<PAGE> 1
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 the quarterly period ended November 30, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number 000-17051
Tuscarora Incorporated
(Exact name of registrant as specified in the charter.)
Pennsylvania 25-1119372
- ------------------------------- -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
800 Fifth Avenue
New Brighton, Pennsylvania 15066
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(Address of principal executive offices)
(Zip Code)
724-843-8200
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(Registrant's telephone number, including area code)
Not applicable
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(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for at least the past 90 days.
Yes X No
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As of January 2, 1999, 9,510,986 shares of Common Stock, without par value,
of the registrant were outstanding.
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TUSCARORA INCORPORATED
INDEX
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
Part I. Financial Information
Item 1. Financial Statements.
Condensed Consolidated Balance Sheets at
November 30, 1998 and August 31, 1998 3
Condensed Consolidated Statements of Income -
Three months ended November 30, 1998 and November 30, 1997 4
Condensed Consolidated Statements of Cash Flows -
Three months ended November 30, 1998 and November 30, 1997 5
Notes to Condensed Consolidated Financial Statements 6 - 7
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition. 8 - 9
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K. 10
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TUSCARORA INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
NOVEMBER 30, AUGUST 31,
1998 1998
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(UNAUDITED)
ASSETS
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 2,772,397 $ 5,452,281
Trade accounts receivable, net of provision for losses 35,456,577 34,239,819
Inventories 20,254,378 20,158,857
Prepaid expenses and other current assets 3,015,727 1,955,310
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61,499,079 61,806,267
PROPERTY, PLANT AND EQUIPMENT, net 97,838,479 97,538,209
OTHER ASSETS
Goodwill 8,862,935 8,905,355
Other non-current assets 3,549,078 3,916,075
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Total Assets $ 171,749,571 $ 172,165,906
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Current maturities of long-term debt $ 5,321,709 $ 5,321,709
Accounts payable 10,048,582 14,178,763
Accrued income taxes 2,299,935 337,711
Accrued payroll and related taxes 1,016,912 1,133,192
Other current liabilities 5,573,280 5,975,400
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24,260,418 26,946,775
LONG-TERM DEBT - less current maturities 59,956,433 61,184,124
DEFERRED INCOME TAXES 1,281,046 1,677,978
OTHER LONG-TERM LIABILITIES 2,932,729 2,833,072
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Total Liabilities 88,430,626 92,641,949
SHAREHOLDERS' EQUITY
Preferred Stock - par value $.01 per share;
authorized shares, 2,000,000; none issued -- --
Common Stock - without par value; authorized shares,
50,000,000; issued shares, 9,534,641 at November 30, 1998 and
9,530,856 at August 31, 1998 9,534,641 9,530,856
Capital surplus 1,477,296 1,435,582
Retained earnings 72,204,545 68,240,138
Foreign currency translation adjustment 285,445 392,150
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83,501,927 79,598,726
Less cost of reacquired shares of Common Stock;
12,820 shares at November 30, 1998 and 4,620
at August 31, 1998 (182,982) (74,769)
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Total Shareholders' Equity 83,318,945 79,523,957
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Total Liabilities and Shareholders' Equity $ 171,749,571 $ 172,165,906
============= =============
</TABLE>
Note: The consolidated balance sheet at August 31, 1998 has been taken from
the audited financial statements and condensed.
See notes to condensed consolidated financial statements.
3
<PAGE> 4
TUSCARORA INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NOVEMBER 30,
1998 1997
------------ ------------
<S> <C> <C>
Net Sales $ 60,465,735 $ 61,292,306
Cost of Sales 45,378,424 46,193,365
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Gross profit 15,087,311 15,098,941
Selling and Administrative Expenses 7,650,914 7,865,953
Interest Expense 1,211,831 1,157,167
Other (Income) Expense - net (120,833) (18,640)
------------ ------------
Total expenses 8,741,912 9,004,480
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Income before income taxes 6,345,399 6,094,461
Provision for Income Taxes 2,380,992 2,321,990
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Net income $ 3,964,407 $ 3,772,471
============ ============
Basic net income per share $0.42 $0.40
============ ============
Diluted net income per share $0.41 $0.39
============ ============
Weighted average number of shares of
Common Stock outstanding:
Basic 9,526,844 9,475,833
============ ============
Diluted 9,598,995 9,700,093
============ ============
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE> 5
TUSCARORA INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NOVEMBER 30,
1998 1997
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<S> <C> <C>
Operating Activities
Net Income $ 3,964,407 $ 3,772,471
Adjustments to reconcile net income to cash
provided by operating activities:
Depreciation 3,901,926 3,903,109
Amortization 300,691 277,946
Provision for losses on receivables 40,560 (13,246)
Decrease in deferred income taxes (327,639) (148,936)
Loss (gain) on disposition of property, plant and equipment, net (100,185) 16,059
Stock compensation expense 3,101 3,475
Changes in operating assets and liabilities, net of effects of business
acquisitions:
Decrease (increase):
Trade accounts receivable (1,053,096) (5,627,547)
Inventories (71,869) (1,798,016)
Prepaid expenses and other current assets (1,141,650) (980,167)
Other non-current assets (40,498) (3,206)
Increase (decrease):
Accounts payable (4,285,096) 365,723
Accrued income taxes 1,996,026 1,631,597
Accrued payroll and related taxes (137,515) 52,348
Other current liabilities (756,727) 411,009
Other long-term liabilities (21,783) 43,670
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Cash provided by operating activities 2,270,653 1,906,289
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Investing Activities
Purchase of property, plant and equipment (3,735,249) (5,830,907)
Business acquisitions, net of cash acquired (87,851) (116,775)
Proceeds from sale of property, plant and equipment 192,021 464,784
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Cash (used for) investing activities (3,631,079) (5,482,898)
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Financing Activities
Payments on long-term debt (1,224,177) (1,177,082)
Proceeds from sale of Common Stock 42,397 34,779
Payments to reacquire Common Stock (108,213) --
----------- -----------
Cash (used for) financing activities (1,289,993) (1,142,303)
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Effect of Foreign Currency Exchange Rate Changes
on Cash and Cash Equivalents (29,465) (43,131)
Net decrease in cash and cash equivalents (2,679,884) (4,762,043)
Cash and Cash Equivalents at Beginning of Period 5,452,281 5,095,149
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Cash and Cash Equivalents at End of Period $ 2,772,397 $ 333,106
=========== ===========
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE> 6
TUSCARORA INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. Condensed Consolidated Financial Statements
The condensed consolidated balance sheet at November 30, 1998 and the
consolidated statements of income and consolidated statements of cash flows
for the periods ended November 30, 1998 and November 30, 1997 have been
prepared by the Company, without audit. In the opinion of Management, all
adjustments necessary to present fairly the financial position, results of
operations and changes in cash flows at November 30, 1998 and for the
periods presented have been made.
