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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-27102
ROMTECH, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-2694937
------------------------------ ----------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
2000 Cabot Boulevard West, Suite 110
Langhorne, PA 19047-1833
----------------------------------------
(address of Principal executive offices)
ISSUER'S TELEPHONE NUMBER, INCLUDING AREA CODE: 215-750-6606
--------------
NOT APPLICABLE
-------------------------------------------
(Former name, former address and former
fiscal year, if changed since last report.)
Check whether the issuer (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 ( )
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court.
YES ( ) NO ( )
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date: 9,506,200 shares of common
stock, no par value per share, as of November 5, 1998.
Transitional Small Business Disclosure Format (check one):
YES ( ) NO ( X )
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<TABLE>
ROMTECH, INC.
INDEX
<CAPTION>
Page
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<S> <C>
Part I. Financial Information
Item 1. Financial Statements:
Consolidated Balance Sheet as of September 30, 1998.................. 3
Consolidated Statements of Operations for the three months ended
September 30, 1998 and 1997...................................... 4
Consolidated Statements of Cash Flows for the three months ended
September 30, 1998 and 1997 ..................................... 5
Notes to Consolidated Financial Statements........................... 6-7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations ............................. 8-11
Part II. Other Information
Item 2. Changes in Securities and Use of Proceeds............................ 12
Item 6. Exhibits and Reports on Form 8-K..................................... 12
Signatures ..................................................................... 13
Exhibit Index ..................................................................... 14
Exhibits .....................................................................
</TABLE>
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<TABLE>
ROMTECH, INC.
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEET
(UNAUDITED)
<CAPTION>
SEPTEMBER 30,
1998
-------------
ASSETS
<S> <C>
Current assets:
Cash and cash equivalents $ 1,027,624
Restricted cash 16,783
Accounts receivable, net of allowance for doubtful
accounts of $167,977 2,514,772
Inventory 745,596
Prepaid expenses 212,713
-----------
Total current assets 4,517,488
Furniture and equipment, net 310,991
Goodwill and other assets 606,548
-----------
Total assets $ 5,435,027
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable $ 273,787
Accounts payable 871,098
Accrued expenses 619,870
Capital lease obligations 9,462
-----------
Total current liabilities 1,774,217
Capital lease obligations net of current portion 37,717
Notes payable-long term portion 255,664
Convertible subordinated debt 150,000
-----------
Total liabilities 2,217,598
Stockholders' equity:
Common stock, no par value (40,000,000 shares
authorized: 9,506,200 issued and outstanding) 8,389,826
Additional paid in capital 1,148,550
Accumulated other comprehensive income 6,412
Accumulated deficit (6,327,359)
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Total stockholders' equity 3,217,429
-----------
Total liabilities and stockholders' equity $ 5,435,027
===========
</TABLE>
See accompanying notes to the consolidated financial statements.
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<TABLE>
ROMTECH, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-------------
1998 1997
---- ----
<S> <C> <C>
Net sales $2,506,200 $1,535,558
Cost of sales 880,577 613,796
---------- ----------
Gross profit 1,625,623 921,762
Operating expenses:
Product development 205,667 86,571
Selling, general and administrative 979,642 656,285
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Total operating expenses 1,185,309 742,856
---------- ----------
Operating income 440,314 178,906
Interest expense, net 10,649 11,426
---------- ----------
Income before taxes 429,665 167,480
Provision for income taxes 26,300 1,165
---------- ----------
Net income 403,365 166,315
Accretion of beneficial conversion feature
on preferred stocks -0- 105,441
---------- ----------
Net income attributable to common stock $ 403,365 $ 60,874
========== ==========
Net income per common share - basic $ 0.04 $ 0.01
========== ==========
Net income per common share - diluted $ 0.04 $ 0.01
========== ==========
Weighted average common shares outstanding - basic 9,442,329 7,246,939
========== ==========
Dilutive effect of common stock equivalents 164,508 107,948
---------- ----------
Weighted average common shares outstanding - diluted 9,606,837 7,354,887
========== ==========
</TABLE>
See accompanying notes to the consolidated financial statements.
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<TABLE>
ROMTECH, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-------------
1998 1997
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 403,365 $ 166,315
Adjustment to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 85,354 40,000
Changes in items affecting operations net of effect
from acquired business:
Restricted cash 252 -0-
Accounts receivable (350,235) (241,014)
Prepaid expenses 4,975 (8,127)
Inventory 212,588 (56,681)
Accounts payable (286,762) 82,826
Accrued expenses 109,937 90,434
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Net cash provided by operating activities 179,474 73,753
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CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition costs, net of cash acquired (12,428) -0-
Purchase of furniture and equipment (22,368) (41,633)
Purchase of software rights and other assets (25,235) (87,533)
Loan to related party -0- 750
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Net cash used in investing activities (60,031) (128,416)
---------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of notes payable (15,888) (9,427)
Repayment of lease obligations (30,581) (7,499)
---------- ---------
Net cash used in financing activities (46,469) (16,926)
---------- ---------
Effect of exchange rate changes on cash and cash equivalents 1,002 -0-
---------- ---------
Net increase/(decrease) in cash and cash equivalents 73,976 (71,589)
CASH AND CASH EQUIVALENTS:
Beginning of period 953,648 445,474
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End of period $1,027,624 $ 373,885
========== =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for interest $ 16,427 $ 14,561
========== =========
Cash paid for income taxes $ 20,800 $ 1,165
========== =========
NON CASH INVESTING AND FINANCING ACTIVITIES:
Financing agreements related to business insurance $ 105,800 $ - 0 -
========== =========
150,000 shares of common stock issued in
connection with acquisition $ 213,000 $ - 0 -
========== =========
</TABLE>
See accompanying notes to the consolidated financial statements.
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ROMTECH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying unaudited interim consolidated financial statements
were prepared in accordance with generally accepted accounting principles for
interim financial information. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. The Notes to Consolidated Financial
Statements included in the Form 10-KSB for the fiscal year ended June 30, 1998
should be read in conjunction with the accompanying statements. These statements
include all adjustments the Company believes are necessary for a fair
presentation of the statements. The interim operating results are not
necessarily indicative of the results for a full year.
DESCRIPTION OF BUSINESS
RomTech, Inc. (the "Company"), a Pennsylvania corporation incorporated
in July 1992, develops, publishes, markets and sells a diversified line of
personal computer software primarily for consumer entertainment and small
office/home office applications. In October 1995, the Company completed its
initial public offering coincident with its acquisition of Applied Optical Media
Corporation ("AOMC"), a developer of educational and reference software titles.
In April 1996, the Company acquired Virtual Reality Laboratories, Inc. ("VRLI"),
a software developer of landscape generation, space exploration, scheduling and
business forms manipulation programs. In August 1998, the Company acquired all
of the outstanding stock of Software Partners Publishing and Distribution
Limited ("Software Partners"), a U.K. distributor of personal computer software
for consumer entertainment and small office/home office applications. As a
result of these acquisitions, together with the Company's own internal
development efforts, the Company offers software titles in the game,
personal/business productivity, education, reference and lifestyle markets for
use at home and in the office. The Company's product line enables it to serve
customers who are seeking a broad range of high-quality, value priced software.
CONSOLIDATION
The consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries, Virtual Reality Laboratories, Inc.
and Software Partners. All inter-company balances and transactions have been
eliminated.
2. PREFERRED STOCK
During the quarter ended September 30, 1997, the Company amortized to
accumulated deficit $105,441 in the accretion of the beneficial conversion
feature of the Company's Class Two and Class Three Convertible Preferred Stock,
which negatively impacted the net income for that period. During the quarter
ended September 30, 1998, there was no Convertible Preferred Stock outstanding.
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ROMTECH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. ACQUISITION
On August 14, 1998, the Company acquired all of the outstanding shares
of Software Partners Publishing and Distribution Limited ("Software Partners"),
in exchange for 150,000 shares of the Company's Common Stock, valued at
approximately $213,000, which was the fair value of the Company's Common Stock
on the closing date of the acquisition. This acquisition was accounted for as a
purchase and the corresponding goodwill in the approximate amount of $308,000
will be amortized over five years. For the three months ended September 30, 1998
Software Partners contributed $301,000 in net sales and $105,000 in net income.
