UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________ to ______________
Commission File No. 0-795
BADGER PAPER MILLS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-0143840
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 West Front Street
Peshtigo, Wisconsin 54157
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (715) 582-4551
Indicate by checkmark 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 report(s), and (2) has been subject to such filing
requirements for the past 90 days. |X| Yes. |_| No.
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the last practicable date: 1,970,244 as of September 30,
1999.
<PAGE>
BADGER PAPER MILLS, INC.
INDEX
Page No.
--------
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Interim Statement of Income
Three Months and Nine Months Ended
September 30, 1999 and 1998 3
Condensed Consolidated Balance Sheet
September 30, 1999 and December 31, 1998 4
Condensed Consolidated Statement of Cash Flow
Nine Months Ended September 30, 1999 and 1998 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations. 8
Item 3. Quantitative and Qualitative Disclosures About Market Risk 13
PART II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 13
Item 6. Exhibits and Reports on Form 8-K 13
SIGNATURES 14
2
<PAGE>
<TABLE>
BADGER PAPER MILLS, INC.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF INCOME
(UNAUDITED)
(Dollars in thousands, except per share data)
<CAPTION>
For Three Months Ended For Nine Months Ended
September 30 September 30
------------------------------------ -----------------------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Sales $17,413 $16,121 $49,407 $51,844
Cost of Sales 16,873 14,207 44,855 46,353
---------------- ---------------- --------------- ----------------
Gross Margin 540 1,914 4,552 5,491
Selling and Administrative Expenses 1,126 1,151 3,617 3,397
---------------- ---------------- --------------- ----------------
Operating Income (Loss) (586) 763 935 2,094
Interest Expense (259) (283) (795) (898)
Interest Income 12 59 69 184
Other Income (Expense) 42 81 122 321
Non Recurring Life Insurance Proceeds - - 391 -
Non Recurring Gain on Lodge Sale - - - 611
Non Recurring Executive Termination Expense - - - (286)
---------------- ---------------- --------------- ----------------
Income (Loss) Before Income Taxes (791) 620 722 2,026
Income Tax Expense (Benefit) (268) 212 246 689
---------------- ---------------- --------------- ----------------
Net Income (Loss) $(523) $408 $476 $1,337
---------------- ---------------- --------------- ----------------
Net Earnings Per Share - Basic $(0.27) $0.21 $0.24 $0.68
Net Earnings Per Share - Diluted $(0.27) $0.24
Average Shares Outstanding - Basic 1,968,100 1,955,994 1,964,479 1,953,323
Average Shares Outstanding - Diluted 1,968,100 1,964,479
Cash Dividends - - -
Dividends Per Share - - - -
</TABLE>
See Notes to Consolidated Financial Statements.
3
<PAGE>
<TABLE>
BADGER PAPER MILLS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(Dollars in thousands)
<CAPTION>
September 30 December 31,
1999 1998
---------------- --------------
ASSETS:
Current Assets:
<S> <C> <C>
Cash & Cash Equivalents $803 $2,229
Certificates of Deposit 500 996
Marketable Securities 143 1,361
Accounts Receivable, Net 6,158 5,262
Deferred Income Taxes 1,170 1,220
Inventories 7,427 6,201
Refundable Income Taxes 27 27
Other Current Assets 592 558
---------------- --------------
Total Current Assets 16,820 17,854
Property, Plant, Equipment & Timberlands 66,984 65,089
Less: Allowance for Depreciation & Depletion (39,936) (37,798)
---------------- --------------
Total Property, Plant, Equipment & Timberlands, Net 27,048 27,291
Trade Credits 624 696
Other Assets 1,783 2,158
---------------- --------------
TOTAL ASSETS $46,275 $47,999
================ ==============
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current Liabilities:
Current Portion of Long-Term Debt $2,497 $3,068
Accounts Payable 4,968 3,913
Accrued Liabilities 3,427 3,357
Income Taxes Payable - 170
---------------- --------------
Total Current Liabilities 10,892 10,508
Deferred Income Taxes 1,649 1,700
Long-Term Debt 13,825 16,126
Other Liabilities 1,106 1,408
---------------- --------------
TOTAL LIABILITIES 27,472 29,742
---------------- --------------
Stockholders' Equity:
Common Stock, No Par Value
4,000,000 Shares Authorized
2,160,000 Shares Issued 2,700 2,700
Additional Paid-in Capital 205 200
Retained Earnings 17,774 17,296
Less Treasury Shares at Cost:
189,756 Shares at 9/30/99 and 199,278 Shares at 12/31/98 (1,876) (1,939)
---------------- --------------
TOTAL STOCKHOLDERS' EQUITY 18,803 18,257
---------------- --------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $46,275 $47,999
================ ==============
See Notes to Consolidated Financial Statements
</TABLE>
4
<PAGE>
<TABLE>
BADGER PAPER MILLS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(Dollars in thousands)
<CAPTION>
For Nine Months Ended
September 30
----------------------------------
1999 1998
--------------- -------------
Cash Flows from Operating Activities:
<S> <C> <C>
Net Income $476 $1,337
Adjustments to Reconcile to Net Cash
Provided By (Used in) Operating Activities:
Depreciation 2,138 2,098
Director's Fees Paid in Stock 70 34
Deferred Income Taxes (1) -
Gain on Sale of Lodge - (611)
Changes in Assets and Liabilities:
(Increase) Decrease in Accounts Receivable, Net (896) (572)
(Increase) Decrease in Inventories (1,226) (903)
Increase (Decrease) in Accounts Payable 1,055 33
Increase (Decrease) in Accrued Liabilities 70 (672)
Income Taxes Refundable (Payable) (170) 626
(Increase) Decrease in Other (280) 191
--------------- --------------
Net Cash Provided by (Used in) Operating Activities 1,236 1,561
--------------- --------------
Cash Flows From Investing Activities:
Additions to Property, Plant and Equipment, Net (1,895) (1,739)
Net Acquisition of Certificates of Deposit 496 386
Purchase of Marketable Securities - (440)
Proceeds from Sales of Marketable Securities 1,218 -
Proceeds from Refund of Prepaid Leased Assets - 1,572
Proceeds from Sales of Lodge - 725
Proceeds from Life Insurance Proceeds 391 -
--------------- --------------
Net Cash (Used in) Provided by Investing Activities 210 504
--------------- --------------
Cash Flows from Financing Activities:
Increase to (Payments on) Long-Term Debt (2,772) (109)
Increase to (Decrease in) Revolving Credit Borrowings (100) (2,200)
--------------- --------------
Net Cash (Used in) Provided by Financing Activities (2,872) (2,309)
--------------- --------------
Net (Decrease) Increase in Cash and Cash Equivalents (1,426) (244)
Cash and Cash Equivalents:
Beginning of Period 2,229 1,302
--------------- --------------
End of Period $803 $1,058
=============== ==============
</TABLE>
See Notes to Consolidated Financial Statements.
5
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Note 1. Basis of Presentation
The accompanying condensed financial statements, in the opinion of
management, include all adjustments which are normal and recurring in
nature and are necessary for a fair statement of results for each period
shown. Some adjustments involve estimates, which may require revision in
subsequent interim periods or at year-end. In all regards, the financial
statements have been presented in accordance with generally accepted
accounting principles. The accounting policies which are pertinent to these
statements are described in the financial statement notes in the Company's
Form 10K and Annual Report for the year ended December 31, 1998.
Note 2. Income Taxes
The provision or benefit for income taxes has been computed by applying an
estimated annual effective tax rate. This rate was 34% for the three and
nine months periods ended September 30, 1999 and 1998.
Note 3. Earnings per Share
Basic earnings per share amounts are computed based on the weighted average
number of shares outstanding during each period. Diluted per share amounts
equals net earnings divided by common shares outstanding after giving
effect to dilutive stock options granted under the stock option plan
approved by shareholders at the May 11, 1999 annual meeting of
shareholders. The stock options deemed outstanding beginning in the third
quarter of 1999 had an immaterial effect on the weighted average number of
shares outstanding and therefore basic and diluted per share amounts are
the same.
Note 4. Stock Option Plan
Badger Paper Mills, Inc. has elected to follow Accounting Principles Board
Opinion No. 25, Accounting for Stock issued to Employees (APB 25) and
related interpretations in accounting for its stock option plan. Under APB
25, because the exercise price of the stock options equals the market price
of the underlying stock on the date of grant, no compensation expense is
recorded. Badger Paper is subject to the disclosure rules of SFAS 123,
Accounting for Stock Based Compensation. Management has determined that the
impact of SFAS 123 on net income and stockholders' equity was not material
as of and for the quarter ended September 30, 1999.
Note 5. Inventories
The major components of inventories were as follows:
September 30, December 31,
(In thousands of dollars) 1999 1998
- --------------------------------------------------------------------------------
Raw Materials $ 2,997 $ 2,586
Finished Goods and Work in Process 8,531 7,565
--------- ---------
Subtotal 11,528 10,151
Less: LIFO Reserve (4,101) (3,950)
--------- ---------
Total Inventories $ 7,427 $ 6,201
========= =========
6
<PAGE>
Note 6. Contingencies
The Company operates in an industry which is subject to laws and
regulations at both federal and state levels relating to the protection of
the environment. The Company undergoes continued environmental testing and
analysis, and the precise cost of compliance with environmental
requirements has not been determined.
In addition, the Company is subject to various claims, the ultimate
outcomes of which management cannot predict. Management believes, however,
that the outcomes will not have a material adverse effect on the Company's
consolidated financial position or results of operations.
Note 7. Operating Segments
Badger Paper adopted SFAS 131 (Disclosures about Segments of an Enterprise
and Related Information) in 1998. Prior years' information has been
restated to present segment information for the Company's two business
segments, paper products and printing and converting. The paper products
segment produces a variety of paper products including fine paper, business
paper, colored paper, waxed paper, specialty coated base papers and
twisting papers. The printing and converting segment prints and converts
flexible packaging materials for the paper products segment as well as
films and non-woven materials from other customers.
