-----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, Lu5eK4n+OIF1Ng0Q19I5303fC9liAnPWtlS4TtNJKTvf3N87apl7pgxuP/cVE6A8 MhEUi6JDrrg3XxweR9Yg/g== 0000950134-02-002580.txt : 20020415 0000950134-02-002580.hdr.sgml : 20020415 ACCESSION NUMBER: 0000950134-02-002580 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20011231 FILED AS OF DATE: 20020326 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENCORE WIRE CORP /DE/ CENTRAL INDEX KEY: 0000850460 STANDARD INDUSTRIAL CLASSIFICATION: ROLLING DRAWING & EXTRUDING OF NONFERROUS METALS [3350] IRS NUMBER: 752274963 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: 1934 Act SEC FILE NUMBER: 000-20278 FILM NUMBER: 02585040 BUSINESS ADDRESS: STREET 1: 1410 MILLWOOD RD STREET 2: P O BOX 1149 CITY: MCKINNEY STATE: TX ZIP: 75069 BUSINESS PHONE: 2145629473 MAIL ADDRESS: STREET 1: 1410 MILLWOOD RD STREET 2: P O BOX 1149 CITY: MCKINNEY STATE: TX ZIP: 75069 10-K405 1 d94199e10-k405.txt FORM 10-K FOR FISCAL YEAR END DECEMBER 31, 2001 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (Fee required) FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (No fee required) For the transition period from _______ to _______ Commission File Number: 020278 ENCORE WIRE CORPORATION (Exact Name of Registrant as Specified in its Charter) DELAWARE 75-2274963 (State of incorporation) (I.R.S. Employer Identification No.) 1410 MILLWOOD ROAD MCKINNEY, TEXAS 75069 (Address of principal executive offices) (Zip Code) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (972) 562-9473 SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: COMMON STOCK, PAR VALUE $.01 PER SHARE (Title of class) 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 by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. Yes [X] No [ ] Aggregate market value of Common Stock held by nonaffiliates as of March 8, 2002: $155,907,121 Number of shares of Common Stock outstanding as of March 8, 2002: 15,261,285 DOCUMENTS INCORPORATED BY REFERENCE Listed below are documents, parts of which are incorporated herein by reference and the part of this report into which the document is incorporated: (1) Proxy statement for the 2002 annual meeting of stockholders -- Part III TABLE OF CONTENTS
PAGE NUMBER ------ PART I............................................................................................................1 ITEM 1. BUSINESS..........................................................................................1 General...........................................................................................1 Strategy..........................................................................................1 Products..........................................................................................2 Manufacturing.....................................................................................2 Customers.........................................................................................3 Marketing and Distribution........................................................................3 Employees.........................................................................................4 Raw Materials.....................................................................................4 Competition.......................................................................................4 Patent Matters....................................................................................5 ITEM 2. PROPERTIES........................................................................................5 ITEM 3. LEGAL PROCEEDINGS.................................................................................5 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS...............................................6 EXECUTIVE OFFICERS OF THE COMPANY.................................................................6 PART II...........................................................................................................7 ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.............................7 ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA..............................................................8 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.............9 General...........................................................................................9 Results of Operations.............................................................................9 Liquidity and Capital Resources..................................................................11 Critical Accounting Policies.....................................................................13 Information Regarding Forward Looking Statements.................................................13 ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.......................................14 ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA......................................................14 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.............31 PART III.........................................................................................................31 ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY..................................................31 ITEM 11. EXECUTIVE COMPENSATION...........................................................................31 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT...................................31 ITEM 13. CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS.............................................31 PART IV..........................................................................................................32 ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K......................................................................................32
ii PART I ITEM 1. BUSINESS GENERAL Encore Wire Corporation is a low-cost manufacturer of copper electrical building wire and cable. The Company is a significant supplier of both residential wire for interior electrical wiring in homes, apartments and manufactured housing, and building wire for electrical distribution in commercial and industrial buildings. Based upon the latest available National Electrical Manufactures Association data, Encore wire's share of the markets in which it competes is approximately 18%. The principal customers for Encore's wire are wholesale electrical distributors, which serve both the residential and commercial wire markets. The Company sells its products primarily through manufacturers' representatives located throughout the United States and, to a lesser extent, through its own direct in-house marketing efforts. Encore's strategy is to further expand its share of the markets for residential wire and for commercial wire primarily by emphasizing a high level of customer service and low-cost production and, to a lesser extent, the addition of new products that compliment its current product line. The Company maintains product inventory levels sufficient to meet anticipated customer demand and believes that the speed and completeness with which it fills customer orders are key competitive advantages critical to marketing its products. Encore's low-cost production capability features an efficient plant design incorporating highly automated manufacturing equipment, an integrated production process and a small, incentivized work force. The Company is a Delaware corporation with its principal executive offices and plant located at 1410 Millwood Road, McKinney, Texas 75069. Its telephone number is (972) 562-9473. As used in this Annual Report, unless otherwise required by the context, the terms "Company" and "Encore" refer to Encore Wire Corporation and its consolidated entities, including Encore Wire Limited, a Texas limited partnership ("Encore Wire Limited") through which the company's operations are conducted. STRATEGY Encore's strategy for expanding its share of the residential wire and commercial wire markets emphasizes customer service coupled with low-cost production. Customer Service. Responsiveness to customers is a primary focus of Encore, with an emphasis on building and maintaining strong customer relationships. Encore seeks to establish customer loyalty by achieving a high order fill rate and rapidly handling customer inquiries, orders, shipments and returns. The Company maintains product inventories sufficient to meet anticipated customer demand and believes that the speed and completeness with which it fills orders are key competitive advantages critical to marketing its products. Low-Cost Production. Encore's low-cost production capability features an efficient plant design and a small, incentivized work force. Efficient Plant Design. Encore's highly automated wire manufacturing equipment is integrated in an efficient design that reduces materials handling, labor and in-process inventory. Incentivized Work Force. Encore's hourly manufacturing employees are eligible to receive incentive pay tied to productivity and quality standards. The Company believes that this compensation program enables the plant's manufacturing lines to attain high output and motivates manufacturing employees to continually maintain product quality. The Company also believes that its stock option plan enhances the motivation of its salaried manufacturing supervisors. The Company has coupled these incentives with a comprehensive safety program that emphasizes employee participation. 1 PRODUCTS Encore offers a residential wire product line that consists primarily of NM cable and UF cable. Encore's commercial product line consists primarily of THHN, the most widely used type of commercial wire. Additionally, the Company manufactures other types of commercial wire products. The Company's NM, UF and THHN cable are all manufactured with copper as the conductor. The Company also purchases small quantities of other types of wire to re-sell to the customers that buy the products it manufactures. The Company maintains between 400 and 500 stock keeping units (SKUs) of residential wire and between 4,500 and 5,000 SKUs of commercial wire. The principal bases for differentiation among SKUs are product diameter, insulation, color and packaging. Residential Wire NM Cable. Non-metallic sheathed cable is used primarily as interior wiring in homes, apartments and manufactured housing. NM cable is composed of either two or three insulated copper wire conductors, with or without an uninsulated ground wire, all sheathed in a polyvinyl chloride ("PVC") jacket. UF Cable. Underground feeder cable is used to conduct power underground to outside lighting and other applications remote from residential buildings. UF cable is composed of two or three PVC insulated copper wire conductors, with or without an uninsulated ground wire, all jacketed in PVC. Commercial Wire THHN Cable. THHN cable is used primarily as feeder, circuit and branch wiring in commercial and industrial buildings. It is composed of a single conductor, either stranded or solid, and insulated with PVC, which is further coated with nylon. Users typically enclose THHN cable in protective pipe or conduit. MANUFACTURING The efficiency of Encore's highly automated manufacturing facility is a key element of its low-cost production capability. Encore's residential wire manufacturing lines have been integrated so that handling of product is substantially reduced. At the few points remaining where handling between manufacturing steps is necessary the Company has, for the most part, replaced reels with large baskets, each capable of handling approximately four times the capacity of a reel. Encore's commercial wire plant is designed to reduce product handling by integrating steps within production stages and, again, by using baskets instead of reels where feasible. The manufacturing process for the Company's products involves up to six steps: casting, drawing, stranding, blending, insulating and jacketing. Rod Casting. Rod Casting is the process of melting sheets of copper cathode and copper scrap and casting the hot copper into a 5/16 inch copper rod to be drawn into copper wire. Drawing. Drawing is the process of reducing 5/16 inch copper rod through converging dies until the specified wire diameter is attained. The wire is then heated with electrical current to soften or "anneal" the wire to make it easier to handle. Stranding. Stranding is the process of twisting together from seven to 61 individual wire strands to form a single cable. The purpose of stranding is to improve the flexibility of wire while maintaining its electrical current carrying capacity. PVC Blending. PVC Blending is the process of mixing the various raw materials that are required to produce the PVC necessary to meet UL specifications for the insulation and jacket requirements for the wire that is manufactured. Insulating. Insulating is the process of extruding first PVC and then nylon (where applicable) over the solid or stranded wire. 2 Jacketing. Jacketing is the process of extruding PVC over two or more insulated conductor wires, with or without an uninsulated ground wire, to form a finished