<PAGE> 1
UNITED STATES 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 June 30, 1995.........................
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
______________________________________________________________________________
FOR THE QUARTER ENDED COMMISSION FILE NUMBER
JUNE 30, 1995 1-10269
ALLERGAN, INC.
A DELAWARE CORPORATION IRS EMPLOYER IDENTIFICATION
95-1622442
2525 DUPONT DRIVE, IRVINE, CALIFORNIA 92715
TELEPHONE NUMBER 714/752-4500
Indicate by a 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.
(1) X yes no
----- -----
(2) X yes no
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
As of July 31, 1995 there were 64,278,789 shares of common stock outstanding.
<PAGE> 2
ALLERGAN, INC.
FORM 10-Q FOR THE QUARTER ENDED JUNE 30, 1995
INDEX
<TABLE>
<CAPTION>
Page
<S> <C>
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
(A) Consolidated Statements of Earnings - 3
Three Months and Six Months Ended
June 30, 1995 and 1994
(B) Consolidated Balance Sheets - 4
June 30, 1995 and December 31, 1994
(C) Consolidated Statements of Cash Flows - 5
Six Months Ended June 30, 1995 and 1994
(D) Notes to Consolidated Financial Statements 6-7
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 8-11
PART II - OTHER INFORMATION
ITEM 5 12
ITEM 6 12
Signature 13
Exhibits
</TABLE>
2
<PAGE> 3
PART I - FINANCIAL INFORMATION
Allergan, Inc.
Consolidated Statements of Earnings
(In millions, except per share amounts)
<TABLE>
<CAPTION>
Three months Six months
ended June 30, ended June 30,
--------------- ---------------
1995 1994 1995 1994
------ ------ ------ ------
<S> <C> <C> <C> <C>
Net Sales $262.2 $224.7 $490.5 $434.8
Operating costs and expenses:
Cost of sales 81.7 67.4 152.8 130.9
Selling, general and
administrative 116.4 96.1 219.9 182.4
Research and development 26.4 26.9 52.0 53.8
Contribution to ALRT 50.0 -- 50.0 --
------ ------ ------ ------
274.5 190.4 474.7 367.1
------ ------ ------ ------
Operating income (loss) (12.3) 34.3 15.8 67.7
Nonoperating income (expense):
Interest income 1.9 2.0 5.0 3.7
Interest expense (3.2) (2.7) (5.5) (5.0)
Other, net 2.4 0.6 4.8 0.3
------ ------ ------ ------
1.1 (0.1) 4.3 (1.0)
------ ------ ------ ------
Earnings (loss) from operations
before income taxes and
minority interest (11.2) 34.2 20.1 66.7
Provision for income taxes 11.4 10.2 20.6 19.8
Minority interest 0.4 0.5 0.8 1.2
------ ------ ------ ------
Net Earnings (Loss) $(23.0) $ 23.5 $(1.3) $ 45.7
====== ====== ====== ======
Net Earnings (Loss) Per Common Share $(0.36) $ 0.37 $(0.02) $ 0.72
====== ====== ====== =======
Weighted Average Common
Shares Outstanding 64.1 63.5 64.0 63.8
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE> 4
Allergan, Inc.
Consolidated Balance Sheets
(In millions, except share data)
<TABLE>
<CAPTION>
June 30, December 31,
1995 1994
------------- ------------
<S> <C>
ASSETS
Current assets:
Cash and equivalents $ 98.6 $ 130.7
Trade receivables, net 198.1 179.7
Inventories 106.0 96.8
Other current assets 88.4 78.3
-------- --------
Total current assets 491.1 485.5
Investments and other assets 168.8 133.4
Property, plant and equipment, net 326.6 314.8
Goodwill and intangibles, net 176.1 126.1
-------- --------
Total assets $1,162.6 $1,059.8
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable $ 45.6 $ 48.6
Accounts payable 53.5 59.9
Accrued expenses 139.2 148.7
Income taxes 27.4 66.5
-------- --------
Total current liabilities 265.7 323.7
Long-term debt 240.0 83.7
Other liabilities 40.9 38.5
Commitments and contingencies
Minority interest 17.1 10.6
Stockholders' equity:
Preferred stock, $.01 par value; authorized -- --
5,000,000 shares; none issued
Common stock, $.01 par value; authorized
150,000,000 shares; issued 67,336,000
and 67,387,000 shares 0.7 0.7
Additional paid-in capital 196.5 196.7
Foreign currency translation
adjustment 4.4 4.2
Investment market value adjustment (1.4) --
Retained earnings 469.2 485.3
-------- --------
669.4 686.9
Less - treasury stock, at cost
(3,147,000 and 3,724,000 shares) (70.5) (83.6)
-------- --------
Total stockholders' equity 598.9 603.3
-------- --------
Total liabilities and
stockholders' equity $1,162.6 $1,059.8
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE> 5
Allergan, Inc.
