-----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, W2OhSfW2JubjoPmK9EQmUUFZzMzfvxHXnXJvINrND6cAydqSr7v5XHx7v5K7Dtbx yAZMJC0tBQZWBnua927eXQ== 0000950124-01-000011.txt : 20010122 0000950124-01-000011.hdr.sgml : 20010122 ACCESSION NUMBER: 0000950124-01-000011 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20000930 FILED AS OF DATE: 20010102 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GEOGRAPHICS INC CENTRAL INDEX KEY: 0001000621 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PAPER AND PAPER PRODUCTS [5110] IRS NUMBER: 870305614 STATE OF INCORPORATION: WI FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-26756 FILM NUMBER: 1500501 BUSINESS ADDRESS: STREET 1: 1555 ODELL RD STREET 2: P O BOX 1750 CITY: BLAINE STATE: WA ZIP: 98230 BUSINESS PHONE: 3603326711 MAIL ADDRESS: STREET 1: 1555 ODELL RD CITY: BLAINE STATE: WA ZIP: 98230 10-Q 1 c58681qe10-q.txt QUARTERLY REPORT ENDED 9/30/00 1 U.S. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 10-Q |X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Fiscal Quarter Ended September 30, 2000 OR | | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition Period from _____ to _____ Commission file number 0-26756 GEOGRAPHICS, INC. (Exact Name of Registrant as Specified in Its Charter) ---------------- DELAWARE 87-0305614 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 1555 ODELL ROAD, P.O. BOX 1750, BLAINE, WASHINGTON 98231 (Address and Zip Code of Principal Executive Offices) Registrant's Telephone Number, Including Area Code (360) 332-6711 ---------------- Securities registered pursuant to Section 12(b) of the Act: NONE Securities registered under Section 12(g) of the Exchange Act: COMMON STOCK, $.001 PAR VALUE Indicate by checkmark 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 ----- ----- The aggregate market value of the common stock held by nonaffiliates of the registrant as of December 12, 2000 was $8,508,142 based on a closing sales price of $0.3125 per share on the NASDAQ OTC Bulletin Board on such date. The number of shares outstanding of the registrant's common stock, $.001 par value, as of December 12, 2000 was 38,116,676. DOCUMENTS INCORPORATED BY REFERENCE. NONE 2 TABLE OF CONTENTS
Page PART I - FINANCIAL INFORMATION...........................................................1 ITEM 1. FINANCIAL STATEMENTS.....................................................1 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS....................................................1 FORWARD-LOOKING STATEMENTS........................................................1 RESULTS OF OPERATIONS.............................................................2 LIQUIDITY AND CAPITAL RESOURCES...................................................3 NEW ACCOUNTING PRONOUNCEMENTS.....................................................3 ITEM 3. QUANTATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK..................4 PART II - OTHER INFORMATION..............................................................4 ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS................................4 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS......................5 ITEM 5 - OTHER INFORMATION........................................................5 ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K.........................................6 SIGNATURE................................................................................7
-i- 3 PART I - FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS Geographics, Inc. (the "Company" or "Geographics") has attached to this Report and by this reference incorporated herein the unaudited condensed financial statements consisting of the consolidated balance sheets as of September 30, 2000 and March 31, 2000 , the statements of operations for the three and six months ended September 30, 2000 and 1999, and the consolidated statements of cash flows for the six months ended September 30, 2000 and 1999, together with the notes thereto. ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion should be read in conjunction with the consolidated financial statements of the Company and the notes thereto appearing elsewhere in this Report. FORWARD-LOOKING STATEMENTS Statements herein concerning expectations for the future constitute forward-looking statements which are subject to a number of known and unknown risks, uncertainties and other factors which might cause actual results to differ materially from those expressed or implied by such forward-looking statements. Forward-looking statements herein include, but are not limited to, those concerning anticipated growth in the preprint paper and file storage markets; anticipated growth in the Company's sales; anticipated growth in sales of specialty paper products as a percentage of revenue; the Company's ability to increase its market share within the preprint industry; the ability of the Company to successfully implement price changes for the Company's products when and as needed; trends relating to the Company's profitability and gross profits margins; the ability of the Company to implement, or modify its management information system, adequately to meet operations requirements in the future and to improve its internal controls; and the ability of the Company to refinance its existing revolving credit facility and to raise additional debt or equity financing sufficient to meet its working capital requirements. Relevant risks and uncertainties include, but are not limited to, slower than anticipated growth of the preprint paper market; loss of certain key customers; insufficient consumer acceptance of the Company's specialty paper and file storage products; unanticipated actions, including price reductions, by the Company's competitors; unanticipated increases in the costs of raw materials used to produce the Company's products; loss of favorable trade credit; supply terms, reliable and immediately available raw material supply and other favorable terms with certain key vendors, greater than expected costs incurred in connection with the implementation of a management information system; the inability to hire and retain key personnel; unexpected increases in the overall costs of production as a result of collective bargaining arrangements; and inability to secure additional working capital when and as needed. Additional risks and uncertainties include those described under "Risk Factors" in Part I of the Company's Annual Report on Form 10-K for the year ended March 31, 2000 and those described from time to time in the Company's other filings with the Securities and Exchange Commission, press releases and other communications. All forward looking statements contained in this Report reflect the Company's expectations at the time of this Report only, and the Company disclaims any responsibility to revise or update any such forward-looking statement except as may be required law. -1- 4 RESULTS OF OPERATIONS Three Months Ended September 30, 2000 vs. Three Months Ended September 30, 1999 NET SALES. Net sales increased 46.7% to $10,319,736 for the three months ended September 30, 2000 from $7,035,426 in the quarter ended September 30, 1999. Sales from new product lines due to the acquisition of Domtar's specialty paper products line and the introduction of GeoFiles were the major factors contributing to the sales increase of $3,284,310, for the second quarter. New product sales from Domtar Specialty Paper and GeoFiles were $793,130 and $2,614,584, respectively. Sales of core paper products were flat and international core paper product sales were down slightly. GROSS MARGIN. Gross margin was $2,243,873 and $2,033,323 for the three months ended September 30, 2000 and 1999, respectively. Gross margin as a percentage of gross sales decreased to 18.8% in the quarter ended September 30, 2000, from 25.0% in the same period in fiscal 2000. The lower gross margin percentage is attributable to higher accruals for customer program costs, warehouse set-up costs for the distribution center in Windsor, Wisconsin, increase in freight-in expenses related to GeoFiles, amortization of license fees, royalties on new products, higher shipping and handling costs and a one-time air freight charge relating to a special promotion on GeoFiles. SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and administrative expenses increased to $2,415,781 (20.2% of gross sales) during the three months ended September 30, 2000 from $1,900,885 (23.4% of gross sales) in the same period in fiscal 2000. The increase is primarily attributable to sales volume related increases in commissions ($72,669), advertising and promotion ($68,334), and customer promotional allowances ($85,239). Additionally, audit and legal expenses increased $62,598, and depreciation and amortization increased $87,259 between periods. OTHER INCOME (EXPENSE). Other income for three months ended September 30, 2000 was $40,600 compared to other income of $137,279 for the quarter ended September 30, 1999. The reduction in other income during the second quarter this year compared to last year is due to favorable settlements of amounts owed to vendors in the second quarter ended September 30, 1999. INTEREST EXPENSE. Interest expense increased to $372,956 (3.1% of gross sales) for the three months ended September 30, 2000, compared to $183,824 (2.3% of net sales) during the same period in fiscal 2000. The higher interest expense was due to an increase in borrowings from the Company's line of credit with its bank. Six Months Ended September 30, 2000 vs. Six Months Ended September 30, 1999 NET SALES. Net sales increased 62.1% to $19,524,410 in the six months ended September 30, 2000 from $12,041,790 in the six months ended September 30, 1999. The increase in sales of $7,482,620 was mainly attributable to new products due to the acquisition of Domtar's specialty paper product line and the introduction of the GeoFiles product line. Domtar Paper sales of $2,005,885 and GeoFile sales of $3,255,849 account for 26.8% and 43.5% of the sales increase, respectively. Sales of core paper products have increased $2,344,332, and international sales are currently running behind the comparable period last year by ($123,446). GROSS MARGIN. Gross margin for the six months ended September 30, 2000 was $4,828,871 compared to $3,543,318 for the six months ended September 30, 1999. Gross margin as a percentage of gross sales decreased to 21.6% in the six months ended September 30, 2000, from 25.9% in the same period in fiscal 2000. The lower gross margin percentage is attributable to higher accruals for customer program costs, warehouse set-up costs for the distribution centers in Wisconsin, increase in freight-in -2- 5 expenses related to GeoFiles, amortization of license fees, royalties on new products, higher shipping and handling costs and a one time air freight charge relating to a special promotion on GeoFiles. SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and administrative expenses increased to $4,430,373 (19.8% of gross sales) during the six months ended September 30, 2000 from $3,349,808 (24.5% of gross sales) in the same period in fiscal 2000. The increase is primarily attributable to sales volume related increases in commissions ($113,714), advertising and promotion ($219,363), and customer promotional allowances ($407,000). Additionally, depreciation and amortization increased $101,658 between periods. OTHER INCOME (EXPENSE). Other income for the six months ended September 30, 2000 amounted to $26,222 compared to $309,671 for the six months ended September 30, 1999. The reduction is due to the income recognized through September 30, 1999 from favorable settlements of amounts owed to vendors. INTEREST EXPENSE. Interest expense increased to $594,771 (2.7% of gross sales) during the six months ended September 30, 2000, compared to $421,569 (3.1% of gross sales) during the same period in fiscal 2000. The higher interest expense was due to increased borrowings, primarily caused by the increases in receivables and inventories supporting higher sales volumes. LIQUIDITY AND CAPITAL RESOURCES As a result of the rapid growth of the Company's specialty papers group, the introduction of the plastic file cabinet and storage group, and the acquisition of certain assets from Domtar, the Company has required, and continues to require, substantial externally provided working capital. At the date of this Report, the Company's only other available source of working capital consisted of borrowings available under its revolving credit facility. The revolving credit facility permits borrowings of up to $9.5 million subject to a borrowing base limitation of 75% of the value of the Company's eligible accounts receivable and 50% of the value of its eligible inventory. Borrowings under the facility bear interest at LIBOR plus 2.5% and are secured by substantially all of the Company's assets. Under the terms of the facility, the Company is required to comply with a number of financial covenants relating to, among other things, the maintenance of minimum net worth, debt-to-equity ratios and cash flow coverage ratios. Borrowings under this facility were $8,466,788 at September 30, 2000. Other sources and uses of liquidity are described in Item 5 - - Other Information. NEW ACCOUNTING PRONOUNCEMENTS In June, 1998, the Financial Accounting Standards Board issued SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133, as amended, is effective for fiscal years beginning after June 15, 2000. SFAS No. 133, requires that all derivative instruments be recorded on the balance sheet at their fair value. Changes in the fair value of derivatives are recorded each period in current earnings or other comprehensive income, depending on whether a derivative is designated as part of a hedge transaction and, if it is, the type of hedge transaction. The Company does not expect that the adoption of SFAS No. 133 will have a material impact on its consolidated financial statements. In June 2000, the Securities and Exchange Commission (SEC) issued Staff Accounting Bulletin (SAB) No. 101B. SAB 101B delays the effective date of SAB 101, "Revenue Recognition in Financial Statements," until no later than the fourth fiscal quarter of fiscal years beginning after December 15, 1999. SAB 101 provides guidance on revenue recognition and the SEC staff's views on the application of accounting principles to selected revenue recognition issues. The Company does not expect that the adoption of SAB 101 will have material impact on its consolidated financial statements. -3- 6 In September 2000, the Emerging Issues Task Force (EITF) reached consensus on Issue No. 00-10, "Accounting for Shipping and Handling Fees and Costs." Issue No. 00-10 deals with the accounting for income billed and costs related to shipping and handling charges on processing and delivery of customer orders. Application of EITF 00-10 is required no later than the fourth fiscal quarter of fiscal years beginning after December 15, 1999. The EITF concluded that amounts directly billed to customers for shipping and handling should be classified as revenue. The Company does not expect that the adoption of EITF 00-10 will have material impact on its consolidated financial statements. ITEM 3. QUANTATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK Substantially all of the revenue and operating expenses of the Company's foreign subsidiaries are denominated in local currencies and translated into US dollars at rates of exchange approximating those existing at the date of the transactions. Foreign currency translation impacts primarily revenue and operating expenses as a result of foreign exchange rate fluctuations. The Company's foreign currency transaction risk is primarily limited to amounts receivable from its foreign subsidiaries, which are denominated in local currencies. The Company does not currently utilize foreign currency hedging contracts. The Company also has foreign exchange translation exposures resulting from the translation of foreign currency-denominated earnings into U.S. dollars in the Company's consolidated financial statements. Foreign currency transaction exposure arises when an operating unit transacts business denominated in a currency that is not its own functional currency. The Company's transaction risks are attributable primarily to inventory purchases from third party vendors. The introduction of the Euro has significantly reduced such risks, and transaction exposures on an overall basis are not material. If the U.S. dollar uniformly increases in strength by 10% in fiscal year 2001 relative to the currencies in which the Company's sales are denominated, loss before taxes would increase by $104,000 for the quarter ended September 30, 2000. This calculation assumes that each exchange rate would change in the same direction relative to the U.S. dollar. In addition to the direct effects of changes in exchange rates, which are a changed dollar value of the resulting sales, changes in exchange rates also affect the volume of sales or the foreign currency sales price as competitors' products become more or less attractive. The Company's sensitivity analysis of the effects of changes in foreign currency exchange rates does not factor in a potential change in sales levels or local currency prices. PART II - OTHER INFORMATION ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS Sales Of Unregistered Securities From April 1, 2000 to September 30, 2000, the Company has issued 11,208,110 shares of common stock totaling $5,032,850 in a private placement at $0.45 per share, pursuant to an exemption from registration under Sections 4(2) and 4(6) of the Securities Act of 1933, as amended, and Rule 506 promulgated thereunder. The following officers and directors of the Company purchased shares pursuant to the offering:
