SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-6903
TRINITY INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Incorporated Under the Laws 75-0225040
of the State of Delaware (I.R.S. Employer
Identification No.)
2525 Stemmons Freeway
Dallas, Texas 75207-2401
(Address of Principal (Zip Code)
Executive Offices)
Registrant's Telephone Number,
Including Area Code (214) 631-4420
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months and
(2) has been subject to such filing requirements for the past 90
days.
Yes X No
41,550,946
(Number of shares of common stock outstanding as of September 30,
1995)
Part I
Item 1 - Financial Statements
Trinity Industries, Inc.
Consolidated Balance Sheet
(unaudited)
(in millions except per share data)
September 30 March 31
Assets 1995 1995
Cash and cash equivalents . . . . . . . . . $ 12.7 $ 15.3
Receivables . . . . . . . . . . . . . . . . 271.2 270.3
Inventories:
Finished goods. . . . . . . . . . . . . . 36.5 35.0
Work in process . . . . . . . . . . . . . 137.3 152.6
Raw material and supplies . . . . . . . . 284.3 207.4
Total inventories 458.1 395.0
Property, plant and equipment, at cost:
Excluding Leasing Subsidiary. . . . . . . 751.9 701.4
Leasing Subsidiary. . . . . . . . . . . . 354.0 387.3
Less accumulated depreciation:
Excluding Leasing Subsidiary. . . . . . . (334.9) (306.2)
Leasing Subsidiary. . . . . . . . . . . . (81.9) (95.4)
Other assets. . . . . . . . . . . . . . . . 60.9 52.3
$1,492.0 $1,420.0
Liabilities and Stockholders' Equity
Short-term debt . . . . . . . . . . . . . . $ 277.0 $ 220.0
Accounts payable and accrued liabilities. . 202.1 245.5
Billings in excess of cost and related
earnings. . . . . . . . . . . . . . . . . 23.9 12.0
Long-term debt:
Excluding Leasing Subsidiary. . . . . . . 42.0 37.7
Leasing Subsidiary. . . . . . . . . . . . 187.8 205.2
Deferred income taxes . . . . . . . . . . . 41.3 44.9
Other liabilities . . . . . . . . . . . . . 16.6 13.5
790.7 778.8
Stockholders' equity:
Common stock - par value $1 per share;
authorized 100.0 shares; shares issued
and outstanding at September 30, 1995 -
41.6 and March 31, 1995 - 40.2 . . . . . 41.6 40.2
Capital in excess of par value. . . . . . 239.2 221.7
Retained earnings . . . . . . . . . . . . 420.5 379.3
701.3 641.2
$1,492.0 $1,420.0
<PAGE>
Trinity Industries, Inc.
Consolidated Income Statement
(unaudited)
(in millions except per share data)
Six Months
Ended September 30
1995 1994
Revenues. . . . . . . . . . . . . . . . . . . . . . $1,233.2 $1,099.8
Operating costs:
Cost of revenues. . . . . . . . . . . . . . . . . 1,058.5 961.0
Selling, engineering and administrative expenses. 59.5 50.8
Interest expense of Leasing Subsidiary. . . . . . 9.2 11.2
Retirement plans expense. . . . . . . . . . . . . 6.8 5.5
1,134.0 1,028.5
Operating profit. . . . . . . . . . . . . . . . . . 99.2 71.3
Other (income) expenses:
Interest income . . . . . . . . . . . . . . . . . (1.3) (0.3)
Interest expense - excluding Leasing Subsidiary . 8.9 5.0
Other, net. . . . . . . . . . . . . . . . . . . . 0.2 (0.7)
7.8 4.0
Income before income taxes . . . . . . . . . . . . 91.4 67.3
Provision (benefit) for income taxes:
Current . . . . . . . . . . . . . . . . . . . . . 45.0 26.6
Deferred. . . . . . . . . . . . . . . . . . . . . (9.0) -
36.0 26.6
Net income. . . . . . . . . . . . . . . . . . . . . $ 55.4 $ 40.7
Net income per common and common equivalent share . $ 1.32 $ 1.00
Weighted average number of common and common
equivalent shares outstanding. . . . . . . . . . . 41.9 40.5
<PAGE>
Trinity Industries, Inc.