The following summarized unaudited pro-forma financial information gives
effect to the Software Partners' acquisition as though it had occurred on July
1, 1998, after giving effect to certain adjustments, primarily the elimination
of inter-company sales and amortization of goodwill expense. The pro-forma
financial information, which is for informational purposes only, is based upon
certain assumptions and estimates and does not necessarily reflect the results
that would have occurred had the acquisition taken place at the beginning of the
period presented, nor are they necessarily indicative of future consolidated
results.
ROMTECH, INC.
PRO-FORMA INFORMATION
THREE MONTHS ENDED
SEPTEMBER 30, 1998
Net sales $2,564,000
Net income $ 295,000
Net income per diluted share $ 0.03
4. COMPREHENSIVE INCOME
On July 1, 1998 the Company adopted SFAS 130, "Reporting Comprehensive
Income". This Statement requires that all items that are required to be
recognized under accounting standards as components of comprehensive income be
reported in a financial statement that is displayed with the same prominence as
other financial statements. Comprehensive income is computed as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
---------------------------
1998 1997
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<S> <C> <C>
Net income $403,365 $60,874
Other comprehensive income:
Foreign currency translation adjustment 6,412 -0-
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Comprehensive income $409,777 $60,874
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</TABLE>
5. COMMON STOCK
On October 23, 1998, the Company's Board of Directors authorized the
Company to purchase up to $1,000,000 of its shares of Common Stock in the Nasdaq
SmallCap Market. As of November 9, 1998, 8,400 shares at an approximate cost of
$14,000 had been acquired by the Company pursuant to the repurchase program.
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ROMTECH, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The accompanying consolidated financial statements as of September 30,
1998 include the accounts of RomTech, Inc., ("RomTech"), and its wholly owned
subsidiaries, Virtual Reality Laboratories, Inc. ("VRLI") and Software Partners
Publishing and Distribution Limited ("Software Partners").
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
Net sales for the three months ended September 30, 1998 were $2,506,000
compared to $1,536,000 for the three months ended September 30, 1997,
representing an increase of $970,000 or 63.2%. This increase resulted from an
increase of $1,181,000 in the sales of the Company's Galaxy of Games, Game
Master Series, Galaxy of Arcade, Galaxy of Home Office Help, VistaPro, and Fun
and Learning (the "Galaxy Software") brands, which were partially offset by a
decrease in sales of certain discontinued products of $211,000. The largest
contribution towards this $1,181,000 sales increase came from the Company's
"full release" software titles in the Game Master Series and Galaxy of Arcade
products, which combined for sales of $866,000 or 35% of net sales for the three
months ended September 30, 1998, compared to no sales of these products for the
same period last year. Software Partners, acquired in August 1998, accounted for
$301,000 in net sales for the three months ended September 30, 1998.
The Company primarily distributes its Galaxy Software products in North
America through a large national distributor, Slash Corporation ("Slash"), a
division of GT Interactive Software Corporation. The Company's product sales to
Slash accounted for 72% and 75% of the Company's net sales for the three months
ended September 30, 1998 and 1997, respectively. The Company believes that for
the year ending June 30, 1999, sales to Slash could account for 85% or more of
the Company's net sales. The Company's agreement with Slash does not specify
minimum purchase requirements and can be terminated at any time by Slash. In an
effort to diversify the Company's distribution channels, including distribution
via the Internet, the Company has added features to its existing website to
facilitate on-line orders and launched a new website offering downloadable demos
of the Company's products.
Cost of sales for the three months ended September 30, 1998 were
$881,000 compared to $614,000 for the three months ended September 30, 1997,
representing an increase of $267,000 or 43.5%. This increase resulted primarily
from increases in product costs of $90,000 attributable to increased unit
shipments, royalty costs of $82,000, provision for inventory obsolescence of
$19,000 and $66,000 for the inter-company profit elimination due to the
Company's inventory located at Software Partners' warehouse on the acquisition
date, which required adjustment down to the Company's consolidated product cost.
The Company's gross profit margin increased to 64.9% in the three months ended
September 30, 1998 from 60.0% for the three months ended September 30, 1997. The
primary causes of this increase were the increased sales derived from the high
margin Game Master Series, direct distribution in the United Kingdom through the
Company's wholly-owned subsidiary, Software Partners and overall cost reductions
due to higher volumes and improved contract manufacturing processes.
Product development expenses for the three months ended September 30,
1998 were $206,000 compared to $87,000 for the three months ended September 30,
1997, an increase of $119,000 or 136.8%. This increase was primarily due to an
increase in outside developer costs resulting from increased product development
efforts incurred to improve the Company's product offerings. The largest
component of the Company's increased development efforts reflects the Company's
transition from distributing primarily shareware-based software titles to
distributing a growing percentage of higher value "full release" software
titles, such as the Company's Game Master Series and Galaxy of Arcade products.
Also, significant internal efforts have been made to improve the quality
assurance component of the Company's development process.
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ROMTECH, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
Selling, general and administrative expenses for the three months ended
September 30, 1998 were $980,000 compared to $656,000 for the three months ended
September 30, 1997, representing an increase of $324,000 or 49.4%. This increase
was primarily due to increases in marketing promotional costs of $100,000,
provision for bad debts of $63,000, depreciation and amortization costs of
$45,000, salary and related costs of $25,000, professional service costs of
$25,000, and supplies costs of $21,000.
Net interest expense for each of the three months ended September 30,
1998 and 1997 was $11,000.
LIQUIDITY AND CAPITAL RESOURCES
The financial information presented reflects the Company's financial position at
September 30, 1998.
As of September 30, 1998, the Company's cash and working capital
balances were $1,027,624 and $2,743,271, respectively. Cash provided by
operating activities for the quarters ended September 30, 1998 and 1997 were
$179,474 and $73,753, respectively. As indicated in the accompanying financial
statements, the Company's net income for the quarters ended September 30, 1998
and 1997 were $403,365 and $166,315 respectively, representing an increase of
$237,050, or 143%. This increase in net income resulted primarily from the
$703,861 increase in gross profit, which was partially reduced by the $442,453
increase in operating expenses.
Cash used in investing activities for the quarters ended September 30,
1998 and 1997 were $60,031 and $128,416, respectively. On August 14, 1998, the
Company acquired all of the outstanding shares of Software Partners, in exchange
for 150,000 shares of the Company's Common Stock valued at approximately
$213,000. Acquisition costs, net of cash received, were $12,428.
Cash used in financing activities for the quarters ended September 30,
1998 and 1997 were $46,469 and $16,926, respectively. During September 1998,
approximately $20,000 of capital leases were retired ahead of term.
On October 23, 1998, the Company's Board of Directors authorized the
Company to purchase up to $1,000,000 of its shares of Common Stock in the Nasdaq
SmallCap Market. As of November 9, 1998, 8,400 shares at an approximate cost of
$14,000 had been acquired by the Company pursuant to the repurchase program.
At September 30, 1998, the Company satisfied all aspects of its listing
agreement for the Nasdaq SmallCap Market. At September 30, 1998, the Company had
$2,914,710 in net tangible assets.
The Company's ability to continue to achieve positive cash flow depends
upon a variety of factors, including the timeliness and success of developing
and selling its products, the costs of developing, producing and marketing such
products and various other factors, some of which may be beyond the Company's
control. In the future, the Company's capital requirements will be affected by
each of these factors. The Company believes cash and working capital balances
will be sufficient to fund the Company's operations for the foreseeable future.
However, there can be no assurances that the Company will continue achieving a
positive cash flow or that additional financing will be available if and when
required or, if available, will be on terms satisfactory to the Company.
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ROMTECH, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
YEAR 2000
THE COMPANY'S STATE OF READINESS
The Company has reviewed its critical information systems for Year 2000
compliance. The compliance review revealed that all but one of the Company's
critical information systems are Year 2000 compliant due to the fact that most
of the Company's network hardware and operating systems are "off-the-shelf"
products from third parties with Year 2000 compliant versions. The one critical
information system needing an upgrade to become Year 2000 compliant will be
upgraded by December 31, 1998.
