<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended: September 27, 1998
Commission File Number: 1-13868
- --------------------------------------------------------------------------------
CROWN VANTAGE INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Virginia 54-1752384
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
300 Lakeside Drive, Oakland, CA 94612-3592
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(Address of principal executive offices) (Zip Code)
(510) 874-3400
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name, former address, and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
---------- --------
Number of shares of no par value common stock outstanding as of the close of
business on November 5, 1998:
9,876,842 Shares
- --------------------------------------------------------------------------------
<PAGE>
INDEX
CROWN VANTAGE INC.
PART I: Financial Information
Item 1. Financial Statements
o Condensed Consolidated Balance Sheets - September 27, 1998
and December 28, 1997.
o Condensed Consolidated Statements of Operations - Three months
and nine months ended September 27, 1998 and
September 28, 1997.
o Condensed Consolidated Statements of Cash Flows - Nine months
ended September 27, 1998 and September 28, 1997.
o Notes to Condensed Consolidated Financial Statements.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
PART II: Other Information
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
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PART I -- FINANCIAL INFORMATION
- ------
ITEM 1 -- FINANCIAL STATEMENTS
- ------
CROWN VANTAGE INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands of dollars)
<TABLE>
<CAPTION>
ASSETS September 27, 1998 December 28, 1997
------------------ -----------------
(Unaudited)
---------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 8,352 $ 11,415
Accounts receivable, net 40,366 40,787
Inventories 105,999 104,117
Prepaid expenses and other current assets 4,779 7,393
Deferred income taxes 12,823 14,480
-------- --------
Total current assets 172,319 178,192
Property, plant and equipment, net 589,996 621,276
Other assets 42,585 38,090
Unamortized debt issue costs 12,365 14,039
Intangibles, net 28,133 28,977
-------- --------
Total Assets $845,398 $880,574
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 41,425 $ 54,181
Accrued liabilities 73,583 80,358
Current portion of long-term debt 1,000 1,000
-------- --------
Total current liabilities 116,008 135,539
Long-term debt 584,186 544,063
Accrued postretirement benefits other than pensions 100,889 102,397
Other long-term liabilities 13,216 17,444
Deferred income taxes 60,696 82,100
-------- --------
Total Liabilities 874,995 881,543
-------- --------
Shareholders' Equity:
Preferred Stock, no par value;
Authorized - 500,000 shares;
Issued and outstanding - None
Common Stock, no par value;
Authorized - 50,000,000 shares;
Issued and outstanding 9,721,976 and
9,668,313 shares at September 27, 1998
and December 28, 1997, respectively 46,953 45,831
Unearned ESOP shares and other (1,637) (4,301)
Cumulative foreign currency translation adjustment 2,431 1,338
Retained deficit (77,344) (43,837)
-------- --------
(29,597) (969)
-------- --------
Total Liabilities and Shareholders' Equity $845,398 $880,574
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
3
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CROWN VANTAGE INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
For the Third Quarter (13 weeks) and Nine Months (39 weeks)
Ended September 27, 1998 and September 28, 1997
(in thousands of dollars, except per share)
<TABLE>
<CAPTION>
Third Quarter Nine Months
---------------------- --------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Sales $211,768 $226,808 $648,987 $680,381
Cost of goods sold 190,089 206,210 606,327 631,867
-------- -------- -------- --------
Gross margin 21,679 20,598 42,660 48,514
Selling and administrative expenses 15,784 13,963 45,573 42,732
-------- -------- -------- --------
Operating Income <Loss> 5,895 6,635 (2,913) 5,782
Interest expense (16,619) (16,783) (49,095) (49,072)
Other income <expense>, net (33) 71 457 929
-------- -------- -------- --------
Loss before income taxes (10,757) (10,077) (51,551) (42,361)
Benefit for income taxes (3,765) (3,452) (18,044) (15,250)
-------- -------- -------- --------
NET LOSS $ (6,992) $ (6,625) $(33,507) $(27,111)
======== ======== ======== ========
Loss per share $ (.73) $ (.74) $ (3.58) $ (3.06)
======== ======== ======== ========
</TABLE>
See notes to condensed consolidated financial statements.
4
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CROWN VANTAGE INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Nine Months (39 weeks)
Ended September 27, 1998 and September 28, 1997
(in thousands of dollars)
<TABLE>
<CAPTION>
Nine Months
-------------------
1998 1997
-------- --------
(Unaudited)
<S> <C> <C>
Cash Provided by (Used for) Operating Activities:
Net loss $(33,507) $(27,111)
Items not affecting cash:
Depreciation and cost of timber harvested 62,902 61,548
Amortization of goodwill and other intangibles 844 844
Interest on Pay-in-Kind Notes and other non-cash interest 13,858 13,039
Other, net 4,664 1,939
Changes in current assets and liabilities:
Accounts receivable 421 5,771
Inventories (1,882) 3,613
Other current assets 4,271 8,425
Accounts payable (11,146) (7,885)
Other current liabilities (6,003) (10,119)
Decrease in deferred income taxes (21,404) (16,696)
Other, net (6,219) (3,600)
-------- --------
Cash Provided by Operating Activities 6,799 29,768
-------- --------
Cash Provided by (Used for) Investing Activities:
Expenditures for property, plant and equipment (34,218) (45,005)
Other, net 106 2,078
-------- --------
Cash Used for Investing Activities (34,112) (42,927)
-------- --------
Cash Provided by (Used for) Financing Activities:
Proceeds from draw down of Revolving Credit 101,000 97,000
Repayments of Revolving Credit (76,000) (74,000)
Proceeds from issuance of Industrial Revenue Bonds 7,241
Repayments of Term Loans and other long-term debt (750) (8,052)
-------- --------
Cash Provided by Financing Activities 24,250 22,189
-------- --------
Increase (decrease) in cash and cash equivalents (3,063) 9,030
Cash and cash equivalents at beginning of year 11,415 1,175
-------- --------
Cash and cash equivalents at end of period $ 8,352 $ 10,205
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
5
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CROWN VANTAGE INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 -- ORGANIZATION AND BASIS OF PRESENTATION
- ------
The accompanying unaudited condensed consolidated financial statements
include the consolidated operations, assets and liabilities of Crown Vantage
Inc. (the "Parent"), Crown Paper Co., and Crown Paper Co.'s consolidated
subsidiaries. Crown Vantage Inc. and subsidiaries (the "Company") became an
independent company after James River Corporation of Virginia ("James River"),
now known as Fort James Corporation ("Fort James"), spun off certain assets,
liabilities and operations which comprised a substantial part of James River's
Communication Papers Business and the paper-based part of its Food and Consumer
Packaging Business ("Predecessor Business"). At the close of business on August
25, 1995, James River distributed to its common shareholders all of the
outstanding shares of the Company (the "Distribution"). The Distribution was
made in the form of a tax-free dividend on the basis of one share of the
Company's common stock for every ten shares of James River common stock. A
total of 8,446,362 shares of the Company's common stock was issued and began
trading on NASDAQ on August 28, 1995.
The accompanying condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for annual
financial statements. The condensed consolidated balance sheet as of December
28, 1997 was derived from audited financial statements, but does not include all
disclosures required by generally accepted accounting principles for annual
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the quarter and nine months ended
September 27, 1998 are not necessarily indicative of the results that may be
expected for the year ended December 27, 1998. For further information, refer
to the consolidated financial statements and footnotes thereto included in Crown
Vantage Inc.'s Annual Report to Shareholders and Form 10-K for the year ended
December 28, 1997. Certain 1997 amounts have been reclassified to conform with
the 1998 presentation.
NOTE 2 -- BASIC LOSS PER SHARE
- ------
The computation of basic loss per share for the quarters and nine months
ended September 27, 1998 and September 28, 1997 are based on the weighted
average number of shares of common stock outstanding during the periods
(9,363,000 and 8,871,000 for the nine months ended September 27, 1998 and
September 28, 1997, respectively, and 9,560,000 and 8,979,000 for the quarters
ended September 27, 1998 and September 28, 1997, respectively). The number of
shares considered outstanding does not include 428,000 shares held by the
Employee Stock Ownership Plan Trust at September 28, 1997. At September 27,
1998 the remaining 128,000 shares in the Employee Stock Ownership Plan Trust
were committed for release. The restatement of prior period loss per share and
shares outstanding to conform with Statement of Financial Accounting Standards
No. 128 "Earnings per Share" was not material.
NOTE 3 -- INCOME TAX
- ------
The income tax benefits for the quarter and nine months ended September 27,
1998 and September 28, 1997 were provided based on the Company's estimated
annual tax rates of 35% and 36%, respectively.
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NOTE 4 -- LONG TERM DEBT
- --------------------------------------------------------
<TABLE>
<CAPTION>
Consolidated long-term debt consists of the following:
September 27 December 28
1998 1997
-------- --------
(in thousands of dollars)
<S> <C> <C>
CROWN PAPER CO.
Bank Credit Facility:
Revolving credit, due 2002 $ 70,000 $ 45,000
-------- --------
Term Loan B, due 2003 97,250 98,000
167,250 143,000
11% Senior Subordinated Notes, due 2005 250,000 250,000
Industrial Revenue Bonds, payable to 2026 39,068 38,878
-------- --------
456,318 431,878
CROWN VANTAGE INC.
11.45% Senior Pay-in-Kind Notes, due 2007
less unamortized discount 128,868 113,185
-------- --------
585,186 545,063
Less current portion 1,000 1,000
-------- --------
$584,186 $544,063
======== ========
</TABLE>
On March 18, 1998, Crown Vantage entered into an agreement with Fort James
related to Crown Vantage's 11.45% Senior Pay-in-Kind Notes ("PIK Notes") which
are held by Fort James. The agreement provided for the delivery to Crown
Vantage and Crown Paper Co. of PIK Notes totaling $25 million and $8 million,
respectively, in exchange for the mutual release from a variety of claims that
had arisen from prior transactions between Fort James and Crown Vantage. On
September 28, 1998 the Company and Fort James consummated the settlement
agreement whereby Fort James returned the $33 million of PIK Notes. Crown
Vantage has the right to purchase the remaining PIK Notes and accrued interest
(the notes having a face amount totaling $107 million at September 27, 1998) at
fair value (see Note 10 "Subsequent Events").
Maturities of long-term debt, excluding the revolving credit, for the next
five fiscal year ends are: 1999 - $1.0 million; 2000 - $1.3 million; 2001 - $.8
million; 2002 - $47.0 million and 2003 - $47.5 million.