Consolidated Income Statement
(unaudited)
(in millions except per share data)
Three Months
Ended September 30
1995 1994
Revenues. . . . . . . . . . . . . . . . . . . . . . $628.5 $555.5
Operating costs:
Cost of revenues. . . . . . . . . . . . . . . . . 541.2 482.5
Selling, engineering and administrative expenses. 29.5 25.6
Interest expense of Leasing Subsidiary. . . . . . 4.5 5.6
Retirement plans expense. . . . . . . . . . . . . 3.3 2.9
578.5 516.6
Operating profit. . . . . . . . . . . . . . . . . . 50.0 38.9
Other (income) expenses:
Interest income . . . . . . . . . . . . . . . . . (1.1) (0.1)
Interest expense - excluding Leasing Subsidiary . 4.9 2.8
Other, net. . . . . . . . . . . . . . . . . . . . 0.2 (0.5)
4.0 2.2
Income before income taxes . . . . . . . . . . . . 46.0 36.7
Provision (benefit) for income taxes:
Current . . . . . . . . . . . . . . . . . . . . . 25.2 15.1
Deferred. . . . . . . . . . . . . . . . . . . . . (7.1) (0.6)
18.1 14.5
Net income. . . . . . . . . . . . . . . . . . . . . $ 27.9 $ 22.2
Net income per common and common equivalent share . $ 0.66 $ 0.55
Weighted average number of common and common
equivalent shares outstanding. . . . . . . . . . . 42.0 40.4
<PAGE>
Trinity Industries, Inc.
Consolidated Statement of Cash Flows
(unaudited)
(in millions)
Six Months
Ended September 30
1995 1994
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . $ 55.4 $ 40.7
Adjustments to reconcile net income to net cash
provided (required) by operating activities:
Depreciation:
Excluding Leasing Subsidiary. . . . . . . . . . 26.4 24.5
Leasing Subsidiary. . . . . . . . . . . . . . . 9.3 7.9
Deferred provision for income taxes. . . . . . . (9.0) -
Gain on sale of property, plant and equipment. . (0.2) (0.2)
Other. . . . . . . . . . . . . . . . . . . . . . (4.6) (1.9)
Changes in assets and liabilities:
(Increase) decrease in receivables . . . . . . 4.3 (0.7)
(Increase) decrease in inventories. . . . . . . (55.2) 13.8
Increase in other assets . . . . . . . . . . . (1.6) (3.3)
Increase (decrease) in accounts payable
and accrued liabilities. . . . . . . . . . . . (60.9) 2.6
Increase(decrease) in billings in excess of
cost and related earnings. . . . . . . . . . . 11.9 (6.8)
Increase (decrease) in other liabilities. . . . 2.8 (0.8)
Total adjustments. . . . . . . . . . . . . . . (76.8) 35.1
Net cash provided (required) by operating
activities . . . . . . . . . . . . . . . . . . (21.4) 75.8
Cash flows from investing activities:
Proceeds from sale of property, plant
and equipment . . . . . . . . . . . . . . . . . . 51.4 14.3
Capital expenditures:
Excluding Leasing Subsidiary. . . . . . . . . . . (22.7) (31.4)
Leasing Subsidiary. . . . . . . . . . . . . . . . (32.0) (6.8)
Payment for purchase of acquisitions,
net of cash acquired. . . . . . . . . . . . . . . (11.8) (19.3)
Cash of acquired subsidiary. . . . . . . . . . . . 1.2 1.1
Net cash required by investing activities. . . . (13.9) (42.1)
Cash flows from financing activities:
Issuance of common stock . . . . . . . . . . . . . 2.6 0.7
Net borrowings under short-term debt . . . . . . . 57.0 (3.0)
Proceeds from issuance of long-term debt . . . . . 7.0 -
Payments to retire long-term debt. . . . . . . . . (20.1) (23.3)
Dividends paid . . . . . . . . . . . . . . . . . . (13.8) (13.5)
Net cash provided (required) by
financing activities. . . . . . . . . . . . . . 32.7 (39.1)
Net decrease in cash and cash equivalents . . . . . (2.6) (5.4)
Cash and cash equivalents at beginning of year. . . 15.3 8.7
Cash and cash equivalents at end of period. . . . . $ 12.7 $ 3.3
<TABLE>
Trinity Industries, Inc.