The Company has determined that there should be no Year 2000 issues for
the products it has already sold since the Company's products contain no date
sensitive software.
As part of the Company's Year 2000 compliance review, the Company is in
the process of contacting its primary vendors, distributors and customers to
determine the extent to which the Company is vulnerable to such third parties'
failure to address their Year 2000 compliance issues. The Company will continue
to work to obtain sufficient information and assurances from its significant
vendors, distributors and customers as part of its Year 2000 compliance review.
However, there can be no guarantee that third parties on which the Company's
business relies will adequately address their Year 2000 compliance issues nor is
there any guarantee that the failure by such third parties to adequately deal
with such issues would not have a material adverse effect on the Company and its
operations.
THE COST TO ADDRESS THE COMPANY'S YEAR 2000 ISSUES
The Company estimates that the cost of its Year 2000 compliance review,
including the upgrading of its critical information systems, will be less than
$15,000 and is not expected to be material to the Company's financial position,
cash flow or results of operations.
THE RISKS ASSOCIATED WITH THE COMPANY'S YEAR 2000 COMPLIANCE
The Company believes that the risks associated with its own Year 2000
compliance primarily relates to the failure of third parties upon whom the
Company's business relies to timely address their Year 2000 issues. Failure by
third parties to adequately address their Year 2000 issues in a timely manner
could result in disruptions in the Company's supply of parts and materials,
late, missed or unapplied payments, temporary disruptions in order processing
and other general problems related to the Company's daily operations. While the
Company believes its Year 2000 compliance review procedures will adequately
address the Company's internal Year 2000 issues, until the Company receives
responses from all of its significant vendors, distributors and customers, the
overall risks associated with the Year 2000 issue remain difficult to accurately
describe and quantify, and there can be no guarantee that such uncertainty will
not have a material adverse effect on the Company's business, operating results
and financial position.
THE COMPANY'S CONTINGENCY PLAN
The Company has not, to date, implemented a Year 2000 contingency plan.
It is the Company's intention to devote whatever resources are necessary to
assure that all of its Year 2000 compliance issues are resolved. The Company
intends to develop and implement a contingency plan by the end of June 1999.
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ROMTECH, INC.
FORWARD-LOOKING STATEMENTS
This report contains statements that are forward-looking, as that term
is defined by the Private Securities Litigation Reform Act of 1995 and by the
Securities and Exchange Commission in rules, regulations and releases. These
statements include, but are not limited to, statements regarding: the projected
percentage of sales of the Company's products to Slash Corporation during the
1999 fiscal year; the Company's efforts in developing "full-release" software
titles; the sufficiency of the Company's cash and working capital balances to
fund the Company's operations in the future; and the Company's expectations and
cost estimates regarding its Year 2000 compliance efforts. All forward-looking
statements are based on current expectations regarding significant risk factors,
and the making of such statements should not be regarded as a representation by
the Company or any other person that the results expressed in this report will
be achieved.
The following important factors, among others, could cause the
Company's actual results to differ materially from those indicated by the
forward-looking statements contained in this report: the success of the Galaxy
branding strategy and market acceptance of the Company's Galaxy Series titles in
the United States and international markets; the allocation of adequate shelf
space for the Company's products in major retail chain stores; successful
sell-through results for the Company's products at retail stores; the continued
success of the distribution relationship between the Company with Slash
Corporation; the continued expansion of the computer in homes in North America
and the world; the ability to deliver products in response to orders within a
commercially acceptable time frame; downward pricing pressure; fluctuating costs
of developing, producing and marketing the Company's products; access to
alternative distribution channels and the success of the Company's efforts to
develop its Internet sales; consumers' continued demand for value-priced
software; increased competition in the value-priced software category; the
ability of the Company and its key distributors, vendors and suppliers to
effectively address Year 2000 compliance issues; and various other factors, many
of which are beyond the Company's control. The Company does not undertake to
update any forward-looking statement made in this report or that may be made
from time to time by or on behalf of the Company.
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ROMTECH, INC.
PART II.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On August 14, 1998, the Company issued 150,000 shares of its Common
Stock, without par value, to the shareholders of Software Partners Publishing
and Distribution Limited ("Software Partners"), a United Kingdom-based
distributor of computer software, in exchange for all of the outstanding shares
of Software Partners. The Company relied upon the exemption from the
registration requirements under the Securities Act of 1933, as amended (the
"Securities Act"), contained in Rule 505 of Regulation D promulgated under the
Securities Act. The approximate value of the Common Stock issued to the
shareholders of Software Partners was $213,000; the Company's Common Stock was
issued to five individuals; the Company was not subject to disqualification
under Rule 505(b)(2)(iii); and the Company furnished to the Software Partners'
shareholders a reasonable time before the issuance of the Company's Common Stock
the information required under Rule 502(b) of Regulation D.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
3.1 By-laws (as amended October 8, 1998)
27.1 Financial Data Schedule
(b) Reports on Form 8-K
On October 13, 1998 the Company filed a report on Form 8-K announcing the
Company's unaudited results for the first quarter ended September 30, 1998.
On November 2, 1998 the Company filed a report on Form 8-K announcing that its
Board of Directors had authorized the Company to purchase up to $1,000,000 of
its shares of Common Stock in the Nasdaq SmallCap Market.
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ROMTECH, INC.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
ROMTECH, INC.
(Registrant)
Date: November 13, 1998 /s/ Gerald W. Klein
----------------- ---------------------------------
Gerald W. Klein, President, Chief
Executive Officer, Chief
Financial Officer and Director
Date: November 13, 1998 /s/ Thomas W. Murphy
----------------- ---------------------------------
Thomas W. Murphy, Controller and
Chief Accounting Officer
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ROMTECH, INC.
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page Number
- ----------- ---------------------- -----------
3.1 By-laws (as amended October 8, 1998)
27.1 Financial Data Schedule
Page 14
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EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
ROMTECH, INC.
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Article 1 OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 2 SHAREHOLDER MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 3 QUORUM OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Article 4 VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article 5 PROXIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article 6 RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article 7 SHAREHOLDER LIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Article 8 JUDGES OF ELECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Article 9 CONSENT OF SHAREHOLDERS IN LIEU OF MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article 10 BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article 11 REMOVAL OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article 12 VACANCIES ON BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Article 13 POWERS OF BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Article 14 MEETINGS OF THE BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article 15 ACTION BY WRITTEN CONSENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article 16 COMPENSATION OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article 17 OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Article 18 PRESIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Article 19 SECRETARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 20 TREASURER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
Article 21 CHAIRMAN OF THE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 22 OTHER OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 23 LIMITATION OF DIRECTORS' LIABILITY AND
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article 24 SHARES; SHARE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Article 25 TRANSFER OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Article 26 LOST CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 27 FINANCIAL REPORTS TO SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 28 FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 29 MANNER OF GIVING WRITTEN NOTICE; WAIVERS OF
NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 30 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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AMENDED AND RESTATED BYLAWS
OF
ROMTECH, INC.
ARTICLE 1 - OFFICES
Section 1.1. Registered Office. The Corporation shall have and
continuously maintain in the Commonwealth of Pennsylvania a registered office
at an address to be designated from time to time by the Board of Directors
which may, but need not, be the same as its place of business.
Section 1.2. Other Offices. The Corporation may also have offices at
such other places as the Board of Directors may from time to time designate or
the business of the Corporation may require.
ARTICLE 2 - SHAREHOLDER MEETINGS
Section 2.1. Place of Shareholders' Meetings. All meetings of the
shareholders shall be held at such time and place, within or without the
Commonwealth of Pennsylvania, as may be determined from time to time by the
Board of Directors and need not be held at the registered office of the
Corporation.
Section 2.2 Annual Meeting. An annual meeting of the shareholders for
the election of directors and the transaction of such other business as may
properly be brought before the meeting shall be held in each calendar year at
such time and place as may be determined by the Board of Directors.