product. The Company's jacketing lines are integrated with packaging lines that cut the wire and coil it onto reels or package it in boxes or shrink-wrap. Encore manufactures and tests all of its products in accordance with the standards of Underwriters Laboratories, Inc. ("U/L"), a nationally recognized testing and standards agency. Encore's machine operators and quality control inspectors conduct frequent product tests. At three separate manufacturing stages, the Company spark tests insulated wire for defects. The Company tests finished products for electrical continuity to insure compliance with its own quality standards and those of U/L. Encore's manufacturing lines are equipped with laser micrometers to measure wire diameter and insulation thickness while the lines are in operation. During each shift, operators take physical measurements of products, which Company inspectors randomly verify on a daily basis. Although suppliers pretest PVC and nylon compounds, the Company tests products for aging and for cracking and brittleness of insulation and jacketing. Encore sells all of its products with a one-year replacement warranty. CUSTOMERS Encore sells its wire principally to wholesale electrical distributors throughout the United States and, to a lesser extent, to retail home improvement centers. Most distributors supply products to electrical contractors. The Company sells its products to more than 60% of the top 250 wholesale electrical distributors (by volume) in the United States according to information reported in the September 2001 issue of Electrical Wholesaling magazine. No customer accounted for more than ten percent of net sales in 2001. Encore believes that the speed and completeness with which it fills customers' orders are crucial to its ability to expand the market share for its products. The Company also believes that, in order to reduce costs, many customers no longer maintain their own substantial warehouse inventories. Because of this trend, the Company seeks to maintain sufficient inventories to satisfy customers' prompt delivery requirements. MARKETING AND DISTRIBUTION Encore markets its products throughout the United States primarily through manufacturers' representatives and, to a lesser extent, through its own direct marketing efforts. Encore maintains the majority of its finished product inventory at its plant in McKinney, Texas. In order to provide flexibility in handling customer requests for immediate delivery of the Company's products, additional product inventories are maintained at warehouses owned and operated by independent manufacturers' representatives located throughout the United States. At December 31, 2001, additional product inventories are maintained at the warehouses of independent manufacturers' representatives located in Chattanooga, Tennessee, Cincinnati, Ohio, Detroit, Michigan, Edison, New Jersey, Louisville, Kentucky, Greensboro, North Carolina, Pittsburgh, Pennsylvania, Santa Fe Springs, California, and Hayward, California. Some of these manufacturers' representatives, as well as the Company's other manufacturers' representatives, maintain offices without warehouses in numerous locations throughout the United States. Finished goods are typically delivered to warehouses and customers by trucks operated by common carriers. The decision regarding the carrier to be used is based primarily on cost and availability. The Company invoices its customers directly for products purchased and, if an order has been obtained through a manufacturer's representative, pays the representative a commission based on pre-established rates. The Company determines customers' credit limits. The Company's bad debt experience was .06%, .05%, and .01% of net sales in 2001, 2000 and 1999, respectively. The manufacturers' representatives have no discretion to increase customers' credit limits or to determine prices charged for the Company's products, and all sales are subject to approval by the Company. 3 EMPLOYEES Encore believes that its hourly employees are highly motivated and that their motivation contributes significantly to the plant's operating efficiency. The Company attributes the motivation of these employees largely to the fact that a significant portion of their compensation can be incentive pay tied to productivity and quality standards. The Company believes that its incentive program focuses its employees on maintaining product quality. Encore emphasizes safety to its manufacturing employees through its safety program. On a weekly basis, each team of employees meets to review safety standards and, on a monthly basis, a group of participants from each team discusses safety issues and inspects each area of the plant for compliance. The Company's safety program is an integral part of its general attention to cost control. As of December 31, 2001, Encore had 599 employees, of whom 528 were paid hourly wages and were primarily engaged in the operation and maintenance of the Company's manufacturing and warehouse facility. The remainder of the Company's employees were executive, supervisory, administrative, sales and clerical personnel. The Company considers its relations with its employees to be good. The Company has no collective bargaining agreements with any of its employees. RAW MATERIALS The principal raw materials used by Encore in manufacturing its products are copper cathode, copper scrap, PVC thermoplastic compounds, paper and nylon, all of which are readily available from a number of suppliers. Copper requirements are purchased primarily from producers and merchants at prices determined each month primarily based on the average daily closing prices for copper for that month, plus a negotiated premium. The Company also purchases raw materials necessary to manufacture various PVC thermoplastic compounds. These raw materials primarily include PVC resin, clay and plasticiser. The Company began production from its copper rod fabrication facility in June 1998. Prior to completion of the new copper rod fabrication facility, the Company used copper rod purchased from others to manufacture its wire and cable products. In 2001, the copper rod fabrication facility manufactured all of the Company's copper rod requirements. The Company produces copper rod from purchased copper cathodes. The Company also reprocesses copper scrap generated by its operations and copper scrap purchased from others. In 1999, the Company completed a new facility to manufacture PVC. The process involves the mixture of PVC raw material components to produce the PVC used to insulate the Company's wire and cable products. The raw materials include PVC resin, clay and plasticiser. During 2001, this facility produced all of the Company's PVC requirements. COMPETITION The electrical wire and cable industry is highly competitive. The Company competes with several manufacturers of wire and cable products, some of whom are substantially larger companies than the Company and offer lines of electrical wire and cable products beyond the building wire segment in which the Company competes. The Company's competitors include Southwire Corporation, Essex Wire and Cable (a subsidiary of Superior Telecom, Inc.) and Cerro Wire and Cable Co. Inc. The principal elements of competition in the electrical wire and cable industry are, in the opinion of the Company, pricing, order fill rate and, in some instances, breadth of product line. The Company believes that it is competitive with respect to all these factors. Competition in the electrical wire and cable industry, although intense, has been primarily from U.S. manufacturers, including foreign owned facilities located in the U.S. The Company has encountered no significant competition from imports of residential or commercial wire. The Company believes this is because direct labor costs generally account for a relatively small percentage of the cost of goods sold for these products. 4 PATENT MATTERS Encore recently developed a lead-free PVC compound for use as a wire insulator and filed a patent for the material in April 2000. The U.S. Patent & Trademark Office rejected the claims in the patent application and the application has been withdrawn. The Company intends to continue its development efforts for the lead-free PVC compound and to manufacture the product in the future. Encore does not currently have, nor is it seeking, any patents, believing instead that the success of its manufacturing operations is dependent on its marketing abilities, technical competence and innovative skills. The Company owns the following registered trademarks: U.S. Registration Number 2,582,340 for the mark "NONLEDEX" for use in connection with the conductor insulation material; U.S. Registration Number 1,900,498 for the ENCORE WIRE LOGO design mark; and U.S. Registration Number 2,263,692 for the mark "HANDY MAN'S CHOICE." The Company also has a pending application for registration of the trademark "ENCORE WIRE," filed on August 24, 1999. ITEM 2. PROPERTIES Encore maintains its corporate office and manufacturing plant in McKinney, Texas, approximately 35 miles north of Dallas. The Company's facilities are located on a combined site of approximately ninety five acres and consist of buildings containing approximately 926,000 square feet of floor space, of which approximately 24,000 square feet are used for office space and 902,000 square feet are used for manufacturing and warehouse operations. The square footages include the new 192,000 square foot building that has just been constructed. The plant and equipment are owned by the Company and are not mortgaged to secure any of the Company's existing indebtedness. Encore believes that its plant and equipment are suited to its present needs, comply with applicable federal, state and local laws and regulations and are properly maintained and adequately insured. ITEM 3. LEGAL PROCEEDINGS The Company is a party to litigation and claims that arise out of the ordinary business of the Company. While the results of these matters cannot be predicted with certainty, the Company does not believe the final outcome of such litigation and claims will have a material adverse effect on the financial condition, the results of operations or cash flows of the Company because the Company believes that it has adequate insurance and reserves to cover any damages that may ultimately be awarded. 5 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS Not applicable. EXECUTIVE OFFICERS OF THE COMPANY Information regarding Encore's executive officers including their respective ages at March 19, 2002 is set forth below.
Name Age Position with Company - ---- --- --------------------- Vincent A. Rego 78 Chairman of the Board of Directors, and Chief Executive Officer Daniel L. Jones 38 President, Chief Operating Officer, and Member of the Board of Directors David K. Smith 42 Vice President -- Operations Frank J. Bilban 45 Vice President -- Finance, Treasurer and Secretary
Mr. Rego has been Chairman of the Board of Directors of Encore since 1989. From 1978 until 1988, Mr. Rego served as President, Chief Executive Officer and Chairman of the Board of Directors of Capital Wire and Cable Corporation ("Capital Wire"), which was purchased by General Cable Corporation in 1988. Prior thereto, Mr. Rego was associated with predecessors of Capital Wire in various executive capacities. Mr. Jones was Vice President -- Sales and Marketing of Encore from 1992 to May 1997. In May 1997, Mr. Jones was named Executive Vice President of the Company, in October 1997, he was named Chief Operating Officer and, in May 1998, he was named President of the Company. He also serves as a member of the Board of Directors. Mr. Smith has been Vice President-- Operations of Encore since 1992. From 1984 until joining the Company in 1990 Mr. Smith was employed by General Cable Corporation. Mr. Bilban has been Vice President -- Finance, Treasurer and Secretary of Encore since June 2000. From 1998 until joining the Company in June 2000, Mr. Bilban was Executive Vice President and Chief Financial Officer of Alpha Holdings Inc., a plastics manufacturing concern with three subsidiaries based in Dallas. From 1996 until 1998, Mr. Bilban was Vice President and Chief financial Officer of Wedge Dia-Log Inc., an oil field services company based in Grand Prairie, Texas. From 1991 until 1996, Mr. Bilban held financial positions including Division Controller with the CT Film Division of Rexene Corporation. From 1978 until 1991 he was employed in various financial capacities with several divisions of Outboard Marine Corporation. All executive officers are elected annually by the Board of Directors to serve until the next annual meeting of the Board or until their respective successors are chosen and qualified. 6 PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS The Company's Common Stock is quoted in the NASDAQ Stock Market's National Market under the symbol "WIRE." The following table sets forth the high and low closing sales prices per share for the Common Stock as reported in the NASDAQ Stock Market's National Market for the periods indicated.
