-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NdQdfJTFSHwqLrKjfAomofxcb8Z2HMR0ncbRdWpiSSemWdH8yZ1mFhzRyEIk/DX4 68uHWEG4M30+4yE/Z6TwlQ== 0000795403-99-000005.txt : 19990517 0000795403-99-000005.hdr.sgml : 19990517 ACCESSION NUMBER: 0000795403-99-000005 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19990331 FILED AS OF DATE: 19990514 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WATTS INDUSTRIES INC CENTRAL INDEX KEY: 0000795403 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS FABRICATED METAL PRODUCTS [3490] IRS NUMBER: 042916536 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-11499 FILM NUMBER: 99623421 BUSINESS ADDRESS: STREET 1: 815 CHESTNUT ST CITY: NORTH ANDOVER STATE: MA ZIP: 01845 BUSINESS PHONE: 9786881811 MAIL ADDRESS: STREET 1: 815 CHESTNUT STREET STREET 2: 815 CHESTNUT STREET CITY: NORTH ANDOVER STATE: MA ZIP: 01845 10-Q 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q [X] Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended March 31, 1999 or [ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from __________ to ____________ Commission file number 0-14787 WATTS INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Delaware 04-2916536 (State of incorporation) (I.R.S. Employer Identification No.) 815 Chestnut Street, North Andover, MA 01845 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (978) 688- 1811 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 Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. Class Outstanding at April 30, 1999 Class A Common, $.10 par value 16,158,807 Class B Common, $.10 par value 10,285,247 WATTS INDUSTRIES, INC. AND SUBSIDIARIES INDEX Part I. Financial Information Page # Item 1. Financial Statements Consolidated Balance Sheets at March 31, 1999 and June 30, 1998 3 Consolidated Statements of Income for the Three Months Ended March 31, 1999 and March 31, 1998 4 Consolidated Statements of Income for the Nine Months Ended March 31, 1999 and March 31, 1998 5 Consolidated Statements of Cash Flows for the Nine Months Ended March 31, 1999 and March 31, 1998 6 Notes to Consolidated Financial Statements 7-12 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 12-17 Part II. Other Information Item 1. Legal Proceedings 17-19 Item 5. Other Information 20 Item 6. Exhibits and Reports on Form 8-K 20 Signatures 21 Exhibit Index 22 Exhibit 3.2 - Amended and Restated By-Laws, as amended 23-41 May 11, 1999 Exhibit 27 - Financial Data Schedule - March 31, 1999 42 Exhibit 27.1 - Restated Financial Data Schedule - March 31, 1998 43 EX-99 2 PART I. FINANCIAL INFORMATION - ------------------------------ ITEM 1. FINANCIAL STATEMENTS ---------------------- WATTS INDUSTRIES, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (Amounts in thousands, except share information) (Unaudited) Mar. 31, June 30, 1998 1998 --------- --------- ASSETS CURRENT ASSETS: Cash and cash equivalents $ 14,293 $ 10,177 Short-term investments 2,718 590 Trade accounts receivable, less allowance for doubtful accounts of $6,942 at March 31, 1999 and $6,821 at June 30, 1998 92,059 77,325 Inventories, net: Raw materials 39,354 34,057 Work in process 3,107 6,128 Finished goods 59,249 64,013 --------- --------- Total Inventories 101,710 104,198 Prepaid expenses and other assets 9,552 7,811 Deferred income taxes 24,454 22,974 Net assets held for sale - 2,046 Net current assets of discontinued operations 113,701 94,217 --------- --------- Total Current Assets 358,487 319,338 --------- --------- PROPERTY, PLANT AND EQUIPMENT: Property, plant and equipment, at cost 230,364 193,458 Accumulated depreciation (111,684) (87,971) --------- --------- Property, plant and equipment, net 118,680 105,487 --------- --------- OTHER ASSETS: Goodwill, net of accumulated amortization of $13,399 at March 31, 1999 and $11,708 at June 30, 1998 103,336 79,837 Other 9,804 9,765 Net noncurrent assets of discontinued operations 48,408 41,864 --------- --------- TOTAL ASSETS $ 638,715 $ 556,291 ========= ========= LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES: Accounts payable $ 36,741 $ 28,327 Accrued expenses and other liabilities 44,596 37,209 Accrued compensation and benefits 12,462 11,150 Income taxes payable 3,512 268 Current portion of long-term debt 9,733 5,011 --------- --------- Total Current Liabilities 107,044 81,965 --------- --------- LONG-TERM DEBT, NET OF CURRENT PORTION 111,814 71,647 DEFERRED INCOME TAXES 16,850 14,220 OTHER NONCURRENT LIABILITIES 7,524 6,798 MINORITY INTEREST 8,035 7,646 STOCKHOLDERS' EQUITY: Preferred Stock, $.10 par value; 5,000,000 shares authorized; no shares issued or outstanding - - Class A Common Stock, $.10 par value; 80,000,000 shares authorized; 1 vote per share; issued and outstanding: 16,568,807 shares at March 31, 1999 and 16,859,027 shares at June 30, 1998 1,657 1,686 Class B Common Stock, $.10 par value; 25,000,000 shares authorized; 10 votes per share; issued and outstanding: 10,285,247 at March 31, 1999 and 10,296,827 shares at June 30, 1998 1,029 1,030 Additional paid-in capital 41,661 47,647 Retained earnings 361,029 337,565 Treasury stock, at cost, 410,000 shares at March 31, 1999 and 100,000 shares at June 30, 1998 (5,723) (2,583) Accumulated other comprehensive income (12,205) (11,330) --------- --------- Total Stockholders' Equity 387,448 374,015 --------- --------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 638,715 $ 556,291 ========= ========= See accompanying notes to consolidated financial statements. 3 WATTS INDUSTRIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Amounts in thousands, except per share information) (Unaudited) Three Months Ended -------------------- Mar. 31, Mar. 31, 1999 1998 --------- --------- Net sales $ 116,972 $ 108,166 Cost of goods sold 75,084 69,138 --------- --------- GROSS PROFIT 41,888 39,028 Selling, general & administrative expenses 30,035 27,297 --------- --------- OPERATING INCOME 11,853 11,731 --------- --------- Other (income) expense: Interest income (169) (540) Interest expense 1,409 1,544 Other, net 180 (296) --------- --------- 1,420 708 --------- --------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES 10,433 11,023 Provision for income taxes 3,528 3,764 --------- --------- INCOME FROM CONTINUING OPERATIONS 6,905 7,259 Income from discontinued operations, net of taxes - 6,782 --------- --------- NET INCOME $ 6,905 $ 14,041 ========= ========= Basic earnings per share : Continuing operations $ .26 $ .27 Discontinued operations - .25 --------- --------- NET INCOME $ .26 $ .52 ========= ========= Weighted average number of shares (thousands) 26,649 27,163 ========= ========= Diluted earnings per share : Continuing operations $ .26 $ .26 Discontinued operations - .25 --------- --------- NET INCOME $ .26 $ .51 ========= ========= Weighted average number of shares (thousands) 26,671 27,587 ========= ========= Dividends per common share $ .0875 $ .0875 ========= ========= See accompanying notes to consolidated financial statements. 4 WATTS INDUSTRIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Amounts in thousands, except per share information) (Unaudited) Nine Months Ended -------------------- Mar. 31, Mar. 31, 1999 1998 --------- --------- Net sales $ 344,551 $ 331,849 Cost of goods sold 220,744 211,162 --------- --------- GROSS PROFIT 123,807 120,687 Selling, general & administrative expenses 86,833 82,837 --------- --------- OPERATING INCOME 36,974 37,850 --------- --------- Other (income) expense: Interest income (582) (940) Interest expense 4,082 4,818 Other, net 614 831 --------- --------- 4,114 4,709 --------- --------- INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES 32,860 33,141 Provision for income taxes 10,730 10,943 --------- --------- INCOME FROM CONTINUING OPERATIONS 22,130 22,198 Income from discontinued operations, net of taxes 8,419 19,072 --------- --------- NET INCOME $ 30,549 $ 41,270 ========= ========= Basic earnings per share : Continuing operations $ .82 $ .82 Discontinued operations .32 .70 --------- --------- NET INCOME $ 1.14 $ 1.52 ========= ========= Weighted average number of shares (thousands) 26,840 27,082 ========= ========= Diluted earnings per share : Continuing operations $ .82 $ .81 Discontinued operations .31 .70 --------- --------- NET INCOME $ 1.13 $ 1.51 ========= ========= Weighted average number of shares (thousands) 26,913 27,420 ========= ========= Dividends per common share $ .2625 $ .2425 ========= ========= See accompanying notes to consolidated financial statements. 5 WATTS INDUSTRIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (Amounts in thousands) (Unaudited) Nine Months Ended -------------------- Mar. 31, Mar. 31, 1999 1998 --------- --------- OPERATING ACTIVITIES Net income from continuing operations $ 22,130 $ 22,198 Adjustments to reconcile net income from continuing operations to net cash provided by continuing operating activities: Depreciation 10,731 9,680 Amortization 2,003 1,823 Deferred income taxes (77) 384 Gain on disposal of assets (17) (1,179) Equity in undistributed earnings of affiliates (125) (77) Changes in operating assets and liabilities, net of effects from acquisitions and dispositions: Accounts receivable (1,250) (6,270) Inventories 9,899 (5,798) Prepaid expenses and other assets (1,151) (2,766) Accounts payable, accrued expenses and other liabilities 8,812 (904) --------- --------- Net cash provided by continuing operations 50,955 17,091 Net cash provided by discontinued operations 6,535 14,278 --------- --------- Net cash provided by operating activities 57,490 31,369 --------- --------- INVESTING ACTIVITIES Additions to property, plant and equipment (13,670) (16,713) Proceeds from sale of assets 2,119 7,227 Business acquisitions, net of cash acquired (28,975) (790) Increase in other assets (693) (566) Net changes in short-term investments (1,621) 261 Discontinued operations: Business acquisitions, net of cash acquired (68,625) (26,846) --------- --------- Net cash used in investing activities (111,465) (37,427) --------- --------- FINANCING ACTIVITIES Proceeds from long-term borrowings 56,936 52,051 Payments of long-term debt (25,249) (59,027) Proceeds from exercise of stock options 61 2,699 Dividends (7,027) (6,569) Purchase of treasury stock (9,415) - Discontinued operations: Proceeds from long-term borrowings 68,977 24,549 Payments of long-term debt (24,800) (12,364) --------- --------- Net cash provided by financing activities 59,483 1,339 --------- --------- Effect of exchange rate changes on cash and cash equivalents (1,392) (122) --------- --------- CHANGE IN CASH AND CASH EQUIVALENTS 4,116 (4,841) Cash and cash equivalents at beginning of period 10,177 18,139 --------- --------- CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 14,293 $ 13,298 ========= ========= See accompanying notes to consolidated financial statements. 6 EX-99 3 WATTS INDUSTRIES, INC. AND SUBSIDIARIES Notes to Consolidated Financial Statements (Unaudited) 1. In the opinion of management, the accompanying unaudited, consolidated financial statements contain all necessary adjustments, consisting only of adjustments of a normal recurring nature, to present fairly Watts Industries, Inc.'s Consolidated Balance Sheet as of March 31, 1999, its Consolidated Statements of Income for the three and nine months ended March 31, 1999 and 1998, and its Consolidated Statements of Cash Flows for the nine months ended March 31, 1999 and 1998. The balance sheet at June 30, 1998 has been derived from the audited financial statements at that date. Certain amounts have been reclassified to conform with the fiscal 1999 presentation. The accounting policies followed by the Company are described in the June 30, 1998 financial statements which are contained in the Company's 1998 Annual Report. It is suggested that these financial statements be read in conjunction with the financial statements and notes included in the 1998 Annual Report to Stockholders. 