SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
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(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-19867
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ESKIMO PIE CORPORATION
(Exact name of registrant as specified in its charter)
Virginia 54-0571720
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
901 Moorefield Park Drive
Richmond, VA 23236
(Address of principal executive offices, including zip code)
------------
Registrant's phone number, including area code:
(804) 560-8400
------------
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.
Class Outstanding at April 30, 1999
----- -----------------------------
Common Stock, $1.00 Par Value 3,458,597
<PAGE>
ESKIMO PIE CORPORATION
Index
Page
Number
------
Part I. Financial Information
Item 1. Financial Statements (Unaudited)
Condensed Consolidated Statements of Income
Three Months Ended March 31, 1999 and 1998 1
Condensed Consolidated Balance Sheets
March 31, 1999; December 31, 1998 and March 31, 1998 2
Condensed Consolidated Statements of Cash Flows
Three Months Ended March 31, 1999 and 1998 3
Notes to Condensed Consolidated Financial Statements 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 6
Part II. Other Information
Item 5. Other Information 10
Item 6. Exhibits and Reports on Form 8-K 10
<PAGE>
<TABLE>
ESKIMO PIE CORPORATION
Condensed Consolidated Statements of Income (Unaudited)
<CAPTION>
For the three months ended March 31, 1999 1998
----------------------------------------------------------------------------------------- ------------------- -----------------
(In thousands, except Per Share Data)
<S> <C> <C>
Net sales $ 16,129 $ 16,031
Cost of products sold 9,283 9,501
------------------- -----------------
Gross profit 6,846 6,530
Advertising and sales promotion expenses 3,881 3,662
Selling, general and administrative expenses 2,143 2,418
Expense from restructuring activities 314 -
------------------- -----------------
Operating income 508 450
Interest income 19 61
Interest expense and other - net 159 192
------------------- -----------------
Income before income taxes 368 319
Income tax expense 136 118
------------------- -----------------
Net income $ 232 $ 201
=================== =================
Per Share Data
Basic:
Weighted average number of common shares outstanding 3,462,796 3,458,002
Net income $ 0.07 $ 0.06
=================== =================
Assuming dilution:
Weighted average number of common shares outstanding 3,469,385 3,463,107
Net income $ 0.07 $ 0.06
=================== =================
Cash dividend $ 0.05 $ 0.05
=================== =================
</TABLE>
1
<PAGE>
<TABLE>
ESKIMO PIE CORPORATION
Condensed Consolidated Balance Sheets (Unaudited)
<CAPTION>
March 31, December 31, March 31,
As of 1999 1998 1998
- -------------------------------------------------------------------------- ----------------- ------------------ ----------------
(In thousands, except share data)
Assets
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 1,008 $ 530 $ 1,830
Receivables 8,888 6,817 8,880
Inventories 5,418 4,897 4,762
Prepaid expenses 611 889 712
----------------- ------------------ ----------------
Total current assets 15,925 13,133 16,184
Property, plant and equipment - net 7,070 7,665 7,901
Goodwill and other intangibles 17,395 17,645 17,433
Other assets 1,636 1,645 1,998
----------------- ------------------ ----------------
Total assets $ 42,026 $ 40,088 $ 43,516
================= ================== ================
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable $ 3,876 $ 2,875 $ 4,087
Accrued advertising and promotion 2,740 1,728 2,784
Accrued compensation and related amounts 293 211 442
Other accrued expenses 889 657 932
Current portion of long term debt 1,317 1,317 1,317
----------------- ------------------ ----------------
Total current liabilities 9,115 6,788 9,562
Long term debt 7,371 3,901 4,889
Convertible subordinated notes - 3,800 3,800
Postretirement benefits and other liabilities 3,201 3,373 3,146
Shareholders' equity:
Preferred stock, $1.00 par value; 1,000,000 shares
authorized, none issued and outstanding - - -
Common stock, $1.00 par value; 10,000,000 shares
authorized, 3,462,796 issued and outstanding in 1999,
3,458,597 at December 31,1998 and 3,458,002 at
March 31, 1998 3,463 3,459 3,458
Additional capital 4,443 4,393 4,361
Retained earnings 14,433 14,374 14,300
----------------- ------------------ ----------------
Total shareholders' equity 22,339 22,226 22,119
----------------- ------------------ ----------------
Total liabilities and shareholders' equity $ 42,026 $ 40,088 $ 43,516
================= ================== ================
</TABLE>
2
<PAGE>
<TABLE>
ESKIMO PIE CORPORATION
Condensed Consolidated Statements of Cash Flows (Unaudited)
<CAPTION>
For the three months ended March 31, 1999 1998
- ------------------------------------------------------------------------------------------- ------------------- -------------------
(In thousands)
<S> <C> <C>
Operating activities
Net income $ 232 $ 201
Adjustments to reconcile net income to net cash
used in operating activities:
Depreciation and amortization 614 626
Change in deferred income taxes and other assets (3) (80)
Change in postretirement benefits and other liabilities (174) (70)
Change in receivables (2,070) (3,559)
Change in inventories and prepaid expenses (242) (96)
Change in accounts payable and accrued expenses 2,351 2,244
------------------- -------------------
Net cash provided by (used in) operating activities 708 (734)
Investing activities
Capital expenditures (147) (376)
Proceeds from disposal of fixed assets 401 -
Other 18 87
------------------- -------------------
Net cash provided by (used in) investing activities 272 (289)
Financing activities
Borrowings 3,800 -
Redemption of convertible subordinated notes (3,800) -
Principal payments on long term debt (329) (329)
Cash dividends (173) (171)
------------------- -------------------
Net cash used in financing activities (502) (500)
------------------- -------------------
Change in cash and cash equivalents 478 (1,523)
Cash and cash equivalents at the beginning of the year 530 3,353
------------------- -------------------
Cash and cash equivalents at the end of the quarter $ 1,008 $ 1,830
=================== ===================
</TABLE>
3
<PAGE>
ESKIMO PIE CORPORATION
Notes to Condensed Consolidated Financial Statements
NOTE A - SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation: The Company's business is highly seasonal which generally
results in a higher level of sales and certain related advertising and sales
promotion expenses preceding and during the summer. In the opinion of
management, the accompanying unaudited condensed consolidated financial
statements reflect all adjustments (consisting of only normal recurring
accruals) necessary for a fair presentation of the Company's financial position
as of March 31, 1999 and its results of operations for the three months ended
March 31, 1999 and 1998. The results of operations for any interim period are
not necessarily indicative of results for the full year. These financial
statements should be read in conjunction with the financial statements and notes
thereto contained in the Company's 1998 Annual Report.
