SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For quarter ended June 30, 1994
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission file number 0-14946
-------
ARMOR ALL PRODUCTS CORPORATION
- - -----------------------------------------------------------------
(Exact Name of Registrant as specified in its charter
DELAWARE 33-0178217
- - ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
6 Liberty, Aliso Viejo, California 92656
- - -----------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(714) 362-0600
- - -----------------------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at June 30, 1994
- - ----------------------------- ----------------------------
Common stock, $0.01 par value 21,173,986 shares
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION
==============================
Pages
-----
Consolidated Balance Sheets
June 30, 1994 and March 31, 1994 3
Consolidated Statements of Income
Three months ended June 30, 1994 and 1993 4
Consolidated Statements of Cash Flows
Three months ended June 30, 1994 and 1993 5
Financial Notes 6 - 7
Financial Review 8
PART II. OTHER INFORMATION
===========================
Item
- - ----
4 Submission of Matters to a Vote of Security Holders 9
6 Exhibits and Reports on Form 8-K 9
Index to Exhibits 11
PART 1. FINANCIAL INFORMATION
==============================
ARMOR ALL PRODUCTS CORPORATION
CONSOLIDATED BALANCE SHEETS
(unaudited)
June 30, March 31,
1994 1994
-------- --------
(in thousands)
ASSETS
- - ------
Current Assets
Cash and cash equivalents $ 53,370 $ 26,251
Accounts receivable 36,754 67,963
Inventories 4,465 4,182
Deferred taxes 324 765
Prepaid expenses 7,330 64
------- -------
Total current assets 102,243 99,225
Property 8,708 8,699
Goodwill 27,368 27,650
Patents and Trademarks 15,899 16,217
Other Intangibles 17 35
------- -------
Total assets $154,235 $151,826
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
- - ------------------------------------
Current Liabilities
Accounts payable $ 12,281 $ 10,923
Payable to McKesson 1,016 1,526
Accrued selling expenses 7,180 8,802
Accrued compensation 1,677 2,669
Income and other taxes payable 4,625 4,282
Dividends payable 3,388 3,386
Other liabilities 3,905 3,288
------- -------
Total current liabilities 34,072 34,876
------- -------
Deferred Income Taxes 880 921
------- -------
Stockholders' Equity
Common stock 212 212
Other capital 59,448 59,323
Unearned compensation
- restricted stock (1,009) (1,101)
Retained earnings 61,359 58,388
Cumulative translation adjustment (727) (793)
------- -------
Total stockholders' equity 119,283 116,029
------- -------
Total liabilities and
stockholders' equity $154,235 $151,826
======= =======
See accompanying financial notes.
- 3 -
ARMOR ALL PRODUCTS CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(unaudited)
Three Months Ended June 30
--------------------------
1994 1993
-------- --------
(in thousands except
per share amounts)
REVENUES $ 56,568 $ 47,722
------- -------
COSTS AND EXPENSES:
Cost of sales 24,001 19,253
Selling, general and administrative 21,116 18,602
Amortization of intangibles 623 804
------- -------
Total costs and expenses 45,740 38,659
------- -------
OPERATING INCOME 10,828 9,063
Interest income 270 264
------- -------
INCOME BEFORE INCOME TAXES 11,098 9,327
Income taxes 4,739 3,871
------- -------
NET INCOME $ 6,359 $ 5,456
======= =======
EARNINGS PER COMMON SHARE $ .30 $ .26
======= =======
DIVIDENDS PER COMMON SHARE $ .16 $ .16
======= =======
WEIGHTED AVERAGE COMMON
SHARES OUTSTANDING 21,171 21,094
See accompanying financial notes.
- 4 -
ARMOR ALL PRODUCTS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
Three Months Ended
June 30
-------------------
1994 1993
-------- --------
(in thousands except
per share amounts)
Operating Activities
Net income $ 6,359 $ 5,456
Adjustments to reconcile net income to net
cash provided by operating activities
Depreciation and amortization 1,007 1,146
Provision for losses on receivables 149 135
Deferred income taxes 400 69
------- -------
Total 7,915 6,806
------- -------
Effect of changes in
Accounts receivable 31,060 20,521
Inventories (283) 1,210
Prepaid expenses (7,266) (3,506)
Accounts payable 1,358 1,273
Accrued selling expenses (1,622) (268)
Accrued compensation (992) (1,659)
Income and other taxes payable 343 (522)
Other liabilities 617 56
------- -------
Total 23,215 17,105
------- -------
Net cash provided by
operating activities 31,130 23,911
------- -------
Investing Activities
Capital expenditures (301) (586)
Other 61 (127)
------- -------
Net cash used by investing activities (240) (713)
------- -------
Financing Activities
Payable to McKesson (510) 262
Issuance of common stock 125 163
Dividends paid (3,386) (2,527)
------- -------
Net cash used by financing activities (3,771) (2,102)
------- -------
Net increase in cash and cash equivalents 27,119 21,096
Cash and cash equivalents
at beginning of period 26,251 33,858
------- -------
Cash and cash equivalents at end of period $ 53,370 $ 54,954
======= =======
See accompanying financial notes.
