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 March 31, 2001
------------------------------
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 1-7416
VISHAY INTERTECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-1686453
-------- ----------
(State or other (IRS employer
jurisdiction of identification no.)
incorporation or
organization)
63 Lincoln Highway
Malvern, Pennsylvania 19355-2120
(Address of principal executive offices)
(610) 644-1300
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes x No
As of May 10, 2001 registrant had 122,396,709 shares of its Common Stock and
15,518,546 shares of its Class B Common Stock outstanding.
VISHAY INTERTECHNOLOGY, INC.
FORM 10-Q
MARCH 31, 2001
CONTENTS
Page Number
------------
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Condensed Balance Sheets -
March 31, 2001 and December 31, 2000 3
Consolidated Condensed Statements of Operations -
Three Months Ended March 31, 2001 and 2000 5
Consolidated Condensed Statements of Cash Flows -
Three Months Ended March 31, 2001 and 2000 6
Notes to Consolidated Condensed Financial 7
Statements
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 11
PART II. OTHER INFORMATION 15
VISHAY INTERTECHNOLOGY, INC. AND SUBSIDIARIES
Consolidated Condensed Balance Sheets
(Unaudited - In thousands)
March 31, December 31,
ASSETS 2001 2000
---------------- -------------
CURRENT ASSETS
Cash and cash equivalents $382,174 $337,213
Accounts receivable 467,612 452,579
Inventories:
Finished goods 217,632 179,286
Work in process 141,389 130,682
Raw materials 223,527 215,894
Deferred income taxes 30,975 32,051
Prepaid expenses and other current assets 148,696 127,169
---------------- -------------
TOTAL CURRENT ASSETS 1,612,005 1,474,874
PROPERTY AND EQUIPMENT - AT COST
Land 46,000 47,625
Buildings and improvements 263,614 265,311
Machinery and equipment 1,207,313 1,168,241
Construction in progress 68,303 83,768
Allowance for depreciation (608,329) (591,391)
---------------- -------------
976,901 973,554
GOODWILL 310,470 295,759
OTHER ASSETS 33,615 39,471
---------------- -------------
$2,932,991 $2,783,658
================ =============
3
March 31, December 31,
LIABILITIES AND STOCKHOLDERS' EQUITY 2001 2000
------------- -------------
CURRENT LIABILITIES
Notes payable to banks $1,571 $8,250
Trade accounts payable 111,236 120,070
Payroll and related expenses 72,652 111,132
Other accrued expenses 156,612 146,157
Income taxes 39,443 31,915
Current portion of long-term debt 123 150
------------- -------------
TOTAL CURRENT LIABILITIES 381,637 417,674
LONG-TERM DEBT 252,993 140,467
DEFERRED INCOME TAXES 78,611 79,109
DEFERRED INCOME 59,083 55,162
MINORITY INTEREST 65,487 63,480
OTHER LIABILITIES 96,858 93,157
ACCRUED PENSION COSTS 95,410 100,754
STOCKHOLDERS' EQUITY
Common Stock 12,239 12,241
Class B Common Stock 1,552 1,552
Capital in excess of par value 1,318,813 1,319,426
Retained earnings 705,581 615,455
Accumulated other comprehensive loss (134,165) (113,571)
Unearned compensation (1,108) (1,248)
------------- -------------
1,902,912 1,833,855
------------- -------------
$2,932,991 $2,783,658
============= =============
See notes to consolidated condensed financial statements.
4
VISHAY INTERTECHNOLOGY, INC. AND SUBSIDIARIES
Consolidated Condensed Statements of Operations
(Unaudited - In thousands except earnings per share)
Three Months Ended
March 31,
2001 2000
----------- -----------
Net sales $558,465 $538,894
Costs of products sold 359,611 351,178
----------- -----------
GROSS PROFIT 198,854 187,716
Selling, general, and administrative expenses 72,229 67,944
Restructuring expense 5,971 -
Amortization of goodwill 2,915 3,136
----------- -----------
OPERATING INCOME 117,739 116,636
Other income (expense):
Interest expense (2,938) (12,515)
Other 4,737 (174)
----------- -----------
1,799 (12,689)
----------- -----------
EARNINGS BEFORE INCOME TAXES AND MINORITY INTEREST 119,538 103,947
Income taxes 26,921 23,454
Minority interest 2,491 6,222
----------- -----------
NET EARNINGS $90,126 $74,271
=========== ===========
Basic earnings per share $0.65 $0.57
Diluted earnings per share $0.65 $0.56
Weighted average shares outstanding - basic 137,690 130,038
Weighted average shares outstanding - diluted 138,916 132,743
See notes to consolidated condensed financial statements.