Shares ------ James L. Dorman CEO & Director 1,111,111 William T. Graham Director 3,333,333 --------- Totals 4,444,444 =========
-4- 7 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS At the Annual Meeting of Shareholders of Geographics, Inc. held on September 28, 2000, the following proposals were submitted for approval of the Shareholders and approved by the votes indicated below: To elect James L. Dorman, William T. Graham, and C. Joseph Barnette as the Board of directors of Geographics:
Nominee For Withheld Abstain Non-votes James L. Dorman 23,915,544 0 19,500 13,774,211 William T. Graham 23,913,544 2,000 19,500 13,774,211 C. Joseph Barnette 23,915,544 0 19,500 13,774,211
With respect to the proposal to approve the plan of merger to redomesticate the Company under the laws of the State of Delaware:
For Against Abstain Non-votes 23,917,644 17,100 300 13,774,211
With respect to the proposal to approve the 1999 Stock Option Plan:
For Against Abstain Non-votes 23,435,254 149,500 350,200 13,774,301
With respect to the ratification of the selection of KPMG as independent auditor of the Company:
For Against Abstain Non-votes 23,900,644 34,500 300 13,773,811
ITEM 5 - OTHER INFORMATION Reincorporation in Delaware On October 16, 2000, the Company consummated its merger into a wholly-owned Delaware subsidiary, pursuant to which each outstanding share of common stock of the existing Wyoming corporation was converted into an equal number of identical securities of the Delaware corporation. In connection with the reincorporation, the par value of the Company's common stock was changed from no par value to $.001 per share. The surviving entity, also named Geographics, Inc. is a Delaware corporation with a Board of Directors and shareholders identical to that of the former Geographics, Inc., which was a Wyoming corporation. The reincorporation is more fully described in the Company's Proxy Statement to Shareholders dated September 8, 2000. New Products and Distribution Opportunities To broaden its European distribution channels, as of October 31, 2000, the Company entered into an agreement with Atlanta Group BV, the European subsidiary of Smead Manufacturing Corporation to sell certain assets of Geographics Europe, Ltd., the Company's European subsidiary. The assets sold consist of inventory, customer files, customer records, sales history, sales orders, supply contracts, goodwill and know-how, which represent all of the assets necessary to operate the business. The -5- 8 Company has retained ownership of its designs, copyrights and trademarks, and has provided an exclusive license to Smead/Atlanta Group for the use of the Geographics brand for paper products and a non-exclusive license to the Geofile brand for file and storage products in exchange for royalty payments on sales of the licensed products. Atlanta Group BV is headquartered in Hoogezand, The Netherlands, and also has distribution facilities in Austria, Belgium, England, France, Germany, Spain, Portugal and Switzerland. Under the terms of the agreement, the Company has received approximately $500,000 in initial proceeds, and will receive royalties of 5% of the sales of all of the Company's products sold by the Smead/Atlanta Group. To expand its product offerings and customer base, as of December 18, 2000, the Company has entered into an agreement to acquire certain assets of the Z-GRAFIX(R) brand image paper from Kansas City, Missouri based Z-International, Inc. Under the terms of the agreement, the Company and Z-International have entered into a license agreement for the Company to use the Z-GRAPHIX name. Under the terms of the agreement, the Company has made an initial payment of $100,000, will pay for inventory as sold, and will negotiate for the payment of remaining inventory, if any, at a future date. The agreement also provides for the payment of commissions on net sales, which shall not exceed three years. The Z-International product line acquisition was funded from the proceeds of the Smead/Atlanta transaction. The Company has also entered into an exclusive supply and distribution agreement, effective as of November 28, 2000, for the production and distribution of its products in Mexico. Under the agreement, the Company's paper products will be printed and packaged in Mexico, and will be sold directly to the Company's Mexican distributor in US dollars. This arrangement will greatly enhance the Company's ability to service its customers in Mexico, such as Office Depot and Wal-Mart, as well as enhancing the ability to reach traditional Mexican retailers. As of the date of this report, the Company has entered into negotiations for a long-term lease of a warehouse and sales offices in Waukesha, Wisconsin. The Company intends to consolidate its warehouse operations currently located in Toronto, Canada, Dallas, Texas, Madison and Windsor, Wisconsin to Waukesha, Wisconsin. The Milwaukee sales office will also be relocated into the Waukesha facility. ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits. 3.1 Certificate of Incorporation of the Company 3.2 Bylaws of the Company 27.1 Financial Data Schedule for the quarter ended September 30, 2000. (b) There were no reports on Form 8-K filed during the quarter ended September 30, 2000. -6- 9 GEOGRAHPHICS, INC CONDENSED CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 2000 AND MARCJ 31, 2000
ASSETS SEPTEMBER 30, 2000 MARCH 31, 2000 ------------------ ------------------ (Unaudited) CURRENT ASSETS Cash $ 426,335 $ 360,612 Accounts receivable Trade receivables, net of allowances of $823,000 and $1,587,469 at September 30 and March 31, 2000, respectively 8,449,245 6,053,810 Other receivables 424,424 25,555 Inventories 8,893,228 5,301,171 Prepaid expenses, deposits, and other current assets 973,613 562,244 ------------------ ------------------ Total current assets 19,166,845 12,303,392 PROPERTY, PLANT AND EQUIPMENT, NET 9,089,898 9,304,864 LICENSES, TRADEMARKS AND OTHER INTANGIBLE ASSETS, NET 3,202,614 317,170 OTHER ASSETS 392,333 442,018 ------------------ ------------------ TOTAL ASSETS $ 31,851,690 $ 22,367,444 ================== ================== LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES Bank overdrafts $ 377,104 $ 259,551 Note payable to bank 7,466,788 5,764,627 Accounts payable 6,069,086 3,699,532 Accrued liabilities 3,162,759 2,083,523 Current portion of long-term debt 1,097,643 1,368,212 ------------------ ------------------ Total current liabilities 18,173,380 13,175,445 LONG-TERM DEBT 3,118,222 3,539,926 ------------------ ------------------ Total liabilities 21,291,602 16,715,371 ------------------ ------------------ STOCKHOLDERS' EQUITY Common stock, $.001 par value - 100,000,000 shares authorized, 38,173,699 and 26,965,589 shares issued and outstanding at September 30 and March 31, 2000, respectively 25,877,731 20,844,881 Additional paid-in capital 259,632 132,944 Accumulated other comprehensive loss (314,790) (233,318) Accumulated deficit (15,262,485) (15,092,434) ------------------ ------------------ Total stockholders' equity 10,560,088 5,652,073 ------------------ ------------------ TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 31,851,690 $ 22,367,444 ================== ==================
See accompanying notes to condensed consolidated financial statements. F-1 10 GEOGRAPHICS, INC CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