At the annual meeting of shareholders, only the business specified in the
notice of meeting can be conducted at such meeting. To be properly brought
before an annual meeting, business must: (a) have been specified in the written
notice of the annual meeting (or any supplement thereto) given by the
Corporation; (b) be brought before the annual meeting at the direction of the
Board of Directors or the presiding officer of the meeting; or (c) have been
specified in a written notice (a "Shareholder Notice") given to the
Corporation, in accordance with all of the following requirements, by or on
behalf of any shareholder of the Corporation: each Shareholder Notice must be
delivered personally to, or be mailed to and received by, the Corporation,
addressed to the attention of the Secretary at the principal executive offices
of the Corporation on the date that is at least sixty (60) days before the date
on which the Corporation first mailed its proxy materials for the prior year's
annual meeting of shareholders (or, if during the prior year, the Corporation
did not hold an annual meeting of shareholders, or if the date of the annual
meeting of shareholders has changed more than thirty (30) days from the prior
year, then the Shareholder Notice must be received a reasonable time before the
Corporation mails its proxy materials for the current year). Each Shareholder
Notice shall set forth a general description of each item of business proposed
to be brought before the annual meeting of
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shareholders, the name and address of the shareholder proposing to bring such
item of business before the meeting, the number of shares of the Corporation
which are beneficially owned by the shareholder, and any material interest of
the shareholder in such business. The presiding officer of an annual meeting
may refuse to consider any business that shall be brought before the annual
meeting of shareholders of the Corporation other than as provided in this
Section 2.2.
Section 2.3. Special Meetings. Special Meetings of the shareholders may
be called at any time only by (i) the Chairman of the Board, if any, if such
officer is serving as the chief executive officer of the Corporation, and
otherwise the President or (ii) the Board of Directors. The request of any
person who has called a special meeting of shareholders shall be addressed to
the Secretary of the Corporation, shall be signed by the person or persons
making the request and shall state the general nature of the business to be
transacted at the meeting. Upon receipt of any such request it shall be the
duty of the Secretary to fix the time and provide written notice of the special
meeting of shareholders, which, if called pursuant to a statutory right, shall
be held not more than sixty (60) days after receipt of the request. If the
Secretary shall neglect or refuse to fix the time or provide written notice of
the special meeting, the person or persons making the request may fix the time
and provide written notice of the special meeting.
Except as otherwise required by law or in these By-laws, or except as
permitted by the presiding officer of the meeting in the exercise of such
officer's sole discretion, the business which shall be conducted at a special
meeting of shareholders shall (a) have been specified in the written notice of
the meeting (or any supplement thereto) given by the Corporation, or (b) be
brought before the meeting at the direction of the Board of Directors or the
presiding officer of the meeting.
Section 2.4. Timing of Notice of Shareholders' Meetings. Written notice
of each meeting other than an adjourned meeting of shareholders, stating the
place and time, and, (i) in the case of a special meeting of shareholders, the
general nature of the business to be transacted, and, (ii) in the case of a
meeting of shareholders called for the purpose, or one of the purposes, of
considering the amendment or repeal of the Bylaws, written notice of such
proposed action, shall be provided to each shareholder of record entitled to
vote at the meeting at such address as appears on the books of the Corporation.
Such notice shall be given, in accordance with the provisions of Article 29 of
these Bylaws, at least (i) ten days prior to the day named for a meeting to
consider a fundamental change under Chapter 19 of the Pennsylvania Business
Corporation Law of 1988 (the "BCL") or (ii) five days prior to the day named
for the meeting in any other case.
Section 2.5. Notice to Shareholder Not Required. (a) Whenever the
Corporation has been unable to communicate with a shareholder for more than
twenty-four (24) consecutive months because communications to the shareholder
are returned unclaimed or the shareholder has otherwise failed to provide the
Corporation with a current address, the giving of notice to such shareholder
pursuant to Section 2.4 of these Bylaws shall not be required. Any action or
meeting that is taken or held without notice or communication to that
shareholder shall have the same validity as if the notice or communication had
been duly given. Following said twenty-four (24) month period, if a
shareholder provides the Corporation with a current address the giving of
notice to such shareholder
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pursuant to Section 2.4 of these Bylaws shall again be required.
(b) The Corporation shall not be required to give notice to any
shareholder pursuant to Section 2.4 hereof if and for so long as communication
with such shareholder is unlawful.
Section 2.6. Meeting Using Telecommunications Equipment. The Board of
Directors may provide by resolution with respect to a specific meeting or with
respect to a class of meetings that one or more shareholders may participate in
such meeting or meetings of shareholders by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear one another. Participation in the meeting by such means
shall constitute presence in person at the meeting. Any notice otherwise
required to be given in connection with any meeting at which participation by
conference telephone or other communications equipment is permitted shall so
specify.
ARTICLE 3 - QUORUM OF SHAREHOLDERS
Section 3.1. Quorum Generally Required. Except as provided in Sections
3.3 and 3.5, a meeting of shareholders duly called shall not be organized for
the transaction of business unless a quorum is present.
Section 3.2. Quorum Defined. The presence, in person or by proxy, of
shareholders entitled to cast at least a majority of the votes that all
shareholders are entitled to cast on a particular matter to be acted upon at
the meeting shall constitute a quorum for purposes of consideration and action
on such matter.
Section 3.3. Quorum Following Shareholder Withdrawals. The shareholders
present at a duly organized meeting can continue to do business until
adjournment notwithstanding the withdrawal of enough shareholders to leave less
than a quorum.
Section 3.4. Adjournments. (a) If a meeting of shareholders cannot be
organized because a quorum is not present, those present in person or by proxy,
may, except as otherwise provided by statute or unless the Board fixes a new
record date for the adjourned meeting, adjourn the meeting to such time and
place as they may determine, without notice other than an announcement at the
meeting, until the requisite number of shareholders for a quorum shall be
present in person or by proxy.
(b) Any meeting, including one at which directors are to be elected, may
be adjourned for such period as the shareholders present and entitled to vote
shall direct.
Section 3.5. Quorum Less Than a Majority. Notwithstanding the
provisions of Sections 3.1, 3.2, 3.3 and 3.4 of these Bylaws:
(a) Those shareholders entitled to vote who attend a meeting called for
election of directors
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that has been previously adjourned for lack of a quorum, although less than a
quorum as fixed in these Bylaws, shall nevertheless constitute a quorum for the
purpose of electing directors.
(b) Those shareholders entitled to vote who attend a meeting that has
been previously adjourned for one or more periods aggregating at least fifteen
(15) days because of an absence of a quorum, although less than a quorum as
fixed in these Bylaws, shall nevertheless constitute a quorum for the purpose
of acting upon any matter set forth in the notice of the meeting if the notice
states that those shareholders who attend the adjourned meeting shall
nevertheless constitute a quorum for the purpose of acting upon the matter.
ARTICLE 4 - VOTING RIGHTS
Section 4.1. One Vote Per Share. Except as may be otherwise provided by
the Corporation's Articles of Incorporation, at every meeting of shareholders,
every shareholder entitled to vote thereat shall be entitled to one vote for
every share having voting power standing in his name on the books of the
Corporation on the record date fixed for the meeting.
Section 4.2. Majority Vote. Except as otherwise provided by statute,
the Articles of Incorporation or these Bylaws, at any duly organized meeting of
shareholders the vote of the holders of a majority of the votes cast shall
decide any question brought before such meeting. Unless the Pennsylvania
Business Corporation law of 1988 (the "BCL") permits otherwise, this Section
4.2 may be modified only by a Bylaw amendment adopted by the shareholders.
Section 4.3. Ballot Not Required. Unless demand is made before the
voting begins by a shareholder entitled to vote at any election for directors,
the election of such directors need not be by ballot.
ARTICLE 5 - PROXIES
Section 5.1. General. Every shareholder entitled to vote at a meeting
of shareholders, or to express consent or dissent to corporate action in
writing without a meeting, may authorize another person or persons to act for
him by proxy. Every proxy shall be executed in writing by the shareholder or
his duly authorized attorney-in-fact and filed with the Secretary of the
Corporation. A proxy, unless coupled with an interest, shall be revocable at
will, notwithstanding any other agreement or any provision in the proxy to the
contrary, but the revocation of a proxy shall not be effective until written
notice thereof has been given to the Secretary of the Corporation. An
unrevoked proxy shall not be valid after three years from the date of its
execution unless a longer time is expressly provided therein. A proxy shall
not be revoked by the death of incapacity of the maker, unless before the vote
is counted or the authority is exercised, written notice of such death or
incapacity is given to the Secretary of the Corporation.
