a wide range of manufacturing services, on either a turnkey or
consignment basis, including material procurement and control, manufacturing and
test engineering support, statistical quality assurance and complete resource
management.
Consolidation
- -------------
The consolidated financial statements include the accounts of IEC and its
wholly-owned subsidiaries, IEC Electronics-Edinburg, Texas Inc. (previously
Calidad Electronics Inc.)and IEC Arab, Alabama Inc. (previously Accutek, Inc.)
(collectively, the Company). All significant intercompany transactions and
accounts have been eliminated.
Revenue Recognition
- -------------------
The Company recognizes revenues upon shipment of product for both turnkey and
consignment contracts.
Cash and Cash Equivalents
- -------------------------
Cash and cash equivalents include money market and bank account balances. The
Company's cash and cash equivlents are held and managed by institutions which
follow the Company's investment policy. The fair value of the Company's
finanical instruments approximates carrying amounts due to the relatively short
maturies and variable interest rates of the instruments, which approximate
current market interest rates.
Inventories
- -----------
Inventories are stated at the lower of cost (first-in, first-out) or market. The
major classifications of inventories are as follows at period end:
March 27, 1998 September 30, 1997
---------------- ----------------
(Unaudited)
Raw materials $21,082 $38,209
Work-in-process 6,912 7,151
---------------- ----------------
$27,994 $45,360
================ ================
Unaudited Finanical Statements
- ------------------------------
The accompaning unaudited finanical statements as of March 27, 1998, and for the
three and six months ended March 27, 1998 have been prepared in accordance with
generally accepted accounting princples for the interm finanica1 information. In
the opinion management, all adjustments considered necessary for a fair
presenation, which consist solely of normal recurring adjustments have been
included. The accompaning finanical statements should be read in conjuction with
the financial statements and notes thereto included in the Company's September
30, 1997 Annual Report on Form 10-K.
Page 8 of 15
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IEC ELECTRONICS CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 27, 1998
Dollar amounts are presented in thousands
Earnings per Share
- ------------------
The Company has adopted, Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 128 "Earnings per Share" (SFAS No.128), and
restated previously reported earnings per share. Basic earnings per common share
were computed by dividing net income by the weighted average number of shares of
common stock outstanding during the three and six month periods ending March 27,
1998 and March 28, 1997. Diluted earnings earnings per share were computed by
the weighted number of common shares outstanding and common stock equivalents
using the treasury stock method for the three and six month periods ending March
27, 1998 and March 28, 1997.
All references to net income per share should be assumed to have been calculated
under SFAS No.128.
The following table sets forth the computation of basic and diluted earnings per
share for the three and six month periods ended March 27, 1998 and
March 28, 1997.
3 MONTHS ENDED 3 MONTHS ENDED
MARCH 27, 1998 MARCH 28, 1997
--------------- ------------------
Net income(loss) - basic $(891) $1,872
------ ------
Net income(loss) - diluted $(891) $1,872
===== ======
Shares used to compute net
income per share:
Basic:
Weighted average Shares 7,539 7.415
===== =====
Diluted:
Weighted average Shares 7,539 7,415
Common stock equivalents-
stock options 110 96
--- --
Total diluted shares 7,649 7,511
===== =====
Net Income(Loss) per share - basic (.12) .25
==== ====
Net Income(Loss) per share - diluted (.12) .25
==== ====
6 MONTHS ENDED 6 MONTHS ENDED
MARCH 27, 1998 MARCH 28, 1997
--------------- ------------------
Net income - basic $1,436 $2,785
------ ------
Net income - diluted $1,436 $2,785
====== ======
Shares used to compute net
income per share:
Basic:
Weighted average Shares 7,537 7.415
===== =====
Diluted:
Weighted average Shares 7,537 7,415
Common stock equivalents-
stock options 180 83
--- --
Total diluted shares 7,717 7,498
===== =====
Net Income per share - basic .19 .38
==== ====
Net Income per share - diluted .19 .37
==== ====
Page 9 of 15
<PAGE>
IEC ELECTRONICS CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 27, 1998
Dollar amounts are presented in thousands
Financing Arrangements
- ----------------------
At March 27, 1998, $12,000 and $9,615 were outstanding on the working capital
and equipment line of credit, respectively. Amounts borrowed under the equipment
line of credit are repayable monthly from date of borrowing over a life term of
60 months.