THREE MONTHS ENDED SIX MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, 2000 1999 2000 1999 ---------------- ---------------- ---------------- --------------- SALES $ 11,936,290 $ 8,130,428 $ 22,374,633 $ 13,675,844 Returns and Allowances (1,616,554) (1,095,002) (2,850,223) (1,634,054) ---------------- ---------------- ---------------- --------------- Net Sales 10,319,736 7,035,426 19,524,410 12,041,790 COST OF SALES 8,075,863 5,002,103 14,695,539 8,498,472 ---------------- ---------------- ---------------- --------------- Gross Margin 2,243,873 2,033,323 4,828,871 3,543,318 S.G.& A. EXPENSES 2,415,781 1,900,885 4,430,373 3,349,808 ---------------- ---------------- ---------------- --------------- Operating Income (LOSS) (171,908) 132,438 398,498 193,510 Other Income (EXPENSE) Interest Expense (372,956) (183,824) (594,771) (421,569) Other Income 40,600 137,279 26,222 309,671 ---------------- ---------------- ---------------- --------------- Total Other Income (Expense) (332,356) (46,545) (568,549) (111,898) Net Income (LOSS) BEFORE INCOME TAXES (504,264) 85,893 (170,051) 81,612 PROVISION FOR INCOME TAXES - - - - ---------------- ---------------- ---------------- --------------- NET INCOME (LOSS) (504,264) 85,893 (170,051) 81,612 ---------------- ---------------- ---------------- --------------- OTHER COMPREHENSIVE INCOME (LOSS) - FOREIGN CURRENCY TRANSLATION (80,783) (54,704) (81,472) (54,103) ---------------- ---------------- ---------------- --------------- COMPREHENSIVE INCOME (LOSS) $ (585,047) $ 31,189 $ (251,523) $ 27,509 ================ ================ ================ =============== NET INCOME(LOSS) PER COMMON AND COMMON EQUIVALENT SHARE Basic $ (0.01) $ 0.01 $ (0.00) $ 0.01 ================ ================ ================ =============== Diluted $ (0.01) $ 0.01 $ (0.00) $ 0.01 ================ ================ ================ =============== SHARES USED IN COMPUTING NET INCOME (LOSS) PER COMMON AND COMMON EQUIVALENT SHARE Basic 37,770,736 15,043,364 35,929,210 12,450,308 ================ ================ ================ =============== Diluted 37,770,736 15,422,953 35,929,210 12,829,897 ================ ================ ================ ===============
See accompanying notes to condensed consolidated financial statements. F-2 11 GEOGRAPHICS, INC CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
SIX MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, 2000 1999 ----------------- ----------------- CASH FLOWS FROM OPERATING ACTIVITIES Net income (Loss) $ (170,051) $ 81,612 Adjustments to reconcile net income (loss) to net cash flows from operating activities Depreciation and amortization 844,030 652,148 Loss on sale/disposal of property and equipment - 1,770 Stock based compensation 59,688 - Interest on debentures 67,000 - Changes in operating assets and liabilities Trade receivables (2,471,839) (1,659,572) Other receivables (400,015) 127,391 Inventories (3,718,977) (490,869) Prepaid expenses, deposits and other current assets (427,448) 273,422 Licenses, trademarks and other intangible assets (41,308) - Other assets 49,685 (79,888) Accounts payable 2,388,122 720,021 Accrued liabilities 1,107,077 (1,037,222) ----------------- ----------------- Net cash flows from operating activities (2,714,036) (1,411,187) ----------------- ----------------- CASH FLOWS FROM INVESTING ACTIVITIES Purchase of plant and equipment (426,671) (160,738) Purchase of certain Innovative Storage Design assets - (261,163) Purchase of certain Domtar Consumer Products assets (3,049,138) - ------------------- ----------------- Net cash flows from investing activities (3,475,809) (421,901) ------------------- ----------------- CASH FLOWS FROM FINANCING ACTIVITIES Increase (decrease) in bank overdrafts 117,553 (93,150) Net borrowings (repayments) on note payable to bank 1,702,161 (1,489,919) Repayment of long-term debt (692,273) (692,807) Proceeds from note payable to officer and director 1,000,000 100,000 Repayment of note payable to officer and director (1,000,000) (100,000) Proceeds from the issuance of common stock 5,032,850 4,200,648 ------------------- ----------------- Net cash flows from financing activities 6,160,291 1,924,772 ------------------- ----------------- EFFECT OF EXCHANGE RATE CHANGES ON CASH 95,277 (54,102) ------------------- ----------------- Net Change in Cash 65,723 37,582 Cash, beginning of period 360,612 130,967 ------------------- ----------------- Cash, end of period $ 426,335 $ 168,549 =================== ================= SUPPLEMENTAL CASH FLOW INFORMATION Cash paid during the period for interest $ 464,256 $ 421,569 =================== ================= Non-cash financing and investing activities - common stock issued for assets $ - $ 200,280 =================== =================
See accompanying notes to condensed consolidated financial statements. F-3 12 NOTE 1- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The accompanying interim unaudited condensed consolidated financial statements of Geographics, Inc. (the "Company" or "Geographics") have been prepared in accordance with generally accepted accounting principles in the United States of America for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, such interim statements reflect all adjustments (consisting of normal recurring accruals) necessary to present fairly the financial position and the results of operations and cash flows for the interim periods presented. The results of operations for these interim periods are not necessarily indicative of the results to be expected for the full year. These statements should be read in conjunction with the audited consolidated financial statements and footnotes included in the Company's annual report on Form 10-K for the fiscal year ended March 31, 2000. The consolidated financial statements include the accounts of Geographics and its wholly-owned subsidiaries: Geographics Marketing Canada Inc. (inactive), Geographics (Europe) Limited and Geographics Australia, Pty. Limited. All intercompany balances and transactions have been eliminated in consolidation. NOTE 2- INVENTORIES Inventories at September 30, 2000 and March 31, 2000 consisted of the following:
September 30, March 31, 2000 2000 ---- ---- Raw materials $ 848,666 $ 619,463 Work-in-process 711,445 1,096,799 Finished goods 7,733,117 3,584,909 ---------- ----------- $8,893,228 $ 5,301,171 ========== ===========
NOTE 3- ASSET ACQUISITION AND COMMITMENTS Effective as of April 1, 2000, the Company acquired certain assets of the Consumer Products Business of the Communication Papers Division of Domtar, Inc. of Canada, for total consideration of $4,781,140, plus expenses of $49,138. Under the provisions of the agreement, the Company was granted an exclusive world-wide license to convert, distribute and sell products under certain exclusive Domtar trademarks, and a non-exclusive license to use the Domtar Trademark. The initial term of the licenses is for a three year period extending to March 31, 2003, extendable for an additional three year period, and automatically renewable thereafter, unless terminated by either party. The license remains exclusive providing annual sales achieve certain minimum sales levels, or the payment of minimum royalties. The Agreement also provides for the payment of royalties on the sale of Domtar products, an option by Domtar to repurchase the assets at a premium, and the purchase of paper from Domtar. The total purchase price of these acquired assets, exclusive of inventories is included in Licenses, Trademarks and Other Intangible Assets in these condensed consolidated financial statements, and is being amortized to cost of sales over a fifteen year period on the straight-line basis. The Company plans to complete an analysis of the specific assets acquired, the allocation of the total purchase price to the specific assets, and the estimated useful lives related thereto. Upon completions of this analysis, if the Company determines that an amortization period other than fifteen years is more appropriate, it will revise its accounting at that time. F-4 13 NOTE 4- NET SALES BY PRODUCT CATEGORY The Company's operations are classified into two product categories: Designer Stationery and Specialty Papers, and Plastic Filing and Storage Cabinets. Net sales attributable to each class of product are as follows:
Three Months Ended Six Months Ended September 30, September 30, 2000 1999 2000 1999 ---- ---- ---- ---- Designer Stationeries and Specialty Papers $ 7,705,152 $ 7,035,426 $ 16,268,561 $ 12,041,790 Plastic Filing and Storage Cabinets 2,614,584 - 3,255,849 - -------------- -------------- --------------- --------------- $ 10,319,736 $ 7,035,426 $ 19,524,410 $ 12,041,790 ============== ============== =============== ===============
NOTE 5- NET INCOME (LOSS) PER SHARE The numerators and denominators of basic and diluted net income (loss) per share are as follows:
Three Months Ended Six Months Ended September 30, September 30, 2000 1999 2000 1999 ---- ---- ---- ---- Net income (loss) (numerator) $ (504,264) $ 85,893 $ (170,051) $ 81,612 ============== ============== =============== =============== Shares used in the calculation (denominator) Weighted average shares outstanding 37,770,736 15,043,364 35,929,210 12,450,308 Effect of dilutive stock options and warrants - 379,589 - 379,589 -------------- -------------- --------------- --------------- 37,770,736 15,422,953 35,929,210 12,829,897 ============== ============== =============== ===============