HIGH LOW -------- -------- 2001 First Quarter ............................ 9.00 6.125 Second Quarter ........................... 12.06 7.50 Third Quarter ............................ 14.88 8.00 Fourth Quarter ........................... 13.40 10.13 2000 First Quarter ............................ 9 1/32 6 9/16 Second Quarter ........................... 7 5 3/8 Third Quarter ............................ 7 13/16 5 1/2 Fourth Quarter ........................... 8 5 3/8
On March 8, 2002, the last reported sale price of the Common Stock was $14.66 per share. As of March 8, 2002, there were 125 record holders of the Common Stock. The Company estimates that there were approximately 3,100 beneficial holders of the Common Stock. The Company has never paid cash dividends. Management intends to retain any future earnings for the operation and expansion of the Company's business and does not anticipate paying any cash dividends in the foreseeable future. The Company's present credit arrangements restrict the Company's ability to pay cash dividends. See Note 4 of Notes to Consolidated Financial Statements. 7 ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
YEAR ENDED DECEMBER 31, -------------------------------------------------------------------------- 2001 2000 1999 1998 1997 ---------- ---------- ---------- ---------- ---------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) STATEMENT OF OPERATIONS DATA: Net sales ...................................... $ 281,010 $ 283,689 $ 229,670 $ 244,044 $ 254,640 Cost of goods sold ............................. 240,553 243,132 197,636 195,060 201,323 ---------- ---------- ---------- ---------- ---------- Gross profit ................................. 40,457 40,557 32,034 48,984 53,317 Selling, general and administrative expenses ... 24,475 24,027 18,742 18,083 16,236 ---------- ---------- ---------- ---------- ---------- Operating income ............................... 15,982 16,530 13,292 30,901 37,081 Other income (expense): Interest and other income .................... 116 128 104 145 142 Interest expense ............................. (1,833) (4,080) (2,922) (1,876) (1,367) ---------- ---------- ---------- ---------- ---------- Income before income taxes ..................... 14,265 12,578 10,474 29,170 35,856 Income tax expense ............................. 5,135 4,528 3,880 11,602 14,163 ---------- ---------- ---------- ---------- ---------- Net income ..................................... $ 9,130 $ 8,050 $ 6,594 $ 17,568 $ 21,693 ========== ========== ========== ========== ========== Net income per common and common equivalent share - diluted ................... $ 0.60 $ 0.52 $ 0.42 $ 1.07 $ 1.32 ========== ========== ========== ========== ========== Weighted average common and common equivalent shares - diluted .................. 15,157 15,383 15,713 16,388 16,482
DECEMBER 31, -------------------------------------------------------------------------- 2001 2000 1999 1998 1997 ---------- ---------- ---------- ---------- ---------- (IN THOUSANDS) BALANCE SHEET DATA: Working capital ................................ $ 62,363 $ 68,547 $ 74,228 $ 52,825 $ 43,710 Total assets ................................... 171,696 171,839 182,389 156,948 128,755 Long-term debt, net of current portion ......... 30,000 42,600 60,600 44,000 22,200 Stockholders' equity ........................... 102,928 93,546 87,423 83,655 70,010
8 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS GENERAL Price competition for electrical wire and cable is intense and the Company sells its products in accordance with prevailing market prices. Copper, a commodity product, is the principal raw material used by the Company in manufacturing its products. Copper accounted for approximately 66.6%, 63.9%, 60.6%, 66.2% and 73.8% of the Company's cost of goods sold during fiscal 2001, 2000, 1999, 1998 and 1997, respectively. The price of copper fluctuates, depending on general economic conditions and in relation to supply and demand and other factors, and has caused monthly variations in the cost of copper purchased by the Company. The Company cannot predict copper prices in the future or the effect of fluctuations in the cost of copper on the Company's future operating results. RESULTS OF OPERATIONS The following table presents certain items of income and expense as a percentage of net sales for the periods indicated.
YEAR ENDED DECEMBER 31, -------------------------------------- 2001 2000 1999 -------- -------- -------- Net sales ........................................ 100.0% 100.0% 100.0% Cost of goods sold: Copper ....................................... 57.0 54.8 52.1 Other raw materials .......................... 13.6 14.0 15.7 Depreciation ................................. 3.2 3.0 3.3 Labor and overhead ........................... 13.6 13.3 14.5 LIFO adjustment .............................. (2.7) 0.7 1.5 Lower of cost or market adjustment ........... 0.9 (0.1) (1.1) -------- -------- -------- 85.6 85.7 86.0 -------- -------- -------- Gross profit ..................................... 14.4 14.3 14.0 Selling, general and administrative expenses ..... 8.7 8.5 8.2 -------- -------- -------- Operating income ................................. 5.7 5.8 5.8 Interest expense, net ............................ .7 1.4 1.2 -------- -------- -------- Income before income taxes ....................... 5.0 4.4 4.6 Income tax expense ............................... 1.8 1.6 1.7 -------- -------- -------- Net income ....................................... 3.2% 2.8% 2.9% ======== ======== ========
The following discussion and analysis relates to factors that have affected the operating results of the Company for the years ended December 31, 2001, 2000, and 1999. Reference should also be made to the consolidated financial statements and the related notes included elsewhere in this Annual Report. Net sales were $281.0 million in 2001, compared to $283.7 million in 2000 and $229.7 million in 1999. The slight decrease in net sales in 2001 over 2000 was the net result of an 11.5% increase in the volume of copper pounds of product sold, offset by an 11.1% decrease in average price of product sold and a slight change in the mix of product sold. The increase from 1999 to 2000 resulted from an 11.0% increase in sales volume and a 12% increase in the price of copper. Sales volume increases were due to several factors, including increased customer acceptance and product availability. In 2001, the Company continued to expand sales to the existing customer base and increased the number of customers to which it sold its products. The Company currently sells its products to at least 60% of the top 250 wholesale electrical distributors (by volume) in the United States, as reported in the September 2001 issue of Electrical Wholesaling magazine. 9 Cost of goods sold was $240.6 million in 2001, compared to $243.1 million in 2000 and $197.6 million in 1999. Copper costs increased to $160.3 million in 2001 from $155.4 million in 2000 and $119.8 million in 1999. The average cost per copper pound purchased was $.75, in 2001, $.86 in 2000, and $.74 in 1999. Copper costs as a percentage of net sales increased to 57.0% in 2001 from 54.8% in 2000 and 52.1% in 1999. The increase as a percentage of net sales was due primarily to copper wire sales prices decreasing more than copper raw material cost in 2001. Other raw material costs as a percentage of net sales were 13.6%, 14.0%, and 15.7% in 2001, 2000, and 1999, respectively. The decrease is due primarily to the Company's cost of other raw materials per pound of copper sold declining more than the price of copper wire sold. Depreciation, labor and overhead costs as a percentage of net sales were 16.8% in 2001, compared to 16.3% in 2000 and 17.8% in 1999. The increase in 2001 was due primarily to these costs containing significant fixed components versus the elastic nature of the price of copper wire sold. Although average copper costs during 1999 were lower than 1998, the cost at the end of 1999 was higher than the cost at the end of 1998. As a result of increases in the cost of copper during 1999, specifically at the end of 1999, the value of all inventory at December 31, 1999 using the LIFO method was greater than its FIFO value by approximately $3,276,000, resulting in a corresponding increase in the cost of goods sold of $3,361,000. At December 31, 1999, LIFO value exceeded the market value of the inventory by $159,000, thereby necessitating a reversal of the previously established lower of cost or market reserve in the amount of $2,465,000 and a corresponding decrease in the cost of goods sold. The net of these two adjustments increased cost of goods sold by $896,000. Although copper prices were relatively stable in 2000, the price at the end of 2000 was higher than at the end of 1999 and the copper pounds in inventory were reduced during the year. As a result of the increase in the cost of copper in 2000, the value of all inventories at December 31, 2000 using the LIFO method was greater than the FIFO value by approximately $1,348,000, resulting in a corresponding increase in the cost of goods sold of $1,928,000. At December 31, 2000, LIFO value was less than the market value of the inventory, thereby requiring a reversal of the previously established lower of cost or market reserve of approximately $159,000 and a corresponding decrease in the cost of goods sold. The net of the two above adjustments increased cost of goods sold by $1,769,000. As of December 31, 2001, the value of all inventories using the LIFO method was greater than the FIFO value by $8,934,000. This differential exceeded the December 31, 2000 differential of $1,348,000 by $7,586,000, resulting in a corresponding decrease in cost of goods sold. As of December 31, 2001, the LIFO cost basis of inventory exceeded its market value by $2,612,000, resulting in the Company establishing a lower of cost or market reserve for this amount, which increased cost of goods sold. The net of the two above adjustments decreased cost of goods sold by $4,974,000. Gross profit decreased to $40.5 million, or 14.4% of net sales, in 2001 from $40.6 million, or 14.3% of net sales, in 2000 and $32.0 million, or 14.0% of net sales, in 1999. The changes in gross profit were due to the factors discussed above. Selling expenses, which include freight and sales commissions, were $17.3 million in 2001, $17.6 million in 2000 and $13.5 million in 1999. As a percentage of net sales, selling expenses were 6.2% in 2001, 6.2% in 2000 and 5.9% in 1999. General and administrative expenses were $6.9 million in 2001, $6.4 million in 2000 and $5.2 million in 1999. As a percentage of net sales, general and administrative expenses were 2.5% in 2001, 2.3% in 2000 and 2.3% in 1999. In 2001 and 2000, general and administrative costs increased due to increased costs relating to higher sales volumes. These costs increased as a percentage of sales due to lower sales prices per copper pound as discussed above. Interest expense decreased to $1,833,000 in 2001 from $4,080,000 in 2000 and $2,922,000 in 1999. The decrease in 2001 is due to lower average debt levels coupled with lower floating interest rates. The Company capitalized interest expense relating to the construction of assets in the amounts of approximately $112,000 in 2001, $0 in 2000 and $330,000 in 1999. 10 The Company's effective tax rate was 36.0% in 2001 and 2000, down from 37.0% in 1999 as a result of an entity restructuring in mid-1999. As a result of the foregoing factors, the Company's net income was $9.1 million in 2001, $8.0 million in 2000 and $6.6 million in 1999. LIQUIDITY AND CAPITAL RESOURCES The following table summarizes the Company's cash flow activities.