The accompanying condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions for Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required for complete financial statements
prepared in accordance with generally accepted accounting principles. It is
suggested that these condensed consolidated financial statements be read in
conjunction with the financial statements and notes thereto included in the
Company's 1998 Annual Report to Shareholders and incorporated by reference
in the Company's annual report on Form 10-K for the fiscal year ended
August 31, 1998.
The results of operations for the period ended November 30, 1998 are
not necessarily indicative of the operating results to be expected for the
full year.
2. Inventories
Inventories are summarized as follows:
<TABLE>
<CAPTION>
November 30, August 31,
1998 1998
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<S> <C> <C>
Finished goods $ 9,990,806 $10,454,863
Work in process 392,839 257,055
Raw materials 8,567,517 7,510,482
Supplies 1,303,216 1,936,457
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$20,254,378 $20,158,857
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</TABLE>
6
<PAGE> 7
3. Comprehensive Income
As of September 1, 1998, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 130, "Reporting Comprehensive Income". SFAS
No. 130 establishes new rules for the reporting and display of
comprehensive income and its components. SFAS No. 130 requires foreign
currency translation adjustments which are reported separately in
shareholders' equity to be included in comprehensive income. The adoption
of this Statement had no impact on the Company's net income or
shareholders' equity. Total comprehensive income for the three months ended
November 30, 1998 and 1997 was as follows:
<TABLE>
<CAPTION>
November 30,
1998 1997
---------- ----------
<S> <C> <C>
Net Income $3,964,407 $3,772,471
Foreign currency translation adjustment (106,705) 194,847
---------- ----------
Comprehensive income $3,857,702 $3,967,318
========== ==========
</TABLE>
At November 30, 1998 and 1997, accumulated other comprehensive income
which consisted entirely of foreign currency translation adjustments,
amounted to $285,445 and $244,846, respectively.
4. Claims and Contingencies
A lawsuit seeking substantial compensatory and punitive damages as a
result of the alleged wrongful death of an employee was filed against the
Company in December 1996. In addition, a number of legal and administrative
proceedings against the Company involving claims of employment
discrimination are pending. In the opinion of Management, the disposition
of these proceedings should not have a material adverse effect on the
Company's financial position or results of operations.
5. Share Repurchase Program
In October 1998, the Company's Board of Directors authorized the
repurchase of up to 250,000 shares of the Company's Common Stock at prices
not to exceed $15 per share through the end of August 1999. During the
three months ended November 30, 1998, the Company purchased 8,200 shares of
Common Stock at prices ranging from $12-9/16 to $13-7/16.
6. Other Information
In 1997, the Financial Accounts Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 131, "Disclosures
about Segments of an Enterprise and Related Information", which must be
adopted by the Company before the end of the 1999 fiscal year. In 1998, the
FASB issued SFAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities", which must be adopted by the Company by the end of its
2001 fiscal year. These Statements when adopted by the Company are not
expected to have a material effect on the consolidated financial
statements.
7. Subsequent Events
An amendment of the Company's Restated Articles of Incorporation to
increase the number of authorized shares of the Company's Common Stock,
without par value, from 20,000,000 shares to 50,000,000 shares and to
increase the number of authorized shares of the Company's Preferred Stock,
par value $.01 per share, from 1,000,000 shares to 2,000,000 shares was
adopted by the Company's shareholders at the Company's Annual Meeting of
Shareholders held on December 17, 1998. The amendment became effective upon
the filing of Articles of Amendment with the Pennsylvania Department of
State on December 21, 1998.
On January 12, 1999, the Company announced an agreement to acquire the
custom molding business, including the associated real estate, of Berry
Packaging, Inc. in Sallisaw, Oklahoma for cash. The aggregate purchase
price to be paid for the business acquired is not material. The acquisition
is expected to be completed in February 1999. The Company also agreed to
pay additional consideration to the seller based on sales realized by the
business acquired. The acquisition will be accounted for as a purchase and
a portion of the purchase price will be allocated to a covenant not to
compete and to goodwill.
7
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
RESULTS OF OPERATIONS - FIRST QUARTER FISCAL 1999
COMPARED TO FIRST QUARTER FISCAL 1998
Net sales for the three months ended November 30, 1998 were $60.5 million,
a decrease of $800,000, or 1.3%, compared with net sales of $61.3 million in the
same period of fiscal 1998. The decrease in net sales was attributable primarily
to lower sales in the United Kingdom and to modestly lower selling prices to
customers due to lower raw material prices.
Gross profit for the three months ended November 30, 1998 remained flat at
$15.1 million when compared to the first three months of fiscal 1998. The gross
profit margin increased to 25.0% from 24.6% in the previous year. The increase
in gross profit margin was attributable primarily to improved operating
efficiencies at several key manufacturing facilities, including those in the
United Kingdom, and to lower raw material costs in the current period when
compared to the same period last year.
Selling and administrative expenses for the current three-month period were
$7.7 million, a 2.7% decrease compared to $7.9 million in the previous period.
Selling and administrative expenses decreased slightly as a percent of net
sales to 12.7% from 12.8% in the same period last year. The dollar decrease is
due primarily to the restructuring initiative taken in fiscal 1998.
Net sales and operating income (loss) for the U.K. operations for the three
months ended November 30, 1998 were $6.6 million and ($26,000), respectively,
compared to $7.8 million and $63,000, respectively, in the same period of fiscal
1998.
Interest expense for the three months ended November 30, 1998 amounted to
$1.2 million, a 4.7% increase over the same period of fiscal 1998. The increase
of $55,000 is due primarily to additional borrowings in the 1998 fiscal year to
finance capital expenditures.
Income before income taxes for the three months ended November 30, 1998
increased to $6.3 million from $6.1 million in the same period of fiscal 1997,
an increase of $251,000 or 4.1%. The effective tax rate decreased to 37.5%
compared to 38.1% in the same period of fiscal 1998 due primarily to lower
effective state income tax rates.
Net income for the three months ended November 30, 1998 was $4.0 million,
an increase of 5.1% from the $3.8 million earned in the same period of fiscal
1998. The increase was due primarily to the higher gross profit margin and the
lower selling and administrative expenses. The net income for the three months
ended November 30, 1998 was a Company record for any quarterly fiscal period.