<TABLE>
NOTE B - INVENTORIES Inventories are classified as follows:
<CAPTION>
- ------------------------------------------------ -------------------------- ------------------------ -----------------------
As of March 31, 1999 December 31, 1998 March 31, 1998
- ------------------------------------------------ -------------------------- ------------------------ -----------------------
(In thousands)
<S> <C> <C> <C>
Finished goods $ 3,471 $ 3,294 $ 3,131
Raw materials and packaging supplies 2,986 2,642 2,562
---------- --------- ----------
Total FIFO inventories 6,457 5,936 5,693
LIFO reserves (1,039) ( 1,039) (931)
---------- --------- ----------
$ 5,418 $ 4,897 $ 4,762
========== ========= ==========
- ------------------------------------------------ -------------------------- ------------------------ -----------------------
NOTE C - EARNINGS PER SHARE
The following table sets forth the computation of earnings per share:
<CAPTION>
- ----------------------------------------------------------------------------- ------------------------- ----------------------
For the three months ended March 31, 1999 1998
- ----------------------------------------------------------------------------- ------------------------- ----------------------
Net income $ 232,000 $ 201,000
========= =========
Weighted average number of common shares outstanding 3,462,796 3,458,002
Dilutive effect of stock options 6,589 5,105
--------- ---------
Weighted average number of common shares outstanding
assuming potential dilution 3,469,385 3,463,107
========= ---------
Basic earnings per share $0.07 $0.06
===== =====
Earnings per share - assuming dilution $0.07 $0.06
===== =====
- ----------------------------------------------------------------------------- ------------------------- ----------------------
</TABLE>
Options to purchase 193,156 shares in 1999 and 202,316 in 1998 were not
considered for their dilutive effect because the exercise price of the options
exceeded the average market price for the respective year, and as such, the
effect would be anti-dilutive. The effect of the assumed conversion of the
previously issued convertible subordinated notes was also excluded from the
earnings per share calculations as the assumed conversion would also have been
anti-dilutive.
4
<PAGE>
<TABLE>
NOTE D - BUSINESS SEGMENTS
<CAPTION>
- ------------------------------------------------------- ------------ --------------- ----------------- ----------- ------------
National
Business Segments Brands Flavors Foodservice Other Totals
- ------------------------------------------------------- ------------ --------------- ----------------- ----------- ------------
Three months ended March 31, 1999
<S> <C> <C> <C> <C> <C>
Sales $10,558 $ 2,916 $ 2,113 $ 542 $ 16,129
======= ======= ======= ========= ========
Segment profitability $ 1,952 $ 601 $ 447 $ (35) $ 2,965
Selling, general and administrative expenses (2,143)
Expense from restructuring activities (314)
Interest income and expense - net (140)
Income before income taxes $ 368
- ------------------------------------------------------- ------------ --------------- ------------- --------------- ------------
Three months ended March 31, 1998
Sales $11,024 $ 2,796 $ 1,813 $ 398 $ 16,031
======= ======= ======== ========= ========
Segment profitability $ 1,955 $ 509 $ 538 $ (134) $ 2,868
Selling, general and administrative expenses (2,418)
Interest income and expense - net (131)
Income before income taxes $ 319
- ------------------------------------------------------- ------------ --------------- ------------- --------------- ------------
</TABLE>
NOTE E - RESTRUCTURING EXPENSES
In March 1999, the Company discontinued certain non-core manufacturing
operations and as a result, terminated the employment of seven production
employees at its Bloomfield, New Jersey packaging plant. As a result, the
Company incurred related severance costs of approximately $104,000, most of
which will be paid in the second quarter of 1999.
Also included in Expense from Restructuring Activities is $210,000 of
incremental costs (primarily third party professional service fees) specifically
associated with the Company's previously announced decision to explore a full
range of strategies to enhance shareholder value.
NOTE F - FINANCING ARRANGEMENTS
As partial consideration in connection with the 1994 acquisition of Sugar Creek
Foods, the Company issued $3,800,000 in convertible subordinated notes to the
former Sugar Creek Foods' shareholders. These notes became due in February 1999
and were refinanced on a long term basis (through April 2000) under the
Company's $10,000,000 committed line of credit.
5
<PAGE>
ESKIMO PIE CORPORATION
Management's Discussion and Analysis of Financial Condition
and Results of Operations
Eskimo Pie Corporation markets a broad range of frozen novelties, ice
cream and sorbet products under the Eskimo Pie, RealFruit, Welch's, Weight
Watchers Smart Ones, SnackWell's and OREO brand names. These nationally branded
products are generally manufactured by a select group of licensed dairies who
purchase the necessary flavors, ingredients and packaging directly from the
Company. Eskimo Pie Corporation also manufactures soft serve yogurt and premium
ice cream products for sale to the foodservice industry. The Company also sells
a full line of quality flavors and ingredients for use in private label dairy
products in addition to the national brands it licenses.
RESULTS OF OPERATIONS
During the first quarter of 1999, net income was $232,000 or $0.07 per
share on sales of $16.1 million. These results are a slight improvement over
first quarter 1998 net income of $201,000 ($0.06 per share) and sales of $16.0
million.
The 1999 results, however, include restructuring charges of
approximately $314,000 which, after related tax effects, reduced net income by
$198,000 or $0.06 per share. The restructuring charges consist of severance
costs associated with the discontinuance of certain non-core and unprofitable
manufacturing operations in the Company's Packaging division and expenses
incurred in connection with the Company's previously announced consideration of
strategic alternatives (additional discussions regarding both of these items are
provided below). Exclusive of the restructuring charges, net income would have
been $430,000 ($0.12 per share) or approximately double the 1998 results.
It is not the Company's intent to imply that alternate measures of
performance are more meaningful than net income as determined in accordance with
generally accepted accounting principles. Management believes, however, that
investors should consider the effects of the restructuring activities as they
assess the results of the Company's on-going operations.