- 5 -
ARMOR ALL PRODUCTS CORPORATION
FINANCIAL NOTES
1. BASIS OF PRESENTATION
---------------------
The accompanying consolidated financial statements present the
financial position and results of operations of Armor All Products
Corporation and its subsidiaries (the "Company"). In the opinion
of the Company, these unaudited consolidated financial statements
include all adjustments necessary for a fair presentation of its
financial position as of June 30, 1994 and the results of its
operations and its cash flows for the three-month periods ended
June 30, 1994 and 1993. Such adjustments were of a normal
recurring nature.
The results of operations for the three-month periods ended
June 30, 1994 and 1993 are not necessarily indicative of the
results for the full years. It is suggested that these
consolidated financial statements be read in conjunction with the
consolidated financial statements and related notes thereto
included in the Company's Annual Report to Shareholders for the
year ended March 31, 1994. That report has previously been filed
with the Securities and Exchange Commission as an exhibit to the
Annual Report on Form 10-K.
2. CASH MANAGEMENT
---------------
Pursuant to an agreement with McKesson, the Company's U.S.
operations participate daily in a cash management program
administered by McKesson. Under this arrangement, the Company
invests any excess cash in the cash management program and has
unrestricted access to such invested cash to fund disbursements.
If the Company needs additional cash above the amount invested,
such cash requirements are met through borrowings from McKesson.
All amounts invested in the cash management program with McKesson
are deposited in a separate bank account in the Company's name,
which is used for cash management program transactions.
Included in cash and cash equivalents in the accompanying
consolidated balance sheets are the following amounts invested in
the cash management program: $49,030,000 at 4.2% on June 30, 1994
and $22,076,000 at 3.4% on March 31, 1994.
- 6 -
ARMOR ALL PRODUCTS CORPORATION
FINANCIAL NOTES
3. PREPAID EXPENSES
----------------
Prepaid expenses at June 30, 1994 include $7,243,000 of
payments related to media advertising. The Company allocates the
annual media advertising expense among interim periods in
proportion to estimated annual sales volume.
4. INTEREST INCOME
---------------
Interest income is comprised of the following:
Three Months Ended June 30
--------------------------
1994 1993
-------- --------
(in thousands)
Interest income - McKesson $ 231 $ 232
Interest income - other 39 32
---- ----
Interest income $ 270 $ 264
==== ====
- 7 -
ARMOR ALL PRODUCTS CORPORATION
FINANCIAL REVIEW
Results of Operations
- - ---------------------
Revenues increased $8.8 million or 18.5% in the quarter ended
June 30, 1994 in comparison with the prior year quarter. The
increase was primarily attributable to sales in the United States
of Armor All(R) QuickSilver(TM) Wheel Cleaner and Armor All(R) Spot
& Wash(TM) Concentrate, which were developed internally by the
Company and introduced in December 1993, and to sales of Armor
All(R) E-Z Deck Wash(R) Cleaner and the other home care products
acquired by the Company in January 1994. Revenues from the
Company's line of protectants, waxes, washes and other car care
products were lower than in the strong year-ago quarter, which had
benefited from heavy promotional buying by retailers.
International sales increased mainly because of higher shipments to
Latin America.
Cost of sales as a percentage of revenues was 42.4% and 40.3%
in the quarters ended June 30, 1994 and 1993, respectively. The
higher cost percentage in the current year was primarily due to a
shift in the product mix, with a greater proportion of sales coming
from the new products, which have lower margins initially due to
start-up costs.
Selling, general and administrative expense as a percentage of
revenues was 37.3% and 39.0% in the quarters ended June 30, 1994
and 1993, respectively. The decrease in the current quarter is
primarily due to a lower level of promotional expenses than in the
prior year. Another factor was the absorption of fixed
administrative costs over a higher sales volume, partially offset
by advertising expenses for the new products and start-up expenses
at the new home care division.
The Company's estimated effective income tax rates were 42.7%
and 41.5% in the quarters ended June 30, 1994 and 1993,
respectively. The higher rate in the current year principally
reflects the enactment of the Omnibus Budget Reconciliation Act of
1993, which increased the federal corporate income tax rate from
34% to 35%.
Financial Resources and Liquidity
- - ---------------------------------
The Company's working capital requirements fluctuate during
the year, traditionally peaking in the spring due to extended
payment terms offered in connection with the Company's winter sales
promotional activities. Cash inflow is strongest during the summer
months as these receivables are collected. This pattern resulted
in cash flow from operations of $31.1 million and $23.9 million in
the three-month periods ended June 30, 1994 and 1993, respectively,
as accounts receivable were reduced from March 31 levels. The
higher cash inflow in the first quarter of fiscal 1995 is primarily
due to a higher accounts receivable balance at the beginning of the
current year than at the beginning of the prior year. This factor
was partially offset by increased media advertising expenditures to
support the introduction of the new products discussed above.
As long as the Company continues to participate in the
McKesson cash management program, McKesson will make available to
the Company the amount of cash necessary to provide the Company
with sufficient funds to meet its needs, as defined in its annual
capital and operating plans.
- 8 -
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
- - -------------------------------------------------------------
The Company's Annual Meeting of Stockholders was held on
July 22, 1994. The Board of Directors' nominees for
director as listed in the proxy statement were each
elected to serve for a one-year term by the following
vote:
Votes
Votes For Withheld
------------ ---------
William A. Armstrong 19,348,957 19,590
Jon S. Cartwright 19,349,657 18,890
Kenneth M. Evans 19,349,349 19,198
David L. Mahoney 19,036,057 332,490
David E. McDowell 19,347,107 21,440
Karen Gordon Mills 19,349,057 19,490
Alan Seelenfreund 19,035,057 333,490
Item 6. Exhibits and Reports on Form 8-K
- - ---------------------------------------------
(a) Exhibits
(3) By-laws of the Corporation as amended through
July 22, 1994.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the
quarter ended June 30, 1994.