NOTE 5 -- INVENTORIES
- -----------------------------------------------------------
<TABLE>
<CAPTION>
September 27, 1998 December 28, 1997
------------------ -----------------
(in thousands of dollars)
<S> <C> <C>
Raw materials $ 23,816 $ 27,911
Work in process 6,831 7,038
Finished goods 49,443 45,936
Stores and supplies 36,492 35,569
--------- ---------
116,582 116,454
Reduction to state inventories at last-in, first-out cost (10,583) (12,337)
--------- ---------
$ 105,999 $ 104,117
--------- ---------
</TABLE>
NOTE 6 -- LITIGATION AND ENVIRONMENTAL MATTERS
- ------
The Company is a party to various legal proceedings generally incidental to
its business and is subject to a variety of environmental protection statutes
and regulations. As is the case with other companies in similar industries, the
Company faces exposure from actual or potential claims and legal proceedings
involving environmental matters. Although the ultimate disposition of legal
proceedings cannot be predicted with certainty, it is the present opinion of the
Company's management that the outcome of any claim which is
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pending or threatened, either individually or on a combined basis, will not have
a materially adverse effect on the consolidated financial position of the
Company but could materially affect consolidated results of operations in a
given year.
The Company has accrued estimated landfill site restoration, post-closure and
monitoring costs totaling $12.0 million at September 27, 1998 and December 28,
1997. In addition, the Company has been identified as a potentially responsible
party ("PRP"), along with others, under the Comprehensive Environmental
Response, Compensation and Liability Act or similar federal and state laws
regarding the past disposal of wastes at 20 sites in the United States. The
Company has previously settled its remediation obligations at 12 of those sites.
At 7 other sites, the Company is one of many potentially responsible parties and
its alleged contribution to the site and remediation obligation is not
considered significant. At one other site, remedial investigation is underway
and a loss estimate for the potential remediation effort costs is not yet
possible. However, the Company's accrual for the remediation investigation
effort was $.2 million at September 27, 1998 and $.6 million at December 28,
1997. The liabilities can change substantially due to such factors as the
solvency of other potentially responsible parties, the Company's share of
responsibility, additional information on the nature or extent of contamination,
methods and associated costs of remediation required, and other actions by
governmental agencies or private parties. While it is not feasible to predict
the outcome of all environmental liabilities, based on its most recent review,
management estimates the Company's share of the costs of investigation and
remediation of the known sites will not have a material adverse effect upon the
consolidated financial condition of the Company.
Due to uncertainties associated with remediation activities, regulations,
technologies, and the allocation of costs among various other parties, actual
costs to be incurred at identified sites may vary from estimates. Therefore,
management is unable to determine if the ultimate disposition of all known
environmental liabilities will have a material adverse effect on the Company's
consolidated results of operations in a given year. As with most manufacturing
and many other entities, there can be no assurance that the Company will not be
named as a PRP or incur liabilities through other means at additional sites in
the future or that the costs associated with such additional sites would not be
material.
The Environmental Protection Agency signed final rules affecting pulp and
paper industry discharges of wastewater and gaseous emissions ("Cluster Rules")
which became effective on April 15, 1998. These Cluster Rules require changes
in the pulping, bleaching and/or wastewater treatment processes presently used
in some U.S. pulp and paper mills, including some of the Company's mills. Based
on management's understanding of the rules, the Company estimates that
approximately $40 million of capital expenditures may be required to comply with
the rules with compliance dates beginning in 1999 and extending over the next
two to five years. As of September 27, 1998 the Company has incurred $2.4
million in capital expenditures for compliance with the Cluster Rules. There
are risks and uncertainties associated with the Company's estimate that could
cause total capital expenditures and timing of such expenditures to be
materially different from current estimates, including changes in technology,
interpretation of the rules by government agencies that is substantially
different from the Company's interpretation, or other items.
NOTE 7 -- STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NO. 121
- ------
Statement of Financial Accounting Standards No. 121 ("Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of")
requires that the Company assess the recoverability of its investments in long-
lived assets to be held and used in operations whenever events or circumstances
indicate that their carrying amounts may be impaired. Such assessment requires
that the future cash flows expected to result from use of the assets are
estimated and an impairment loss recognized when future cash flows are less than
the carrying value of such assets. Estimating future cash flows requires the
Company to estimate useful lives of its long-lived assets, future production
volumes and costs, future sales volumes, demand for the Company's product mix
and prices that reflect the use of its long-lived assets and
8
<PAGE>
market conditions. Although the Company believes it has a reasonable basis for
its estimates, it is reasonably possible that the Company's estimate of future
cash flows could change from current estimates which could result in
recognizing, in future periods, a material impairment loss on its long-lived
assets.
NOTE 8 -- COMPREHENSIVE INCOME
- ------
The Company adopted Statement of Financial Accounting Standards No. 130
("SFAS No. 130") "Reporting Comprehensive Income" in the first quarter of 1998.
SFAS No. 130 establishes standards for the reporting and displaying of
comprehensive income and its components; however, the adoption of SFAS No. 130
had no impact on the Company's net income or shareholders' equity.
Comprehensive income for the Company consists of net income, foreign currency
translation adjustments and minimum pension liability adjustments.
During the third quarter of 1998 and 1997, the Company's total comprehensive
loss was $5.8 million and $8.2 million, respectively, and for the nine months
ended September 27, 1998 and September 28, 1997, the Company's total
comprehensive loss was $32.4 million and $30.6 million, respectively.
NOTE 9 -- WORK FORCE REDUCTION
- ------
During the second quarter of 1998 the Company accrued approximately $2.5
million relating to the announced work force reduction of 5%. An additional $.5
million was accrued for the work force reduction effort during the third quarter
of 1998. The accrual is for anticipated expenses resulting from the work force
reduction primarily for severance and benefit payments to the approximately 230
affected employees. Employment classes affected include both hourly and salaried
employees from manufacturing, maintenance, and office staff. As of September 27,
1998 approximately $.9 million had been paid and the remainder will be paid
through the first half of 1999.
NOTE 10 -- SUBSEQUENT EVENTS
- -------
On September 28, 1998 Crown Paper Co. received consents from holders of its
11% Senior Subordinated Notes due 2005 resulting in the settlement with Fort
James Corporation for the return of $33 million of Crown Vantage's 11.45% Senior
Pay-In-Kind Notes (the "PIK Notes"). The Company's bank lenders also provided
their consent. The consents were for amendments of certain terms of the related
indentures and Credit Agreement to permit the settlement to occur. The
settlement involved the return of these PIK Notes by Fort James in exchange for
the mutual release from a variety of claims that had arisen from prior
intercompany transactions. The settlement also amended the terms of the
remaining PIK Notes allowing Crown Vantage the right to call the remaining PIK
Notes and accrued interest at fair value at any time prior to their maturity.
Crown Vantage expects to record a pretax extraordinary gain in the fourth
quarter of 1998 of approximately $33 million, which will be partially offset by
transaction fees. PIK Notes with combined face values of approximately $25
million were extinguished by Crown Vantage. The remaining $8 million in
returned PIK Notes is carried on the books of Crown Paper at face value, but
will be eliminated in the consolidated Crown Vantage financial statements.
Crown Vantage also announced on September 28, 1998 that it would not exercise
the option portion of the settlement agreement which would have allowed for the
return of the remaining PIK Notes with a face value of $107 million held by Fort
James. The option, which expired on September 30, 1998, would have allowed the
company to purchase these notes for $80 million in cash. However, the Company
continues to hold the right to call these notes at any time prior to maturity at
fair value.
9
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ITEM 2 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
- ------
FINANCIAL CONDITION
Crown Vantage Inc. and subsidiaries (the "Company") are a major producer of
value-added paper products for a diverse array of end-uses. The Company's two
business sectors and corresponding principal product categories are (i) printing
and publishing papers, for applications such as special interest magazines,
books, custom business forms and corporate communications and promotions (e.g.,
annual reports and stationery); and (ii) specialty papers, principally for food
and retail packaging applications and conversion into such items as coffee
filters, cups and plates.
The Company operates 10 facilities using 31 paper machines and its paper
production is approximately 75% integrated with the Company's pulp operations.
The Company's two largest facilities are integrated operations located in St.
Francisville, Louisiana and Berlin and Gorham, New Hampshire. St. Francisville
produces coated groundwood papers for magazines and catalogs and uncoated
specialty converting papers. Berlin-Gorham primarily produces uncoated printing
and publishing papers as well as market pulp. The Company also produces
uncoated printing and publishing papers at its non-integrated facilities in
Adams, Massachusetts; Ypsilanti, Michigan; and Dalmore and Guardbridge,
Scotland. The Company's food and retail packaging papers are produced primarily
at non-integrated facilities in Port Huron and Parchment, Michigan, and Milford,
New Jersey. In addition to its primary paper-making operations, the Company
operates a cast-coating facility in Richmond, Virginia.
RESULTS OF OPERATIONS
- ---------------------
The Company's net sales revenue and tons sold for each business sector as
well as pulp are as follows:
<TABLE>
<CAPTION>
Net Sales and Tonnage by Sector
for the Three Months Ended
September 27, 1998 September 28, 1997
--------------------- ---------------------
Tons Sales Tons Sales
--------- ---------- ---------- ---------
(thousands) (thousands)
Printing and Publishing Papers
<S> <C> <C> <C> <C>
Coated groundwood 74,042 $ 60,306 70,913 $ 52,713
Uncoated 57,746 52,052 59,251 57,505
Specialty Papers
Food and retail packaging 53,466 65,722 58,606 72,838
Converting 36,943 27,175 44,301 37,427
Pulp 27,629 9,388 26,236 10,107
Intracompany Eliminations (7,928) (2,875) (9,740) (3,782)
------- -------- ------- --------
241,898 $211,768 249,567 $226,808
======= ======== ======= ========
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Net Sales and Tonnage by Sector
for the Nine Months Ended
September 27, 1998 September 28, 1997
--------------------- ---------------------
Tons Sales Tons Sales
--------- ---------- ---------- ---------
(thousands) (thousands)
<S> <C> <C> <C> <C>
Printing and Publishing Papers
Coated groundwood 217,082 $177,841 213,769 $147,839
Uncoated 180,605 168,497 182,875 177,561
Specialty Papers
Food and retail packaging 160,881 200,248 175,887 222,545
Converting 107,184 83,187 132,975 117,437
Pulp 80,073 28,055 70,871 26,103
Intracompany Eliminations (24,394) (8,841) (30,219) (11,104)
------- -------- ------- --------
721,431 $648,987 746,158 $680,381
======= ======== ======= ========
</TABLE>
NET SALES
- ---------
The Company's net sales decreased 4.6% to $649.0 million for the nine
months ended September 27, 1998 as compared to $680.4 million for the same
period in 1997. The decrease in net sales is primarily due to a 3.3% decrease in
tons sold during the first nine months of 1998 compared to the first nine months
of 1997. Net sales declined 6.6% during the third quarter of 1998 as compared
to the third quarter of 1997. The decrease in net sales during the third
quarter of 1998 as compared to the same period in 1997 is primarily due to a
3.1% decrease in tons sold and a 3.7% decrease in average net sales price per
ton.