Net Sales and Gross Profit
On an absolute dollar basis, first quarter 1999 sales were consistent
with those in 1998. However, sales of Eskimo Pie brand products in the licensing
and Foodservice businesses increased by 9.7% and, when coupled with the
increased licensing fees discussed below, offset declines in the sales of other
licensed brands. Licensed Eskimo Pie brand sales increased 7.1% largely as a
result of the Company's initiatives to improve retail distribution in the
populous Northeast markets. Foodservice sales continued the trend noted in the
second half of 1998 and increased 16.6% as a result of successful efforts to
focus on high volume, national foodservice operators. The Eskimo Pie licensed
and Foodservice businesses provide higher gross margins than most of the
Company's other businesses and, as such, a shift in the Company's sales mix
towards these businesses improves the Company's overall gross margin. The
Company believes these trends are encouraging given the recently announced
decision to implement a growth and restructuring plan focused on the core Eskimo
Pie brand within the licensing and Foodservice businesses.
Sales and gross margin were also favorably affected by quarterly
licensing fees recognized as a result of new licensing agreements entered into
with the Company's six largest customers effective January 1, 1999. The new
licensing fees increased sales by $220,000 during the first quarter of 1999 and
account for approximately half of the increase in gross margin, as a percent of
sales.
6
<PAGE>
Expenses and Other Income
As compared with the prior year, advertising and sales promotion
expenses increased in both an absolute amount and as a percent of sales. This
increase reflects the Company's intent to increase spending on the core Eskimo
Pie brand as well as the additional costs to introduce two Welch's brand
novelties.
Selling, general and administrative expenses continue to decline as a
result of management's initiatives to control these costs.
During the first quarter of 1999, the Company continued its efforts
associated with the consideration of strategies available to enhance shareholder
value (the results of which are discussed below). Included in "Expense from
Restructuring Activities" is $210,000 of incremental costs (primarily third
party professional service fees) specifically associated with this process. The
Company currently anticipates approximately $500,000 of additional 1999 expenses
associated with this process and other restructuring activities although the
gains associated with the anticipated sale of certain non-core assets should
exceed these costs.
In March 1999, the Company discontinued certain non-core manufacturing
operations and terminated the employment of seven production employees at its
Bloomfield, New Jersey packaging plant who were not involved in the production
of products for the Company's licensing businesses. As a result, the Company
incurred related severance costs of approximately $104,000, most of which will
be paid in the second quarter of 1999. The Company does not anticipate any
significant on-going financial impact from the initial restructuring of the
Company's Packaging division.
LIQUIDITY, CAPITAL RESOURCES AND OTHER MATTERS
The Company's financial position remains strong. Increased collection
of accounts receivable and the sale of certain fixed assets previously leased to
one of its licensee customers improved the Company's cash flow and current ratio
at March 31, 1999 as compared with the same period in 1998. Scheduled payments
towards long term debt have also reduced debt by $1.3 million over the past year
and significantly improved the Company's debt to equity position.
The Company's convertible subordinated notes became due in February 1999
and were refinanced on a long term basis under the Company's $10 million
committed line of credit which is available through April 2000. The Company
generally seeks a one year extension of the line of credit during the second
quarter of each year and is currently in negotiation with several parties to
obtain an extension for the line of credit and/or other long term financing of
the $3.8 million borrowing used to redeem the convertible subordinated notes.
The Company believes that the annual cash generated from operations and
funds available under its credit agreements will provide the Company with
sufficient funds and the financial flexibility to support its ongoing business,
strategic objectives and debt repayment requirements.
FUTURE PLANS AND FINANCIAL EXPECTATIONS
As previously announced, the Company recently concluded the formal
process, begun in the fourth quarter of 1998, to explore the full range of
strategies available to enhance long term shareholder value. During its review,
the Company, along with its financial advisor, held detailed discussions with
numerous third parties concerning potential business combinations and reviewed
various restructuring and recapitalization strategies.
7
<PAGE>
After careful analysis and consideration of the strategic alternatives
available to the Company, the Company's Board of Directors authorized management
to implement an aggressive growth and restructuring plan focused on the Eskimo
Pie brand within the licensing and foodservice businesses. The growth and
restructuring plan includes, among other actions, 1) significantly increased
investments in advertising, trade promotion and product development surrounding
the core Eskimo Pie brand, 2) the sale of certain non-core assets at prices
accretive to the long term value of the Company and 3) additional overhead and
staff reductions.
While the Company remains open to considering additional viable
alternatives which may become available, management believes that the success of
the Company and improvements in long term shareholder value are highly dependent
upon the growth of the Eskimo Pie brand. Focused Eskimo Pie brand initiatives
will require additional advertising and promotional spending in 2000 which is
expected to lead to increased sales in the second half of 2000 and beyond. Cash
provided from the sale of non-core assets and savings from a leaner operating
structure are expected to provide the necessary funding for increased investment
in the Eskimo Pie businesses.
As the Company begins to implement its growth and restructuring plan,
management currently projects that 1999 annual sales will approximate $68
million, gross margin will approach 42% and selling, general and administrative
expenses will remain consistent with 1998 levels. Based on these projections,
1999 earnings, before the effects of any non-recurring gains or losses from
restructuring activities, are expected to increase by 65 to 75% on an annual
basis over 1998 results.
IMPACT OF YEAR 2000
Recently, considerable attention has been given to the Year 2000 (Y2K)
Problem which stems from the inability of certain computerized applications and
devices (hardware, software and equipment) to process dates after December 31,
1999. The Company's efforts to address the Y2K Problem consist of three main
components; the implementation of a new management information system, review of
other internal systems and equipment, and inquiries of external trading partners
(key licensees, customers, suppliers, service providers).
The Company continues with the implementation of a new management
information system that will, among other benefits which extend well beyond Y2K
Problems, address the Company's Y2K Problems relating to financial and
operational management information. The new information system is installed and
implementation is complete in over half of the Company's operations. The
remaining operations are expected to be implemented by mid-1999. Project
expenditures relating to the new management information system approximate
$1,600,000 through March 31, 1999 and the Company expects to incur an additional
$250,000 to complete the project. The costs of the new management information
system have been capitalized under the provisions of the AICPA's Statement of
Position 98-1 and are being amortized to expense over the expected useful life.