The Company has a commitment from Chase Manhattan Bank
to underwrite and to act as adminstative agent for a $65 million senior credit
facility. The commitment is subject to customary conditions including the
execution of a definitive Credit Agreement, which is expected to close in May
1998.
Legal Matters
- -------------
There are no material legal proceedings pending to which the Company or any of
its subsidiaries is a party or to which any of the Company's or subsidiaries'
property is subject. To the Company's knowledge, there are no material legal
proceedings to which any director, officer or affiliate of the Company, or any
beneficial owner of more than 5 percent (5%) of Common Stock, or any associate
of any of the foregoing, is a party adverse to the Company or any of its
subsidiaries.
Page 10 of 15
<PAGE>
Management's Discussion and Analysis
------------------------------------
Results of Operations - Three Months Ended March 27, 1998, Compared to the
- --------------------------------------------------------------------------
Three Months Ended March 28, 1997.
- ----------------------------------
Net sales for the three months ended March 27, 1998, were $71.0 million,
compared to $61.1 million in the same quarter a year ago, an increase of 16.3%.
The increase in sales is primarily due to a higher material content and a
further shift to turnkey sales. Turnkey sales represented 98% and 94% of net
sales in the second quarter of fiscal 1998 and 1997, respectively.
Gross profit as a percentage of sales was 6.1% in the three months ended March
27, 1998, down from 11.6% in the comparable period of the prior year. This
decrease results from a higher material content in the current year and a
decline in capacity utilization in the second quarter of 1998 compared to the
second quarter of last year. The Company is aggressively implementing cost
reductions and has reduced headcount by approximately 1,000 people since January
1, 1998.
Selling and administrative expenses increased to $4.0 million for the three
months ended March 27, 1998, from $3.7 million in the comparable quarter of the
prior fiscal year. This increase is largely caused by higher selling expenses
and additional sales salaries. As a percentage of sales, selling and
administrative expenses decreased to 5.7 percent from 6.1 percent in the same
quarter of the prior year.
The Company fully wrote off the accounts receivable and inventory balances of a
customer that declared Chapter 11 bankruptcy during the quarter ended March 27,
1998. The write-off represents the Company's maximum exposure and may be reduced
by future recoveries.
Interest expense of $.6 million for the three months ended March 27, 1998, was
substantially higher than the $.4 million of interest expense in the comparable
period last year as a result of higher average borrowing levels during the
current quarter.
For the quarter, the Company posted a net loss of $ .9 million, or a $.12 loss
per share compared to net income for the second quarter of fiscal 1997 of $1.9
million, or $.25 earnings per share.
Page 11 of 15
<PAGE>
Results of Operations - Six Months Ended March 27, 1998, Compared to Six
- ------------------------------------------------------------------------
Months Ended March 28, 1997.
- ----------------------------
Net sales for the six-month period ended March 27, 1998, were $165.2 million, an
increase of 48.0 percent over the first half of fiscal 1997. The increase in
sales is primarily due to a higher material content, especially one large job in
the first quarter of fiscal 1998 with an unusually high material content, as
well as a further shift to turnkey sales. Turnkey sales represented 98% and 93%
of net sales in the first half of fiscal 1998 and 1997, respectively.
Gross profit as a percentage of sales was 7.9 percent for the six months ended
March 27, 1998, down from 10.6 percent in the comparable period of the prior
year. This decrease results from the high material content noted in the sales
discussion, as well as a decline in capacity utilization in the second quarter
of fiscal 1998 compared to the second quarter of fiscal 1997.