5
VISHAY INTERTECHNOLOGY, INC. AND SUBSIDIARIES
Consolidated Condensed Statements of Cash Flows
(Unaudited - In thousands)
Three Months Ended
March 31,
2001 2000
------------------- -------------------
OPERATING ACTIVITIES
Net earnings $90,126 $74,271
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Depreciation and amortization 39,493 38,219
Loss on disposal of property and equipment 19 100
Minority interest in net earnings of consolidated subsidiaries 2,491 6,222
Other 14,875 16,455
Changes in operating assets and liabilities (131,605) (68,032)
------------------- -------------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 15,399 67,235
INVESTING ACTIVITIES
Purchases of property and equipment (54,311) (40,326)
Proceeds from sale of property and equipment 1,018 2,270
Purchase of business (18,251) -
------------------- -------------------
NET CASH USED IN INVESTING ACTIVITIES (71,544) (38,056)
FINANCING ACTIVITIES
Proceeds from long-term borrowings 116 -
Principal payments on long-term debt - (1,170)
Net proceeds (payments) on revolving credit lines 112,356 (48,617)
Net changes in short-term borrowings (6,509) 8,497
Purchase of treasury stock (851) -
Proceeds from stock options exercised 188 33,466
------------------- -------------------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES 105,300 (7,824)
Effect of exchange rate changes on cash (4,194) (1,671)
------------------- -------------------
INCREASE IN CASH AND
CASH EQUIVALENTS 44,961 19,684
Cash and cash equivalents at beginning of period 337,213 105,193
------------------- -------------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $382,174 $124,877
=================== ===================
See notes to consolidated condensed financial statements.
6
10
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
March 31, 2001
Note 1: Basis of Presentation
The accompanying unaudited consolidated condensed financial statements
have been prepared in accordance with the instructions to Form 10-Q and
therefore do not include all information and footnotes necessary for
presentation of financial position, results of operations, and cash flows
required by generally accepted accounting principles for complete financial
statements. The information furnished reflects all adjustments (consisting only
of normal recurring adjustments) which are, in the opinion of management,
necessary for a fair summary of the financial position, results of operations,
and cash flows for the interim period presented. The financial statements should
be read in conjunction with the financial statements and notes thereto filed
with the Company's Form 10-K for the year ended December 31, 2000. The results
of operations for the first three months of 2001 are not necessarily indicative
of the results to be expected for the full year.
Note 2: Change in Accounting Principle
On January 1, 2001, the Company adopted SFAS No. 133 "Accounting for
Derivative Instruments and Hedging Activities" and two related statements. The
Company recorded a $51,435 derivative asset upon adoption, reflecting the
cumulative effect of this change in accounting principle relating to the fair
value of an interest-rate swap agreement.
Note 3: Earnings Per Share
The following table sets forth the computation of basic and diluted
earnings per share (in thousands, except earnings per share):
Three Months Ended
March 31,
2001 2000
-------- --------
Numerator:
Net income $ 90,126 $ 74,271
-------- --------
Denominator:
Denominator for basic earnings per share -
weighted average shares 137,690 130,038
Effect of dilutive securities:
Stock appreciation rights - 579
Employee stock options 1,065 1,942
Other 161 184
-------- --------
Dilutive potential common shares 1,226 2,705
7
Denominator for diluted earnings per
share - adjusted weighted average shares 138,916 132,743
Basic earnings per share $ 0.65 $ 0.57
=========== ===========
Diluted earnings per share $ 0.65 $ 0.56
=========== ===========
Earnings per share amounts for all periods presented reflect the
three-for-two stock split paid on June 9, 2000.