The Company is also in the process of reviewing other internal systems
and equipment to assess their exposure to the Y2K Problem. Most of the Company's
plant and office equipment is mechanical in nature and therefore, is not be
subject to the Y2K Problem. The Company expects to complete its review of other
internal systems and equipment during the second quarter of 1999. At this time,
management does not anticipate any material costs to remedy Y2K Problems
associated with other internal systems and equipment, however, no guarantee can
be made that problems will not be identified that require material costs to
remedy. The Company will develop remedies and contingent plans to address any
problems when, and if, they are identified.
8
<PAGE>
Finally, the Company made inquiries with its external trading partners
to assess their readiness to the Y2K Problem. Such inquiries are resulting in
the collection and appraisal of voluntary statements made by external parties
with limited opportunity for independent factual verification. Although the
Company has undertaken reasonable efforts to determine the readiness of its
trading partners, no assurance can be given to the validity or reliability of
information obtained. During the remainder of the year, the Company expects to
develop initial contingency plans to address the potential failure of its key
trading partners to be Y2K compliant. Management believes, based on past
experience, that it could locate suitable replacements if any partners were lost
due to Y2K Problems. However, the Company can not reliably predict the readiness
of all of its partners (as well as the readiness of their respective external
trading partners) and as such, the Company could be affected by the disruption
of other business interests outside of the Company's control.
The Company believes its approach to the Y2K Problem is adequate to
maintain the continuation of its business operations with limited financial or
operational impact. However, the Y2K Problem has many aspects and potential
consequences, some of which may not be reasonably anticipated, and there can be
no assurance that unforeseen consequences will not arise.
FORWARD LOOKING STATEMENTS
Statements contained in this Report on Form 10-Q regarding the
Company's future plans and projected performance are forward looking statements
within the meaning of federal securities laws and are based upon management's
current expectations and beliefs about future events and their effect upon
Eskimo Pie Corporation. There can be no assurance that future developments will
mirror those currently anticipated by management. These forward looking
statements involve risks and uncertainties including but not limited to the
highly competitive nature of the frozen dessert market and the level of consumer
interest in the Company's products, product costing, the weather, the
performance of management including management's ability to implement its plans
as contemplated, the Company's relationships with its licensees and licensors,
the impact of Year 2000 matters and government regulation. The risks and
uncertainties are further discussed in the Company's Annual Report on Form 10-K
as filed with the Securities and Exchange Commission for the year ended December
31, 1998. Actual results may vary materially from those included herein and the
Company assumes no responsibility for updating these statements.
9
<PAGE>
PART II, OTHER INFORMATION
Item 5. Other Information
As previously announced, the Company's Annual Meeting of Shareholders,
originally scheduled to be held on May 12, 1999, has been postponed and
rescheduled to be held on September 8, 1999. The Company will be furnishing
revised proxy materials to shareholders of record as of the new record date to
be established in connection with the rescheduled meeting. Under the Company's
Bylaws, in order for a shareholder proposal to be properly brought before the
rescheduled meeting, notice of intent to bring such a proposal before the
meeting must be delivered to the Company on or before June 9, 1999 in accordance
with the procedures set forth in the Bylaws. A copy of the Bylaws, as currently
in effect, is filed herewith as Exhibit 3.2. Any shareholder desiring a copy of
the Bylaws will be furnished one without charge upon written request to the
Secretary.
In accordance with Rule 14a-8 under the Securities Exchange Act of
1934, the Board of Directors of the Company need not include an otherwise
appropriate shareholder proposal in its revised proxy statement or new form of
proxy for the rescheduled meeting unless the proposal is received by the
Secretary of the Company at the Company's principal place of business on or
before June 9, 1999.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits:
3.2 Amended and Restated Bylaws, as last amended effective
April 8, 1999, filed herewith.
27. Financial Data Schedules, filed herewith.
b. Reports on Form 8-K:
Current Report on Form 8-K dated April 9, 1999 - Item 5. Other
Events, to file the Company's press release announcing the
conclusion of the Company's consideration of strategic options and
the results thereof.
Current Report on Form 8-K dated April 16, 1999 - Item 5. Other
Events, to file the Company's press release announcing first
quarter 1999 results and the postponement of the Company's Annual
Meeting of Shareholders.
10
<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.
ESKIMO PIE CORPORATION
Date: May 14, 1999 By /s/ David B. Kewer
-------------------
David B. Kewer
President and Chief Executive Officer
Date: May 14, 1999 By /s/ Thomas M. Mishoe, Jr.
--------------------------
Thomas M. Mishoe, Jr.
Chief Financial Officer, Vice President,
Treasurer and Corporate Secretary
Date: May 14, 1999 By /s/ William T. Berry, Jr.
--------------------------
William T. Berry, Jr.
Assistant Vice President, Controller
11
Exhibit 3.2
Amended and Restated Bylaws
of
ESKIMO PIE CORPORATION
(as last amended effective 4/8/99)
ARTICLE I - Stock
1. Certificates for Stock. Certificates of Stock shall be issued in
numerical order, be signed by the Chairman of the Board of Directors, the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, and sealed with the corporate seal;
provided, that where any Certificate of Stock is signed by a duly appointed and
authorized Transfer Agent or Registrar the signatures of the Chairman of the
Board of Directors, the President, Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer may be facsimile, engraved or
printed, and the seal of the corporation on any such Certificate of Stock may be
facsimile, engraved or printed. 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 or she were such officer, transfer agent or registrar at the date of
issue.
2. Transfers of Stock. Transfers of stock shall be made only upon the
books of the corporation, and only by the person named in the certificate or by
attorney, lawfully constituted in writing, and only upon surrender of the
certificate therefor. The directors may by resolution make reasonable
regulations for the transfers of stock. To the extent that any provision of the
Rights Agreement between the corporation and First Union National Bank, as
Successor Rights Agent, dated as of January 21, 1993, is deemed to constitute a
restriction on the transfer of any securities of the corporation, including,
without limitation, the Rights, as defined therein, such restriction is hereby
authorized by the bylaws of the corporation.
3. Holders of Record. Registered shareholders only shall be entitled to
be treated by the corporation as the holders in fact of the stock standing in
their respective names and the corporation shall not be bound to recognize any
equitable or other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of Virginia.
4. Lost or Destroyed Certificates. In case of loss or destruction of
any certificate of stock another may be issued in its place upon satisfactory
proof of such loss or destruction and upon the giving of a satisfactory bond of
indemnity to the corporation, all as determined either expressly by the
directors or pursuant to general authority granted by them.