- 9 -
S I G N A T U R E
- - - - - - - - -
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.
ARMOR ALL PRODUCTS CORPORATION
(Registrant)
Dated: August 12, 1994 By /s/ Mervyn J. McCulloch
-----------------------------------
Mervyn J. McCulloch
Executive Vice President and Chief
Financial Officer
(Principal Financial and Accounting
Officer)
- 10 -
INDEX TO EXHIBITS
Exhibit
Number
- - -------
(3) By-laws of the Corporation as amended
through July 22, 1994.
(27) Voluntary Schedule
- 11 -
EXHIBIT (3)
BYLAWS
OF
ARMOR ALL PRODUCTS CORPORATION
a Delaware Corporation
(as amended through July 22, 1994)
TABLE OF CONTENTS
ARMOR ALL PRODUCTS CORPORATION
BYLAWS
ARTICLE I Offices. . . . .. . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . 1
ARTICLE II Stockholders' Meetings. . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . 1
Section 3. Special Meetings. . . . . . . . . . . . . . . 1
Section 4. Notice of Meetings. . . . . . . . . . . . . . 2
Section 5. Quorum. . . . . . . . . . . . . . . . . . . . 3
Section 6. Voting Rights . . . . . . . . . . . . . . . . 3
Section 7. Voting Procedures and Inspectors
of Election . . . . . . . . . . . . . . . 4
Section 8. List of Stockholders. . . . . . . . . . . . . 5
Section 9. Action Without Meeting. . . . . . . . . . . . 6
ARTICLE III Directors . . . . . . . . . . . . . . . . . . 6
Section 1. Number and Term of Office . . . . . . . . . . 6
Section 2. Powers. . . . . . . . . . . . . . . . . . . . 6
Section 3. Vacancies.. . . . . . . . . . . . . . . . . . 7
Section 4. Resignations and Removals . . . . . . . . . . 7
Section 5. Meetings. . . . . . . . . . . . . . . . . . . 7
Section 6. Quorum and Voting . . . . . . . . . . . . . . 8
Section 7. Action Without Meeting. . . . . . . . . . . . 9
Section 8. Fees and Compensation . . . . . . . . . . . . 9
Section 9. Committees. . . . . . . . . . . . . . . . . . 9
ARTICLE IV Officers. . . . . . . . . . . . . . . . . . . 11
Section 1. Officers Designated . . . . . . . . . . . . . 11
Section 2. Tenure and Duties of Officers . . . . . . . . 11
ARTICLE V Execution of Corporate Instruments and Voting
of Securities Owned by the Corporation . . 12
Section 1. Execution of Corporate Instruments. . . . . . 12
Section 2. Voting of Securities Owned by the
Corporation. . . . . . . . . . . . . . . . 13
ARTICLE VI Shares of Stock . . . . . . . . . . . . . . . 13
Section 1. Form and Execution of Certificates. . . . . . 13
Section 2. Lost Certificates . . . . . . . . . . . . . . 14
Section 3. Transfers . . . . . . . . . . . . . . . . . . 14
Section 4. Fixing Record Dates . . . . . . . . . . . . . 14
Section 5. Registered Stockholders . . . . . . . . . . . 15
ARTICLE VII Other Securities of the Corporation . . . . . 15
ARTICLE VIII Corporate Seal. . . . . . . . . . . . . . . . 16
ARTICLE IX Indemnification of Officers, Directors,
Employees and Agents . . . . . . . . . . . 16
Section 1. Right to Indemnification. . . . . . . . . . . 16
Section 2. Right of Claimant to Bring Suit . . . . . . . 17
Section 3. Non-Exclusivity of Rights . . . . . . . . . . 18
Section 4. Insurance . . . . . . . . . . . . . . . . . . 18
ARTICLE X Notices . . . . . . . . . . . . . . . . . . . 18
ARTICLE XI Amendments. . . . . . . . . . . . . . . . . . 20
BYLAWS
OF
ARMOR ALL PRODUCTS CORPORATION
ARTICLE I
Offices
Section 1. Registered Office. The registered
office of the Corporation in the State of Delaware shall be in
the City of Dover, County of Kent.
Section 2. Other Offices. The Corporation shall
also have and maintain an office or principal place of business
at 6 Liberty Drive, Aliso Viejo, California 92656, and may also
have offices at such other places, both within and without the
State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
Stockholders' Meetings
Section 1. Place of Meetings. Meetings of the
stockholders of the Corporation shall be held at such place,
either within or without the State of Delaware, as may be
designated from time to time by the Board of Directors, or, if
not so designated, then at the office of the Corporation required
to be maintained pursuant to Section 2 of Article I hereof.
Section 2. Annual Meetings. The annual meetings
of the stockholders of the Corporation, commencing with the year
l987, for the purpose of election of directors and for such other
business as may lawfully come before it, shall be held on such
date and at such time as may be designated from time to time by
the Board of Directors, or, if not so designated, then at 2:00
p.m. on the fourth Friday in July in each year if not a legal
holiday, and, if a legal holiday, at the same hour and place on
the next succeeding day not a holiday.