Selling and administrative expenses increased to $8.3 million for the six months
ended March 27, 1998, from $6.6 million in the first half of last year. This
increase was largely caused by higher selling expenses due to increased sales
commission expense resulting from higher sales and additional sales salaries. As
a percentage of sales, selling and administrative expenses decreased to 5.1
percent from 5.9 percent in the first half of fiscal 1998 and 1997,
respectively.
Interest expense of $1.2 million for the six months ended March 27, 1998, was
substantially higher than the $.8 million of interest expense in the comparable
period last year as a result of higher average borrowing levels.
For the six months ending March 27, 1998, net income was $1.4 million, or $.19
earnings per share compared to net income for the first six months of fiscal
1997 of $2.8 million, or $.37 earnings per share.
The cost of sales and resulting gross profit as a percentage of sales can vary
widely among different jobs, within both turnkey and consignment sales and are
affected by a number of factors including the mix of consignment and turnkey
contracts, the percentage of material content, the percentage of labor content,
quantities ordered, the complexity of the assemblies, the degree of automation
utilized in the assembly process and the efficiencies achieved by the Company in
managing material procurement costs, inventory levels and manufacturing
processes.
Page 12 of 15
<PAGE>
Liquidity and Capital Resources
- -------------------------------
Net sales for the month of March 1998 were $27.5 million, representing 39% of
the total net sales for the three month period ending March 27, 1998. The
Company operates on a fiscal quarter consisting of four weeks in the first and
second months and five weeks in the third month.
The Company maintained credit facilities with its bank as of March 27, 1998.
These facilities included a credit line of up to $21.0 million for working
capital and $12.0 million for equipment purchases. At March 27, 1998, $12.0
million and $9.8 million were outstanding on the working capital and equipment
line of credit, respectively. Amounts borrowed under the equipment line of
credit are repayable monthly from date of borrowing over a term of 60 months. At
March 27, 1998, approximately $11.4 million was available for borrowing under
these existing lines of credit.
During May 1998, the Company expects to close a $65 million senior credit
facility with a syndication of three lenders led by Chase Manhattan Bank as
administrative agent. The closing is subject to customary conditions. The
Company believes that its cash balances, funds generated from operations and its
existing credit facilities will be sufficient for the Company to meet its
capital expenditures and working capital needs for its operations as
presently conducted. As part of its overall business strategy, the Company may
from time to time evaluate acquisition opportunities. The funding for these
future transactions, if any, may require the Company to obtain additional
sources of financing.
The impact of inflation on the Company's operations has been minimal due to the
fact that it is able to adjust its bids to reflect any inflationary increases in
cost.
Forward-looking Statements
- --------------------------
Except for historical information, statements in this quarterly report are
forward-looking made pursuant to the safe harbor created by the Private
Securities Litigation Reform Act of 1995 and are therefore subject to certain
risks and uncertainties including timing of orders and shipments, availability
of material, product mix and general market conditions that could cause actual
results to differ materially from those projected in the forward looking
statements. Investors should consider the risks and uncertainties discussed in
the September 30, 1997, Form 10K and its other filings with the Securities and
Exchange Commission.
Page 13 of 15
<PAGE>
PART II. OTHER INFORMATION
Item 1 -- Legal Proceedings
None.
Item 2 -- Changes in Securities
None.
Item 3 -- Defaults Upon Senior Securities
None.