2. On December 15, 1998 the Company announced that it plans to separate its industrial, oil and gas business from its plumbing and heating and water quality business. To accomplish this separation, the Company will continue its existing plumbing and heating and water quality business and will transfer the industrial, oil and gas business to a new subsidiary. The Company will then spin off the new subsidiary to the Watts' stockholders in the form of a pro- rata stock dividend. Completion of the spin-off will be subject to certain conditions, including receipt from the Internal Revenue Service of a Private Letter Ruling ("PLR") as to the tax-free treatment of the spin-off, necessary governmental approvals, and any required consents of third parties. Subject to such conditions, the spin-off will be completed following receipt of the PLR, which the Company currently expects to receive in the third calendar quarter of 1999. Accordingly, the Company is treating its industrial, oil and gas business as a discontinued operation. The following table summarizes the results of operations of the industrial, oil and gas group: Three Months Ended March 31 1999 1998 Sales, Net $78,893 $75,449 Costs and Expenses 76,106 64,908 Income Before Income Taxes 2,787 10,541 Income Taxes 2,787 3,759 Income from Discontinued Operations $ - $ 6,782 Nine Months Ended March 31, 1999 1998 Sales, Net $244,296 $210,424 Costs and Expenses 227,214 180,479 Income Before Income Taxes 17,082 29,945 Income Taxes 8,663 10,873 Income from Discontinued Operations $ 8,419 $ 19,072 Net assets of the industrial, oil, and gas group reported in the accompanying consolidated balance sheets consist of the following: March 31, June 30, 1999 1998 Accounts Receivable $ 54,160 $ 53,565 Inventories 105,445 89,788 Other Current Assets 13,821 9,482 Accounts Payable (20,050) (28,345) Other Current Liabilities (39,675) (30,273) Net Current Assets $113,701 $ 94,217 Property, Plant and Equipment $68,315 $55,982 Goodwill 101,027 39,173 Other Noncurrent Assets 7,132 3,912 Long-Term Debt, Net of Current Portion (108,713) (43,735) Other Noncurrent Liabilities (19,353) (13,468) Net Noncurrent Assets $ 48,408 $ 41,864 The Company presently expects to incur approximately $5,200,000 of direct costs on an after-tax basis from the spin-off transaction and has accrued such a liability at December 31, 1998. As required by APB Opinion No. 30, the Company has also accrued the amount of future operating income from its industrial, oil and gas business necessary to fully offset these costs. The accrual of future income is required because the Company expects income from this business during the period between January 1, 1999 and completion of the spin-off will exceed the direct costs of the spin-off transaction. Excluding the costs of this transaction, net earnings from discontinued operations would have been $3,282,000 for the three months ended March 31, 1999 and $11,701,000 for the nine months ended March 31, 1999. 3. The following tables set forth the reconciliation of the calculation of earnings per share per SFAS 128: For the Three Months Ended March 31, 1999 Income Shares Per Share (Numerator) (Denominator) Amount Basic EPS Income from Continuing Operations $ 6,905,000 26,648,827 $ .26 Income from Discontinued Operations - - Net Income $ 6,905,000 $ .26 Effect of Dilutive Securities Common Stock Equivalents - 22,160 Diluted EPS $ 6,905,000 26,670,987 $ .26 For the Nine Months Ended March 31, 1999 Income Shares Per Share (Numerator) (Denominator) Amount Basic EPS Income from Continuing Operations $22,130,000 26,839,769 $ .82 Income from Discontinued Operations 8,419,000 .32 Net Income $30,549,000 $ 1.14 Effect of Dilutive Securities Common Stock Equivalents - 73,010 Diluted EPS $30,549,000 26,912,779 $ 1.13 Options to purchase 1,581,553 shares and 1,125,153 shares of common stock at prices ranging from $18.00 to $25.38 were outstanding during the three-month and nine-month periods ended March 31, 1999, respectively. These options were not included in the related computations of diluted EPS since the exercise price of the options was greater than the average market price of the common shares during those respective periods. For the Three Months Ended March 31, 1998 Income Shares Per Share (Numerator) (Denominator) Amount Basic EPS Income from Continuing Operations $ 7,259,000 27,162,904 $ .27 Income from Discontinued Operations 6,782,000 .25 Net Income $14,041,000 $ .52 Effect of Dilutive Securities Common Stock Equivalents - 424,539 Diluted EPS $14,041,000 27,587,443 $ .51 For the Nine Months Ended March 31, 1998 Income Shares Per Share (Numerator) (Denominator) Amount Basic EPS Income from Continuing Operations $22,198,000 27,082,038 $ .82 Income from Discontinued Operations 19,072,000 .70 Net Income $41,270,000 $ 1.52 Effect of Dilutive Securities Common Stock Equivalents - 337,762 Diluted EPS $41,270,000 27,419,800 $ 1.51 At March 31, 1998, there were no outstanding options to purchase shares of common stock with exercise prices greater than the average market price of the common shares during the three and nine month periods then ended. 4. During December 1997, the Company sold a small Italian valve manufacturing division which was not part of the Company's core business. The division's sales for the six-month period ended December 31, 1997 was $3,386,000. 5. The Company uses foreign currency forward exchange contracts to reduce the impact of currency fluctuations on certain anticipated purchase transactions that are expected to occur within the fiscal year and other known currency exposures. The notional amount of such contracts and the related realized and unrealized gains and losses as of March 31, 1999 are not material. 6. Effective July 1, 1998, the Company was required to adopt Statement of Financial Accounting Standards ("SFAS") No. 130, Reporting Comprehensive Income. This statement establishes standards for reporting and presentation of comprehensive income and its components in financial statements. Accumulated other comprehensive income in the consolidated balance sheets as of March 31, 1999 and June 30, 1998 consists of cumulative translation adjustments. The Company's total comprehensive income was as follows: Three Months Ended March 31, 1999 1998 Income from Continuing Operations $6,905 $ 7,259 Income from Discontinued Operations - 6,782 Foreign Currency Translation Adjustments (4,389) (1,601) Total Comprehensive Income $2,516 $12,440 Nine Months Ended March 31, 1999 1998 Income from Continuing Operations $ 22,130 $ 22,198 Income from Discontinued Operations 8,419 19,072 Foreign Currency Translation Adjustments ( 875) ( 3,691) Total Comprehensive Income $ 29,674 $ 37,579 7. On March 9, 1999 a wholly owned subsidiary of the Company acquired Cazzaniga S.p.A. located in Biassono, Italy near Milan. Cazzaniga, whose last twelve (12) months sales were approximately $35 million, is an integrated manufacturer of plumbing and heating products including water distribution manifolds, zone valves, radiator air purge valves, and their principle line of thermostatic radiator valves. The manufacturing plant features a yellow brass forging foundry, high speed chucking machines with robotics, German automatic screw machines, and extensive automated assembly contained within a 236,000 square foot facility. 8. Contingencies and Environmental Remediation Contingencies In April 1998, the Company became aware of a complaint that was filed under seal in the State of California alleging violations of the California False Claims Act. The complaint alleges that a former subsidiary of the Company sold products utilized in municipal water systems which failed to meet contractually specified standards and falsely certified that such standards had been met. The complaint further alleges that the municipal entities have suffered tens of millions of dollars in damages as a result of defective products and seeks treble damages, reimbursement of legal costs and penalties. The complaint was amended on November 4, 1998 to include additional municipal entities, consisting of the East Bay Municipal Utility District, the San Gabriel Valley Municipal Water District, and 31 cities in the State of California. The amended complaint alleges that the additional municipal entities have also suffered damages and also seeks treble damages, legal costs, attorneys' fees and civil penalties. On December 9, 1998, the Los Angeles Department of Water and Power ("LADWP") filed a Complaint in Intervention which incorporated the amended complaint and added claims for breach of contract, fraud and deceit-negligent misrepresentation and unjust enrichment. On April 20, 1999, the Company and other defendants filed answers to the First Amended Complaint and the Complaint-in- Intervention. The East Bay Municipal Utility District and the City of Long Beach have elected not to intervene in this action, and, to date, no other entity has indicated that it intends to intervene in this case. The Company intends to vigorously contest this matter but cannot presently determine whether any loss will result from it. Other lawsuits and proceedings or claims, arising from the ordinary course of operations, are also pending or threatened against the Company and its subsidiaries. With respect to these other litigation matters, the Company has established reserves which it presently believes are adequate in light of probable and estimable exposure to pending and threatened litigation of which it has knowledge. Also see Part II, Item 1. Environmental Remediation The Company has been named a potentially responsible party with respect to identified contaminated sites. The level of contamination varies significantly from site to site as do the related levels of remediation efforts. Environmental liabilities are recorded based on the most probable cost, if known, or on the estimated minimum cost of remediation. The Company's accrued estimated environmental liabilities are based on assumptions which are subject to a number of factors and uncertainties. Circumstances which can affect the reliability and precision of these estimates include identification of additional sites, environmental regulations, level of cleanup required, technologies available, number and financial condition of other contributors to remediation and the time period over which remediation may occur. The Company recognizes changes in estimates as new remediation requirements are defined or as new information becomes available. The Company estimates that its accrued environmental remediation liabilities will likely be paid over the next five to ten years. Also see Part II, Item 1. Item 2. WATTS INDUSTRIES, INC. AND SUBSIDIARIES Management's Discussion and Analysis of Financial Condition and Results of Operations On December 15, 1998 the company announced its plan to spin off its industrial, oil and gas business through a pro-rata stock dividend. Accordingly, the Company is now required to treat this industrial, oil and gas business as a discontinued operation for accounting purposes. Please see Note 2 to the Notes to the Consolidated Financial Statements for a discussion of the spin-off. Results of Operations Three Months Ended March 31, 1999 Compared to Three Months Ended March 31, 1998 Net sales for continuing operations increased $8,806,000 (8.1%) to $116,972,000. This increase in net sales is primarily attributable to increased unit shipments of domestic plumbing and heating valves and the