Net sales of coated groundwood paper (which is used principally in the
production of magazines and catalogs) for the nine month period ending September
27, 1998 increased 20.3% as compared to the same period in 1997. The increase
in net sales is primarily due to an 18.5% increase in average net sales price
per ton when comparing the first nine months of 1998 to the same period in 1997.
Net sales increased 14.4% during the third quarter of 1998 as compared to the
third quarter of 1997. The increases in net sales during the third quarter of
1998 as compared to the third quarter of 1997 are primarily due to average net
sales price per ton increasing 9.6% and tons sold increasing by 3,100 tons or
4.4% during the comparable periods. While demand for coated groundwood papers
was strong in the third quarter of 1998, coated paper imports continued at high
levels resulting in industry-wide mill inventory builds and some price
discounting during the quarter. The current oversupply poses a threat of
continued price discounting which may negatively impact prices of the Company's
coated groundwood paper in future periods.
Net sales of uncoated printing and publishing papers in the first
three quarters of 1998 decreased 5.1% compared to the first three quarters of
1997. The decrease in the first nine months of 1998 from the first nine months
of 1997 is primarily due to an average sales price per ton decrease of 3.9%.
Net sales during the third quarter of 1998 decreased 9.5% as compared to the
third quarter of 1997. The decrease in net sales is primarily due to a 7.1%
decrease in average net sales price per ton and a decrease of approximately
1,500 tons (or 2.5%) during the third quarter of 1998 as compared to the third
quarter of 1997. The current economic crisis in Asia coupled with a strong U.S.
Dollar and British Pound have
11
<PAGE>
resulted in lower exports by U.S. and U.K. paper producers and increased imports
into the U.S. and U.K. from Asia, Europe, and South America. This abundance of
uncoated freesheet paper supply has negatively impacted demand and pricing for
the Company's uncoated printing and publishing papers, resulting in depressed
prices for the Company's targeted grades. The current supply levels of these
papers in the market place have also resulted in the Company's partial shift in
mix to lower value added grades in order to maintain volume during this period
of supply/demand imbalance, which also negatively impacted the Company's average
net selling price.
Food and retail packaging paper net sales declined $22.3 million
during the first nine months of 1998, as compared to the same period in 1997.
The 10.0% decrease in net sales is the result of an 8.5% decrease in tons sold
and a 1.6% decrease in average net sales price per ton during the nine months
ended September 27, 1998 as compared to the nine months ended September 28,
1997. Net sales during the third quarter of 1998 decreased 9.8% or $7.1 million
as compared to the third quarter of 1997. The decrease in net sales during the
third quarter of 1998 as compared to the same period in 1997 is due to a 8.8%
decrease in tons sold and a 1.1% decrease in average net sales price per ton.
The current economic crisis in Asia is indirectly affecting the Company's food
and retail packaging papers sector as large integrated mills are entering
otherwise non-traditional markets thereby disrupting supply/demand balance and
pricing for the Company's specialty packaging papers.
Net sales of specialty converting papers decreased 29.2% during the
nine months ended September 27, 1998 compared to the nine months ended September
28, 1997. Net sales decreased 27.4% to $27.2 million from $37.4 million for the
quarters ended September 27, 1998 and September 28, 1997, respectively. The
decrease during the first three quarters of 1998 compared to the first three
quarters of 1997 is primarily the result of a 19.4% decrease in tons sold and a
decrease of 12.1% in average net sales price per ton. The decrease in net sales
during the third quarter of 1998 compared to the third quarter of 1997 is due to
an average price per ton decrease of 12.9% and a decrease in tons sold of 16.6%.
The decreased volume is primarily due to the decision by certain customers
during the last half of 1997 to integrate backwards their operations, negatively
affecting our specialty converting papers sales. The decrease in average net
sales price per ton is primarily due to the lower number of tons sold from the
Company's cast-coating operations whose papers generally command premium pricing
and the competitive pricing pressures for toweling and certain paper grades
produced at the Company's St. Francisville mill. The Company continues to
aggressively pursue replacing the lost tonnage with new product development and
trials of engineered papers in progress. However, demand for the cast-coated
products remains particularly weak with marginal improvement expected in the
fourth quarter of 1998 and 1999 as compared to the first three quarters of 1998.
Net sales of pulp to external customers increased by $4.2 million
during the nine months ended September 27, 1998 as compared to the nine months
ended September 28, 1997. Tons of pulp sold is a function of market demand as
well as managing, to the Company's best advantage, internal pulp integration.
Tons sold to external customers in the first nine months of 1998 increased 37.0%
or 15,000 tons when compared to the same period of 1997. The increase in tons
sold is primarily due to the availability of pulp for sale that in the prior
period was used internally, primarily for the manufacturing of toweling, as well
as improved operating efficiencies at the pulping operations. Net sales to
external customers increased 3.0% during the third quarter of 1998 as compared
to the third quarter of 1997. The increase in net sales is primarily due to an
increase in tons sold of 3,200 tons, for the reasons discussed above, and was
partially offset by a decrease in net sales price per ton of 13.8%.
12
<PAGE>
<TABLE>
<CAPTION>
OPERATING INCOME (LOSS)
-----------------------
Operating Income (Loss) by Sector Operating Income (Loss) by Sector
for the Quarter Ended for the Nine Months Month
--------------------------------- ---------------------------------
Sept 27, 1998 Sept 28, 1997 Sept 27, 1998 Sept 28, 1997
---------------- --------------- ---------------- ---------------
(Thousands) (Thousands)
<S> <C> <C> <C> <C>
Printing and Publishing Papers $6,751 $2,161 $ 4,066 $(8,341)
Food and retail packaging 155 1,530 766 5,913
Converting (447) 1,730 (1,111) 7,743
Pulp and Miscellaneous (564) 1,214 (6,634) 467
------ ------ ------- -------
$5,895 $6,635 $(2,913) $ 5,782
====== ====== ======= =======
</TABLE>
The Company had an operating loss of $2.9 million for the nine months
ended September 27, 1998 compared to operating income of $5.8 million for the
same period in 1997. Lower volumes and the decrease in average net sales price
in the first nine months of 1998 increased the operating loss by $11.1 million
and $8.8 million, respectively, as compared to the same period in 1997. The
negative volume and price variances were partially offset by $14.1 million of
favorable cost variances primarily caused by lower raw material costs and
improved operating efficiencies. The improved cost variances were partially
offset by the workforce reduction accrual taken in the second and third quarters
of 1998 for a total of $3.0 million. The 11.1% decrease in operating profit
when comparing the third quarter of 1998 to the third quarter of 1997 is
primarily due to the decrease in volume and average net sales price and is
partially offset by the favorable cost variances discussed above.
Operating performance for printing and publishing papers improved by
$12.4 million to operating income of $4.1 million during the first nine months
of 1998 compared to an operating loss of $8.3 million for the same period in
1997. The improved operating results were primarily due to the increase in
coated groundwood average price per ton that was partially offset by the
decrease in average price per ton for the Company's uncoated freesheet papers.
The improved operating performance was also negatively impacted by higher costs
due to the work force reduction accrual, and unexpected down time in the second
quarter of 1998 at St. Francisville caused by explosions of transformers owned
by a local utility company. Operating income increased by $4.6 million during
the third quarter of 1998 as compared to the third quarter of 1997 primarily due
to the increase in average net sales price per ton for coated groundwood paper.
The improved results for the third quarter of 1998 were partially offset by
lower uncoated freesheet prices and lower volumes, discussed above.
Food and retail packaging operating income decreased $5.1 million to
$.8 million for the first nine months of 1998 compared to the first nine months
of 1997. The decrease in operating income during this period is primarily
attributable to the decreases in volume and average sales price per ton
discussed previously in "Net Sales." The decreases in volumes and prices were
partially offset by favorable cost variances primarily from improved mill
efficiencies and lower raw material costs. Operating income decreased $1.4
million during the third quarter of 1998 as compared to the third quarter of
1997 for the reasons discussed above.
Operating results for converting papers decreased $8.9 million in the
first nine months of 1998 as compared to the first nine months of 1997.
Operating results decreased $2.2 million during the third quarter of 1998
compared to the third quarter of 1997. The decrease in operating results is
primarily attributable to the decrease in tons sold and the lower average price
per ton discussed previously.
Operating results within the Company's pulp and miscellaneous sector
decreased approximately $ 7.1 million for the first nine months of 1998 compared
to the first nine months of 1997. The decline in
13
<PAGE>
operating results was primarily the result of decreases in average net sales
price per ton and certain manufacturing difficulties encountered during the
first two quarters of 1998. Average net sales price per ton for pulp decreased
6.5% during the first nine months of 1998 as compared to the first nine months
of 1997. Operating results during the third quarter of 1998 compared to the
third quarter of 1997 decreased by $1.8 million primarily due to a 13.8%
decrease in average net sales price per ton.
Selling and administrative expenses increased $2.8 million for the
first nine months of 1998 compared to the same period in 1997. The increase in
selling and administrative expense when comparing the first nine months of 1998
to the first nine months of 1997 is primarily due to higher sales and marketing
costs and one time expenditures associated with certain of the Company's
strategic initiatives. Selling and administrative expenses increased $1.8
million when comparing the third quarters of 1998 and 1997 primarily due to the
one time expenditures associated with certain of the Company's strategic
initiatives.
INTEREST EXPENSE
- ----------------
Interest expense for the nine months ended September 27, 1998 and
September 28, 1997 was $49.1 million for each period. Interest expense for the
third quarters of 1998 and 1997 was $16.6 million and $16.8 million,
respectively.
LIQUIDITY AND SOURCES OF CAPITAL
- --------------------------------
In connection with the Spin-Off, the Company obtained $250 million in
financing through a public offering of Senior Subordinated Notes and $253
million initial borrowings under a $350 million credit facility from a group of
banks (collectively, the "Financing"). The net proceeds from the Financing were
paid to James River Corporation of Virginia, now known as Fort James Corporation
("Fort James"), together with $100 million Senior Pay-in-Kind Notes as a return
of James River's capital investment.