Consolidated Statement of Stockholders' Equity
(unaudited)
(in millions except share and per share data)
<CAPTION>
Common Capital
Common Stock in Total
Shares $1.00 Excess Stock-
(100,000,000 Par of Par Retained holders'
Authorized) Value Value Earnings Equity
<S> <C> <C> <C> <C> <C>
Balance at March 31, 1994 . . . . 39,711,698 $39.7 $213.4 $317.4 $570.5
Other. . . . . . . . . . . . . . 239,261 0.2 7.4 - 7.6
Net income . . . . . . . . . . . - - - 40.7 40.7
Cash dividends
($0.34 per share) . . . . . . . - - - (13.6) (13.6)
Balance September 30, 1994 . . . 39,950,959 $39.9 $220.8 $344.5 $605.2
Balance at March 31, 1995 . . . . 40,220,694 $40.2 $221.7 $379.3 $641.2
Other. . . . . . . . . . . . . . 1,330,252 1.4 17.5 - 18.9
Net income . . . . . . . . . . . - - - 55.4 55.4
Cash dividends
($0.34 per share) . . . . . . - - - (14.2) (14.2)
Balance September 30, 1995 . . . 41,550,946 $41.6 $239.2 $420.5 $701.3
</TABLE>
The foregoing consolidated financial statements are unaudited and have been
prepared from the books and records of the Registrant. In the opinion of the
Registrant, all adjustments, consisting only of normal and recurring
adjustments necessary to a fair presentation of the financial position of the
Registrant as of September 30, 1995 and March 31, 1995, the results of
operations for the six and three month periods ended September 30, 1995 and
1994 and cash flows for the six month periods September 30, 1995 and 1994, in
conformity with generally accepted accounting principles, have been made.
<PAGE>
Item 2 - Management's Discussion and Analysis of Consolidated Financial
Condition and Statement of Operations
FINANCIAL CONDITION
The increase in 'Property, plant and equipment', at cost: Excluding Leasing
Subsidiary' at September 30, 1995 compared to March 31, 1995 is due primarily
to the acquisition of Grupo TATSA, headquartered in Mexico City, in the first
quarter of the current year and to other business acquisitions in the Marine
Products and Construction Products segments. The increase in 'Inventories'
is due to increased levels of production primarily in the Railcars segment
and to current period acquisitions.
Statement of Operations
Six Months Ended September 30, 1995 vs.
Six Months Ended September 30, 1994
All business segments recorded increased 'Revenues' in the current six month
period compared to the same period of the prior year as demand for Trinity's
products continues to improve.
The replacement market for railcars continues to fuel the increase in demand
for freight and tank railcars. Supported by the steady number of inquiries
for railcars, the replacement market is expected to remain in place for
several more years. Construction Products' 'Revenues' and 'Operating profit'
for the current period were higher due to increased demand for highway
guardrail and road barrier products, coupled with continuing high demand for
ready-mix concrete and aggregates. Leasing's 'Revenues' and 'Operating
profit' increased due to the sale of selected railcars previously held for
lease. Although Marine Products' 'Revenues' increased, 'Operating profit' was
affected by gear-ups and hirings associated with production facilities that
had been closed for a period of time. The current strong order rate for
marine products is expected to lead to a replacement cycle for barges and
marine vessels in future periods.
Three Months Ended September 30, 1995 vs.
Three Months Ended September 30, 1994
'Revenues' and 'Operating profit' are higher in the current quarter due to
improved results in all of the business segments except Marine's operating
profit. 'Operating profit' for the Marine Products segment slightly declined
due to the reason stated above. Business conditions remain favorable for
Trinity's products.
<PAGE>
Part II
Item 6 - Exhibits and Reports on Form 8-K.
(a) Exhibits
Exhibit
Number Description
3ii By-laws, as amended
27 Financial Data Schedule
(b) No Form 8-K was filed during the quarter.
Pursuant to the requirements of Section 13 or 15(d) 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.
Trinity Industries, Inc.