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<PAGE> 8
ARTICLE 6 - RECORD DATE
Section 6.1. Record Date Fixed By Board. The Board of Directors may fix
a time prior to the date of any meeting of shareholders as a record date for
the determination of the shareholders entitled to notice of, or to vote at, the
meeting, which time, except in the case of an adjourned meeting, shall not be
more than ninety (90) days prior to the date of the meeting of shareholders.
Only shareholders of record on the date so fixed shall be entitled to notice
of, or to vote at, such meeting, notwithstanding any transfer of shares on the
books of the Corporation after any record date fixed as aforesaid. The Board
of Directors may similarly fix a record date for the determination of
shareholders of record for any other purpose, such as the payment of a
distribution or a conversion or exchange of shares.
Section 6.2. Certificate of Ownership. The Board of Directors may by
resolution adopt a procedure whereby a shareholder of the Corporation may
certify in writing to the Corporation that all or a portion of the shares
registered in such shareholder's name are held for the account of a specified
person or persons. Such resolution may set forth: (a) the classification of
shareholder who may certify; (b) the purpose or purposes for which the
certification may be made; (c) the form of certification and information to be
contained therein; (d) if the certification is with respect to a record date,
the time after the record date within which the certification must be received
by the Corporation; and (e) such other provisions with respect to the procedure
as are deemed necessary or desirable. Upon receipt by the Corporation of a
certification complying with the procedure, the persons specified in the
certification shall be deemed, for the purposes set forth in the certification,
to be the holders of record of the number of shares specified in place of the
shareholder making the certification.
ARTICLE 7 - SHAREHOLDER LIST
Section 7.1. Shareholder List - General. The officer or agent having
charge of the share transfer books of the Corporation shall make a complete
alphabetical list of the shareholders entitled to vote at any meeting, with
their addresses and the number of shares held by each. The list shall be
produced and kept open at the time and place of the meeting for inspection by
any shareholder during the entire meeting except that if the Corporation has
5,000 or more shareholders, in lieu of the making of the list the Corporation
may make the information available at the meeting by other means.
Section 7.2. Effect of Non-compliance with Section 7.1. Failure to
comply with the provisions of Section 7.1 of these Bylaws shall not affect the
validity of any action taken at a meeting prior to a demand at the meeting by
any shareholder entitled to vote thereat to examine the list.
Section 7.3. Transfer Books - Prima Facie Evidence. The original
transfer books for shares of the Corporation, or a duplicate thereof kept in
the Commonwealth of Pennsylvania, shall be prima facie evidence as to who are
the shareholders entitled to examine the list or transfer books for shares or
to vote at any meeting.
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ARTICLE 8 - JUDGES OF ELECTION
Section 8.1. Appointment. Prior to any meeting of shareholders, the
Board of Directors may appoint judges of election, who may but need not be
shareholders and who will have such duties as provided in the BCL, to act at
such meeting or any adjournment thereof. If judges of election are not so
appointed, the presiding officer of any such meeting may, and on the request of
any shareholder or his proxy shall, make such appointment at the meeting. The
number of judges shall be one or three. No person who is a candidate for an
office to be filled at the meeting shall act as a judge of election.
Section 8.2. Vacancy. In case any person appointed as a judge of
election fails to appear or fails or refuses to act, the vacancy so created may
be filled by appointment made by the Board of Directors in advance of the
convening of the meeting or at the meeting by the presiding officer thereof.
Section 8.3. Amendment of Article 8. Unless the BCL permits otherwise,
this Article 8 may be amended only by a Bylaw amendment.
ARTICLE 9 - CONSENT OF SHAREHOLDERS IN LIEU OF MEETING
Section 9.1. Consent of Shareholders in Lieu of Meeting. Actions of
the shareholders may be taken by written consent in either of the following
manners:
(a) Unanimous Consent. Any action required or permitted to be taken at
a meeting of the shareholders, or of a class of shareholders, may be taken
without a meeting if, prior to or subsequent to the action, a consent or
consents thereto signed by all of the shareholders who would be entitled to
vote at a meeting for such purpose shall be filed with the Secretary of the
Corporation. Consents may be executed in any number of counterparts.
(b) Partial Consent. Any action required or permitted to be taken at a
meeting of shareholders, or of a class of shareholders, may be taken without a
meeting upon the written consent of shareholders who would have been entitled
to cast the minimum number of votes necessary to authorize the action at a
meeting at which all shareholders entitled to vote thereon were present and
voting. The consent(s) shall be filed with the Secretary of the Corporation.
The action shall not become effective until at least ten (10) days after
written notice of the action has been given to each shareholder entitled to
vote thereon who has not consented in writing thereto. Such consent may be
executed in any number of counterparts.
ARTICLE 10 - BOARD OF DIRECTORS
Section 10.1. Number. The number of directors shall not be less than
four (4) nor more than twelve (12), as shall from time to time (i) be
determined by the Board of Directors or (ii) be set forth in a notice of a
meeting of shareholders called for the election of the Board of Directors. The
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Chairman of the Board of Directors shall preside at all meetings of
shareholders and directors.
Section 10.2. Qualification. Each director shall be a natural person of
full age and need not be a resident of the Commonwealth of Pennsylvania or a
shareholder of the Corporation.
Section 10.3. Shareholder Election; Vote Required. Except as otherwise
provided in Article 12 of these Bylaws, directors shall be elected by the
shareholders. The candidates receiving the highest number of votes from the
shareholders or each class or group of classes, if any, entitled to elect
directors separately up to the number of directors to be elected by the
shareholders, or class or group of classes, if any, shall be elected. Each
director shall be elected for a term of one year and until his successor has
been elected and qualified or until his earlier death, resignation or removal.
A decrease in the number of directors shall not have the effect of shortening
the term of any incumbent director.
Section 10.4. Nominations. Nominations for the election of directors
may be made by the Board of Directors or a committee appointed by the Board of
Directors or by any shareholder of record entitled to vote in the election of
directors generally at the record date of the Meeting. However, any
shareholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting only if
written notice of such shareholder's intention to make such nomination or
nominations has been delivered personally to, or been mailed to and received by
the Corporation at the principal executive offices of the Corporation addressed
to the attention of the Secretary, at least sixty (60) days before the date on
which the Corporation first mailed its proxy materials for the prior year's
annual meeting of shareholders (or, if during the prior year the Corporation
did not hold an annual meeting of shareholders or if the date of the meeting
has been changed more than thirty (30) days from the prior year, the notice
must have been received a reasonable time before the Corporation mails its
proxy materials for the current year). Each such notice shall set forth: (a)
the name and address of the shareholder intending to make the nomination and of
the person or persons to be nominated; (b) a representation that the
shareholder intends to appear in person or by proxy at the annual meeting of
shareholders to nominate the person or person or persons specified in the
notice; (c) the address and principal occupation for the past five (5) years of
each nominee and such other information regarding each nominee as would have
been required to be included in a proxy statement filed pursuant to Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended, had
proxies been solicited with respect to such nominee by management of the
Corporation; and (d) the written consent of each nominee to serve as a director
of the Corporation if so elected. The presiding officer of the Meeting may
declare invalid any nomination not made in compliance with the foregoing
procedure.
ARTICLE 11 - REMOVAL OF DIRECTORS
Section 11.1. Removal By Shareholders. The entire board of directors,
or any class of the board, or any individual director may be removed from
office only for cause by vote of the shareholders entitled to vote thereon. In
case the board or a class of the board or any one or more directors are so
removed, new directors may be elected at the same meeting. The repeal of a
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provision of the articles or these bylaws prohibiting, or the addition of a
provision to the articles or bylaws permitting, the removal by the shareholders
of the board, a class of the board or a director without assigning any cause
shall not apply to any incumbent director during the balance of the term for
which the director was selected. This Section 11.1 was adopted by the
shareholders of the Corporation on June 30, 1995.
Section 11.2. Removal By Board. The Board of Directors may declare
vacant the office of a director who has been judicially declared of unsound
mind or who has been convicted of an offense punishable by imprisonment for a
term of more than one year.