Consolidated Statements of Cash Flows
(In millions)
<TABLE>
<CAPTION>
Six months
ended June 30,
--------------
1995 1994
----- -----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings (loss) $(1.3) $45.7
Non-cash items included in net earnings:
Depreciation and amortization 29.0 22.5
Amortization of prepaid royalties 4.6 2.1
Deferred income taxes 0.1 (0.3)
Loss on sale of assets 1.1 1.5
Expense of compensation plans 1.9 2.7
Minority interest 0.8 1.2
Changes in assets and liabilities:
Trade receivables (11.1) (3.4)
Inventories (5.5) (3.0)
Accounts payable (7.5) (16.1)
Accrued liabilities (15.6) (11.2)
Income taxes (38.9) 1.4
Other (15.8) (5.4)
------ ------
Net cash provided by/(used in)
operating activities (58.2) 37.7
------ ------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment (25.6) (19.4)
Disposals of property, plant and equipment 0.3 0.4
Prepayments of royalties (14.6) (5.5)
Acquisitions of businesses (63.6) --
Other, net (17.5) (9.3)
------ ------
Net cash used in investing activities (121.0) (33.8)
------ ------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends to stockholders (14.6) (12.7)
Net borrowings under commercial paper obligations 87.8 22.5
Increase/(decrease) in notes payable (0.9) 0.9
Sale of stock to employees 8.8 2.6
Proceeds from long term debt 66.1 --
Repayments of long term debt (6.5) (0.9)
Payments to acquire treasury stock -- (21.6)
------ ------
Net cash provided by/(used in)
financing activities 140.7 (9.2)
------ ------
Effect of exchange rates on cash and
equivalents 6.4 3.4
------ ------
Net decrease in cash and equivalents (32.1) (1.9)
Cash and equivalents at beginning of period 130.7 141.8
------ ------
Cash and equivalents at end of period $ 98.6 $139.9
====== ======
</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE> 6
Allergan, Inc.
Notes to Consolidated Financial Statements
1. In the opinion of management, the accompanying consolidated
financial statements contain all adjustments necessary (consisting only of
normal recurring accruals) to present fairly the financial information
contained therein. These statements do not include all disclosures required by
generally accepted accounting principles and should be read in conjunction with
the audited financial statements of the Company for the year ended December 31,
1994. The results of operations for the six months ended June 30, 1995 are not
necessarily indicative of the results to be expected for the year ending
December 31, 1995. Earnings per common and common equivalent share were
computed by dividing net earnings by the weighted average number of common and
common equivalent shares outstanding during the respective periods.
2. Components of inventory were:
<TABLE>
<CAPTION>
June 30, December 31,
1995 1994
-------- ------------
(in millions)
<S> <C> <C>
Finished goods $ 72.0 $ 69.7
Work in process 13.6 8.4
Raw materials 20.4 18.7
------ ------
Total $106.0 $ 96.8
====== ======
</TABLE>
3. Income taxes are determined using an estimated annual effective
tax rate, which is less than the U.S. Federal statutory rate, primarily because
of lower tax rates in Puerto Rico and in certain non U.S. jurisdictions.
Withholding and U.S. taxes have not been provided for unremitted earnings of
certain non U.S. subsidiaries because the Company expects that such earnings
have been or will be reinvested in operations, or will be offset by appropriate
credits for foreign income taxes paid.
4. The Company is involved in various litigation and claims
arising in the normal course of business. The Company's management believes
that recovery or liability with respect to these matters would not have a
material adverse effect on the consolidated financial position and results of
operations of the Company.
5. The Company and Ligand Pharmaceuticals Incorporated (Ligand)
operated a joint venture for the purpose of performing certain research and
development activities. In December 1994, Allergan and Ligand formed a new
research and development company, Allergan Ligand Retinoid Therapeutics, Inc.
(ALRT) to function as the successor to the joint venture between the Company
and Ligand. During the quarter ended June 30, 1995, ALRT raised $32.5 million
in a public offering of units consisting of shares of ALRT stock and
Ligand warrants. At the completion of the offering in June 1995, Ligand
contributed $17.5 million to ALRT for a right to acquire all of the stock of
ALRT at specified future dates and amounts. At the same time, the Company
contributed $50.0 million to ALRT in exchange for rights to acquire one half of
all technologies and other assets in the event Ligand exercises its right to
acquire all of the stock of ALRT, or a similar right to acquire all of the
stock of ALRT if Ligand does not exercise its right. The Company also
purchased $6.0 million of Ligand
6
<PAGE> 7
Allergan, Inc.
Notes to Consolidated Financial Statements (Continued)
common stock at the time of its contribution to ALRT. The Company accounted
for its $50.0 million contribution as a charge to operating expense at the time
of the contribution.
6. On July 25, 1995 the Board of Directors declared a quarterly cash
dividend of $0.12 per share, payable September 15, 1995 to stockholders of
record on August 25, 1995.
7
<PAGE> 8
ALLERGAN, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1995
RESULTS OF OPERATIONS
The following table compares 1995 and 1994 net sales by Product Line for the
second quarter and year-to-date periods:
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30, Ended June 30,
---------------- ------------------
(in millions)
Net Sales by Product Line: 1995 1994 1995 1994
------ ------ ------ ------
<S> <C> <C> <C> <C>
Eye Care
Pharmaceuticals $ 99.3 $ 92.2 $184.9 $181.9
Surgical 48.4 33.9 88.5 61.2
Optical Lens Care 93.6 81.8 178.6 159.4
------ ------ ------ ------
241.3 207.9 452.0 402.5
Skin Care 8.8 8.1 16.3 15.8
Botox(R) 12.1 8.7 22.2 16.5
------ ------ ------ ------
Total Net Sales $262.2 $224.7 $490.5 $434.8
====== ====== ====== ======
</TABLE>
For the quarter ended June 30, 1995 total net sales increased 17% to $262.2
million as compared to the second quarter of 1994. Net sales for the six
months ended June 30, 1995 were $490.5 million, or 13% greater than the
comparable 1994 amount. The impact of foreign currency fluctuations for the
three month period ended June 30, 1995 increased sales by $13.6 million over
the prior comparable period. For the six months ended June 30, 1995, the
impact of foreign currency fluctuations increased sales by $21.7 million over
the prior comparable period. Sales growth excluding the impact of foreign
exchange between comparable periods was 11% for the second quarter and 8% for
the six months ended June 30, 1995. These sales growth rates are affected, in
part, by the highly competitive and, in certain cases, also highly regulated
markets worldwide in which the Company competes. The ability to increase
prices has been limited by, among other reasons, governmental actions, customer
demands, the introduction of competitors' innovative products and the
introduction of lower cost generic products. An impact to the Company for
those affected product lines is the partial loss of the ability to utilize
price increases to offset the effect of inflation on costs and expenses.