On March 18, 1998, Crown Vantage entered into an agreement with Fort
James related to Crown Vantage's 11.45% Senior Pay-in-Kind Notes ("PIK Notes")
which are held by Fort James. The agreement provided for the delivery to Crown
Vantage and Crown Paper Co. of PIK Notes totaling $25 million and $8 million,
respectively, in exchange for the mutual release from a variety of claims that
had arisen from prior transactions between Fort James and Crown Vantage. On
September 28, 1998 the Company and Fort James consummated the settlement
agreement whereby Fort James returned the $33 million of PIK Notes. Crown
Vantage has the right to purchase the remaining PIK Notes and accrued interest
(the notes having a face amount totaling $107 million at September 27, 1998) at
fair value (see "Subsequent Events").
Under the bank credit facility the revolving credit available is in
the aggregate amount of $150 million with a $75 million sublimit for letters of
credit and can be used for general corporate purposes, working capital needs and
permitted investments. At September 27, 1998, $70.0 million of the revolving
credit was outstanding, $37.9 million of the sublimit for letters of credit had
been used and $42.1 million of the aggregate line was available if needed.
Cash flows provided by operating activities were $6.8 million for the
nine months ended September 27, 1998 compared to cash flows provided by
operating activities of $29.8 million for the nine months ended September 28,
1997. The decrease in operating cash flows for the nine months ended September
27, 1998 compared to the same period in 1997 is mainly attributable to the $6.4
million increase in net loss, a $3.3 million reduction in the accounts
receivable securitization and fluctuations in
14
<PAGE>
working capital and other assets and liabilities. Earnings before interest,
taxes, depreciation and amortization (EBITDA) were $61.3 million for the first
nine months of 1998 as compared to $69.1 million for the comparable period in
1997.
The Company's business is capital intensive. Pulp and paper mills
generally consist of an extensive network of buildings, machinery, and
equipment, which require continual upgrades, replacement, modernization and
improvement. The Company's capital expenditures for the nine months ended
September 27, 1998 were $34.1 million compared to $45.0 million in the same
period in 1997. 1998 expenditures primarily represented capital maintenance
projects. Capital expenditure projects during the first nine months of 1997
related to capital maintenance projects and $7.9 million for cash payments on
the Company's rebuild of the Number 1 paper machine at the St. Francisville
mill. The Company's capital spending plan for the remainder of 1998 is
approximately $6 million. These capital expenditures are primarily for capital
maintenance and environmental projects and are expected to be financed by cash
flows from operations and available financing sources.
WORK FORCE REDUCTION
- --------------------
During the second quarter of 1998 the Company accrued $2.5 million
relating to the announced work force reduction of 5%. An additional $.5 million
was accrued for the work force reduction effort during the third quarter of
1998. The accrual is for anticipated expenses resulting from the work force
reduction primarily for severance and benefit payments to the approximately 230
affected employees. Employment classes affected include both hourly and salaried
employees from manufacturing, maintenance, and office staff. As of September 27,
1998 approximately $.9 million had been paid and the remainder will be paid
during the last quarter of 1998 and into the first half of 1999.
EURO CONVERSION
- ---------------
The Company is in the process of addressing the issues raised by the
introduction of the Single European Currency ("Euro") as of January 1, 1999 and
during the transition period through January 1, 2002. The Company expects that
its internal systems that will be affected by the initial introduction of the
Euro will be Euro capable by January 1, 1999, and does not expect the costs of
system modifications to be material. While the Company will continue to evaluate
the impact of the Euro introduction over time, based on currently available
information, management does not believe that the introduction of the Euro
currency will have a material adverse impact on the Company's financial
condition or overall trends in results of operations.
YEAR 2000
- ---------
The Year 2000 issue concerns the potential inability of computer
applications, other information technology systems, and certain software-based
"embedded" control systems to recognize and process properly date-sensitive
information as the Year 2000 approaches and beyond. The Company could suffer
material adverse impacts on its operations and financial results if the
applications and systems used by the Company, or by third parties with whom the
Company does business, do not accurately or adequately process or manage dates
or other information as a result of the Year 2000 issue.
The Company has completed a review of its financial accounting system
for purposes of evaluating the Year 2000 issue. The Company's software provider
has indicated that it will certify this financial accounting system as Year 2000
compliant upon completion of the next scheduled upgrade. This upgrade is
scheduled for completion during the first quarter of 1999. Management expects
this upgrade will adequately address the Year 2000 issue in this system.
Independent testing will be
15
<PAGE>
performed by the Company. There can be no assurance that all Year 2000 issues in
this software will be adequately resolved by this or other future software
releases.
The Company also uses a variety of other software applications,
business information systems, accounting subsystems, process control systems and
related software, communication devices, and networking and other operating
systems. The Company has completed its inventory of all such systems and is
currently in the process of testing, upgrading, replacing, or otherwise
modifying these systems to adequately address the Year 2000 issue. The Company
believes it will be able to timely modify or replace its affected systems to
prevent any material detrimental effects on operations and financial results.
The Company anticipates this work will continue, with appropriate testing,
remediation and/or replacement taking place during the fourth quarter of 1998
and into the first half of 1999. Possible risks of this process include but
are not limited to the ability of the Company's personnel and outside vendors to
adequately and timely identify and resolve all critical Year 2000 issues, and
the ability of the Company to secure additional Year 2000 expertise during this
time of high demand for this expertise if an unanticipated material problem
requires skills the Company or its third party vendors currently do not possess.
The Company can give no assurance that all critical Year 2000 issues will be
resolved in a timely manner or that potentially unresolved issues would not have
a material adverse impact on the results of operations.
The Company has certain key relationships with customers, vendors and
outside service providers. Failure by the Company's key customers, vendors and
outside service providers to adequately address the Year 2000 issue could have a
material adverse impact on the Company's operations and financial results. The
Company is currently assessing the Year 2000 readiness of these key customers
and suppliers and, at this time, cannot determine what the impact of this
assessment will be on the Company. This assessment includes but is not limited
to soliciting responses from each of these parties concerning their Year 2000
readiness and review of public documents filed by many of these parties.
Management expects to complete the assessment of these key suppliers during the
first quarter of 1999. The Company is primarily relying upon the voluntary
disclosures from third parties for this review of their Year 2000 readiness.
Since the Company anticipates that its affected systems will be
remediated or replaced to timely address the Year 2000 issue and is currently
focusing its resources in those areas, the Company has not yet developed any
other contingency plans regarding the Year 2000 issue for its internal systems.
However, the Company intends to develop contingency plans if at a later date
management determines that any of its systems will not be Year 2000 compliant
and that such noncompliance would be expected to have a material adverse impact
on the Company's operations or financial results. Many of the identified risks
from key customers, vendors and outside service providers are both general and
speculative in nature, such as possible power or telecommunication failures,
breakdowns in transportation systems, inability to process financial
transactions, and similar events affecting general business services. The
Company has not developed any contingency plans for these general risks, is not
currently able to ascertain the likelihood that any of these risks will actually
occur, and has not otherwise analyzed or identified possible "worst case"
scenarios relating to Year 2000 issues. Once the Company has completed its
assessment of Year 2000 readiness of key customers, vendors and outside service
providers, management intends to develop contingency plans to mitigate material
known detrimental effects that may be caused by their Year 2000 noncompliance.
However, it is unlikely that any contingency plan would mitigate the adverse
impact to the financial condition or operations of the Company of any
catastrophic event due to the Year 2000 issue that leads to a prolonged
disruption of essential services.
16
<PAGE>
Management believes that total Year 2000 costs will range between
$2 million and $3 million, most of which will be incurred in 1998. The costs
associated with this effort are incremental to the Company. As of September
27, 1998 the Company has incurred costs related to the Year 2000 issue of
approximately $.7 million. In addition to the costs mentioned above, the
Company's capital spending for planned upgrading of certain information systems
to enhance the capabilities of those systems was accelerated in part due to the
Year 2000 issue. The total estimated increase in accelerated capital spending
for these systems is anticipated to be under $2 million. The Company's current
estimates of the amount of time and costs necessary to remediate and test its
computer systems are based on the facts and circumstances existing at this time.
The estimates were made using assumptions of future events including the
continued availability of certain resources, Year 2000 readiness plans,
implementation success by key third party vendors, and other factors. New
developments may occur that could increase the Company's estimates of the amount
of time and costs necessary to modify and test its various information and non-
information systems. These potential developments include but are not limited
to the availability and increased cost of personnel trained in this area of
expertise, the ability to locate and correct all relevant computer codes and
equipment, and any unanticipated Year 2000 problems from key customers, vendors,
and outside service providers.
DEBT COVENANTS
- --------------
In connection with the bank credit facility as amended (the
"Facility"), Crown Paper Co. is required to comply with certain financial
covenants that include maintaining minimum quarterly cash flow to debt and
interest coverage ratios as well as minimum tangible net worth. Crown Paper Co.
is currently in compliance with these covenant requirements. Pursuant to the
Facility, the covenant requirements are scheduled to become significantly more
onerous at the end of the first quarter of fiscal year 1999. Based on
management's current forecasts, it is probable that Crown Paper Co. will not be
in compliance with the new financial covenants referred to above at the end of
the first quarter of 1999. In addition, should the current pricing environment
for the Company's products not sufficiently improve during the remainder of
1998, it is reasonably possible that Crown Paper Co. will not be in compliance
with certain of its financial covenants at the end of the fourth quarter of
1998. Management is currently in the process of renegotiating its debt covenants
with the bank group. While there can be no assurance of success, management
believes that it will be successful in amending the financial covenants in order
to maintain compliance with the Facility.
NEW ACCOUNTING PRONOUNCEMENTS
- -----------------------------
In June 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 131 ("SFAS No. 131") "Disclosure
about Segments of an Enterprise and Related Information." This statement will
require segment disclosure based on management's decision-making criteria. SFAS
No. 131 also requires disclosures about the products and services provided, the
countries in which material assets are held and material revenues are generated,
and significant customers. Management has determined that the Company has two
reportable segments under SFAS 131: Specialty Papers and Printing and Publishing
Papers. SFAS No. 131 is effective for the Company's 1998 fiscal year end.
SUBSEQUENT EVENTS
- -----------------
On September 28, 1998 Crown Paper Co. received consents from holders
of its 11% Senior Subordinated Notes due 2005 resulting in the settlement with
Fort James Corporation for the return of $33 million of Crown Vantage's 11.45%
Senior Pay-In-Kind Notes. The Company's bank lenders also provided their
consent. The consents were for amendments of certain terms of the
17
<PAGE>
related indentures and Credit Agreement to permit the settlement to occur. The
settlement involved the return of these PIK Notes by Fort James in exchange for
the mutual release from a variety of claims that had arisen from prior
intercompany transactions. The settlement also amended the terms of the
remaining PIK Notes allowing Crown Vantage the right to call the remaining PIK
Notes and accrued interest at fair value at any time prior to their maturity.