ARTICLE II - Shareholders' Meetings
1. Place of Meetings. Meetings of the shareholders shall be held at
such place, within or outside the Commonwealth of Virginia, as the Board of
Directors may determine.
2. Annual Meeting. The annual meeting of the shareholders of the
corporation, for the election of directors to succeed those whose terms expire,
and for the transaction of such other business as may come before the meeting,
<PAGE>
shall be held on the first Wednesday in May of each year, if not a legal
holiday, and if a legal holiday, then on the first business day following, at
ten o'clock in the forenoon, or on such other date and at such other time as may
be fixed by the Board of Directors. If the annual meeting of the shareholders be
not held as herein prescribed, the election of directors may be held at any
meeting thereafter called pursuant to these Bylaws.
3. Special Meetings. Special meetings of the shareholders may be called
by the Chairman of the Board, if one is elected, or the President or the Board
of Directors.
4. Notice of Meetings. Written notice of the place, date and hour of
the annual and of all special meetings of the shareholders and, in the case of
special meetings, of the purpose or purposes for which such special meeting is
called, shall be given in the manner specified in Section 1 of Article VII of
these Bylaws not less than ten (10) nor more than sixty (60) days prior to the
meeting (except that notice of a shareholders' meeting to act on an amendment of
the articles of incorporation, a plan of merger or share exchange, a proposed
sale of assets other than in the ordinary course of business, or the dissolution
of the corporation shall be given not less then twenty-five nor more than 60
days before the meeting date), to each shareholder of record of the corporation
entitled to vote thereat. Business transacted at all special meetings shall be
confined to the purposes stated in the notice.
5. Quorum. A quorum at any annual or special meeting of the
shareholders shall consist of shareholders holding a majority of the capital
stock of this corporation outstanding and entitled to vote thereat, represented
either in person or by proxy, except as otherwise specifically provided by law
or in the Articles of Incorporation.
6. Adjourned Meetings. A properly called shareholders' meeting may be
adjourned from time to time by a majority in interest of those present in person
or by proxy and entitled to vote thereat. At any such adjourned meeting at which
a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more
than 120 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
shareholder of record entitled to vote at the meeting; otherwise, no notice of
such adjourned meeting need be given if the time and place thereof are announced
at the meeting at which the adjournment is taken. The absence from any meeting
of shareholders holding the number of shares of stock of the corporation
required by law, the Articles of Incorporation or these Bylaws for action upon
any given matter shall not prevent action at such meeting upon any other matter
or matters which may properly come before the meeting, if there shall be present
thereat in person or by proxy shareholders holding the number of shares of stock
of the corporation required in respect of such other matter or matters.
7. Inspectors of Election. In advance of any meeting of shareholders,
the Chairman of the Board, President, Treasurer or Secretary of the corporation
shall appoint one or more inspectors of election to serve at such meeting and to
make a written report with respect thereto. In addition, any such officer may,
but shall not be required to, designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of shareholders, the presiding officer at
such meeting shall appoint one or more inspectors to act at the meeting. Each
inspector shall discharge his or her duties in accordance with applicable law
and shall, before entering upon the discharge of his or her duties, take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
8. List of Shareholders. A complete list of the shareholders entitled
to vote at each annual or special meeting of the shareholders of the
corporation, arranged in alphabetical order, showing the address of record of
each and the number of voting shares held by each, shall be prepared by the
Secretary or the transfer agent, who shall have charge of the stock ledger, and
2
<PAGE>
at least ten (10) days before every such meeting shall be kept on file at the
principal office of the corporation or at the office of its transfer agent or
registrar, and shall, during the usual hours for business, be open to the
examination of any shareholder in accordance with Virginia law, and during the
whole time of said meeting be open to the examination of any shareholder for the
purposes thereof.
9. Voting. Subject to the provisions of Section 10 of this Article II
of these Bylaws, each holder of stock of a class which is entitled to vote in
any election or on any other questions at any annual or special meeting of the
shareholders shall be entitled to one vote, in person or by written proxy, for
each share of such class held of record. Except where, and to the extent that, a
different percentage of votes and/or a different exercise of voting power is
prescribed by law, the Articles of Incorporation or these Bylaws, the following
applies:
(i) Any corporate action, except the election of directors, an
amendment or restatement of the Articles of Incorporation, a merger, a
statutory share exchange, sale or other disposition of all or
substantially all the corporation's assets otherwise than in the usual
and regular course of business, or dissolution shall, for each voting
group entitled to vote on the matter, be approved at a meeting at which
a quorum of the voting group is present if the votes cast in favor of
the action exceed the votes cast against the action;
(ii) Directors shall be elected by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at
which a quorum is present; and
(iii) An amendment or restatement of the Articles of
Incorporation, a merger, statutory share exchange, sale or other
disposition of all or substantially all the corporation's assets
otherwise than in the usual and regular course of business, or
dissolution shall be approved by a majority of the votes present and
entitled to vote by each voting group entitled to vote on the
transaction at a meeting at which a quorum of the voting group is
present.
10. Determination of Shareholders of Record. The share transfer books
may be closed by order of the board of directors for not more than 70 days for
the purpose of determining shareholders entitled to notice of or to vote at any
meeting of the shareholders or any adjournment thereof (or entitled to receive
any distribution or in order to make a determination of shareholders for any
other purpose). In lieu of closing such books, the board of directors may fix in
advance as the record date for any such determination a date not more than 70
days before the date on which such meeting is to be held (or such distribution
made or other action requiring such determination is to be taken). If the books
are not thus closed or the record date is not thus fixed, the record date shall
be the close of business on the day before the effective date of the notice to
shareholders.
11. Matters to be Brought Before Shareholders' Meetings. Except as
otherwise provided by law, at any annual or special meeting of shareholders only
such business shall be conducted as shall have been properly brought before the
meeting in accordance with this Section.
In order to be properly brought before the meeting, such business must
have either been (i) specified in the written notice of the meeting (or any
supplement thereto) given to shareholders of record on the record date for such
meeting by or at the direction of the Board of Directors, (ii) brought before
the meeting at the direction of the Board of Directors or the officer presiding
over the meeting, or (iii) specified in a written notice given by or on behalf
of a shareholder of record on the record date for such meeting entitled to vote
thereat or a duly authorized proxy for such shareholder, in accordance with all
the following requirements.