Outstanding stock options and warrants that could potentially dilute basic net income (loss) per share in the future that were not included in the computation of diluted net loss per share in 2001, because to do so would have been antidilutive, are 657,517 shares. 14 SIGNATURE Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this form 10-Q to be signed on its behalf by the undersigned, thereunto duly authorized on this 2nd day of January, 2001. GEOGRAPHICS, INC. By: /s/ James L. Dorman ------------------------------------- James L. Dorman President and Chief Executive Officer By: /s/ Daniel J. Regan ------------------------------------- Daniel J. Regan Vice President and Chief Financial Officer -7- 15 GEOGRAPHICS, INC. FORM 10-Q EXHIBIT INDEX FOR THE QUARTER ENDED SEPTEMBER 30, 2000 Exhibit Number 3.1 Certificate of Incorporation of the Company 3.2 Bylaws of the Company 27.1 Financial Data Schedule EX-3.1 2 c58681qex3-1.txt CERTIFICATE OF INCORPORATION OF THE COMPANY 1 EXHIBIT 3.1 CERTIFICATE OF INCORPORATION OF THE COMPANY 2 GEOGRAPHICS, INC. CERTIFICATE OF INCORPORATION ARTICLE I The name of the corporation is Geographics, Inc. (the "Corporation"). ARTICLE II The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the registered agent of the Corporation at that address is The Corporation Trust Company. ARTICLE III The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE IV 4.1 The total number of shares of all classes of stock that the Corporation shall have authority to issue is 100,000,000 shares of Common Stock, $.001 par value per share, amounting in aggregate to $100,000 ("Common Stock"). 4.2 Each holder of record of shares of Common Stock shall be entitled to vote at all meetings of the stockholders and shall be entitled to one vote for each share held by such holder of record. 4.3 Subject to all of the rights of the holders of all classes or series of stock at the time outstanding having prior rights as to dividends, the holders of Common Stock shall be entitled to receive dividends at such times and in such amounts as may be determined by the Board of Directors of the Corporation. ARTICLE V The name of the incorporator is Porter J. Martin, Michael Best and Friedrich LLP, One South Pinckney Street, Madison, Wisconsin 53701. ARTICLE VI The Corporation shall have perpetual existence. 3 ARTICLE VII In furtherance and not in limitation of the power conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to make, amend and repeal the bylaws of the Corporation. ARTICLE VIII The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, and the directors need not be elected by written ballot unless the bylaws of the Corporation so provide. ARTICLE IX 9.1. The liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law. 9.2 To the extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) such agents (and any other persons to which Delaware law permits this Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law of the State of Delaware, subject only to limits created by applicable Delaware law (statutory or otherwise) with respect to actions for breach of a duty to the Corporation, its stockholders and others. 9.3 No amendment to or repeal of Article IX of this Certificate of Incorporation shall apply to or have any effect on the rights of any individual referred to in Article IX for or without respect to acts or omissions of such individual occurring prior to such amendment or repeal. ARTICLE X The Corporation reserves the right to alter, amend or repeal any provision contained in this Certificate of Incorporation in the manner now or hereinafter provided by the laws of the State of Delaware and all rights conferred upon stockholders herein are granted subject to this reservation. [Signature Page Follows] -2- 4 IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the 28th day of September, 2000. SOLE INCORPORATOR: /s/ Porter J. Martin ------------------------------ Porter J. Martin -3- EX-3.2 3 c58681qex3-2.txt BYLAWS OF THE COMPANY 1 EXHIBIT 3.2 BYLAWS OF THE COMPANY 2 BYLAWS OF GEOGRAPHICS, INC. (hereafter, the "Corporation") Effective October 3, 2000 ARTICLE I OFFICES Section 1.1. Registered Office. The registered office of the Corporation shall be at 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the registered agent of the Corporation at that address is The Corporation Trust Company. Section 1.2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors or officers may from time to time designate. ARTICLE II STOCKHOLDERS Section 2.1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose, shall be held at such time and 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 or in a duly executed waiver of notice thereof. Section 2.2. Annual Meetings. The Annual Meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect a Board of Directors pursuant to Section 3.2 and transact such other business as may properly be brought before the meeting. Section 2.3. Special Meetings. Unless otherwise prescribed by law or by the Certificate of Incorporation, Special Meetings of stockholders, for any purpose or purposes, may be called (i) by the Chairman or Vice Chairman, if there be one, (ii) the President, (iii) any Vice President, (iv) the Secretary or any Assistant Secretary, if there be one, (v) by the person designated in the request in writing of a majority of the Board of Directors, or (vi) at the request in writing of 1 3 stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Section 2.4. Notice. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) days (unless a longer period is required by law or the Certificate of Incorporation) nor more than sixty (60) days before the date of the meeting, either personally, by mail, telegram, or facsimile, by or at the direction of the President or the person(s) calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at such stockholder's address as it appears on the stock record books of the corporation, with postage thereon prepaid. If notice be given by telegram or facsimile, such notice shall be deemed to be delivered when the fax confirmation is received or when the telegram is delivered to the telegraph company. Section 2.5. Waiver of Notice. Notice of the time, place and purpose or purposes of any meeting of stockholders may be waived by a written waiver thereof, signed by the person entitled to notice, either before or after the time of the meeting. Such waiver, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of the time, place and purpose or purposes of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Section 2.6. Record Date. In order that the Corporation may determine the stockholders entitled to vote at any meeting of stockholders or any adjournment thereof, or entitled 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 a record date, which shall not precede the date upon which the resolution fixing the record date is adopted, and which shall be not more than 60 nor less than 10 days before the date of a meeting. A determination of stockholders of record entitled to notice of or 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 any adjourned meeting. Section 2.7. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every 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 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the registered office of the Corporation. 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. 2 4 Section 2.8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 2.7 of this Article II or the books of the Corporation, or to vote in person or by proxy at a meeting of stockholders. Section 2.9. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital 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. If, however, such quorum is not 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 is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed. If the adjournment is for more than 30 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 entitled to vote at the meeting. Section 2.10. Voting. When a quorum is present at any meeting, the affirmative vote of the holders of a majority of the outstanding stock represented and entitled to vote thereat shall decide any question brought before such meeting, unless the question is one upon which by express provision of applicable law, the Certificate of Incorporation or these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. All voting, excepting where otherwise required by law, the Certificate of Incorporation, or the Board of Directors, may be by a voice vote. Section 2.11. Proxy. Unless otherwise provided in the Certificate of Incorporation, 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 such stockholder. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a communication permitted by law filed in accordance with the procedure established for the meeting. Any copy, facsimile telecommunication or other reliable reproduction of the writing or communication created pursuant to this paragraph may be substituted or used in lieu of the original writing or communication for any and all purposes for which the original writing or communication could be used; provided that, such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or communication. Section 2.12. Chairman of Meeting. The Chairman of the Board of Directors shall preside at all meetings of the stockholders. In the absence of the Chairman or the inability of the Chairman to act, the Chief Executive Officer, the President or a Vice President (in that order) shall preside, and in their absence or inability to act another person designated by one of the above mentioned officers shall preside. The Secretary of the Corporation shall act as secretary of each meeting of the stockholders. In the event of his or her absence or inability to act, the presiding 3 5 officer of the meeting shall appoint a person who need not be a stockholder to act as secretary of the meeting. Section 2.13. Conduct of Meetings. Meetings of the stockholders shall be conducted in a fair manner but need not be governed by any prescribed rules of order. The presiding officer's rulings on procedural matters shall be final. The presiding officer is authorized to impose reasonable time limits on the remarks of individual stockholders and may take such steps as such officer may deem necessary or appropriate to assure that the business of the meeting is conducted in a fair and orderly manner. Section 2.14. Action Without a Meeting. Unless otherwise provided in the Certificate of Incorporation or by law, any action required or permitted to be taken at any Annual or Special Meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. The Company shall give prompt notice of any corporate action taken without a meeting by less than the unanimous written consent of the stockholders to those stockholders who did not consent to that action. Section 2.15. Shareholder Proposals and Director Nominations. (a) Nominations for the election of directors and proposals for any business to be considered by shareholders at any annual or special meeting of shareholders may be made by the Board of Directors or by any shareholder of the Corporation entitled to vote generally in the election of directors. In order for a shareholder of the Corporation to make any such nominations and/or proposals, and for such nominations or other business to be properly before the annual or special meeting, he or she must give notice thereof in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation: (i) with respect to an annual meeting, not less than 90 days nor more than 120 days prior to the date of the previous year's annual meeting of shareholders, except that if no annual meeting was held in the previous year, not later than the close of business on the tenth day following the day on which notice of the annual meeting was mailed to shareholders; and (ii) with respect to a special meeting, not later than the close of business on the tenth day following the day on which notice of the special meeting was mailed to shareholders. (b) Each such notice given by a shareholder to the Secretary with respect to nominations for election of directors shall set forth in writing; (i) the name, age, business address and residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; (iii) the number of shares of stock of the Corporation beneficially owned by each such nominee; (iv) a description of all arrangements or understandings between such shareholders and such nominees and any other person (naming such person) pursuant to which the nomination is to be made by the shareholders; (v) such other information as would be required to be included, or would be otherwise required to be disclosed, in a proxy statement soliciting proxies for the election of the proposed nominee pursuant to 4 6 Regulation 14A of the Securities Exchange Act of 1934, as amended, including any information that would be required to be included had the nominee been nominated by the Board of Directors; (vi) the written consent of each nominee to be named in a proxy statement as a nominee and to serve, if elected, as a director; and (vii) as to the shareholder giving such notice: (A) his or her name and address as they appear on the Corporation's books; (B) the class and number of shares of the Corporation which are beneficially owned by such shareholder; and (C) a representation that such shareholder is a holder of shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to make the nomination. In addition, the shareholder making such nomination shall promptly provide any other information reasonably requested by the Corporation. (c) Each notice given by a shareholder to the Secretary with respect to business proposals to be brought before a meeting of shareholders shall set forth in writing as to each matter: (i) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting; (ii) the name and address, as they appear on the Corporation's books, of the shareholder proposing such business; (iii) the class and number of shares of the Corporation beneficially owned by such shareholder; and (iv) any material interest of the shareholder in such business. In addition, the shareholder making such nomination shall promptly provide any other information reasonably requested by the Corporation. (d) The Chairman of a meeting of shareholders of the Corporation shall, if the facts warrant, determine and declare to the meeting that a director nomination or business proposal by a shareholder of the Corporation was not properly brought before the meeting in accordance with the provisions of these By-laws, and if he should so determine, he shall so declare to the meeting and such nomination shall not be considered, or such business proposal shall not be considered, as applicable. ARTICLE III DIRECTORS Section 3.1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, by the Certificate of Incorporation, any Certificate of Designation or by these Bylaws required to be exercised or done by the stockholders. Section 3.2. Number, Nomination, Election, Tenure and Qualifications. The Board of Directors of the corporation shall consist of such number of directors, but not less than one (1), as shall from time to time be fixed exclusively by resolution adopted by either the Board of Directors or the stockholders. Nominations for the election of directors may be made by the Board of Directors or by stockholders pursuant to Section 2.15. The members of the Board of Directors shall be elected by a plurality of the stockholders entitled to vote at a meeting at which 5 7 a quorum is present, with each stockholder entitled to vote the number of shares owned for each position for which a director is being elected. All directors shall hold office until the next annual meeting of stockholders and until his or her successor shall have been elected, or until his or her prior death, resignation or removal. Section 3.3. Resignation, Removal and Vacancies. Any director may resign at any time upon written notice to the Corporation directed to the Board of Directors or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Any director or the entire Board of Directors may be removed, at any time, for any reason, by the vote of the holders of at least a majority of shares of capital stock then entitled to vote at an election of directors. Unless otherwise provided by the Certificate of Incorporation or resolution adopted by the stockholders, vacancies resulting from (i) death; (ii) resignation; (iii) retirement; (iv) disqualification; (v) removal from office; and (vi) newly created directorships resulting from any increase in the authorized number of directors pursuant to a resolution adopted by the Board of Directors, may be filled by the affirmative vote of a majority of the remaining directors or the sole remaining director, though less than a quorum of the Board of Directors, and directors so chosen shall hold office for a term expiring at the annual meeting of the stockholders at which the term of office of the class to which they have been elected expires and until such director's successor shall have been duly elected and qualified. No decrease in the number of authorized directors constituting the whole Board shall shorten the term of any incumbent director. Section 3.4. Interested Directors. 