Crown Vantage expects to record a pretax extraordinary gain in the
fourth quarter of 1998 of approximately $33 million, which will be partially
offset by transaction fees. PIK Notes with combined face values of approximately
$25 million were extinguished by Crown Vantage. The remaining $8 million in
returned PIK Notes is carried on the books of Crown Paper at face value, but
will be eliminated in the consolidated Crown Vantage financial statements.
Crown Vantage also announced on September 28, 1998 that it will not
exercise the option portion of the settlement agreement for the return of the
remaining PIK Notes with a face value of $107 million held by Fort James. The
option, which expired on September 30, 1998, would have allowed the company to
purchase these notes for $80 million in cash. However, the Company continues to
hold the right to call these notes at any time prior to maturity at fair value.
FORWARD LOOKING STATEMENTS
- --------------------------
Certain statements within Management's Discussion and Analysis and
elsewhere are forward looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. These statements are subject to
various risks and uncertainties that could cause the actual results to be
materially different from the Company's current expectations. These forward-
looking statements can be identified by use of language such as plans, expects,
estimates, anticipates, believes, possible and other similar words or phrases.
In addition to the factors discussed above, there are other factors that could
cause the actual results to differ materially. These other factors include but
are not limited to business conditions and the general economy both global and
domestic, prices for the Company's products, the duration and depth of the Asian
economic crisis, competitive factors, the effects of the spread of the Asian
economic crisis to other regions around the world, maintaining good labor
relations, the Company's ability to successfully implement its Year 2000 plans,
the Company's ability to renegotiate and comply with debt covenants and
maintaining good customer relations.
18
<PAGE>
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
- ------
(a) Exhibits
Ex. 3.1 Restated Bylaws of Crown Vantage
Ex. 10.1 Form of employment agreement (amendment No. 2) with
Ernest S. Leopold dated September 11, 1998 *
Ex. 10.2 Amendment No. 5 to Credit Agreement
Ex. 11 Statement re: Computation of Per Share Earnings
Ex. 27 Financial Data Schedule *
* Electronic Filing Only
(b) Reports on Form 8-K --
Current Report, previously filed on Form 8-K dated July 28, 1998, item 5,
relating to the Company no longer actively exploring the possible
separation of its specialty papers businesses from the St. Francisville
facility and Crown Vantage exploring other alternatives to repurchase the
PIK Notes.
19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CROWN VANTAGE INC.
(Registrant)
/s/ R. Neil Stuart /s/ Michael J. Hunter
- ------------------------- ----------------------------
R. Neil Stuart Michael J. Hunter
Executive Vice President, Vice President,
Chief Financial Officer Chief Accounting Officer
(Duly Authorized Officer) (Duly Authorized
Chief Accounting Officer)
November 11, 1998
20
<PAGE>
Exhibit 3.1
RESTATED BYLAWS OF
CROWN VANTAGE INC.
(as amended September 11, 1998)
ARTICLE I - MEETINGS OF STOCKHOLDERS
Section I.1 Closing of Transfer Books and Fixing of Record Date. For the
---------------------------------------------------
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of stockholders for
any other proper purpose, the Board of Directors or the Executive Committee
shall fix in advance a date as the record date for any such determination of
stockholders, such date to be not more than 70 days before the meeting or
action. When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this article, such determination shall
apply to any adjournment thereof, except as is otherwise provided by law.
Section I.2 Place and Time of Meetings. Meetings of stockholders shall be
--------------------------
held at such place, either within or without the Commonwealth of Virginia, and
at such time, as may be provided in the notice of the meeting.
Section I.3 Organization and Order of Business. The Chairman, (the
----------------------------------
"Chairman") or, in his absence, the Chief Executive Officer, shall serve as
chairman at all meetings of the stockholders. In the event of their absence or
if both individuals decline to serve, a majority of the shares entitled to vote
at such meeting may appoint any person to act as chairman. The Secretary of the
Corporation or, in his absence, an Assistant Secretary, shall act as secretary
at all meetings of the stockholders. In the event that neither the Secretary
nor any Assistant Secretary is present, the chairman of the meeting may appoint
any person to act as secretary of the meeting.
The Chairman shall have the authority to make such rules and regulations,
to establish such procedures and to take such steps as he or she may deem
necessary or desirable for the proper conduct of each meeting of the
stockholders, including, without limitation, the authority to make the agenda
and to establish procedures for (i) the dismissal of business not properly
presented, (ii) the maintenance of order and safety, (iii) placing limitations
on the time allotted to questions or comments on the affairs of the Corporation,
(iv) placing restrictions on attendance at a meeting by persons or classes of
persons who are not stockholders or their proxies, (v) restricting entry to a
meeting after the time prescribed for the commencement thereof and (vi) the
commencement, conduct and close of voting on any matter.
<PAGE>
Section I.4 Annual Meeting. The annual meeting of stockholders shall be
--------------
held on the third or second Thursday in April of each year as set by the Board
of Directors or on such other dates as shall be approved by the Board of
Directors.
At each annual meeting of stockholders, only such business shall be
conducted as is proper to consider and has been brought before the meeting (i)
by or at the direction of the Board of Directors or (ii) by a stockholder of the
Corporation who is a stockholder of record of a class of shares entitled to vote
on such business at the time of the giving of the notice hereinafter described
in this Section 1.4 and who complies with the notice procedures set forth in
this Section 1.4. In order to bring business before an annual meeting of
stockholders, a stockholder, in addition to complying with any other applicable
requirements, must have given timely written notice of his intention to bring
such business before the meeting to the Secretary of the Corporation. To be
timely, a stockholder's notice must be given, either by personal delivery or by
United States certified mail, postage prepaid, addressed to the Secretary of the
Corporation at the principal office of the Corporation and received (i) on or
after January 1st of the year in which the meeting will be held and before
February 1st of the year in which the meeting will be held or (ii) not less than
60 days before the date of the annual meeting if the date of such meeting, as
prescribed in these Bylaws, has been changed by more than 30 days.
Each such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) the name and
address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (ii) the class and number of shares of
stock of the Corporation beneficially owned by such stockholder, (iii) a
representation that such stockholder is a stockholder of record and intends to
appear in person or by proxy at such meeting to bring before the meeting the
business specified in the notice, (iv) a brief description of the business
desired to be brought before the meeting, including the complete text of any
resolutions to be presented at the meeting and the reasons for wanting to
conduct such business, and (v) any material interest which the stockholder has
in such business.
The Secretary of the Corporation shall deliver each such stockholder's
notice that has been timely received to the Chairman or a committee designated
by the Board of Directors for review.
Notwithstanding the foregoing provisions of this Section 1.4, a stockholder
seeking to have a proposal included in the Corporation's proxy statement for an
annual meeting of stockholders shall comply with the requirements of Regulation
14A under the Securities Exchange Act of 1934, as amended from time to time, or
with any successor regulation.
Section I.5 Special Meetings. Special meetings of the stockholders may be
----------------
called by the Chief Executive Officer or the Board of Directors. Only business
within the purpose or purposes described in the notice for a special meeting of
stockholders may be conducted at the meeting.
Section I.6 Notice of Meetings. Written notice stating the place, day and
------------------
hour of each meeting of stockholders and, in the case of a special meeting, the
purpose or purposes for which
2
<PAGE>
the meeting is called, shall be given by mail not less than ten nor more than
60 days before the date of the meeting (except when a different time is
required in these Bylaws or by law) to each stockholder of record entitled to
vote at such meeting and to such nonvoting stockholders as may be required by
law. Such notice shall be deemed to be effective when deposited in the United
States mail with postage thereon prepaid, addressed to the stockholder at his
address as it appears on the stock transfer books of the Corporation.
Notice of a stockholders' meeting to act on (i) an amendment of the
Articles of Incorporation; (ii) a plan of merger or share exchange; (iii) the
sale, lease, exchange or other disposition of all or substantially all the
property of the Corporation otherwise than in the usual and regular course of
business, or (iv) the dissolution of the Corporation, shall be given, in the
manner provided above, not less than 25 nor more than 60 days before the date of
the meeting. Any notice given pursuant to this paragraph shall state that the
purpose, or one of the purposes, of the meeting is to consider such action and
shall be accompanied by (x) a copy of the proposed amendment, (y) a copy of the
proposed plan of merger or share exchange, or (z) a summary of the agreement
pursuant to which the proposed transaction will be effected. If only a summary
of the agreement is sent to the stockholders, the Corporation shall also send a
copy of the agreement to any stockholder who requests it.
If a meeting is adjourned to a different date, time or place, notice need
not be given if the new date, time or place is announced at the meeting before
adjournment. However, if a new record date for an adjourned meeting is fixed
(which shall be done if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting), notice of such date shall be
given to those persons entitled to notice who are stockholders as of the new
record date, unless a court provides otherwise.
Section I.7 Quorum and Voting Requirements. Each outstanding share of
------------------------------
common stock shall be entitled to one vote on each matter submitted to a vote at
a meeting of stockholders. Shares of other classes and series shall be entitled
to such vote as may be provided in the Articles of Incorporation.
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. Unless otherwise required by law, a majority of the votes entitled to
be cast on a matter by a voting group constitutes a quorum of that voting group
for action on that matter. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
shall be set for that adjourned meeting. If a quorum exists, action on a
matter, other than the election of directors, by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless a greater number of affirmative votes is required by
law or by the Articles of Incorporation. Directors shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present unless a different vote in required by the
Articles of Incorporation. Less than a quorum may adjourn a meeting.
3
<PAGE>
Section I.8 Proxies. A stockholder may vote his shares in person or by
-------
proxy. A stockholder may appoint a proxy to vote or otherwise act for him or
her by signing an appointment form, either personally or by his attorney-in-
fact. An appointment of a proxy is effective when received by the Secretary or
other officer or agent authorized to tabulate votes and is valid for 11 months
unless a longer period is expressly provided in the appointment form. An
appointment of a proxy is revocable by the stockholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest.