Note 4: Business Segment Information
The Company designs, manufactures, and markets electronic components
that cover a wide range of products and technologies. The Company has two
reportable segments: Passive Electronic Components (Passives) and Active
Electronic Components (Actives). The Company evaluates performance and allocates
resources based on several factors, of which the primary financial measure is
business segment operating income excluding amortization of intangibles. The
corporate component of operating income represents corporate selling, general,
and administrative expenses.
Three Months Ended
March 31,
2001 2000
--------------- -------------
Business Segment Information
(in thousands)
Net Sales:
Passives $ 393,485 $ 325,510
Actives 164,980 213,384
------------ ---------------
$ 558,465 $ 538,894
------------- ---------------
Operating Income:
Passives $ 100,020 $ 77,974
Actives 25,701 48,666
Corporate (5,067) (6,868)
Amortization of goodwill (2,915) (3,136)
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$ 117,739 $ 116,636
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8
Note 5: Comprehensive Income
Comprehensive income includes the following components (in thousands):
Three Months Ended
March 31,
2001 2000
------------- ---------------
Net Income $ 90,126 $ 74,271
Cumulative effect of change
in accounting principle 51 -
Other comprehensive income (loss):
Foreign currency translation adjustment (18,733) (14,007)
Unrealized loss on interest rate swap (2,238) -
Pension liability adjustment, net of tax 326 231
------------- ---------------
Total other comprehensive loss (20,645) (13,776)
------------- ---------------
Comprehensive income $69,532 $60,495
============= ===============
Note 6: Restructuring Expense
The Company recorded restructuring expense of $5,971,000 for the
quarter ended March 31, 2001. Restructuring of European operations included
$4,568,000 of employee termination costs covering approximately 76 technical,
production, administrative and support employees located in France, Hungary,
Portugal, and Austria. The remaining $1,403,000 of restructuring expense related
to termination costs for approximately 350 technical, production, administrative
and support employees located in the United States. The restructuring expense
was part of the cost reduction programs currently being implemented by the
Company.
Note 7: Acquisition
In January 2001, the Company purchased Tansitor, a leading manufacturer
of wet tantalum electrolytic capacitors and miniature conformal coated solid
tantalum capacitors, for $18.2 million. The results of operations of Tansitor
are included in the Company's results from January 1, 2001. Goodwill of
$11,090,000 is being amortized over twenty years. The pro forma effect of this
acquisition is not material.
Note 8: Proposed Purchase of Siliconix Shares
On February 22, 2001, the Company announced its proposal to purchase
all remaining outstanding shares of common stock of Siliconix incorporated, of
which Vishay currently owns 80.4%, not already owned by Vishay. This proposal
continues to be evaluated by a special committee of directors of Siliconix
appointed in March 2001.
9
In February and March 2001, several purported class action complaints
were filed in the Court of Chancery in and for New Castle County, Delaware and
the Superior Court of the State of California against the Company, Siliconix,
and the directors of Siliconix in connection with the Company's announced
proposal to purchase all issued and outstanding shares of Siliconix not already
owned by the Company. The class actions, filed on behalf of all non-Vishay
Siliconix shareholders, allege, among other things, that the Company's proposed
offer is unfair and a breach of fiduciary duty. One of the Delaware class
actions also contains derivative claims against the Company on behalf of
Siliconix alleging self-dealing and waste because the Company purportedly
usurped Siliconix's inventory and patents, appropriated Siliconix's separate
corporate identity, and obtained a below-market loan from Siliconix. The actions
seek injunctive relief, damages and other relief.
The Company has not yet responded to the complaints in the Delaware
actions. On April 9, 2001, Vishay and those defendants that have been served
moved for a stay of the California actions. That motion is returnable on June
22, 2001. In management's opinion, the ultimate resolution of the
above-mentioned matter is not expected to have a material adverse effect on the
Company's consolidated financial condition or results of operations.