LIQUIDITY AND CAPITAL RESOURCES
Cash provided by operating activities for the three months ended November
30, 1998 amounted to $2.2 million compared to $1.9 million for the same period
in fiscal 1998. Depreciation and amortization amounted to $4.2 million for both
three-month periods. Accounts payable at November 30, 1998 were substantially
less than at the end of the 1998 fiscal year. Because a substantial portion of
the Company's operating expenses are attributable to depreciation and
amortization, the Company believes that its liquidity would not be adversely
affected should a period of reduced earnings occur.
Cash and cash equivalents as of November 30, 1998 amounted to $2.8 million
as compared to $5.5 million at August 31, 1998. The decrease resulted from
capital expenditures and payments on long-term debt exceeding the cash provided
by operating activities.
8
<PAGE> 9
Capital expenditures for property, plant and equipment during the three
months ended November 30, 1998 amounted to $3.7 million, including approximately
$136,000 for environmental control equipment. Close to one-half of the capital
expenditures was for land, buildings and leasehold improvements, including the
purchase of the EPS custom molding facility in Lewisburg, Tennessee, which was
previously leased, and additional expenditures at the Company's new custom
molding facility in Brenham, Texas. Most of the balance of the capital
expenditures was for molding presses and related equipment.
The only expenditures during the three months ended November 30, 1998
regarding business acquisitions were a small amount of additional consideration
required to be paid in connection with acquisitions in prior fiscal years;
however, on January 12, 1998 the Company announced that it has agreed to acquire
the custom molding business of Berry Packaging, Inc. in Sallisaw, Oklahoma (see
Note 7 to the Condensed Consolidated Financial Statements). The Company will
continue to look for acquisitions which will mesh well with the Company's
business.
Long-term debt amounted to $60.0 million at November 30, 1998, of which
$56.2 million was borrowed under a credit agreement with the Company's principal
bank, including $34.2 million out of an available $40.0 million under a
revolving credit facility. The bank has approved an increase in this facility to
$48.0 million which is expected to become effective in the second fiscal
quarter. Long-term debt amounted to $61.2 million at August 31, 1998. No
additional long-term debt was incurred during the three months ended November
30, 1998.
On December 16, 1998, the Company declared a regular semi-annual cash
dividend of $0.12 per share payable on January 8, 1999 to shareholders of record
on December 28, 1998. Cash dividends of $0.11 per share were paid in both
January and July 1998.
Cash provided by operating activities as supplemented by the amount
available under the bank credit agreement should be sufficient to enable the
Company to continue to fund its operating requirements, capital expenditures and
cash dividends.
MARKET RISKS
There have been no material changes in the Company's exposure to market
risks since August 31, 1998.
YEAR 2000 ISSUES
As previously reported, the Company has installed computer software that is
Year 2000 capable and has contacted its major equipment manufacturers and raw
material suppliers for confirmation that its machinery and equipment should
operate and its raw materials should be delivered without any problems relating
to Year 2000 issues. No adverse information has been received. The Company is in
the process of contacting its significant customers whose Year 2000 readiness
could cause a loss of business that might be material to the Company.
The costs associated with Year 2000 issues have not been, and are not
expected to be, significant. Based on its investigations and the information
obtained, the Company believes that it should not be materially adversely
affected by Year 2000 issues.
OTHER
The impact of inflation on both the Company's financial position and
results of operations has been minimal and is not expected to adversely effect
fiscal 1999 results.
In 1997, the Financial Accounts Standards Board (FASB) issued Statement of
Financial Accounting Standards (SFAS) No. 131, "Disclosures about Segments of an
Enterprise and Related Information", which must be adopted by the Company before
the end of the 1999 fiscal year. In 1998, the FASB issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities", which must be
adopted by the Company before the end of its 2001 fiscal year. These Statements
when adopted by the Company are not expected to have a material effect on the
consolidated financial statements.
9
<PAGE> 10
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The exhibits listed below are filed as a part of this quarterly report.
<TABLE>
<CAPTION>
Exhibit No. Document
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<S> <C>
3(i) Restated Articles of Incorporation, as amended by the Company's
Shareholders at the Annual Meeting of Shareholders held on
December 17, 1998, and Statement with Respect to Shares of
Series A Junior Participating Preferred Stock.
11 Computation of Net Income Per Share.
27 Financial Data Schedule.
</TABLE>
(b) Reports on Form 8-K
No events which resulted in the filing of a current report on Form 8-K
occurred during the fiscal quarter ended November 30, 1998.
10
<PAGE> 11
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.
Tuscarora Incorporated
(Registrant)
Date: January 14 , 1999 By /s/ John P. O'Leary, Jr.
----- ---------------------------
John P. O'Leary, Jr.,
President and
Chief Executive Officer
Date: January 14 , 1999 By /s/ Brian C. Mullins
----- ----------------------------
Brian C. Mullins,
Senior Vice President,
Chief Financial Officer
and Treasurer (Principal
Financial Officer and
Principal Accounting Officer)
11
<PAGE> 12
TUSCARORA INCORPORATED
FORM 10-Q FOR QUARTER ENDED NOVEMBER 30, 1998
EXHIBIT INDEX
The following exhibits are filed as a part of this quarterly report on
Form 10-Q.
<TABLE>
<CAPTION>
Exhibit
No. Document
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<S> <C>
3(i) Restated Articles of Incorporation, as amended by the Company's
Shareholders at the Annual Meeting of Shareholders held on
December 17, 1998, and Statement with Respect to Shares of
Series A Junior Participating Preferred Stock.
11 Computation of Net Income Per Share.
27 Financial Data Schedule.
</TABLE>
12
<PAGE> 1
Exhibit 3(i)
TUSCARORA INCORPORATED
RESTATED ARTICLES OF INCORPORATION
(as amended effective December 21, 1998)
1st. The name of the Company is Tuscarora Incorporated.
2nd. The location and post office address of its current registered
office in this Commonwealth is 800 Fifth Avenue, New Brighton, Beaver County,
Pennsylvania 15066.
3rd. The purposes of the Company are to engage in the business of
designing, manufacturing and developing all forms of plastics and other
synthetic materials and encouraging their widespread use, to make available to
its customers all related services, and, in addition, to engage in all other
lawful businesses for which a corporation may be incorporated under the
Pennsylvania Business Corporation Law, being the Act of May 5, 1933, as amended.