The following provides information on the Company's operating segments for
the three-month and nine-month periods ended September 30:
<TABLE>
(Dollars in thousands)
<CAPTION>
PRINTING &
PAPER PRODUCTS CONVERTING TOTAL
For Three Months For Three Months For Three Months
Ended September 30 Ended September 30 Ended September 30
--------------------------------- --------------------------- ----------------------------
1999 1998 1999 1998 1999 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Revenues from external
customers $15,771 $14,792 $2,618 $1,871 $18,389 $16,663
Intersegmental revenues 657 182 319 360 976 542
Segment income before tax (1,074) 484 283 136 (791) 620
Segment assets 40,366 42,093 5,909 5,171 46,275 47,264
<CAPTION>
For Nine Months For Nine Months For Nine Months
Ended September 30 Ended September 30 Ended September 30
--------------------------------- --------------------------- ----------------------------
1999 1998 1999 1998 1999 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Revenues from external
customers $45,443 $48,458 $7,281 $4,908 $52,724 $53,366
Intersegmental revenues 2,054 392 1,263 1,130 3,317 1,522
Segment income before tax 102 1,666 620 360 722 2,026
Segment assets 40,366 42,093 5,909 5,171 46,275 47,264
</TABLE>
<TABLE>
The following is a reconciliation of segment information to consolidated information:
<CAPTION>
For Three Months For Nine Months
Ended September 30 Ended September 30
----------------------------------- ---------------------------
1999 1998 1999 1998
Revenues:
<S> <C> <C> <C> <C>
Total revenues for segment $18,389 $16,663 $52,724 $53,366
Elimination of intersegment revenues (976) (542) (3,317) (1,522)
------------ ---------------- ----------- --------------
Total consolidated revenues $17,413 $16,121 $49,407 $51,844
</TABLE>
7
<PAGE>
Total segment income, assets and other significant items are the same as
the consolidated information. All operations of the Company are located in
the United States. Revenues from foreign countries are primarily from
Canada and Mexico and are immaterial to total revenues.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Statement Regarding Forward-Looking Information
This Form 10-Q may include one or more "forward-looking statements" within the
meaning of Sections 27A of the Securities Act of 1933 and 21E of the Securities
Exchange Act of 1934 as enacted in the Private Securities Litigation Reform Act
of 1995 (the "Reform Act"). In making forward-looking statements within the
meaning of the Reform Act, the Company undertakes no obligation to publicly
update or revise any such statement.
Forward-looking statements of the Company are based on information available to
the Company as of the date of such statements and reflect the Company's
expectations as of such date, but are subject to risks and uncertainties that
may cause actual results to vary materially. In addition to specific factors
which may be described in connection with any of the Company's forward-looking
statements, factors which could cause actual results to differ materially
include, but are not limited to the following:
o Increased competition from either domestic or foreign paper producers or
providers of alternatives to the Company's products, including increases in
competitive production capacity, resulting in sales declines from reduced
shipment volume and/or lower net selling prices in order to maintain
shipment volume.
o Changes in demand for the Company's products due to overall economic
activity affecting the rate of consumption of the Company's paper products,
growth rates of the end markets for the Company's products, technological
or consumer preference changes or acceptance of the products by the markets
served by the Company.
o Changes in the price of pulp, the Company's main raw material. All of the
Company's pulp needs are purchased on the open market and price changes for
pulp have a significant impact on the Company's costs. Pulp price changes
can occur due to worldwide consumption levels of pulp, pulp capacity
additions, expansions or curtailments affecting the supply of pulp,
inventory building or depletion at pulp consumer levels which affect
short-term demand, and pulp producer cost changes related to wood
availability, environmental issues, or other variables.
o Unforeseen operational problems at any of the Company's facilities causing
significant lost production and/or cost issues.
o Changes in laws or regulations which affect the Company.
8
<PAGE>
Results of Operations
Net Sales
Net sales for the third quarter ended September 30, 1999 were $17,413,000, up 8%
from the net sales for the same three-month period ended in 1998. Shipping
volumes in the third quarter of 1999 increased 9% from the same period in 1998
despite weak market conditions in the industry, especially in the commodity
markets. The average selling price for the third quarter decreased slightly at
2% from the same period in 1998.
Net sales for the nine-month period ended September 30, 1999 were $49,407,000,
down 5% from the net sales for the same nine-month period ended in 1998. The
industry's weak market conditions have resulted in a decline of 9% in shipping
volume of our products. The average selling price for the nine-month period of
1999 increased 3% over the same period in 1998.
Net sales for the paper products segment were $15,771,000 for the three months
ending September 30, 1999, which is a $979,000 or 7% increase from the same
period in 1998. Shipping volumes for the third quarter increased 9%, over the
comparative period in 1998, while the average selling price decreased 2% from
last year. This is because of a higher volume of lower priced commodity products
shipped during the third quarter of 1999.
Year to date net sales for the paper products segment were $45,443,000 in 1999,
compared to $48,458,000 for the same period last year. Shipping volumes for the
Company's paper products decreased 9% from 1998, while average selling prices
increased 3%. The higher selling prices resulted from our efforts to displace
commodity products with higher margin specialty products. The net sales of the
paper products segment represent 86% of our consolidated net sales.
Net sales for the printing and converting segment were $2,618,000 for the three
months ending September 30, 1999, which is a $747,000 or 40% improvement over
the same period in 1998. Year to date net sales improved 48% to $7,281,000 in
1999 compared to $4,908.000 for the same period last year. The increase in net
sales is a direct result of the new tissue wrap business printed on the Chadwick
printing press installed in the second quarter of 1998. The net sales of the
printing and converting segment represent 14% of the consolidated net sales.
Gross Profit
Gross profit for the third quarter ended September 30, 1999 was $540,000 or 3%
of net sales, compared to gross profit for the same period in 1998 of $1,914,000
or 12% of net sales. Year to date gross profit was $4,552,000 or 9% of net sales
for year to date 1999, and $5,491,000 or 11% of net sales for the same period in
1998.
Gross profit for the paper products segment was $125,000 for the three months
ended September 30, 1999, a $1,547,000 decrease over the same period in 1998.
Year to date gross profit decreased 26% to $3,546,000 in 1999 from $4,807,000
for the same period last year. The decrease in gross profit in the third quarter
can be attributed to our Peshtigo operations, which were adversely impacted by
unprecedented electrical curtailments in July, fine tuning problems with a new
process control system on the Company's Fourdrinier paper machine and pulp
prices escalating more rapidly than market prices for our paper products.
The Peshtigo mill has an interruptible electrical contract where we can have our
electricity curtailed by the utility company. In July we were shutdown 92 hours
due to extreme temperatures, this resulted in lost production of approximately
767 tons of paper.
9
<PAGE>
In early July, we installed an ABB process control system on the Fourdrinier
paper machine. The fine tuning of the system during the third quarter resulted
in lower operating speeds and increased off quality production due to problems
encountered with the paper machine drives and the color system.
During 1999, pulp prices have escalated more rapidly than the market prices of
our paper products. Pulp prices increased 8% in the third quarter of 1999 and
24% year to date. We continue our efforts to increase selling prices as the
market permits.
The printing and converting segment's gross profit was $415,000 for the three
months ended September 30, 1999, a $173,000 or 72% improvement over the same
period in 1998. Gross profit for the nine months ended September 30,1999,
increased 48% to $1,006,000 from $683,000 for the same period last year. The
increase in gross profit is attributed to the increased capacity provided by our
new Chadwick printing press and more efficient operations due to longer
production runs.
Selling and Administration
Selling and administration expenses were $3,617,000 for the first nine months of
1999 compared to $3,397,000 for the same period of 1998. A majority of the
increased expenses for the paper products segment was caused by the
reorganization of staffing from manufacturing to provide for a product
development function within the sales department and an addition to the outside
sales staff.
The printing and converting segment experienced increased salaries and
associated fringe benefits to support the additional capacity provided by the
new Chadwick printing press.
Other Income and Expense
In the second quarter of 1999, Badger Paper received $622,000 of life insurance
proceeds as the beneficiary upon the death of a former President in March 1999.
The proceeds included $231,000 of cash surrender value carried as other assets
on our balance sheet and $391,000 of non-recurring income. The funds were used
for debt reduction.
In the second quarter of 1998, the Company recorded a non-recurring capital gain
of $611,000 on the sale of the Company's offsite training facility.
Non-recurring executive termination expenses of $286,000 associated with a
former President and Vice President were also booked in the second quarter of
1998.
Other income (expense) for the nine-month period ended September 30, 1998
included $252,000 of realized gains on trade credit contracts that expired in
1998. We have negotiated new contracts with several vendors and have begun using
trade credits in April 1999.
Net Income
Net earnings for the three months ended September 30, 1999 was a $523,000 loss,
compared to a $408,000 profit for the same period in 1998. Year to date net
earnings were $476,000 compared to $1,337,000 for the same period last year.
The net loss of the paper products segment was $709,000 for the three months
ended September 30, 1999, compared to $319,000 of net income for the same period
in 1998. Net income for the nine-month period ended September 30, 1999 was
$67,000 or 30% of consolidated net income for this period. Net income for the
same period in 1998 was $1,100,000.
The net income of the printing and converting segment was $187,000 for the three
months ended September 30, 1999, compared to $89,000 of net income for the same
period in 1998. Net income for the
10
<PAGE>
nine-month period ended September 30, 1999 was $409,000 or 70% of consolidated
net income for this period. Net income for the same period in 1998 was $237,000.
Capital Resources and Liquidity
As Of September 30, 1999, the Company's capital resources for funding ongoing
operations included $1,446,000 of cash and marketable securities and a
refinanced $12,000,000 revolving credit facility entered into in January 1999.
Borrowing under this facility totaled $10,100,000 as of September 30, 1999.
Pursuant to the terms of the refinanced revolving credit facility the Company
made a special payment of $1,885,000 on March 1, 1999 on the revolving credit
facility, and is required to make quarterly payments of $140,000 for the next
three years on the revolving credit facility, and made an annual payment of
$495,000 on July 1, 1999 on the Industrial Development Revenue Bonds
Cash provided by operations and the revolving credit facility is expected to
meet current and anticipated working capital needs, as well as fund planned
capital expenditures.
Capital Expenditures
Capital expenditures during the first nine months of 1999 were $1,895,000,
compared to $1,739,000 for the same period in 1998. Major projects in 1999 for
the paper products segment included the completion of a ramp and enclosure to
our wax plant warehouse, a rewinder for the wax department and a spare couch
roll for the Yankee paper machine. The Company also completed the installation
of an ABB process control system on the Fourdrinier paper machine. A new motor
control center for the paper mill was approved and it is anticipated the project
will be completed in 1999. Major projects at the printing and converting segment
involved improvements to the Chadwick press.
Cash Flows
Cash provided by operations was $1,236,000 for the nine months ended September
30, 1999, compared to $1,561,000 of cash provided for the same period in 1998.
Increased inventories for the nine month period ended September 30, 1999 were
the result of a finished goods stocking program initiated in 1999 and a build-up
of finished goods in anticipation of a nine day maintenance shutdown of the
paper machines in November 1999. Escalating pulp prices, higher priced raw
materials for specialty products and increased inventories has increased
accounts payable. Accrued liabilities in 1998 were reduced for post retirement
benefits because of a reduced workforce due to restructuring in early 1998. 1999
cash flows also include the net effect of the life insurance proceeds received
as beneficiary upon the death of a former President.
Net cash provided by investing activities was $210,000 for the nine-month period
ended September 30, 1999, compared to $504,000 for the same period in 1998. A
majority of the funds in 1999 was from the proceeds of the sale of marketable
securities used to make payments on the Company's Industrial Development Revenue
Bonds.
Year 2000
Badger Paper Mills has established a Year 2000 Committee assigned the task of
assuring Year 2000 (Y2K) compliance for all information technology (IT) and
non-IT systems. The committee's goal is to be Y2K compliant by December 1, 1999.
