<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended October 1, 1995 Commission file number: 1-5761
- ------------------------------------------------------------------------------
LaBarge, Inc.
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(Exact name of registrant as specified in its charter)
DELAWARE 73-0574586
- ------------------------------------- --------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Box 14499, St. Louis, Missouri 63178
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(Address) (Zip Code)
(314) 231-5960
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(Registrant's telephone number, including Area Code)
- ------------------------------------------------------------------------------
(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 November 2, 1995. 15,296,059 of common shares.
<PAGE> 2
LaBARGE, INC.
STATEMENTS OF OPERATIONS
(Unaudited)
(dollars in thousands except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
OCTOBER 1, October 2,
1995 1994
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
NET SALES $ 13,361 $ 17,111
- --------------------------------------------------------------------------------------------------------------
COSTS AND EXPENSES:
Cost of sales 11,322 14,339
Selling and administrative expenses 1,673 2,069
- --------------------------------------------------------------------------------------------------------------
12,995 16,408
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EARNINGS FROM OPERATIONS 366 703
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Interest expense 319 548
Other income, net 46 33
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EARNINGS BEFORE INCOME TAXES 93 188
Income tax expense (benefit) 6 11
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NET EARNINGS $ 87 $ 177
==============================================================================================================
Net earnings per common share $.01 $.01
- --------------------------------------------------------------------------------------------------------------
Average common shares outstanding 15,246 15,209
==============================================================================================================
</TABLE>
See accompanying notes to financial statements.
-2-
<PAGE> 3
LaBARGE, INC.
BALANCE SHEET
(Unaudited)
(dollars in thousands except per share data)
<TABLE>
<CAPTION>
OCTOBER 1, July 2,
1995 1995
<S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 316 $ 143
Accounts and notes receivable, net 8,016 9,017
Inventories 14,602 14,133
Prepaid expenses 332 293
Deferred tax assets, net 758 758
- -----------------------------------------------------------------------------------------------------------------------
TOTAL CURRENT ASSETS 24,274 24,344
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MARKETABLE SECURITIES, AT COST 250 -
PROPERTY, PLANT AND EQUIPMENT, NET 2,947 2,676
DEFERRED TAX ASSETS, NET 2,492 2,492
OTHER ASSETS, NET 2,164 2,096
- -----------------------------------------------------------------------------------------------------------------------
$ 31,877 $ 31,608
=======================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term borrowings $ 5,500 $ 2,500
Current maturities of long-term debt 1,510 1,670
Trade accounts payable 5,504 5,013
Accrued liabilities 2,180 2,392
Current liabilities from discontinued operations - 269
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TOTAL CURRENT LIABILITIES 14,694 11,844
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LONG-TERM OBLIGATIONS:
Long-term debt 3,777 6,467
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3,777 6,467
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STOCKHOLDERS' EQUITY:
Common stock, $.01 par value. Authorized 20,000,000 shares;
issued 15,296,059 shares at October 1, 1995
and 15,227,316 shares at July 2, 1995 153 152
Additional paid-in capital 12,624 12,554
Retained earnings 629 600
Less stock in treasury; -0- shares at October 1, 1995 and
5,391 shares at July 2, 1995 - (9)
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TOTAL STOCKHOLDERS' EQUITY 13,406 13,297
- -----------------------------------------------------------------------------------------------------------------------
$ 31,877 $ 31,608
=======================================================================================================================
</TABLE>
See accompanying notes to financial statements.
-3-
<PAGE> 4
LaBARGE, INC.
STATEMENTS OF CASH FLOWS
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
OCTOBER 1, October 2,
1995 1994
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 87 $ 177
Adjustments to reconcile net cash provided
by operating activities:
Depreciation and amortization 210 272
Accretion of discount on long-term assets
from business divestitures (7) (8)
Accretion of discount on note from discontinued operations 6 11
Changes in assets and liabilities:
Accounts and notes receivable, net 751 1,411
Inventories (469) (622)
Prepaid expenses (39) (12)
Trade accounts payable 491 (1,010)
Accrued liabilities (212) (203)
Current liabilities from discontinued operations (275) (125)
- ----------------------------------------------------------------------------------------------------------------------------
Net cash provided (used) by operating activities 543 (109)
- ----------------------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment (443) (237)
Additions to other assets of continuing operations (99) (62)
- ----------------------------------------------------------------------------------------------------------------------------
Net cash (used) by investing activities (542) (299)
- ----------------------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayments of long-term debt (350) (446)
Exercise of stock warrants and options 14 60
Purchase of common stock to treasury 8 -
Net change in short-term borrowings 500 900
- ----------------------------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 172 514
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NET INCREASE IN CASH AND CASH EQUIVALENTS 173 106
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 143 140
- ----------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 316 $ 246
============================================================================================================================
</TABLE>
See accompanying notes to financial statements.
-4-
<PAGE> 5
LaBARGE, INC.
FORM 10-Q
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
1. FINANCIAL STATEMENTS - BASIS OF PREPARATION
The balance sheet at October 1, 1995 and the related statements of operations
for the three months ended October 1, 1995 and October 2, 1994 have been
prepared by LaBarge, Inc. (the "Company") without audit. In the opinion of
management, adjustments of a normal and recurring nature, necessary to present
fairly the financial position and the results of operations and cash flows for
the aforementioned periods, have been made.
Certain information and footnote disclosures normally included in financial
statements prepared in conformity with generally accepted accounting principles
have been condensed or omitted. These financial statements should be read in
conjunction with the audited financial statements and notes thereto included in
the Company's Annual Report on Form 10-K for the fiscal year ended July 2,
1995.