4th. The term of its existence is perpetual.
5th. 5.1. The aggregate number of shares of all classes of capital
stock which the Company shall have the authority to issue is 52,000,000 shares,
divided into two classes, of which 2,000,000 shares shall be Preferred Stock,
par value $.01 per share (the "Preferred Stock"), and 50,000,000 shares shall be
Common Stock, without par value.
5.2. The Board of Directors is hereby expressly authorized, at any time
or from time to time, to divide any or all of the shares of the Preferred Stock
into one or more series, and in the resolution or resolutions establishing a
particular series, before issuance of any of the shares of the particular
series, to fix and determine the number of shares and the designation of such
series, so as to distinguish it from the shares of all other series and classes,
and to fix and determine the preferences, voting rights, qualifications,
privileges, limitations, options, conversion rights, restrictions and other
special or relative rights of the Preferred Stock or of such series, to the
fullest extent now or hereafter permitted by the laws of the Commonwealth of
Pennsylvania, including, but not limited to, variations between different series
in the following respects:
(a) the distinctive designation of such series and the number of shares
which shall constitute such series, which number may be increased or
decreased (but not below the number of shares of such series then
outstanding) from time to time by the Board of Directors;
(b) the annual dividend rate for such series, the dates in each year on
which dividends on such series shall be payable and the date or dates from
which such dividends shall commence to accrue;
(c) the price or prices at which, and the terms and conditions on
which, the shares of such series may be made redeemable;
(d) the purchase or sinking fund provisions, if any, for the purchase
or redemption of shares of such series;
(e) the preferential amount or amounts payable upon shares of such
series in the event of the liquidation, dissolution or winding up of the
Company;
(f) the voting rights, if any, of the holders of shares of such series;
(g) the terms and conditions, if any, upon which shares of such series
may be converted and the class or classes or series of shares of the
Company or other securities into which such shares may be converted;
(h) the relative seniority, parity or junior rank of such series as to
dividends or assets with respect to any other classes or series of stock
then or thereafter to be issued; and
(i) such other terms, qualifications, privileges, limitations, options,
restrictions and special or relative rights and preferences, if any, of
shares of such series as the Board of Directors may, at the time of such
resolution or resolutions, lawfully fix and determine under the laws of
the Commonwealth of Pennsylvania.
<PAGE> 2
Unless otherwise provided in a resolution or resolutions establishing
any particular series, the aggregate number of authorized shares of the
Preferred Stock may be increased by an amendment of the Restated Articles
approved solely by a majority vote of the outstanding shares of Common Stock (or
solely with a lesser vote of the Common Stock, or solely by action of the Board
of Directors, if permitted by law at the time).
All shares of any one series shall be alike in every particular, except
with respect to the accrual of dividends prior to the date of issuance.
5.3 Except for and subject to those rights expressly granted to the
holders of the Preferred Stock or any series thereof by resolution or
resolutions adopted by the Board of Directors pursuant to Section 5.2 of this
Article 5th and except as may be provided by the laws of the Commonwealth of
Pennsylvania, the holders of the Common Stock shall have exclusively all other
rights of shareholders. All or part of the shares of Common Stock of the Company
may be uncertificated shares to the extent determined by the Board (or by any
officer or other person as the Board may designate) from time to time; however,
in no event shall shares of Common Stock represented by a certificate be deemed
uncertificated until the certificate is surrendered to the Company.
5.4 No holder of Common Stock or of any other class of stock of the
Company shall be entitled as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of stock of any class or of
securities convertible into stock of any class, whether now or hereafter
authorized and whether issued for cash or other consideration or by way of
dividend, and the Company may issue shares, option rights or securities having
option or conversion rights without first offering them to shareholders of any
class.
6th. No Cumulative Voting.
The shareholders of the Company shall not have any right of cumulative
voting in the election of directors.
7th. Definitions; Interpretation.
7.1. Definitions. For the purposes of Articles 7th, 8th, 9th, and
10th:
(a) "Person" means any individual, firm, corporation,
partnership, joint venture, trust or other entity. When two or more
persons act as a partnership, syndicate, association or other group for
the purpose of acquiring, holding or disposing of shares of stock, such
partnership, syndicate, association or group shall be deemed a person.
As used herein, the pronouns "which", "that" and "it" in relation to
persons that are individuals shall be construed to mean "who" or
"whom", "he" or "she" and "him" or "her", as appropriate.
(b) "Interested Shareholder" at any particular time means any
person (other than the Company or a Subsidiary, or an employee benefit
plan of the Company or a Subsidiary, or a trustee or fiduciary of any
such plan when acting in such capacity) who or which:
(1) is at such time, or is a member of a group
acting in concert which is at such time, the beneficial owner,
directly or indirectly, of more than 20% of the voting power
of the outstanding Voting Stock;
(2) is at such time a director or Affiliate of the
Company and at any time within the two-year period immediately
prior to such time was the beneficial owner, directly or
indirectly, of more than 20% of the voting power of the then
outstanding Voting Stock; or
(3) is at such time an assignee of or has otherwise
succeeded to the beneficial ownership of any shares of Voting
Stock which were at any time within the two-year period
immediately prior to such time beneficially owned by any
interested Shareholder, if such assignment or succession shall
have occurred in the course or a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933;
With respect to any particular transaction, "Interested Shareholder"
means any Interested Shareholder involved in such transaction, any
Affiliate or Associate of any such interested Shareholder and any other
member of a group acting in concert with any such Interested
Shareholder.
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(c) A person is a "beneficial owner" of any shares of Voting Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
(2) which such person or any of its Affiliates or Associates
has (A) the right to acquire (whether or not such right is exercisable
immediately) pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrants or
options, revocation of a trust or otherwise or (B) the right to vote,
or to direct the voting of, pursuant to any agreement, arrangement or
understanding; or
(3) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates has
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
For the purposes of determining whether a person is an Interested Shareholder
pursuant to definition (b) of this Section 7.1, the number of shares of Voting
Stock deemed to be outstanding shall include shares deemed owned by an
Interested Shareholder through the application of this definition (c) but shall
not include any other shares of Voting Stock which may be acquired pursuant to
any agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, revocation of a trust or
otherwise.
(d) "Affiliate" has the meaning ascribed to that term in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
in effect on August 28, 1987 (the term "registrant" in said Rule 12b-2 meaning
in this case the Company).
(e) "Associate" has the meaning ascribed to that term in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
in effect on August 28, 1987 (the term "registrant" in said Rule 12b-2 meaning
in this case the Company).