For the three months ended June 30, 1995, Eye Care Pharmaceuticals sales
increased 8% over the comparable 1994 period. For the six months ended June
30, 1995, such sales increased by 2% over the comparable 1994 period. Growth
in sales has been negatively impacted primarily as a result of a decrease in
wholesaler demand in the United States as a result of a late fourth quarter
1994 price increase. Sales growth has also been negatively impacted by
governmental pressure to restrict price increases in the United States,
governmental actions to control or reduce prices in many international markets,
customer demands and the introduction of lower cost generic products. The
largest sales volume products in this product line are glaucoma therapy
products, including Betagan(R) and Propine(R) ophthalmic solutions. In 1994,
the Company and major competitors introduced generic versions of Betagan(R)
(levobunolol) and Propine(R) (dipivefrin). The impact of this form of
competition has reduced sales.
8
<PAGE> 9
Allergan, Inc.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1995 (Continued)
RESULTS OF OPERATIONS (Continued)
Surgical sales increased 43% in the second quarter of 1995 compared to the
second quarter of 1994. For the first six months of 1995, surgical sales were
45% greater than the comparable period in 1994. For the second quarter,
domestic sales increased 29% while international sales increased 59% over the
prior comparable quarter. For the six month period ended June 30, 1995,
domestic sales increased 32% and international sales increased 60% compared to
the first six months of 1994. Increases in both silicone and PMMA intraocular
lens (IOLs) sales, along with increased sales of phacoemulsification surgical
instruments, contributed to the growth. In September 1994 the Company acquired
the assets of Ioptex Research Inc., a manufacturer of PMMA IOLs. In January
1995, the Company acquired Optical Micro Systems, Inc. (OMS), a manufacturer of
phacoemulsification surgical instruments. Sales of $6.7 million in the second
quarter and $12.1 million for the first six months of 1995 of Ioptex and OMS
products are included in 1995 surgical net sales. IOL selling prices continue
to decline in the United States and many international markets as a result of
competitive pressures and governmental actions reducing reimbursement rates for
cataract surgery.
Optical lens care sales of $93.6 million for the three months ended June 30,
1995 were 14% higher than the second quarter of 1994. Sales for the six months
ended June 30, 1995 of $178.6 million increased by 12% compared to 1994 sales.
Domestic optical sales increased by 9% in the second quarter and by 8% in the
first six months of 1995 compared to comparable 1994 amounts. Optical sales in
international markets increased by 16% in the second quarter and 14% in the
first six months of 1995 compared to comparable 1994 results. The sales
increases in both markets were primarily the result of growth in sales of the
Complete(R) brand one bottle disinfecting system. Complete(R) brand was
introduced in international markets beginning in 1993, and in the United States
market in June 1994.
Skin Care Pharmaceuticals second quarter 1995 sales were 9% higher than the
comparable quarter in 1994. Sales for the six months ended June 30, 1995 were
3% higher than the comparable period in 1994. Sales growth in both periods was
primarily the result of growth in sales of Elimite(R) cream. During the first
six months of 1995, growth in net sales was negatively impacted by a decrease
in wholesaler demand in the United States as a result of a late fourth quarter
1994 price increase.
Botox(R) (Botulinum Toxin Type A) purified neurotoxin complex sales increased
by 39% in the second quarter and 35% in the first six months of 1995 compared
to 1994 results. The increase was the result of strong growth in both the
United States and international markets.
Allergan's gross margin percentage for the second quarter of 1995 was 68.8% of
net sales, which represents a 1.2 percentage point decrease from the second
quarter of 1994. The gross margin percentage for the six months ended June 30,
1995 was 68.8% representing a 1.1 percentage point decrease from the comparable
1994 percentage. These decreases are a result of, among other things, the net
unfavorable impact of pressures on certain unit average selling prices and
product mix shifts. Gross margin increased in the second quarter of 1995 and
for the first six months of 1995 over 1994 periods as a result of increases in
net sales offset by the decreases in gross margin percentage.
9
<PAGE> 10
Allergan, Inc.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1995 (Continued)
RESULTS OF OPERATIONS (Continued)
Operating income was a loss of $12.3 million for the second quarter and income
of $15.8 million for the six months ended June 30, 1995. Results for the
second quarter include a charge of $50.0 million for a contribution to a new
research and development company, Allergan Ligand Retinoid Therapeutics, Inc.
(ALRT). Excluding the impact of the charge, operating income was $37.7 million
for the second quarter and $65.8 million for the six months ended June 30,
1995. The second quarter amount of $37.7 million represents a 10% increase
while the six month result of $65.8 million reflects a 3% decrease in operating
income compared to 1994 results. The increase in the second quarter was the
result of increased gross margin from increased sales, favorable impact of
foreign currency changes, and a decrease in research and development, offset by
an increase in selling, general and administrative expense. Research and
development costs were reduced by $1.8 million in the second quarter as costs
of retinoid research incurred in the first quarter were recovered from ALRT.
For the six month period, the decrease in operating income was the result of an
increase in selling, general and administrative expense offsetting an increase
in gross margin. Selling, general and administrative expense includes a
one-time charge of $4.0 million as a result of a product recall. The increases
in selling, general and administrative expense in 1995 were also the result of
promotional expenses related to Complete(R) brand and the surgical business,
and the impact of foreign currency changes.