Section 3. Special Meetings. Special Meetings of
the stockholders of the Corporation may be called, for any
purpose or purposes, by the Chairman of the Board or the
President or the Board of Directors at any time. Upon written
request of any stockholder or stockholders holding in the
aggregate one-fifth of the voting power of all stockholders
delivered in person or sent by registered mail to the Chairman of
the Board, President or Secretary of the Corporation, the
Secretary shall call a special meeting of stockholders to be held
at the office of the Corporation required to be maintained
pursuant to Section 2 of Article I hereof at such time as the
Secretary may fix, such meeting to be held not less than ten nor
more than sixty days after the receipt of such request, and if
the Secretary shall neglect or refuse to call such meeting,
within seven days after the receipt of such request, the
stockholder making such request may do so.
Section 4. Notice of Meetings.
(a) Except as otherwise provided by law or the
Certificate of Incorporation, written notice of each meeting of
stockholders, specifying the place, date and hour and purpose or
purposes of the meeting, shall be given not less than ten nor
more than sixty days before the date of the meeting to each
stockholder entitled to vote thereat, directed to his address as
it appears upon the books of the Corporation; except that where
the matter to be acted on is a merger or consolidation of the
Corporation or a sale, lease or exchange of all or substantially
all of its assets, such notice shall be given not less than
twenty (20) nor more than sixty (60) days prior to such meeting.
(b) If at any meeting action is proposed to be
taken which, if taken, would entitle stockholders fulfilling the
requirements of Section 262(d) of the Delaware General
Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of
that purpose and to that effect and shall be accompanied by a
copy of that statutory section.
(c) When a meeting is adjourned to another time
or place, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which
the adjournment is taken unless the adjournment is for more than
thirty days, or unless after the adjournment a new record date is
fixed for the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
(d) Notice of the time, place and purpose of any
meeting of stockholders may be waived in writing, either before
or after such meeting, and to the extent permitted by law, will
be waived by any stockholder by his attendance thereat, in person
or by proxy. Any stockholder so waiving notice of such meeting
shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e) Unless and until voted, every proxy shall be
revocable at the pleasure of the person who executed it or of his
legal representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
Section 5. Quorum. At all meetings of
stockholders, except where otherwise provided by law, the
Certificate of Incorporation, or these Bylaws, the presence, in
person or by proxy duly authorized, of the holders of a majority
of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. Shares, the
voting of which at said meeting has been enjoined, or which for
any reason cannot be lawfully voted at such meeting, shall not be
counted to determine a quorum at said meeting.
In the absence of a quorum any meeting of
stockholders may be adjourned, from time to time, by vote of the
holders of a majority of the shares represented thereat, but no
other business shall be transacted at such meeting. At such
adjourned meeting at which a quorum is present or represented any
business may be transacted which might have been transacted at
the original meeting. The stockholders present at a duly called
or convened meeting, at which a quorum is present, may continue
to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, all action taken by the holders of
a majority of the voting power represented at any meeting at
which a quorum is present shall be valid and binding upon the
Corporation.
Section 6. Voting Rights.
(a) Except as otherwise provided by law, only
persons in whose names shares entitled to vote stand on the stock
records of the Corporation on the record date for determining the
stockholders entitled to vote at said meeting shall be entitled
to vote at such meeting. Shares standing in the names of two or
more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of
such persons is present in person or represented by proxy, such
person shall have the right to vote such shares and such shares
shall be deemed to be represented for the purpose of determining
a quorum.
(b) Every person entitled to vote or execute
consents shall have the right to do so either in person or by an
agent or agents authorized by a written proxy executed by such
person or his duly authorized agent, which proxy shall be filed
with the Secretary of the Corporation at or before the meeting at
which it is to be used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three years from
its date unless the proxy provides for a longer period.
(c) Without limiting the manner in which a
stockholder may authorize another person or persons to act for
him as proxy pursuant to subsection (b) of this Section, the
following shall constitute a valid means by which a stockholder
may grant such authority:
(1) A stockholder may execute a writing
authorizing another person or persons to act for him as proxy.
Execution may be accomplished by the stockholder or his
authorized officer, director, employee or agent signing such
writing or causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by
facsimile signature.
(2) A stockholder may authorize another
person or persons to act for him as proxy by transmitting or
authorizing the transmission of a telegram, cablegram, or other
means of electronic transmission to the person who will be the
holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be
submitted with information from which it can be determined that
the telegram, cablegram or other electronic transmission was
authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other electronic transmissions are
valid, the inspectors or, if there are no inspectors, such other
persons making that determination shall specify the information
upon which they relied.
(d) Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission
created pursuant to subsection (c) of this Section may be
substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or
transmission.
Section 7. Voting Procedures and Inspectors of
Elections.
(a) The Corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Corporation
may 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 stockholders, the person
presiding at the meeting shall appoint one or more inspectors to
act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and
according to the best of his ability.