ARTICLE 12 - VACANCIES ON BOARD OF DIRECTORS
Section 12.1. Board Authorized To Fill Existing Vacancies. Vacancies
on the Board of Directors, including vacancies resulting from an increase in
the number of directors, shall be filled by a majority vote of the remaining
members of the Board of Directors, though less than a quorum, or by a sole
remaining director, and each person so selected shall be a director to serve
for the balance of the unexpired term.
Section 12.2. Board Authorized To Fill Future Vacancies. When one or
more directors resign from the Board of Directors effective at a future date,
the directors then in office, including those who have so resigned, shall have
the power by a majority vote to fill the vacancies, the vote thereon to take
effect when the resignations become effective.
ARTICLE 13 - POWERS OF BOARD
Section 13.1. Board Authority - General. The business and affairs of
the Corporation shall be managed under the direction of the Board of Directors,
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are directed or required to be exercised and done by
statute, the Articles of Incorporation or these Bylaws.
Section 13.2. Board Committees. The Board of Directors may, by
resolution adopted by a majority of the directors in office, establish one or
more committees consisting of one or more directors as may be deemed
appropriate or desirable by the Board of Directors to serve at the pleasure of
the Board. Any committee, to the extent provided in the resolution of the
Board of Directors pursuant to which it was created, shall have and may
exercise all of the powers and authority of the Board of Directors, except that
no committee shall have any power or authority as to the following:
(a) The submission to shareholders of any action requiring approval of
shareholders;
(b) The creation or filling of vacancies in the Board of Directors;
(c) The adoption, amendment or repeal of these Bylaws;
(d) The amendment or repeal of any resolution of the Board of Directors
that by its terms is amendable or repealable only by the Board of
Directors; and
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(e) Action on matters committed by the Bylaws or resolution of the
Board of Directors to another committee of the Board of Directors.
ARTICLE 14 - MEETINGS OF THE BOARD OF DIRECTORS
Section 14.1. Place of Meeting; Use of Telecommunications Equipment.
Meetings of the Board of Directors shall be held at such times and places
within or without the Commonwealth of Pennsylvania as the Board of Directors
may from time to time appoint or as may be designated in the notice of the
meeting. One or more directors may participate in any meeting of the Board of
Directors, or of any committee thereof, by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear one another, provided that the use of such conference
telephone or similar communications equipment shall be at the discretion of the
Board of Directors. Participation in a meeting by such means shall constitute
presence in person at the meeting.
Section 14.2. Regular Meetings. A regular meeting of the Board of
Directors shall be held annually, immediately following the annual meeting of
the shareholders, at the place where such meeting of the shareholders is held
or at such other place and time as a majority of the directors in office after
the annual meeting of shareholders may designate. At such meeting, the Board
of Directors shall elect officers of the Corporation. In addition to such
regular meeting, the Board of Directors shall have the power to fix by
resolution the place and time of other regular meetings of the Board.
Section 14.3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if any, by the President,
or by a majority of the directors in office on one day's notice to each
director, either by telephone, or, if in writing, in accordance with the
provisions of Article 29 of these Bylaws.
Section 14.4. Quorum. At all meetings of the Board of Directors a
majority of the directors in office shall constitute a quorum for the
transaction of business, and the acts of a majority of the directors present
and voting at a meeting at which a quorum is present shall be the acts of the
Board of Directors, except as may be otherwise specifically provided by statute
or by the Articles of Incorporation or by these Bylaws.
ARTICLE 15 - ACTION BY WRITTEN CONSENT
Section 15.1. Written Consent - General. Any action required or
permitted to be taken at a meeting of the Board of Directors, or at any
committee of the Board of Directors, may be taken without a meeting if, prior
or subsequent to the action, a consent or consents thereto signed by all of the
directors (or members of the committee with respect to committee action) is
filed with the Secretary of the Corporation.
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ARTICLE 16 - COMPENSATION OF DIRECTORS
Section 16.1. Compensation - General. Directors, as such, may receive a
stated salary for their services or a fixed sum and expenses for attendance at
regular and special meetings, or any combination of the foregoing as may be
determined from time to time by resolution of the Board of Directors, and
nothing contained herein shall be construed to preclude any director from
receiving compensation for services rendered to the Corporation in any other
capacity.
ARTICLE 17 - OFFICERS
Section 17.1. Officers - General. The officers of the Corporation
shall be a Chief Executive Officer, a President, a Chairman of the Board, one
or more Vice Presidents, a Secretary, a Treasurer, and such other officers and
assistant officers as the Board of Directors may from time to time deem
advisable. Except for the Chief Executive Officer, President, Secretary and
Treasurer, the Board may refrain from filling any of the said offices at any
time and from time to time. The same individual may hold any two or more
offices. The following officers shall be elected by the Board of Directors at
the time, in the manner and for such terms as the Board of Directors from time
to time shall determine: Chief Executive Officer, President, Chairman of the
Board, Secretary, and Treasurer. The Chief Executive Officer may, subject to
change by the Board of Directors, appoint such other officers and assistant
officers as he may deem advisable provided such officers or assistant officers
have a title no higher than Vice President, who shall hold office for such
periods as the Chief Executive Officer shall determine. Any officer may be
removed at any time, with or without cause, and regardless of the term for
which such officer was elected.
ARTICLE 18 -PRESIDENT
Section 18.1. Chief Executive Officer - General. The Chief Executive
Officer shall have general supervision of all of the departments and business
of the Corporation; he shall prescribe the duties of the other officers and
employees and see to the proper performance thereof. The Chief Executive
Officer shall be responsible for having all orders and resolutions of the Board
of Directors carried into effect. The Chief Executive Officer shall execute on
behalf of the Corporation and may affix or cause to be affixed a seal to all
authorized documents and instruments requiring such execution, except to the
extent that signing and execution thereof shall have been delegated to some
other officer or agent of the Corporation by the Board of Directors or by the
Chief Executive Officer. The Chief Executive Officer shall be a member of the
Board of Directors. In the event of the disability of the Chairman of the
Board or his refusal to act, the Chief Executive Officer shall preside at
meetings of the Board and the shareholders. In general, the Chief Executive
Officer shall perform all the duties and exercise all the powers and
authorities incident to his office or as prescribed by the Board of Directors.
Unless otherwise provided by the Board of Directors, the salaries and
compensation of all officers and assistant officers, except the Chief Executive
Officer, President and Chairman of the Board, shall be fixed by or in the
manner designated by the Chief Executive Officer.
Section 18.2 President - General. The President shall perform such
duties as are prescribed
10
<PAGE> 14
by the Board of Directors or the Chief Executive Officer. The President shall
execute on behalf of the Corporation and may affix or cause to be affixed a
seal to all authorized documents and instruments requiring such execution,
except to the extent that signing and execution thereof shall have been
delegated to some other officer or agent of the Corporation by the Board of
Directors or by the Chief Executive Officer. In the event of the disability of
the Chief Executive Officer or his refusal to act, the President shall perform
the duties and have the powers and authorities of the Chief Executive Officer.
In the event of the disability of the Chairman of the Board and the Chief
Executive Officer or their refusal to act, the President shall preside at
meetings of the Board and the shareholders.
ARTICLE 19 - SECRETARY
Section 19.1. Secretary - General. The Secretary shall act under the
supervision of the Chief Executive Officer or such other officer as the Chief
Executive Officer may designate. Unless a designation to the contrary is made
at a meeting, the Secretary shall attend all meetings of the Board of Directors
and all meetings of the shareholders and record all of the proceedings of such
meetings in a book to be kept for that purpose. The Secretary shall keep a
seal of the Corporation, and, when authorized by the Board of Directors or the
Chief Executive Officer, cause to be affixed to any documents and instruments
requiring it. The Secretary shall perform such other duties as may be
prescribed by the Board of Directors or Chief Executive Officer, or such other
supervising officer as the Chief Executive Officer may designate.
ARTICLE 20 - TREASURER
Section 20.1. Treasurer - General. The Treasurer shall act under the
supervision of the Chief Executive Officer or such other officer as the Chief
Executive Officer may designate. The Treasurer shall have custody of the
Corporation's funds and such other duties as may be prescribed by the Board of
Directors or the Chief Executive Officer, or such other supervising officer as
the Chief Executive Officer may designate.