The Company incurred a net loss of $23.0 million for the second quarter and a
$1.3 million loss for the six months ended June 30, 1995. Such amounts include
the $50.0 million charge for the contribution to ALRT. Excluding such charge,
net earnings for the second quarter were $27.0 million compared to $23.5
million in 1994, and for the six months ended June 30, 1995, net earnings were
$48.7 million compared to $45.7 million in 1994. Net earnings, excluding the
$50.0 million charge, increased in the second quarter as a result of the
increase in operating income and currency exchange gains included in
non-operating income. For the six months ended June 30, 1995, net earnings,
excluding the $50.0 million charge, increased as a result of an increase in
non-operating income offsetting the decrease in operating income.
Non-operating income increased as a result of currency exchange gains, an
increase in royalty income and realization of interest on a note.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1995, the Company had no borrowings against its bank credit
facility. This facility allows for borrowings of up to $225 million on a
revolving basis through September 1999. Borrowings under the credit facility
are subject to certain financial and operating covenants, including a
requirement that the Company maintain certain financial ratios and other
customary covenants for credit facilities of similar kind. As of June 30,
1995, the Company had commercial paper borrowings of $131 million including
$101 million classified as long-term debt.
The net cash used in operating activities for the six months ended June 30,
1995 was $58.2 million compared with $37.7 million provided by operating
activities for the respective 1994 period. Operating cash flow in 1995 was
reduced primarily by the $50 million charge for the contribution to ALRT.
10
<PAGE> 11
Allergan, Inc.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS FOR THE QUARTER ENDED JUNE 30, 1995 (Continued)
LIQUIDITY AND CAPITAL RESOURCES (Continued)
In addition, operating cash flow in 1995 was decreased as a result of a
significant reduction in income taxes payable. Most of the Company's existing
cash and equivalents are held by its non-U.S. subsidiaries and will be
reinvested in operations outside the United States.
The Company invested $25.6 million in new facilities and equipment during the
six months ended June 30, 1995 compared to $19.4 million during the same period
in 1994. In 1995, the Company invested $63.6 million in the acquisition of
businesses including OMS and a pharmaceutical business in Brazil.
Cash provided by financing activities was $140.7 million in the six months
ended June 30, 1995 compared to $9.2 million cash used in financing activities
in 1994. The amounts include dividend outflows of $14.6 million in 1995 and
$12.7 million in 1994. The 1995 amount includes proceeds from commercial paper
and long-term debt to provide cash to fund acquisitions of businesses, the
contribution to ALRT, and prepayments of royalties. The 1994 amount also
includes $21.6 million outflow for purchases of treasury stock.
11
<PAGE> 12
Allergan, Inc.
PART II - OTHER INFORMATION
Item 5. Other Information.
None.
Item 6. Exhibits and Reports on Form 8-K
- Exhibits
(numbered in accordance with Item 601 of Regulation S-K)
3 Bylaws of the Company
11 Statement re Computation of Per Share Earnings
27 Financial Data Schedule
- Reports on Form 8-K. None.
12
<PAGE> 13
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: August 10, 1995 ALLERGAN, INC.
/s/ A. J. Moyer
----------------------------
A. J. Moyer
Corporate Vice President and
Chief Financial Officer
13
<PAGE> 1
Exhibit 3
ALLERGAN, INC.
A DELAWARE CORPORATION
BYLAWS
ARTICLE I: OFFICES
SECTION 1. Registered Office. The registered office of
Allergan, Inc. (the "Corporation") shall be at Corporate Trust Center, 1209
Orange Street, City of Wilmington, County of New Castle, State of Delaware
19801, and the name of the registered agent in charge thereof shall be The
Corporation Trust Company.
SECTION 2. Principal Office. The principal office for the
transaction of the business of the Corporation shall be at such place as the
Board of Directors of the Corporation (the "Board") may determine. The Board is
hereby granted full power and authority to change said principal office from one
location to another.
SECTION 3. Other Offices. The Corporation may also have an
office or offices at such other place or places, either within or without the
State of Delaware, as the Board may from time to time determine or as the
business of the Corporation may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All annual meetings of
stockholders and all other meetings of stockholders shall be held either at the
principal office of the Corporation or at any other place within or without the
State of Delaware that may be designated by the Board pursuant to authority
hereinafter granted to the Board.
SECTION 2. Annual Meetings. Annual meetings of stockholders of
the Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time and place and on such date as the Board shall determine by resolution.
1
<PAGE> 2
SECTION 3. Special Meetings. Special meetings of stockholders
of the Corporation for any purpose or purposes may only be called in accordance
with the provisions of the Restated Certificate of Incorporation.
SECTION 4. Notice of Meetings. Except as otherwise required by
law, notice of each meeting of stockholders, whether annual or special, shall be
given not less than 10 days nor more than 60 days before the date of the meeting
to each stockholder of record entitled to vote at such meeting by delivering a
typewritten or printed notice thereof to such stockholder personally, or by
depositing such notice in the United States mail, in a postage prepaid envelope,
directed to such stockholder at such stockholder's post office address furnished
by such stockholder to the Secretary of the Corporation for such purpose, or, if
such stockholder shall not have furnished an address to the Secretary for such
purpose, then at such stockholder's post office address last known to the
Secretary, or by transmitting a notice thereof to such stockholder at such
address by telegraph, cable or wireless. Except as otherwise expressly required
by law, no publication of any notice of a meeting of stockholders shall be
required. Every notice of a meeting of stockholders shall state the place, date
and hour of the meeting and, in the case of a special meeting, shall also state
the purpose for which the meeting is called. Notice of any meeting of
stockholders shall not be required to be given to any stockholder to whom notice
may be omitted pursuant to applicable Delaware law or who shall have waived such
notice, and such notice shall be deemed waived by any stockholder who shall
attend such meeting in person or by proxy, except a stockholder who shall attend
such meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Except as otherwise expressly required by law, notice of any
adjourned meeting of stockholders need not be given if the time and place
thereof are announced at the meeting at which the adjournment is taken.