11
<PAGE>
State of Readiness - Information Technology
Our internal information technology staff has been assigned the responsibility
of assuring Year 2000 compliance for the Peshtigo and Oconto Falls facilities
for all information technology systems. This includes the main frame computer,
all personal computers, network servers, telephone system and all related
software. The staff has identified and tested all hardware and software that
must be tested for Y2K compliance.
The main frame computer in Peshtigo is Year 2000 compliant for its hardware and
operating system. We have completed 85 percent of necessary programming changes
to the business systems to become Year 2000 compliant. We have contracted with
outside resources to review, test and complete required programming changes on
our business systems software. We believe they will complete the programming
changes before December 1, 1999.
The network servers at Peshtigo and Oconto Falls have been replaced and all
related hardware and software are Year 2000 compliant. We have completed the
upgrade or replacements of all personal computers at the Peshtigo facility. The
PCs at the Oconto Falls facility are Y2K compliant.
State of Readiness - Non-Information Technology
Our internal engineering staff has assigned two employees the responsibility of
assuring Year 2000 compliance for all manufacturing aspects of the Peshtigo and
Oconto Falls facilities for all non-information technology systems. All
manufacturing equipment that have computerized process controllers or any date
sensitive data in computer chips have been reviewed. This includes the paper
machines, converting equipment, boilers, waste treatment facilities, printing
presses, lab equipment, and all related software. The staff has identified and
tested all hardware and software that must be tested for Y2K compliance.
The most critical manufacturing equipment is the two paper machines and the
boilers. In 1998, we replaced the process computer on the Yankee paper machine
and a new process computer on the Fourdrinier paper machine was installed in
July 1999. Both process computers are Y2K compliant. The boilers are capable of
operating on natural gas or fuel oil and are Y2K compliant.
The engineering staff has reviewed all programmable logic controllers (PLCs) at
the Peshtigo facility and has upgraded all software or PLCs as necessary.
All non-technology systems at the Oconto Falls facility have been tested for
Year 2000 compliance and are considered compliant.
Costs
The costs of achieving Year 2000 compliance have not been material to date and
we do not expect the total costs to be more than $200,000. A majority of the
costs incurred is normal wages and benefits of our IT and engineering staffs.
Additional costs will be incurred for contract programming and system upgrades
and/or replacement. Cost estimates for contract programming of our business
systems have been received and we feel the above total cost estimate is
adequate.
Contingency Plan
The Company's contingency plan is in the process of being completed. A detail
outline has been written and a contingency checklist is being developed. We
expect to finalize the contingency by December 15, 1999.
12
<PAGE>
Item 3. Quantitative and Qualitative Disclosure About Market Risk
The Company is exposed to market risk from changes in interest on its long-term
debt. Interest rates are disclosed in the Company's annual report on Form 10-K
for the year-ended December 31, 1998, have not materially changed.
Although a majority of the Company's debt is at variable interest rates, it is
felt the Company's exposure to interest rate fluctuations is immaterial to the
consolidated statements.
The Company does not use financial instruments for trading purposes and is not a
party to any leveraged derivatives.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
Number Description
------ -----------
(10.1) First Amendment to Amended and Restated Credit Agreement,
dated as of August 31, 1999, by and among Badger Paper
Mills, Inc., Badger Paper Mills Flexible Packaging Division,
Inc., the Lenders and Harris Trust and Savings Bank, as
Agent.
(10.2) Badger Paper Mills, Inc. 1999 Directors Stock Grant Plan
(27) Financial Data Schedules
(b) Reports on Form 8-K:
None.
13
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company
has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
BADGER PAPER MILLS, INC.
(Company)
DATE: November 12, 1999 /s/ Thomas W. Cosgrove
------------------------
Thomas W. Cosgrove
President & CEO
(Chief Executive Officer
DATE: November 12, 1999 /s/ George J. Zimmerman
------------------------
George J. Zimmerman
Treasurer
(Principal Financial Officer)
14
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
(10.1) First Amendment to Amended and Restated Credit Agreement, dated
as of August 31, 1999, by and among Badger Paper Mills, Inc.,
Badger Paper Mills Flexible Packaging Division, Inc., the Lenders
and Harris Trust and Savings Bank, as Agent.
(10.2) Badger Paper Mills, Inc. 1999 Directors Stock Grant Plan
(27) Financial Data Schedules
15
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (the
"Amendment") dated as of August 31, 1999, by and among Badger Paper Mills, Inc.
("Badger"), Badger Paper Mills Flexible Packaging Division, Inc. ("Packaging";
Badger and Packaging being referred to herein collectively as the "Borrowers"),
the Lenders, and Harris Trust and Savings Bank, as Agent;
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and Harris Trust and Savings Bank, as
Agent, have heretofore executed and delivered an Amended and Restated Credit
Agreement dated as of January 29, 1999 (the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that the
Credit Agreement shall be and hereby is amended as follows:
ARTICLE 1
AMENDMENTS
1.1 Section 1.1 of the Credit Agreement is hereby amended in its entirety
and as so amended shall be restated to read as follows:
Section 1.1. Revolving Credit. Subject to all of the
terms and conditions hereof, each Lender, by its
acceptance hereof, severally agrees to extend a
revolving credit (the "Revolving Credit") to the
Borrowers in the amount of its commitment to extend the
Revolving Credit set forth on the applicable signature
page hereof (its "Commitment" and cumulatively for all
the Lenders, the "Commitments") (subject to any
reductions thereof pursuant to the terms hereof) prior
to the Termination Date. Such Revolving Credit may be
availed of by the Borrowers in their discretion from
time to time, be repaid and used again, during the
period from the date hereof to and including the
Termination Date. The Revolving Credit, subject to all
of the terms and conditions hereof, may be utilized by
the Borrowers in the form of Loans and Letters of
Credit, all as more fully hereinafter set forth;
provided, however, that the aggregate principal amount
of Loans and Letters of Credit outstanding to all of
the Borrowers at any one time shall not at any time
exceed the Commitments. The obligations of the Lenders
hereunder are several and not joint and no Lender shall
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under any circumstances be obligated to extend credit
hereunder in excess of its Commitment.
1.2 Section 1 of the Credit Agreement is hereby amended by adding thereto a
new Section 1.4 which reads as follows:
Section 1.4. Letters of Credit.
(a) General Terms. Subject to the terms and
conditions hereof, the Revolving Credit may be availed
of by the Borrowers in the form of standby letters of
credit issued by the Agent for the account of a
Borrower (individually a "Letter of Credit" and
collectively the "Letters of Credit"), provided that
the aggregate amount of Letters of Credit issued and
outstanding hereunder shall not at any time exceed
$500,000. For purposes of this Agreement, a Letter of
Credit shall be deemed outstanding as of any time in an
amount equal to the maximum amount which could be drawn
thereunder under any circumstances and over any period
of time plus any unreimbursed drawings then outstanding
with respect thereto. If and to the extent any Letter
of Credit expires or otherwise terminates without
having been drawn upon, the availability under the
Commitments shall to such extent be reinstated. The
Letters of Credit shall be issued by the Agent, but
each Lender shall be obligated to reimburse the Agent
for such Lender's Percentage of the amount of each
draft drawn under a Letter of Credit in accordance with
this Section 1.4 and, accordingly, each Letter of
Credit shall be deemed to utilize the Commitments of
all Lenders pro rata in accordance with their
Percentages thereof.
(b) Term. Each Letter of Credit issued hereunder
shall expire not later than the earlier of (i) twelve
(12) months from the date of issuance (or be cancelable
not later than twelve (12) months from the date of
issuance and each renewal) or (ii) the Termination
Date. In the event the Agent issues any Letter of
Credit with an expiration date that is automatically
extended unless the Agent gives notice that the
expiration date will not so extend beyond its then
scheduled expiration date, the Agent will give such
notice of non-renewal before the time necessary to
prevent such automatic extension if before such
required notice date (i) the expiration date of such
Letter of Credit if so extended would be after the
Termination Date, (ii) the Commitments have terminated
or (iii) an Event of Default exists and the Lenders
have given the
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Agent instructions not to so permit the extension of
the expiration date of such Letter of Credit.
(c) General Characteristics. Each Letter of Credit
issued hereunder shall be payable in U.S. Dollars,
conform to the general requirements of the Agent for
the issuance of standby letters of credit as to form
and substance, and be a letter of credit which the
Agent may lawfully issue.
(d) Applications. At the time the relevant
Borrower requests each Letter of Credit to be issued
(or prior to the first issuance of a Letter of Credit
in the case of a continuing application), such Borrower
shall execute and deliver to the Agent an application
for such Letter of Credit in the form then customarily
prescribed by the Agent (individually an "Application"
and collectively the "Applications"). Subject to the
other provisions of this subsection, the obligation of
the Borrowers to reimburse the Agent for drawings under
a Letter of Credit shall be governed by the Application
for such Letter of Credit. Anything contained in the
Applications to the contrary notwithstanding, (i) in
the event the Agent is not reimbursed by the Borrowers
for the amount the Agent pays on any draft drawn under
a Letter of Credit issued hereunder by 11:00 a.m.
(Chicago time) on the date when such drawing is paid,
the obligation of the Borrowers to reimburse the Agent
for the amount of such draft paid shall bear interest
(which each Borrower hereby promises to pay on demand)
from and after the date the draft is paid until payment
in full thereof at a fluctuating rate per annum
determined by adding 4% to the Domestic Rate as from
time to time in effect (computed on the basis of a year
of 360 days for the actual number of days elapsed),
(ii) the Borrowers shall pay fees in connection with
each Letter of Credit as set forth in Section 3 hereof,
(iii) except as otherwise provided in Section 3.2(b)
hereof, prior to the occurrence of a Default or an
Event of Default the Agent will not call for additional
collateral security for the obligations of the
Borrowers under the Applications other than the
collateral security contemplated by this Agreement and
the Collateral Documents and collateral security
consisting of rights in goods (or documents of title
covering the same) financed under such Applications,
and (iv) except as otherwise provided in Section 3.2(b)
hereof, prior to the occurrence of a Default or an
Event of Default the Agent will not call for the
funding of a Letter of Credit by the Borrowers prior to
being presented with a draft drawn thereunder (or, in
the event the draft is a time draft, prior to its due
date). Each Borrower
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hereby irrevocably authorizes the Agent to charge any
of such Borrower's deposit accounts maintained with the
Agent for the amount necessary to reimburse the Agent
for any drafts drawn under Letters of Credit issued
hereunder.