By: F. Dean Phelps
F. Dean Phelps
Vice President
November 13, 1995
<PAGE>
Index to Exhibit
No. Description Page
3ii By-laws 10
27 Financial Data Schedule 23
EXHIBIT 3ii
As Amended and in Effect on September 14, 1995
BYLAWS
OF
TRINITY INDUSTRIES, INC.
ARTICLE I.
Offices
Section 1. The registered office shall be located in the City
of Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such
other places within or without the State of Delaware as the Board
of Directors may from time to time determine, or as the business of
the corporation may require.
ARTICLE II.
Meetings of Stockholders
Section 1. Meetings of the stockholders shall be held in the
City of Dallas, County of Dallas, State of Texas.
Section 2. The annual meeting of stockholders, commencing in
the year 1987, shall be held at 9:30 o'clock in the morning on the
third Wednesday in July of each year, unless such day is a legal
holiday, in which case such meeting shall be held at the specified
time on the first day thereafter which is not a legal holiday.
At such meeting, the stockholders entitled to vote thereat
shall elect by a plurality vote a Board of Directors. Nominations
for election to the Board of Directors shall be made at such
meeting only by or at the direction of the Board of Directors, by
a nominating committee or person appointed by the Board of
Directors, or by a stockholder of the corporation entitled to vote
for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 2. Such nominations,
other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to
the Secretary of the corporation. To be timely, a stockholder's
notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than fifty
(50) days nor more than seventy-five (75) days prior to the date of
the meeting; provided, however, that in the event that less than
sixty-five (65) days' notice or prior public disclosure of the date
of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the
close of business on the fifteenth (15th) day following the day on
which such notice of the date of the meeting was mailed or such
public disclosure was made. Such stockholder's notice to the
Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a
director, (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the
person, (iii) the class and number of shares of capital stock of
the corporation which are beneficially owned by the person, and
(iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of
directors pursuant to Rule 14a under the Securities Exchange Act of
1934, as amended; and (b) as to the stockholder giving the notice,
(i) the name and record address of the stockholder and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the stockholder. The corporation
may require any proposed nominee to furnish such other information
as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as director of the
corporation. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the
procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
At each annual meeting of the stockholders, only such business
shall be conducted as shall have properly been brought before the
meeting. To be properly before the meeting, the business to be
conducted must be specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or otherwise properly
brought before the meeting by a stockholder. In addition to any
other applicable requirements, for business to be properly brought
before the meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive
offices of the corporation not less than fifty (50) days nor more
than seventy-five (75) days prior to the meeting; provided,
however, that in the event that less than sixty-five (65) days'
notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on
the fifteenth (15th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure
was made. A stockholder's notice to the Secretary of the
corporation shall set forth as to each matter that the stockholder
proposes to bring before the annual meeting, (i) a brief
description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of
the corporation which are beneficially owned by the stockholder,
and (iv) any material interest of the stockholder in such business.
Notwithstanding the foregoing provisions of this Section 2, a
stockholder seeking to have a proposal included in the
corporation's proxy statement shall comply with the requirements of
Regulation 14A under the Securities Exchange Act of 1934, as
amended (including, but not limited to, Rule 14a-8 or its successor
provision).
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Section 2;
provided, however, that nothing in this Section 2 shall be deemed
to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with the procedures
set forth in this Section 2.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that the business sought to be
so conducted was not properly brought before the meeting in
accordance with the provisions of this Section 2, and if he should
so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
Section 3. Special meetings of the stockholders may be called
by the chief executive officer or a majority of the Board of
Directors.
Section 4. Written or printed notice stating the place, day
and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given
not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, by or at the
direction of the President, the Secretary, or the officer or person
calling the meeting, to each stockholder of record entitled to vote
at such meeting.
Section 5. Business transacted at any special meeting shall
be confined to the purposes stated in the notice thereof.
Section 6. The holders of a majority of the shares entitled
to vote, represented in person or by proxy, shall constitute a
quorum at meetings of stockholders except as otherwise provided by
any applicable statute. If, however, a quorum shall not be present
or represented at any meeting of the stockholders, the stockholders
present in person or represented by proxy shall have power to
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might
have been transacted at the meeting as originally notified.
Section 7. Except as provided in Section 2 hereof with
respect to the election of the Board of Directors, at a meeting at
which a quorum is present, the vote of the holders of a majority of
the shares present in person or represented by proxy at the meeting
and entitled to vote shall be the act of the stockholders' meeting,
unless the vote of a greater number is required by law or the
Certificate of Incorporation.