YEAR ENDED DECEMBER 31, ------------------------------------------ 2001 2000 1999 ---------- ---------- ---------- (In thousands) Net income ............................................ $ 9,130 $ 8,050 $ 6,594 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation and amortization .................... 9,633 9,187 8,088 Other non-cash items ............................. 1,572 402 2,993 Increase (decrease) in accounts receivable, inventory and other assets ..................... 4,187 4,179 (24,966) Increase in trade accounts payable, accrued liabilities and other liabilities ...... 1,599 1,071 2,085 ---------- ---------- ---------- Net cash provided by (used in) operating activities .......................................... 26,121 22,889 (5,206) Investing activities: Purchases of property, plant and equipment (net) .................................. (12,840) (4,163) (8,744) Financing activities: (Decrease) increase in indebtedness, net ............ (12,600) (18,000) 16,600 Issuances of common stock ........................... 1,881 1,510 65 Purchase of treasury stock .......................... (1,366) (3,436) (2,891) ---------- ---------- ---------- Net cash (used in) provided by financing activities .......................................... (12,085) (19,296) 13,774 ---------- ---------- ---------- Net increase (decrease) in cash ....................... $ (1,196) $ (1,200) $ (176) ========== ========== ==========
The Company maintains a substantial inventory of finished products to satisfy customers' prompt delivery requirements. As is customary in the industry, the Company provides payment terms to most of its customers that exceed terms that it receives from its suppliers. Therefore, the Company's liquidity needs have generally consisted of operating capital necessary to finance these receivables and inventory. Capital expenditures have historically been necessary to expand the production capacity of the Company's manufacturing operations. The Company has satisfied its liquidity and capital expenditure needs with cash generated from operations, borrowings under its revolving credit facilities and sales of its common stock. Note 4 of the Notes to Consolidated Financial Statements in Part I of this Form 10-K is incorporated herein by reference as if fully restated herein. 11 Effective August 31, 1999, the Company through its indirectly wholly owned subsidiary, Encore Wire Limited, completed an unsecured loan facility with a group of banks (the "Financing Agreement"). The Financing Agreement replaced the Company's existing credit facility, and the Company is a guarantor of the indebtedness. Obligations under the Financing Agreement are the only contractual obligations or commercial commitments of the Company. The Financing Agreement was amended once, in June of 2000, to extend the term to May 31, 2003. The Financing Agreement provides for maximum borrowings of the lesser of $65.0 million or the amount of eligible accounts receivable plus the amount of eligible finished goods and raw materials, less any available reserves established by the banks. The calculated maximum borrowing amount available at December 31, 2001, as computed under the Financing Agreement, was $65.0 million. As of December 31, 2001, the Company had $30.0 million outstanding under this facility. The Financing Agreement is unsecured and contains customary covenants and events of default. The Company was in compliance with these covenants as of December 31, 2001. Pursuant to the Financing Agreement, the Company is prohibited from declaring, paying or issuing cash dividends. At December 31, 2001, the balance outstanding under the Financing Agreement was $30.0 million. Amounts outstanding under the Financing Agreement are payable on May 31, 2003, with interest due quarterly based on the bank's prime rate or LIBOR rate options, at the Company's election. In December 2001, the Company entered into an interest rate swap agreement on $24.0 million of its variable rate debt in order to hedge against an increase in variable interest rates. The terms of the agreement fix the interest rate on $24.0 million of the Company's variable rate, long-term note payable to 4.6% per annum plus a variable adder that is based on certain financial ratios contained in the loan covenants. This three year agreement expires in December 2004. Pursuant to a 1995 stock repurchase program and extensions thereof, the Company purchased an aggregate of 1,689,100 shares of its common stock during the period from March 24, 1995 through June 30, 2001. All stock repurchases under the program were authorized or ratified by the Board of Directors of the Company and were consummated in accordance with Rule 10b-18 under the Securities Exchange Act of 1934. Following the attacks of September 11, 2001, the Company purchased an aggregate of 36,000 shares of its common stock during the period from September 19 through September 24, 2001. No other shares were purchased by the Company during the quarter ended September 30, 2001. On November 6, the Board of Directors of the Company approved a new stock repurchase program covering the purchase of up to 300,000 additional shares of its common stock dependent upon market conditions. Common stock purchases under the new program will be made from time to time until December 31, 2002 on the open market or through privately negotiated transactions at prices determined by the Chairman of the Board or the President of the Company. Cash provided by operations was $26.1 million in 2001 compared to $22.9 million provided in 2000 and cash used by operations of $5.2 million in 1999. The increase of $3.2 million from 2000 to 2001 was the result of increased earnings, depreciation and deferred taxes. The increase of $28.1 million from 1999 to 2000 was primarily the result of an $11.8 million reduction in inventory in 2000 versus a $16.8 million increase in inventory in 1999. Cash used in investing activities increased to $12.8 million in 2001 from $4.2 million due to new building construction and related equipment purchases. Cash used in investing activities decreased to $4.2 million in 2000 from $8.7 million in 1999. During 2000, capital expenditures returned to a maintenance level after large investments were made the previous two years to expand capacity by constructing a copper rod fabrication facility, PVC manufacturing facility and a distribution center. The cash consumed by financing activities in 2001 and 2000 was primarily used to decrease borrowings on the Company's loan facility by $12.6 million and $18.0 million, respectively. Cash provided by financing activities was reduced by $1.4 million in 2001, $3.4 million in 2000 and $2.9 million in 1999, as a result of the purchase of treasury stock. Cash provided by financing activities was increased by $1.9 million in 2001, $1.5 million in 2000 and $65,000 in 1999, as the result of the issuance of common stock, primarily to satisfy employee option exercises. 12 During 2002, the Company expects its capital expenditures will consist of maintaining and adding manufacturing equipment for its residential and commercial wire operations. The total capital expenditures associated with these capital expenditures are estimated not to exceed $12.0 million in 2002. The Company also expects its working capital requirements to increase during 2002 as a result of continued increases in sales and potential increases in the cost of copper. Moreover, the Company expects that the inventory levels necessary to support sales of commercial wire will continue to be greater than the levels necessary to support comparable sales of residential wire. The Company believes that the cash flow from operations and the financing available from its' revolving credit facility will satisfy working capital and capital expenditure requirements for the next twelve months. CRITICAL ACCOUNTING POLICIES Management's discussion and analysis of its financial condition and results of operations are based upon the Company's consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. See Note 1 to the Consolidated Financial Statements. Management believes the following critical accounting policies affect its more significant estimates and assumptions used in the preparation of its consolidated financial statements. Inventories are stated at the lower of cost, using the last-in, first-out (LIFO) method, or market. The Company maintains only one inventory pool for LIFO purposes as all inventories held by the Company generally relate to the Company's only business segment, the manufacture and sale of copper building wire products. As permitted by accounting principles generally accepted in the United States, the Company maintains its inventory costs and cost of goods sold on a first-in, first-out (FIFO) basis and makes a quarterly adjustment to adjust total inventory and cost of goods sold from FIFO to LIFO. The Company applies the lower of cost or market test by comparing the LIFO cost of its raw materials, work-in-process and finished goods inventories to estimated market values, which are based primarily upon the most recent quoted market price of copper, in pound quantities, as of the end of each reporting period. As of December 31, 2001, a $0.05 reduction in the fair market value of copper, in pound quantities, would have required the Company to increase its lower of cost or market reserve and cost of goods sold by approximately $1,791,000 for the year ended December 31, 2001. Additionally, future reductions in the quantity of inventory on hand could cause copper that is carried in inventory at costs different from the cost of copper in the period in which the reduction occurs to be included in costs of goods sold for that period at the different price. The Company has provided an allowance for losses on customer receivables based upon estimates of those customers' inability to make required payments. Such estimate is established and adjusted based upon the makeup of the current receivable portfolio, past bad debt experience and current market conditions. If the financial condition of our customers were to deteriorate and impair their ability to make payments to the Company, additional allowances for losses might be required in future periods. INFORMATION REGARDING FORWARD LOOKING STATEMENTS This report contains various forward-looking statements and information that are based on management's belief as well as assumptions made by and information currently available to management. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. Such statements are subject to certain risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those expected. Among the key factors that may have a direct bearing on the Company's operating results are fluctuations in the economy and in the level of activity in the building and construction industry, demand for the Company's products, the impact of price competition and fluctuations in the price of copper. 