2. ACCOUNTS AND NOTES RECEIVABLE
Accounts and notes receivable consist of the following:
(dollars in thousands)
<TABLE>
<CAPTION>
OCTOBER 1, July 2,
1995 1995
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Billed shipments, net of progress payments $ 6,179 $ 6,668
Unbilled costs and accrued profits,
net of progress payments 748 901
- --------------------------------------------------------------------------------------------------------------------
Trade receivables - gross 6,927 7,569
Less: Allowance for doubtful accounts (178) (168)
- --------------------------------------------------------------------------------------------------------------------
Trade receivables - net 6,749 7,401
Current portion of notes receivable 837 1,168
Other current receivables 430 448
- --------------------------------------------------------------------------------------------------------------------
$ 8,016 $ 9,017
====================================================================================================================
</TABLE>
Unbilled amounts represent revenues recognized on contracts, less applicable
progress payments received, for which billings have not been presented to the
customers at the balance sheet dates. Unbilled amounts are usually billed
within the month following the closing date as units are delivered to the
customer.
Progress payments are payments from customers in accordance with contractual
terms for contract costs incurred to date. Such payments are credited to the
customer at the time of shipment.
Notes receivable include a note from a prior divestiture of $237,000, and a note
from a former officer of the Company totaling $600,000.
-5-
<PAGE> 6
Other current receivables represent amounts due from employees for travel
advances and other miscellaneous sources.
3. INVENTORIES
Inventories consist of the following:
(dollars in thousands)
<TABLE>
<CAPTION>
OCTOBER 1, July 2,
1995 1995
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Raw materials $ 9,233 $ 8,609
Work in process 6,067 6,181
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15,300 14,790
Less progress payments (698) (657)
- -------------------------------------------------------------------------------------------------------------
$ 14,602 $ 14,133
=============================================================================================================
</TABLE>
In accordance with contractual agreements, the government has a security
interest in inventories related to contracts for which progress payments have
been received.
4. MARKETABLE SECURITIES
At October 1, 1995, the Company had $250,000 in common stock of Venisect, Inc.
which is valued at cost.
-6-
<PAGE> 7
5. SHORT- AND LONG-TERM OBLIGATIONS
Short-term borrowings, long-term debt and the current maturities of long-term
debt consist of the following:
(dollars in thousands)
<TABLE>
<CAPTION>
OCTOBER 1, July 2,
1995 1995
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
SHORT-TERM BORROWINGS:
Revolving credit agreement:
Balance at period-end $ 5,500 $ 2,500
Interest rate at period-end 10.25% 10.50%
Average amount of short-term borrowings
outstanding during period (rounded to
nearest thousand) $ 5,292 $ 2,472
Average interest rate for period 10.38% 9.70%
Maximum short-term borrowings
at any month-end $ 5,700 $ 5,000
=========================================================================================================
Total short-term borrowings $ 5,500 $ 2,500
=========================================================================================================
OCTOBER 1, July 2,
1995 1995
- ---------------------------------------------------------------------------------------------------------
LONG-TERM DEBT:
Sanwa Business Credit Corporation:
Revolving credit agreement $ - $ 2,500
Term loan 655 805
Chemical Bank term loan 893 1,071
12% Subordinated Notes 3,386 3,386
Industrial revenue bond due
semiannually through 1997, interest at 8% 180 180
Other 173 195
- ---------------------------------------------------------------------------------------------------------
5,287 8,137
Less current maturities 1,510 1,670
- ---------------------------------------------------------------------------------------------------------
Total long-term debt $ 3,777 $ 6,467
=========================================================================================================
</TABLE>
The average interest rate was computed by dividing the sum of daily interest
costs by the sum of the daily borrowings for the respective periods.
At October 1, 1995, the Company has reclassified $2,500,000 of revolving debt
from long-term to short-term due to the expiration of its loan agreement on
July 3, 1996. The Company intends to negotiate a new loan agreement before
this date and will again classify a portion thereof to long-term.
-7-
<PAGE> 8
6. EARNINGS PER COMMON SHARE
Earnings per common share is based on the weighted average number of shares
outstanding during the quarter. Also outstanding are the following common
stock options: 111,000 exercisable at $.66 to $1.125; 75,000 not exercisable
until August, 1996 at $1.3125 to $1.4438 per share; 20,000 not exercisable
until February, 1997 at $1.3833 per share and 20,000 not exercisable until
April, 1997 at $1.4205 per share. The options are not considered dilutive
common stock equivalents for the purposes of the earnings per share
calculation.
7. INCOME TAXES
The tax benefits from the Company's net operating loss carryforwards, which
will more likely than not be realized, have been recorded as an asset. As of
October 1, 1995, the net value of this benefit was $3,249,562 and is reported
as $758,00 in current assets and $2,492,000 in other assets.
The net operating loss carryforwards as of July 2, 1995, for Federal Income Tax
purposes, were $20,393,000, which are available to offset future Federal
taxable income through 2003. The Company also has investment tax credit
carryforwards for Federal income tax purposes of approximately $227,000 which
are available to reduce future Federal income taxes through 2001. In addition,
the Company has alternative minimum tax credit carryforwards of approximately
$245,000 which are available to reduce future regular Federal income taxes over
an indefinite period. These carryforwards are the result of losses generated
by discontinued operations prior to 1987.
8. CASH FLOWS
Total cash payments for interest for the three months ended October 1, 1995
were $327,000 compared to $550,000 for the three months ended October 2, 1994.
-8-
<PAGE> 9
LaBARGE, INC.
FORM 10-Q
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATION AND
FINANCIAL CONDITION
LaBarge, Inc. engineers, manufactures, tests and sells sophisticated electronic
control systems and devices and complex interconnect assemblies under contract
with its customers. Markets for the Company's products are the defense
electronics, telecommunications, medical equipment, aerospace,
geophysical/energy and various other commercial/industrial markets. The
Company employs approximately 620 people.
On December 2, 1994, the Company completed the sale of the on-going business of
its operation in Flippin, Arkansas to Avnet, Inc. In the transaction, Avnet
purchased substantially all of the assets of the Flippin operation and the
related business for approximately $10,455,000 cash and assumed liabilities of
approximately $2,900,000. The proceeds from the sale were used to reduce debt.