inclusion of the sales of Cazzaniga which was acquired March 9, 1999. Excluding Cazzaniga, shipments of European plumbing and heating valves were consistent with last year. Gross profit increased $2,860,000 (7.3%), but decreased as a percentage of net sales from 36.1 percent to 35.8 percent. This percentage reduction is primarily attributable to reduced gross margins for European plumbing and heating valves associated with increased unit price competition in the European market. Selling, general and administrative expenses increased $2,738,000 (10%) to $30,035,000. This increase is primarily attributable to inclusion of the selling general and administrative expenses of Cazzaniga, increased variable selling expenses including commissions and freight, increased advertising expense, and increased cost associated with the Company's new information systems. Other income and expense decreased from $296,000 of income in fiscal 1998 to $180,000 of expense in fiscal 1999 primarily due to decreased foreign exchange income. Net income from continuing operations decreased $354,000 (4.9%) to $6,905,000. Income from discontinued operations net of taxes decreased $6,782,000. The Company has recognized $3,282,000 in the current quarter of the estimated $5,200,000 net after-tax costs to execute the spin-off transaction. These costs include taxes, certain relocation costs, and professional fees. Excluding the cost of this transaction, net earnings would have declined $3,500,000 and diluted earnings per share would have decreased from 25 cents to 12 cents. Total sales from discontinued operations increased $3,444,000 (4.6%) to $78,893,000. The increase is entirely due to the inclusion of sales from acquired companies. Domestic oil and gas valves experienced a decline of 33 percent in net sales. The competition for the remaining business caused abnormally low pricing realization and the reduced manufacturing levels caused a loss of overhead absorption of fixed expenses. Sales of international oil and gas valves decreased 43 percent, as new project awards have significantly slowed due to market conditions. Please see Note 2 of the Notes to the Consolidated Financial Statements for a discussion of the Company's intention to spin-off its industrial, oil and gas business. The changes in foreign exchange rates had an immaterial affect on net income for the quarter-to-date ended March 31, 1999. Results of Operations Nine Months Ended March 31, 1999 Compared to Nine Months Ended March 31, 1998 Net sales increased $12,702,000 (3.8%) to $344,551,000. This increase is primarily attributable to increased unit shipments of domestic plumbing and heating valves and the inclusion of the sales of Cazzaniga acquired March 9, 1999. Excluding Cazzaniga, sales of European plumbing and heating valves were consistent with last year. Last year's sales included approximately $3,400,000 for product lines which the Company subsequently divested. The change in foreign exchange rate had an immaterial effect on the year-to- date sales. Gross profit increased $3,120,000 (2.6%) to $123,807,000 but decreased as a percentage of net sales from 36.4% to 35.9%. This decrease is primarily attributable to decreased absorption of fixed manufacturing expenses due to the Company's domestic inventory reduction program. This decrease was partially offset by reduced material costs. The Company experienced an inventory increase in the previous fiscal year. Selling, general and administrative expenses increased $3,996,000 (4.8%) to $86,833,000. This increase is primarily attributable to the inclusion of the expenses of Cazzaniga, increased variable selling expenses, increased costs associated with the company's new information technology systems, and increased advertising expenses. Interest expense decreased $736,000 (15.3%) to $4,082,000. This decrease is primarily due to decreased levels of long term debt. Net income from continuing operations decreased $68,000 (0.3%) to $22,130,000. Income from discontinued operations net of taxes decreased $10,653,000 (55.9%) to $8,419,000. The company has recognized $3,282,000 of its cost in the current quarter to execute the spin- off transaction. These costs include taxes, certain relocation costs, and professional fees. Excluding the cost of this transaction, net earnings from discontinued operations decreased from $19,072,000 to $11,701,000 and diluted earnings per share decreased from 70 cents to 44 cents. This decrease is primarily attributable to decreased sales and decreased unit pricing in the company's oil and gas subsidiaries. Total sales from discontinued operations increased $33,872,000 (16.1%). The increase is entirely due to the inclusion of sales from acquired companies. The subsidiaries were adversely impacted by low energy prices which significantly decreased demand for the company's oil and gas products. Domestic oil and gas valves experienced a decline of 33 percent. The competition for the remaining business caused abnormally low pricing realization and the reduced manufacturing levels caused a loss of overhead absorption of fixed expenses. The changes in foreign exchange rates had an immaterial affect on net income for the period ended March 31, 1999. Liquidity and Capital Resources During the nine-month period ended March 31, 1999, the Company generated $50,955,000 in cash flow, from continuing operations, which was principally used to fund the Company's acquisition program and purchase capital equipment, as well as purchase the Company's stock on the open market. These capital expenditures were primarily for manufacturing machinery and equipment as part of the Company's commitment to continuously improve its manufacturing capabilities. The Company's capital expenditure budget for continuing operations for fiscal 1999 is approximately $21,000,000. During the nine months ended March 31, 1999, the Company purchased 615,500 shares of its Class A Common Stock in open market purchases, as part of its previously announced stock buy-back program. Total funds used to purchase these shares were $9,415,000. Under the current board authorization, the Company can purchase an additional 384,500 shares of common stock under its stock repurchase program. On March 9, 1999, a wholly owned subsidiary of the Company acquired the stock of Cazzaniga S.p.A. Cazzaniga, whose last twelve (12) months sales were approximately $35 million, is an integrated manufacturer of plumbing and heating products including water distribution manifolds, zone valves, radiator air purge valves, and their principle line of thermostatic radiator valves. The manufacturing plant features a yellow brass forging foundry, high speed chucking machines with robotics, German automatic screw machines, and extensive automated assembly contained within a 236,000 square foot facility. During the quarter ended March 31, 1999, the Company entered into a syndicated credit facility with a group of European banks in the amount of 40 million Euros. This credit facility has several tranches which provide credit to the Company for a period up to five (5) years. The purpose of this credit facility is to fund acquisitions in Europe, support the working capital requirements of acquired companies, and for general corporate purposes. As of March 31, 1999 23,000,000 Euro's was borrowed under this line of credit. The Company has available an unsecured $125,000,000 line of credit which expires on March 27, 2003. The Company's intent is to utilize this credit facility to support the Company's acquisition program, working capital requirements of acquired companies and for general corporate purposes. As of June 30, 1998, $19,000,000 was borrowed under this line of credit. As of March 31, 1999, $79,000,000 was borrowed under this line of credit. The change in the outstanding borrowing is primarily attributable to the Company's acquisition program. The ratio of current assets to current liabilities was 3.3 to 1 at March 31, 1999 and 3.9 to 1 at June 30, 1998. Cash and short- term investments were $17,011,000 at March 31, 1999 compared to $10,767,000 at June 30, 1998. Debt as a percentage of total capital employed was 23.9% at March 31, 1999 compared to 17.0% at June 30, 1998. At March 31, 1999, the Company was in compliance with all covenants related to its existing debt. The Company anticipates that available funds and those funds provided from current operations will be sufficient to meet current operating requirements and anticipated capital expenditures for at least the next 24 months. The Company from time to time is involved with product liability, environmental proceedings and other litigation proceedings and incurs costs on an ongoing basis related to these matters. The Company has not incurred material expenditures in fiscal 1999 in connection with any of these matters. See Part II, Item 1, Legal Proceedings. The Company has developed a comprehensive global plan to assess and address in a timely manner its information systems including customer service, production, distribution and financial systems in conjunction with the year 2000. A significant portion of the Company's year 2000 issues are being addressed as part of its program to upgrade its information systems which the Company had committed to regardless of the year 2000 issue. This program commenced in fiscal 1997 and should be substantially complete by the end of fiscal 1999. The Company has spent approximately $9,000,000 on computer hardware and software for this information systems upgrade program and expects to spend approximately $1,000,000 on additional similar costs to complete the upgrade. If it becomes necessary to dedicate additional financial and other resources to complete the Company's information systems upgrade program by the end of fiscal year 1999, or shortly thereafter, the Company will do so. The Company is also communicating with its suppliers, distributors and others with whom it conducts business to coordinate year 2000 compliance and to identify alternative sources of supply for its materials. The implementation of these plans is not expected to have a material adverse effect on the results of operations or the financial condition of the Company. The Company presently believes alternative sources of supply will be available in the event of unforeseen year 2000 compliance issues that affect suppliers' abilities to fulfill requirements. If production and other plans need to be modified because of unforeseen year 2000 issues at distributors and others with whom the Company conducts business, the Company will do so when the need for such modification becomes apparent. If the Company or its suppliers, distributors or others with whom it conducts business are unable to identify and address the system issues related to year 2000 risk on a timely basis, there could be a material adverse effect on its results of operations and financial condition. The Company will continue to update its disclosures regarding Year 2000 Compliance issues in all future filings. On January 1, 1999, 11 of the 15 member countries of the European Union adopted the Euro as their common legal currency and established fixed conversion rates between their existing sovereign currencies and the Euro. The Euro trades on currency exchanges and is available for non-cash transactions. The introduction of the Euro will affect the Company as the Company has manufacturing and distribution facilities in several of the member countries and trades extensively across Europe. The long-term competitive implications of the conversion are currently being assessed by the Company, however, the Company will experience an immediate reduction in the risks associated with foreign exchange. At