(f) "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the Company, as well as
any Affiliate of the Company which is controlled by the Company; provided,
however, that for the purposes of the definition of Interested Shareholder set
forth in definition (b) of this Section 7.1, "Subsidiary" means only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Company.
(g) "Disinterested Director" means a director of the Company who is not
an Interested Shareholder or an Affiliate, Associate or representative of an
Interested Shareholder and either (1) was a director of the Company immediately
prior to the time the Interested Shareholder became an Interested Shareholder or
(2) is a successor to a Disinterested Director and is or was recommended or
elected to succeed a Disinterested Director by the affirmative vote of a
majority of the Disinterested Directors then in office. Whenever the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or assets shall have the right, voting separately as a class or
series, to elect one or more directors of the Company, the term "Disinterested
Director" shall not include any director elected by the holders of such class or
series. As used with respect to any particular transaction in Article 9th or
with respect to a determination or interpretation as to such transaction under
definition (h) of this Section 7.1 or Section 7.2, the term "Disinterested
Director" includes all directors who are Disinterested Directors with respect to
any Interested Shareholder involved in such transaction. In all other cases,
unless the context otherwise clearly requires, the term "Disinterested Director"
means only those directors who are Disinterested Directors with respect to all
persons who are then Interested Shareholders.
(h) "Fair Market Value" means (1) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
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Exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934, as amended, on which such
stock is listed, or, if such stock is not listed on any such exchange,
the highest closing sale price or, if none, the highest closing bid
quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotation System or any similar
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined in good faith by the affirmative vote of a majority of the
Disinterested Directors then in office; and (2) in the case of property
other than stock or cash, the fair market value of such property on the
date in question as determined in good faith by the affirmative vote of
a majority of the Disinterested Directors then in office or by a
qualified appraiser retained by them for such purpose.
(i) "Voting Stock" means capital stock of the Company entitled to
vote generally in an annual election of directors of the Company.
(j) "Total Assets" means the consolidated total assets of the
Company and its subsidiaries as of the close of the most recent fiscal
quarter ended on or prior to the first public announcement of the
Business Combination in question, as shown on the consolidated balance
sheet published by the Company for such quarter.
7.2 Interpretation. The Disinterested Directors, by the affirmative
vote of a majority of the Disinterested Directors then in office, are authorized
to interpret all the terms and provisions of Articles 7th, 8th, 9th and 10th and
to determine, on the basis of information known to them after reasonable
inquiry, any fact necessary to determine compliance with any such term or
provision, including, without limitation, (a) whether a person is an Interested
Shareholder, (b) the number of shares of Voting Stock beneficially owned by any
person, (c) whether a person is an Affiliate or Associate or another person, (d)
whether any Articles provision required by clause (a) of Section 9.1 of Article
9th complies with such Section and is valid and enforceable and (e) whether the
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Company or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value equal to 5% or more of Total Assets. Any such interpretation or
determination made in good faith shall be binding and conclusive for all
purposes of these Articles.
8th. Board of Directors.
The business and affairs of the Company shall be managed by or under
the direction of a Board of Directors comprised as follows:
(a) Number. The Board of Directors shall consist of such number
of persons as may from time to time be fixed by the Board pursuant to a
resolution adopted by the affirmative vote of a majority of the
Disinterested Directors then in office, plus such number of additional
directors as the holders of any class or series of stock having a
preference over the Common Stock as to dividends or assets, voting
separately as a class or series, shall have the right from time to time
to elect.
(b) Classes, Election and Terms. The directors elected by the
holders of Voting Stock shall be classified in respect of the time for
which they shall severally hold office by dividing them into three
classes, as nearly equal in number as possible. If such classes of
directors are not equal, the Board of Directors, by the affirmative
vote of a majority of the Disinterested Directors then in office, shall
determine which class shall contain an unequal number of directors. At
the annual meeting of shareholders of the Company in 1987, separate
elections shall be held for the directors of each class, the term of
office of the directors of the first class to expire at the first
annual meeting after their election, the term of office of the
directors of the second class to expire at the second annual meeting
after their election and the term of office of the directors of the
third class to expire at the third annual meeting after their election.
At each succeeding annual meeting of shareholders, the shareholders
shall elect directors of the class whose term then expires, to hold
office until the third succeeding annual meeting. Except as otherwise
expressly provided in these Articles,
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each director shall hold office for the term for which elected and
until his or her successor shall be elected and shall qualify.
(c) Removal of Directors. Any director, any class of directors or
the entire Board of Directors may be removed from office by shareholder
vote at any time, without assigning any cause, but only if shareholders
entitled to cast at least 75% of the votes which all shareholders would
be entitled to cast at an annual election of directors or of such class
of directors shall vote in favor of such removal; provided, however,
that the shareholders shall have such power of removal without cause
only if and so long as the general corporate law of the Company's state
of incorporation specifically mandates such power. If such power of
removal without cause is not mandated by statute, the shareholders may
remove a director or directors from office at any time only for cause
and only if, in addition to any affirmative vote required by law, these
Articles or otherwise, such removal is approved by the holders of at
least a majority of the voting power of the then outstanding shares of
Voting Stock of the Company which are not beneficially owned by any
Interested Shareholder, voting together as a single class.
(d) Vacancies. Vacancies in the members of the Board of Directors
elected by the holders of Voting Stock, including vacancies resulting
from an increase in the number of directors, shall be filled only by
the affirmative vote of a majority of the Disinterested Directors then
in office, though less than a quorum, except as otherwise required by
law. All directors elected to fill vacancies shall hold office for a
term expiring at the annual meeting of shareholders at which the term
of the class to which they have been elected expires. No decrease in
the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
(e) Nominations of Director Candidates. Nominations for the
election of directors may be made only by the Board of Directors or a
committee appointed by the Board of Directors or by a holder of record
of stock entitled to vote in the election of the directors to be
elected; provided, however, that a nomination may be made by a
shareholder only if written notice of such nomination is received by
the Secretary of the Company not later than (1) with respect to an
election to be held at an annual meeting of shareholders, 90 days prior
to the anniversary date of the immediately preceding annual meeting,
and (2) with respect to an election to be held at a special meeting of
shareholders, the close of business on the 10th day following the date
on which notice of such meeting is first given to shareholders. Each
such notice shall set forth (1) the name and address of the shareholder
who intends to make the nomination and of the person or persons to be
nominated; (2) a representation that the shareholder is a holder of
record of stock of the Company entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (3) a description of all
arrangements or understandings between the shareholder and each nominee
and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (4) such other information regarding each nominee proposed
by such shareholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission, had the nominee been nominated by the Board of
Directors; and (5) the consent of each nominee to serve as a director
of the Company if so elected. Only candidates who have been nominated
in accordance with this Article 8th shall be eligible for election by
the shareholders as directors of the Company.