The Company continues to operate its facilities in Huntsville and Berryville,
Arkansas; Tulsa, Oklahoma and Joplin, Missouri. The Company will continue,
through its remaining operations, to focus on design and manufacture of
high-tech electronic systems, devices and interconnect systems with special
emphasis on higher value-added products.
The Flippin facility manufactured cable assemblies for a variety of markets
including computer products and medical equipment. Revenues for the quarter
ended October 2, 1994 were approximately $4.7 million (27% of the Company
total).
The December, 1994 sale of the Flippin facility allowed the exchange and
redemption of 15% Subordinated Notes due in May, 1997. Both transactions were
part of a Company plan to strengthen its balance sheet. The Company believes
the stronger balance sheet will allow it much greater flexibility to invest in
growth opportunities at its other facilities.
Historically, due to the lead times required in the production of the Company's
defense and aerospace products, its backlog of firm, unshipped orders has
always been considered important. However, as the Company has decreased its
dependence on large defense contracts and increased the proportion of its sales
received from non-defense customers which have much shorter lead times and
demand just-in-time deliveries, the importance of backlog as a barometer of
future performance has decreased. The backlog at October 1, 1995 was
approximately $51.6 million compared to $52.1 million at July 2, 1995. The
backlog at October 1, 1995 for the products described below consisted of
approximately $30.1 million of orders for various defense products, the
majority of which contain cancellation and termination provisions, and $21.5
million of orders for commercial products. Approximately $3.2 million of the
total backlog is not scheduled to ship within the next 12 months pursuant to
the shipment schedules contained in those contracts.
-9-
<PAGE> 10
Substantially all of the Company's contracts with the United States Government
and subcontracts with prime contractors of the United States Government are
firm fixed-price contracts. Under firm fixed-price contracts, work is
performed and paid for at a fixed amount without adjustment for the actual
costs experienced in connection with the contracts. Therefore, unless the
customer actually or constructively alters or impedes the work performed, all
risk of loss due to cost overruns is borne by the Company.
The Company continues to pursue defense-related business. During the first
quarter, the Company received additional orders on the AEGIS program totaling
$5.2 million. AEGIS is the most advanced shipboard anti-aircraft and
anti-missile system in the world. All work on this contract is being performed
in Huntsville, Arkansas.
Sales to Lockheed Martin represented approximately 34% of total Company sales
for the three months ended October 1, 1995.
The Company also serves the telecommunications, medical equipment, commercial
aerospace, geophysical and other commercial/industrial markets. The Company
has aggressively expanded its commercial business over the past several years
and intends to continue to do so. Non-defense business represented
approximately 36% of total Company sales for the quarter. The Company
manufactures products as diverse as an audio tape player used by the vision
impaired and data collection equipment used in energy production. As in the
defense market, all production is completed on a contract basis.
The Company has developed a portable medical laser under a contract from
Venisect, Inc. The laser is used to perforate the skin to draw small amounts
of blood for testing. Phase II FDA clinical trials are continuing and it is
hoped approval for commercial use will be received this fiscal year. The
impact on the Company's sales cannot yet be determined.
-10-
<PAGE> 11
LaBARGE, INC.
FORM 10-Q
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
RESULTS OF OPERATIONS
THREE MONTHS ENDED OCTOBER 1, 1995
COMPARED TO THREE MONTHS ENDED OCTOBER 2, 1994
Net sales for the three months ended October 1, 1995 were $13,361,000 compared
to $17,111,000 for the three months ended October 2, 1994. Excluding Flippin's
volume from 1994, the continuing business showed a sales gain of approximately
7.4% year-to-year for the three-month period.
Gross profit for the three months ended October 1, 1995 was $2,039,000, 15.3%
of sales, compared to $2,772,000, 16.2% of sales, for the three months ended
October 2, 1994. Due to lower planned sales volume caused by the sale of the
Flippin business and fixed costs involved in pursuing new business
opportunities, margins are down approximately 1.1% of sales year-to-year.
Selling and administrative expenses were $1,673,000, 12.5% of sales, for the
three months ended October 1, 1995, compared to $2,069,000, 12.1% of sales, for
the three months ended October 2, 1994.
Earnings from operations for the three months ended October 1, 1995 were
$365,000, 2.7% of sales, compared to $703,000, 4.1% of sales, for the three
months ended October 2, 1994.
Interest expense for the three months ended October 1, 1995 was $319,000,
compared to $548,000 for the three months ended October 2, 1994. Lower debt
levels continue to keep interest costs down.
Other income was $46,000 and $33,000 for the three months ended October 1, 1995
and October 2, 1994, respectively. This is primarily accretion of a discount
on a note receivable.
The Company continues to have significant tax loss carryforwards which, in
accordance with SFAS 109, results in $3.25 million of deferred tax assets, net
of the related valuation allowance as of July 2, 1995. Income tax expense for
the three months ended October 1, 1995 and October 2, 1994 was $5,500 and
$11,300, respectively.
Net earnings for the three months ended October 1, 1995 were $87,000 compared
to $177,000 for the three months ended October 2, 1994.
-11-
<PAGE> 12
Earnings per common share were $.01 for the three months ended October 1, 1995
compared to $.01 for the three months ended October 2, 1994.
FINANCIAL CONDITION & LIQUIDITY
Over the last year, the Company has taken important steps to improve its
financial condition.
On December 2, 1994, the Company completed the sale of its operations in
Flippin, Arkansas to Avnet, Inc. In the transaction, Avnet purchased the net
assets of the Flippin operation and the related business for $10,455,000 and
assumed liabilities of $2,900,000. The proceeds of the sale were used to
reduce debt. As of October 1, 1995, $9,955,000 of the purchase price has been
received and used to reduce debt.