Item 4 -- Submission of Matters to a Vote of Security Holders
(a) The annual Meeting of Stockholders was held on Febuary 25, 1998
(b) The names of the directors elected at the Annual Meeting are as follows
David J. Beaubien
Thomas W. Folger
W. Barry Gilbert
Robert P.B. Kidd
Eben S. Moulton
Russell E. Stingel
Justin L. Vigdor
(c)(i) At the Annual Meeting, the tabulation of the votes with respect to
each nominee was as follows:
Nominee Votes FOR Authority Withheld
------- --------- ------------------
David J. Beaubien 6,296,035 99,002
Thomas W. Folger 6,290,161 104,876
W. Barry Gilbert 6,295,585 99,452
Robert P.B. Kidd 6,291,535 103,502
Eben S. Moulton 6,295,585 99,452
Russell E. Stingel 6,295,135 99,902
Justin L. Vigdor 6,295,235 99,802
(ii) At the Annual Meeting, the Stockholders voted upon three other
matters. The description of each other matter voted upon and the tabulation of
votes with repect to each such matter are as follows:
Votes Votes Votes Broker
FOR AGAINST ABSTAINING NON-VOTES
--------- ---------- ---------- ---------
(a)Proposal to amend the 4,935,175 1,449,638 10,224 -0-
Certificate of Incorpation to
increase the number of authorized
shares of Common Stock
(b)Proposal to approve the 4,169,910 204,895 26,088 1,994,144
amendment to the 1993 Stock
Option Plan
(c)Proposal To approve the 4,247,684 154,260 30,195 1,962,898
Director Compensation Plan
Item 5 -- Other Information
None.
Item 6 -- Exhibits and Reports on Form 8-K
a. Exhibits
3.1 Certificate of Amendment of Certificate of Incorporation of IEC
Electronics Corp. filed with the Secretary of State of the State of
Delaware on February 26, 1998.
3.2 By-Laws of IEC Electronics Corp. As Amended Through 5/1/98
b. Reports on Form 8-K
None.
Page 14 of 15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IEC ELECTRONICS CORP.
REGISTRANT
Dated: May 6, 1998 /s/Russell E. Stingel
-----------------------------
Russell E. Stingel
Chief Executive Officer
Dated: May 6, 1998 /s/Diana R. Kurty
------------------------------
Diana R. Kurty
Vice President of Finance,
Chief Finanical Officer and
Treasurer
Page 15 of 15
<PAGE>
EXHIBIT 3.1 Certificate of Amendment of Certificate of Incorporation of IEC
Electronics Corp. filed with the Secretary of State of the State of
Delaware on February 26, 1998.
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF IEC ELECTRONICS CORP.
Under Section 242 of the General Corporation Law
The undersigned, being the Chief Executive Officer and the Assistant
Secretary of IEC Electronics Corp., do hereby certify as follows:
1. The name of the Corporation is IEC ELECTRONICS CORP. The Corporation
was originally formed under the name DFT Holdings Corp.
2. The Certificate of Incorporation was filed by the Delaware Secretary
of State on April 21, 1988.
3. The Certificate of Incorporation is amended to increase the authorized
shares of Common Stock from 15,000,000 having a par value of $.01 per
share to 50,000,000 having a par value of $.01 per share. Therefore,
paragraph Fourth of the Certificate of Incorporation is hereby to read
in its entirety as follows:
"Fourth The total number of shares of all classes of capital stock
which the corporation shall have the authority to issue is Fifty
Million Five Hundred Thousand (50,500,000) shares, consisting of Fifty
Million (50,000,000)sahare of Common having a par value of $.01 per
share and Five Hundred Thousand (500,000) shares of Preferred Stock
having a par value of $.01 per share.
4. The above amendment to the Certificate of incorporation was authorized
by a vote of the holders of a majority of all outstanding shares
entitled to vote thereon at a meeting of shareholders.
IN WITNESS WHEREOF, this Certificate has been subscribed this 25th day of
February, 1998 by the undersigned who affirm that the statements made herein are
true under the penalties of perjury.
/s/Russell E. Stingel
------------------------------------------
Russell E. Stingel, Chief Executive Officer
/s/Martin S. Weingarten
------------------------------------------
Martin S. Weingarten, Assistant Secretary
<PAGE>
EXHIBIT 3.2 By-Laws of IEC Electronics Corp. As Amended Through 5/1/98.