SECTION 5. Quorum. Except as otherwise required by law, the
holders of record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted thereat, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of
stockholders of the Corporation or any adjournment thereof. Subject to the
requirement of a larger percentage vote contained in the Restated Certificate of
Incorporation, these Bylaws or by statute, the stockholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding any withdrawal of stockholders that may leave
less than a quorum remaining, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to
2
<PAGE> 3
constitute a quorum. In the absence of a quorum at any meeting or any
adjournment thereof, a majority in voting interest of the stockholders present
in person or by proxy and entitled to vote thereat or, in the absence therefrom
of all the stockholders, any officer entitled to preside at, or to act as
secretary of, such meeting may adjourn such meeting from time to time. At any
such adjourned meeting at which a quorum is present, any business may be
transacted that might have been transacted at the meeting as originally called.
SECTION 6. Voting.
Each stockholder shall, at each meeting of stockholders, be
entitled to vote in person or by proxy each share of the stock of the
Corporation that has voting rights on the matter in question and that shall have
been held by such stockholder and registered in such stockholder's name on the
books of the Corporation:
(A) on the date fixed pursuant to Article VI, Section
5 of these Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such meeting; or
(B) if no such record date shall have been so fixed,
then (i) at the close of business on the day next preceding the day
upon which notice of the meeting shall be given or (ii) if notice of
the meeting shall be waived, at the close of business on the day next
preceding the day upon which the meeting shall be held.
Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
the pledgor shall have expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or the pledgee's proxy, may represent such stock and vote
thereon. Stock having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or with respect to
which two or more persons have the same fiduciary relationship, shall be voted
in accordance with the provisions of the Delaware General Corporation Law.
3
<PAGE> 4
Any such voting rights may be exercised by the stockholder
entitled thereto in person or by such stockholder's proxy appointed by an
instrument in writing, subscribed by such stockholder or by such stockholder's
attorney thereunto authorized and delivered to the secretary of the meeting;
provided, however, that no proxy shall be voted or acted upon after three years
from its date unless said proxy shall provide for a longer period. The
attendance at any meeting of a stockholder who may theretofore have given a
proxy shall not have the effect of revoking the same unless such stockholder
shall in writing so notify the secretary of the meeting prior to the voting of
the proxy. At any meeting of stockholders, all matters, except as otherwise
provided in the Restated Certificate of Incorporation, in these Bylaws or by
law, shall be decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat and
thereon, a quorum being present. The vote at any meeting of stockholders on any
question need not be by ballot, unless so directed by the chairman of the
meeting. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder's proxy, if there by such proxy, and it shall
state the number of shares voted.
SECTION 7. List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of such 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
10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 8. Judges. If at any meeting of stockholders a vote by
written ballot shall be taken on any question, the chairman of such meeting may
appoint a judge or judges to act with respect to such vote. Each judge so
appointed shall first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to the best of such
judge's ability. Such judges shall decide upon the qualification of the voters
and shall report the number of shares represented at the meeting and entitled to
vote on such question, shall conduct and accept the votes, and, when the voting
is completed, shall ascertain and report the number of
4
<PAGE> 5
shares voted respectively for and against the question. Reports of judges shall
be in writing and subscribed and delivered by them to the Secretary of the
Corporation. The judges need not be stockholders of the Corporation, and any
officer of the Corporation may be a judge on any question other than a vote for
or against a proposal in which such officer shall have a material interest.
ARTICLE III: BOARD OF DIRECTORS
SECTION 1. General Powers. Subject to any requirements in the
Restated Certificate of Incorporation, these Bylaws, and of the Delaware General
Corporation Law as to action which must be authorized or approved by the
stockholders, any and all corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be under the
direction of, the Board to the fullest extent permitted by law. Without limiting
the generality of the foregoing, it is hereby expressly declared that the Board
shall have the following powers, to wit:
(A) to select and remove all the officers, agents and
employees of the Corporation, prescribe such powers and duties for them
as may not be inconsistent with law, the Restated Certificate of
Incorporation or these Bylaws, fix their compensation, and require from
them security for faithful service;
(B) to conduct, manage and control the affairs and
business of the Corporation, and to make such rules and regulations
therefor not inconsistent with law, the Restated Certificate of
Incorporation or these Bylaws, as it may deem best;
(C) to change the location of the registered office
of the Corporation in Article I, Section 1 hereof; to change the
principal office for the transaction of the business of the Corporation
from one location to another as provided in Article I, Section 2
hereof; to fix and locate from time to time one or more subsidiary
offices of the Corporation within or without the State of Delaware as
provided in Article I, Section 3 hereof; to designate any place within
or without the State of Delaware for the holding of any meeting or
meetings of stockholders; and to adopt, make and use a corporate seal,
and to prescribe the forms of certificates of stock, and to alter the
form of such seal and of such certificates from time to time, and in
its judgment as it may deem best, provided such seal and such
certificate shall at all times comply with the provisions of law;
5
<PAGE> 6
(D) to authorize the issue of shares of stock of the
Corporation from time to time, upon such terms and for such
considerations as may be lawful;
(E) to borrow money and incur indebtedness for the
purposes of the Corporation, and to cause to be executed and delivered
therefor, in the corporate name, promissory notes, bonds, debentures,
deeds of trust and securities therefor; and
(F) by resolution adopted by a majority of the
authorized number of directors, to designate an executive and other
committees, each consisting of one or more directors, to serve at the
pleasure of the Board, and to prescribe the manner in which proceedings
of such committee or committees shall be conducted.