At October 1, 1995, the Company had borrowings as follows: a term loan with an
initial balance of $3,500,000 payable over four years at an interest rate of
prime plus 1.5% and a revolving credit facility of up to $14,500,000 which
expires July 3, 1996, at prime plus 1.5% interest, both through Sanwa Business
Credit. As of October 1, 1995, $655,000 was outstanding on the term loan and
$5,500,000 was outstanding on the revolver. In addition, the Company now has
$3,386,000 of 12% Subordinated Notes due May 15, 1998, $894,000 in notes due
Chemical Bank at prime plus .5%, plus other debt totaling $352,000. Equity at
October 1, 1995 was $13,406,000 or $.88 per common share.
Primary sources of the cash generated in the first quarter 1996 are: net
income of $87,000 adjusted for non-cash depreciation and amortization of
$210,000, reduction of accounts receivable of $1,001,000 and an increase in
payables of $491,000. Cash has been used to increase inventories by $469,000,
and reduce accrued liabilities and other current liabilities by $487,000. This
cash was used to purchase additional equipment.
During the three months ended October 1, 1995, the Company increased borrowings
by $172,000.
-12-
<PAGE> 13
PART II
<TABLE>
<CAPTION>
Exhibits Page
-------- ----
<S> <C> <C>
3.1(f) Amendment to Certificate of Incorporation dated October 26, 1995, as filed with
the State of Delaware on October 27, 1995. 15
3.1(g) Certificate Eliminating Certificate of Designation of Class A and Class B Cumulative
Exchangeable Preferred Stock dated October 26, 1995, as filed with the State of Delaware
on October 27, 1995. 18
3.1(h) Certificate Eliminating Certificate of Designation of Class C Cumulative Convertible
Preferred Stock dated October 26, 1995, as filed with the State of Delaware on
October 27, 1995. 21
3.1(i) Restated Certificate of Incorporation dated October 26, 1995, as filed with the State of
Delaware on October 31, 1995. 24
3.2(a) The By-Laws of LaBarge, Inc., as amended through October 26, 1995. 30
27 Article 5 Financial Data Schedule. 41
</TABLE>
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<PAGE> 14
SIGNATURE
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.
LaBARGE, INC.
------------------------
(Registrant)
Date 11/14/95
--------
William J. Maender
------------------------
William J. Maender
Vice President - Finance,
Treasurer and Secretary
-14-
<PAGE> 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF
OCTOBER, A.D. 1995, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SECRETARY OF STATE SEAL] -----------------------------------
Edward J. Freel, Secretary of State
0672724 8100 AUTHENTICATION: 7691214
DATE:
950248682 10-27-95
-15-
<PAGE> 2
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
LaBarge, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of said corporation,
duly held on August 15, 1995, the Board of Directors adopted a resolution
proposing the following amendments to the Certificate of Incorporation of said
corporation, declaring said amendments to be advisable, and calling for
presentation of said resolutions to the stockholders. The resolutions are as
follows:
RESOLVED, that the Certificate of Incorporation of this Corporation
be, and the same hereby is, amended by adding a new Article TENTH
thereto to read in its entirety as follows:
"TENTH: As to the following matters, the affirmative vote of
two-thirds (2/3's) of the shares entitled to vote shall be
required to approve any proposed stockholder action which
otherwise requires stockholder approval under the Delaware
General Corporation Law: (a) to sell, exchange, transfer or
otherwise dispose of all or substantially all of the
corporation's property and assets; (b) to dissolve or liquidate
the corporation; (c) to merge or consolidate the corporation
with or into another corporation; or (d) to amend, alter or
delete from the Certificate of Incorporation this Article TENTH
or the paragraph numbered "2" of Article EIGHTH hereof."
FURTHER RESOLVED, that this proposed Amendment to the Certificate of
Incorporation shall be presented for vote to the stockholders of the
Corporation at the Annual Meeting of Stockholders to be held October
26, 1995 with the Board's recommendation that the stockholders vote
'for' the proposed Amendment and, upon receipt of the affirmative
vote of a majority of the shares entitled to vote, shall be duly
adopted; and
-16-
<PAGE> 3
FURTHER RESOLVED, that the proper officers of this Corporation are
hereby authorized and directed, upon approval of this Amendment by
the shareholders of the Corporation, to execute and file with the
Secretary of State of Delaware a Certificate of Amendment to the
Certificate of Incorporation to reflect the amendment made hereby.
SECOND: That thereafter, at the Annual Meeting of Stockholders of this
corporation duly called and held on the 26th day of October, 1995, more than a
majority of the outstanding stock entitled to vote on said amendment was voted
in favor thereof.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said corporation shall not be reduced under
or by reason of said amendment.
IN WITNESS WHEREOF, said LaBarge, Inc. has caused this Certificate to be
signed by Craig E. LaBarge, its President, and William J. Maender, its
Secretary, this 26th day of October, 1995.
LaBARGE, INC.
Attest: William J. Maender By Craig E. LaBarge
---------------------- ------------------------
Secretary President
-17-
<PAGE> 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY
OF OCTOBER, A.D. 1995, AT 10:01 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SECRETARY OF STATE SEAL] -----------------------------------
Edward J. Freel, Secretary of State
0672724 8100 AUTHENTICATION: 7691290
DATE:
950248685 10-27-95
-18-
<PAGE> 2
CERTIFICATE ELIMINATING CERTIFICATE OF DESIGNATION
OF CLASS A AND CLASS B CUMULATIVE EXCHANGEABLE
PREFERRED STOCK OF LABARGE, INC.
FROM CERTIFICATE OF INCORPORATION
LaBarge, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That on the 24th day of December, 1986, the corporation filed
with the Secretary of State of the State of Delaware a
"Certificate of Designation, Preferences and Rights of Class A and Class B
Cumulative Exchangeable Preferred Stock of LaBarge, Inc." which Certificate was
subsequently amended by a Certificate of Amendment of Certificate of
Designation filed with the Delaware Secretary of State on the 24th day of
August, 1989 (said Certificate and Amendment referred to collectively as the
"Certificate of Designation").