As Amended Through 5/1/98
BY - LAWS
IEC ELECTRONICS CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of
the Corporation shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. Meetings of the
stockholders for the election of directors or for any other
purpose shall be held at such time and place, either within or
without the State of Delaware, as shall be designated from time
to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof, and any
such meeting called by the Board of Directors may be postponed by
the Board of Directors to another time and place prior to the
holding of such meeting.
Section 2. Annual Meetings. The Annual Meetings of
Stockholders shall be held on such dates and at such times as
shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings
1
<PAGE>
the stockholders shall elect by a plurality vote a Board of
Directors, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting
stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than
ten nor more than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the Certificate of Incorporation, Special
Meetings of Stockholders, for any purpose or purposes, may be
called by either (i) the Chairman, if there be one, or (ii) the
President (iii) any Vice President, if there be one, (iv) the
Secretary, or (v) any Assistant Secretary, if there be one. Such
request shall state the purpose or purposes of the proposed
meeting. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than ten nor
more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law
or by the Certificate of Incorporation, the holders of a majority
of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law,
the Certificate of Incorporation or these By-Laws, any question
brought before any meeting of stockholders shall be decided by
the vote of the holders of a majority of the stock represented
and entitled to vote thereat. Each stockholder represented at a
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meeting of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat held by
such stockholder. Such votes may be cast in person or by proxy
but no proxy shall be voted on or after three years from its
date, unless such pr6xy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall
be cast by written ballot.
Section 6. Authorization of Merger, Consolidation or
Sale of Assets. A vote of 66 2/3 percent of the outstanding
stock entitled to vote thereon shall be required to authorize any
agreement for merger, consolidation or sale of all or
substantially all of the assets of the Corporation. Such vote
shall be taken at a meeting called and held upon notice in
accordance with the General Corporation Law and these By-Laws.
Section 7. List of Stockholders Entitled to Vote. The
officer of the Corporation who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of share registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. This list shall also be
produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of
the Corporation who is present.
Section 8. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list
required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of
stockholders.
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Section 9. Notification of Nominations. Nominations for
the election of directors may be made by the Board of Directors
or by any stockholder entitled to vote for the election of
directors. Any stockholder entitled to vote for the election of
directors at a meeting may nominate persons for election as
directors only if written notice of such stockholder's intent to
make such nomination is given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
Corporation not later than (i) with respect to an election to be
held at an annual meeting of stockholders, 90 days in advance of
such meeting, and (ii) with respect to an election to be held at
a special meeting of stockholders for the election of directors,
the close of business on the seventh day following the date on
which notice of such meeting is first given to stockholders.
Each such notice shall set forth: (a) the name and address of
the stockholder who intends to make the nomination and of the
person or persons to be nominated (b) a representation that such
stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons
specified in the notice, (c) a description of all arrangements or
understandings between such stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by such
stockholder, (d) such other information regarding each nominee
proposed by such stockholder as would have been required to be
included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had each nominee been
nominated, or intended to be nominated by the Board of Directors,
and (e) the consent of each nominee to serve as a director of the
Corporation if elected. The chairman of a stockholder meeting
may refuse to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
Section 10. Notification of Proposals for Corporate
Action. Any stockholder entitled to vote at a meeting may make a
proposal for corporate action at such meeting only if written
notice of such stockholder's intent to make such a proposal is
given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later than
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(i) with respect to an annual meeting of stockholders, 90 days in
advance of such meeting, and (ii) with respect to a special
meeting of stockholders, the close of business on the seventh day
following the date on which notice of such meeting is first given
to stockholders. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to make the proposal,
(b) a representation that such stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to make
the proposal, (c) a description of the proposal, (d) such other
information regarding the proposal as would have been required to
be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange commission. The chairman of
a stockholder meeting may refuse to acknowledge the proposal of
any person not made in compliance with the foregoing procedure.