The death or incapacity of the stockholder appointing a proxy does not
affect the right of the Corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the Secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his authority
under the appointment. An irrevocable appointment is revoked when the interest
with which it is coupled is extinguished. A transferee for value of shares
subject to an irrevocable appointment may revoke the appointment if he or she
did not know of its existence when he or she acquired the shares and the
existence of the irrevocable appointment was not noted conspicuously on the
certificate representing the shares. Subject to any legal limitations on the
right of the Corporation to accept the vote or other action of a proxy and to
any express limitation on the proxy's authority appearing on the face of the
appointment form, the Corporation is entitled to accept the proxy's vote or
other action as that of the stockholder making the appointment. Any fiduciary
entitled to vote any shares may vote such shares by proxy.
Section I.9 Waiver of Notice; Attendance at Meeting. A stockholder may
---------------------------------------
waive any notice required by law, the Articles of Incorporation or these Bylaws
before or after the date and time of the meeting that is the subject of such
notice. The waiver shall be in writing, be signed by the stockholder entitled
to the notice, and be delivered to the Secretary of the Corporation for
inclusion in the minutes or filing with the corporate records.
A stockholder's attendance at a meeting (i) waives objection to lack of
notice or defective notice of the meeting, unless the stockholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (ii) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the stockholder objects to considering the matter
when it is presented.
Section I.10 Action Without Meeting. Action required or permitted to be
----------------------
taken at a stockholders' meeting may be taken without a meeting and without
action by the Board of Directors if the action is taken by all the stockholders
entitled to vote on the action. The action shall be evidenced by one or more
written consents describing the action taken, signed by all the stockholders
entitled to vote on the action, and delivered to the Secretary of the
Corporation for inclusion in the minutes or filing with the corporate records.
Action taken under this section shall be effective according to its terms when
all consents are in the possession of the Corporation. A stockholder may
withdraw a consent only by delivering a written notice of withdrawal to the
Corporation prior to the time that all consents are in the possession of the
Corporation.
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If not otherwise fixed pursuant to the provisions of Section 1.1, the
record date for determining stockholders entitled to take action without a
meeting is the date the first stockholder signs the consent described in the
preceding paragraph.
If notice of proposed action is required to be given to nonvoting
stockholders and the action is to be taken by unanimous consent of the voting
stockholders, the Corporation shall give its nonvoting stockholders written
notice of the proposed action at least ten days before the action is taken. The
notice shall contain or be accompanied by the same material that would have been
required by law to be sent to nonvoting stockholders in a notice of a meeting at
which the proposed action would have been submitted to the stockholders for
action.
Section I.11 Voting List. The officer or agent having charge of the stock
-----------
transfer books of the Corporation shall make, at least ten days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting or any adjournment thereof, with the address of and the number of
shares held by each. The list shall be arranged by voting group and within each
voting group by class or series of shares. Such list shall be kept on file at
the registered office of the Corporation, or at its principal office or at the
office of its transfer agent or registrar, for a period of ten days prior to
such meeting and shall be subject to the inspection of any stockholder at any
time during usual business hours. Such list shall also be produced and kept
open at the time and place of the meeting and shall be subject to the inspection
of any stockholder during the whole time of the meeting for the purposes
thereof. The original stock transfer books shall be prima facia evidence as to
who are the stockholders entitled to examine such list or transfer books or to
vote at any meeting of the stockholders. The right of a stockholder to inspect
such list at any other time shall be subject to the limitations established by
law.
If the requirements of this section have not been substantially complied
with, the meeting shall, on the demand of any stockholder in person or by proxy,
be adjourned until such requirements are met. Refusal or failure to prepare or
make available the stockholders' list does not affect the validity of action
taken at the meeting prior to the making of any such demand, but any action
taken by the stockholders after the making of any such demand shall be invalid
and of no effect.
ARTICLE II - DIRECTORS
Section II.1 General Powers. The Corporation shall have a Board of
--------------
Directors. All corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation managed under the direction
of, its Board of Directors, subject to any limitation set forth in the Articles
of Incorporation.
Section II.2 Number and Term. The number of directors of the Corporation
---------------
shall be eight. This number may be changed from time to time by amendment to
these Bylaws to increase or decrease by 30 percent or less the number of
directors last elected by the stockholders, but only the stockholders may
increase or decrease the number by more than 30 percent. No
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decrease in number shall have the effect of shortening the term of any
incumbent director. Each director shall hold office until his death,
resignation or removal or until his successor is elected.
Section II.3 Nomination of Candidates. No person shall be eligible for
------------------------
election as a director unless nominated (i) by the Board of Directors upon
recommendation of the Nominating Committee or otherwise or (ii) by a stockholder
entitled to vote on the election of directors pursuant to the procedures set
forth in this Section 2.3.
Nominations, other than those made by the Board of Directors, may be made
only by a stockholder who is a stockholder of record of a class of shares
entitled to vote for the election directors at the time of the giving of the
notice hereinafter described in this Section 2.3 and only if written notice of
the stockholder's intent to nominate one or more persons for election as
directors at a meeting of stockholders has been given, either by personal
delivery or by United States certified mail, postage prepaid, addressed to the
Secretary of the Corporation at the principal office of the Corporation and
received (i) on or after January 1st of the year in which the meeting will be
held and before February 1st of the year in which the meeting will be held, if
the meeting is to be an annual meeting and clause (ii) is not applicable, or
(ii) not less than 60 days before an annual meeting, if the date of the
applicable annual meeting, as prescribed in these Bylaws, has been changed by
more than 30 days, or (iii) not later than the close of business on the tenth
day following the day on which notice of a special meeting of stockholders
called for the purpose of electing directors is first given to stockholders.
Each such stockholder's notice shall set forth the following: (i) as to
the stockholder giving the notice (a) the name and address of such stockholder
as they appear on the Corporation's stock transfer books, (b) the class and
number of shares of stock of the Corporation beneficially owned by such
stockholder, (c) a representation that such stockholder is a stockholder of
record and intends to appear in person or by proxy at such meeting to nominate
the person or persons specified in the notice, and (d) a description of all
arrangements or understandings, if any, between such stockholder and each
nominee and any other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made; and (ii) as to each
person whom the stockholder wishes to nominate for election as a director (a)
the name, age, business address and, if known, residence address of such person,
(b) the principal occupation or employment of such person, (c) the class and
number of shares of the Corporation which are beneficially owned by such person,
and (d) all other information that is required to be disclosed about nominees
for election as directors in solicitations of proxies for the election of
directors under the Securities Exchange Act of 1934, as amended, or otherwise by
the rules and regulations of the Securities and Exchange Commission. In
addition, each such notice shall be accompanied by the written consent of each
proposed nominee to serve as a director if elected. Each such consent shall
also contain a statement from the proposed nominee to the effect that the
information about him or her contained in the notice is correct.
Section II.4 Election. Except as provided in Section 2.5 of this Article
--------
and in the Articles of Incorporation, the directors shall be elected by the
common stockholders and preferred stockholders entitled to vote with the common
stockholders at the annual meeting of stockholders, and those nominees who
receive the greatest number of votes shall be deemed
6
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elected even though they do not receive a majority of the votes cast. No
individual shall be named or elected as a director without his prior consent.
Section II.5 Removal; Vacancies. The stockholders may remove one or more
------------------
directors for cause. If a director is elected by a voting group, only the
stockholders of that voting group may vote to remove him or her. Unless the
Articles of Incorporation require a greater vote, a director may be removed if
the number of votes cast to remove him or her constitutes a majority of the
votes entitled to be cast at an election of directors of the voting group or
voting groups by which such director was elected. A director may be removed by
the stockholders only at a meeting called for the purpose of removing him or her
and the notice of the meeting must state that the purpose, or one of the
purposes of the meeting, is removal of the director.
A vacancy on the Board of Directors, including a vacancy resulting from the
removal of a director or an increase in the number of directors, may be filled
by (i) the stockholders, (ii) the Board of Directors or (iii) the affirmative
vote of a majority of the remaining directors though less than a quorum of the
Board of Directors, and may, in the case of a resignation that will become
effective at a specified later date, be filled before the vacancy occurs but the
new director may not take office until the vacancy occurs.
Section II.6 Compensation. The Board of Directors may fix the
------------
compensation of directors for their services and may provide for the payment of
all expenses incurred by directors in attending regular and special meetings of
the Board of Directors.
ARTICLE III - DIRECTORS' MEETINGS
Section III.1 Annual and Regular Meetings. An annual meeting of the Board
---------------------------
of Directors, which shall be considered a regular meeting, shall be held
immediately following each annual meeting of stockholders, for the purpose of
electing officers and carrying on such other business as may properly come
before the meeting. The Board of Directors may also adopt a schedule of
additional meetings which shall be considered regular meetings. Regular
meetings shall be held at such times and at such places, within or without the
Commonwealth of Virginia, as the Chief Executive Officer shall designate. If no
place is designated, regular meetings shall be held at the principal office of
the Corporation.
Section III.2 Special Meetings. Special meetings of the Board of
----------------
Directors shall be held on the call of the Chief Executive Officer or any three
members of the Board of Directors at the principal office of the Corporation or
at such other place as the Chief Executive Officer shall designate.
Section III.3 Telephone Meetings. The Board of Directors may permit any
------------------
or all directors to participate in a regular or special meeting by, or conduct
the meeting through the use of, any means of communication by which all
directors participating may simultaneously hear each other during the meeting.
A director participating in a meeting by this means is deemed to be present in
person at the meeting.
7
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Section III.4 Notice of Meetings. No notice need be given of regular
------------------
meetings of the Board of Directors.
Notice of special meetings of the Board of Directors shall be given to each
director in person or delivered to his residence or business address, or such
other place as he or she may have directed in writing, not less than 24 hours
before the meeting by mail, messenger, telecopy, telegraph, or other means of
written communication or by telephoning such notice to him or her. Any such
notice shall set forth the time and place of the meeting and state the purpose
for which it is called.
Section III.5 Quorum; Voting. A majority of the number of directors fixed
--------------
in these Bylaws shall constitute a quorum for the transaction of business at a
meeting of the Board of Directors. If a quorum is present when a vote is taken,
the affirmative vote of a majority of the directors present is the act of the
Board of Directors unless the act of a greater number is required by law, the
Articles of Incorporation or these Bylaws. A director who is present at a
meeting of the Board of Directors when corporate action is taken is deemed to
have assented to the action taken unless (i) he or she objects at the beginning
of the meeting, or promptly upon his arrival, to holding it or transacting
specified business at the meeting; or (ii) he or she votes against, or abstains
from, the action taken.
Section III.6 Waiver of Notice; Attendance at Meeting. A director may
---------------------------------------
waive any notice required by law, the Articles of Incorporation, or these Bylaws
before or after the date and time stated in the notice, and such waiver shall be
equivalent to the giving of such notice. Except as provided in the next
paragraph of this section, the waiver shall be in writing, signed by the
director entitled to the notice and filed with the minutes or corporate records.