(f) Exception for Preferred Stock. Whenever the holders of any
class or series of stock having a preference over the Common Stock as
to dividends or assets shall have the right, voting separately as a
class or series, to elect one or more directors of the Company or to
take any other action, none of the provisions of this Article 8th above
shall apply with respect to the director or directors elected or the
action taken by the holders of such class or series.
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9th. Votes Required For Certain Business Combinations.
9.1 Special Votes for Certain Business Combinations. In addition to any
affirmative vote required by law, these Articles or otherwise, and except as
otherwise expressly provided in Section 9.2 below:
(a) any merger, consolidation or share exchange of the Company or
any Subsidiary with (1) any Interested Shareholder or with (2) any
other person (whether or not itself an Interested Shareholder) which
is, or after such merger, consolidation or share exchange would be, an
Affiliate or Associate of an Interested Shareholder or which does not
include in its Articles the substance of the terms of this Article 9th,
in each case without regard to which person is the surviving person;
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition or security arrangement, investment, loan, advance,
guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one
transaction or a series of transactions) to, with or for the benefit of
any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder involving any assets, securities or commitments
of the Company or any Subsidiary having an aggregate Fair Market Value
and/or involving aggregate commitments equal to 5% or more of Total
Assets;
(c) the issuance or transfer by the Company or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Company or any Subsidiary to any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder in exchange for
cash, securities or other consideration (or a combination thereof)
having an aggregate Fair Market Value equal to 5% or more of Total
Assets;
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Company proposed by or on behalf of any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder;
(e) any reclassification of securities (including any reverse
stock split), or recapitalization of the Company, or any merger or
consolidation of the Company with any Subsidiary or any other
transaction (whether or not with or into or otherwise involving an
Interested Shareholder) which has the effect, directly or indirectly,
of increasing the proportionate share of the outstanding shares of any
class of equity securities or securities convertible into equity
securities of the Company or any Subsidiary which is directly or
indirectly beneficially owned by any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder; or
(f) any other transaction or series of transactions similar in
purpose or effect to, or any agreement, contract or other arrangement
providing for, any one or more of the transactions specified in the
foregoing clauses (a) through (e);
shall require the affirmative votes of (i) the holders of at least 75% of the
voting power of all then outstanding shares of Voting Stock, voting together as
a single class, and (ii) the holders of at least a majority of the voting power
of the then outstanding shares of Voting Stock which are not beneficially owned
by such Interested Shareholder, voting together as a single class. Such
affirmative votes shall be required notwithstanding the fact that no vote may
be required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
The term "Business Combination" as used in this Article 9th shall mean
any transaction which is referred to in any one or more of clauses (a) through
(f) above.
9.2 Exception to Special Vote Requirements. The provisions of Section
9.1 shall not be applicable to any Business Combination, and such Business
Combination shall require only such affirmative vote (if any) as is required by
law, any other provision of these Articles, any agreement with any national
securities exchange or otherwise, if the Business Combination is approved by the
affirmative vote of a majority of the Disinterested Directors then in office.
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9.3 No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article 9th shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law or equity.
10th. Amendments.
10.1 Amendments to By-Laws. The Board of Directors may adopt, amend and
repeal the By-Laws with respect to those matters which are not, by statute,
reserved exclusively to the shareholders, provided that such power may be
exercised only by the affirmative vote of a majority of the Disinterested
Directors then in office. No By-Law may be adopted, amended or repealed by the
shareholders unless, in addition to any other affirmative vote required by law,
these Articles or otherwise, such action is approved by the affirmative votes of
(a) the holders of at least 75% of the voting power of all then outstanding
shares of Voting Stock, voting together as a single class, and (b) the holders
of at least a majority of the voting power of the then outstanding shares of
Voting Stock which are not beneficially owned by any Interested Shareholder,
voting together as a single class; provided, however, that the additional
affirmative votes required by this Section 10.1 shall not apply to any
shareholder adoption, amendment or repeal of any By-Law provision if such action
is recommended and submitted to the shareholders for their consideration by the
affirmative vote of a majority of the Disinterested Directors then in office.
10.2 Amendments to Articles. In addition to any affirmative vote
required by law, these Articles or otherwise, any amendment, alteration change
or repeal of any provision of these Articles, or the adoption of any provision
inconsistent therewith, shall require the affirmative votes of (a) the holders
of at least 75% of the voting power of all then outstanding shares of Voting
Stock, voting together as a single class, and (b) the holders of at least a
majority of the voting power of the then outstanding shares of Voting Stock
which are not beneficially owned by any Interested shareholder, voting together
as a single class; provided, however, that the additional affirmative votes
required by this Section 10.2 shall not apply to any amendment, alteration,
change, repeal or provision if it is recommended and submitted to the
shareholders for their consideration by the affirmative vote of a majority of
the Disinterested Directors then in office.
11th. Director Liability.
11.1 To the fullest extent that the Laws of the Commonwealth of
Pennsylvania, as in effect on January 27, 1987, or as thereafter amended, permit
elimination or limitation of the liability of directors, no director of the
Company shall be personally liable for monetary damages as such for any action
taken, or any failure to take any action, as a director.
11.2 This Article 11th shall not apply to any actions filed prior to
January 27, 1987, or to any breach of performance of duty or any failure of
performance of duty by any director of the Company occurring prior to January
27, 1987. The provisions of this Article 11th shall be deemed to be a contract
with each director of the Company who serves as such at any time while this
Article 11th is in effect, and each such director shall be deemed to be so
serving in reliance on the provisions of this Article 11th. Any amendment or
repeal of this Article 11th or adoption of any By-Law of this Company or other
provision of the Articles of this Company which has the effect of increasing
director liability shall operate prospectively only and shall not have any
effect with respect to any action taken, or any failure to act, by a director
prior to such amendment, repeal, By-Law or other provision becoming effective.
12. Indemnification of, and Advancement of Expenses to, Directors,
Officers and Others.