ARTICLE 21 - CHAIRMAN OF THE BOARD
Section 21.1. Chairman of the Board - General. The Chairman of the
Board shall be a member of the Board of Directors and shall preside at the
meetings of the Board and the shareholders and perform such other duties as may
be prescribed by the Board of Directors.
ARTICLE 22 - OTHER OFFICERS
Section 22.1. Vice Presidents - General. The Vice Presidents shall
perform such duties, do such acts and be subject to such supervisions as may be
prescribed by the Board of Directors or the Chief Executive Officer. In the
event of the disability of the Chief Executive Officer and the President or
their refusal to act, the Vice Presidents, in the order of their rank, and
within the same rank in the order of their seniority, shall perform the duties
and have the powers and authorities of the Chief
11
<PAGE> 15
Executive Officer and President, except to the extent inconsistent with
applicable law.
Section 22.2 Assistant Officers - General. Unless otherwise provided by
the Board of Directors, each assistant officer shall perform such duties as
shall be prescribed by the Board of Directors, the Chief Executive Officer, or
the officer to whom he is an assistant. In the event of the absence or
disability of an officer or his refusal to act, his assistant officers shall,
in the order of their rank, and within the same rank in the order of their
seniority, have the powers and authorities of such officer.
ARTICLE 23 - LIMITATION OF DIRECTORS' LIABILITY AND
INDEMNIFICATION OF OFFICERS, DIRECTORS, AND OTHER PERSONS
Section 23.1. Limitation of Liability. No director of the Corporation
shall be personally liable, as such, for monetary damages for any action taken
unless: (a) the director has breached or failed to perform the duties of his
or her office, and (b) the breach or failure to perform constitutes
self-dealing, wilful misconduct or recklessness; provided, however, that the
provisions of this Section 23.1 shall not apply to the responsibility or
liability of a director pursuant to any criminal statute, or to the liability
of a director for the payment of taxes pursuant to local, Pennsylvania or
federal law.
Section 23.2. Indemnification. The Corporation shall indemnify and hold
harmless to the fullest extent permitted by Pennsylvania law any director or
officer, and may indemnify any other employee or agent, who was or is a party
to, or is threatened to be made a party to, or who is called as a witness in
connection with, any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation (collectively, for purposes of
this Article 23, "Proceeding"), by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust or other enterprise, against expenses,
liability and loss including, without limitation, attorneys' fees and
disbursements, punitive and other damages, judgments, fines, penalties, amounts
paid or to be paid in settlement and costs and expenses of any nature incurred
by him in connection with such Proceeding and any appeal therefrom; provided
that such indemnification shall not be made where the act or failure to act
giving rise to the claim for indemnification is determined by a court in a
final binding adjudication to have constituted willful misconduct or
recklessness.
Section 23.3. Indemnification and Advancement of Expenses Non-Exclusive.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article 23 shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, contract, vote of shareholders or
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. It is the policy of the
Corporation that indemnification of, and advancement of expenses to, directors
and officers of the Corporation shall be made to the fullest extent permitted
by law. To this end, the provisions of this Article 23 shall be deemed to have
been
12
<PAGE> 16
amended for the benefit or directors and officers of the Corporation effective
immediately upon any modification of the BCL or any modification, or adoption
of any other law that expands or enlarges the power or obligation of
corporations organized under the BCL to indemnify, or advance expenses to,
directors and officers of corporations.
Section 23.4. Advancement of Expenses - Repayment Undertaking. The
Corporation shall pay expenses incurred by an officer or director, and may pay
expenses incurred by any other employee or agent, in defending a Proceeding, in
advance of the final disposition of such action or proceeding provided that if
required by the BCL or other applicable law, the payment of such expenses shall
be made only upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation.
Section 23.5. Continuation of Indemnification Following Termination.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article 23 shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 23.6. Security For Indemnification Obligation. The Corporation
shall have the authority to create a fund of any nature, which may, but need
not be, under the control of a trustee, or otherwise secure or insure in any
manner, its indemnification obligations, whether arising under these Bylaws or
otherwise. This authority shall include, without limitation, the authority to:
(i) deposit funds in trust or in escrow; (ii) establish any form of
self-insurance; (iii) secure its indemnity obligation by grant of a security
interest, mortgage or other lien on the assets of the Corporation; or (iv)
establish a letter of credit, guaranty or surety arrangement for the benefit of
such persons in connection with the anticipated indemnification or advancement
of expenses contemplated by this Article 23. The provisions of this Article 23
shall not be deemed to preclude the indemnification of, or advancement of
expenses to, any person who is not specified in Section 23.1 of this Article 23
but whom the Corporation has the power or obligation to indemnify, or to
advance expenses for, under the provisions of the BCL, other applicable law or
otherwise. The authority granted by this Section 23.5 shall be exercised by
the Board of Directors of the Corporation.
Section 23.7. Indemnification Agreements. The Corporation shall have
the authority to enter into a separate indemnification agreement with any
officer, director, employee or agent of the Corporation or any subsidiary
providing for such indemnification of such person as the Board of Directors
shall determine up to the fullest extent permitted by law.
Section 23.8. Settlement; No Presumption. The termination of any
Proceeding by judgment, order, settlement, conviction, or upon a plea of guilty
or nolo contendere, or its equivalent, shall not, of itself, create a
presumption that the person's conduct constituted willful misconduct or
recklessness.
Section 23.9. Repeal of Indemnification Provisions. The indemnification
provisions of this
13
<PAGE> 17
Article 23 shall constitute a contract between the Corporation and each of its
directors, officers, employees and agents who are or may be entitled to
indemnification hereunder and who serve in any such capacity at any time while
such provisions are in effect. Any repeal or modification of the
indemnification provisions of this Article 23 shall not limit any such person's
rights to indemnification (including the advancement of expenses) then existing
or arising out of events, acts or omissions occurring prior to such repeal or
modification, including, without limitation, the right to indemnification with
respect to Proceedings commenced after such repeal or modification based in
whole or in part upon any such event, act or omission.
Section 23.10. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him and incurred by him or on his behalf in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article 23 or under any provision of the BCL or other
applicable law.
Section 23.11. Amendment of Article 23; Amendments Not Effective
Retroactively. Notwithstanding any other provision of these Bylaws relating to
their amendment generally, any repeal or amendment of this Article 23 which is
adverse to any director of officer shall apply to such director or officer only
on a prospective basis, and shall not reduce any limitation on the personal
liability of a director of the Corporation, or limit the rights of any person
entitled under Article 23 to indemnification or to the advancement of expenses
with respect to any action or failure to act occurring prior to the time of
such repeal or amendment. Notwithstanding any other provision of these Bylaws,
no repeal or amendment of these Bylaws shall affect any or all of this Article
so as either to reduce the limitation of directors' liability or limit
indemnification or the advancement of expenses in any manner unless adopted by
the affirmative vote of the shareholders entitled to cast at least a majority
of the votes that all shareholders are entitled to cast in the election of
directors; provided that no such amendment shall have retroactive effect
inconsistent with the preceding sentence. The provisions of this Article 23
were adopted by the shareholders of the Corporation on June 30, 1995.
Section 23.12. Changes to Pennsylvania Law. References in this Article
23 to Pennsylvania law or to any provision thereof shall be to such law as it
existed on the date this Article 23 was adopted or as such law thereafter may
be changed; provided that (a) in the case of any change which expands the
liability of directors or limits the indemnification rights or the rights to
advancement of expenses which the Corporation may provide, the rights to
limited liability, to indemnification and to the advancement of expenses which
the Corporation may provide, the rights to limited liability, to
indemnification and to the advancement of expenses provided in this Article
shall continue as theretofore to the extent permitted by law; and (b) if such
change permits the Corporation without the requirement of any further action by
shareholders or directors to limit further the liability of directors (or limit
the liability of officers) or to provide broader indemnification rights or
rights to the
14
<PAGE> 18
advancement of broader indemnification rights or rights to the advancement of
expenses than the Corporation was permitted to provide prior to such change,
then liability thereupon shall be so limited and the rights to indemnification
and the advancement of expenses shall be so broadened to the extent permitted
by law.