(e) Change in Laws. If the Agent or any Lender
shall determine in good faith that any change in any
applicable law, regulation or guideline (including,
without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or any new
law, regulation or guideline, or any interpretation of
any of the foregoing by any governmental authority
charged with the administration thereof or any central
bank or other fiscal, monetary or other authority
having jurisdiction over the Agent or such Lender
(whether or not having the force of law), shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against the
Letters of Credit, or the Agent's or such Lender's or
the Borrowers' liability with respect thereto; or
(ii) impose on the Agent or such Lender any
penalty with respect to the foregoing or any other
condition regarding this Agreement, the Applications or
the Letters of Credit;
and the Agent or such Lender shall determine in good
faith that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or
adding to a cost) to the Agent or such Lender of
issuing, maintaining or participating in the Letters of
Credit hereunder (without benefit of, or credit for,
any prorations, exemptions, credits or other offsets
available under any such laws, regulations, guidelines
or interpretations thereof), then the Borrowers shall
pay on demand to the Agent or such Lender from time to
time as specified by the Agent or such Lender such
additional amounts as the Agent or such Lender shall
determine are sufficient to compensate and indemnify it
for such increased cost. If the Agent or any Lender
makes such a claim for compensation, it shall provide
the Borrowers (with a copy to the Agent in the case of
any Lender) a certificate setting forth the computation
of the increased cost as a result of any event
mentioned herein in reasonable detail and such
certificate shall be conclusive if reasonably
determined.
(f) Participations in Letters of Credit. Each
Lender shall participate on a pro rata basis in
accordance with its
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Percentage of the Commitments in the Letters of Credit
issued by the Agent, which participation shall
automatically arise upon the issuance of each Letter of
Credit. Each Lender unconditionally agrees that in the
event the Agent is not immediately reimbursed by the
Borrowers for the amount paid by the Agent on any draft
presented under a Letter of Credit, then in that event
such Lender shall pay to the Agent such Lender's
Percentage of the amount of each draft so paid and in
return such Lender shall automatically receive an
equivalent percentage participation in the rights of
the Agent to obtain reimbursement from the Borrowers
for the amount of such draft, together with interest
thereon as provided for herein. The obligations of the
Lenders to the Agent under this subsection shall be
absolute, irrevocable and unconditional under any and
all circumstances whatsoever and shall not be subject
to any set-off, counterclaim or defense to payment
which any Lender may have or have had against the
Borrowers, the Agent, any other Lender or any other
party whatsoever. In the event that any Lender fails to
honor its obligation to reimburse the Agent for its
Percentage of the amount of any such draft, then in
that event (i) each other Lender shall pay to the Agent
its pro rata share of the payment due the Agent from
the defaulting Lender, (ii) the defaulting Lender shall
have no right to participate in any recoveries from the
Borrowers in respect of such draft and (iii) all
amounts to which the defaulting Lender would otherwise
be entitled under the terms of this Agreement or any of
the other Loan Documents shall first be applied to
reimbursing the Lenders for their respective pro rata
shares of the defaulting Lender's portion of the draft,
together with interest thereon as provided for herein.
Upon reimbursement to the other Lenders (pursuant to
clause (iii) above or otherwise) of the amount advanced
by them to the Agent in respect of the defaulting
Lender's share of the draft together with interest
thereon, the defaulting Lender shall thereupon be
entitled to its participation in the Agent's right of
recovery against the Borrowers in respect of the draft
paid by the Agent.
1.3 Section 3.1 of the Credit Agreement is hereby amended in its entirety
and as so amended shall be restated to read as follows:
Section 3.1. (a) Commitment Fee. For the period
from the date hereof to and including the Termination
Date, the Borrowers shall pay to the Agent for the
account of the Lenders a commitment fee at the rate of
1/2 of 1% per annum (computed on the basis of a year of
360 days for the actual number of days elapsed) on the
average daily unused amount of
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the Commitments hereunder. Such fee shall be payable
quarterly in arrears on the last day of each March,
June, September and December in each year (commencing
March 31, 1999) and on the Termination Date, unless the
Commitments are terminated in whole on an earlier date,
in which event the commitment fee for the period to but
not including the date of such termination in whole
shall be paid on the date of such termination.
(b) Letter of Credit Fees. On the date of issuance
of each Letter of Credit, and as condition thereto, and
annually thereafter, the Borrowers shall pay to the
Agent for the account of the Lenders a letter of credit
fee computed at the rate of 1.50% on the maximum amount
of the related Letter of Credit which is scheduled to
be outstanding during the immediately succeeding twelve
(12) months. In addition to the letter of credit fee
called for above, the Borrowers further agree to pay to
the Agent for its own account such processing and
transaction fees and charges as the Agent from time to
time customarily imposes in connection with any
amendment, cancellation, negotiation and/or payment of
letters of credit and drafts drawn thereunder.
1.4 Section 3.2 of the Credit Agreement is hereby amended in its entirety
and as so amended shall be restated to read as follows:
Section 3.2. Prepayments. (a) Voluntary. The
Borrowers shall have the privilege of prepaying the
Notes in whole or in part (but if in part then in a
minimum amount of $100,000 and in an amount such that
the minimum amount required pursuant to Section 1.2
hereof remains outstanding) at any time upon one
Business Day's prior notice to the Agent (such notices,
if received subsequent to 12:00 Noon Chicago time on a
given day, to be treated as though received at the
opening of business on the next Business Day), which
shall promptly so notify the Lenders, by paying to the
Agent for the account of the Lenders the principal
amount to be prepaid and (i) if such prepayment prepays
a Note in full, accrued interest thereon to the date
fixed for prepayment and (ii) any amount due the
Lenders under Section 2.8 hereof.
(b) Mandatory. The Borrowers shall, on each date
the Commitments are reduced pursuant to Section 3.3
hereof, prepay the Loans and, if necessary, prefund the
Letters of Credit by the amount, if any, necessary to
reduce the sum of the aggregate principal amount of
Loans and Letters of Credit
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then outstanding to the amount to which the Commitments
have been so reduced.
1.5 Section 3.4 of the Credit Agreement shall be amended by amending each
of Subsections (c), (d) and (e) thereof its entirety and restating each such
Subsection to read as follows, and by adding thereto a new Subsection (f) which
reads as follows:
(c) third, to the payment of the principal of the
Notes and any liabilities in respect of unpaid drawings
under the Letters of Credit, the aggregate amount paid
to the Lenders to be allocated pro rata as among the
Lenders in accord with the then respective aggregate
unpaid principal balances of the Notes and the then
unpaid drawings under the Letters of Credit;
(d) fourth, to the Agent to be held as collateral
security for any undrawn Letters of Credit, until the
Agent is holding an amount of cash equal to the then
outstanding amount of all Letters of Credit;
(e) fifth, to the Agent and the Lenders ratably in
accord with the amounts of any other indebtedness,
obligations or liabilities of the Borrowers owing to
each of them and secured by the Collateral Documents
(other than those described in clause (e) below) unless
and until all such indebtedness, obligations and
liabilities have been fully paid and satisfied; and
(f) sixth, to the Borrowers or whoever may be
lawfully entitled thereto.
1.6 Section 5.1 of the Credit Agreement is hereby amended by adding thereto
the following new definitions:
"Application" is defined in Section 1.6 hereof.
"Letter of Credit" is defined in Section 1.6 hereof.
"Percentage" means, for each Lender, the percentage of
the relevant Commitments represented by such Lender's
Commitment or, if the Commitments have been terminated,
the percentage held by such Lender (including through
participation interest in Letters of Credit pursuant to
Section 1.3 hereof) of the aggregate principal amount
of all outstanding Obligations.
1.7 Each of the following definitions appearing in Section 5.1 of the
Credit Agreement is hereby amended in its entirety and as so amended shall be
restated as follows:
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"Loan Documents" means this Agreement, the Notes, the
Applications, the Guaranties, the Collateral Documents
and each other instrument or document to be delivered
hereunder or thereunder or otherwise in connection
therewith.
"Obligations" means all obligations of the Borrowers
and the Subsidiaries to pay principal and interest on
the Loans, all reimbursement obligations owing under
the Applications, all fees and charges payable
hereunder, and all other payment obligations of any
Borrower or any Subsidiary arising hereunder or under
the Notes or the Collateral Documents or any other Loan
Documents or in relation to any Loan Document, in each
case whether now existing or hereafter arising, due or
to become due, direct or indirect, absolute or
contingent, and howsoever evidenced, held or acquired.
1.8 Section 6.1 of the Credit Agreement is hereby amended in its entirety
and as so amended shall be restated to read as follows:
Section 6.1. All Advances. The obligation of the
Lenders to make any Loan or issue any Letter of Credit
under the Revolving Credit (including the first such
accommodation) shall also be subject to the conditions
precedent that as of the time of the making of each
Loan under the Revolving Credit:
(a) each of the representations and warranties set
forth herein or in the Collateral Documents shall be
and remain true and correct as of said time in all
material respects, except that the representations and
warranties made in Section 5.5 hereof shall be deemed
to refer to the most recent audited and unaudited
financial statements delivered to the Lenders pursuant
to Section 7.5 hereof;
(b) the Borrowers and the Subsidiaries shall be in
compliance with all of the terms and conditions hereof
and of the Collateral Documents, and no Default or
Event of Default shall have occurred and be continuing;
(c) after giving effect to such extension of
credit the aggregate principal amount of all Loans and
Letters of Credit outstanding under this Agreement
shall not exceed the Commitment;
(d) in the case of the issuance of any Letter of
Credit, the Agent shall have received a properly
completed Application therefor together with the fees
called for hereby; and
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(e) such extension of credit shall not violate any
order, judgment or decree of any court or other
authority or any provision of law or regulation
applicable to any Lender (including, without
limitation, Regulation U of the Board of Governors of
the Federal Reserve System) as then in effect.
Any Borrower's request for any Loan or Letter of Credit
shall constitute its warranty as to the facts specified
in subsections (a) through (e), both inclusive, above.
1.9 Section 8 of the Credit Agreement is hereby amended by adding thereto a
new Section 8.4 which reads as follows:
Section 8.4. Collateral for Undrawn Letters of Credit.
When any Event of Default, other than an Event of
Default described in subsection (k) or (l) of Section
8.1, has occurred and is continuing, the Borrowers
shall, upon demand of the Agent, and when any Event of
Default described in subsection (k) or (l) of Section
8.1 has occurred the Borrowers shall, without notice or
demand from the Agent, immediately pay to the Agent the
full amount of each Letter of Credit then outstanding,
the Borrowers agreeing to immediately make such payment
and acknowledging and agreeing that the Lender would
not have an adequate remedy at law for failure of the
Borrowers to honor any such demand and that the Agent
shall have the right to require the Borrowers to
specifically perform such undertaking whether or not
any draws have been made under any such Letters of
Credit.
ARTICLE II
CONDITIONS PRECEDENT
2.1 This Amendment shall become effective as of the date hereof on the date
that each of the following conditions precedent have been met:
(a) the Agent shall have received counterparts
hereof executed by the Borrowers and the Lenders; and
(b) the Agent shall have received (i) a
certificate of the Secretary of each Borrower dated the
date of this Amendment certifying that attached thereto
is a true and complete copy of resolutions adopted by
the Board of Directors of such Borrower, authorizing
the execution, delivery and performance of this
Amendment and certifying the names and true signatures
of the officers of such Borrower authorized to
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sign this Amendment and (ii) such supporting documents
as the Agent may reasonably request.