Section 11. Conduct of Meeting. The Board of Directors
of the Corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such
rules and regulations of the Board of Directors, if any, the
chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining
order at the meeting and the safety of those present, limitations
on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies,
and such other persons as the Chairman shall permit, restrictions
on entry to the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comment
by participants and regulation of the opening and closing of the
polls for balloting on matters which are to be voted on by
ballot, unless, and to the extent, determined by the Board of
Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board
of Directors shall consist of not less than one nor more than
fifteen members, the exact number of which shall initially be
fixed by the Incorporator and thereafter from time to time by the
Board of Directors. Except as provided in Section 2 of this
Article III, directors shall be elected by a plurality of the
votes cast at Annual Meetings of Stockholders, and each director
so elected shall hold office until the next Annual Meeting and
until his successor is duly elected and qualified, or until his
earlier resignation or removal. Any director may resign at any
time upon notice to the Corporation. Directors need not be
stockholders.
Section 2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected
and qualified, or until their earlier resignation or removal.
Section 3. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the
Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either
within or without the State of Delaware. Regular meetings of the
Board of Directors may be held without notice at such time and at
such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there be one, the President, or any
director. Notice thereof stating the place, date and hour of the
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meeting shall be given to each director either by mail not less
than forty-eight (48) hours before the date of the meeting, by
telephone or telegram on twenty-four (24) hours' notice, or on
such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise
specifically provided by law, the Certificate of Incorporation or
these By-Laws, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors,
the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided
by the Certificate of Incorporation or these By-Laws, 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 the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone.
Unless otherwise provided by the Certificate of Incorporation or
these By-Laws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate
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members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in
the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall
have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report
to the Board of Directors when required.
Section 9. Compensation. The directors may be paid
their expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum for attendance at
each such meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
Section 10 Interested Directors. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes
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of the majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the
material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specially approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorized the contract or
transaction.
Section 11. Removal of Directors. Any director or the
entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote
at an election of directors.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a
President, a Secretary and a Treasurer. The Board of Directors,
in its discretion1 may also choose a Chairman of the Board of
Directors (who must be a director) and one or more
Vice-Presidents, Assistant Vice-Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number
of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these
By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be
directors of the Corporation.
Section 2. Election. The Board of Directors at its
first meeting held after each Annual Meeting of Stockholders
shall elect the officers of the Corporation 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
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of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer elected by the
Board of Directors may be removed at any time by the affirmative
vote of a majority of the Board of Directors. Any vacancy
occurring in any office of the corporation shall be filled by the
Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by
the Corporation may be executed in the name of and on behalf of
the Corporation by the President or any Vice-President and any
such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership
of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The
Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The
Chairman of the Board of Directors, if there be one, shall
preside at all meetings of the stockholders and of the Board of
Directors. He shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the
President is required, the Chairman of the Board of Directors
shall possess the same power as the President to sign all
contracts, certificates and other instruments of the Corporation
which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board
of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the board of Directors
shall also perform such other duties and may exercise such other
powers as from time to time may be assigned by him by these
By-Laws or by the Board of Directors.
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Section 5. President. The President shall, subject to
the control of the Board of Directors and, if there be one, the
Chairman of the Board of Directors, have general supervision of
the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
He shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal
of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when
so authorized by these By-Laws, the Board of Directors or the
President. In the absence or disability of the Chairman of the
Board of Directors, or if there be none, the President shall
preside at all meetings of the stockholders and the Board of
Directors. If there be no Chairman of the Board of Directors,
the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties
and may exercise such other powers as from time to time may be
assigned to him by these By-Laws or by the Board of Directors.
Section 6. Vice-Presidents. At the request of the
President or in his absence or in the event of his inability or
refusal to act (and if there be no Chairman of the Board of
Directors), the Vice-President or the Vice-Presidents, if there
are more than one (in the order designated by the Board of
Directors), shall perform the duties of the President, and when
so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice-President shall
perform such other duties and have such other powers as the Board
of Directors from time to time may prescribe. If there be no
Chairman of the Board of Directors and no Vice-President, the
Board of Directors shall designate the officer of the Corporation
who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the
duties of the President, and when so acting, shall have all
powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of
stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when required.