Section 8. Each outstanding share, regardless of class, shall
be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders, except to the extent that the voting
rights of the shares of any class are limited or denied by the
Certificate of Incorporation.
Section 9. At any meeting of the stockholders, every
stockholder having the right to vote may vote either in person, or
by proxy appointed by an instrument in writing as to a particular
meeting and any adjournment or adjournments thereof subscribed by
such stockholder or by his duly authorized attorney-in-fact. A
proxy shall be revocable unless expressly provided therein to be
irrevocable and unless otherwise provided by law.
Section 10. The officer or agent having charge of the stock
transfer books shall make, at least ten (10) days before each
meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and number of
shares held by each, which list, for a period of ten (10) days
prior to such meeting, shall be kept on file at the registered
office of the corporation, and shall be subject to inspection by
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. The original stock transfer
books shall be prima facie evidence as to who are the stockholders
entitled to examine such list or transfer book or to vote at any
such meeting of stockholders.
ARTICLE III.
Directors
Section 1. The number of directors of the corporation shall
be nine (9). The directors shall be elected at the annual meeting
of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his
successor is elected and qualified; provided, any director may be
removed at any time, with or without cause, by the holders of a
majority of the shares entitled to vote, represented in person or
by proxy, at any duly constituted meeting of stockholders called
for the purpose of removing any such director or directors.
Directors need not be residents of the State of Delaware or
stockholders of the corporation.
Section 2. Any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected
for the unexpired term of his predecessor in office. Any newly
created directorship(s) resulting from an increase in the
authorized number of directors elected by all stockholders entitled
to vote as a single class shall be filled by the affirmative vote
of a majority of the remaining directors, even though less than a
quorum of the proposed Board of Directors.
Section 3. The business and affairs of the corporation shall
be managed by its Board of Directors which may exercise all such
powers of the corporation and do all such lawful acts and things as
are not by statute, the Certificate of Incorporation, or these
Bylaws directed or required to be exercised and done by the
stockholders.
Section 4. Meetings of the Board of Directors, regular or
special, may be held either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be fixed by
the vote of the stockholders at the annual meeting, and no notice
of such meeting shall be necessary to the newly elected directors
in order legally to constitute the meeting, provided a quorum shall
be present. In the event of the failure of the stockholders to fix
the time and place of such first meeting of the newly elected Board
of Directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at
such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of
Directors, or as shall be specified in a written waiver signed by
all of the directors.
Section 6. Regular meetings of the Board of Directors may be
held at such time and at such place as shall from time to time be
determined by the Board. Special meetings of the Board of
Directors may be called by the Secretary on the written request of
two directors.
Section 7. Written notice of regular meetings of the Board of
Directors shall not be required. Special meetings of the Board of
Directors may be called upon twenty-four (24) hours' notice to each
director, or such shorter period of time as the person calling the
meeting deems appropriate in the circumstances, either personally
or by mail, telephone or telegram. Neither the business to be
transacted at, nor the purposes of, any special meeting of the
Board of Directors need be specified in the notice or waiver of
notice of such special meeting.
Section 8. A majority of the directors shall constitute a
quorum for the transaction of business, and the act of the majority
of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless a greater number
is required by the Certificate of Incorporation. If a quorum shall
not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 9. The Board of Directors, by resolution adopted by
a majority of the whole Board, may designate three or more
directors to constitute an executive committee, which committee,
unless its authority shall be otherwise expressly limited by such
resolution, shall have and may exercise all of the authority of the
Board of Directors in the business and affairs of the corporation
except where action of the Board of Directors is specified by
statute. Vacancies in the membership of the committee shall be
filled by the Board of Directors at a regular or special meeting of
the Board of Directors. The executive committee shall keep regular
minutes of its proceedings and report the same to the Board when
required. The designation of such committee and the delegation
thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed
upon it or him by law.
ARTICLE IV.
Notices
Section 1. Except as otherwise provided in these Bylaws,
notices to directors and stockholders shall be in writing, and
delivered personally or mailed to the directors or stockholders at
their addresses appearing on the books of the corporation. If
mailed, such notice shall be deemed to be given when deposited in
the United States mail with postage thereon prepaid. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice is required to be given to any
stockholder or director under the provisions of the statutes, the
Certificate of Incorporation or these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be
equivalent to the giving of such notice.