ARTICLE III
MISCELLANEOUS
3.1. To induce the Agent and the Banks to enter into this Amendment, each
Borrower represents and warrants to the Agent and the Banks that: (a) the
representations and warranties contained in the Loan Documents, as amended by
the Amendment, are true and correct in all material respects as of the date
hereof with the same effect as though made on the date hereof; (b) after giving
effect to this Amendment, no Event of Default or Default exists; (c) this
Amendment has been duly authorized by all necessary corporate proceedings and
duly executed and delivered by each Borrower and each Guarantor, and the Credit
Agreement, as amended by the Amendment, and each of the other Credit Documents
are the legal, valid and binding obligations of each Borrower or Guarantor,
enforceable against such Borrower or Guarantor in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity; and (d) no
consent, approval, authorization, order, registration or qualification with any
governmental authority is required for, and in the absence of which would
adversely effect, the legal and valid execution and delivery or performance by
any Borrower or any Guarantor of this Amendment or the performance by any
Borrower or any Guarantor of the Credit Agreement, as amended by the Amendment,
or any other Credit Document to which they are a party.
3.2. Each Borrower acknowledges and agrees that all of the Collateral
Documents to which it is a party remain in full force and effect for the benefit
and security of, among other things, the Obligations as modified hereby. Each
Borrower further acknowledges and agrees that the Borrowers' obligations owing
under the Applications and the Letters of Credit shall constitute Secured
Obligations as defined under the Collateral Documents. Nothing herein contained
shall in any manner affect or impair the priority of the liens and security
interests created and provided for by the Collateral Documents as to the
indebtedness which would be secured thereby prior to giving effect to this
Amendment. Each Borrower further agrees to execute and deliver any and all
instruments or documents as may be required by the Lenders to confirm any of the
foregoing.
3.3. This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same Amendment.
3.4. Except as specifically provided above, the Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed in all respects. The execution, delivery, and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power, or remedy of the Agent or any Bank
under the Credit Agreement or any of the other Loan Documents, nor constitute a
waiver or modification of any provision of any of the other Loan Documents.
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3.5. This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the State of
Illinois.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
Dated as of the date first above written.
BADGER PAPER MILLS, INC., as a Borrower and
Guarantor
By:________________________________________
Title:_____________________________________
BADGER PAPER MILLS FLEXIBLE PACKAGING
DIVISIONS, INC., as a Borrower and
Guarantor
By:________________________________________
Title:_____________________________________
Accepted and agreed to as of the date and year first above written.
HARRIS TRUST AND SAVINGS BANK,
individually and as Agent
By:________________________________________
Title:_____________________________________
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Amended 08/12/99 Board of Directors Meeting
BY-LAWS
of
BADGER PAPER MILLS, INC.
A Corporation
ARTICLE I. Offices
1.01 Principal and Business Offices. The corporation may have such
principal and other business offices in addition to Peshtigo, Wisconsin, either
within or without the State of Wisconsin, as the Board of Directors may
designate or as the business of the corporation may require from time to time.
1.02 Registered Office. The registered office of the corporation
required by the Wisconsin Business Corporation Law to be maintained in the State
of Wisconsin may be, but need not be, identical with the principal office of the
corporation, and the address of the registered office may be changed from time
to time by the Board of Directors or by the registered agent. The business
office of the registered agent of the corporation shall be identical to such
registered office.
ARTICLE II. Shareholders
2.01 Annual Meeting. The annual meeting of the shareholders shall be
held on the second Tuesday in May in each year at 10:00 o'clock A. M., or at
such other time and date within thirty days before or after said date as may be
fixed by or under the authority of the Board of Directors, for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Wisconsin, such meeting shall be held on the next
succeeding business day. If the election of directors shall not be held on the
day designated herein, or fixed as herein provided, for any annual meeting of
the shareholders, or at any adjournment thereof, the Board of Directors shall
cause the election to be held at a special meeting of the shareholders as soon
thereafter as conveniently may be.
2.02 Special Meeting. Special meetings of the shareholders, for any
purpose of purposes, unless otherwise prescribed by statute, may be called by
the Chairman of the Board of Directors, the President or Board of Directors or
by the person designated in the written request of the holder of not less than
one-tenth of all shares of the corporation entitled to vote at the meeting.
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Amended 08/12/99 Board of Directors Meeting
2.03 Place of Meeting. The Board of Directors may designate any place,
either within or without the State of Wisconsin, as the place of meeting for any
annual meeting or for any special meeting called by the Board of Directors. If
no designation is made, or if a special meeting be otherwise called, the place
of meeting shall be the principal business office of the corporation in
Peshtigo, Wisconsin, or such other suitable place in Marinette County, Wisconsin
as may be designated by the person calling such meeting, but any meeting may be
adjourned to reconvene at any place designated by vote of a majority of the
shares represented thereat.
2.04 Notice of Meeting. Written notice stating the place, day, and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) days nor
more than fifty (50) days before the meeting, either personally or by mail, by
or at the direction of the President, or the Secretary, or the officer or
persons calling the meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock record books of the corporation with
postage thereon prepaid.
2.05 Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, seventy (70) days. If the stock transfer books shall be
closed for the purpose of determining shareholders entitled to notice of or to
bote at a meeting of shareholders, such books shall be closed for at least ten
(10) days immediately preceding such meeting. In lieu of closing the stock
transfer books, the Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy (70) days and, in case of a meeting of shareholders, not less
than ten (10) days prior to the date on which the particular action, requiring
such determination of shareholders, is to be taken. If the stock transfer books
are not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the close of business on the date on
which notice of the meeting is mailed or on the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall be applied
to any adjournment thereof except where the determination has been made through
the closing of the stock transfer books and the stated period of closing has
expired. If no record date is fixed by the Board of Directors or by the
Wisconsin Business Corporation Law for the determination of shareholders
entitled to demand a special meeting under Section 2.02, the record date shall
be the date that the first shareholder signs the
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Amended 08/12/99 Board of Directors Meeting
demand. Except, as provided by the Wisconsin Business Corporation Law for a
court-ordered adjournment, a determination of shareholders entitled to notice of
and to vote at a meeting of shareholders is effective for an adjournment of such
meeting unless the Board of Directors fixes a new record date, which it shall do
if the meeting is adjourned to a date more than 120 days after the date fixed
for the original meeting.
2.06 Voting Records. After a record date for a special or annual
meeting of shareholders has been fixed, the corporation shall prepare a list of
the names of all of the shareholders entitled to notice of the meeting. The list
shall be arranged by class or series of shares, if any, and shall show the
address of and number of shares held by each shareholder. Such list shall be
available for inspection by any shareholder, beginning two business days after
notice of the meeting is given for which the list was prepared, and continuing
to the date of the meeting, at the corporation's principal office or at a place
identified in the meeting notice in the city where the meeting will be held. A
shareholder or his, her, or its agent may, on written demand, inspect and,
subject to the limitations imposed by the Wisconsin Business Corporation Law,
copy the list, during regular business hours and at his, her, or its expense,
during the period that it is available for inspection pursuant to Section 2.07.
The corporation shall make the shareholders' list available at the meeting and
any shareholder or his, her, or its agent or attorney may inspect the list at
any time during the meeting or any adjournment thereof. Refusal or failure to
prepare or make available the shareholders' list shall not affect the validity
of any action taken at a meeting of shareholders.
2.07 Quorum. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Except as otherwise provided in the articles of
incorporation or the Wisconsin Business Corporation Law, a majority of the votes
entitled to be cast on the matter shall constitute a quorum of the voting group
for action on that matter. Once a share is represented for any purpose at a
meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for purposes of
determining whether a quorum exists for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. If a quorum exists, except in the case of the election of
directors, action on a matter shall be approved if the votes cast within the
voting group favoring the action exceed the votes cast opposing the action,
unless the articles of incorporation or the Wisconsin Business Corporation Law
requires a greater number of affirmative votes. Unless otherwise provided in the
articles of incorporation, each director shall be elected by a plurality of the
votes cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is present. Though less than a quorum of the
outstanding votes of a voting group are represented at a meeting, a majority of
the votes so represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
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2.08 Conduct of Meetings. The Chairman of the Board of Directors or,
and in his absence, the President, and in his or her absence, a Vice-President
in the order provided under Section 4.06, and in their absence, any person
chosen by the shareholders present shall call the meeting of the shareholders in
order and shall act as Chairman of the meeting, and the Secretary of the
corporation shall act as Secretary of all meetings of the shareholders, but in
the absence of the Secretary, the presiding officer may appoint any other person
to act as secretary of the meeting.
2.09 Proxies. At all meetings of shareholders, a shareholder entitled
to vote may vote in person or by proxy appointed in writing by the shareholder
or by his or her duly authorized attorney in fact. Such proxy shall be filed
with the Secretary of the corporation before or at the time of the meeting.
Unless otherwise provided in the proxy, a proxy may be revoked at any time
before it is voted, either by written notice filed with the Secretary or the
acting secretary of the meeting or by oral notice given by the shareholder to
the presiding officer during the meeting. The presence of a shareholder who has
filed his, her, or its proxy shall not of itself constitute a revocation. No
proxy shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy. The Board of Directors shall have the power and
authority to make rules establishing presumptions as to the validity and
sufficiency of proxies.
2.10 Voting of Shares. There shall be no cumulative voting of shares.
Each outstanding share shall be entitled to one vote upon each matter submitted
to a vote at a meeting of shareholders.
2.11 Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name of another
corporation may be voted either in person or by proxy, by the president
of such corporation or any other officer appointed by such president. A
proxy executed by any principal officer of such other corporation or
assistant thereto shall be conclusive evidence of the signer's
authority to act, in the absence of express notice to this corporation,
given in writing to the Secretary of this corporation, of the
designation of some other person by the board of directors or the
by-laws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares held by a
Personal Representative, guardian, conservator, trustee in bankruptcy,
receiver, or assignee for creditors may be voted by such holder, either
in person or by proxy, without a transfer of such shares into his, her
or its name. Shares standing in the name of a fiduciary may be voted by
such fiduciary, either in person or by proxy. A proxy executed by a
fiduciary shall be conclusive evidence of the signer's authority to
act, in the absence of express written notice to the Secretary
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of this corporation that such manner of voting is expressly prohibited
or otherwise directed by the document creating the fiduciary
relationship.
(c) Pledgees. A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee shall be
entitled to vote the shares so transferred.
(d) Treasury Stock. Treasury shares shall not be voted at any
meeting or counted in determining the total number of outstanding
shares entitled to vote.
(e) Minors. Shares held by a minor may be voted by such minor
in person or by proxy, and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the Secretary of
the corporation has received written notice or has actual knowledge
that such shareholder is a minor.