3
<PAGE>
A notice referred to in clause (iii) hereof must be delivered
personally to, or mailed to and received at, the principal executive office of
the corporation, addressed to the attention of the Secretary, not more than ten
(10) days after the date of the initial notice referred to in clause (i) hereof,
in the case of business to be brought before a special meeting of shareholders,
and not less than thirty (30) days prior to the first anniversary date of the
initial notice referred to in clause (i) hereof of the previous year's annual
meeting, in the case of business to be brought before an annual meeting of
shareholders, except that any such notice given by or on behalf of a shareholder
beneficially owning 15% or more of the corporation's common stock must be so
delivered or received not later than April 23 of the year in which the annual
meeting is to be held and further provided, however, that such notice shall not
be required to be given more than ninety (90) days prior to an annual meeting of
shareholders. Such notice referred to in clause (iii) hereof shall set forth:
(a) a full description of each such item of business proposed
to be brought before the meeting;
(b) the name and address of the person proposing to bring such
business before the meeting;
(c) the class and number of shares held of record, held
beneficially and represented by proxy by such person as of the record
date for the meeting (if such date has been made publicly available)
and as of the date of such notice;
(d) if any item of such business involves a nomination for
director, all information regarding each such nominee that would be
required to be set forth in a definitive proxy statement filed with the
Securities and Exchange Commission pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended, or any successor thereto
and the written consent of each such nominee to serve if elected; and
(e) all other information that would be required to be filed
with the Securities and Exchange Commission if, with respect to the
business proposed to be brought before the meeting, the person
proposing such business was a participant in a solicitation subject to
Section 14 of the Securities Exchange Act of 1934, as amended, or any
successor thereto.
Any matter brought before a meeting of shareholders upon the affirmative
recommendation of the Board of Directors where such matter is included in the
written notice of the meeting (or any supplement thereto) and accompanying proxy
statement given to shareholders of record on the record date for such meeting by
or at the direction of the Board of Directors is deemed to be properly before
the shareholders for a vote and does not need to be moved or seconded from the
floor of such meeting. No business shall be brought before any meeting of
shareholders of the corporation otherwise than as provided in this Section.
ARTICLE III - Board of Directors
1. Number; Term of Office; Powers. The business and affairs of the
corporation shall be under the direction of a Board of Directors, consisting of
a minimum of five (5) and a maximum of eight (8) persons, with the number to be
fixed or changed from time to time, within such minimum and maximum range, by
resolution of the Board of Directors. In the absence of a specific resolution to
the contrary, the number of directors shall be fixed at the number of persons
4
<PAGE>
nominated by the Board of Directors for election as directors in connection with
the annual meeting of shareholders. Directors shall be elected for one year, and
shall hold office until their successors are elected and qualified. Directors
need not be shareholders. In addition to the power and authority expressly
conferred upon them by the Bylaws and the Articles of Incorporation, the Board
of Directors may exercise all such powers of the corporation and do all such
lawful acts and things as are not by law or by the Articles of Incorporation or
by these Bylaws directed or required to be exercised or done by the
shareholders.
2. Eligibility to Serve. No person shall be eligible to stand for
election or re-election to the Board of Directors in the corporation's fiscal
year in which such person shall have his or her 70th birthday, except that any
director serving at January 1, 1996 who was then 65 years old or older shall
continue to be eligible to serve until age 72.
3. Resignations. Any director may resign at any time by giving written
notice of resignation to the Board of Directors, to the Chairman of the Board of
Directors or to the Secretary of the corporation. Any such resignation shall
take effect at the time specified therein, or if the time be not specified
therein, the upon receipt thereof. The acceptance of such resignation shall not
be necessary to make it effective.
4. Vacancies. Except as otherwise specifically provided by law, the
Articles of Incorporation or these Bylaws, all vacancies in the Board of
Directors, whether caused by resignation, death, increase in the number of
authorized directors or otherwise, may be filled by a majority of the Board of
Directors then in office, even though less than a quorum, or by the shareholders
at a special meeting. A director thus elected to fill any vacancy shall hold
office until the next annual meeting of shareholders and until a successor is
elected and qualified.
5. Annual Meeting. The annual meeting of the Board of Directors, for
the election of officers and the transaction of other business, shall be held on
the same day and at the same place as, and as soon as practicable following, the
annual meeting of shareholders, or at such other date, time or place within or
outside the Commonwealth of Virginia as the directors may by resolution
designate.
6. Regular Meetings. Regular meetings of the Board of Directors shall
be held at such times, and at such place within or outside the Commonwealth of
Virginia, as the Board of Directors may from time to time by resolution
designate.
7. Special Meetings. Special meetings of the directors may be called at
any time by the Chairman of the Board of Directors or the President; or by the
Secretary upon written request of one-third of the directors, such request
stating the purpose for which the meeting is to be called. Special meetings
shall be held at the principal office of the corporation or at such office
within or outside the Commonwealth of Virginia as the directors may from time to
time designate.
8. Notice of Meetings. Except as otherwise required by law or a
resolution of the Board of Directors, notice of special meetings of the Board of
Directors or of any committee of the Board of Directors shall be given to each
director or to each committee member, as the case may be, by mail at least two
days before the day on which the meeting is to be held or by personal delivery,
word-of-mouth, telephone, telegraph, radio, cable or other comparable means at
least six hours before the time at which the meeting is to be held. Such notice
shall state the time and place of such meeting, but need not state the purposes
thereof unless otherwise required by law. No notice need be given of the annual
meeting of directors or of regular meetings of directors or of committees of the
Board of Directors, provided that, whenever the time or place of such meetings
shall be fixed or changed, notice of such action shall be given promptly to each
director or to each committee member, as the case may be, who shall not have
been present at the meeting at which such action was taken.
5
<PAGE>
9. Quorum; Adjourned Meetings; Required Vote. A majority of the Board
of Directors as constituted from time to time shall be necessary and sufficient
at all meetings to constitute a quorum for the transaction of business. In the
absence of a quorum, a majority of those present may adjourn the meeting from
time to time and the meeting may be held as adjourned without further notice
provided a quorum be present at such adjourned meeting. Unless otherwise
specifically provided by the Articles of Incorporation or law, the act of a
majority of the directors present at any properly convened meeting at which
there is a quorum shall be the act of the Board of Directors.