(b) The inspectors shall (i) ascertain the number
of shares outstanding and the voting power of each, (ii) deter-
mine the shares represented at a meeting and the validity of
proxies and ballots, (iii) count all votes and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of
shares represented at the meeting, and their count of all votes
and ballots. The inspectors may appoint or retain other persons
or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) The date and time of the opening and the
closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting. No
ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of
the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an
examination of the proxies, any envelopes submitted with those
proxies, any information provided in accordance with Section
212(c)(2) of the Delaware General Corporation Law, ballots and
the regular books and records of the Corporation, except that the
inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by
or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted herein,
the inspectors at the time they make their certification pursuant
to subsection (b)(v) of this Section shall specify the precise
information considered by them including the person or persons
from whom they obtained the information, when the information was
obtained, the means by which the information was obtained and the
basis for the inspectors' belief that such information is
accurate and reliable.
Section 8. List of Stockholders. The officer who
has charge of the stock ledger of the Corporation shall prepare
and make, at least ten (l0) days before every meeting of
stockholders, a complete list of the stockholders entitled to
vote at said meeting, arranged in alphabetical order, showing the
address of 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 (10) days
prior to the meeting, either at a place within the city where the
meeting is to be held and which place shall be specified in the
notice of the meeting, or, if not specified, at the place where
said meeting is to be held, and the list shall be produced and
kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 9. Action Without Meeting. Unless
otherwise provided in the Certificate of Incorporation, any
action required by statute to be taken at any annual or special
meeting of stockholders of a Corporation, or any action which may
be taken at any annual or special meeting of such stockholders,
may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize such action at a meeting at which all shares entitled
to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE III
Directors
Section 1. Number and Term of Office. The number
of directors which shall constitute the whole of the Board of
Directors shall be seven (7). With the exception of the first
Board of Directors, which shall be elected by the incorporators,
and except as provided in Section 3 of this Article III, the
directors shall be elected by a plurality vote of the shares
represented in person or by proxy, at the stockholders annual
meeting in each year and shall hold office until the next annual
meeting and until their successors shall be duly elected and
qualified. Directors need not be stockholders. If, for any
cause, the Board of Directors shall not have been elected at an
annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for
that purpose in the manner provided in these Bylaws.
Section 2. Powers. The powers of the Corporation
shall be exercised, its business conducted and its property
controlled by or under the direction of the Board of Directors.
Section 3. Vacancies. Vacancies and newly
created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by a
sole remaining director, and each director so elected shall hold
office for the unexpired portion of the term of the director
whose place shall be vacant, and until his successor shall have
been duly elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this section in the case
of the death, removal or resignation of any director, or if the
stockholders fail at any meeting of stockholders at which
directors are to be elected (including any meeting referred to in
Section 4 below) to elect the number of directors then
constituting the whole Board.
Section 4. Resignations and Removals.
(a) Any director may resign at any time by
delivering his written resignation to the Secretary, such
resignation to specify whether it will be effective at a
particular time, upon receipt by the Secretary or at the pleasure
of the Board of Directors. If no such specification is made it
shall be deemed effective at the pleasure of the Board of
Directors. When one or more directors shall resign from the
Board, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the
unexpired portion of the term of the director whose place shall
be vacated and until his successor shall have been duly elected
and qualified.
(b) At a special meeting of stockholders called
for the purpose in the manner hereinabove provided, the Board of
Directors, or any individual director, may be removed from
office, with or without cause, and a new director or directors
elected by a vote of stockholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
Section 5. Meetings.
(a) The annual meeting of the Board of Directors
shall be held immediately after the annual stockholders' meeting
and at the place where such meeting is held or at the place
announced by the Chairman at such meeting. No notice of an
annual meeting of the Board of Directors shall be necessary and
such meeting shall be held for the purpose of electing officers
and transacting such other business as may lawfully come before
it.
(b) Except as hereinafter otherwise provided,
regular meetings of the Board of Directors shall be held in the
office of the Corporation required to be maintained pursuant to
Section 2 of Article I hereof. Regular meetings of the Board of
Directors may also be held at any place within or without the
State of Delaware which has been designated by resolutions of the
Board of Directors or the written consent of all directors.
(c) Special meetings of the Board of Directors
may be held at any time and place within or without the State of
Delaware whenever called by the Chairman of the Board or a
majority of the directors.
(d) Written notice of the time and place of all
regular and special meetings of the Board of Directors shall be
delivered personally to each director or sent by telegram or
facsimile transmission at least 48 hours before the start of the
meeting, or sent by first class mail at least 120 hours before
the start of the meeting. Notice of any meeting may be waived in
writing at any time before or after the meeting and will be
waived by any director by attendance thereat.
Section 6. Quorum and Voting.
(a) A quorum of the Board of Directors shall
consist of a majority of the exact number of directors fixed from
time to time in accordance with Section 1 of Article III of these
Bylaws, but not less than one; provided, however, at any meeting
whether a quorum be present or otherwise, a majority of the
directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b) At each meeting of the Board at which a
quorum is present all questions and business shall be determined
by a vote of a majority of the directors present, unless a
different vote be required by law, the Certificate of
Incorporation, or these Bylaws.
(c) Any member of the Board of Directors, or of
any committee thereof, may participate in a meeting by means of
conference telephone or similar communication 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 such meeting.
(d) The transactions of any meeting of the Board
of Directors, or any committee thereof, however called or
noticed, or wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be
present and if, either before or after the meeting, each of the
directors not present shall sign a written waiver of notice, or a
consent to holding such meeting, or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the
meeting.