10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Results of Operations
Income statement captions as a percentage of sales, and the effective
tax rates, were as follows:
Three Months ended
March 31,
2001 2000
---- ----
Costs of products sold 64.4 % 65.2 %
Gross profit 35.6 34.8
Selling, general, and administrative
expenses 12.9 12.6
Operating income 21.1 21.6
Earnings before income taxes and minority
interest 21.4 19.3
Effective tax rate 22.5 22.6
Net earnings 16.1 13.8
Net Sales
First quarter net sales for 2001 increased $19,571,000 or 3.6% from the
first quarter of 2000. The passive components business net sales were
$393,485,000 for the first quarter of 2001 as compared to $325,510,000 for the
first quarter of 2000, a 20.9% increase. The increase in the passive components
business was primarily due to a strong backlog that existed at December 31,
2000. The active components business first quarter net sales for 2001 were
$164,980,000 as compared to $213,384,000 for the first quarter of 2000, a 22.7%
decrease. The decrease in the active sales for the quarter ended March 31, 2001
as compared to the prior year quarter was primarily due to the decrease in net
sales of Siliconix, of which Vishay owns 80.4%, whose net sales for the quarter
ended March 31, 2001 were $87,759,000 as compared to $114,500,000 for the first
quarter of 2000, a 23.4% decrease. During the first quarter of 2001, the Company
experienced a slowdown in orders, an increase in order cancellations, and orders
being pushed out from several end markets that the Company serves. Sales for the
first quarter of 2001 were reduced by $12,480,000 as a result of the
strengthening of the U.S. dollar against foreign currencies in comparison to the
first quarter of the prior year.
11
Costs of Products Sold
Costs of products sold for the first quarter of 2001 were 64.4% of net
sales, as compared to 65.2% for the first quarter of 2000. Gross profit as a
percentage of net sales increased to 35.6% compared to 34.8% for the first
quarter of 2000, with the passive components businesses responsible for the
increase.
The active components business gross margins for the first quarter of
2001 were 31.0% as compared to 37.1% for the first quarter of 2000. The
Siliconix operation was primarily responsible for this decrease. The gross
profit margin for Siliconix was 33.2 % for the quarter ended March 31, 2001 as
compared to 48.0% for the quarter ended March 31, 2000. The decrease in gross
margins resulted primarily from manufacturing overhead costs in excess of those
required to support the reduced demand in the quarter, as well as pricing
pressures caused by excess industry capacity.
The passive components business gross profit margins for the first
quarter of 2001 were 37.6% as compared to 33.4% for the first quarter of 2000.
This increase was mainly a result of increased demand for the passive products,
particularly resistors, tantalum capacitors, and multi-layer ceramic chip
capacitors. Average selling prices remained comparable with the first quarter of
2000.
Israeli government grants, recorded as a reduction of costs of products
sold, were $4,316,000 for the first quarter of 2001, as compared to $3,677,000
for the first quarter of 2000. Future grants and other incentive programs
offered to the Company by the Israeli government will likely depend on the
Company's continuing to increase capital investment and the number of Company
employees in Israel. Deferred income at March 31, 2001 relating to Israeli
government grants was $59,083,000, as compared to $55,162,000 at December 31,
2000.
Selling, General, and Administrative Expenses
Selling, general, and administrative expenses for the first quarter of
2001 were 12.9% of net sales, as compared to 12.6% of net sales for the first
quarter of 2000. The Company continues to implement cost reduction initiatives
company-wide, with particular emphasis placed on reducing headcount in high
labor cost countries.
Restructuring Expense
The Company recorded restructuring expense of $5,971,000 for the
quarter ended March 31, 2001. Restructuring of European operations included
$4,568,000 of employee termination costs covering approximately 76 technical,
production, administrative and support employees located in France, Hungary,
Portugal, and Austria. The remaining $1,403,000 of restructuring expense related
to termination costs for approximately 350 technical, production, administrative
and support employees located in the United States. The restructuring expense
was part of the cost reduction programs currently being implemented by the
Company. The Company expects to take additional restructuring charges during
2001.
12
Interest Expense
Interest expense for the first quarter of 2001 decreased by $9,577,000
as compared to the first quarter of 2000. This decrease was a result of lower
outstanding bank borrowings during the first quarter of 2001 as compared to the
first quarter of the prior year. The Company received net proceeds of
$395,449,000 from a Common Stock offering in May 2000, which were used to pay
down long-term debt.