A director's attendance at or participation in a meeting waives any
required notice to him or her of the meeting unless the director at the
beginning of the meeting or promptly upon his arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting.
Section III.7 Action Without Meeting. Action required or permitted to be
----------------------
taken at a Board of Directors' meeting may be taken without a meeting if the
action is taken by all members of the Board. The action shall be evidenced by
one or more written consents describing the action taken, signed by each
director either before or after the action taken, and included in the minutes or
filed with the corporate records reflecting the action taken. Action taken
under this section shall be effective when the last director signs the consent
unless the consent specifies a different effective date in which event the
action taken is effective as of the date specified therein, provided the consent
states the date of execution by each director.
ARTICLE IV - COMMITTEE OF DIRECTORS
Section IV.1 Committees. The Board of Directors may create one or more
----------
committees and appoint members of the Board of Directors to serve on them.
Unless otherwise provided
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herein, each committee shall have two or more members who serve at the
pleasure of the Board of Directors. The creation of a committee and
appointment of members to it shall be approved by the number of directors
required to take action under Section 3.5 of these Bylaws.
Section IV.2 Authority of Committees. To the extent specified by the
-----------------------
Board of Directors, each committee may exercise the authority of the Board of
Directors, except that a committee may not (i) approve or recommend to
stockholders action that is required by law to be approved by stockholders; (ii)
fill vacancies on the Board of Directors or any of its committees; (iii) amend
the Articles of Incorporation without stockholder approval; (iv) adopt, amend,
or repeal these Bylaws; (v) approve a plan of merger not requiring stockholder
approval; (vi) authorize or approve a distribution, except according to a
general formula or method prescribed by the Board of Directors; or (vii)
authorize or approve the issuance, or sale or contract for sale, of stock or
determine the designation and relative rights, preferences, and limitations of a
class or series of stock, except that the Board of Directors may authorize a
committee, or a senior executive officer of the Corporation, to do so within
limits specifically prescribed by the Board of Directors.
Section IV.3 Executive Committee. The Board of Directors shall appoint an
-------------------
Executive Committee consisting of two or more directors, which committee shall
have all of the authority of the Board of Directors except to the extent such
authority is limited by the provisions of Section 4.2.
Section IV.4 Audit Committee. The Board of Directors shall appoint an
---------------
Audit Committee consisting of not less than three directors, none of whom shall
be officers, which committee shall regularly review the adequacy of the
Corporation's internal financial controls, review with the Corporation's
independent public accountants the annual audit and other financial statements,
and recommend the selection of the Corporation's independent public accountants.
Section IV.5 Nominating Committee. The Board of Directors shall appoint a
--------------------
Nominating Committee consisting of not less than three directors, a majority of
whom shall not be officers or employees, which committee shall recommend to the
Board of Directors the names of persons to be nominated for election as
directors of the Corporation.
Section IV.6 Compensation Committee. The Board of Directors shall appoint
----------------------
a Compensation Committee consisting of not less than three directors, none of
whom shall be officers, which committee shall recommend to the Board of
Directors the compensation of directors and executive officers of the
Corporation, make awards under the Corporation's discretionary employee benefit
plans, and make recommendations from time to time to the Board of Directors
regarding the Corporation's compensation program.
Section IV.7 Committee Meetings; Miscellaneous. The provisions of these
---------------------------------
Bylaws which govern meetings, action without meetings, notice and waiver of
notice, and quorum and voting requirements of the Board of Directors shall also
apply to committees of directors and their members.
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ARTICLE V - OFFICERS
Section V.1 Officers. The officers of the Corporation shall be a
--------
Chairman; a President and Chief Executive Officer; a Secretary; a Chief
Financial Officer; and such additional officers, including Vice Presidents and
other officers, as the Board of Directors may deem necessary or advisable to
conduct the business of the Corporation. The Chief Executive Officer shall be a
member of the Board of Directors. The Board of Directors shall also designate
those officers who are deemed to be "Executive Officers." Any two offices may
be combined except the offices of President and Secretary.
Section V.2 Election, Term. Officers shall be elected at each annual
--------------
meeting of the Board of Directors and shall hold office, unless removed, until
the next annual meeting of the Board of Directors or until their successors are
elected. Any officer may resign at any time upon written notice to the Board of
Directors.
Section V.3 Removal of Officers. Officers may be removed, with or without
-------------------
cause, at any time by the Board of Directors.
Section V.4.1 Duties of the Chairman. The Chairman shall perform such
----------------------
duties, from time to time, as may be assigned to him or her by the Board of
Directors. Unless he or she declines to serve, the Chairman shall preside at
all meetings of the stockholders and the Board of Directors.
Section V.4.2 Duties of the President and Chief Executive Officer. The
---------------------------------------------------
President and Chief Executive Officer shall have general charge of, and be
charged with, the duty of supervision of the business of the Corporation. In
addition, he or she shall perform such duties, from time to time, as may be
assigned to him or her by the Board of Directors.
Section V.5 Duties of the Secretary. The Secretary shall have the duty to
-----------------------
see that a record of the proceedings of each meeting of the stockholders and the
Board of Directors, and any committee of the Board of Directors, is properly
recorded and that notices of all such meetings are duly given in accordance with
the provisions of these Bylaws or as required by law; he or she may affix the
corporate seal to any document the execution of which is duly authorized, and
when so affixed may attest the same; and, in general, he or she shall perform
all duties incident to the office of secretary of a corporation, and such other
duties as, from time to time, may be assigned to him or her by the Chief
Executive Officer or the Board of Directors, or as may be required by law.
Section V.6 Duties of the Chief Financial Officer. The Chief Financial
-------------------------------------
Officer shall have charge of and be responsible for all securities, funds,
receipts and disbursements of the Corporation, and shall deposit or cause to be
deposited, in the name of the Corporation, all monies or valuable effects in
such banks, trust companies or other depositories as shall, from time to time,
be selected by or under authority granted by the Board of Directors; he or she
shall
10
<PAGE>
be custodian of the financial records of the Corporation; he or she shall keep
or cause to be kept full and accurate records of all receipts and
disbursements of the Corporation and shall render to the Chief Executive
Officer and the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; and shall perform such duties as may
be assigned to him or her by the Chief Executive Officer or the Board of
Directors.
Section V.7 Duties of Other Officers. The other officers of the
------------------------
Corporation shall have such authority and perform such duties as shall be
prescribed by the Board of Directors or by officers authorized to appoint them
to their respective offices. To the extent that such duties are not so stated,
such officers shall have such authority and perform the duties which generally
pertain to their respective offices, subject to the control of the Chief
Executive Officer or the Board of Directors.
Section V.8 Voting Securities of Other Corporations. Any one of the Chief
---------------------------------------
Executive Officer or the Chief Financial Officer shall have power to act for and
vote on behalf of the Corporation at all meetings of the stockholders of any
corporation in which this Corporation holds stock, or in connection with any
consent of stockholders in lieu of any such meeting.
Section V.9 Bonds. The Board of Directors may require that any or all
-----
officers, employees and agents of the Corporation give bond to the Corporation,
with sufficient sureties, conditioned upon the faithful performance of the
duties of their respective offices or positions.
ARTICLE VI - CERTIFICATES OF STOCK
Section VI.1 Form. Stock of the Corporation shall, when fully paid, be
----
evidenced by certificates containing such information as is required by law and
approved by the Board of Directors. Certificates shall be signed by the Chief
Executive Officer, the Chief Financial Officer, or any Vice President and the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
and may (but need not) be sealed with the seal of the Corporation. The seal of
the Corporation and any or all of the signatures on such certificates may be a
facsimile, engraved or printed. In case any such officer or any transfer agent
or registrar who has signed or whose facsimile signature has been placed upon
any such certificate shall have ceased to hold office before such certificate is
issued, the certificate shall, nevertheless, be valid.
Section VI.2 Lost, Stolen or Destroyed Stock Certificates. The
--------------------------------------------
Corporation may issue a new stock certificate in the place of any certificate
theretofore issued which is alleged to have been lost, stolen or destroyed and
may require the owner of such certificate, or his legal representative, to give
the Corporation a bond, sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate.
Section VI.3 Transfer. The Board of Directors may make such rules and
--------
regulations concerning the issue, registration and transfer of certificates
representing the stock of the Corporation as it deems necessary or proper and
may appoint transfer agents and registrars.
11
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Unless otherwise provided, transfers of stock and of the certificates
representing such stock shall be made upon the books of the Corporation by
surrender of the certificates for the stock transferred, accompanied by
written assignments given by the owners or their attorneys-in-fact.
ARTICLE VII - MISCELLANEOUS PROVISIONS
Section VII.1 Corporate Seal. The corporate seal of the Corporation shall
--------------
be circular and shall have inscribed thereon, within and around the
circumference, "CROWN VANTAGE INC." In the center shall be the word "SEAL".
Section VII.2 Fiscal Year. The fiscal year of the Corporation shall be
-----------
determined in the discretion of the Board of Directors, but in the absence of
any such determination it shall be a fiscal year of either 52 or 53 weeks ending
on the last Sunday in December.
Section VII.3 Amendments. These Bylaws may be amended or repealed, and
----------
new Bylaws may be made, at any regular or special meeting of the Board of
Directors by a majority of the Board. Bylaws made by the Board of Directors may
be repealed or changed and new Bylaws may be made by the stockholders, and the
stockholders may prescribe that any Bylaw made by them shall not be altered,
amended or repealed by the Board of Directors.
ARTICLE VIII - VIRGINIA CONTROL
SHARE ACQUISITION STATUTE
The provisions of Article 14.1 of the Virginia Stock Corporation Act
((S)13.1-728.1 et seq.) in effect on the 14th day of August, 1995, shall not
apply to the acquisition of shares of this Corporation.
12
<PAGE>
Exhibit 10.1
Amendment No. 2 to Employment Agreement
This Amendment No. 2 to Employment Agreement is made by and between Crown
Vantage Inc., a Virginia corporation (the "Company") and Ernest S. Leopold (the
"Executive"), dated as of the 11th day of September 1998.
A. The parties hereto entered into an Employment Agreement, made as of
December 5, 1995, and Amendment No.1 to Employment Agreement, made as of
January 30, 1998, providing for certain employment arrangements (as
amended, the "Agreement").
B. The Executive has requested relinquishing his title and responsibilities as
Chief Executive Officer of the Company, recognizing that, in view of his
pending retirement, certain major decisions as to the future direction of
the Company should be made by the management who will be directing and
operating the Company after such decisions are implemented.