SECOND: That at a meeting of the Board of Directors of said
corporation duly held on October 26, 1995, the Board of Directors adopted the
following resolutions for the purpose of eliminating the Certificate of
Designation from the Certificate of Incorporation of the corporation:
WHEREAS, there are currently no issued shares of Class A
Cumulative Exchangeable Preferred Stock or Class B Cumulative
Exchangeable Preferred Stock of the corporation (the "Class A
and Class B Preferred") outstanding and no such shares will be
issued subject to the Certificate of Designation, Preferences
and Rights of Class A and Class B Cumulative Exchangeable
Preferred Stock of LaBarge, Inc. as amended (the "Certificate
of Designation") with respect to such Classes, and the Board
of Directors desires to eliminate the Certificate of
Designation from the corporation's Certificate of
Incorporation;
THEREFORE, IT IS RESOLVED, that no Class A or Class B
Preferred shares shall be issued subject to the Certificate of
Designation with respect to such Classes;
FURTHER RESOLVED, that the Certificate of Designation shall be
eliminated from the Certificate of Incorporation of the
corporation;
-19-
<PAGE> 3
FURTHER RESOLVED, that the proper officers of this corporation
are hereby authorized and directed to execute and file with
the Secretary of State of the State of Delaware pursuant to
Section 151(g) of the General Corporation Law of Delaware a
certificate setting forth the foregoing resolutions.
THIRD: That the aforesaid resolutions were duly adopted in accordance
with the provisions of Section 151(g) of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said LaBarge, Inc. has caused this Certificate to
be signed by Craig E. LaBarge, its President and attested by William J.
Maender, its Secretary, this 26 day of October, 1995.
LaBARGE, INC.
Attest: William Maender By Craig E. LaBarge
---------------------------- ----------------------------
Secretary President
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<PAGE> 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY
OF OCTOBER, A.D. 1995, AT 10:02 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SECRETARY OF STATE SEAL] -----------------------------------
Edward J. Freel, Secretary of State
0672724 8100 AUTHENTICATION: 7691358
DATE:
950248686 10-27-95
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<PAGE> 2
CERTIFICATE ELIMINATING CERTIFICATE OF DESIGNATION
OF CLASS C CUMULATIVE CONVERTIBLE
PREFERRED STOCK OF LABARGE, INC.
FROM CERTIFICATE OF INCORPORATION
LaBarge, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That on the 25th day of August, 1989, the corporation filed
with the Secretary of State of the State of Delaware a "Certificate
of Designation, Preferences and Rights of Class C Cumulative Convertible
Preferred Stock of LaBarge, Inc." which Certificate was subsequently amended by
a Certificate of Amendment of Certificate of Designation filed with the
Delaware Secretary of State on the 3rd day of April, 1992 (said Certificate and
Amendment referred to collectively as the "Certificate of Designation").
SECOND: That at a meeting of the Board of Directors of said
corporation duly held on October 26, 1995, the Board of Directors adopted the
following resolutions for the purpose of eliminating the Certificate of
Designation from the Certificate of Incorporation of the corporation:
WHEREAS, there are currently no issued shares of Class C
Cumulative Convertible Preferred Stock of the corporation (the
"Class C Preferred") outstanding and no such shares will be
issued subject to the Certificate of Designation, Preferences
and Rights of Class C Cumulative Convertible Preferred Stock
of LaBarge, Inc. as amended (the "Certificate of Designation")
with respect to such Class, and the Board of Directors desires
to eliminate the Certificate of Designation from the
corporation's Certificate of Incorporation;
THEREFORE, IT IS RESOLVED, that no Class C Preferred shares
shall be issued subject to the Certificate of Designation with
respect to such Class;
FURTHER RESOLVED, that the Certificate of Designation shall be
eliminated from the Certificate of Incorporation of the
corporation;
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<PAGE> 3
FURTHER RESOLVED, that the proper officers of this corporation
are hereby authorized and directed to execute and file with
the Secretary of State of the State of Delaware pursuant to
Section 151(g) of the General Corporation Law of Delaware a
certificate setting forth the foregoing resolutions.
THIRD: That the aforesaid resolutions were duly adopted in accordance
with the provisions of Section 151(g) of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said LaBarge, Inc. has caused this Certificate to
be signed by Craig E. LaBarge, its President and attested by William J.
Maender, its Secretary, this 26 day of October, 1995.
LaBARGE, INC.
Attest: William J. Maender By Craig E. LaBarge
-------------------------- ---------------------------
Secretary President
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<PAGE> 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF
OCTOBER, A.D. 1995, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SECRETARY OF STATE SEAL] -----------------------------------
Edward J. Freel, Secretary of State
0672724 8100 AUTHENTICATION: 7694608
DATE:
950251563 10-31-95
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<PAGE> 2
RESTATED
CERTIFICATE OF INCORPORATION
OF
LABARGE, INC.
_______________
LaBarge, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (originally incorporated
in the State of Delaware on February 19, 1968 under the name Interim
Electronics Inc.),
DOES HEREBY CERTIFY:
That at a meeting of the Board of Directors of said corporation duly held
on October 26, 1995, the Board of Directors adopted a Restated Certificate of
Incorporation for said corporation. The Restated Certificate of Incorporation
only restates and integrates and does not further amend the provisions of the
corporation's Certificate of Incorporation as theretofore amended or
supplemented, and there is no discrepancy between the provisions of said
Certificate as amended and the provisions of the Restated Certificate of
Incorporation. The Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Section 245 of the General Corporation Law of
the State of Delaware, and is set forth in its entirety as follows:
FIRST: The name of the corporation is
LaBARGE, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, in the County of New Castle, and
the name of the registered agent of the corporation in the Sate of Delaware at
such address is THE CORPORATION TRUST COMPANY.