(f) Incompetents and Spendthrifts. Shares held by an
incompetent or spendthrift may be voted by such incompetent or
spendthrift in person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the Secretary of
the corporation has actual knowledge that such shareholder has been
adjudicated an incompetent or spendthrift or actual knowledge of filing
of judicial proceedings for appointment of a guardian.
(g) Joint Tenants. Shares registered in the names of two or
more individuals who are named in the registration as joint tenants may
be voted in person or by proxy signed by any one or more of such
individuals if either (i) no other such individual or his legal
representative is present and claims the right to participate in the
voting of such shares or prior to the vote files with the Secretary of
the corporation a contrary written voting authorization or direction or
written denial of authority of the individual present or signing the
proxy proposed to be voted, or (ii) all such other individuals are
decreased and the Secretary of the corporation has no actual knowledge
that the survivor has been adjudicated not to be the successor to the
interests of those deceased.
ARTICLE III. Board of Directors
3.01 General Powers and Number. The business and affairs of the
corporation shall be managed by its Board of Directors. The number of directors
of the corporation shall be as determined from time to time by the Board of
Directors, but shall not be less than five nor more than nine persons.
3.02 Tenure and Qualifications. Each director shall be a stockholder of
the corporation but need not be a resident of the State of Wisconsin. Each
director shall
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hold office for a term of three years according to the Class to which such
director is elected under this Section 3.02, until his or her prior death,
resignation or removal. Any director may be removed from office by affirmative
vote of two-thirds of the outstanding shares entitled to vote for the election
of such director, taken at a meeting of shareholders called for that purpose or
by the affirmative vote of two-thirds of the directors in office at the time
such vote is taken. Any director may resign at any time by filing his or her
written resignation with the Secretary of the corporation.
The Board of Directors shall be divided into three Classes which shall
have equal numbers of directors to the extent practicable. The initial term of
office of Class I shall expire at the annual meeting of the shareholders in
1982; the initial term of office of Class II shall expire at the annual meeting
of shareholders in 1983; and the initial term of office of Class III shall
expire at the annual meeting of shareholders in 1984. Each such Class shall have
a regular three-year term commencing at the expiration of the respective initial
terms. The current directors of the corporation hereby are designated members of
the classes as follows:
Class I Class II Class III
-----------------------------------------------------------------------
Timothy M. Dempsey Alvin O. Adrian Bennie C. Burish
Robert G. Schrank Robert F. Ecker Edwin A. Meyer, Jr.
This Section 3.02 may not be amended, altered or repealed except upon
the affirmative vote of two-thirds of the outstanding shares entitled to vote
upon such matters, taken at a meeting of shareholders called for that purpose.
3.03 Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this by-law immediately after the annual
meeting of the shareholders, and each adjourned session thereof. The place of
such regular meeting shall be the same as the place of the meeting of the
shareholders which precedes it, or such other suitable place as may be announced
at such meeting of shareholders. The Board of Directors also shall meet
regularly on the first Tuesday of February, on the fourth Wednesday of July, on
the fourth Tuesday in October, and at such time and place as may be fixed by the
Chairman of the Board of Directors, in his absence, by the President. The Board
of Directors may provide, by resolution, the time and place, either within or
without the State of Wisconsin, for the holding of additional regular meetings
without other notice than such resolution.
3.04 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board of Directors, the
President, Secretary, or any two directors. The Chairman, the President or
Secretary calling any special meeting of the Board of Directors may fix any
place, either within or without the State of Wisconsin, as the place for holding
any special meeting of the Board of Directors called by them, and if no other
place is fixed, the place of meeting shall be the principal business office of
the corporation in Peshtigo, Wisconsin.
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3.05 Notice; Waiver. Notice of each meeting of the Board of Directors
(unless otherwise provided in or pursuant to Section 3.03) shall be given by
written notice delivered personally or mailed or given by telegraph or facsimile
to each director at his or her business address or at such other address as such
director shall have designated in writing filed with the Secretary, in each case
not less than three days prior thereto. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice be given by telegram or facsimile, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company and if by facsimile, when transmission is made. Whenever any
notice whatever is required to be given to any director of the corporation under
the Articles of Incorporation or by-laws or any provision of law, a waiver
thereof in writing, signed at any time, whether before or after the time of
meeting, by the director entitled to such notice, shall be deemed equivalent to
the giving of such notice. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting and objects thereat to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
3.06 Quorum. Except as otherwise provided by law or by the Articles of
Incorporation or these by-laws, a majority of the number of directors as
provided in Section 3.01 shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, but a majority of the
directors present (though less than such quorum) may adjourn the meeting from
time to time without further notice.
3.07 Manner of Acting. The act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the act of a greater number is required by law or by the
Articles of Incorporation or these by-laws.
3.08 Conduct of Meetings. The Chairman of the Board of Directors or, in
his absence, the President, and in his or her absence, a Vice-President in the
order provided by the Board of Directors and in their absence, any director
chosen by the directors present, shall call meetings of the Board of Directors
to order and shall act as Chairman of the meeting. The Secretary of the
corporation shall act as secretary of all meetings of the Board of Directors,
but in the absence of the Secretary, the presiding officer may appoint any
Assistant Secretary or any director or other person present to act as Secretary
of the meeting.
3.09 Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled by either: the shareholders; the Board of Directors; or, if the directors
then remaining in office
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constitute fewer than quorum of the Board of Directors, by the affirmative vote
of a majority of the directors remaining in office; provided, however, that if
such vacancy shall have been created by removal of a director by vote of the
shareholders, the shareholders shall have the right to fill such vacancy at the
same meeting at which removal was voted, or any adjournment of that meeting.
Directors elected by the shareholders under this Section 3.09 shall hold office
until the next annual meeting of shareholders at which the term of the Class to
which they have been elected shall expire.
3.10 Compensation. The Board of Directors, by affirmative vote of
majority of the directors then in office, and irrespective of any personal
interest of any of its members may establish reasonable compensation of all
directors for services to the corporation as directors, officers or otherwise or
may delegate such authority to an appropriate committee. The Board of Directors
also shall have authority to provide for or to delegate authority to an
appropriate committee to provide for reasonable pensions, disability or death
benefits, and other benefits or payments, to directors, officers and employees
and to their estates, families, dependents or beneficiaries on account of prior
service rendered by such directors, officers and employees to the corporation.
3.11 Committees. The Board of Directors by resolution adopted by the
affirmative vote of a majority of all of the directors then in office may create
one or more committees, appoint members of the Board of Directors to serve on
the committees and designate other members of the Board of Directors to serve as
alternates. Each committee shall have two or more members who shall, unless
otherwise provided by the Board of Directors, serve at the pleasure of the Board
of Directors. A committee may be authorized to exercise the authority of the
Board of Directors, except that a committee may not do any of the following: (a)
authorize distributions; (b) approve or propose to shareholders action that the
Wisconsin Business Corporation Law requires to be approved by shareholders; (c)
fill vacancies on the Board of Directors or, unless the Board of Directors
provides by resolution that vacancies on a committee shall be filled by the
affirmative vote of the remaining committee members, on any Board committee; (d)
amend the corporation's Articles of Incorporation; (3) adopt, amend or repeal
by-laws; (f) approve a plan of merger not requiring shareholder approval; (g)
authorize or approve re-acquisition of shares, except according to a formula or
method prescribed by the Board of Directors; and (h) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of shares,
except that the Board of Directors may authorize a committee to do so within
limits prescribed by the Board of Directors in creating the committee, a
committee may employ counsel, accountants and other consultants to assist it in
the exercise of its authority.
Audit Committee. There shall be an Audit Committee composed of not less
than three (3), nor more than five (5) members of the Board of Directors, a
majority of
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whom shall be directors who are not active officers of the corporation. It shall
be the duty of the Audit Committee to recommend to the Board of Directors the
accounting firm to be selected by the Board, or to be recommended by it for
shareholder approval, as independent auditor of the corporation and to act on
behalf of the Board in meeting and reviewing with the independent auditors and
the appropriate corporate officers matters relating to corporate financial
reporting and accounting procedures and policies, adequacy of financial,
accounting, and operating controls, and the scope of the respective audits of
the independent auditors and of any internal auditor of the corporation. The
Committee shall review the results of such audits with the respective auditing
agency and promptly shall report thereon to the Board of Directors. The
Committee additionally shall submit to the Board of Directors any
recommendations it may have from time to time with respect to financial
reporting and accounting practices and policies and financial, accounting, and
operation controls and safeguards.
3.12 Unanimous Consent Without Meeting. Any action required or
permitted by the Articles of Incorporation or by-laws or any provision of law to
be taken by the Board of Directors at a meeting or by resolution may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors then in office.
3.13 Telephonic Meetings. Except as provided by this by-law, any action
required or permitted by the Articles of Incorporation or by-laws or any
provision of law to be taken by the Board of Directors at a meeting or by
resolution may be taken by a quorum of the Board of Directors at a telephonic
meeting or other meeting utilizing electronic communication of all participating
directors:
are informed that a meeting is taking place at which official
business may be transacted;
simultaneously may hear each other during the meeting;
immediately is able to send messages to all other
participating directors; and
if all communication during the meeting immediately is
transmitted to each participating director.
No meeting of the Board of Directors held pursuant to this by-law may
vote upon a plan of merger of shares exchange; or to sell, lease, exchange or
otherwise dispose of substantial property or assets of the corporation; to
dissolve voluntarily or to revoke voluntary dissolution proceedings; or to file
for bankruptcy.
3.14 Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors or a committee thereof of which
he or she is a
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member at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless his or her dissent shall be entered in
the minutes of the meeting or unless he or she shall file his or her written
dissent to such action with the person acting as the Secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
ARTICLE IV. Officers
4.01 Number. The principal officers of the corporation shall be a
President, not more than five Vice-Presidents, a Secretary and a Treasurer, each
of whom shall be elected by the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed by the
Board of Directors. Any two or more offices may be held by the same person,
except the offices of the President and Secretary, and the offices of President
and Vice-President.
4.02 Election and Term of Office. The officers of the corporation to be
elected by the Board of Directors shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each Annual
Meeting of the Shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently may
be. Each officer shall hold office until his or her successor shall have been
duly elected or until his or her prior death, resignation or removal.
4.03 Resignation; Removal. Any officer may resign at any time by
delivering written notice to an officer of the corporation. A resignation shall
be effective when delivered unless the notice specifies a later date which is
accepted by the corporation. Any officer or agent may be removed by the Board of
Directors whenever in its judgement the best interest of the corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment shall not of
itself create contract rights.
4.04 Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term.