12.1 Right to Indemnification. Except as prohibited by law, every
director and officer of the Company shall be entitled as of right to be
indemnified by the Company against all expenses and liability (as those terms
are defined below in this Section 12.1) incurred by such person in connection
with any actual or threatened claim, action, suit or proceeding, whether civil,
criminal, administrative, investigative or other, or whether brought by or
against such person or by or in the right of the Company or otherwise, in which
such person may be involved in any manner, as a party or otherwise, by reason of
such person being or having been a director or officer of the Company or of a
subsidiary of
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the Company or by reason of the fact that such person is or was serving at the
request of the Company as a director, officer, employee, fiduciary or other
representative of another company, partnership, joint venture, trust, employee
benefit plan or other entity (such claim, action, suit or proceeding hereinafter
being referred to as an "Action"); provided, that no such right to
indemnification shall exist with respect to an Action brought by an indemnitee
(as defined below) against the Company (an "Indemnitee Action") except as
provided in the last sentence of this Section 12.1. Persons who are not
directors or officers of the Company may be similarly indemnified in respect of
service to the Company or a subsidiary of the Company or to another such entity
at the request of the Company to the extent the Board of Directors of the
Company at any time designates any of such persons as entitled to the benefits
of this Article 12th. As used in this Article 12th, "indemnitee" includes each
director and officer of the Company and each other person designated by the
Board of Directors of the Company as entitled to the benefits of this Article
12th; "expenses" means all expenses actually and reasonably incurred, including
fees and expenses of counsel selected by an indemnitee; and "liability" means
all liability incurred, including the amounts of any judgments, excise taxes,
fines or penalties and any amounts paid in settlement. An indemnitee shall be
entitled to be indemnified pursuant to this Section 12.1 against expenses
incurred in connection with an Indemnitee Action if (a) the Indemnitee Action is
instituted under Section 12.3 below and the indemnitee is successful in whole or
in part in such Indemnitee Action, (b) the indemnitee is successful in whole or
in part in another Indemnitee Action for which expenses are claimed or (c) if
the indemnification for expenses is included in a settlement of, or is awarded
by a court in, such other Indemnitee Action.
12.2. Right to Advancement of Expenses. Every indemnitee shall be
entitled as of right to have the expenses of the indemnitee in defending any
Action or in bringing and pursuing an Indemnitee Action under Section 12.3 below
paid in advance by the Company prior to final disposition of the Action or
Indemnitee Action, provided that the Company receives a written undertaking by
or on behalf of the indemnitee to repay the amount advanced if it should
ultimately be determined that the indemnitee is not entitled to be indemnified
for the expenses.
12.3. Right of Indemnitee to Initiate Action. If a written claim for
indemnification under Section 12.1 above or for advancement of expenses under
Section 12.2 above is not paid in full by the Company within 30 days after the
claim has been received by the Company, the indemnitee may at any time
thereafter bring an Indemnitee Action to recover the unpaid amount of the claim,
and, if successful in whole or in part, the indemnitee shall also be entitled to
be paid the expense of bringing and pursuing such Indemnitee Action. The only
defense to an Indemnitee Action to recover on a claim for indemnification under
Section 12.1 above shall be that the conduct of the indemnitee was such that
under Pennsylvania law the Company is prohibited from indemnifying the
indemnitee for the amount claimed but the burden of proving such defense shall
be on the Company. Neither the failure of the Company (including its Board of
Directors, independent legal counsel and shareholders) to have made a
determination prior to the commencement of such Indemnitee Action that
indemnification of the indemnitee is proper in the circumstances, nor an actual
determination by the Company (including its Board of Directors, independent
Legal counsel or shareholders) that the conduct of the indemnitee was such that
indemnification is prohibited by law, shall be a defense to such Indemnitee
Action or create a presumption that the conduct of the indemnitee was such that
indemnification is prohibited by law. The only defense to an Indemnitee Action
to recover a claim for advancement of expenses under Section 12.2 above shall be
the failure by the indemnitee to provide the undertaking required by Section
12.2 above.
12.4. Funding and Insurance. The Company may create a trust fund, grant
a security interest, cause a letter of credit to be issued or use other means
(whether or not similar to the foregoing) to ensure the payment of all sums
required to be paid by the Company to effect indemnification as provided in this
Article 12th.
12.5. Non-Exclusivity; Nature and Extent of Rights. The rights to
indemnification and advancement of expenses provided for in this Article 12th
shall (a) not be deemed exclusive of any other rights, whether now existing or
hereafter created, to which any indemnitee may be entitled under any agreement,
provision in the Articles or By-Laws of the Company, vote of shareholders or
directors or
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otherwise, (b) be deemed to create contractual rights in favor of each
indemnitee who serves at any time while this Article 12th is in effect (and each
such indemnitee shall be deemed to be so serving in reliance on the provisions
of this Article 12th and (c) continue as to each indemnitee who has ceased to
have the status pursuant to which the indemnitee was entitled or was designated
as entitled to indemnification under this Article 12th and inure to the benefit
of the heirs and legal representatives of each indemnitee. Any amendment or
repeal of this Article 12th or adoption of any By-Law of this Company or other
provision of the Articles of this Company which has the effect of limiting in
any way the rights to indemnification or advancement of expenses provided for in
this Article 12th shall operate prospectively only and shall not affect any
action taken, or failure to act, by an indemnitee prior to such amendment,
repeal, By-Law or other provision becoming effective.
12.6. Partial Indemnity. If an indemnitee is entitled under any
provision of this Article 12th to indemnification by the Company for some or a
portion of the expenses or liability incurred by the indemnitee in the
preparation, investigation, defense, appeal or settlement of any Action or
Indemnitee Action but not, however, for the total amount thereof, the Company
shall indemnify the indemnitee for the portion of such expenses or liability to
which the indemnitee is entitled.
12.7. Applicability of Section. This Article 12th shall apply to every
Action other than an Action filed prior to January 27, 1987, except that it
shall not apply to the extent that Pennsylvania law does not permit its
application to any breach of performance of duty or any failure of performance
of duty by an indemnitee occurring prior to January 27, 1987.
13th. Articles Defined. Henceforth, the Articles as defined in the
Pennsylvania Business Corporation Law shall not include any prior documents.