Section 7. Action Without Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these
Bylaws, 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 or of
such committee, as the case may be, consent thereto in writing,
and such writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 8. Fees and Compensation. Directors
shall not receive any stated salary for their services as
directors but by resolution of the Board, a fixed fee, with or
without expense of attendance, may be allowed for attendance at
each meeting and at each meeting of any committee of the Board of
Directors. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other
capacity as an officer, agent, employee, or otherwise, and
receiving compensation therefor.
Section 9. Committees.
(a) Executive Committee: The Board of Directors
may, by resolution passed by a majority of the whole Board,
appoint an Executive Committee of not less than one member, each
of whom shall be a director. The Executive Committee, to the
extent permitted by law, shall have and may exercise when the
Board of Directors is not in session all powers of the Board in
the management of the business and affairs of the Corporation,
including, without limitation, the power and authority to declare
a dividend or to authorize the issuance of stock, except such
committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement of merger or
consolidation, to recommend to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's
property and assets, to recommend to the stockholders of the
Corporation a dissolution of the Corporation or a revocation of a
dissolution, or to amend these Bylaws.
(b) Other Committees: The Board of Directors
may, by resolution passed by a majority of the whole Board, from
time to time appoint such other committees as may be permitted by
law. Such other committees appointed by the Board of Directors
shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such
committee, but in no event shall any such committee have the
powers denied to the Executive Committee in these Bylaws.
(c) Term: The members of all committees of the
Board of Directors shall serve a term coexistent with that of the
Board of Directors which shall have appointed such committee. The
Board, subject to the provisions of subsections (a) or (b) of
this Section 9, may at any time increase or decrease the number
of members of a committee or terminate the existence of a
committee; provided, that no committee shall consist of less than
one member. The membership of a committee member shall terminate
on the date of his death or voluntary resignation, but the Board
may at any time for any reason remove any individual committee
member and the Board may fill any committee vacancy created by
death, resignation, removal or increase in the number of members
of the committee. The Board of Directors 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, and, in addition, in the absence or disqualification
of any member of a committee, 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.
(d) Meetings: Unless the Board of Directors shall
otherwise provide, regular meetings of the Executive Committee or
any other committee appointed pursuant to this Section 9 shall be
held at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has
been given to each member of such committee, no further notice of
such regular meetings need be given thereafter; special meetings
of any such committee may be held at the principal office of the
Corporation required to be maintained pursuant to Section 2 of
Article I hereof; or at any place which has been designated from
time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director
who is a member of such committee, upon written notice to the
members of such committee of the time and place of such special
meeting given in the manner provided for the giving of written
notice to members of the Board of Directors of the time and place
of special meetings of the Board of Directors. Notice of any
special meeting of any committee may be waived in writing at any
time after the meeting and will be waived by any director by
attendance thereat. A majority of the authorized number of
members of any such committee shall constitute a quorum for the
transaction of business, and the act of a majority of those
present at any meeting at which a quorum is present shall be the
act of such committee.
ARTICLE IV
Officers
Section 1. Officers Designated. The officers of
the Corporation shall be a Chairman of the Board of Directors and
a President, each of whom shall be a member of the Board of
Directors, and one or more Vice Presidents, a Secretary, and a
Treasurer. The order of the seniority of the Vice Presidents
shall be in the order of their nomination, unless otherwise
determined by the Board of Directors. The Board of Directors or
the Chairman of the Board or the President may also appoint one
or more assistant secretaries, assistant treasurers, and such
other officers and agents with such powers and duties as it or he
shall deem necessary. The Board of Directors may assign such
additional titles to one or more of the officers as they shall
deem appropriate. Any one person may hold any number of offices
of the Corporation at any one time unless specifically prohibited
therefrom by law. The salaries and other compensation of the
officers of the Corporation shall be fixed by or in the manner
designated by the Board of Directors.
Section 2. Tenure and Duties of Officers.
(a) General: All officers shall hold office at
the pleasure of the Board of Directors and until their successors
shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors.
If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors. Nothing in
these Bylaws shall be construed as creating any kind of
contractual right to employment with the Corporation.
(b) Duties of the Chairman of the Board of
Directors: The Chairman of the Board of Directors (if there be
such an officer appointed), when present, shall preside at all
meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall
designate from time to time.
(c) Duties of President: The President shall be
the chief executive officer of the Corporation and shall preside
at all meetings of the stockholders and at all meetings of the
Board of Directors, unless the Chairman of the Board of Directors
has been appointed and is present. The President shall perform
such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(d) Duties of Vice Presidents: The Vice
Presidents, in the order of their seniority, may assume and
perform the duties of the President in the absence or disability
of the President or whenever the office of the President is
vacant. The Vice President shall perform such other duties and
have such other powers as the Board of Directors or the President
shall designate from time to time.
(e) Duties of Secretary: The Secretary shall
attend all meetings of the stockholders and of the Board of
Directors and any committee thereof, and shall record all acts
and proceedings thereof in the minute book of the Corporation.
The Secretary shall give notice, in conformity with these Bylaws,
of all meetings of the stockholders, and of all meetings of the
Board of Directors and any Committee thereof requiring notice.
The Secretary shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to
time. The President may direct any Assistant Secretary to assume
and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall
perform such other duties and have such other powers as the Board
of Directors or the President shall designate from time to time.