13 ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Company does not engage in metal futures trading or hedging activities and does not enter into derivative financial instrument transactions for trading or other speculative purposes. However, the Company is generally exposed to commodity price and interest rate risks. In order to take advantage of the low prevailing interest rates at the end of 2001, the Company entered into an interest rate swap agreement on $24 million of its long-term debt. This arrangement was entered into to fix the interest rate on that portion of the debt for the next three years. The Company purchases copper cathode primarily from producers and merchants at prices determined each month based on the average daily closing prices for copper for that month, plus a negotiated premium. As a result, fluctuations in copper prices caused by market forces can significantly affect the Company's financial results. Interest rate risk is attributable to the Company's long-term debt. Effective August 31, 1999, the Company through its indirectly wholly owned subsidiary, Encore Wire Limited completed the "Financing Agreement". The amounts outstanding under the Financing Agreement are payable on May 31, 2003, with interest due quarterly based on the bank's prime rate or LIBOR rate options, at the Company's election. At December 31, 2001, the balance outstanding under the Financing Agreement was $30.0 million, and the average interest rate was 5.67%. There is inherent rollover risk for borrowings as they mature and are renewed at current market rates. The extent of this risk is not quantifiable or predictable because of the variability of future interest rates and the Company's future financing requirements. The Company took the steps outlined in the Liquidity and Capital Resources section on page 12 to hedge a portion of its' outstanding debt against rising interest rates. A 1% increase in the interest rate for the year 2001 would have increased the Company's interest expense by $333,500. For further information, see "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations." ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The Report of Independent Auditors and the consolidated financial statements of the Company and the notes thereto appear on the following pages. 14 Report of Independent Auditors Board of Directors Encore Wire Corporation We have audited the accompanying consolidated balance sheets of Encore Wire Corporation (the Company) as of December 31, 2001 and 2000, and the related consolidated statements of income, stockholders' equity, and cash flows for each of the three years in the period ended December 31, 2001. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Encore Wire Corporation at December 31, 2001 and 2000, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2001, in conformity with accounting principles generally accepted in the United States. /s/ Ernst & Young LLP Dallas, Texas January 25, 2002 15 Encore Wire Corporation Consolidated Balance Sheets
DECEMBER 31 2001 2000 -------------- -------------- ASSETS Current assets: Cash and cash equivalents $ 1,252,148 $ 55,979 Accounts receivable, net of allowance for losses of $541,476 and $413,648 in 2001 and 2000, respectively 45,616,298 54,002,608 Inventories (Note 2) 44,836,580 42,867,516 Prepaid expenses and other 2,390,353 460,543 -------------- -------------- Total current assets 94,095,379 97,386,646 Property, plant, and equipment - at cost: Land 3,456,979 3,583,329 Construction-in-progress 13,178,747 2,977,463 Buildings and improvements 24,645,848 26,086,303 Machinery and equipment 80,336,766 77,013,253 Furniture and fixtures 2,264,188 2,020,454 -------------- -------------- 123,882,528 111,680,802 Accumulated depreciation and amortization (46,498,736) (37,419,640) -------------- -------------- 77,383,792 74,261,162 Other assets 217,151 191,121 -------------- -------------- Total assets $ 171,696,322 $ 171,838,929 ============== ============== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Trade accounts payable $ 20,174,630 $ 18,487,044 Accrued liabilities (Note 3) 7,864,530 8,654,745 Current income taxes payable 1,702,123 737,674 Current deferred income taxes (Note 5) 1,990,700 960,465 -------------- -------------- Total current liabilities 31,731,983 28,839,928 Noncurrent deferred income taxes (Note 5) 7,035,871 6,852,848 Long-term note payable (Note 4) 30,000,000 42,600,000 Contingencies (Note 9) Stockholders' equity (Notes 6, 7 and 8): Convertible preferred stock, $.01 par value: Authorized shares - 2,000,000 Issued and outstanding shares - none Common stock, $.01 par value: Authorized shares - 20,000,000 Issued and outstanding shares - 16,944,785 in 2001 and 16,637,509 in 2000 169,448 166,375 Additional paid-in capital 34,040,542 32,162,267 Treasury stock, at cost - 1,689,100 in 2001 and 1,528,100 in 2000 (13,859,288) (12,493,338) Accumulated other comprehensive income (262,881) -- Retained earnings 82,840,647 73,710,849 -------------- -------------- Total stockholders' equity 102,928,468 93,546,153 -------------- -------------- Total liabilities and stockholders' equity $ 171,696,322 $ 171,838,929 ============== ==============
See accompanying notes. 16 Encore Wire Corporation Consolidated Statements of Income
YEAR ENDED DECEMBER 31 2001 2000 1999 -------------- -------------- -------------- Net sales $ 281,009,863 $ 283,689,096 $ 229,669,808 Cost of goods sold 240,552,777 243,132,019 197,635,985 -------------- -------------- -------------- Gross profit 40,457,086 40,557,077 32,033,823 Selling, general, and administrative expenses 24,475,040 24,027,034 18,741,589 -------------- -------------- -------------- Operating income 15,982,046 16,530,043 13,292,234 Other income (expense): Interest and other income 116,440 127,831 103,605 Interest expense (1,832,965) (4,079,928) (2,921,762) -------------- -------------- -------------- Income before income taxes 14,265,521 12,577,946 10,474,077 Income tax expense (Note 5) 5,135,723 4,528,100 3,880,100 -------------- -------------- -------------- Net income $ 9,129,798 $ 8,049,846 $ 6,593,977 ============== ============== ============== Weighted average common shares - basic (Note 7) 15,068,086 15,216,650 15,468,107 ============== ============== ============== Basic earnings per common share $ 0.61 $ 0.53 $ 0.43 ============== ============== ============== Weighted average common shares - diluted (Note 7) 15,156,690 15,382,870 15,713,491 ============== ============== ============== Diluted earnings per common share $ 0.60 $ 0.52 $ 0.42 ============== ============== ==============
See accompanying notes. 17 Encore Wire Corporation Consolidated Statements of Stockholders' Equity
ACCUMULATED ADDITIONAL OTHER COMMON STOCK PAID-IN TREASURY COMPREHENSIVE RETAINED SHARES AMOUNT CAPITAL STOCK INCOME EARNINGS TOTAL ---------- -------- ------------ ------------ ------------- ------------ ------------- Balance at December 31, 1998 16,304,129 $163,041 $ 30,591,061 $ (6,166,525) $ -- $ 59,067,026 $ 83,654,603 Net income -- -- -- -- -- 6,593,977 6,593,977 Proceeds from exercise of stock options 33,793 338 42,977 -- -- -- 43,315 Purchase of treasury stock -- -- -- (2,890,828) -- -- (2,890,828) Tax benefit on exercise of stock options -- -- 21,625 -- -- -- 21,625 ---------- -------- ------------ ------------ ---------- ------------ ------------- Balance at December 31, 1999 16,337,922 163,379 30,655,663 (9,057,353) -- 65,661,003 87,422,692 Net income -- -- -- -- -- 8,049,846 8,049,846 Proceeds from exercise of stock options 299,587 2,996 1,506,604 -- -- -- 1,509,600 Purchase of treasury stock -- -- -- (3,435,985) -- -- (3,435,985) ---------- -------- ------------ ------------ ---------- ------------ ------------- Balance at December 31, 2000 16,637,509 166,375 32,162,267 (12,493,338) -- 73,710,849 93,546,153 Net income -- -- -- -- -- 9,129,798 9,129,798 Unrealized loss on hedging activities -- -- -- -- (262,881) -- (262,881) ------------- Total comprehensive income -- -- -- -- -- -- 8,866,917 Proceeds from exercise of stock options 307,276 3,073 1,524,675 -- -- -- 1,527,748 Purchase of treasury stock -- -- -- (1,365,950) -- -- (1,365,950) Tax benefit on exercise of stock options -- -- 353,600 -- -- -- 353,600 ---------- -------- ------------ ------------ ---------- ------------ ------------- Balance at December 31, 2001 16,944,785 $169,448 $ 34,040,542 $(13,859,288) $ (262,881) $ 82,840,647 $ 102,928,468 ========== ======== ============ ============ ========== ============ =============
See accompanying notes. 18 Encore Wire Corporation Consolidated Statements of Cash Flows
YEAR ENDED DECEMBER 31 2001 2000 1999 ------------ ------------ ------------ OPERATING ACTIVITIES Net income $ 9,129,798 $ 8,049,846 $ 6,593,977 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation 9,633,040 9,187,014 8,088,037 Provision for bad debts 300,000 87,500 -- Deferred income taxes 1,213,258 255,706 2,988,673 (Gain) loss on disposal of assets 58,355 58,587 3,904 Changes in operating assets and liabilities: Accounts receivable 8,086,310 (7,497,695) (8,646,648) Inventories (1,969,064) 11,770,841 (16,778,440) Prepaid expenses and other (1,929,810) (92,853) (120,791) Current income taxes receivable -- -- 581,783 Trade accounts payable 1,950,467 405,499 1,233,608 Accrued liabilities (1,315,978) 441,984 335,853 Current income taxes payable 964,449 223,308 514,366 ------------ ------------ ------------ Net cash provided by (used in) operating activities 26,120,825 22,889,737 (5,205,678) INVESTING ACTIVITIES Purchases of property, plant, and equipment (14,530,556) (4,169,203) (8,939,393) Increase in long term investments 7,500 -- 4,500 (Increase) decrease in deposits (33,530) (46,085) 73,000 Proceeds from sale of assets 1,716,532 52,000 117,838 ------------ ------------ ------------ Net cash provided by (used in) investing activities (12,840,054) (4,163,288) (8,744,055) FINANCING ACTIVITIES Decrease in long-term note payable (12,600,000) (18,000,000) 16,600,000 Proceeds from issuance of common stock, net 1,881,348 1,509,600 64,940 Purchase of treasury stock (1,365,950) (3,435,985) (2,890,828) ------------ ------------ ------------ Net cash provided by (used in) financing activities (12,084,602) (19,926,385) 13,774,112 ------------ ------------ ------------ Net increase (decrease) in cash and cash equivalents 1,196,169 (1,199,936) (175,621) Cash and cash equivalents at beginning of year 55,979 1,255,915 1,431,536 ------------ ------------ ------------ Cash and cash equivalents at end of year $ 1,252,148 $ 55,979 $ 1,255,915 ============ ============ ============