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<PAGE> 3
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of common stock which the corporation
shall have authority to issue is 20,000,000. The par value of each of such
shares of common stock is 1c.. The total number of shares of preferred stock
which the corporation shall have authority to issue is 2,000,000 shares. The
par value of each such share of preferred stock is $1.00 per share. The
preferred stock may be issued from time to time, in one or more series, with
such designations, preferences and relative, participating, optional or other
rights, qualifications, limitations or restrictions thereof as shall be stated
and expressed in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors from time to time, pursuant to the
authority hereby given. A copy of such resolution or resolutions shall be set
forth in a certificate made, executed, acknowledged, filed and recorded in the
manner required by the laws of the State of Delaware in order to make the same
effective. Each series shall consist of such number of shares as shall be
stated and expressed in such resolution or resolutions providing for the
issuance of the stock of such series. All shares of any one series of
preferred stock shall be alike in every particular. So long as any Class A and
Class B Cumulative Exchangeable Preferred Stock shall be issued and
outstanding, it shall have the Preferences and Rights set forth on the
Certificate of Designation filed with the Delaware Secretary of State on
December 24, 1986.
FIFTH: The name and the mailing address of the incorporator is as
follows:
NAME MAILING ADDRESS
R. G. Dickerson 229 South State Street
Dover, Delaware
SIXTH: The corporation is to have perpetual existence.
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<PAGE> 4
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs
of the corporation, including the election of the Chairman of the Board of
Directors, if any, the President, the Treasurer, the Secretary, and other
principal officers of the
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<PAGE> 5
corporation, shall be vested in its Board of Directors. No election of
directors need be by written ballot.
2. The power to make, alter, or repeal the By-Laws, and to adopt
any new By-Law, except a By-Law classifying directors for election for
staggered terms, shall be vested in the Board of Directors.
NINTH: A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
TENTH: As to the following matters, the affirmative vote of two-thirds
(2/3's) of the shares entitled to vote shall be required to approve any
proposed stockholder action which otherwise requires stockholder approval under
the Delaware General Corporation Law: (a) to sell, exchange, transfer or
otherwise dispose of all or substantially all of the corporation's property and
assets; (b) to dissolve or liquidate the corporation; (c) to merge or
consolidate the corporation with or into another corporation; or (d) to amend,
alter or delete from the Certificate of Incorporation this Article TENTH or the
paragraph numbered "2" of Article EIGHTH hereof.
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<PAGE> 6
IN WITNESS WHEREOF, LaBarge, Inc. has caused this Restated Certificate of
Incorporation to be signed by Craig E. LaBarge, its President, and attested by
William J. Maender, its Secretary this 26th day of October, 1995.
LaBARGE, INC.
Attest: William J. Maender By Craig E. LaBarge
--------------------- ----------------------------
Secretary Craig E. LaBarge, President
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<PAGE> 1
BYLAWS
OF
LaBARGE, INC.
(A Delaware Corporation)
(As amended through October 26, 1995)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice Chairman of the Board of Directors,
if any, or by the President or a Vice President and 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.
If such certificate is countersigned by a transfer agent other than the
corporation or its employee or by a registrar other than the corporation or its
employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one class
of stock or more than one series of any class of stock, and whenever the
corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or his legal representative, to give the corporation
a bond sufficient to indemnify the corporation against any claim that may be
made against it on account of the alleged loss, theft, or destruction of any
such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be
required to, issue fractions of a share. In lieu thereof it shall either pay
in cash the fair value of fractions of a share, as determined by the Board of
Directors, to those entitled thereto or issue scrip or fractional warrants in
registered or bearer form over the manual or facsimile signature of an officer
of the corporation or of its agent, exchangeable as therein provided for full
shares,
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<PAGE> 2
but such scrip or fractional warrants shall not entitle the holder to any
rights of a stockholder except as therein provided. Such scrip or fractional
warrants may be issued subject to the condition that the same shall become void
if not exchanged for certificates representing full shares of stock before a
specified date, or subject to the condition that the shares of stock for which
such scrip or fractional warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of such scrip
or fractional warrants, or subject to any other conditions which the Board of
Directors may determine.
3. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof,
or by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to or dissent from any corporate
action in writing without a meeting, or for the purpose of determining
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion, or exchange of stock, or for the purpose of any
other lawful action, the directors may fix, in advance, a date as the record
date for any such determination of stockholders. Such date 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. If no record date is fixed,
the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the meeting
is held; the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. When a determination of stockholders
of record entitled to notice of or to vote at any meeting of stockholders has
been made as provided in this paragraph, such determination shall apply to any
adjournment thereof; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right
to notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "share of stock", or "shares of
stock" or "stockholder" or "stockholders" refers to an outstanding share or
shares of stock and to a holder or holders of record of outstanding shares of
stock when the corporation is authorized to issue only one class of shares of
stock, and said reference is also intended to include any outstanding share or
shares of stock and any holder or holders of record of outstanding shares of
stock of any class upon which or upon whom the Certificate of Incorporation
confers such rights where there are two or more classes or series of shares of
stock or upon which or upon whom the General Corporation Law confers such
rights notwithstanding that the Certificate of Incorporation may provide for
more than one class
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<PAGE> 3
or series of shares of stock, one or more of which are limited or denied such
rights thereunder; provided, however, that no such right shall vest in the
event of an increase or a decrease in the authorized number of shares of stock
of any class or series which is otherwise denied voting rights under the
provisions of the Certificate of Incorporation.
6. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the directors, provided, that the first annual
meeting shall be held on a date within thirteen months after the organization
of the corporation, and each successive annual meeting shall be held on a date
within thirteen months after the date of the preceding annual meeting. A
special meeting shall be held on the date and at the time fixed by the
directors.
- PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the directors may, from time
to time fix. Whenever the directors shall fail to fix such place, the meeting
shall be held at the registered office of the corporation in the State of
Delaware.