this time, the Company is not anticipating that any significant costs will be incurred due to the introduction and conversion to the Euro. The Company uses foreign currency forward exchange contracts to reduce the impact of currency fluctuations on certain intercompany purchase transactions that will occur within the fiscal year and other known foreign currency exposures. The notional amount of such contracts and the related realized and unrealized gains and losses as of March 31, 1999 are not material. Certain statements contained herein are forward looking. Many factors could cause actual results to differ from these statements, including loss of market share through competition; introduction of competing products by other companies; pressure on prices from competitors, suppliers, and/or customers; regulatory obstacles; lack of acceptance of new products; changes in the plumbing and heating and oil and gas markets; changes in global demand for the Company's products; changes in distribution of the Company's products; interest rates; foreign exchange fluctuations; cyclicality of industries in which the Company markets certain of its products and general and economic factors in markets where the Company's products are sold, manufactured or marketed; and other factors discussed in the Company's reports filed with the Securities and Exchange Commission. Statement of Financial Accounting Standards ("SFAS") No. 131, Disclosures about Segments of an Enterprise and Related Information, and SFAS No. 132, Employers Disclosures About Pensions and Other Post-Retirement Benefits, become effective during fiscal year 1999 and will be adopted accordingly. Since these new standards require only additional disclosure, adoption will have no effect on the Company's results of operation or financial condition. SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities, becomes effective in fiscal year 2000. This new standard will require the Company to recognize all derivative instruments as either assets or liabilities at fair value in its consolidated balance sheet. The Company is currently evaluating the effect of this new standard. Part II. Other Information Item 1. Legal Proceedings The Company, like other worldwide manufacturing companies, is subject to a variety of potential liabilities connected with its business operations, including potential liabilities and expenses associated with possible product defects or failures and compliance with environmental laws and other litigation matters. James Jones Litigation On June 25, 1997, Nora Armenta, as a relator for the State of California, filed a civil action in the Superior Court of California for the County of Los Angeles against the Company and three other defendants. The complaint, which was filed under seal, was brought pursuant to the qui tam provision of the California False Claims Act, Cal. Govt. Code S. 12650 et seq ("False Claims Act"). The Company became aware of the complaint in April 1998, after the seal was lifted. The relator is a former employee of a former subsidiary of the Company. The complaint alleged that a former subsidiary of the Company sold products utilized in municipal water systems which failed to meet contractually specified standards and falsely certified that such standards had been met. The only municipal water system specifically identified in the original complaint was the Los Angeles Department of Water and Power ("LADWP"). The relator alleged that municipal entities have suffered tens of millions of dollars in damages as a result of their purchase of these products. The relator also sought treble damages, legal costs, attorneys' fees, and civil penalties. In May 1998, the Company and the other defendants filed a demurrer to the complaint. On July 21, 1998, the Court sustained the demurrer and gave the relator forty five (45) days to file an amended complaint. This deadline was subsequently extended to November 4, 1998. On November 4, 1998, the relator filed an amended complaint ("First Amended Complaint") under the False Claims Act. In the First Amended Complaint, the relator brought her action on behalf of the LADWP as well as additional municipal entities, consisting of the East Bay Municipal Utility District, the San Gabriel Valley Municipal Water District, and 31 cities in the State of California. The relator alleges that the Company's former subsidiary sold products which did not meet contractually specified standards used by each of these entities in their water systems and falsely certified such standards had been met. In addition to the damages alleged to have been suffered by the LADWP, the relator claims that the additional municipal entities have also suffered damages as a result of their purchase of these products. The relator also seeks treble damages, legal costs, attorneys' fees, and civil penalties under the False Claims Act. On December 9, 1998, the LADWP filed a Complaint-in- Intervention which incorporated the relator's First Amended Complaint and added claims for breach of contract, fraud and deceit--negligent misrepresentation and unjust enrichment. The Complaint-in-Intervention seeks past and future reimbursement costs, punitive damages, contract difference in value damages, treble damages and civil penalties under the False Claims Act and costs of suit. On April 20, 1999, the Company and other defendants filed answers to the First Amended Complaint and the Complaint-in- Intervention. The East Bay Municipal Utility District and the City of Long Beach have elected not to intervene in this action, and, to date, no other entity has indicated that it intends to intervene in this case. The Company intends to contest this matter vigorously, and discovery is currently under way. Presently, the Company cannot determine whether any loss will result from this action. See Note 8 of the Notes to the Consolidated Financial Statements. Product Liability Leslie Controls, Inc. and Spence Engineering Company, both subsidiaries of the Company, are involved as third-party defendants in various civil product liability actions pending in the U.S. District Court, Northern District of Ohio. The underlying claims have been filed by present or former employees of various shipping companies for personal injuries allegedly received as a result of exposure to asbestos. The shipping companies contend that they installed in their vessels certain valves manufactured by Leslie Controls and/or Spence Engineering which contained asbestos. Leslie Controls is also a defendant in two similar matters pending in Superior Court of California, San Francisco County. The Company maintains product liability and other insurance coverage which it believes to be generally in accordance with industry practices. Nonetheless, such insurance coverage may not be adequate to protect the Company fully against substantial damage claims which may arise from product defects and failures. Coverage with respect to these matters has been disputed by certain of the carriers and, therefore, recovery is questionable, a factor which the Company has considered in its evaluation of these matters. Based on facts presently known to it, the Company does not believe the outcome of these proceedings will have a material adverse effect on its financial condition or results of operations. Environmental Certain of the Company's operations generate solid and hazardous wastes, which are disposed of elsewhere by arrangement with the owners or operators of disposal sites or with transporters of such waste. The Company's foundry and other operations are subject to various federal, state and local laws and regulations relating to environmental quality. Compliance with these laws and regulations requires the Company to incur expenses and monitor its operations on an ongoing basis. The Company cannot predict the effect of future requirements on its capital expenditures, earnings or competitive position due to any changes in federal, state or local environmental laws, regulations or ordinances. The Company is currently a party to or otherwise involved with various administrative or legal proceedings under federal, state or local environmental laws or regulations involving a number of sites, in some cases as a participant in a group of potentially responsible parties ("PRPs"). Three of these sites, the Sharkey and Combe Landfills in New Jersey, and the San Gabriel Valley/El Monte, California water basin site, are listed on the National Priorities List. With respect to the Sharkey Landfill, the Company has been allocated .75% of the remediation costs, an amount which is not material to the Company. No allocations have been made to date with respect to the Combe Landfill or San Gabriel Valley sites. The EPA has formally notified several entities that they have been identified as being potentially responsible parties with respect to the San Gabriel Valley site. As the Company was not included in this group, its potential involvement in this matter is uncertain at this point given that either the PRPs named to date or the EPA could seek to expand the list of potentially responsible parties. In addition to the foregoing, the Solvent Recovery Service of New England site and the Old Southington landfill site, both in Connecticut, are on the National Priorities List, but, with respect thereto, the Company has resort to indemnification from third parties and based on currently available information, the Company believes it will be entitled to participate in a de minimis capacity. With respect to the Combe Landfill, the Company is one of approximately 30 potentially responsible parties. The Company and all other PRPs received a Supplemental Directive from the New Jersey Department of Environmental Protection & Energy in 1994 seeking to recover approximately $9 million in the aggregate for the operation, maintenance, and monitoring of the implemented remedial action taken up to that time in connection with the Combe Landfill North site. Certain of the PRPs, including the Company, are currently negotiating with the state. The Company and certain of the remaining PRPs have recently entered into a Consent Order with the U.S. Environmental Protection Agency to settle the federal exposure for this site in return for a non-material payment. During the quarter ending March 31, 1998, the Company received an administrative order from the New Hampshire Department of Environmental Services (the "NH DES") with respect to certain regulatory issues concerning its Franklin, New Hampshire operation. The Company has recently entered into an amended administrative order with the NH DES and has withdrawn its appeal of this matter. The state agency has not as of yet issued any fines or penalties in connection with this matter. Based on facts presently known to it, the Company does not believe that the outcome of these environmental proceedings will have a material adverse effect on its financial condition or results of operations. Given the nature and scope of the Company's manufacturing operations, there can be no assurance that the Company will not become subject to other environmental proceedings and liabilities in the future which may be material to the Company. See Note 8 of the Notes to the Consolidated Financial Statements. Other Litigation Other lawsuits and proceedings or claims, arising from the ordinary course of operations, are also pending or threatened against the Company and its subsidiaries. Based on the facts currently known to it, the Company does not believe that the ultimate outcome of these other litigation matters will have a material adverse effect on its financial condition or results of operation. See Note 8 of the Notes to the Consolidated Financial Statements. Item 5. Other Information On May 11, 1999 the Company's Board of Directors voted to amend the Company's By-Laws to change the Company's fiscal year from June 30 of each year to December 31 of each year. The Company will file a report on Form 10-K covering the transition period of July 1, 1999 to December 31, 1999. Item 6. Exhibits and Reports on Form 8-K (a) The exhibits are furnished elsewhere in this report. (b) There were no reports filed on Form 8-K during the quarter ended March 31, 1999. 