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The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or President, under whose
supervision he shall be. If the Secretary shall be unable or
shall refuse to cause to be given notice of all meetings of the
stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may
be attested by the signature of the Secretary or by the signature
of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the
Corporation and to attest the affixing by his signature.
Section 8. Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account
of all his transactions as treasurer and of the financial
condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in
such sum with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties
of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
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Section 9. Assistant Vice-Presidents. Except as may
otherwise be provided in these By-Laws, Assistant
Vice-Presidents, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to them by
the Board of Directors, the President or any Vice-President, and
in the absence of any Vice-President or in the event of his
disability or his refusal to act, shall perform the duties of
such Vice-President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon such
Vice-President.
Section 10 Assistant Secretaries. Except as may be
otherwise provided in these By-Laws, Assistant Secretaries, if
there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of
Directors, the President, any Vice-President, if there be one, or
the Secretary, and in the absence of the Secretary or in the
event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the
Secretary.
Section 11. Assistant Treasurers. Assistant Treasurers,
if there by any, shall perform such duties and have such powers
as from time to time may be assigned to them by the Board of
Directors, the President, any Vice-President, if there be one, or
the Treasurer, and in the absence of the Treasurer or in the
event of his disability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant
Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
Section 12. Other Officers. Such other officers as the
Board of Directors, the Chairman of the Board of Directors, if
there be one, or the President may choose shall perform such
duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the Chairman of the Board of
Directors, if there be one, or the President.
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ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock
in the Corporation shall be entitled to have a certificate
signed, in the name of the Corporation (i) by the Chairman of the
Board of Directors, the President or a Vice-President and (ii) by
the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Lost Certificates. The Board of Directors
may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board
of Directors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 3. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these
By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be cancelled before a
new certificate shall be issued.
Section 4. Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
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exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which
shall not be more than sixty days nor less than ten days before
the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however1 that the
Board of Directors may fix a new record date for the adjourned
meeting
Section 5. Beneficial Owners. The Corporation shall be
entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends, and to
vote as such owner, and to hold liable for calls and assessments
a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required
by law, the Certificate of Incorporation or these By-Laws, to be
given to any director, member of a committee or stockholder, such
notice may be given by mail, addressed to such director, member
of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may
also be given personally or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is
required by law, the Certificate of Incorporation or these
By-Laws, to be given to any director, member of a committee or
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stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock
of the Corporation, subject to the provisions of the Certificate
of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, and may be paid in
cash, in property, or in shares of capital stock. Before payment
of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board
of Directors from time to time, in its absolute discretion, deems
proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the
Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for
money and notes of the Corporation shall be signed by such
officer or officers to such other person or persons as the Board
of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the Board of
Directors.
Section 4. Corporate Seal. The corporate seal shall
have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal. Delaware". The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced otherwise.
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ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or
---------- ---------------------------------------
Proceedings other Than Those by or in the Right of the
- ------------------------------------------------------
Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or
was a director, officer or employee of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
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attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in the
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
please of nolo contendere or its equivalent, shall not, of
---- ----------
itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions Suits or
---------- ----------------------------- --------
Proceedings by or in the Right of the Corporation. Subject to
- --------------------------------------------------
Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer
or employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any
---------- ---------------------------------
indemnification under this Article VIII (unless ordered by a
court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director, officer or employee is proper in the circumstances
because he has met the applicable standard of conduct set forth
in Section 1 or Section 2 of this Article VIII, as the case may
be. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii)
if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director, officer
or employee of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
described above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in
the specific case.
Section 4. Good Faith Defined. For purposes of any
---------- -------------------
determination under Section 3 of this Article VIII, a person
shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his
18
<PAGE>
conduct was unlawful, if his action is based on the records or
books of account of the Corporation or another enterprise, or on
information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the
Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise.