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STATEMENT WITH RESPECT TO SHARES
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
TUSCARORA INCORPORATED
(as filed with the Department of State on August 21, 1998)
In compliance with the requirements of Section 1522(c) of the
Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), the
undersigned company, a corporation organized and existing under the BCL (the
"COMPANY") hereby certifies that:
1. The name of the Company is Tuscarora Incorporated.
2. The resolution duly adopted by the Board of Directors of
the Company establishing and designating the Series A Junior Participating
Preferred Stock, which is the first series of the Preferred Stock, par value
$.01 per share, of the Company, and fixing and determining the relative rights
and preferences thereof (the "RESOLUTION") is as follows:
RESOLVED, that this Board of Directors, pursuant to authority
expressly vested on it by the provisions of the Restated Articles of
Incorporation of Tuscarora Incorporated (hereinafter called the "COMPANY")
hereby authorizes the issue of the first series of Preferred Stock, par value
$.01 per share, of the Company and hereby fixes the designation and relative
rights and preferences thereof in addition to those set forth in said Restated
Articles of Incorporation, as follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "SERIES A JUNIOR PARTICIPATING PREFERRED STOCK" (the
"SERIES A PREFERRED STOCK") and the number of shares constituting the Series A
Preferred Stock shall be 200,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Company
convertible into Series A Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of the Common Stock,
without par value (the "COMMON STOCK"), of the Company, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, semi-annual dividends
payable in cash on the 6th day of January and July in each year (or if the Board
of Directors commences declaration of quarterly cash dividends instead of
semi-annual dividends to the holders of Common Stock, commencing with the date
of the declaration of the first such quarterly cash dividend, quarterly
dividends payable in cash on such dates as such quarterly dividends would
normally be paid to the holders of the Common Stock) (each such date being
referred to herein as a "DIVIDEND PAYMENT DATE"), commencing on the first
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Dividend Payment Date or, with respect to the
first Dividend Payment Date, since the first issuance of any share or fraction
of a share of Series A Preferred Stock. In the event the Company shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
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<PAGE> 11
shares of Common Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Company shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Dividend Payment Date and the next subsequent
Dividend Payment Date, a dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Preferred Stock entitled to receive a dividend and before such Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareholders of the
Company. In the event the Company shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Statement With Respect to Shares creating a series of Preferred Stock or any
similar stock, or in any By-Law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital stock of
the Company having general voting rights shall vote together as one class on all
matters submitted to a vote of shareholders of the Company.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
2
<PAGE> 12
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever dividends or distributions payable on the Series
A Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid in full, the
Company shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock, provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Company ranking junior (either
as to dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. RE-ACQUIRED SHARES. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set forth
herein, in the Restated Articles of Incorporation or in any other Statement With
Respect to Shares creating a series of Preferred Stock or any similar stock or
as otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company shall at any time declare or
pay any dividend on the Common
3
<PAGE> 13
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Company
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each share
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. NO REDEMPTION. The shares of Series A Preferred
Stock shall not be redeemable.
SECTION 9. RANK. Except as otherwise set forth in the Restated
Articles of Incorporation or in the Statement With Respect to Shares creating
another series of Preferred Stock or any other class or series of stock, the
Series A Preferred Stock shall rank, with respect to the payment of dividends
and the distribution of assets, junior to all other series of the Company's
Preferred Stock and to any other class or series of stock other than the Common
Stock, whether now existing or hereafter created.
SECTION 10. AMENDMENT. The Restated Articles of Incorporation
of the Company shall not be amended in any manner which would materially alter
or change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without a majority vote of the outstanding
shares of Series A Preferred Stock, voting together as a single class.
3. (i) The aggregate number of shares of the Series A
Preferred Stock established and designated by the Resolution is 200,000, (ii)
the Company has not previously established and designated any other shares of
its stock pursuant to Section 1522 of the BCL or any corresponding provision of
prior law with respect thereto and (iii) the aggregate number of shares
established and designated by the Restated Articles of Incorporation of the
Company is 21,000,000, of which 1,000,000 shares are Preferred Stock, par value
$.01 per share, issuable in one or more series, and 20,000,000 shares are Common
Stock, without par value.
4. The Resolution was duly adopted at a meeting of the Board
of Directors of the Company duly called and held on August 17, 1998, at which
meeting a quorum was present and acted throughout.
5. The Resolution is to be effective upon the filing of this
Statement With Respect to Shares with the Secretary of State of the Commonwealth
of Pennsylvania.
4
<PAGE> 14
IN WITNESS WHEREOF, this Statement With Respect to Shares is
executed on behalf of the Company by its President and Chief Executive Officer
and attested by its Assistant Secretary this 17th day of August, 1998.
[CORPORATE SEAL]
Attest: TUSCARORA INCORPORATED
/s/ BRIAN C. MULLINS By:/s/ JOHN P. O'LEARY, JR.
- -------------------------- --------------------------------------
Brian C. Mullins, John P. O'Leary, Jr.,
Assistant Secretary President and Chief Executive Officer
5
<PAGE> 1
TUSCARORA INCORPORATED
EXHIBIT 11 - COMPUTATION OF DILUTED NET INCOME PER SHARE
<TABLE>
<CAPTION>
THREE MONTHS ENDED
NOVEMBER 30,
1998 1997
------ -----
<S> <C> <C>
Weighted average number of shares
of Common Stock outstanding 9,527 9,476
Net effect of dilutive stock options -
based on the treasury stock method
using the average market price for
the period 72 224
------ ------
TOTAL 9,599 9,700
====== ======
Net income $3,964 $3,772
====== ======
Per share amount $ .41 $ .39
====== ======
</TABLE>
The computation for the three months ended November 30, 1997 has been restated
to conform to SFAS No. 128. The numbers are in thousands except per share data.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> AUG-31-1999
<PERIOD-END> NOV-30-1998
<CASH> 2,772,397
<SECURITIES> 0
<RECEIVABLES> 36,135,042
<ALLOWANCES> 678,465
<INVENTORY> 20,254,378
<CURRENT-ASSETS> 61,499,079
<PP&E> 197,775,355
<DEPRECIATION> 99,936,876
<TOTAL-ASSETS> 171,749,571
<CURRENT-LIABILITIES> 2,426,048
<BONDS> 59,956,433
0
0
<COMMON> 9,534,641
<OTHER-SE> 73,784,304
<TOTAL-LIABILITY-AND-EQUITY> 171,749,571
<SALES> 60,465,735
<TOTAL-REVENUES> 60,465,735
<CGS> 45,378,424
<TOTAL-COSTS> 45,378,424
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 300,691
<INTEREST-EXPENSE> 1,211,831
<INCOME-PRETAX> 6,345,399
<INCOME-TAX> 2,380,992
<INCOME-CONTINUING> 3,964,407
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,964,407
<EPS-PRIMARY> 0.42
<EPS-DILUTED> 0.41
</TABLE>