SECTION 2. Number and Term of Office. The authorized number of
directors of the Corporation shall be not less than three (3) nor more than
fifteen (15) until this Section 2 is amended by a resolution duly adopted by the
Board or by the stockholders of the Corporation. The exact number of directors
shall be fixed from time to time, within the limits specified, by resolution of
the board or the stockholders. Directors need not be stockholders. Each of the
directors of the Corporation shall hold office until such director's successor
shall have been duly elected and shall qualify or until such director shall
resign or shall have been removed in the manner provided in the Restated
Certificate of Incorporation. At all times a majority of the directors shall be
Independent Directors. If a director ceases to be an Independent Director, and
such change causes the majority of directors not to be Independent Directors,
the Board shall take such action as it deems prudent and necessary to cause the
Board to consist of directors, a majority of whom are Independent Directors.
SECTION 3. Election of Directors. The directors shall be
elected by the stockholders of the Corporation, and at each election, the
persons receiving the greater number of votes, up to the number of directors
then to be elected, shall be the persons then elected. The election of directors
is subject to any provisions contained in the Restated Certificate of
Incorporation relating thereto, including any provisions for a classified Board.
SECTION 4. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately upon
6
<PAGE> 7
receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 5. Vacancies. Except as otherwise provided in the
Restated Certificate of Incorporation, any vacancy on the Board, whether because
of death, resignation, disqualification, an increase in the number of directors,
or any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum. Each director so chosen to fill a
vacancy shall hold office until such director's successor shall have been
elected and shall qualify or until such director shall resign or shall have been
removed.
No reduction of the authorized number of directors shall have
the effect of removing any director prior to the expiration of such director's
term of office.
SECTION 6. Place of Meeting. The Board or any committee
thereof may hold any of its meetings at such place or places within or without
the State of Delaware as the Board or such committee may from time to time by
resolution designate or as shall be designated by the person or persons calling
the meeting or in the notice or a waiver of notice of any such meeting.
Directors may participate in any regular or special meeting of the Board or any
committee thereof by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board or such committee can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 7. First Meeting. The Board shall meet as soon as
practicable after each annual election of directors, and notice of such first
meeting shall not be required.
SECTION 8. Regular Meetings. Regular meetings of the Board may
be held at such times as the Board shall from time to time by resolution
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting shall be held at the
same hour and place on the next succeeding business day not a legal holiday.
Except as provided by law, notice of regular meetings need not be given.
SECTION 9. Special Meetings. Special meetings of the Board for
any purpose or purposes shall be called at any time by the Chairman of the Board
or, if the Chairman of the Board is absent or unable or refuses to act, by the
President. Except as otherwise provided by law or by these Bylaws, special
meetings of the Board of Directors shall be held upon four days' written
7
<PAGE> 8
notice or two hours' notice given personally or by telephone, telecopier or
other facsimile transmission, telegraph, telex or other similar means of
communication. Any such notice shall be addressed or delivered to each director
at such director's address as is shown upon the records of the Corporation or as
may have been given to the Corporation by the director for purposes of notice
or, if such address is not shown on such records or is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held. Notice by mail shall be deemed to have been given at the time such notice
is deposited in the United States mails, postage prepaid. Any other written
notice shall be deemed to have been given at the time it is personally delivered
to the recipient or is delivered to a common carrier for delivery or
transmission. Notice by telecopier or other facsimile transmission, telegraph,
telex or other similar means of communication shall be deemed to have been given
at the time it is actually transmitted by the person giving the notice by
electronic means to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient. Except where otherwise required by law or by these Bylaws, notice of
the purpose of a special meeting need not be given. Notice of any meeting of the
Board shall not be required to be given to any director who is present at such
meeting, except a director who shall attend such meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
SECTION 10. Quorum and Manner of Acting. Except as otherwise
provided in these Bylaws, the Restated Certificate of Incorporation or by
applicable law, the presence of a majority of the authorized number of directors
shall be required to constitute a quorum for the transaction of business at any
meeting of the Board, and all matters shall be decided at any such meeting, a
quorum being present, by the affirmative vote of a majority of the directors
present. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, provided any
action taken is approved by at least a majority of the required quorum for such
meeting. In the absence of a quorum, a majority of directors present at any
meeting may adjourn the same from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall act only
as a Board, and the individual directors shall have no power as such.
SECTION 11. Action by Consent. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
8
<PAGE> 9
may be taken without a meeting if consent in writing is given thereto by all
members of the Board or of such committee, as the case may be, and such consent
is filed with the minutes of proceedings of the Board or of such committee.
SECTION 12. Compensation. Directors who are not employees of
the Corporation or any of its subsidiaries may receive an annual fee for their
services as directors in an amount fixed by resolution of the Board, and, in
addition, a fixed fee, with or without expenses of attendance, may be allowed by
resolution of the Board for attendance at each meeting, including each meeting
of a committee of the Board. 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 13. Committees. The Board may, by resolution passed by
a majority of the whole Board, designate one or more committees, each committee
to consist of one or more of the directors of the Corporation. Any such
committee, to the extent provided in the resolution of the Board and subject to
any restrictions or limitation on the delegation of power and authority imposed
by applicable Delaware law, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Any such committee shall keep written minutes of
its meetings and report the same to the Board at the next regular meeting of the
Board. Unless the Board or these Bylaws shall otherwise prescribe the manner of
proceedings of any such committee, meetings of such committee may be regularly
scheduled in advance and may be called at any time by the chairman of the
committee or by any two members thereof; otherwise, the provisions of these
Bylaws with respect to notice and conduct of meetings of the Board shall govern.