(f) Duties of Treasurer: The Treasurer shall
keep or cause to be kept the books of account of the Corporation
in a thorough and proper manner, and shall render statements of
the financial affairs of the Corporation in such form and as
often as required by the Board of Directors or the President.
The Treasurer, subject to the order of the Board of Directors,
shall have the custody of all funds and securities of the
Corporation. The Treasurer shall perform all other duties
commonly incident to his office and shall perform such other
duties and have such other powers as the Board of Directors or
the President shall designate from time to time. The President
may direct any Assistant Treasurer to assume and perform the
duties of the Treasurer in the absence or disability of the
Treasurer, and each Assistant Treasurer shall perform such other
duties and have such other powers as the Board of Directors or
the President shall designate from time to time.
ARTICLE V
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
Section 1. Execution of Corporate Instruments.
(a) The Board of Directors may, in its
discretion, determine the method and designate the signatory
officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and
such execution or signature shall be binding upon the
Corporation.
(b) Unless otherwise specifically determined by
the Board of Directors or otherwise required by law, formal
contracts of the Corporation, promissory notes, deeds of trust,
mortgages and other evidences of indebtedness of the Corporation,
and other corporate instruments or documents and certificates of
shares of stock owned by the Corporation, shall be executed,
signed or endorsed by the President and Chief Executive Officer,
any Executive Vice President, or any Vice President. All other
instruments and documents requiring the corporate signature, may
be executed as aforesaid or in such other manner as may be
directed by the Board of Directors.
(c) All checks and drafts drawn on banks or other
depositaries on funds to the credit of the Corporation, or in
special accounts of the Corporation, shall be signed by such
person or persons as the Board of Directors shall authorize so to
do.
Section 2. Voting of Securities Owned by
Corporation. All stock and other securities of other corporations
owned or held by the Corporation for itself, or for other parties
in any capacity, shall be voted, and all proxies with respect
thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such
authorization, by the Chairman of the Board (if there be such an
officer appointed), or by the President, or by any Vice
President.
ARTICLE VI
Shares of Stock
Section 1. Form and Execution of Certificates.
Certificates for the shares of stock of the Corporation shall be
in such form as is consistent with the Certificate of
Incorporation and applicable law. 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 of the Board (if
there be such an officer appointed), or by the President or any
Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares
owned by him in the Corporation. Any or all of the signatures 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 with the same effect as
if he were such officer, transfer agent, or registrar at the date
of issue. If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Lost Certificates. The Board of
Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his legal
representative, to indemnify the Corporation in such manner as it
shall require and/or to give the Corporation a surety bond in
such form and amount as it may direct as indemnity against any
claim that may be made against the Corporation with respect to
the certificate alleged to have been lost or destroyed.
Section 3. Transfers. Transfers of record of
shares of stock of the Corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a certificate or
certificates for a like number of shares, properly endorsed.
Section 4. Fixing Record Dates. In order that
the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which
shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any such
action. If no record date is fixed: (1) the record date for
determining 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; (2) the record
date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day
on which the first written consent is expressed; (3) 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. A
determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 5. Registered Stockholders. The
Corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
Other Securities of the Corporation
All bonds, debentures and other corporate securities
of the Corporation, other than stock certificates, may be signed
by the Chairman of the Board (if there be such an officer
appointed), or the President or any Vice President or such other
person as may be authorized by the Board of Directors and the
corporate seal impressed thereon or a facsimile of such seal
imprinted thereon and attested by the signature of the Secretary
or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer; provided, however, that where any such bond, debenture
or other corporate security shall be authenticated by the manual
signature of a trustee under an indenture pursuant to which such
bond, debenture or other corporate security shall be issued, the
signature of the persons signing and attesting the corporate seal
on such bond, debenture or other corporate security may be the
imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid,
shall be signed by the Treasurer or an Assistant Treasurer of the
Corporation, or such other person as may be authorized by the
Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have
signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or
before the bond, debenture or other corporate security so signed
or attested shall have been delivered, such bond, debenture or
other corporate security nevertheless may be adopted by the
Corporation and issued and delivered as though the person who
signed the same or whose facsimile signature shall have been used
thereon had not ceased to be such officer of the Corporation.
ARTICLE VIII
Corporate Seal
The corporate seal shall consist of a die bearing
the name of the Corporation and the state and date of its
incorporation. Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE IX
Indemnification of
Officers, Directors, Employees and Agents
Section 1. Right to Indemnification. Each person
who was or is made a party or is threatened to be made a party to
or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a
director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis
of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
said Law permitted the Corporation to provide prior to such
amendment), against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in
Section 2 hereof, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this
Section shall be a contract right and shall include the right to
be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in
his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final
disposition of such proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is
not entitled to be indemnified under this Section or otherwise.
Section 2. Right of Claimant to Bring Suit. If a
claim under Section 1 is not paid in full by the Corporation
within ninety days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim.
It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any if required, has been tendered to the
Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant had not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of
conduct.
Section 3. Non-Exclusivity of Rights. The right
to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition
conferred in this Article shall not be exclusive of any other
right which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise.