Other Income
Other income was $4,737,000 for the quarter ended March 31, 2001 as
compared to an expense of $174,000 for the quarter ended March 31, 2000. The
2001 amount includes interest income of $4,625,000 as compared to interest
income of $944,000 for the first quarter of 2000. Foreign exchange gains were
$219,000 for the quarter ended March 31, 2001 as compared to foreign exchange
losses of $2,503,000 for the quarter ended March 31, 2000.
Minority Interest
Minority interest for the first quarter of 2001 decreased by $3,731,000
as compared to the first quarter of 2000 primarily due to the decrease in net
earnings of Siliconix.
Income Taxes
The effective tax rate for the first quarter of 2001 was 22.5% as
compared to 22.6% for the first quarter of 2000. The continuing low tax rates in
Israel applicable to the Company, as compared to the statutory rate in the
United States, resulted in increases in net earnings of $12,000,000 and
$12,853,000 for the first quarter of 2001 and 2000, respectively. The more
favorable Israeli tax rates are applied to specific approved projects and are
normally available for a period of ten or fifteen years.
Financial Condition and Liquidity
Cash flows from operations were $15,399,000 for the first quarter of
2001 as compared to $67,235,000 for the first quarter of 2000. The decrease in
cash generated from operations was attributable to increases in inventory and
accounts receivable, partially offset by an increase in net earnings from the
first quarter of 2000. In March 2001, the Company adjusted production to control
inventory levels due to the business slowdown. Net purchases of property and
equipment in the first quarter of 2001 were $54,311,000 as compared to
$40,326,000 in the first quarter of 2000, reflecting the Company's efforts
toward increasing capacity. The Company borrowed $112,356,000 on its revolving
credit lines during the first quarter of 2001, primarily to fund additions to
property and equipment and the acquisition of Tansitor. Cash and cash
equivalents increased by $44,961,000 as compared to December 31, 2000. The
Company's financial condition at March 31, 2001 was strong, with a current ratio
of 4.22 to 1. The Company's ratio of long-term debt, less current portion, to
stockholders' equity was .13 to 1 at March 31, 2001 as compared to .55 to 1 at
March 31, 2000 and .08 to 1 at December 31, 2000.
13
Inflation
Normally, inflation does not have a significant impact on the Company's
operations. The Company's products are not generally sold on long-term
contracts. Consequently, selling prices, to the extent permitted by competition,
can be adjusted to reflect cost increases caused by inflation.
Safe Harbor Statement
From time to time, information provided by the Company, including but
not limited to statements in this report, or other statements made by or on
behalf of the Company, may contain "forward-looking" information within the
meaning of the Private Securities Litigation Reform Act of 1995. Such statements
involve a number of risks, uncertainties and contingencies, many of which are
beyond the Company's control, which may cause actual results, performance or
achievements to differ materially from those anticipated. The Company's 2000
Annual Report on Form 10-K identifies important factors that could cause the
Company's actual results, performance or achievements to differ materially from
those in any forward-looking statements made by or on behalf of the Company.
Market Risk Disclosure
The Company's cash flows and earnings are subject to fluctuations
resulting from changes in foreign currency exchange rates and interest rates.
The Company manages its exposure to these market risks through internally
established policies and procedures and, when deemed appropriate, through the
use of derivative financial instruments. The Company's policy does not allow
speculation in derivative instruments for profit or execution of derivative
instrument contracts for which there are no underlying exposures. The Company
does not use financial instruments for trading purposes and is not a party to
any leveraged derivatives. The Company monitors its underlying market risk
exposures on an ongoing basis and believes that it can modify or adapt its
hedging strategies as needed.
The Company is exposed to changes in U.S. dollar LIBOR interest rates
on its floating rate revolving credit facility. At March 31, 2001, the
outstanding balance under this facility was $252,411,000. On a selective basis,
the Company from time to time enters into interest rate swap or cap agreements
to reduce the potential negative impact that increases in interest rates could
have on its outstanding variable rate debt. At March 31, 2001, a fixed rate swap
agreement was in place on $100,000,000 of the Company's revolving credit
facility. The impact of interest rate instruments on the Company's results of
operations was not significant.
14
VISHAY INTERTECHNOLOGY, INC.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
In February and March 2001, several purported class action
complaints were filed in the Court of Chancery in and for New Castle
County, Delaware and the Superior Court of the State of California
against the Company, Siliconix, and the directors of Siliconix in
connection with the Company's announced proposal to purchase all issued
and outstanding shares of Siliconix not already owned by the Company.