- CALL. Annual meetings and special meetings may be called by the
directors or by any officer instructed by the directors to call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall
be given, stating the place, date, and hour of the meeting and stating the
place within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual
meeting shall state that the meeting is called for the election of directors
and for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting) state the purpose or purposes.
The notice of a special meeting shall in all instances state the purpose or
purposes for which the meeting is called. If any action is proposed to be
taken which would, if taken, entitle stockholders to receive payment for their
shares of stock, the notice shall include a statement of that purpose and to
that effect. Except as otherwise provided by the General Corporation Law, a
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten days nor more than sixty days before the date of the meeting,
unless the lapse of the prescribed period of time shall have been waived, and
directed to each stockholder at his record address or at such other address
which he may have furnished by request in writing to the Secretary of the
corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States mail. If a meeting is adjourned
to another time, not more than thirty days hence, and/or to another place, and
if an announcement of the adjourned time and/or place is made at the meeting,
it shall not be necessary to give notice of the adjourned meeting unless the
directors, after adjournment, fix a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice by him before or after the time stated therein. Attendance of a person
at a meeting of stockholders shall constitute a waiver of notice of such
meeting, except when the stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not
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lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
- STOCKHOLDER LIST. The officer 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, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares 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 or other municipality or community
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. The list shall also be produced and kept at the time and place where the
meeting is to be held. The 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 who is present. The stock ledger shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger, the list
required by this section or the books of the corporation, or to vote at any
meeting of stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: The Chairman of the Board, if any, the Vice Chairman of the Board,
if any, the President, a Vice President, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the stockholders.
The Secretary of the corporation, or in his absence, an Assistant Secretary,
shall act as secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present the Chairman of the meeting shall appoint a
secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-in-fact. No
proxy shall be voted or acted upon after three years from its date unless such
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy
may be made irrevocable regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the corporation
generally.
- INSPECTORS AND JUDGES. The directors, in advance of any meeting,
may, but need not, appoint one or more inspectors of election or judges of the
vote, as the case may be, to act at the meeting or any adjournment thereof. If
an inspector or inspectors or judge or judges are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors or
judges. In case any person who may be appointed as a inspector or judge fails
to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector or judge, if any, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector or judge at such meeting with strict impartiality and
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according to the best of his ability. The inspectors or judges, if any, shall
determine the number of shares of stock outstanding and the voting power of
each, the shares of stock 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 stockholders. On request of the person presiding at
the meeting, the inspector or inspectors or judge or judges, if any, shall make
a report in writing of any challenge, question or matter determined by him or
them and execute a certificate of any fact found by him or them.
- QUORUM. The holders of a majority of the outstanding shares of
stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
- VOTING. Each share of stock shall entitle the holder thereof to
one vote. In the election of directors, a plurality of the votes cast shall
elect. Any other action shall be authorized by a majority of the votes cast
except where the General Corporation Law, the Certificate of Incorporation or
these Bylaws prescribes a different percentage of votes and/or a different
exercise of voting power. In the election of directors, voting need not be by
ballot. Voting by ballot shall not be required for any other corporate action
except as otherwise provided by the General Corporation Law.
- STOCKHOLDER ACTION WITHOUT MEETINGS. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action, the meeting and vote of stockholders
may be dispensed with if all of the stockholders who would have been entitled
to vote upon the action if such meeting were held shall consent in writing to
such corporate action being taken; or if less than all of said stockholders,
but not less than those having at least the minimum voting power required to
take corporate action under the provisions of the General Corporation Law, the
Certificate of Incorporation or these Bylaws, shall consent in writing to such
corporate action; provided that prompt notice be given to all stockholders of
the taking of such action without a meeting and by less than unanimous written
consent.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business of the corporation shall be
managed by the Board of Directors of the corporation. The use of the phrase
"whole board" herein refers to the total number of directors which the
corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a
citizen of the United States, or a resident of the State of Delaware. The
initial Board of Directors shall consist of eight persons. Thereafter the
number of directors constituting the
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whole board shall be at least three, except that, where all the shares of stock
of the corporation are owned beneficially and of record by less than three
stockholders, the number of directors may be less than three but not less than
the number of such stockholders. Subject to the foregoing limitation and
except for the first Board of Directors, such number may be fixed from time to
time by action of the directors, or, if the number is not fixed, the number
shall be three. The number of directors may be increased or decreased by
action of the directors.
3. ELECTION AND TERM. The directors shall be divided into three
classes: Class A, Class B and Class C. Such classes shall be as nearly equal
in number as possible. The term of office of the initial Class A directors
shall expire at the Annual Meeting of Stockholders in 1996; the term of office
of the initial Class B directors shall expire at the Annual Meeting of
Stockholders in 1997; and the term of office of the initial Class C directors
shall expire at the Annual Meeting of Stockholders in 1998, or thereafter in
each case when their respective successors are elected and have qualified. At
each annual election held after classification and the initial election of
directors according to classes, the directors chosen to succeed those whose
terms then expire shall be identified as being of the same class as the
directors they succeed and shall be elected for a term expiring at the third
succeeding annual meeting or thereafter when their respective successors in
each case are elected and have qualified. If the number of directors is
changed, any increase or decrease in directors shall be apportioned among the
classes so as to maintain all classes in nearly equal in number as possible and
any individual director elected to any class shall hold office for a term which
shall coincide with the term of such class. If the office of any director
becomes vacant at any time by reason of death, resignation, retirement,
disqualification, removal from office or otherwise, or if any new directorship
is created by any increase in the authorized number of directors, a majority of
the directors then in office, although less than a quorum, or the sole
remaining director, may choose a successor or fill the vacancy or the newly
created directorship, and the director so chosen shall hold office, subject to
the provisions of these Bylaws, until the expiration of the term of the class
to which he has been chosen and until his successor shall be duly elected and
qualified.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
- PLACE. Meetings may be held at such place within or without the
State of Delaware as shall be fixed by the Board or in the call of the meeting.
Meetings may be held, and members may be present at any meeting, by long
distance or conference telephone connection.
- CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice Chairman of the Board,
if any, of the President, or of a majority of the directors in office.
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- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors. The notice of any meeting need not specify the purpose of the
meeting. Any requirement of furnishing a notice shall be waived by any
director who participates therein or signs a written waiver of such notice
before or after the time stated therein.
- QUORUM AND ACTION. One-third of the whole Board, but not less than
two members, shall constitute a quorum except for filling a vacancy or
vacancies as provided in Article II, Section 3. A majority of the directors
present, whether or not a quorum exists, may adjourn a meeting to another time
and place. Except as otherwise provided by the General Corporation Law, the
Board shall act by vote of a majority of the directors present at a meeting, a
quorum existing.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice
Chairman of the Board, if any and if present and acting, or the President, if
present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed
for cause by the stockholders or the Board of Directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to consist of two or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. In the absence
or disqualification of any member of any such committee or committees, 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 such absent or disqualified member.
7. ACTION IN WRITING. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board 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 or committee.
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<PAGE> 8
ARTICLE III
OFFICERS
1. OFFICERS SHALL BE CHOSEN BY DIRECTORS. The officers of the
corporation shall be elected by the Board of Directors and shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer. The Board
of Directors may also elect a Chairman of the Board of Directors, a Vice
Chairman thereof, one or more Executive Vice Presidents, a Controller, and one
or more Assistant Secretaries and Assistant Treasurers; two or more offices may
be held by the same person.
2. ELECTION AT DIRECTORS' ORGANIZATION MEETING. The Board of
Directors at its first meeting and thereafter annually shall elect a President,
a Vice President, a Secretary and a Treasurer.
3. APPOINTMENT OF OTHER OFFICERS. The Board of Directors may appoint
such other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors.
4. COMPENSATION. The salaries of all officers of the corporation
shall be fixed by the Board of Directors.
5. TENURE. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by
the Board of Directors may be removed for cause or without cause at any time by
the affirmative vote of a majority of the members of the Board of Directors.
Any officer may resign at any time upon written notice. Any vacancy occurring
in any office of the corporation shall be filled by the Board of Directors.
6. CHIEF EXECUTIVE OFFICER. The powers of the Chief Executive Officer
of the corporation shall be vested in the President, unless the Chairman of the
Board has previously been designated by the Board of Directors to be the Chief
Executive Officer of the corporation. If the powers of the Chief Executive
Officer shall be vested solely in the Chairman of the Board, the President
shall be subordinate only to the Chairman of the Board and shall be the Chief
Operating Officer of the corporation and shall be in charge of, and exercise
general supervisory control over, all operational phases and departments of the
corporation. In general, the Chief Executive Officer shall perform all duties
usually vested in the Chief Executive Officer of a corporation and such other
duties as may be prescribed from time to time by the Board of Directors.
The President shall preside at all meetings of the stockholders and of
the Board of Directors, unless there shall be a Chairman of the Board, in which
case the President shall preside in the absence or with the consent of the
Chairman of the Board.
7. VICE PRESIDENT. A Vice President shall have such powers and
perform such duties as may be assigned to him by the Board of Directors or the
Chief Executive Officer of
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<PAGE> 9
the corporation. In the absence or disability of the Chief Executive Officer
of the corporation and the President, the Vice President, if only one, and if
more than one, a Vice President designated by the Board of Directors or the
Chief Executive Officer of the corporation shall perform the duties and
exercise the powers of the Chief Executive Officer. A Vice President may sign
and execute contracts and other obligations pertaining to the regular course of
his duties.
8. SECRETARY. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings
of the meetings of the corporation and of the Board of Directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He 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 the Chief Executive Officer of the corporation, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an Assistant Secretary, shall have authority to affix
the same to any instrument requiring it, and when so affixed it may be attested
by his signature or by the signature of 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. The Secretary may
sign and execute contracts and other obligations pertaining to the regular
course of his duties.
9. ASSISTANT SECRETARIES. An Assistant Secretary shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors or the Chief Executive Officer of the
corporation may from time to time prescribe.
10. 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. He 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 Chief Executive Officer of the corporation 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 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.
11. ASSISTANT TREASURER. An Assistant Treasurer shall, in the absence
or disability of the Treasurer, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties and have such other powers as
the Board of Directors or the Chief Executive Officer of the corporation may
from time to time prescribe.
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<PAGE> 10
12. DELEGATION OF POWER. In case of absence of any officer of the
corporation or for any other reason that the Board of Directors may deem
sufficient, the Board may delegate the powers or duties of such officer to any
other officer or to any director for the time being, provided a majority of the
entire Board concurs therein.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors shall
prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
ARTICLE VI
AMENDMENTS
These Bylaws may be made, altered, amended or repealed, subject to the
provisions of the Certificate of Incorporation, at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such making, alteration,
amendment or repeal be contained in the notice of such special meeting;
provided, however, that any Bylaw, other than an original Bylaw, which provides
for the election of directors by classes for staggered terms shall be adopted
by the stockholders. Notwithstanding the foregoing, any amendment of Article
II hereof shall require the affirmative vote of a majority of the members of
the Board of Directors or of holders of two-thirds (2/3s) of the outstanding
shares entitled to vote.
ARTICLE VII
INDEMNIFICATION
1. 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, employee or agent of
this corporation, (not including any predecessor corporation), or is or was
serving at the request of this corporation (not including any predecessor
corporation) as a director, officer, employee or
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<PAGE> 11
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including 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 a manner he reasonably believed to be in or not opposed to the best
interests of this 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 plea 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 this corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
2. 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, employee or
agent of this corporation (not including any predecessor corporation), or is or
was serving at the request of this corporation (not including any predecessor
corporation), as a director, officer, employee or agent 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 and 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 for negligence or misconduct in the performance
of his duty 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.
3. The indemnification provided by this Bylaw shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall 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.
-40-
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