SECTION 14. Definition of Independent Director. For purposes
of this Article III, the term "Independent Director" means a director who: (1)
is not and has not been employed by the Corporation in an executive capacity
within the five years immediately prior to the annual meeting at which the
nominees to the Board will be voted upon; (2) is not (and is not affiliated with
a company or a firm that is) a significant advisor or consultant to the
Corporation; (3) is not affiliated with a significant customer or supplier of
the Corporation; (4) does not have significant personal services contract(s)
with the Corporation; (5) is not affiliated with a tax-exempt entity that
receives significant contributions from the Corporation; and (6) is not a
spouse, parent, sibling or child of any person described by (1) through (5).
9
<PAGE> 10
SECTION 15. Interpretation and Application of this Article.
The Board shall have the exclusive right and power to interpret and apply the
provisions of this Article, including, without limitation, the adoption of
written definitions of terms used in and guidelines for the application of this
Article (any such definitions and guidelines shall be filed with the Secretary,
and such definitions and guidelines as may prevail shall be made available to
any stockholder upon written request): any such definitions or guidelines and
any other interpretation or application of the provisions of this Article made
in good faith shall be binding and conclusive upon the stockholders, provided
that, in the case of any interpretation or application of this Article by the
Board to a specific person which results in such person being classified as an
Independent Director, the Board shall have determined that such person is
independent of management and free from any relationship that, in the opinion of
the Board, would interfere with such person's exercise of independent judgment
as a board member.
ARTICLE IV: OFFICERS
SECTION 1. Officers. The officers of the Corporation shall be
a Chairman of the Board, a President, one or more Vice Presidents (the number
thereof and their respective titles to be determined by the Board), a Secretary,
a Treasurer and such other officers as may be appointed at the discretion of the
Board in accordance with the provisions of Section 3 of this Article IV. At the
discretion of the Board of Directors, from time to time, the Chairman of the
Board may be a director of the Corporation who is not an officer of the
Corporation.
SECTION 2. Election. The officers of the Corporation, except
such officers as may be appointed or elected in accordance with the provisions
of Section 3 or Section 5 of this Article IV, shall be chosen annually by the
Board at the first meeting thereof, and each officer shall hold office until
such officer shall resign or shall be removed or otherwise disqualified to
serve, or until such officer's successor shall be elected and qualified.
SECTION 3. Other Officers. In addition to the officers chosen
annually by the Board at its first meeting, the Board also may appoint or elect
such other officers as the business of the Corporation may require, each of whom
shall have such authority and perform such duties as are provided in these
Bylaws or as the Board may from time to time specify, and shall hold office
until such officer shall resign or shall be removed or otherwise
10
<PAGE> 11
disqualified to serve, or until such officer's successor shall be elected and
qualified.
SECTION 4. Removal and Resignation. Any officer may be
removed, either with or without cause, by resolution of the Board passed by a
majority of the directors at the time in office, at any regular or special
meeting of the Board, or except in case of an officer chosen by the Board, by
any officer upon whom such power of removal may be conferred by the Board.
SECTION 5. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular appointment to such office.
SECTION 6. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of stockholders and at all meetings of the Board.
The Chairman of the Board shall be a member of such committees, if any, and
shall have such other powers and duties as may be prescribed by the Board or
these Bylaws.
SECTION 7. President. The President shall be the Chief
Executive Officer of the Corporation and shall, subject to the control of the
Board, have general supervision, direction and control of the business and
affairs of the Corporation.
SECTION 8. Vice President. Each Vice President shall have such
powers and perform such duties with respect to the administration of the
business and affairs of the Corporation as may from time to time be assigned to
such Vice President by the President or the Board, or as may be prescribed by
these Bylaws.
SECTION 9. Secretary. The Secretary shall keep, or cause to be
kept, at the principal office of the Corporation, or such other place as the
Board may order, a book of minutes of all meetings of directors and
stockholders, with the time and place of holding, whether regular or special,
and if special, how authorized and the notice thereof given, the names of those
present at meetings of directors, the number of shares present or represented at
meetings of stockholders, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the
principal office of the Corporation's transfer agent, a share register, or a
duplicate share register, showing the name and address of each stockholder, the
number of shares of each class held by such stockholder, the number and date of
11
<PAGE> 12
certificates issued for such shares, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and of the Board required by these Bylaws or by law to
be given, and shall keep the seal of the Corporation in safe custody and shall
affix and attest the seal to all documents to be executed on behalf of the
Corporation under its seal, and shall have such other powers and perform such
other duties as may be prescribed by these Bylaws or assigned by the Board, the
Chairman of the Board or any officer of the Corporation to whom the Secretary
may report. If for any reason the Secretary shall fail to give notice of any
special meeting of the Board called by one or more of the persons identified in
Article III, Section 9 thereof, then any such person or persons may give notice
of any such special meeting.
SECTION 10. Treasurer. The Treasurer shall supervise, have
custody of and be responsible for all funds and securities of the Corporation.
The Treasurer shall deposit all moneys and other valuables in the name and to
the credit of the Corporation with such depositories as may be designated by the
Board or in accordance with authority delegated by the Board. The Treasurer
shall disburse the funds of the Corporation as may be ordered or authorized by
the Board, shall render to the Board and the Chairman of the Board whenever they
request it, an account of all of the Treasurer's transactions, and shall have
such other powers and perform such other duties as may be prescribed by these
Bylaws or assigned by the Board, the Chairman of the Board or any officer of the
Corporation to whom the Treasurer may report.
ARTICLE V: CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Execution of Contracts. The Board, except as
otherwise provided in these Bylaws, may authorize any officer or officers, or
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the Corporation, and such authority may be general or
confined to specific instances; and unless so authorized by the Board or by
these Bylaws, no officer, agent or employee shall have any power or authority to
bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or in any amount.
SECTION 2. Checks, Drafts, Etc. All checks, drafts, or other
orders for payment of money, notes or other evidence of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by
12
<PAGE> 13
such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board. Each such officer, assistant, agent or
attorney shall give such bond, if any, as the Board may require.