ARTICLE 24 - SHARES; SHARE CERTIFICATES
Section 24.1. Share Certificates. Except as otherwise provided in
Section 24.2, the shares of the Corporation shall be represented by
certificates. Unless otherwise provided by the Board of Directors, every share
certificate shall be signed by two officers and sealed with the corporate seal,
which may be a facsimile, engraved or printed, but where such certificate is
signed by a transfer agent or a registrar, the signature of any corporate
officer upon such certificate may be a facsimile, engraved or printed. In case
any officer who has signed, or whose facsimile signature has been placed upon,
any share certificate shall have ceased to be such officer because of death,
resignation or otherwise, before the certificate is issued, it may be issued
with the same effect as if the officer had not ceased to be such at the date of
its issue. The provisions of this Section 24.1 shall be subject to any
inconsistent or contrary agreement at the time between the Corporation and any
transfer agent or registrar. To the extent the Corporation is authorized to
issue shares of more than one class or series, every certificate shall set
forth upon the face or back of the certificate (or shall state on the fact or
back of the certificate that the Corporation will furnish to any shareholder
upon request and without charge) a full or summary statement of the
designation, voting rights, preferences, limitations and special rights of the
shares of each class or series authorized to be issued so far as they have been
fixed and determined and the authority of the Board of Directors to fix and
determine the designations, voting rights, preferences, limitations and special
rights of the classes and series of shares of the Corporation.
Section 24.2. Uncertificated Shares. Notwithstanding anything herein to
the contrary, any or all classes and series of shares, or any part thereof, may
be represented by uncertificated shares to the extent determined by the Board
of Directors, except that shares represented by a certificate that is issued
and outstanding shall continue to be represented thereby until the certificate
is surrendered to the Corporation. Within a reasonable time after the issuance
or transfer of uncertificated shares, the Corporation shall send to the
registered owner thereof, a written notice containing the information required
to be set forth or stated on certificates. The rights and obligations of the
holders of shares represented by certificates and the rights and obligations of
the holders of uncertificated shares of the same class and series shall be
identical. Notwithstanding anything herein to the contrary, the provisions of
Section 24.1 shall be inapplicable to uncertified shares and in lieu thereof
the Board of Directors shall adopt alternative procedures for registration of
transfers.
ARTICLE 25 -TRANSFER OF SHARES
Section 25.1. Transfer of Shares - General. Upon surrender to the
Corporation of a share certificate duly endorsed by the person named in the
certificate or with duly executed stock powers attached and otherwise in proper
form for transfer, or by attorney duly appointed in writing and
15
<PAGE> 19
accompanied where necessary by proper evidence of succession, assignment or
authority to transfer, a new certificate shall be issued to the person entitled
thereto and the old certificate canceled and the transfer recorded on the share
register of the Corporation. Except as otherwise provided pursuant to Section
6.2 hereof, a transferee of shares of the Corporation shall not be a record
holder of such shares entitled to the rights and benefits associated therewith
unless and until the share transfer has been recorded on the share transfer
books of the Corporation. No transfer shall be made if it would be
inconsistent with the provisions of Article 8 of the Pennsylvania Uniform
Commercial Code.
ARTICLE 26 - LOST CERTIFICATES
Section 26.1. Lost Certificates - General. Unless waived in whole or in
part by the Board of Directors, any person requesting the issuance of a new
certificate in lieu of an alleged lost, destroyed, mislaid or wrongfully taken
certificate shall (a) give to the Corporation his or her bond of indemnity with
an acceptable surety, and (b) satisfy such other requirements as may be imposed
by the Corporation. Thereupon, a new share certificate shall be issued to the
registered owner or his or her assigns in lieu of the alleged lost, destroyed,
mislaid or wrongfully taken certificate, provided that the request therefor and
issuance thereof have been made before the corporation has notice that such
shares have been acquired by a bona fide purchaser.
ARTICLE 27 - FINANCIAL REPORTS TO SHAREHOLDERS
Section 27.1. Annual Financial Statements. Unless waived in a written
agreement by the shareholders, separate from the Articles of Incorporation or
these By-laws, the Corporation shall furnish to its shareholders annual
financial statements, including at least a balance sheet as of the end of each
fiscal year and a statement of income and expenses for the fiscal year. The
financial statements shall be prepared on the basis of generally accepted
accounting principles, if the Corporation prepares financial statements for the
fiscal year on that basis for any purpose, and may be consolidated statements
of the Corporation and one or more of its subsidiaries. The financial
statements shall be mailed by the Corporation to each of its shareholders
entitled thereto within one hundred and twenty (120) days after the close of
each fiscal year and, after the mailing and upon written request, shall be
mailed by the Corporation to any shareholder or beneficial owner entitled
thereto to whom a copy of the most recent annual financial statements has not
previously been mailed. Statements that are audited or reviewed by a public
accountant shall be accompanied by the report of the accountant; in other
cases, each copy shall be accompanied by a statement of the person in charge of
the financial records of the Corporation stating his reasonable belief as to
whether or not the financial statements were prepared in accordance with
generally accepted accounting principles and, if not, describing the basis of
presentation and describing any material respects in which the financial
statements were not prepared on a basis consistent with those prepared for the
previous year.
ARTICLE 28 - FISCAL YEAR
Section 28.1. Fiscal Year. The fiscal year of the Corporation shall be
as determined by the Board of Directors.
16
<PAGE> 20
ARTICLE 29 - MANNER OF GIVING WRITTEN NOTICE; WAIVERS OF NOTICE
Section 29.1. Manner of Giving Written Notice. Whenever written notice
is required to be given to any person under the provisions of these Bylaws, it
may be given to the person either personally or by sending a copy thereof by
first class or express mail, postage prepaid, or by telegram (with messenger
service specified), telex or TWX (with answer back received) or courier
service, charges prepaid, or by telecopier, to his address (or to his telex,
TWX, telecopier or telephone number) appearing on the books of the Corporation
or, in the case of written notice to directors, supplied by each director to
the Corporation for the purpose of the notice. If the notice is sent by mail,
telegraph or courier service, it shall be deemed to have been given to the
person entitled thereto when deposited in the United States mail or with a
telegraph office or courier service for delivery to that person or, in the case
of telex or TWX, when dispatched.
Section 29.2. Waivers of Notice. Any written notice required to be
given to any person under the provisions of statute, the Corporation's Articles
of Incorporation or these Bylaws may be waived in a writing signed by the
person entitled to such notice whether before or after the time stated therein.
Except as otherwise required by statute, and except in the case of a special
meeting, neither the business to be transacted at, nor the purpose of, a
meeting need be specified in the waiver of notice. In the case of a special
meeting of shareholders, the waiver of notice shall specify the general nature
of the business to be transacted. Attendance of any person, whether in person
or by proxy, at any meeting shall constitute a waiver of notice of such
meeting, except where a person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting was not lawfully called or convened.
ARTICLE 30 - AMENDMENTS
Section 30.1. Amendment by Shareholders. Except as provided in Section
23.11 hereof, these Bylaws may be amended or repealed, and new Bylaws adopted,
by the affirmative vote of a majority of the votes cast by the shareholders at
any regular or special meeting duly convened after written notice to the
shareholders that the purpose, or one of the purposes, of the meeting is to
consider the amendment or repeal of these Bylaws and the adoption of new
Bylaws. There shall be included in, or enclosed with, the notice, a copy of
the proposed amendment or a summary of the changes to be effected thereby.
Section 30.2. Amendment By Board. Except as provided in Section 23.11
hereof, and except as provided in Section 1504(b) of the BCL, these Bylaws may
be amended or repealed, and new Bylaws adopted, by the affirmative vote of a
majority of the members of the Board of Directors (but not a committee thereof)
at any regular or special meeting duly convened, regardless of whether the
shareholders have previously adopted the Bylaw being amended or repealed,
subject to the power of the shareholders to change such action of the Board of
Directors, provided that the Board of Directors shall not have the power to
amend these Bylaws on any subject that is expressly committed to the
shareholders by the express terms hereof, by Section 1504 of the BCL or
otherwise.
17
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