4.05 Chairman of the Board. The Chairman of the Board, subject to the
control of the Board of Directors, shall supervise the President and be
responsible, through the President, for the control of all of the business and
affairs of the corporation. In the absence of the President or in the event of
his or her death, inability or refusal to act, or in the event for any reason it
shall be impractical for the President to act, he or she shall have continuing
general powers of supervision and management of the corporation. When present,
he or she shall preside at all meetings of the shareholders and of the Board of
Directors. He or she shall see that all resolutions and orders of the Board of
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Directors and its committees are carried into effect. He or she shall have
authority to sign, execute, and acknowledge, on behalf of the corporation, all
deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all
other documents or instruments necessary or proper to be executed in the course
of the ordinary business of the corporation, or which shall be authorized by
resolution of the Board of Directors. Except as otherwise provided by law or by
the Board of Directors, he or she also may authorize the President, any
Vice-President or other officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his or her place and stead. In
general, he or she shall have the powers of supervision of the business of the
corporation.
4.06 President. The President, subject to the control of the Board of
Directors and the supervision of the Chairman of the Board, shall exercise the
general management and control of the business of the corporation. He or she
shall have authority, subject to such rules as may be prescribed by the Board of
Directors, to appoint such agents and employees of the corporation as he or she
shall deem necessary, to prescribe their powers, duties and compensation, and to
delegate authority to them. Such agents and employees shall hold office at the
discretion of the President. The President shall have the authority to sign,
execute and acknowledge on behalf of the corporation, all deeds, mortgages,
bonds, stock certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the ordinary
business of the corporation, or which shall be authorized by resolution of the
Board of Directors. Except as otherwise provided by law or the Board of
Directors, the President may authorize any Vice-President or any other officer
or agent of the corporation to sign, execute and acknowledge such documents or
instruments in his or her place and stead. In general, he or she shall have all
the powers and duties usually vested in the office of the President of the
corporation.
4.07 The Vice-Presidents. In the absence of the President, or in the
event of death, inability or refusal to act, or in the event for any reason it
shall be impracticable for the President to act personally, the Vice-President
(or in the event there be more than one Vice-President, the Vice-Presidents in
the order designated by the Board of Directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Any Vice-President may sign, with
the Secretary or Assistant Secretary, certificates for shares of the
corporation; and shall perform such other duties and have such authority as from
time to time may be delegated or assign to him or her by the President or by the
Board of Directors. The execution of any instrument of the corporation by any
Vice-President shall be conclusive evidence, as to third parties, of his or her
authority to act in the stead of the President.
4.08 The Secretary. The Secretary shall: (a) keep the minutes of the
meetings of the shareholders and of the Board of Directors in one or more books
provided for that
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purpose; (b) see that all notices are fully given in accordance with the
provisions of these By-Laws or as required by law; (c) be custodian of the
corporate records and of the seal of the corporation, and see that the seal of
the corporation is affixed to all documents the execution of which on behalf of
the corporation under this seal is duly authorized; (d) keep or arrange for the
keeping of a register of the post office addresses of each shareholder which
shall be furnished to the Secretary by such shareholder; (e) sign with the
President, or a Vice-President, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
corporation; and (g) in general perform all duties incident to the office of
Secretary and have such other duties an exercise such authority as from time to
time may be delegated or assigned to him or her by the President or by the Board
of Directors.
4.09 The Treasurer. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the corporation; (b) receive
and give receipts for money due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with the provisions of Section 5.04; and (c) in general perform all of the
duties incident to the office of Treasurer and have such other duties and
exercise such other authority as from time to time may be delegated or assigned
to him or her by the President, or by the Board of Directors. If required by the
Board of Directors, the Treasurer shall give a bond for the faithful discharge
of his or her duties in such sum and with such surety or sureties as the Board
of Directors shall determine.
4.10 Assistant Secretaries and Assistant Treasurers. There shall be
such number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors may from time to time authorize. The Assistant Secretaries may sign
with the President, or a Vice-President, certificates for shares of the
corporation, the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Treasurers shall respectively, if required
by the Board of Directors, give bonds for the faithful discharge of their duties
in such sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties and have such authority as shall from time to time be delegated or
assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
4.11 Other Assistants and Acting Officers. The Board of Directors shall
have the power to appoint any person to act as assistant to any officer, or as
agent for the corporation in his stead, or to perform the duties of such officer
whenever for any reason it is impracticable for such officer to act personally,
and such assistant or acting officer or other agent so appointed by the Board of
Directors shall have the power to perform all the duties of the office to which
he or she is so appointed to be assistant, or
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as to which he or she is so appointed to act, except as such power may be
otherwise defined or restricted by the Board of Directors.
4.12 Salaries. The salaries of the principal officers shall be fixed
from time to time by the Board of Directors or by a duly authorized committee
thereof, and no officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the corporation.
4.13 Chief Executive Officer and Chief Operating Officer. At the time
the Board of Directors elects the officers of the corporation at its first
meeting held after each annual meeting of the Shareholders, the Board shall also
name the officers who shall in addition to his or her office hold the title
Chief Executive Officer and Chief Operating Officer. The officers shall hold the
title of Chief Executive Officer and Chief Operating Officer until the next
election of officers or until his or her successor shall be duly elected or
until his or her prior death, resignation or removal.
ARTICLE V. Contracts, Loans, Checks, and
Deposits; Special Corporate Accounts
5.01 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute or deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. In the absence
of other designation, all deeds, mortgages and instruments of assignment or
pledge made by the corporation shall be executed in the name of the corporation
by the President or one of the Vice-Presidents and by the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or
an Assistant Secretary, when necessary or required, shall affix the corporate
seal thereto; and when so executed no other party to such instrument or any
third party shall be required to make any inquiry into the authority of the
signing officer or officers.
5.02 Loans. No indebtedness for borrowed money shall be contracted on
behalf of the corporation and no evidences of such indebtedness shall be issued
in its name unless authorized by or under the authority of a resolution of the
Board of Directors. Such authorization may be general or confined to specific
instances.
5.03 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
or under the authority of a resolution of the Board of Directors.
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5.04 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 depositaries as may be selected by or under the
authority of a resolution of the Board of Directors.
5.05 Voting of Securities Owned by This Corporation. Subject always to
the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation, if he be present, or in his
absence by the Treasurer of this corporation, and (b) whenever, in the judgment
of the President, or in his absence, the Treasurer, it is desirable for this
corporation to execute a proxy or written consent in respect to any shares or
other securities issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this corporation by the
President, or the Treasurer of the this Corporation, without necessity of any
authorization by the Board of Directors, affixation of corporate seal or
countersignature or attestation by another officer. Any person or persons
designated in the manner above stated as the proxy or proxies of this
corporation shall have full right, power and authority to vote the shares or
other securities issued by such other corporation and owned by this corporation
the same as such shares or other securities might be voted by this corporation.
5.06 Indemnification. Indemnification by the corporation shall be
provided pursuant to Wisconsin Statute Section 180.0859 et. seq. Such
indemnification shall be provided to directors, officers, employees, and agents
of the corporation. Directors and officers eligible for indemnification shall
include:
(a) A natural person who is or was a director or officer of the
corporation.
(b) A natural person who, while a director or officer of the
corporation is or was serving at the request of the
corporation as a director, officer, partner, trustee, member
of any governing or decision making committee, employee or
agent of another corporation or foreign corporation,
partnership, joint venture, trust or other enterprise.
(c) A natural person who, while a director or officer of the
corporation, is or was serving an employee benefit plan
because his or her duties to the corporation also imposed
duties on, or otherwise involved services by, the person to
the plan or to participants in or beneficiaries of the plan.
(d) And, unless the context requires otherwise, the estate or
personal representative of a director or officer.
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Amended 08/12/99 Board of Directors Meeting
The corporation shall indemnify a director, officer, employee or agent
to the extent he or she has been successful on the merits or otherwise in the
defense of a proceeding for all reasonable expenses incurred in the proceeding
if the director, officer, employee, or agent was a party because he or she is a
member or officer of the corporation.
In cases not included under the above paragraph, the corporation shall
indemnify a director, officer, employee or agent against liability incurred by
that person in a proceeding to which that person was a party because he or she
is or was a director, officer, employee, or agent of the corporation, unless
liability was incurred because that person breached or failed to perform a duty
he or she owed to the corporation and the breach or failure to perform
constitutes any of the following:
(a) A willful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which the person
has a material conflict of interest.
(b) A violation of criminal law unless the person had a reasonable
cause to believe his or her conduct was lawful or no
reasonable cause to believe his or her conduct was unlawful.
(c) A transaction from which the person derived an improper
personal profit.
(d) Willful misconduct.
For purposes of this Article, "expenses" shall be defined to include
fees, costs, charges, disbursements, attorneys fees and other expenses incurred
in connection with the proceeding. "Liability" includes an obligation to pay a
judgment, settlement, penalty, assessment, forfeiture or fine, including an
excess tax assessment with respect to an employee benefit plan, and reasonable
expenses. "Party" includes a natural person who was, or is threatened to be
made, a named defendant or respondent in a proceeding. "Proceeding" means any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit, arbitration or other proceeding, whether formal or
informal, which involves foreign, federal, state or local law and which is
brought by or in the right of the corporation or by any other person.
The termination of a proceeding by judgment, order, settlement or
conviction, or upon a plea of no contest or an equivalent plea, does not, by
itself, create a presumption that indemnification of the director or officer is
not required.
The director, officer, employee, or agent seeking indemnification shall
select one of the following means for determining his or her right to
indemnification:
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Amended 08/12/99 Board of Directors Meeting
(a) By a majority vote of a quorum of the Board of Directors
consisting of directors not at the time parties to the sale or
related proceedings. If a quorum of disinterested directors
cannot be obtained, by majority vote of a committee duly
appointed by the Board of Directors and consisting solely of
two or more directors not at the same parties to the same or
related proceedings. Directors who are parties to the same or
related proceedings may participate in the designation of
members of the committee.
(b) By independent legal counsel selected by a quorum of the Board
of Directors or its committee in the manners prescribed in
paragraph (a) above, or, if unable to obtain such quorum or
committee, by a majority vote of the full Board of Directors,
including directors who are parties to the same or related
proceedings.
(c) By a panel of three arbitrators consisting of one arbitrator
selected by those directors entitled under paragraph (b) to
select independent legal counsel, one arbitrator selected by
the director or officer seeking indemnification, and one
arbitrator selected by the two arbitrators previously
selected.
(d) By an affirmative vote of shares as provided in Wisconsin
Statutes Sections 180.0725 through 180.0727. Shares owned by,
or voted under the control of, persons who are at the time
parties to the same or related proceedings, whether as
plaintiffs or defendants or in any other capacity, may not be
voted in making the determination.
(e) By a Court under Wisconsin Statutes Section 180.0854.
(f) By any other method provided for and any additional right to
indemnification permitted under Wisconsin Statutes Section
180.0858.
Upon written request by a person who is a party to a proceeding, a
corporation may pay or reimburse his or her reasonable expenses as incurred if
the person provides the corporation with a written affirmation of his or her
good faith belief that he or she has not reached or failed to perform his or her
duties to the corporation. A bond or undertaking need not be required prior to
the advancement of such expenses.
Indemnification additional to that set forth in this Article may be
provided by resolution of the Board of Directors except as restricted by law.