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. WATTS INDUSTRIES, INC. Date: May 12, 1999 By: /s/ Timothy P. Horne Timothy P. Horne Chairman and Chief Executive Officer Date: May 12, 1999 By: /s/ Kenneth J. McAvoy Kenneth J. McAvoy Chief Financial Officer and Treasurer EXHIBIT INDEX Listed and indexed below are all Exhibits filed as part of this report. Exhibit No. Description 3.1 Restated Certificate of Incorporation, as amended. (1) 3.2 Amended and Restated By-Laws, as amended May 11, 1999* 11 Computation of Earnings per Share (2) 27 Financial Data Schedule - March 31, 1999* 27.1 Restated Financial Data Schedule - March 31, 1998* (1) Incorporated by reference to the relevant exhibit to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on September 28, 1995. (2) Incorporated by reference to the Notes to Consolidated Financial Statements, Note 3, of this Report. *Filed herewith. EX-3.2 4 BY-LAWS of WATTS INDUSTRIES, INC. Amended and Restated as of April 21, 1992, amended May 11, 1999 ARTICLE I Stockholders Section 1. Annual Meeting. The annual meeting of stockholders shall be held at the hour, date and place within or without the United States which is fixed by the Board of Directors or the Chairman of the Board, which hour, date and place may subsequently be changed at any time by vote of the Board of Directors. If no annual meeting has been held for a period of thirteen months after the Corporation's last annual meeting of stockholders, a special meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these By-laws or otherwise, all the force and effect of an annual meeting. Any and all references hereafter in these By-laws to an annual meeting or annual meetings also shall be deemed to refer to any special meeting(s) in lieu thereof. Section 2. Matters to be Considered at Annual Meeting. At an annual meeting of stockholders, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before the annual meeting (a) by, or at the direction of, the Board of Directors or a designated committee thereof or (b) by any holder of record (both as of the time notice of such proposal is given by the stockholder as set forth below and as of the record date for the annual meeting in question) of any shares of capital stock of the Corporation entitled to vote at such annual meeting who complies with the procedures set forth in this Section 2 (or, with respect to nominations of candidates for election as Directors, as set forth in Section 3 of Article II hereof). In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a holder of record of any shares of capital stock entitled to vote at such annual meeting, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation as set forth in this Section 2 and such stockholder or his representative must be present at the annual meeting. To be timely, a stockholder's notice must be delivered to, or mailed to and received at, the principal executive offices of the Corporation (a) not less than 75 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders (the "Anniversary Date") or (b) in the event that the annual meeting of stockholders is called for a date more than 10 days prior to the Anniversary Date, not later than the close of business on (i) the 20th day (or if that day is not a business day of the Corporation, on the next succeeding business day) following the first date on which the date of such meeting was publicly disclosed or (ii) if such date of public disclosure occurs more than 75 days prior to such scheduled date of such meeting, then the later of (1) the 20th day (or if that day is not a business day for the Corporation, on the next succeeding business day) following the first date of public disclosure or (2) the 75th day prior to such scheduled date of such meeting (or if that day is not a business day for the Corporation, on the next succeeding business day). Any public disclosure of the scheduled date of the meeting made by the Corporation by means of a press release, a report or other document filed with the Securities and Exchange Commission, or a letter or report sent to stockholders of record of the Corporation, shall be deemed to be sufficient public disclosure of the date of such meeting for purposes of these By-laws. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a brief description of the proposal desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the Corporation's stock transfer books, of the stockholder proposing such business and of the beneficial owners (if any) of the stock registered in such stockholder's name and the name and address of other stockholders known by such stockholder to be supporting such proposal on the date of such stockholder's notice, (c) the class and number of shares of the Corporation's capital stock which are held of record, beneficially owned or represented by proxy by the stockholder and by any other stockholders known by such stockholder to be supporting such proposal on the record date for the annual meeting in question (if such date shall then have been made publicly available) and on the date of such stockholder's notice, and (d) any material interest of the stockholder in such proposal. If the Board of Directors, or a designated committee thereof, determines that any stockholder proposal was not timely made in accordance with the provisions of this Section 2, or that the information provided in a stockholder's notice does not satisfy the informational requirements of this Section 2 in any material respect, then such proposal shall not be presented for action at the annual meeting in question. If neither the Board of Directors nor such committee makes a determination as to the validity of any stockholder proposal, the presiding officer of the annual meeting shall determine and declare at the annual meeting whether the stockholder proposal was made in accordance with the terms of this Section 2. If the presiding officer determines that a stockholder proposal was made in accordance with the terms of this Section 2, he shall so declare at the annual meeting and ballots shall be provided for use at the meeting with respect to any such proposal. If the presiding officer determines that a stockholder proposal was not made in accordance with the terms of this Section 2, he shall so declare at the annual meeting and any such proposal shall not be acted upon at the annual meeting. The provisions of this By-law shall not prevent the consideration and approval or disapproval at the annual meeting of reports of officers, Directors and committees of the Board of Directors, but in connection with such reports, no new business shall be acted upon at such annual meeting unless stated, filed and received as herein provided. Notwithstanding the foregoing provisions of this By-law, a stockholder shall also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder with respect to the matters set forth in this By- law. Nothing in this By-law shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act. Section 3. Special Meetings. Except as otherwise required by law, special meetings of the stockholders of the Corporation may be called only by the Board of Directors pursuant to a resolution approved by the affirmative vote of a majority of the Directors then in office or the Chairman of the Board. Section 4. Matters to be Considered at Special Meetings. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation, unless otherwise provided by law. Section 5. Notice of Meetings; Adjournments. A written notice of each annual meeting of stockholders stating the place, date and hour of such annual meeting shall be given by the Secretary (or other person authorized by these By- laws or by law) not less than 10 days nor more than 60 days before the meeting, to each stockholder entitled to vote thereat and to each stockholder who, by law or under the Restated Certificate of Incorporation or under these By- laws, is entitled to such notice, by delivering such notice to him or by mailing it, postage prepaid, and addressed to such stockholder at the address of such stockholder as it appears in the records of the Corporation. Such notice shall be deemed to be delivered when hand delivered to such address or deposited in the mail so addressed, with postage prepaid. Notice of all special meetings of stockholders shall be given in the same manner as provided for annual meetings of the stockholders, except that the written notice of all special meetings shall state the purpose or purposes for which the meeting has been called. Notice of an annual or special meeting of stockholders need not be given to a stockholder if a written waiver of notice is executed before or after such meeting by such stockholder or such stockholder's authorized attorney, if communication with such stockholder is unlawful, or if such stockholder attends such meeting, unless such attendance was for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting was not lawfully called or convened. 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. The Board of Directors may postpone and reschedule any previously scheduled annual or special meeting of stockholders and any record date with respect thereto, regardless of whether any notice or public disclosure with respect to any such meeting has been sent or made pursuant to Section 2 of this Article I or Section 3 of Article II hereof or otherwise. When any meeting is convened, the presiding officer may adjourn the meeting if (a) no quorum is present for the transaction of business, (b) the Board of Directors determines that adjournment is necessary or appropriate to enable the stockholders to consider fully information which the Board of Directors determines has not been made sufficiently or timely available to stockholders, or (c) the Board of Directors determines that adjournment is otherwise in the best interests of the Corporation. When any annual or special meeting of stockholders is adjourned to another hour, date or place, notice need not be given of the adjourned meeting other than an announcement at the meeting at which the adjournment is taken of the hour, date and place to which the meeting is adjourned; provided, however, that if the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote thereat and each stockholder who, by law or under the Restated Certificate of Incorporation or these By-laws, is entitled to such notice. Section 6. Quorum. At any annual or special meeting of stockholders, the holders of a majority of the voting power of all classes of stock issued, outstanding and entitled to vote at such meeting, represented in person or by proxy, shall constitute a quorum at such meeting; but if less than a quorum is present at such meeting, the holders of a majority of the voting power of all classes of stock issued, outstanding and entitled to vote at such meeting that are present in person or by proxy at such meeting or the presiding officer may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice, except as provided in Section 5 of this Article I. At such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally noticed. The stockholders present at a duly constituted meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Section 