The term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture,
trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer or
employee. The provisions of this Section 4 shall not be deemed
to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard of
conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding
---------- ---------------------------
any contrary determination in the specific case under Section 3
of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director, officer or employee may
apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court
that indemnification of the director, officer or employee is
proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application.
Section 6. Expenses Payable in Advance. Expenses
---------- ----------------------------
incurred in defending or investigating a threatened or pending
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director, officer or employee to repay such amount if it shall
19
<PAGE>
ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section 7. Non-exclusivity and Survival of Indemnification.
---------- ------------------------------------------------
The indemnification and advancement of expenses
provided by, or granted pursuant to, the other Sections of this
Article VIII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, By-Law, agreement, contract,
vote of stockholders or disinterested directors or pursuant to
the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted
by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of
Delaware, or otherwise. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 8. Insurance. The Corporation may purchase and
---------- ----------
maintain insurance on behalf of any person who is or was a
director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer
or employee of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability
under the provisions of this Article VIII.
Section 9. Meaning of "Corporation" for Purposes of Article VIII. For
---------- ------------------------------------------------------
purposes of this Article VIII, references to
"the Corporation" shall include, in addition to the resulting
20
<PAGE>
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees so that any person who is or was a director, officer or
employee of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director,
officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article VIII with respect
to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence
had continued.
Section 10. Meaning of "other enterprises" and certain
----------- ------------------------------------------
other terms for Purposes of Article VIII. For purposes of this
- -----------------------------------------
Article VIII, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted by
the stockholders or by the Board of Director; provided, however,
that notice of such alteration, amendment, repeal or adoption of
new By-Laws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. All such
21
<PAGE>
amendments must be approved by either the holders of a majority
of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
Section 2. Entire Board of Directors. As used in this
Article IX and in these By-Laws generally, the term "entire Board
of Directors" means the total number of directors which the
Corporation would have if there were no vacancies.
22
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-END> MAR-27-1998
<CASH> 1,604
<SECURITIES> 0
<RECEIVABLES> 36,956
<ALLOWANCES> 0
<INVENTORY> 27,994
<CURRENT-ASSETS> 68,896
<PP&E> 39,336
<DEPRECIATION> 0
<TOTAL-ASSETS> 120,351
<CURRENT-LIABILITIES> 32,779
<BONDS> 6,708
0
0
<COMMON> 75
<OTHER-SE> 76,945
<TOTAL-LIABILITY-AND-EQUITY> 120,351
<SALES> 165,161
<TOTAL-REVENUES> 165,221
<CGS> 152,165
<TOTAL-COSTS> 9,473
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,246
<INCOME-PRETAX> 2,337
<INCOME-TAX> 901
<INCOME-CONTINUING> 1,436
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,436
<EPS-PRIMARY> 0.19
<EPS-DILUTED> 0.19
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The information in this finanical data schedule has been restated to reflect the
effect of Statement of Financal Accounting Standards No.128,
"Earnings per Share."
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-END> MAR-28-1997
<CASH> 2,499
<SECURITIES> 0
<RECEIVABLES> 37,828
<ALLOWANCES> 0
<INVENTORY> 31,117
<CURRENT-ASSETS> 72,314
<PP&E> 37,592
<DEPRECIATION> 0
<TOTAL-ASSETS> 122,892
<CURRENT-LIABILITIES> 43,384
<BONDS> 5,975
0
0
<COMMON> 74
<OTHER-SE> 70,167
<TOTAL-LIABILITY-AND-EQUITY> 122,892
<SALES> 111,625
<TOTAL-REVENUES> 111,803
<CGS> 99,829
<TOTAL-COSTS> 6,558
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 774
<INCOME-PRETAX> 4,642
<INCOME-TAX> 1,857
<INCOME-CONTINUING> 2,785
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,785
<EPS-PRIMARY> 0.38
<EPS-DILUTED> 0.37
</TABLE>