ARTICLE VI. Certificates for Shares and Their Transfer
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Amended 08/12/99 Board of Directors Meeting
6.01 Certificates for Shares. Certificates representing shares of the
corporation shall be in such form, consistent with law, as shall be determined
by the Board of Directors. Such certificates shall be signed by the President, a
Vice-President, and by the Secretary or an Assistant Secretary. All certificates
for shares shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered on the stock transfer
books of the corporation. All certificates surrendered to the corporation for
transfer shall be cancelled and no new certificate shall be issued until the
former certificates for a like number of shares shall have been surrendered and
cancelled, except as provided in Section 6.06.
6.02 Facsimile Signatures and Seal. The seal of the corporation on any
certificates for shares may be a facsimile. The signatures of the President, a
Vice-President, and the Secretary or Assistant Secretary upon a certificate may
be facsimiles if the certificate is manually signed on behalf of a transfer
agent, other than the corporation itself.
6.03 Transfer of Shares. Prior to due presentment of a certificate for
shares for registration of transfer the corporation may treat the registered
owner of such shares as the person exclusively entitled to vote, to receive
notifications and otherwise to have and exercise all the rights and power of an
owner. Where a certificate for shares is presented to the corporation with a
request to register for transfer, the corporation shall not be liable to the
owner or any other person suffering loss as a result of such registration of
transfer if (a) there were on or with the certificate the necessary
endorsements, and (b) the corporation had no duty to inquire into adverse claims
or has discharged any such duty. The corporation may require reasonable
assurance that said endorsements are genuine and effective and compliance with
such other regulations as may be prescribed by or under the authority of the
Board of Directors.
6.04 Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.05 Lost, Destroyed or Stolen Certificates. Where the owner claims
that his or her certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the corporation has notice that such shares have been acquired
by a bona fide purchaser, and (b) files with the corporation a sufficient
indemnity bond, and (c) satisfies such other reasonable requirements as may be
prescribed by or under the authority of the Board of Directors.
6.06 Consideration for Shares. The shares of the corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors. The consideration to be paid for shares may be paid in whole or in
part, in money, in other
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Amended 08/12/99 Board of Directors Meeting
property, tangible or intangible, or in labor or services actually performed for
the corporation. When payment of the consideration for which shares are to be
issued shall have been received by the corporation, such shares shall be deemed
to be fully paid and nonassessable by the corporation. No certificate shall be
issued for any share until such share is fully paid.
6.07 Stock Regulations. The Board of Directors shall have the power and
authority to make all such further rules and regulations not inconsistent with
the statutes of the State of Wisconsin as it may deem expedient concerning the
issue, transfer and registration of certificates representing shares of the
corporation.
ARTICLE VII. Mergers, Consolidations, Sales,
Reorganizations of the Corporation
Except as otherwise expressly provided in this Article VII: (i) any
merger or consolidation of the corporation with or into any other corporation;
or (ii) any sale, lease, exchange or other disposition of all or substantially
all of the assets of the corporation to, or with any other corporation, person
or other entity, shall require the affirmative vote of the holders of at least
two-thirds of the outstanding shares of capital stock of the corporation issued
and outstanding and entitled to vote if, as of the record date for the
determination of shareholders entitled to notice thereof and to vote thereon,
such other corporation, person or entity is the beneficial owner, directly or
indirectly, of five percent or more of the outstanding shares of capital stock
of the corporation issued and outstanding and entitled to vote.
This provision of this Article VII shall not apply to any transaction
described in clauses (i) or (ii) of this Article, (a) with another corporation
person or other entity if the Board of Directors of the corporation by
resolution shall have approved a memorandum of understanding with such other
corporation, person or other entity with respect to and substantially consistent
with such transaction prior to the time such other corporation, person or other
entity became the beneficial owner, directly or indirectly of five percent or
more of the outstanding shares of capital stock of the corporation entitled to
vote; or (b) which has been approved by resolution unanimously adopted by the
whole Board of Directors of the corporation at any time prior to the
consummation thereof.
For the purpose of this Article VII, a corporation, person or other
entity shall be deemed to be the beneficiary owner of any shares of capital
stock of the corporation (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned, directly or indirectly
[including shares deemed owned through application of clause (i) of this
paragraph above], by any other corporation, person or entity (a) with which it
or its "affiliate" or Associate" (as reference below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of capital stock of the corporation or (b) which is its "affiliate" or
"Associate" as those terms were
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Amended 08/12/99 Board of Directors Meeting
defined in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934 as in effect on April 21, 1981. For the purposes of this
Article VII, the outstanding shares of capital stock of the corporation shall
include shares deemed owned through the application of clauses (i) and (ii) of
this paragraph but shall not include any other shares which may be issuable
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise.
The Board of Directors of the corporation shall have the power and duty
to determine for the purposes of this Article VII on the basis of information
then known to it, whether (a) any corporation, person or other entity
beneficially owns, directly or indirectly five percent or more of the
outstanding shares of capital stock of the corporation entitled to vote; (b) any
sale lease, exchange or other disposition of part of the assets of the
corporation; and (c) the memorandum of understanding referred to above is
substantially consistent with the transaction to which it relates. Any such
determination by the Board shall be conclusive and binding for all purposes of
this Article VII.
This Article VII may not be amended or rescinded except by the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of capital stock of the corporation issued and outstanding and entitled to vote
at any regular meeting of the shareholders, if notice of the proposed alteration
or amendment be contained in the notice of the meeting.
ARTICLE VIII. Reports Concerning Mergers or Acquisitions
If the corporation shall receive from any person or entity any written
notice of an intention to acquire the corporation or all, or substantially all,
of its assets, or to merge the corporation into such entity or a business
organization associated with such person or entity, the Board of Directors
promptly shall review and assess the social and economic effects of such
intended acquisition or merger. The review and assessment shall include, but
shall not be limited to, the effects on shareholders, the effects on employees,
including their health and safety, and the effects on customers and suppliers of
the corporation on the Peshtigo community and the environment. The review and
assessment shall be completed within ninety days of receipt by the corporation
of such written notice of intent to acquire or merge. A written report of such
review and assessment shall be prepared and distributed promptly to the
shareholders.
This Article VIII may not be amended or rescinded except by the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of capital stock of the corporation issued and outstanding and entitled to vote
at any regular or special meeting of the shareholders, if notice of the proposed
alteration or amendment be contained in the notice of the meeting.
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Amended 08/12/99 Board of Directors Meeting
ARTICLE IX. Seal
9.01 The Board of Directors shall provide a corporate seal which shall
be circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words, "Corporate Seal."
ARTICLE X. Amendments
10.01 By Shareholders. These By-Laws may be altered, amended or
repealed and new By-Laws may be adopted by the shareholders by affirmative vote
of not less than a majority of the shares present or represented at any annual
or special meeting of the shareholders at which a quorum is in attendance,
except as otherwise provided by any By-Law.
10.02 By Directors. These By-Laws also may be altered, amended or
repealed and new By-Laws may be adopted by the Board of Directors by affirmative
vote of a majority of the number of directors present at any meeting at which a
quorum is in attendance; but no By-Law adopted by the shareholders shall be
amended or repealed by the Board of Directors if bye By-Law so adopted provides
for altering amendment or repeal only upon the vote of the shareholders.
10.03 Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
By-Laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
By-Laws so that the By-Laws would be consistent with such action, shall be given
the same effect as though the By-Laws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so be
taken or authorized.
10.04 Procedures for Shareholder Amendments and Nominations. Proposals
by shareholders for amendment of these By-Laws or the Articles of Incorporation
of the corporation, and nominations by shareholders of directors for the Board
of Directors, shall be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the Secretary of the corporation
not less than 120 days prior to the date of release of annual meeting proxy
materials tot he shareholders. The date of release for any year shall be
scheduled to provide the same period of notice to shareholders as was provided
to them for the next preceding annual shareholders meeting; provided, however,
that if a special meeting of shareholders is called for any purpose such notice
shall be delivered or mailed to the Secretary, as prescribed, not later than the
seventh day following the day on which notice of such meeting was mailed to
shareholders.
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Amended 08/12/99 Board of Directors Meeting
10.05 Procedures for Amendments and Nominations by the Board of
Directors. Notice of proposals by the Board of Directors for Amendment of these
By-Laws or the Articles of Incorporation of the Corporation where shareholder
approval is required by these By-Laws or by the Articles of Incorporation, and
nominations of directors by the Board of Directors shall be made by affirmative
vote of the number of directors present at any meeting at which a quorum is in
attendance, except as otherwise provided by these By-Laws.
10.06 Form of Notices of Amendments and Nominations.
(a) Each notice of a proposal to amend these By-Laws or the
Articles of Incorporation of the corporation shall set forth
the exact wording of the proposed amendment and a brief
explanation of the purpose and possible effect of the proposed
amendment.
(b) Each notice of nomination of a director to the Board of
Directors shall set forth: (i) the name, age, business address
and, if known, residence address of such nominee; (ii) his or
her principal occupation or employment; (iii) the number of
shares of stock of the corporation owned by such nominee; and
(iv) a brief statement of such other facts as may be relevant
to the election of such nominee to the Board of Directors of
the corporation.
(c) If the corporation shall oppose any proposal received from a
shareholder for amendment of these By-Laws or the Articles of
Incorporation, or for nomination of a director, upon the
request of the shareholder it shall include in the notice of
such proposal a statement by the proponent in support of the
proposal. Any such statement shall be limited to not more than
200 words unless the Board of Directors otherwise provides.
10.07 Action on Defective Proposals and Nominations. If the Chairman of
any meeting of the shareholders at which a proposal to amend these By-Laws or
the Articles of Incorporation of the corporation, or the nomination of a
director to the Board of Directors, is to be considered for action shall
determine that such proposal or nomination has not been made according to the
procedures prescribed by these By-Laws it shall be so stated to such meeting and
the said proposal or nomination shall not be considered for action at that
meeting or any adjournment thereof.
21
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF BADGER PAPER MILLS, INC.
AS OF AND FOR THE PERIOD ENDING SEPTEMBER 30, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 803
<SECURITIES> 500
<RECEIVABLES> 6,158
<ALLOWANCES> 0
<INVENTORY> 7,427
<CURRENT-ASSETS> 16,820
<PP&E> 66,984
<DEPRECIATION> 39,936
<TOTAL-ASSETS> 46,275
<CURRENT-LIABILITIES> 10,892
<BONDS> 0
0
0
<COMMON> 2,700
<OTHER-SE> 205
<TOTAL-LIABILITY-AND-EQUITY> 46,275
<SALES> 49,407
<TOTAL-REVENUES> 49,407
<CGS> 44,855
<TOTAL-COSTS> 48,472
<OTHER-EXPENSES> 582
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 795
<INCOME-PRETAX> 722
<INCOME-TAX> 246
<INCOME-CONTINUING> 476
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 476
<EPS-BASIC> .24
<EPS-DILUTED> .24
</TABLE>