Section 3. Attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is
not lawfully called or convened.
ARTICLE V.
Officers
Section 1. The executive officers of the corporation shall
consist of a President, one or more Vice Presidents, a Secretary
and a Treasurer and may include a Chairman of the Board, one or
more Senior Vice Presidents and one or more Executive Vice
Presidents, each of whom shall be elected by the Board of
Directors.
Section 2. The Board of Directors, at its first meeting after
each annual meeting of stockholders, shall choose a President, one
or more Vice Presidents, a Secretary and a Treasurer, none of whom
need be a member of the Board, and may appoint one of their number
Chairman of the Board.
Section 3. Such other officers and assistant officers and
agents as may be deemed necessary may be appointed by the chief
executive officer of the corporation, including a Chairman, a
President, and one or more Vice Presidents of the respective
Divisions. The President or the Vice Presidents of the Division
who, in the order of their seniority, unless otherwise determined
by the chief executive officer of the corporation, shall perform
the duties of the Chairman or President, as the case may be, of the
Division in the absence or disability of the Chairman or President,
as the case may be, of that Division. Each President or Vice
President, as the case may be, of a Division shall perform such
other duties and have such other powers as the chief executive
officer of the corporation or the Chairman or President, as the
case may be, of that Division shall prescribe. Division officers
shall hold office until their respective successors shall have been
chosen and shall have qualified. Any Division officer appointed by
the chief executive officer may be removed by the chief executive
officer whenever, in his judgment, the best interests of the
corporation will be served thereby. Any vacancy occurring in any
office of a Division by death, resignation, removal or otherwise
shall be filled by the chief executive officer of the corporation.
Section 4. The salaries of all executive officers of the
corporation shall be fixed by the Board of Directors or by a
committee of one or more directors, the members of which shall be
selected by the Board of Directors and which, unless its authority
shall be otherwise limited by resolution of the Board of Directors,
shall have the power to fix the salaries of all executive officers
of the corporation.
Section 5. The executive officers of the corporation shall
hold office until their respective successors shall have been
chosen and shall have qualified. Any officer or agent or member of
the executive committee elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever, in its
judgment, the best interests of the corporation will be served
thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any vacancy
occurring in any executive office of the corporation by death,
resignation, removal or otherwise shall be filled by the Board of
Directors.
Section 6. The Board of Directors may designate whether the
Chairman of the Board, if such an officer shall have been
appointed, or the President, shall be the chief executive officer
of the corporation. The officer so designated as the chief
executive officer shall preside at all meetings of the stockholders
and the Board of Directors, and shall have such other powers and
duties as usually pertain to such office or as may be delegated by
the Board of Directors. The President shall have such powers and
duties as usually pertain to such office, except as the same may be
modified by the Board of Directors. Unless the Board of Directors
shall otherwise delegate such duties, the chief executive officer
shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect.
Section 7. The chief executive officer or his designee shall
have the authority to execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed,
and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer
or agent of the corporation.
Section 8. The Vice Presidents, in the order of their
seniority, unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President. The Vice
Presidents shall also have the authority to execute bonds,
mortgages and other contracts requiring a seal, under the seal of
the corporation, except where required or permitted by law to be
otherwise signed and executed, and except where the signing and
execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation. The
Vice Presidents shall perform such other duties and have such other
powers as the Board of Directors or the chief executive officer of
the corporation shall prescribe.
Section 9. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and shall
record all the proceedings of the meetings of the stockholders and
of the Board of Directors in a book to be kept for that purpose and
shall perform like duties for the standing committees, when
requested. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors and shall perform such other duties as may be prescribed
by the Board of Directors or the President, under whose supervision
he shall be. He shall keep in safe custody the seal of the
corporation, and, when authorized by the Board of Directors or
directed by the President or any Vice President, affix the same to
any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the Treasurer or
any Assistant Secretary.