The class actions, filed on behalf of all non-Vishay Siliconix
shareholders, allege, among other things, that the Company's proposed
offer is unfair and a breach of fiduciary duty. One of the Delaware
class actions also contains derivative claims against the Company on
behalf of Siliconix alleging self-dealing and waste because the Company
purportedly usurped Siliconix's inventory and patents, appropriated
Siliconix's separate corporate identity, and obtained a below-market
loan from Siliconix. The actions seek injunctive relief, damages and
other relief.
The Company has not yet responded to the complaints in the
Delaware actions. On April 9, 2001, Vishay and those defendants that
have been served moved for a stay of the California actions. That
motion is returnable on June 22, 2001. In management's opinion, the
ultimate resolution of the above-mentioned matter is not expected to
have a material adverse effect on the Company's consolidated financial
condition or results of operations.
Item 2. Changes in Securities
Not applicable
Item 3. Defaults Upon Senior Securities
Not applicable
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable
Item 5. Other Information
Not applicable
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 3.1 - Amended and Restated By-Laws of
Vishay Intertechnology, Inc.
(b) Not applicable
15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VISHAY INTERTECHNOLOGY, INC.
/s/ Richard N. Grubb
-------------------------------------
Richard N. Grubb
Executive Vice President, Treasurer
(Duly Authorized and Chief Financial
Officer)
Date: May 11, 2001
16
EXHIBIT 3.1
AMENDED AND RESTATED
BY-LAWS
OF
VISHAY INTERTECHNOLOGY, INC.
(A Delaware Corporation)
------------------
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of Directors,
if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation certifying the number of shares owned by him in the corporation. If
such certificate is countersigned by a transfer agent other than the corporation
or its employee, or by a registrar other than the corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock and whenever the
corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the Board of
Directors may require the owner of any lost, stolen, or destroyed certificate,
or his legal representative, to give the corporation a bond sufficient to
indemnity the corporation against any claim that may be made against it on
account of the alleged loss, theft, or destruction of any such certificate or
the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be
required to, issue fractions of a share. In lieu thereof it shall either pay in
cash the fair value of fractions of a share, as determined by the Board of
Directors, to those entitled thereto or issue scrip or fractional warrants in
registered or bearer form over the manual or facsimile signature of an officer
of the corporation or of its agent, exchangeable as therein provided for full
shares, but such scrip or fractional warrants shall not entitle the holder to
any rights or a shareholder except as therein provided. Such scrip or fractional
warrants may be issued subject to the condition that the same shall become void
if not exchanged for certificates representing full shares of stock before a
specified date, or subject to the condition that the shares of stock for which
such scrip or fractional warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of such scrip or
fractional warrants, or subject to any other conditions which the Board of
Directors may determine.
3. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to or dissent from any corporate
action in writing without a meeting, or for the purpose of determining
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion, or exchange of stock, or for the purpose of any other
lawful action, the directors may fix, in advance, a date as the record date for
any such determination of stockholders. Such date shall not be more than sixty
days nor less than ten days before the date of such meeting, nor more than sixty
days prior to any other action. If no record date is fixed, the record date for
the determination of stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. When a determination of stockholders of record entitled to
notice or to vote at any meeting of stockholders has been made as provided in
this paragraph, such determination shall apply to any adjournment thereof;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right
to notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat or to
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consent or dissent in writing in lieu of a meeting, as the case may be, the term
"share" or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the certificate of incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the certificate
of incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the certificate
of incorporation, including any Preferred Stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDERS MEETINGS.
- TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the directors, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date and at the time fixed by
the directors.
- PLACE. Annual meetings and special meetings shall be held at
such place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State
of Delaware.
- CALL. Annual meetings and special meetings may be called by
the directors or by any officer instructed by the directors to call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date and hour of the meeting. The notice of
an annual meeting shall state that the meeting is called for the election of
directors and for the transaction of other business which may properly come
before the meeting, and shall (if any other action which could be taken at a
special meeting is to be taken at such annual meeting), state such other action
or actions as are known at the time of such notice. The notice of a special
meeting shall in all instances state the purpose or purposes for which the
meeting is called. If any action is proposed to be taken which would, if taken,
entitle stockholders to receive payment for their shares of stock, the notice
shall include a statement of that purpose and to that effect. Except as
otherwise provided by the General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished for such purpose in writing to the Secretary of the corporation.