10. Committees. Standing or Temporary Committees may be appointed from
their own number by the Board of Directors from time to time, and the directors
may from time to time vest such committees with such powers as the directors may
see fit, subject to such conditions as the directors may prescribe or as may be
prescribed by law. All committees shall consist of two or more directors. The
term of office of the members of each committee shall be as fixed from time to
time by the Board of Directors; provided, however, that any committee member who
ceases to be a director shall ipso facto cease to be a committee member. Any
member of any committee may be removed at any time with or without cause by the
Board of Directors, and any vacancy in any committee may be filled by the Board
of Directors. All committees shall keep regular minutes of their transactions
and shall cause them to be recorded in books kept for that purpose in the office
of the corporation, and shall report the same to the Board of Directors at their
regular meetings. Subject to this Section 9 and except as otherwise determined
by the Board of Directors, each committee may make rules for the conduct of its
business.
11. Compensation. Directors, as such, may receive, pursuant to
resolution of the Board of Directors, fixed fees, other compensation and
expenses for their services as directors, including, without limitation,
services as chairmen or as members of committees of the directors; provided,
however, that nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
12. Consents in Writing. Any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board of Directors or 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.
13. Participation by Conference Telephone. Members of the Board of
Directors or of any committee may participate in a meeting of such Board of
Directors or committee, as the case may be, by means of 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 by such means
shall constitute presence in person at the meeting.
ARTICLE IV - Officers
1. Officers. The officers of the corporation shall be a Chairman of the
Board of Directors, a President, one or more Vice Presidents, one or more of
whom may be an Executive Vice President, a Secretary, a Treasurer, and such
other officers and assistant officers as the Board of Directors shall deem
appropriate, all of whom shall be elected annually by the Board of Directors.
One person may hold more than one office.
2. Chairman of the Board. The Chairman of the Board of Directors shall
preside at all meetings of shareholders and directors, shall be the chief
executive officer of the corporation and, subject to the direction of the Board
of Directors, shall have general supervision and management of the business and
affairs of the corporation and shall perform all such other duties as are
incident to such office or are properly required by the Board of Directors.
6
<PAGE>
3. President. The President shall be the chief operating officer of the
corporation and shall, subject to the direction of the Board of Directors and
the Chairman of the Board of Directors, direct and supervise the business and
affairs of the corporation and shall perform all such other duties as are
incident to such office or as are properly required by the Board of Directors or
the Chairman of the Board of Directors. During the absence or disability of the
Chairman of the Board of Directors, the President shall exercise all powers and
discharge all the duties of the Chairman of the Board of Directors.
4. Executive Vice Presidents and Other Vice Presidents. Each of the
Executive Vice Presidents and other Vice Presidents shall perform such duties as
are properly required by the Board of Directors, the Chairman of the Board of
Directors or the President.
5. Treasurer. The Treasurer shall have the custody of all moneys and
securities of the corporation and shall keep or cause to be kept accurate
accounts of all money received or payments made in books kept for that purpose.
The Treasurer shall deposit or cause to be deposited funds of the corporation in
accordance with Article V, Section 2 of these Bylaws and shall disburse the
funds of the corporation by checks or vouchers as authorized by the Board of
Directors. The Treasurer shall keep or cause to be kept all books of accounts
and accounting records of the corporation and shall keep and maintain, or cause
to be kept and maintained, adequate and correct accounts of the properties and
business transactions of the corporation. The Treasurer shall prepare or cause
to be prepared appropriate financial statements for the corporation and shall
have such other powers and perform such other duties as may be incident to the
office of Treasurer.
6. Secretary. The Secretary shall keep the minutes of the meetings of
the shareholders and of the Board of Directors, and, when required, the minutes
of the meetings of the committees, and shall be responsible for the custody of
all such minutes. The Secretary shall be responsible for the custody of the
stock ledger and documents of the corporation. The Secretary shall have custody
of the corporate seal and shall affix and attest such seal to any instrument
whose execution under seal shall have been duly authorized and enjoy all other
powers incident to the office of Secretary.
7. Other Officers and Assistant Officers. All other officers and
assistant officers shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors, the Chairman of the
Board of Directors or the President.
8. Term of Office; Vacancies. Each officer shall hold office until the
annual meeting of the Board of Directors following the end of the term of the
Board by which such officer is elected, except in the case of earlier death,
resignation or removal. Vacancies in any office arising from any cause may be
filled by the directors at any regular or special meeting.
9. Removal. Any officer elected or appointed by the Board of Directors
may be removed at any time, with or without cause, by the Board of Directors.
10. Proxies. Unless otherwise prescribed by the Board of Directors, the
Chairman of the Board of Directors or the President may from time to time
himself, by such proxy or proxies, attorney or attorneys, agent or agents of the
corporation as he shall designate in the name and on behalf of the corporation,
cast the votes to which the corporation may be entitled as a shareholder or
otherwise in any other corporation, at meetings, or consent in writing to any
action by any such other corporation; and he may instruct the individual or
individuals so appointed as to the manner of casting such votes or giving such
consent, and execute or cause to be executed on behalf of the corporation such
written proxies, consents, waivers or other instruments as he may deem necessary
or desirable.
7
<PAGE>
ARTICLE V - Dividends and Finance
1. Dividends. Dividends may be declared to the full extent permitted by
law at such times as the Board of Directors shall direct.
2. Deposits; Withdrawals; Notes and Other Instruments. The moneys of
the corporation shall be deposited in the name of the corporation in such banks
or trust companies as shall be designated by, and shall be drawn out only by
check signed by, persons designated from time to time, by the Board of Directors
or by an officer of this corporation to whom the Board of Directors has
delegated such authority. All notes and other instruments for the payment of
money shall be signed or endorsed by officers or other person authorized from
time to time by the Board of Directors or by an officer of this corporation to
whom the Board of Directors has delegated such authority.
3. Fiscal Year. The fiscal year of the corporation shall date from the
first day of January in each year.
ARTICLE VI - Books and Records; Offices
1. Books and Records. The books, accounts and records of the
corporation, except as may be otherwise required by the laws of the Commonwealth
of Virginia, may be kept within or outside of the said State at such places as
the Board of Directors may from time to time appoint.
2. Offices. The corporation may have offices in the City of Richmond,
Virginia and at such other places as the Board of Directors may from time to
time designate or the business of the corporation may require.