See accompanying notes. 19 Encore Wire Corporation Notes to Consolidated Financial Statements December 31, 2001 1. SIGNIFICANT ACCOUNTING POLICIES BUSINESS Encore Wire Corporation (the Company) conducts its business in one segment - the manufacture of copper electrical wire, principally NM cable, for use primarily as interior wiring in homes, apartments, and manufactured housing, and THHN cable, for use primarily as wiring in commercial and industrial buildings. The Company sells its products primarily through approximately 30 manufacturers' representatives located throughout the United States and, to a lesser extent, through its own direct marketing efforts. The principal customers for Encore's commercial and residential wire are wholesale electrical distributors. Copper, a commodity product, is the principal raw material used in the Company's manufacturing operations. Copper accounted for approximately 66.6%, 63.9%, and 60.6% of its cost of goods sold during 2001, 2000, and 1999, respectively. The price of copper fluctuates, depending on general economic conditions and in relation to supply and demand and other factors, and has caused monthly variations in the cost of copper purchased by the Company. The Company cannot predict copper prices in the future or the effect of fluctuations in the cost of copper on the Company's future operating results. Future reductions in the price of copper could require the Company to record an additional lower of cost or market adjustment against the related inventory balance. PRINCIPLES OF CONSOLIDATION The consolidated financial statements include the accounts of the Company and its wholly owned subsidiary. Significant intercompany accounts and transactions have been eliminated upon consolidation. Certain prior year balances have been reclassified to conform to the current year presentation. 20 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) RECENT ACCOUNTING PRONOUNCEMENTS In June 1998, the Financial Accounting Standards Board issued Statement No. 133, "Accounting for Derivative Instruments and Hedging Activities" (SFAS 133), as amended, which was adopted by the Company on January 1, 2001. SFAS 133 requires that all derivatives be recorded on the balance sheet at fair value. Changes in derivatives that are not hedges are adjusted to fair value through income. Changes in derivatives that meet the Statement's hedge criteria will either be offset through income, or recognized in other comprehensive income until the hedged item is recognized in earnings. The adoption of SFAS 133 had no material impact on the Company's financial condition, results of operations or cash flows. USE OF ESTIMATES The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that effect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. REVENUE RECOGNITION Revenue from the sale of the Company's products is recognized upon shipment to the customer, which is when title and risk of loss pass to the customer. The Company provides for estimated returns and allowances at the time of sale. FREIGHT EXPENSES The Company classifies shipping and handling costs as a component of selling, general and administrative expenses. Shipping and handling costs were approximately $9.1 million, $8.6 million and $6.8 million for the fiscal years ended December 31, 2001, 2000 and 1999, respectively. 21 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) FINANCIAL INSTRUMENTS AND CONCENTRATIONS OF CREDIT RISK Cash and cash equivalents, accounts receivable, trade accounts payable, accrued liabilities, and notes payable are stated at expected settlement amounts which approximate fair value. Accounts receivable represent amounts due from customers (primarily wholesale electrical distributors, manufactured housing suppliers, and retail home improvement centers) related to the sale of the Company's products. Such receivables are uncollateralized and are generally due from a diverse group of customers located throughout the United States. The Company establishes an allowance for losses based upon the makeup of the current portfolio, past bad debt experience and current market conditions. The Company charged off accounts receivable of $172,333, $169,591 and $27,343 in 2001, 2000 and 1999, respectively. CASH AND CASH EQUIVALENTS The Company considers all highly liquid debt instruments purchased with a maturity of three months or less to be cash equivalents. INVENTORIES Inventories are stated at the lower of cost, using the last-in, first-out (LIFO) method, or market. The Company evaluates the market value of its raw materials, work-in-process and finished goods inventory primarily based upon reference to current raw and finished copper and other materials prices at the end of each period. PROPERTY, PLANT, AND EQUIPMENT Depreciation of property, plant, and equipment for financial reporting purposes is provided on the straight-line method over the estimated useful lives of the respective assets as follows: buildings and improvements, 15 to 30 years; machinery and equipment, 3 to 10 years; and furniture and fixtures, 3 to 5 years. Accelerated cost recovery methods are used for tax purposes. Repairs and maintenance costs are expensed as incurred. 22 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) STOCK OPTIONS The Company has elected to continue to follow the expense recognition criteria in Accounting Principles Board Opinion No. 25 (APB 25), "Accounting for Stock Issued to Employees" and provides the related disclosures as required by Statement of Financial Accounting Standards No. 123 (FAS 123), "Accounting for Stock-Based Compensation". EARNINGS PER SHARE Income per common and common equivalent share is computed using the weighted average number of shares of common stock and common stock equivalents outstanding during each period. The dilutive effects of stock options and common stock warrants, which are common stock equivalents, are calculated using the treasury stock method. INCOME TAXES Income taxes are provided based on the deferred method, resulting in income tax assets and liabilities due to temporary differences. Temporary differences are differences between the tax bases of assets and liabilities and their reported amounts in the financial statements that will result in taxable or deductible amounts in future years. 2. INVENTORIES Inventories consist of the following at December 31:
2001 2000 ------------ ------------ Raw materials $ 3,761,870 $ 13,421,656 Work-in-process 3,671,218 3,403,708 Finished goods 31,081,648 24,694,088 ------------ ------------ 38,514,736 41,519,452 Adjust to LIFO cost 8,933,919 1,348,064 Lower of cost or market adjustment (2,612,075) -- ------------ ------------ $ 44,836,580 $ 42,867,516 ============ ============
23 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 2. INVENTORIES (CONTINUED) During the fiscal year ended December 31, 2000, the Company liquidated inventory quantities resulting in a decrease in cost of goods sold under the LIFO method of approximately $629,000. During the fiscal year ended December 31, 2001, there were no liquidations of inventory quantities. 3. ACCRUED LIABILITIES Accrued liabilities consist of the following at December 31:
2001 2000 ---------- ---------- Sales volume discounts payable $3,997,739 $4,749,635 Property taxes payable 1,678,271 1,729,478 Commissions payable 495,312 686,521 Other accrued liabilities 1,693,208 1,489,111 ---------- ---------- $7,864,530 $8,654,745 ========== ==========
4. LONG-TERM NOTE PAYABLE On August 31, 1999, the Company signed a new Financing Agreement with a bank to provide for maximum borrowings of the lesser of $65.0 million or the amount of eligible accounts receivable plus the amount of eligible finished goods and raw materials inventories as defined in the Financing Agreement (approximately $65.0 million at December 31, 2001). The facility is unsecured and contains customary covenants and conditions providing for events of default. The Company is prohibited from declaring, paying, or issuing cash dividends. At December 31, 2001, the balance outstanding under the revolving credit facility was $30.0 million. Amounts outstanding under the facility are payable on May 31, 2003, with interest due quarterly based on the bank's prime rate or LIBOR rate options, at the Company's election (average interest rate at December 31, 2001 was 4.8%). Each interest rate option includes a variable adder based upon certain financial ratios contained in its loan covenants. The Company paid interest totaling $1,889,956, $4,021,313, and $2,831,275 in 2001, 2000, and 1999, respectively. The Company capitalized $112,307, $0 and $329,738 of interest in 2001, 2000 and 1999, respectively, relating to the construction of the distribution center, rod mill, and plastics mill. 24 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 4. LONG-TERM NOTE PAYABLE (CONTINUED) In December 2001, the Company entered into an interest rate swap agreement on $24.0 million of its variable rate debt in order to hedge against an increase in variable interest rates. The terms of the agreement effectively fix the interest rate on $24.0 million of the Company's variable rate, long-term note payable to 4.6% per annum plus a variable adder based upon certain financial ratios contained in its loan covenants. Based upon its terms and conditions, the hedge qualifies for the short-cut method under SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities", as amended, and all unrealized gains or losses related to the hedge instrument will be recorded through accumulated other comprehensive income. For the fiscal year ended December 31, 2001, the Company recorded an unrealized loss of $262,881 related to its interest rate swap agreement. As of December 31, 2001, the Company has no other derivative financial instruments and is engaged in no other hedging activities. 5. INCOME TAXES The provisions for income tax expense are summarized as follows:
2001 2000 1999 ---------- ---------- ---------- Current: Federal $3,616,572 $3,986,658 $ 802,604 State 305,893 285,736 88,823 Deferred 1,213,258 255,706 2,988,673 ---------- ---------- ---------- $5,135,723 $4,528,100 $3,880,100 ========== ========== ==========
The differences between the provision for income taxes and income taxes computed using the federal income tax rate are as follows:
2001 2000 1999 ------------ ------------ ------------ Amount computed using the statutory rate $ 4,992,932 $ 4,402,281 $ 3,661,526 State income taxes, net of federal tax benefit 234,212 221,556 145,395 Change in tax rate -- (153,324) -- Other items (91,421) 57,587 73,179 ------------ ------------ ------------ $ 5,135,723 $ 4,528,100 $ 3,880,100 ============ ============ ============
25 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 5. INCOME TAXES (CONTINUED) The tax effect of each type of temporary difference giving rise to the deferred tax liability at December 31, 2001 and 2000, is as follows:
DEFERRED TAX ASSET (LIABILITY) 2001 2000 -------------------------------------------------------------------------- CURRENT NONCURRENT CURRENT NONCURRENT -------------- -------------- -------------- -------------- Depreciation and amortization $ -- $ (7,035,871) $ -- $ (6,852,848) Inventory (2,354,370) -- (1,603,384) -- Allowance for doubtful accounts 162,198 -- 151,974 -- Accrued expenses 42,178 -- (9,079) -- Uniform capitalization rules 324,524 -- 251,043 -- AMT Credit -- -- 348,007 -- Other (165,230) -- (99,026) -- -------------- -------------- -------------- -------------- $ (1,990,700) $ (7,035,871) $ (960,465) $ (6,852,848) ============== ============== ============== ==============
The Company made income tax payments (received refunds) of $2,618,895 in 2001, $3,618,512 in 2000, and $(227,000) in 1999. 26 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 6. STOCK OPTIONS The Company has a stock option plan for employees that provides for the granting of stock options and authorizes the issuance of common stock upon the exercise of such options for up to 2,341,500 shares of common stock. The stock options vest over five years and expire ten years from grant date. The following summarizes activity in the stock option plan for the years ended December 31, 2001, 2000, and 1999:
SHARES UNDER PRICE PER AGGREGATE OPTIONS SHARE OPTION PRICE ------------ ------------ ---------------- Options outstanding at December 31, 1998 925,800 $ 0.33-17.33 $ 5,855,159 Options granted 116,500 6.50- 9.25 775,125 Options exercised (33,793) 0.33- 4.50 (197,126) Options canceled (33,555) 4.17-10.00 (10,961) ------------ ------------ ------------ Options outstanding at December 31, 1999 974,952 0.33-17.33 6,422,197 Options granted 87,000 5.63- 7.00 562,760 Options exercised (299,587) 0.33- 5.84 (1,509,665) Options canceled (28,850) 6.22-10.00 (240,191) ------------ ------------ ------------ Options outstanding at December 31, 2000 733,515 4.55-17.33 5,235,101 Options granted 331,000 6.63-11.55 3,643,880 Options exercised (307,276) 0.33-10.00 (1,527,929) Options canceled (17,050) 5.88-10.00 (155,970) ------------ ------------ ------------ Options outstanding at December 31, 2001 740,189 $ 4.55-17.33 $ 7,195,082 ============ ============ ============