C. The parties have agreed that the Executive shall remain as Chairman for the
duration of the period of employment pursuant to the Agreement, and have
agreed to certain financial arrangements in connection therewith, and wish
to amend the Agreement accordingly.
IT IS AGREED AS FOLLOWS:
1. Paragraph 3 of the Agreement shall be amended to provide that the
"Employment Period" shall terminate on February 1, 1999.
2. The first sentence of Subparagraph 4 (a) of the Agreement shall be amended
in its entirety, and shall read as follows:
"Effective September 11, 1998 and for the remainder of the Employment
Period, the Executive shall be Chairman of the Board of Directors and
its Executive Committee, shall serve on the Company's Board of
Directors and shall have such duties, responsibilities and authority
as shall be assigned by the Board of Directors consistent with such
position."
3. Subparagraph 4 (b) (ii) of the Agreement shall be amended in its entirety,
and shall read as follows:
"Agreement Payment. In accordance with this Agreement, the Executive
-----------------
shall be paid a certain sum as previously authorized by the Board of
Directors on September 11, 1998, which sum is on file with the Vice
President - Human Resources, such payment to be made no later than
October 1, 1998. Such payment shall not be included in compensation
for purposes of calculation of any benefits."
Page 1 of 1
<PAGE>
4. Subparagraph 4 (b) (vii) of the Agreement shall be amended in its entirety,
and shall read as follows:
"Accrued Vacation. The Executive shall be paid all accrued and unpaid
----------------
vacation as of September 11, 1998, such payment to be made no later
than October 1, 1998."
5. Executive acknowledges that the change in the Position and Duties, as set
forth in Section 2 above, does not constitute "Good Reason" for purposes of
the Agreement.
6. In all other respects, the Agreement is reaffirmed and remains in full
force and effect.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf as of the day and
year first above written.
______________________________
Ernest S. Leopold
(the "Executive")
CROWN VANTAGE INC.
By: __________________________
Its: __________________________
(the "Company")
Page 2 of 2
<PAGE>
EXHIBIT 10.2
EXECUTION COPY
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT dated as of September 23, 1998 among CROWN PAPER CO., CROWN
VANTAGE INC., the BANKS listed on the signature pages hereof (the "Banks") and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Credit Agreement
dated as of August 15, 1995 (as heretofore amended, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as more fully set
forth below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined Terms. Unless otherwise specifically defined herein,
each term used herein which is defined in the Agreement shall have the meaning
assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the Agreement as amended
hereby.
Section 2. Amendments. (a) The definition of "Asset Sale" in Section
1.1 of the Credit Agreement is amended (i) by replacing the "and" immediately
before clause (iii) with a comma and by inserting "and (iv) dispositions
pursuant to the Settlement" immediately after the term "Permitted Receivables
Dispositions" and (ii) by replacing the number (iii) by the number (iv) in the
proviso.
(b) Section 1.1 of the Credit Agreement is amended by the addition in the
appropriate alphabetical positions of the following defined terms:
"Settlement" means the transactions contemplated by the Option and
Settlement Agreement dated as of March 18, 1998 among the Borrower,
Holdings, Fort James Corporation and certain subsidiaries of the Fort James
Corporation, but specifically
<PAGE>
excluding the exercise of the option granted pursuant to Article III
thereof.
(c) Section 5.17 (a) of the Credit Agreement is amended by deleting the "and"
at the end of clause (vi), replacing the period at the end of clause (vii)
with "; and" and inserting the following new clause (viii):
"(viii) the receipt of $8,045,796 in aggregate principal amount of
Seller Notes pursuant to the terms of the Settlement."
Section 3. Waiver and Consent. (a) Transaction Documents. The Required
---------------------
Banks hereby waive Section 5.21 solely to the extent necessary to permit the
solicitation and effectuation of the Settlement.
(b) Subordinated Notes. The Required Banks hereby consent to the
-------------------
solicitation and effectuation by the Borrower of amendments to the Subordinated
Note Indenture consistent with Section 2 of this Amendment.
(c) Retroactivity. The Required Banks hereby waive any Default which may
-------------
have arisen in connection with the solicitations referred to in Sections 3(a)
and 3(b) above prior to the effectiveness of this Amendment under Section 5.21
or 5.23(b) which would not have arisen had this Amendment been in effect at the
time.
Section 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 5. Counterparts; Effectiveness. This Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective as of the date hereof when the
Administrative Agent shall have received (x) duly executed counterparts hereof
signed by the Borrower and the Required Banks (or, in the case of any party as
to which an executed counterpart shall not have been received, the
Administrative Agent shall have received telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such party)
and (y) for the account of each Bank, an amendment fee in such amount as shall
have been previously agreed upon between the Borrower and the Banks.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
CROWN PAPER CO.
By
-------------------------
Name:
Title:
CROWN VANTAGE INC.
By
-------------------------
Name:
Title:
3
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
-------------------------
Name:
Title:
THE BANK OF NEW YORK
By
-------------------------
Name:
Title:
By
-------------------------
Name:
Title:
CERES FINANCE LTD.
By
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
-------------------------
Name:
Title:
4
<PAGE>
CREDITANSTALT CORPORATE
FINANCE, INC.
By
-------------------------
Name:
Title:
By
-------------------------
Name:
Title:
CHRISTIANIA BANK OG
KREDITKASSE
By
-------------------------
Name:
Title:
By
-------------------------
Name:
Title:
CREDIT LYONNAIS
NEW YORK BRANCH
By
-------------------------
Name:
Title:
5
<PAGE>
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND
CAYMAN BRANCH
By
-------------------------
Name:
Title:
By
-------------------------
Name:
Title:
FIRST SOURCE FINANCIAL LLP, by
FIRST SOURCE FINANCIAL,
INC., its Agent/Manager
By
-------------------------
Name:
Title:
KZH III LLC
By
-------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By
-------------------------
Name:
Title:
6
<PAGE>
MARINE MIDLAND BANK
By
-------------------------
Name:
Title:
MERRILL LYNCH PRIME RATE
PORTFOLIO
By: Merrill Lynch Asset Management,
LP, as Investment Advisor
By
-------------------------
Name:
Title:
MERRILL LYNCH SENIOR
FLOATING RATE FUND, INC.
By
-------------------------
Name:
Title:
MORGAN STANLEY SENIOR
FUNDING, INC.
By
-------------------------
Name:
Title:
7
<PAGE>
NATEXIS BANQUE
By
-------------------------
Name:
Title:
NATIONSBANK, N.A.
By
-------------------------
Name:
Title:
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
By
-------------------------
Name:
Title:
PNC BANK NATIONAL
ASSOCIATION
By
-------------------------
Name:
Title:
PRIME INCOME TRUST
By
-------------------------
Name:
Title:
8
<PAGE>
PAMCO CAYMAN
By: Highland Capital Management LP,
as Collateral Manager
By
-------------------------
Name:
Title:
KEYPORT LIFE INSURANCE
COMPANY
By: Stein Roe & Farnham Incorporated,
as Agent for Keyport Life Insurance
Company
By
-------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By
-------------------------
Name:
Title:
STRATA FUNDING LTD.
By
-------------------------
Name:
Title:
9
<PAGE>
TORONTO DOMINION (TEXAS),
INC.
By
-------------------------
Name:
Title:
VAN KAMPEN AMERICAN
CAPITAL PRIME RATE INCOME
TRUST
By
-------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management LP,
as Collateral Manager
By
-------------------------
Name:
Title:
MORGAN GUARANTY TRUST
COMPANY, as Administrative
Agent and Collateral Agent
By
-------------------------
Name:
Title:
10
<PAGE>
EXHIBIT 11 STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
(in thousands, except per share loss)
<TABLE>
<CAPTION>
Three Months Three Months
Ended September 27, 1998 Ended September 28, 1997
--------------------------- ---------------------------
Basic Diluted Basic Diluted
----------- ------------- ------------ ------------
<S> <C> <C> <C> <C>
Average shares outstanding 9,560 9,560 8,979 8,979
Effect of dilutive stock options 0 0 0 0
------- ------- ------- -------
Totals 9,560 9,560 8,979 8,979
======= ======= ======= =======
Net loss $(6,992) $(6,992) $(6,625) $(6,625)
======= ======= ======= =======
Loss per share $ (.73) $( .73) $( .74) $( .74)
======= ======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
Nine Months Nine Months
Ended September 27, 1998 Ended September 28, 1997
--------------------------- ---------------------------
Basic Diluted Basic Diluted
----------- ------------- ------------ ------------
<S> <C> <C> <C> <C>
Average shares outstanding 9,363 9,363 8,871 8,871
Effect of dilutive stock options 0 0 0 0
-------- -------- -------- --------
Totals 9,363 9,363 8,871 8,871
======== ======== ======== ========
Net loss $(33,507) $(33,507) $(27,111) $(27,111)
======== ======== ======== ========
Loss per share $( 3.58) $( 3.58) $( 3.06) $( 3.06)
======== ======== ======== ========
</TABLE>
Prior period loss per share and average shares outstanding have been restated to
conform with SFAS No. 128 (see "Note 2"). The restatement did not materially
impact loss per share as previously reported.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<F1>
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-27-1998 DEC-28-1998
<PERIOD-START> DEC-29-1997 DEC-30-1996
<PERIOD-END> SEP-27-1998 SEP-28-1997
<CASH> 8,352 10,205
<SECURITIES> 0 0
<RECEIVABLES> 40,866 50,733
<ALLOWANCES> 500 500
<INVENTORY> 105,999 94,362
<CURRENT-ASSETS> 172,319 175,778
<PP&E> 1,336,527 1,261,827
<DEPRECIATION> 746,531 609,149
<TOTAL-ASSETS> 845,398 911,048
<CURRENT-LIABILITIES> 116,008 127,689
<BONDS> 584,186 579,626
0 0
0 0
<COMMON> 46,953 45,659
<OTHER-SE> (76,550) (44,546)
<TOTAL-LIABILITY-AND-EQUITY> 845,398 911,048
<SALES> 648,987 680,381
<TOTAL-REVENUES> 648,987 680,381
<CGS> 606,327 631,867
<TOTAL-COSTS> 606,327 631,867
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 49,095 49,072
<INCOME-PRETAX> (51,551) (42,361)
<INCOME-TAX> (18,044) (15,250)
<INCOME-CONTINUING> (33,507) (27,111)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (33,507) (27,111)
<EPS-PRIMARY> (3.58) (3.06)
<EPS-DILUTED> (3.58) (3.06)
<FN>
<F1> NOTE: 1997 EPS restated due to SFAS No. 128.
</FN>
</TABLE>