Section 10. The Assistant Secretaries, in the order of their
seniority, unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary. They shall
perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
Section 11. The Treasurer shall be the financial officer of
the corporation. He shall have the custody of the corporate funds
and securities and shall deposit all monies and other valuable
effects in the name and to the credit of the corporation in such
depositaries as may be designated from time to time by the Board of
Directors. He shall disburse the funds of the corporation as may
be ordered by the Board of Directors, taking proper vouchers for
such disbursements, and shall render to the President and the Board
of Directors at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as
Treasurer. He shall also perform such other duties as may be
assigned to him by the Board of Directors.
Section 12. If required by the Board of Directors, the
Treasurer shall give the corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
Section 13. The Assistant Treasurers, in the order of their
seniority, unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall
perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
ARTICLE VI.
Indemnification of Directors and Officers
Section 1. The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of
the fact that he is or was or has agreed to become a director,
officer, employee or agent of the corporation, or is or was serving
or has agreed to serve at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such
capacity, against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2. The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of
the fact that he is or was or has agreed to become a director,
officer, employee or agent of the corporation, or is or was serving
or has agreed to serve at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such
capacity, against costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of such action or suit
and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best
interests of the corporation except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Notwithstanding the other provisions of this
Article, to the extent that a director, officer, employee or agent
of the corporation has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to
in Sections 1 and 2 of this Article, or in defense of any claim,
issue or matter therein, he shall be indemnified against all costs,
charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection
therewith.
Section 4. Any indemnification under Sections 1 and 2 of this
Article (unless ordered by a court) shall be paid by the
corporation unless a determination is made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, or (3) by the stockholders, that indemnification
of the director, officer, employee or agent is not proper in the
circumstances because he has not met the applicable standard of
conduct set forth in Sections 1 and 2 of this Article.
Section 5. Costs, charges and expenses (including attorneys'
fees) incurred by a person referred to in Sections 1 and 2 of this
Article in defending a civil or criminal action, suit or proceeding
shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding; provided, however,
that the payment of such costs, charges and expenses incurred by a
director or officer in his capacity as a director or officer (and
not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only
upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is not
entitled to be indemnified by the corporation as authorized in this
Article. Such costs, charges and expenses incurred by other
employees and agents may be so paid upon such terms and conditions,
if any, as the Board of Directors deems appropriate. The Board of
Directors may, in the manner set forth above, and upon approval of
such director, officer, employee or agent of the corporation,
authorize the corporation's counsel to represent such person, in
any action, suit or proceeding, whether or not the corporation is
a party to such action, suit or proceeding.
Section 6. Any indemnification under Sections 1, 2 and 3, or
advance of costs, charges and expenses under Section 5 of this
Article, shall be made promptly, and in any event within 60 days,
upon the written request of the director, officer, employee or
agent. The right to indemnification or advances as granted by this
Article shall be enforceable by the director, officer, employee or
agent in any court of competent jurisdiction, if the corporation
denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such persons' costs and expenses
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall also
be indemnified by the corporation. It shall be a defense to any
such action (other than an action brought to enforce a claim for
the advance of costs, charges and expenses under Section 5 of this
Article where the required undertaking, if any, has been received
by the corporation) that the claimant has not met the standard of
conduct set forth in Sections 1 or 2 of this Article, but the
burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to
have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in
Sections 1 or 2 of this Article, nor the fact that there has been
an actual determination by the corporation (including its Board of
Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 7. The indemnification and advancement of costs,
charges and expenses provided by this Article shall not be deemed
exclusive of any other rights to which a person seeking
indemnification or advancement of costs, charges and expenses may
be entitled under any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding office or while employed by or acting as
agent for the corporation, and shall continue as to a person who
has ceased to be a director, officer, employee or agent as to
actions taken while he was such a director, officer, employee or
agent, and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract
between the corporation and each director, officer, employee or
agent of the corporation who serves or served in such capacity at
any time while this Article is in effect. Any repeal or
modification of this Article or any repeal or modification of
relevant provisions of the Delaware General Corporation Law or any
other applicable laws shall not in any way diminish any rights to
indemnification of such director, officer, employee or agent or the
obligations of the corporation arising hereunder.