Notice by mail shall be deemed to be
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given when deposited, with postage thereon prepaid, in the United States mail.
If a meeting is adjourned to another time, not more than thirty days hence,
and/or to another place, and if an announcement of the adjourned time and/or
place is made at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a new record date
for the adjourned meeting. Notice need not be given to any stockholder who
submits a written waiver of notice by him before or after the time stated
therein. Attendance of a person at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice.
- STOCKHOLDER LIST. There shall be prepared and made, at least
ten days before every meeting of stockholders, a complete list of the
stockholders, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting either at a place within the city or other
municipality or community where the meeting is to be held, which place shall be
specified in the notice of the meting, or if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. The stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this section or the books of the corporation, or to
vote at any meeting of stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting -- the Chairman of the Board, if any, the Vice-Chairman of
the Board, if any, the President, a Vice-President, a chairman for the meeting
chosen by the Board of Directors, or, if none of the foregoing is in office and
present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the Chairman for the meeting shall appoint a secretary of
the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
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- INSPECTORS AND JUDGES. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If an inspector or inspectors or judge or judges are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors or judges. In case any person who may be appointed as an inspector or
judge fails to appear or act, the vacancy may be filled by appointment made by
the directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector or judge, if any, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector or judge at such meeting with strict impartiality and
according to the best of his ability. The inspectors or judges, if any, shall
determine the number of shares of stock represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the results, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the person presiding at the meeting, the inspector or inspectors or judge or
judges, if any, shall make a report in writing of any challenge, question or
matter determined by him or them and execute a certificate of any fact found by
him or them.
- QUORUM. Except as the General Corporation Law or these
By-Laws may otherwise provide, the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The stockholders present may
adjourn the meeting despite the absence of a quorum. When a quorum is once
present to organize a meeting, it is not broken by the subsequent withdrawal of
any shareholders.
- VOTING. Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and of these By-Laws, or, with
respect to the issuance of Preferred Stock, in accordance with the terms of a
resolution or resolutions of the Board of Directors, shall be entitled to one
vote, in person or by proxy, for each share of stock entitled to vote held by
such stockholder. In the election of directors, a plurality of the votes cast
shall elect. Any other action shall be authorized by a majority of the votes
cast except where the Certificate of Incorporation or the General Corporation
Law prescribes a different percentage of votes and/or a different exercise of
voting power. In the election of directors, voting need not be by ballot. Voting
by ballot shall not be required for any other corporate action except as
otherwise provided by the General Corporation Law.
7. STOCKHOLDER ACTION WITHOUT MEETING. Any action required to be
taken, or any action which may be taken, at any annual or special meeting of
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of the outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon where present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
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ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business of the corporation shall
be managed by the Board of Directors of the corporation. The use of the phrase
"whole board" herein refers to the total number of directors which the
corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder,
a citizen of the United States, or a resident of the State of Delaware. The
number of directors constituting the whole board shall be not less than three
nor more than fifteen, except that, where all the shares of stock of the
corporation are owned beneficially and of record by less than three
stockholders, the number of directors may be less than three but not less than
the number of such stockholders. Subject to the foregoing limitation and except
for the first Board of Directors, such number may be fixed from time to time by
action of the stockholders or of the directors, or, if the number is not fixed,
the number shall be three. The number of directors may be increased or decreased
by action of the stockholders or the directors.
3. ELECTION AND TERM. Any director may resign at any time upon
written notice to the corporation. Directors who are elected at an annual
meeting of stockholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filing of any vacancies in the Board of Directors, including
vacancies resulting from the removal of directors for cause or without cause,
any vacancy in the Board of Directors may be filled by the vote of a majority of
the remaining directors then in office, although less than a quorum, or by the
sole remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such times as the Board
shall fix.