ARTICLE VII - Notices
1. Notices. Whenever any provision of law or these Bylaws requires
notice to be given to any director, officer or shareholder, such notice may be
given in writing by mailing the same to such director, officer or shareholder at
his or her address as the same appears in the books of the corporation, unless
such shareholder shall have filed with the Secretary a written request that
notices intended for him or her be mailed to some other address, in which case
it shall be mailed to the address designated in such request. The time when the
same shall be mailed shall be deemed to be the time of the giving of such
notice. This section shall not be deemed to preclude the giving of notice by
other means if permitted by the applicable provision of law or these Bylaws.
2. Waivers of Notice. A waiver of any notice in writing, signed by a
shareholder or director, whether before or after the time stated in said waiver
for holding a meeting, shall be deemed equivalent to a notice required to be
given to any shareholder or director.
A shareholder's or director's attendance at or participation in a
meeting waives any required notice to him of the meeting unless he at the
beginning of the meeting or promptly upon his arrival objects to the holding of
the meeting or the transaction of business at the meeting and does not
thereafter vote for or assent to the action taken at the meeting.
ARTICLE VIII - Conflict of Interest
1. Interested Directors or Officers. 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 the directors or officers of the
corporation are directors or officers, or have a financial interest, shall be
8
<PAGE>
void or voidable solely for this reason, or solely because the director or
officer of the corporation 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, her or their votes are counted for such
purpose, if:
(i) the material facts of the transaction and the director's
or officer's interest are disclosed or known to the board of directors
or a committee of the board of directors, and the transaction was
authorized, approved or ratified by the affirmative vote of a majority
of the directors on the board of directors, or on the committee, who
have no direct or indirect personal interest in the transaction;
provided, however, that a transaction shall not be authorized, approved
or ratified by a single director; or
(ii) the material facts of the transaction and the director's
or officer's interest are disclosed to the shareholders entitled to
vote, and the transaction is authorized, approved or ratified by the
vote of a majority of the shares other than shares owned by or voted
under the control of a director or officer who has a direct or indirect
interest in the transaction; or
(iii) the transaction is fair to the corporation.
ARTICLE IX - Seal
1. Seal. The corporate seal of the corporation shall be a flat-face
circular die containing the name of the corporation, of which there may be any
number of counterparts or facsimiles, in such form as the Board of Directors
shall from time to time adopt.
ARTICLE X - Amendments
1. Amendments. These bylaws may be amended or repealed by the Board of
Directors except to the extent that: (i) this power is reserved exclusively to
the shareholders by law or the articles of incorporation; or (ii) the
shareholders in adopting or amending particular bylaws provide expressly that
the Board of Directors may not amend or repeal the same. These bylaws may be
amended or repealed by the shareholders even though the same also may be amended
or repealed by the Board of Directors.
9
<PAGE>
Article II, Section 11 of Bylaws as amended
4/8/99* (added language indicated by bold-face
blacklining)
RESOLVED THAT, it is in the best interest of the corporation
to amend Section 11 of Article II of the corporation's bylaws to read in its
entirety as follows:
11. Matters to be Brought Before Shareholders' Meetings. Except as
otherwise provided by law, at any annual or special meeting of shareholders only
such business shall be conducted as shall have been properly brought before the
meeting in accordance with this Section.
In order to be properly brought before the meeting, such business must
have either been (i) specified in the written notice of the meeting (or any
supplement thereto) given to shareholders of record on the record date for such
meeting by or at the direction of the Board of Directors, (ii) brought before
the meeting at the direction of the Board of Directors or the officer presiding
over the meeting, or (iii) specified in a written notice given by or on behalf
of a shareholder of record on the record date for such meeting entitled to vote
thereat or a duly authorized proxy for such shareholder, in accordance with all
the following requirements.
A notice referred to in clause (iii) hereof must be delivered
personally to, or mailed to and received at, the principal executive office of
the corporation, addressed to the attention of the Secretary, not more than ten
(10) days after the date of the initial notice referred to in clause (i) hereof,
in the case of business to be brought before a special meeting of shareholders,
and not less than thirty (30) days prior to the first anniversary date of the
initial notice referred to in clause (i) hereof of the previous year's annual
meeting, in the case of business to be brought before an annual meeting of
shareholders, EXCEPT THAT ANY SUCH NOTICE GIVEN BY OR ON BEHALF OF A SHAREHOLDER
BENEFICIALLY OWNING 15% OR MORE OF THE CORPORATION'S COMMON STOCK MUST BE SO
DELIVERED OR RECEIVED NOT LATER THAN APRIL 23 OF THE YEAR IN WHICH THE ANNUAL
MEETING IS TO BE HELD AND FURTHER provided, however, that such notice shall not
be required to be given more than ninety (90) days prior to an annual meeting of
shareholders. Such notice referred to in clause (iii) hereof shall set forth:
(a) a full description of each such item of business proposed
to be brought before the meeting;
(b) the name and address of the person proposing to bring such
business before the meeting;
(c) the class and number of shares held of record, held
beneficially and represented by proxy by such person as of the record
date for the meeting (if such date has been made publicly available)
and as of the date of such notice;
(d) if any item of such business involves a nomination for
director, all information regarding each such nominee that would be
required to be set forth in a definitive proxy statement filed with the
Securities and Exchange Commission pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended, or any successor thereto
and the written consent of each such nominee to serve if elected; and
(e) all other information that would be required to be filed
with the Securities and Exchange Commission if, with respect to the
business proposed to be brought before the meeting, the person
proposing such business was a participant in a solicitation subject to
Section 14 of the Securities Exchange Act of 1934, as amended, or any
successor thereto.
Any matter brought before a meeting of shareholders upon the affirmative
recommendation of the Board of Directors where such matter is included in the
written notice of the meeting (or any supplement thereto) and accompanying proxy
statement given to shareholders of record on the record date for such meeting by
or at the direction of the Board of Directors is deemed to be properly before
the shareholders for a vote and does not need to be moved or seconded from the
floor of such meeting. No business shall be brought before any meeting of
shareholders of the corporation otherwise than as provided in this Section.
- ------------------------------------------
* The added language was initially adopted by amendment on February 18, 1999 and
at that time contained a date of March 15, 1999 rather than the current date of
April 23, 1999. Before the most recent amendment of this provision on April 8,
1999, which is set forth herein, the March 15 date was further extended by
amendment on several occasions.
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