The following summarizes information about stock options outstanding at December 31, 2001:
OPTIONS OUTSTANDING OPTIONS EXERCISABLE ---------------------------------------------- ----------------------------- WEIGHTED AVERAGE WEIGHTED WEIGHTED REMAINING AVERAGE AVERAGE SHARES CONTRACTUAL EXERCISE SHARES EXERCISE RANGE OF EXERCISE PRICES OUTSTANDING LIFE PRICE EXERCISABLE PRICE ------------------------ ------------ ------------ ------------ ------------ ------------ $ 4.55 - $ 7.00 270,089 7.66 years $ 6.40 110,490 $ 6.23 $ 8.03 - $11.55 417,600 9.11 years $ 10.79 74,180 $ 9.10 $17.00 - $17.33 52,500 6.14 years $ 17.05 40,500 $ 17.04 ------------ ------------ ------------ ------------ ------------ $ 4.55 - $17.33 740,189 8.37 years $ 9.63 225,170 $ 9.12 ============ ============ ============ ============ ============
27 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 6. STOCK OPTIONS (CONTINUED) Pro forma information regarding net income and income per share has been determined as if the Company had accounted for employee stock options granted subsequent to December 31, 1994, under the fair value method provided for under FAS 123. The fair value for the stock options granted to directors, officers, and key employees of the Company on or after January 1, 1995, was estimated at the date of the grant using the Black-Scholes options pricing model with the following weighted-average assumptions:
2001 2000 1999 -------- -------- -------- Risk-free interest rate 3.89% 5.54% 6.43% Expected dividend yield 0.00% 0.00% 0.00% Expected volatility 56% 55% 54% Expected lives 5.0 YEARS 5.0 years 5.0 years
The Black-Scholes option valuation model was developed for use in estimating the fair value of traded options, which have no vesting restrictions and are fully transferable. In addition, option valuation models require the input of highly subjective assumptions including the expected stock price volatility. The weighted-average fair value of stock options granted during the years ended December 31, 2001, 2000, and 1999, was $5.72, $4.59, and $3.57, respectively. For purposes of the pro forma disclosures, the estimated fair value of stock options granted has been amortized to expense over the vesting period. The Company's pro forma information for FAS 123 is as follows (in thousands, except for earnings per common share information):
2001 2000 1999 ---------- --------- ---------- Net income As reported $ 9,130 $ 8,050 $ 6,594 Pro forma 8,863 7,863 6,436 Basic earnings per common share As reported 0.61 0.53 0.43 Pro forma 0.59 0.52 0.42 Diluted earnings per common share As reported 0.60 0.52 0.42 Pro forma 0.58 0.51 0.41
28 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 7. EARNINGS PER SHARE The following table sets forth the computation of basic and diluted earnings per share:
2001 2000 1999 ------------ ------------ ------------ Numerator: Net income $ 9,129,798 $ 8,049,846 $ 6,593,977 ============ ============ ============ Denominator: Denominator for basic earnings per share - weighted average shares 15,068,086 15,216,650 15,468,107 Effect of dilutive securities: Employee stock options 88,604 166,220 245,384 ------------ ------------ ------------ Denominator for diluted earnings per share - weighted average shares 15,156,690 15,382,870 15,713,491 ============ ============ ============
8. STOCKHOLDERS' EQUITY Pursuant to a 1995 stock repurchase program and extensions thereof, the Company purchased an aggregate of 1,653,100 shares of its common stock during the period from March 24, 1995 through June 30, 2001. All stock repurchases under the program were authorized or ratified by the Board of Directors of the Company. Following the attacks of September 11, 2001, the Company purchased an aggregate of 36,000 shares of its common stock during the period from September 19, 2001 through September 24, 2001. In November 2001, the Company's Board of Directors approved a new stock repurchase program covering the purchase of up to 300,000 additional shares of its common stock dependent upon market conditions. Since the new plan was approved in November 2001, no common shares have been repurchased. 29 Encore Wire Corporation Notes to Consolidated Financial Statements (continued) 9. CONTINGENCIES The Company is a party to litigation and claims that arise out of the ordinary business of the Company. While the results of these matters cannot be predicted with certainty, the Company does not believe the final outcome of such litigation and claims will have a material adverse effect on the financial condition, the results of operations or the cash flows of the Company because the Company believes that it has adequate insurance and reserves to cover any damages that may ultimately be awarded. 10. QUARTERLY FINANCIAL INFORMATION (UNAUDITED) The following is a summary of the unaudited quarterly financial information for the two years ended December 31, 2001 and 2000 (in thousands, except per share amounts):
THREE MONTHS ENDED 2001 MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31 ---- ---------- ---------- ------------ ----------- Net sales $ 69,757 $ 75,007 $ 73,020 $ 63,226 Gross profit 9,830 10,242 9,910 10,475 Net income 2,032 2,228 2,135 2,735 Net income per common share - basic 0.13 0.15 0.14 0.18 Net income per common share - diluted 0.13 0.15 0.14 0.18
THREE MONTHS ENDED 2000 MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31 ---- ---------- ---------- ------------ ----------- Net sales $ 67,049 $ 73,027 $ 70,387 $ 73,226 Gross profit 9,187 9,784 10,424 11,162 Net income 1,531 1,708 2,175 2,636 Net income per common share - basic 0.10 0.11 0.14 0.17 Net income per common share - diluted 0.10 0.11 0.14 0.17
30 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE Not applicable. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY The section entitled "Election of Directors" and "Section 16 (a) Beneficial Ownership Reporting Compliance" appearing in the Company's proxy statement for the annual meeting of stockholders to be held on May 7, 2002 sets forth certain information with respect to the directors of the Company and with respect to Section 16 (a) reporting obligations of directors and officers are incorporated herein by reference. Certain information with respect to persons who are or may be deemed to be executive officers of the Company is set forth under the caption "Executive Officers of the Company" in Part I of this report. ITEM 11. EXECUTIVE COMPENSATION The section entitled "Executive Compensation" appearing in the Company's proxy statement for the annual meeting of stockholders to be held on May 7, 2002 sets forth certain information with respect to the compensation of management of the Company and is incorporated herein by reference. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The section entitled "Security Ownership of Certain Beneficial Owners, Directors and Executive Officers" appearing in the Company's proxy statement for the annual meeting of stockholders to be held on May 7, 2002 sets forth certain information with respect to the ownership of the Company's common stock, and is incorporated herein by reference. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS The section entitled "Executive Compensation - Certain Relationships and Related Transactions" appearing in the Company's proxy statement for the annual meeting of stockholders to be held on May 7, 2002 sets forth certain information with respect to certain relationships and related transactions, and is incorporated herein by reference. 31 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) The following documents are filed as a part of this report: (1) Financial Statements included in Item 8 herein: Report of Independent Auditors Consolidated Balance Sheets as of December 31, 2001 and 2000 Consolidated Statements of Income for the years ended December 31, 2001, 2000, and 1999 Consolidated Statements of Stockholders' Equity for the years ended December 31, 2001, 2000 and 1999 Consolidated Statements of Cash Flows for years ended December 31, 2001, 2000 and 1999 Notes to Consolidated Financial Statements (2) Financial Statement Schedules included in Item 8 herein: All schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable and, therefore, have been omitted. (3) Exhibits: The information required by this Item 14(a)(3) is set forth in the Index to Exhibits accompanying this Annual Report on Form 10-K. (b) No Current Reports on Form 8-K were filed during the quarter ended December 31, 2001. 32 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, Encore Wire Corporation has duly caused this Annual Report to be signed on its behalf by the undersigned, thereunto duly authorized. ENCORE WIRE CORPORATION Date: March 21, 2002 By: /s/ VINCENT A. REGO ------------------------------- Vincent A. Rego Chief Executive Officer Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ VINCENT A. REGO Chairman of the Board March 21, 2002 - --------------------------------------------- of Directors and Chief Vincent A. Rego Executive Officer /s/ DANIEL L. JONES President and Chief Operating March 21, 2002 - --------------------------------------------- Officer Daniel L. Jones Director /s/ FRANK J. BILBAN Vice President -- Finance, March 21, 2002 - --------------------------------------------- Secretary and Treasurer Frank J. Bilban (Principal Financial and Accounting Officer)
33 /s/ DONALD E. COURTNEY Vice-Chairman of the March 21, 2002 - --------------------------------------------- Board of Directors Donald E. Courtney /s/ JOSEPH M. BRITO Director March 21, 2002 - --------------------------------------------- Joseph M. Brito /s/ JOHN H. WILSON Director March 21, 2002 - --------------------------------------------- John H. Wilson /s/ JOHN P. PRINGLE Director March 21, 2002 - --------------------------------------------- John P. Pringle /s/ WILLIAM R. THOMAS Director March 21, 2002 - --------------------------------------------- William R. Thomas
34 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 3.1 Certificate of Incorporation of Encore Wire Corporation, as amended (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1, as amended (No. 33-47696), and incorporated herein by reference). 3.2 Amended and Restated Bylaws of Encore Wire Corporation, as amended through February 7, 2002 (included herein). 10.1 Financing Agreement by and among Encore Wire Limited, as Borrower, Bank of America, National Association, as Agent, and Bank of America, National Association, and Comerica Bank-Texas, as Lenders, dated August 31, 1999 (filed as exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1999 and incorporated herein by reference). 10.2 First amendment to Financing Agreement of August 31, 1999, dated June 27, 2000 by and among Encore Wire Limited, as Borrower, Bank of America, National Association, as Agent, and Bank of America, National Association, and Comerica Bank-Texas, as Lenders, as Agent and Bank of America, National Association and Comerica Bank - Texas as Lenders (filed as exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 and incorporated herein by reference). 10.3* 1999 Stock Option Plan, as amended and restated, effective as of October 24, 2001 (filed as Annex B to the Company's proxy statement on Schedule 14A for the 2002 annual meeting). 10.4* 1989 Stock Option Plan, as amended and restated (filed as Exhibit 4.1 to the Company's Registration Statement on Form S-8 (No. 333-38729), and incorporated herein by reference), terminated except with respect to outstanding options thereunder. 21.1 Subsidiaries (included herein). 23.1 Consent of Ernst & Young LLP (included herein).