- FIRST MEETING. The first meeting of each newly elected Board
may be held immediately after each annual meeting of the stockholders at the
same place at which the meeting is held, and no notice of such meeting shall be
necessary to the meeting, provided a quorum shall be present. In the event such
meeting is not so held immediately after the annual meeting of the stockholders,
it may be held at such time and place as shall be specified in the notice given
as hereinafter provided for special meetings of the Board of Directors, or at
such time and place as shall be fixed by the consent in writing of all of the
Directors.
- PLACE. Meetings, both regular and special, shall be held at
such place within or without the State of Delaware as shall be fixed by the
Board.
- CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the
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Chairman of the Board, if any, the Vice-Chairman of the Board, if any, or the
President, or of a majority of the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. The notice of any meeting need not specify the purpose of the
meeting. Any requirement of furnishing a notice shall be waived by any director
who signs a written waiver of such notice before or after the time stated
therein.
Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided that such majority shall constitute at least one-third (1/3) of the
whole Board. Any director may participate in a meeting of the Board by means of
a conference telephone or similar communications equipment by means of which all
directors participating in the meeting can hear each other, and such
participation in a meeting of the Board shall constitute presence in person at
such meeting. A majority of the directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as otherwise
provided, and except as otherwise provided by the General Corporation Law, the
act of the Board shall be the act by vote of a majority of the directors present
at a meeting, a quorum being present. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions of the General
Corporation Law and these By-Laws which govern a meeting of directors held to
fill vacancies and newly created directorships in the Board.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed
for cause or without cause by the stockholders. One or more of the directors may
be removed for cause by the Board of Directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees of the whole
Board, each committee to consist of two or more of the directors of the
corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise the powers of the Board of
Directors in the management of the business
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and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it. In the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
7. ACTION IN WRITING. Any action required or permitted to be taken
at any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
1. EXECUTIVE OFFICERS. The directors may elect or appoint a Chairman
of the Board of Directors, a President, one or more Vice Presidents (one or more
of whom may be denominated "Executive Vice President" or "Senior Vice
President"), a Secretary, one or more Assistant Secretaries, a Treasurer, one or
more Assistant Treasurers, and such other officers as they may determine. Any
number of offices may be held by the same person.
2. TERM OF OFFICE; REMOVAL. Unless otherwise provided in the
resolution of election or appointment, each officer shall hold office until the
meeting of the Board of Directors following the next meeting of shareholders and
until his successor has been elected and qualified. The Board of Directors may
remove any officer for cause or without cause.
3. AUTHORITY AND DUTIES. All officers, as between themselves and the
corporation, shall have such authority and perform such duties in the management
of the corporation as may be provided in these By-Laws, or, to the extent not so
provided, by the Board of Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors, if present and acting, shall preside at all meetings of the Board
of Directors; otherwise, the President, if present, shall preside, or if the
President does not so preside, any other Director chosen by the Board shall
preside.
5. THE PRESIDENT. The President shall be the chief executive officer
of the corporation.
6. VICE PRESIDENT. Any Vice President that may have been appointed,
in the absence or disability of the President, shall perform the duties and
exercise the powers of the President, in the order of their seniority, and shall
perform such other duties as the Board of Directors shall prescribe.
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7. THE SECRETARY. The Secretary shall keep in safe custody the seal
of the corporation and affix it to any instrument when authorized by the Board
of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors.
8. THE TREASURER. The Treasurer shall have the care and custody of
the corporate funds, and other valuable effects, including securities, and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the corporation and shall deposit all monies and other valuable effects in
the name and to the credit of the corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of
the corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and directors, at the regular
meetings of the Board, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the corporation. If
required by the Board of Directors, the Treasurer shall give the corporation a
bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board 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.
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of Directors
shall prescribe.
The books of the corporation may be kept within or without the State
of Delaware, at such place or places as the Board of Directors may, from time to
time, determine.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BY-LAWS
The power to amend, alter and repeal these By-Laws and to adopt new
By-Laws shall be vested in the Board of Directors; provided, that the Board of
Directors may delegate such power, in whole or in part, to the stockholders; and
provided, further, that any By-Law,
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other than an initial By-Law, which provides for the election of directors by
classes for staggered terms shall be adopted by the stockholders.
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