7. Voting and Proxies. The voting power of each share of capital stock of the Corporation shall be as set forth in the Restated Certificate of Incorporation, with a proportionate vote for each fraction of any share. Stockholders may vote either in person or by written proxy, but no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies shall be filed with the Secretary of the meeting before being voted. Except as otherwise limited therein or as otherwise provided by law, proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting, but they shall not be valid after final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by or on behalf of any one of them unless at or prior to the exercise of such proxy the Corporation receives a specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid, and the burden of proving invalidity shall rest on the challenger. Section 8. Action at Meeting. When a quorum is present, any matter before any annual or special meeting of stockholders shall be decided by vote of the holders of all classes of stock present in person or by proxy representing a majority of the votes of all classes of stock entitled to be cast at the meeting, except where a larger vote is required by law, by the Restated Certificate of Incorporation or by these By-laws. Any election by stockholders shall be determined by a plurality of the votes of all classes of stock cast, except where a larger vote is expressly required by law, by the Restated Certificate of Incorporation or by these By-laws. The Corporation shall not directly or indirectly vote any shares of its own stock; provided, however, that the Corporation may vote shares which it holds in a fiduciary capacity to the extent permitted by law. Section 9. Action by Consent. Any action required or permitted by law to 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 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 were present and voted. Prompt notice 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. Section 10. Stockholder Lists. The Secretary (or the Corporation's transfer agent or other person authorized by these By-laws or by law) shall prepare and make, at least 10 days before every annual or special meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares of each class of stock 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 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, 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 hour, date and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 11. Presiding Officer. The Chairman of the Board, or in his absence, the President, shall preside at all annual or special meetings of stockholders and shall have the power, among other things, to adjourn such meeting at any time and from time to time, subject to Sections 5 and 6 of this Article I. The order of business and all other matters of procedure at any meeting of the stockholders shall be determined by the presiding officer. Section 12. Voting Procedures and Inspectors of Elections. The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the presiding officer shall appoint one or more inspectors to act at the meeting. Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability. The inspectors shall perform such duties as are required by the Delaware General Corporation Law, as amended from time to time, including the counting of all votes and ballots. The inspectors may, with the approval of the presiding officer, appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. The presiding officer may review all determinations made by the inspector(s), and in so doing the presiding officer shall be entitled to exercise his sole judgment and discretion and he shall not be bound by any determinations made by the inspector(s). All determinations by the inspector(s) and, if applicable, the presiding officer shall be subject to further review by any court of competent jurisdiction. ARTICLE II Directors Section 1. Powers. All the power of the Corporation shall be exercised by or under the direction of the Board of Directors except as otherwise provided by the Restated Certificate of Incorporation or as required by law. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. Section 2. Number; Election; Qualification. The Board of Directors shall consist of not more than fifteen (15) nor less than three (3) members. The exact number of Directors within the maximum and minimum limitations specified herein may be fixed from time to time by resolution of a majority of the Board of Directors then in office or by the stockholders at the annual meeting of stockholders. The Directors shall be elected by the stockholders at each annual meeting, except as provided in Section 5 of this Article II. No Director need be a stockholder. Section 3. Director Nominations. Nominations of candidates for election as Directors of the Corporation at any annual meeting of stockholders may be made (a) by, or at the direction of, a majority of the Board of Directors or a designated committee thereof, or (b) by any holder of record (both as of the time notice of such nomination is given by the stockholder as set forth below and as of the record date for the annual meeting in question) of any shares of the capital stock of the Corporation entitled to vote at such annual meeting who complies with the procedures set forth in this Section 3. Any stockholder who seeks to make such a nomination, or his representative, must be present in person at the annual meeting. Only persons nominated in accordance with the procedures set forth in this Section 3 shall be eligible for election as Directors at an annual meeting of stockholders. Nominations, other than those made by, or at the direction of, the Board of Directors or a designated committee thereof, shall be made pursuant to timely notice in writing to the Secretary of the Corporation as set forth in this Section 3. To be timely, a stockholder's notice shall be delivered to, or mailed and received, at the principal executive offices of the Corporation (a) not less than 75 days nor more than 120 days prior to the Anniversary Date or (b) in the event that the annual meeting of stockholders is called for a date more than seven days prior to the Anniversary Date, not later than the close of business on (i) the 20th day (or if that day is not a business day for the Corporation, on the next succeeding business day) following the first date on which the date of such meeting was publicly disclosed or (ii) if such date of public disclosure occurs more than 75 days prior to such scheduled date of such meeting, then the later of (1) the 20th day (or if that day is not a business day for the Corporation, on the next succeeding business day) following the first date of public disclosure of the date of such meeting or (2) the 75th day prior to such scheduled date of such meeting (or if that day is not a business day for the Corporation, on the next succeeding business day). Any public disclosure of the scheduled date of the meeting made by the Corporation by means of a press release, a report or other document filed with the Securities and Exchange Commission, or a letter or report sent to stockholders of record of the Corporation, shall be deemed to be sufficient public disclosure of the date of such meeting for purposes of these By-laws. Such stockholder's notice 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 residential address of such person, (ii) the principal occupation or employment of such person during the past five years, (iii) the class and number of shares of the Corporation's capital stock which are beneficially owned by such person on the date of such stockholder notice, (iv) a description of any of the following events that has occurred within the last five years and that is material to the evaluation of the ability or integrity of such proposed nominee: (1) a petition under federal bankruptcy laws or any state insolvency laws was filed by or against such person, (2) a conviction of such person in a criminal proceeding or the naming of such person as a subject of a criminal proceeding (excluding traffic violations and other minor offenses), (3) a finding by any court of competent jurisdiction that such person has violated any federal or state securities law or federal commodities law, which judgment or finding has not been subsequently reversed, suspended or vacated, or (4) the entry of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction or of any federal or state governmental or quasi-governmental agency, authority or commission enjoining such person or otherwise limiting him from engaging in any type of business practice or in any activity in connection with the purchase or sale of any security or commodity, and (v) the consent of each nominee to serve as a Director if so elected and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the Corporation's stock transfer books, of such stockholder and of the beneficial owners (if any) of the stock registered in such stockholder's name and the name and address of other stockholders known by such stockholder to be supporting such nominee or nominees, (ii) the class and number of shares of the Corporation's capital stock which are beneficially owned by such stockholder and such beneficial owners (if any) on the date of such stockholder's notice and by any other stockholders known by such stockholder to be supporting such nominee or nominees on the date of such stockholder's notice, (iii) a representation that the stockholder or his representative intends to appear in person at the meeting to nominate the person or persons specified in the notice, (iv) a description of all arrangements or understandings between such stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by such stockholders; provided, that nothing in this Section 3 shall require the stockholder giving such notice to provide to the Corporation copies of such stockholder's preliminary or definitive proxy, proxy statement, or other soliciting material filed with the Securities and Exchange Commission. At the request of the Board of Directors, any person nominated by, or at the direction of, the Board of Directors for election as a Director at an annual meeting shall furnish to the Secretary of the Corporation that information required to be set forth in a stockholder's notice of nomination which pertains to such nominee. No person shall be elected by the stockholders as a Director of the Corporation unless nominated in accordance with the procedures set forth in this Section 3. Election of Directors at the annual meeting need not be by written ballot, unless otherwise provided by the Board of Directors or presiding officer at such annual meeting. If written ballots are to be used, ballots bearing the names of all the persons who have been nominated for election as Directors at the annual meeting in accordance with the procedures set forth in this Section 3 shall be provided for use at the annual meeting. If the Board of Directors, or a designated committee thereof, determines that any stockholder nomination was not timely made in accordance with the terms of this Section 3 or that the information provided in a stockholder's notice does not satisfy the informational requirements of this Section 3 in any material respect, then such nomination shall not be considered at the annual meeting in question. If neither the Board of Directors nor such committee makes a determination as to the validity of any nominations by a stockholder as set forth above, the presiding officer of the annual meeting shall determine and declare at the annual meeting whether a nomination was made in accordance with the terms of this Section 3. If the presiding officer determines that a nomination was made in accordance with the terms of this Section 3, he shall so declare at the annual meeting and ballots shall be provided for use at the meeting with respect to such nomination. If the presiding officer determines that a nomination was not made in accordance with the terms of this Section 3, he shall so declare at the annual meeting and such nomination shall be disregarded. Section 4. Tenure. Except as otherwise provided by law, by the Restated Certificate of Incorporation or by these By-laws, Directors shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Section 5. Vacancies. Any vacancy occurring on the Board of Directors, including any vacancy resulting from death, resignation, retirement, disqualification, removal or other cause or created by reason of an increase in the authorized number of Directors shall be filled by the affirmative vote of a majority of the remaining Directors then in office, even if such majority is less than a quorum of the Board of Directors. Any Director appointed in accordance with the preceding sentence shall hold office subject to the provisions of these By-laws until the next annual meeting of stockholders and until such Director's successor is elected and qualified or until such Director resigns or is removed. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, may exercise the powers of the full Board of Directors until the vacancy is filled. Section 6. Removal. Any Director (including persons elected by Directors to fill vacancies in the Board of Directors) or the entire Board of Directors may be removed with or without cause by the affirmative vote of the holders of at least a majority of the voting power of the shares of the Corporation then entitled to vote at an election of Directors, voting together as a single class. Any Director may be removed for cause by vote of a majority of the Directors then in office. A Director may be removed for cause only after reasonable notice and opportunity to be heard before the body proposing to remove him. Section 7. Resignation. A Director may resign at any time by giving written notice to the Chairman of the Board, the President or the Secretary. A resignation shall be effective upon receipt, unless the resignation otherwise provides. Section 8. Regular Meetings. The regular annual meeting of the Board of Directors shall be held, without other notice than this By-law, on the same date and at the same place as the annual meeting of stockholders following the close of such meeting of stockholders. Other regular meetings of the Board of Directors may be held without call or notice at such hour, date and place as the Board of Directors may from time to time determine. Section 9. Special Meetings. Special meetings of the Board of Directors may be called, orally or in writing, by or at the request of the Chairman of the Board, the Treasurer, or two or more Directors designating the hour, date and place thereof. Section 10. Notice of Special Meetings. Notice of the hour, date and place of all special meetings of the Board of Directors shall be given to each Director by the Secretary or an Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the President. Notice of any special meeting of the Board of Directors shall be given to each Director in person or by telephone, telex, telecopy or other written form of electronic communication, or by telegram sent to his business or home address at least 24 hours in advance of the meeting, or by written notice mailed to his business or home address at least 48 hours in advance of the meeting. Such notice shall be deemed to be delivered when hand delivered to such address, read to such Director by telephone, deposited in the mail so addressed, with postage thereon prepaid if mailed, dispatched or transmitted if telexed or telecopied, or when delivered to the telegraph company if sent by telegram. When any Board of Directors meeting, either regular or special, is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. It shall not be necessary to give any notice of the hour, date or place of any meeting adjourned for less than 30 days or of the business to be transacted thereat, other than an announcement at the meeting at which such adjournment is taken of the hour, date and place to which the meeting is adjourned. A written waiver of notice executed before or after a meeting by a Director and filed with the records of the meeting shall be deemed to be equivalent to notice of the meeting. The 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 because such meeting is not lawfully called or convened. Except as otherwise required by law, by the Restated Certificate of Incorporation or by these By-laws, neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 11. Quorum. At any meeting of the Board of Directors, a majority of the Directors then in office shall constitute a quorum for the transaction of business, but if less than a quorum is present at a meeting, a majority of the Directors present may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice, except as provided in Section 10 of this Article II. Any business which might have been transacted at the meeting as originally noticed may be transacted at such adjourned meeting at which a quorum is present. Section 12. Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, a majority of the Directors present may take any action on behalf of the Board of Directors, unless a larger number is required by law, by the Restated Certificate of Incorporation or by these By-laws. Section 13. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing. Such written consent shall be filed with the records of the meetings of the Board of Directors and shall be treated for all purposes as a vote at a meeting of the Board of Directors. Section 14. Manner of Participation. Directors may participate in meetings of the Board of Directors by means of conference telephone or similar communications equipment by means of which all Directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting for purposes of these By-laws. Section 15. Committees. The Board of Directors, by vote of a majority of the Directors then in office, may elect from its number one or more committees, including an Executive Committee and an Audit Committee, and may delegate thereto some or all of its powers except those which by law, by the Restated Certificate of Incorporation, or by these By-laws may not be delegated. Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these By-laws for the Board of Directors. All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall report its action to the Board of Directors. The Board of Directors shall have power to rescind any action of any committee, but no such rescission shall have retroactive effect. ARTICLE III Officers Section 1. Enumeration. The officers of the Corporation shall consist of a Chairman of the Board, a President, a Secretary, a Treasurer, and such other officers, including without limitation one or more Executive Vice Presidents, Vice Presidents, Assistant Secretaries and Assistant Treasurers, as the Board of Directors may determine. Section 2. Election. At the regular annual meeting of the Board of Directors following the annual meeting of stockholders, the Board of Directors shall elect the President, the Secretary, and the Treasurer. Other officers may be elected by the Board of Directors at such regular annual meeting or at any other regular or special meeting. Section 3. Qualification. No officer need be a stockholder or a Director. Any person may occupy more than one office of the Corporation at any time. Any officer may be required by the Board of Directors to give bond for the faithful performance of his duties in such amount and with such sureties as the Board of Directors may determine. Section 4. Tenure. Except as otherwise provided by the Restated Certificate of Incorporation or by these By-laws, each officer of the Corporation shall hold office until the regular annual meeting of the Board of Directors following the next annual meeting of stockholders and until such officer's successor is elected and qualified or until such officer's earlier resignation or removal. Any officer may resign by delivering a written resignation to the Board of Directors, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Section 5. Removal. Except as otherwise provided by law, the Board of Directors may remove any officer with or without cause by the affirmative vote of a majority of the Directors then in office. Section 6. Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors. Section 7. Chairman of the Board. The Chairman of the Board shall be the chief executive officer of the Corporation and shall, subject to the direction of the Board of Directors, have general supervision and control of its business. The Chairman of the Board shall preside, when present, at all meetings of the Board of Directors, unless the Board of Directors shall otherwise provide, and at meetings of the stockholders as provided in Section 11 of Article I hereof. Section 8. President. The President shall be the chief operating officer of the Corporation and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time determine. In the absence of the Chairman of the Board, the President shall preside, when present, at meetings of the Board of Directors, unless the Board of Directors shall otherwise provide, and at meetings of the stockholders as provided in Section 11 of Article I hereof. Section 9. Executive Vice Presidents; Vice Presidents. Any Executive Vice President or Vice President shall have such powers and shall perform such duties as the Board of Directors, the Chairman of the Board or the President may from time to time designate. Section 10. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. He shall have custody of all funds, securities, and valuable documents of the Corporation, except as the Board of Directors may otherwise provide. Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time to time designate. Section 11. Secretary and Assistant Secretaries. The Secretary shall record all the proceedings of the meetings of the stockholders and the Board of Directors (including committees of the Board) in books kept for that purpose. In his absence from any such meeting, a temporary secretary chosen at the meeting shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation). He shall have custody of the seal of the Corporation, and he, or an Assistant Secretary, shall have authority to affix it to any instrument requiring it, and, when so affixed, the seal may be attested by his signature or that of an Assistant Secretary. He shall have such other duties and powers as may be designated from time to time by the Board of Directors, the Chairman of the Board or the President. Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time to time designate. Section 12. Other Powers and Duties. Subject to these By-laws and to such limitations as the Board of Directors may from time to time prescribe, the officers of the Corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors. Section 13. Compensation. The compensation of the officers of the Corporation shall be fixed from time to time by the Board of Directors; provided, however, that the Board of Directors may authorize any officer or committee to fix the compensation of officers and employees. No officer shall be prevented from receiving compensation by reason of the fact that such officer is also a Director of the Corporation. ARTICLE IV Capital Stock Section 1. Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall bear the Corporation seal and shall be signed by the Chairman of the Board or the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary. The Corporation seal and the signatures by Corporation officers may be facsimiles if the certificate is manually countersigned by an authorized person on behalf of a transfer agent or registrar other than the Corporation or its employee. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such 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 such officer, transfer agent or registrar were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. The Corporation shall be permitted to issue fractional shares. Section 2. Transfers. Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of stock may be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate therefor properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require. Section 3. Record Holders. Except as may otherwise be required by law, by the Restated Certificate of Incorporation or by these By-laws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these By-laws. It shall be the duty of each stockholder to notify the Corporation of his, her or its post office address and any changes thereto. Section 4. Record Date. In order that the Corporation may determine the stockholders entitled to receive notice of or to vote at any meeting of stockholders or any adjournments thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or 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 Board of Directors may fix, in advance, a record date, which, (i) with respect to any meeting of stockholders, shall be not more than 60 nor less than 10 days (except as otherwise required by law) before the date of such meeting, (ii) with respect to corporate action without a meeting, shall be not more than 10 days after the date on which the resolution fixing the record date is adopted by the Board of Directors and (iii) with respect to any other lawful action, shall be not more than 60 days prior to such action. In such case, only stockholders of record on such record date shall be so entitled, notwithstanding any transfer of stock on the books of the Corporation after the record date. If no record date is fixed: (i) the record date for determining stockholders entitled to receive 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; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed; and (iii) 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. Section 5. Replacement of Certificates. In case of the alleged loss, destruction or mutilation of a certificate of stock, a duplicate certificate may be issued in place thereof, upon such terms as the Board of Directors may prescribe. ARTICLE V Indemnification of Directors, Officers and Others Section 1. Indemnifiable Events; Extent of Indemnification. (a) The Corporation shall indemnify, to the fullest extent permitted by the General Corporation Law of the State of Delaware (as presently in effect or as hereafter amended): (i) 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 or suit by or in the right of the Corporation) by reason of the fact that he is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such suit, action or proceeding 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 or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his conduct was unlawful. (ii) 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 a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit 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 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 for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (iii) To the extent that a Director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (b) The Board of Directors, in its discretion, may authorize the Corporation to indemnify: (i) 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 an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director or as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding 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 tothe best interests of the Corporation or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his conduct was unlawful. (ii) 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 an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit 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 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 for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnify for such expenses which the Court of Chancery or such other court shall deem proper. Section 2. Determination of Entitlement. Any indemnification hereunder (unless required by law or ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 of this Article V. Such determination shall be made (a) 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 (b) 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 (c) by the stockholders of the Corporation. Section 3. Advance Payments. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding, only as authorized by the Board of Directors in the specific case (including by one or more Directors who may be parties to such action, suit or proceeding), upon receipt of an undertaking by or on behalf of the Director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article V. Section 4. Non-Exclusive Nature of Indemnification. The indemnification provided herein shall not be deemed exclusive of any other rights to which any person, whether or not entitled to be indemnified hereunder, may be entitled under any statute, by-law, agreement, vote of stockholders or Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Each person who is or becomes a Director or officer as aforesaid shall be deemed to have served or to have continued to serve in such capacity in reliance upon the indemnity provided for in this Article V. Section 5. Insurance. To the extent obtainable, the Corporation may purchase and maintain insurance with reasonable limits on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of the General Corporation Law of the State of Delaware (as presently in effect or hereafter amended), the Restated Certificate of Incorporation of the Corporation or these By-laws. Section 6. No Duplicate Payments. The Corporation's indemnification under Section 1 of this Article V of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be reduced by any amounts such person receives as indemnification (i) under any policy of insurance purchased and maintained on such person's behalf by the Corporation, (ii) from such other Corporation, partnership, joint venture, trust or other enterprise, or (iii) under any other applicable indemnification provision. Section 7. Amendment. This Article V may be amended only so as to have a prospective effect. Any amendment to this Article V which would result in any person having a more limited entitlement to indemnification may be approved only by the stockholders. ARTICLE VI Transactions with Related Parties Section 1. Transactions Not Void. No contract or transaction between the Corporation and one or more of its Directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its Directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board of Directors or committee thereof, which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (a) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors, or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or (b) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the stockholders. Section 2. Quorum. Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. Section 3. Limitation. Nothing herein contained shall protect or purport to protect any Director or officer of the Corporation against any liability to the Corporation or its security holders to which he would otherwise be subject by reason of his willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of his office. ARTICLE VII Miscellaneous Provisions Section 1. Fiscal Year. Except as otherwise determined by the Board of Directors, the fiscal year of the Corporation shall end on December 31 of each year. Section 2. Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation. Section 3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without Director action may be executed on behalf of the Corporation by the Chairman of the Board, the President, the Treasurer or any Vice President. Section 4. Voting of Securities. Unless the Board of Directors otherwise provides, the Chairman of the Board, the President or the Treasurer may waive notice of and act on behalf of this Corporation, or appoint another person or persons to act as proxy or attorney in fact for this Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders or stockholders of any other corporation or organization, any of whose securities are held by this Corporation. Section 5. Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation. Section 6. Corporate Records. The original or attested copies of the Restated Certificate of Incorporation, By-laws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock and transfer records, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, shall be kept at the principal office of the Corporation, at the office of its counsel, or at an office of its transfer agent. Section 7. Restated Certificate of Incorporation. All references in these By-laws to the Restated Certificate of Incorporation shall be deemed to refer to the Restated Certificate of Incorporation of the Corporation, as amended and in effect from time to time. Section 8. Amendments. These By-laws may be altered, amended or repealed, to the extent permitted by applicable law, the Restated Certificate of Incorporation and agreements to which the Corporation may from time to time be a party, by the affirmative vote of the holders of a majority of the voting power of all classes of the stock of the Corporation then entitled to vote, voting together as a single class, at any regular or special meeting of the stockholders of the Corporation, or by the vote of a majority of the Board of Directors at any regular or special meeting thereof, without any action on the part of the stockholders, unless otherwise provided herein; provided, however, that (i) the Board of Directors may not amend or repeal this Section 8 nor may it amend or repeal any other provision of these By-laws to the extent such amendment or repeal requires action by the stockholders, and (ii) any amendment or repeal of these By-laws by the Board of Directors and any provision to these By-laws adopted by the Board of Directors may be amended or repealed by the stockholders. DOCSC\141728.2 EX-27 5
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MARCH 31, 1999 FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 9-MOS JUN-30-1999 MAR-31-1999 14,293 2,718 99,001 6,942 101,710 358,487 230,364 111,684 638,715 107,044 121,547 2,686 0 0 384,762 638,715 344,551 344,551 220,744 307,577 4,114 1,076 4,082 32,860 10,730 22,130 8,419 0 0 30,549 $1.14 $1.13 INCLUDES LONG-TERM DEBT AND CURRENT PORTION INCLUDES ONLY COST OF GOODS SOLD AND OPERATING EXPENSES. INCLUDES INTEREST EXPENSE AND LOSS PROVISION SHOWN BELOW.
EX-27.1 6
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MARCH 31, 1998 FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY SUCH FINANCIAL STATEMENTS. THIS SCHEDULE HAS BEEN RESTATED TO REFLECT THE ACCOUNTING CHANGES RELATED TO DISCONTINUED OPERATIONS. 1,000 9-MOS JUN-30-1998 MAR-31-1998 13,298 257 87,547 6,571 101,211 324,800 186,199 83,995 554,949 76,165 86,848 2,715 0 0 364,886 554,949 331,849 331,849 211,162 293,999 4,709 864 4,818 33,141 10,943 22,198 19,072 0 0 41,270 $1.52 $1.51 INCLUDES LONG-TERM DEBT AND CURRENT PORTION INCLUDES ONLY COST OF GOODS SOLD AND OPERATING EXPENSES. INCLUDES INTEREST EXPENSE AND LOSS PROVISION SHOWN BELOW.
-----END PRIVACY-ENHANCED MESSAGE-----