* Management contract or compensatory plan EX-3.2 3 d94199ex3-2.txt AMENDED AND RESTATED BYLAWS EXHIBIT 3.2 AMENDED AND RESTATED BYLAWS OF ENCORE WIRE CORPORATION ---------- ARTICLE I. OFFICES Section 1. The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II. MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Dallas, State of Texas, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on the first Tuesday in April, if not a legal holiday, and if a legal holiday, then on the next secular day following, at nine o'clock a.m., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than fifty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before each annual 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 registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city 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 time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president or the vice chairman and shall be called by the president, the vice chairman or secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question. Section 10. Each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by a such stockholder, but no proxy shall be voted after three years from its date, unless the proxy provides for a longer period. Section 11. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, by any provision of the statutes, the meeting and vote of stockholders may be dispensed with if all of the stockholders who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such corporate action being taken; or if the certificate of incorporation authorizes the action to be taken with the written consent of the holders of less than all of the stock who would have been entitled to vote upon the action if a meeting were held, then on the written consent of the stockholders having not less than such percentage of the number of votes as may be authorized in the certificate of incorporation; provided that in no case shall the written consent be by the holders of stock having less than the minimum percentage of the vote required by statute for the proposed corporate action, and provided that prompt notice must be given to all stockholders of the taking of corporate action without a meeting and by less than unanimous consent. 2 ARTICLE III. DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be eight (8). The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual meeting of stockholders and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The Board of Directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected Board of Directors shall be held immediately following and at the same place as the annual meeting of stockholders and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event such meeting is not held at such time and place, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the Board of Directors may be called by the president or the vice chairman on twenty-four hours notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president, vice chairman or secretary in like manner and on like notice on the written request of two directors. Section 8. At all meetings of the Board of Directors a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum, shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 3 Section 9. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. The members of the Board of Directors or any committee thereof may participate in a meeting of such board or committee utilizing conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting. COMMITTEES OF DIRECTORS Section 11. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; provided, however, that in the absence or disqualification of any member of such committee or committees the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. COMPENSATION OF DIRECTORS Section 13. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as a director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV. NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by prepaid telegram. 4 Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V. Section 1. Elected Officers. The officers of the corporation shall be chosen by the Board of Directors and shall be a chairman of the Board of Directors, a president, one or more vice presidents, a secretary and a treasurer. The officers of the corporation may also include a vice chairman, who shall be chosen by the Board of Directors. Section 2. Election. The Board of Directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the Board of Directors and a president from its members, and one or more vice presidents, a secretary and a treasurer, none of whom need be a member of the Board of Directors. The Board of Directors may also choose a vice chairman, who need not be a member of the Board of Directors. The Board of Directors, the chairman of the Board of Directors or the president at any time may also appoint one or more assistant secretaries and assistant treasurers. Section 3. Appointed Officers. The Board of Directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. Section 4. Compensation. The salaries of the chairman of the Board of Directors, of the president, of the vice chairman, of any vice president and of the secretary and the treasurer of the corporation shall be fixed by the Board of Directors. Section 5. Term of Office; Removal; Filling of Vacancies. Except as may be otherwise provided by the Board of Directors or in these bylaws, each officer of the corporation shall hold office until the first meeting of directors after the next annual meeting of stockholders following his election or appointment and until his successor is chosen and qualified. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the whole Board of Directors. If the office of any officer becomes vacant for any reason, the vacancy shall be filled by the Board of Directors. 5 THE CHAIRMAN OF THE BOARD Section 6. The chairman of the board shall, when present, preside at meetings of the Board of Directors and the stockholders. He shall assist the Board of Directors in the formulation of policies of the corporation and shall be available to other officers for consultation and advice. Where formulation of policies of the corporation does not require action by the Board of Directors, such policies shall be formulated by the chairman of the board in collaboration with the president. He shall have power and general authority to execute bonds, deeds and contracts in the name of the corporation and to affix the corporate seal thereto; to sign stock certificates; to cause the employment or appointment of such employees and agents of the corporation as the proper conduct of operations may require and to fix their compensation, subject to the provisions of these bylaws; to remove or suspend any employee or agent who shall have been employed or appointed under his authority or under the authority of an officer subordinate to him; and to suspend for cause, pending final action by the authority which shall have elected or appointed him, any officer subordinate to the chairman of the board. He shall have such other powers and duties as may, from time to time, be prescribed by the Board of Directors. THE VICE CHAIRMAN Section 7. The vice chairman, if one is elected, shall have the power to call special meetings of the stockholders and of the Board of Directors for any purpose or purposes, and, in the absence of the chairman of the board, the vice chairman shall preside at all meetings of the Board of Directors unless he shall be absent. The vice chairman shall advise and counsel the other officers of the corporation and shall exercise such powers and perform such duties as shall be assigned to or required of him from time to time by the Board of Directors or the chairman of the board. THE PRESIDENT Section 8. The President shall be the chief executive officer of the corporation, shall, in the absence of the chairman of the board, preside (1) at all meetings of the stockholders and (2) in the absence of the vice chairman, if one is elected, at all meetings of the Board of Directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the Board of Directors and all policies formulated by the Board of Directors, or by the chairman of the board in collaboration with the president, are carried into effect. The president shall have power and general authority to execute bonds, deeds and contracts in the name of the corporation and to affix the corporate seal thereto; to sign stock certificates; to cause the employment or appointment of such employees and agents of the corporation as the proper conduct of operations may require and to fix their compensation, subject to the provisions of these bylaws; to remove or suspend any employee or agent who shall have been employed or appointed under his authority or under authority of an officer subordinate to him; to suspend for cause, pending final action by the authority which shall have elected or appointed him, any officer subordinate to the president; and in general to exercise all the powers usually appertaining to the office of president and chief executive officer of a corporation, except as otherwise provided by statute, the certificate of incorporation or these bylaws. In the event of the absence or disability of the president, his duties shall be performed and his powers may be exercised by the vice presidents in the order of their seniority, unless otherwise determined by the president, the chairman of the board, the Executive Committee or the Board of Directors. THE VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS Section 9. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers or and be subject to all the 6 restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 10. The assistant vice president, or if there be more than one, the assistant vice presidents in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall in the absence of any vice president or in the event of the inability or refusal to act of any vice president, perform the duties and exercise the powers of such vice president and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have custody of the corporate funds and securities of the corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors. Section 14. The treasurer shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the president and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the Board of Directors, the treasurer shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control be longing to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his inability or refusal to act, 7 perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. ARTICLE VI. CERTIFICATES OF STOCK Section 1. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation, by the chairman or vice-chairman of the board of directors, or the president or a vice president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. Section 2. Where a certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation or its employee, any other signature on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFERS OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of and to vote at any meeting of stockholders or any adjournment 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 shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of and to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. 8 REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII. GENERAL PROVISIONS INDEMNIFICATION OF OFFICERS AND DIRECTORS Section 1. (a) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was 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 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 to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was 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 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 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. (c) To the extent that a director, officer, employee or agent of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in 9 subsection (a) or (b), 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. (d) Any indemnification under subsection (a) or (b) (unless 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 subsections (a) and (b). Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Reasonable expenses, including court costs and attorneys' fees, incurred by a person who was or is a witness or who was or is named as a defendant or respondent in any threatened, pending or completed action, claim, suit or proceeding, whether civil, criminal, administrative or investigative, any appeal in such an action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding (a "Proceeding"), by reason of the fact that such individual is or was a director or officer of the corporation, or while a director or officer of the corporation is or was serving at the request of the corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another corporation, partnership, trust, employee benefit plan or other enterprise, shall be paid by the corporation at reasonable intervals in advance of the final disposition of such Proceeding, and without the determination set forth in Section 1(d) of this Article VII, upon receipt by the corporation of a written affirmation by such person of his good faith belief that he has met the standard of conduct necessary for indemnification under this Section 1, and a written undertaking by or on behalf of such person to repay the amount paid or reimbursed by the corporation if it is ultimately determined that he is not entitled to be indemnified by the corporation as authorized in this Section 1. Such written undertaking shall be an unlimited obligation of such person and it may be accepted without reference to financial ability to make repayment. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. (f) The indemnification provided by this section shall not be deemed exclusive of any other rights to which those indemnified may be entitled under the certificate of incorporation or any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding 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. (g) The corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this section. 10 (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. INTERESTED DIRECTORS AND OFFICERS; QUORUM Section 2. 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 (i) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the board or the committee, and the board 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 (ii) 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 (iii) the contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board or of a committee which authorizes the contract or transaction. DIVIDENDS Section 3. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 4. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 5. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. 11 FISCAL YEAR Section 6. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. SEAL Section 7. The corporate seal shall have inscribed thereon the name of the corporation and shall be in such form as may be approved from time to time by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed, affixed, imprinted or in any manner reproduced. ARTICLE VIII. AMENDMENTS These bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders or by the Board of Directors at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. EX-21.1 4 d94199ex21-1.txt SUBSIDIARES OF THE REGISTRANT EXHIBIT 21.1 SUBSIDIARIES EWC Aviation Corp., a Texas corporation EWC GP Corp., a Delaware corporation EWC LP Corp., a Delaware corporation Encore Wire Limited, a Texas limited partnership EX-23.1 5 d94199ex23-1.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statements (Form S-8 No. 333-38729, Form S-8 No. 33-89126 and Form S-8 No. 33-54484) pertaining to the 1989 Stock Option Plan of Encore Wire Corporation of our report dated January 25, 2002, with respect to the consolidated financial statements of Encore Wire Corporation included in the Form 10-K for the year ended December 31, 2001. /s/ Ernst & Young LLP Dallas, Texas March 21, 2002 -----END PRIVACY-ENHANCED MESSAGE-----