Section 4. Insurance. The Corporation may
maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
ARTICLE X
Notices
Whenever, under any provisions of these Bylaws,
notice is required to be given to any stockholder, the same shall
be given in writing, timely and duly deposited in the United
States Mail, postage prepaid, and addressed to his last known
post office address as shown by the stock record of the
Corporation or its transfer agent. Any notice required to be
given to any director may be given by the method hereinabove
stated, or by telegram or other means of electronic transmission,
except that such notice other than one which is delivered
personally, shall be sent to such address or (in the case of
facsimile telecommunication) facsimile telephone number as such
director shall have filed in writing with the Secretary of the
Corporation, or, in the absence of such filing, to the last known
post office address of such director. If no address of a
stockholder or director be known, such notice may be sent to the
office of the Corporation required to be maintained pursuant to
Section 2 of Article I hereof. An affidavit of mailing, executed
by a duly authorized and competent employee of the Corporation or
its transfer agent appointed with respect to the class of stock
affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, director or
directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. All notices given
by mail, as above provided, shall be deemed to have been given as
at the time of mailing and all notices given by telegram or other
means of electronic transmission shall be deemed to have been
given as at the sending time recorded by the telegraph company or
other electronic transmission equipment operator transmitting the
same. It shall not be necessary that the same method of giving
be employed in respect of all directors, but one permissible
method may be employed in respect of any one or more, and any
other permissible method or methods may be employed in respect of
any other or others. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy
any privilege or benefit, or be required to act, or within which
any director may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him in the manner above
provided, shall not be affected or extended in any manner by the
failure of such a stockholder or such director to receive such
notice. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of
Incorporation, or of these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto. Whenever notice is required to be given,
under any provision of law or of the Certificate of Incorporation
or Bylaws of the Corporation, to any person with whom
communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply
to any governmental authority or agency for a license or permit
to give such notice to such person. Any action or meeting which
shall be taken or held without notice to any such person with
whom communication is unlawful shall have the same force and
effect as if such notice had been duly given. In the event that
the action taken by the Corporation is such as to require the
filing of a certificate under any provision of the Delaware
General Corporation Law, the certificate shall state, if such is
the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom
communication is unlawful.
ARTICLE XI
Amendments
These Bylaws may be repealed, altered or amended or
new Bylaws adopted by written consent of stockholders in the
manner authorized by Section 8 of Article II, or at any meeting
of the stockholders, either annual or special, by the affirmative
vote of a majority of the stock entitled to vote at such meeting.
The Board of Directors shall also have the authority to repeal,
alter or amend these Bylaws or adopt new Bylaws (including,
without limitation, the amendment of any Bylaws setting forth the
number of directors who shall constitute the whole Board of
Directors) by unanimous written consent or at any annual,
regular, or special meeting by the affirmative vote of a majority
of the whole number of directors, subject to the power of the
stockholders to change or repeal such Bylaws and provided that
the Board of Directors shall not make or alter any Bylaws fixing
the qualifications, classifications, term of office or
compensation of directors.
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
DATA STATED IN MILLIONS Exhibit (27)
<CAPTION>
ARMOR ALL PRODUCTS CORPORATION
VOLUNTARY SCHEDULE - CERTAIN FINANCIAL INFORMATION
JUNE 30, 1994
First First
Quarter Quarter
REGULATION NUMBER STATEMENT CAPTION FY95 FY94
- - ----------------- ---------------------------------------- --------- ---------
<S> <C> <C> <C>
5-02(1) Cash and cash items $ 53.4 $ 55.0
5-02(2) Marketable securities
5-02(3)(a)(1) Accounts receivable - trade
5-02(3)(b)(1) Notes receivable trade
5-02(4) Allowance for doubtful accounts
5-02(5) Unearned income
5-02(6)(a)(1) Finished goods
5-02(9) Total current assets 102.2 96.1
5-02(18) Total assets 154.2 142.8
5-02(21) Total current liabilities 34.1 33.0
5-02(22) Bonds mortgages & similar debt
5-02(23) Indebtedness to related parties
5-02(24) Other liabilities
5-02(28) Preferred stock - mandatory redemption
5-02(29) Preferred stock-no mandatory redemption
5-02(30) Common stock 0.2 0.2
5-02(31)(a)(1) Additional paid in capital 58.4 57.5
5-02(31)(a)(2) Additional capital other (0.7) (0.4)
5-02(31)(1)(3)(i) Retained earnings - appropriated
5-02(31)(1)(3)(ii) Retained earnings - unappropriated 61.4 51.4
5-03(b)(1)(a) Net sales tangible products 56.6 47.7
5-03(b)(1)(b) Operating revenues utilities & others
5-03(b)(1)(c) Income from rentals
5-03(b)(1)(d) Revenues from services
5-03(b)(1)(e) Other revenues
5-03(b)(2)(a) Cost of tangible goods sold
5-03(b)(2)(b) Operating expenses utilities and others
5-03(b)(2)(c) Cost of income from rentals
5-03(b)(2)(d) Cost of services
5-03(b)(2)(e) Cost of other revenues
5-03(b)(8) Interest & amortization of debt discount
5-03(b)(10) Income before taxes and other items 11.1 9.3
5-03(b)(11) Income tax expense 4.7 3.9
5-03(b)(14) Income/loss from continuing operations
5-03(b)(15) Discontinued operations
5-03(b)(17) Extraordinary items
5-03(b)(18) Cumulative effect-chngs in acctg. prin.
5-03(b)(19) Net income or loss 6.4 5.5
</TABLE>