Section 8. In addition to the specific indemnification
provided for herein, the corporation shall indemnify each person
who is or was or has agreed to become a director, officer, employee
or agent of the corporation, or is or was serving or has agreed to
serve at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the fullest extent
authorized or permitted (i) by the General Corporation Law of
Delaware, or any other applicable law, or by any amendment thereof
or other statutory provisions in effect on the date hereof, or (ii)
by the corporation's Certificate of Incorporation as in effect on
the date hereof. The corporation shall also advance expenses to
any of the foregoing individuals to the fullest extent authorized
or permitted (i) by the General Corporation Law of Delaware, or any
other applicable law, or by any amendment thereof or other
statutory provision in effect on the date hereof, or (ii) by the
corporation's Certificate of Incorporation as in effect on the date
hereof.
Section 9. Notwithstanding the foregoing, the corporation
shall have the power to purchase and maintain insurance on behalf
of any person who is or was or has agreed to become 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 corporation, partnership, joint venture, trust
or other enterprise against any liability 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.
Section 10. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction,
then the corporation shall nevertheless indemnify each director,
officer, employee and agent of the corporation as to costs, charges
and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the
corporation, to the full extent permitted by any applicable portion
of this Article that shall not have been invalidated and to the
full extent permitted by applicable law.
ARTICLE VII.
Certificates for Shares
Section 1. The corporation shall deliver certificates
representing all shares to which stockholders are entitled; and
such certificates shall be signed by the President or a Vice
President, and the Secretary or an Assistant Secretary of the
corporation, and may be sealed with the seal of the corporation or
a facsimile thereof. No certificate shall be issued for any share
until the consideration therefor has been fully paid. Each
certificate representing shares shall state upon the face thereof
that the corporation is organized under the laws of the State of
Delaware, the name of the person to whom issued, the number and
class and the designation of the series, if any, which such
certificate represents, and the par value of each share represented
by such certificate or a statement that the shares are without par
value.
Section 2. The signatures of the President or Vice President,
and the Secretary or Assistant Secretary, upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent,
or registered by a registrar, other than the corporation itself or
an employee of the corporation. In case any officer who has signed
or whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as
if he were such officer at the date of the issuance.
Section 3. The Board of Directors may direct a new
certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation
alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of
stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in
such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 4. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the
old certificate, and record the transaction upon its books.
Section 5. 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 may provide that
the stock transfer books shall be closed for a stated period but
not to exceed, in any case, sixty (60) days. If the stock transfer
books shall be closed for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the
record date for any such determination of stockholders, such date
in any case to be not more than sixty (60) days, and, in case of a
meeting of stockholders, not less than ten (10) days prior to the
date on which the particular action requiring such determination of
stockholders is to be taken. If the stock transfer books are not
closed and no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of
stockholders or any adjournment thereof, or stockholders entitled
to receive payment of a dividend, or in order to make a
determination of stockholders for any other proper purpose, the
close of business on the day next preceding the day on which notice
of the meeting of stockholders is given shall be the record date
with respect to such meeting, and the close of business on the day
on which the Board of Directors adopts a resolution declaring a
dividend or with respect to any other proper purpose, as the case
may be, shall be the record date for the determination of
stockholders with respect thereto. When a determination of
stockholders entitled to vote at any meeting of stockholders has
been made as provided in this section, such determination shall
apply to any adjournment thereof, except where the determination
has been made through the closing of stock transfer books and the
stated period of closing has expired.
Section 6. The corporation shall be entitled to recognize the
exclusive rights of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
ARTICLE VIII.
General Provisions
Section 1. The Board of Directors may declare and the
corporation may pay dividends on its outstanding shares in cash,
property, or its own shares pursuant to law and subject to the
provisions of its Certificate of Incorporation.
Section 2. The Board of Directors may by resolution create a
reserve or reserves out of earned surplus for any purpose or
purposes, and may abolish any such reserve in the same manner.
Section 3. The Board of Directors must, when requested by the
holders of at least one-third of the outstanding shares of the
corporation, present written reports of the business and financial
affairs of the corporation.
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to
time designate as provided in these bylaws.
Section 5. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
Section 6. The corporate seal shall have inscribed thereon
the name of the corporation and may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner
reproduced.
ARTICLE IX.
Amendments
These Bylaws may be altered, amended or repealed at any
regular or special meeting of, or by the unanimous written consent
of, the Board of Directors.
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