SECTION 3. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as the Board
may select, or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to whom
such power shall have been delegated by the Board. For the purpose of deposit
and for the purpose of collection for the account of the Corporation, the
Chairman of the Board, the President, any Vice President or the Treasurer (or
any other officer or officers, assistant or assistants, agent or agents, or
attorney or attorneys of the Corporation who shall from time to time be
determined by the Board) may endorse, assign and deliver checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation.
SECTION 4. General and Special Bank Accounts. The Board may
from time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board may
select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to whom
such power shall have been delegated by the Board. The Board may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI: SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the Corporation owned by such owner. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board, the President or any Vice President, and by the Secretary
or the Treasurer. Any or all of the signatures on the certificates may be a
facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, any such certificate, shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by the Corporation with
13
<PAGE> 14
the same effect as though the person who signed such certificate, or whose
facsimile signature shall have been placed thereupon, were such officer,
transfer agent or registrar at the date of issue. A record shall be kept of the
respective names and addresses of the persons, firms or corporations owning the
stock represented by such certificates, the number and class of shares
represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be canceled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such existing certificate shall have been so
canceled, except in cases provided for in Section 4 of this Article VI.
SECTION 2. Transfers of Stock. Transfers of shares of stock of
the Corporation shall be made only on the books of the Corporation by the
registered holder thereof, or by such holder's attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, or with a transfer
clerk or a transfer agent appointed as provided in Section 3 of this Article VI,
and upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, such fact shall be so
expressed in the entry of transfer if, when the certificate or certificates
shall be presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
SECTION 3. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
SECTION 4. Lost, Stolen, Destroyed, and Mutilated
Certificates. In any case of loss, theft, destruction, or mutilation of any
certificate of stock, another may be issued in its place upon proof of such
loss, theft, destruction, or mutilation and upon the giving of a bond of
indemnity to the Corporation in such form and in such sum as the Board may
direct; provided, however, that a new certificate may be issued without
requiring any bond when, in the judgment of the Board, it is proper so to do.
14
<PAGE> 15
SECTION 5. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
other change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board may fix, in advance, a record date, which shall not be
more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action. If in any case involving the
determination of stockholders for any purpose other than notice of or voting at
a meeting of stockholders the Board shall not fix such a record date, then the
record date for determining stockholders for such purpose shall be the close of
business on the day on which the Board shall adopt the resolution relating
thereto. A determination of stockholders entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of such meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE VII: MISCELLANEOUS
SECTION 1. Seal. The Board shall adopt a corporate seal, which
shall be in the form of a circle and shall bear the name of the Corporation and
words showing that the Corporation was incorporated in the State of Delaware.
SECTION 2. Waiver of Notices. Whenever notice is required to
be given by these Bylaws or the Restated Certificate of Incorporation or by law,
the person entitled to said notice may waive such notice in writing, either
before or after the time stated therein, and such waiver shall be deemed
equivalent to notice.
15
<PAGE> 16
SECTION 3. Amendments. Except as otherwise provided herein or
in the Restated Certificate of Incorporation, these Bylaws or any of them may be
altered, amended, repealed or rescinded and new Bylaws may be adopted by the
Board or by the stockholders at any annual or special meeting of stockholders,
provided that notice of such proposed alteration, amendment, repeal, recision or
adoption is given in the notice of such meeting.
SECTION 4. Representation of Other Corporations. The Chairman
of the Board or the President or the Secretary or any Vice President of the
Corporation is authorized to vote, represent and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the Corporation. The authority herein
granted to said officers to vote or represent on behalf of the Corporation any
and all shares held by the Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by such officers.
Amended and Restated effective May 18, 1989
Amended effective January 1, 1992
Amended effective April 1, 1994
Amended effective July 25, 1995
16
<PAGE> 1
ALLERGAN, INC.
EXHIBIT 11
COMPUTATION OF EARNINGS PER SHARE
Earnings per share of common stock, including common stock equivalents, have
been computed based on the following weighted average number of shares and net
earnings:
<TABLE>
<CAPTION>
Three Months Six Months
Ended Ended
June 30, 1995 June 30, 1995
------------- -------------
<S> <C> <C>
(000's, except per share amounts)
Weighted average number of shares
outstanding during the period 64,099 63,960
Weighted average number of additional
shares issuable in connection with
dilutive stock options based upon
use of the treasury stock method
and average market prices (A) -- --
------- -------
Weighted average number of common shares
including common stock equivalents 64,099 63,960
======= =======
Net loss for the period $ (23.0) $ (1.3)
======= =======
Primary loss per common share $(0.36) $(0.02)
======= =======
</TABLE>
(A) Such shares have been omitted as their effect would be anti-dilutive.
13
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUN-30-1995
<EXCHANGE-RATE> 1
<CASH> 98,600
<SECURITIES> 0
<RECEIVABLES> 203,100
<ALLOWANCES> 5,000
<INVENTORY> 106,000
<CURRENT-ASSETS> 491,100
<PP&E> 526,800
<DEPRECIATION> 200,200
<TOTAL-ASSETS> 1,162,600
<CURRENT-LIABILITIES> 265,700
<BONDS> 240,000
<COMMON> 700
0
0
<OTHER-SE> 598,200
<TOTAL-LIABILITY-AND-EQUITY> 1,162,600
<SALES> 490,500
<TOTAL-REVENUES> 490,500
<CGS> 152,800
<TOTAL-COSTS> 152,800
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 300
<INTEREST-EXPENSE> 5,500
<INCOME-PRETAX> 20,100
<INCOME-TAX> 20,600
<INCOME-CONTINUING> (1,300)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,300)
<EPS-PRIMARY> (0.02)
<EPS-DILUTED> (0.02)
</TABLE>