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 because of this interest, 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 or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (ii) the material facts as to his, her or their 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 of Directors, 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 of Directors or of a committee which authorizes the contract or transaction. 6 8 MEETINGS OF THE BOARD OF DIRECTORS Section 3.5. General. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Members of the Board of Directors may participate in any such meeting by means of conference telephone or similar communications equipment through which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. Section 3.6. Special Meetings. Special Meetings of the Board of Directors may be called by the Chairman of the Board of Directors as set forth in Section 3.8 herein. Special Meetings shall be called by the Chairman in like manner and on like notice at the written request of at least two directors stating the purpose or purposes for which such meeting is requested. Section 3.7. Notice; Waiver. Notice of each meeting of the Board of Directors shall be given by mail, facsimile, telegram, electronic mail, telephone, or delivered personally or by courier, to each director at such director's business address or at such other address as such director shall have designated in writing filed with the Secretary. If mailed, such notice must be given not less than seventy-two (72) hours before the meeting, and it shall be deemed to be delivered when deposited in the United States mail properly addressed, with postage thereon prepaid. If notice be given by facsimile or telegram, such notice must be given not less than twenty-four (24) hours before the meeting, and it shall be deemed to be delivered when the fax confirmation is received or when the telegram is delivered to the telegraph company. Notice by personal delivery must also be given not less than twenty-four (24) hours before the meeting. If notice be given by electronic mail or telephone, such notice must be given not less than twenty-four (24 hours) before the meeting, and shall be deemed delivered upon delivery of the message via telephone or upon submission of electronic mail. Whenever any notice is required to be given to any director of the corporation under the Certificate of Incorporation or these Bylaws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Except as required by law or these bylaws, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 3.8. Quorum and Board Action at a Meeting. At all meetings of the Board of Directors a majority of the then duly elected 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 is not 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 is present. Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws, when a quorum is 7 9 present at a time when a Board of Directors (or committee thereof) vote is taken, the affirmative vote of a majority of directors present or participating shall constitute the act of the Board of Directors (or a committee thereof, as the case may be). Section 3.9. Action Without a Meeting. Unless otherwise required by law or the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors or any committee designated by the Board of Directors may be taken without a meeting if all members of the Board of Directors or of such committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or such committee. Section 3.10. Chairman of the Meeting. Meetings of the Board of Directors shall be presided over by the Chairman, if any, or in his or her absence by the President, or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting. COMMITTEES OF DIRECTORS Section 3.11. General. The Board of Directors may, by resolution, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors 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. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she 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. Any such committee, to the extent allowed by law and provided in the resolution of the Board of Directors establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Section 3.12. Meeting. Each committee shall keep regular minutes of its meetings and shall file such minutes and all written consents executed by its members with the Secretary of the Corporation. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee. Members of any committee of the Board of Directors may participate in any meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating may hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. 8 10 COMPENSATION OF DIRECTORS Section 3.13. General. In the discretion of the Board of Directors, 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. In addition, in the discretion of the Board of Directors, the directors may receive a stated salary for serving as directors or any other form of compensation deemed appropriate. 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 serving on or attending committee meetings. ARTICLE IV OFFICERS Section 4.1. General. The officers of the Corporation shall be chosen by the Board of Directors. The officers shall be a Chairman of the Board (who must be a director), a Chief Executive Officer, a President, various Vice Presidents, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose, one or more Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers as authorized and designated by the Board of Directors. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation. Section 4.2. Election. The Board of Directors shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as provided in these bylaws and as determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation, death or removal. Any officer may resign at any time upon written notice to the Corporation directed to the Board of Directors or the Secretary. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. The Board of Directors may remove any officer or agent with or without cause at any time by the affirmative vote of a majority of the Board of Directors. Any such removal shall be without prejudice to the contractual rights of such officer or agent, if any, with the Corporation, but the election of an officer or agent shall not of itself create any contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board of Directors. The salaries of all officers of the Corporation shall be determined by the Board of Directors. Section 4.3. Voting Securities Owned by the Corporation. Notwithstanding anything to the contrary contained herein, powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President 9 11 and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 4.4. Chairman of the Board of Directors. The Chairman of the Board of Directors, shall preside at all meetings of the stockholders and of the Board of Directors. In the absence or disability of the Chief Executive Officer, the Chairman of the Board of Directors shall be the Chief Executive Officer of the Corporation. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President, and except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors. Section 4.5. Chief Executive Officer. The Chief Executive Officer shall be the principal executive officer of the Corporation. The Chief Executive Officer, except where by law the signature of the President is required, shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President and the Chairman of the Board of Directors, the Chief Executive Officer shall exercise all the powers and discharge all the duties of the President. The Chief Executive Officer shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors. Section 4.6. President. The President shall, subject to the control of the Board of Directors, the Chairman of the Board of Directors, if there be one, and the Chief Executive Officer have general supervision of the business of the Corporation and shall ensure that all orders and resolutions of the Board of Directors are carried into effect. The President may execute any and all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, except as required by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these Bylaws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, if there be one, and the Chief Executive Officer, the President shall preside at all meetings of the stockholders and the Board of Directors. In the absence or disability of the Chairman of the Board of Directors or Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors. 10 12 Section 4.7. Senior Vice Presidents and Vice Presidents. If there be any Senior Vice Presidents or Vice Presidents, then, at the request of the President or in his or her absence or in the event of his or her inability or refusal to act (and if there be no Chairman of the Board of Directors or Chief Executive Officer), the Senior Vice President and Vice President or the Senior Vice Presidents and Vice Presidents, if there are more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Senior Vice President and Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors, no Chief Executive Officer, no Senior Vice President and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Section 4.8. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing and special committees of the Board of Directors when required. The Secretary 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 Chief Executive Officer, under whose supervision he or she shall be. If the Secretary is unable or refuses to cause to be given notice of all meetings of the stockholders and Special Meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the Chief Executive Officer may choose another officer to cause such notice to be given. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be. Section 4.9. Treasurer. The Treasurer shall have the custody of the corporate funds and securities 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. 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 Chief Executive Officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond 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 or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation. Section 4.10. Assistant Secretaries. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer, 11 13 the President, any Senior Vice President or Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his or her disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary. Section 4.11. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive Officer, the President, any Senior Vice President or Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his or her disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation. Section 4.12. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. ARTICLE V STOCK Section 5.1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the Chief Executive Officer, the President, a Senior Vice President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such person in the Corporation. Section 5.2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors or any officer may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged 12 14 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, the Board of Directors, or any such officer, may, in its, his or her discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to advertise the same in such manner as the Board of Directors shall require, to enter into an Indemnification Agreement with the Corporation, to give the Corporation a bond in such sum as the Corporation directs 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, and/or perform any other act as shall be reasonably required. ARTICLE VI GENERAL PROVISIONS Section 6.1. Dividends. Dividends upon the capital stock of the Corporation, if any, 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, and may be paid in cash, in property, or in shares of the capital stock or rights to acquire the same. 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 Board of Directors from time to time, in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 6.2. Disbursements. 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. Section 6.3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. Section 6.4. Corporate Seal. The Corporation may have a corporate seal which shall have the name of the Corporation inscribed thereon 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 or affixed or reproduced or otherwise. ARTICLE VII INDEMNIFICATION Section 7.1. Power to Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right of the Corporation. Except as otherwise provided by law or the Certificate of Incorporation, and subject to Section 7.3, the Corporation shall indemnify any person who is or was 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 13 15 the right of the Corporation) by reason of the fact that he or she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she 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 or her 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 or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceedings, had reasonable cause to believe that his or her conduct was unlawful. Section 7.2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Except as otherwise provided by law or the Certificate of Incorporation, and subject to Section 7.3, the Corporation shall indemnify any person who is or was 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 or she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including reasonable attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery 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. Section 7.3. Authorization of Indemnification. Any indemnification under this Article VII (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 or officer is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 7.1 or Section 7.2, as the case may be. Such determination shall be made (i) 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 (ii) 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 (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses 14 16 (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith, without the necessity of authorization in the specific case. Section 7.4. Good Faith Defined. For purposes of any determination under this Article VII, a person shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if his or her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him or her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 7.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 7.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 7.1 or 7.2, as the case may be. Section 7.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 7.3, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 7.1 and 7.2. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he or she has met the applicable standards of conduct set forth in Section 7.1 or 7.2, as the case may be. Neither a contrary determination in the specific case under Section 7.3 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 7.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the reasonable expense of prosecuting such application (including reasonable attorney fees). Section 7.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is entitled to be indemnified by the Corporation as authorized in this Article VII. Such expenses (including attorneys' fees) incurred by former directors and officers may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate. 15 17 Section 7.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VII shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 7.1 and 7.2 shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not be deemed to prohibit the Corporation from indemnifying any person who is not specified in Sections 7.1 or 7.2 but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise. Section 7.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power or the obligation to indemnify him or her against such liability under the provisions of this Article VII. Section 7.9. Certain Definitions. For purposes of this Article VII, 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 or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director or officer of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article VII. Section 7.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII 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 person. 16 18 Section 7.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 7.5 hereof), the Corporation shall not be obligated to indemnify any director, officer, employee or agent in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. Section 7.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses, and provide any other rights, to any person who is or was an employee or agent of the Corporation, similar to those rights conferred in this Article VII to directors and officers of the Corporation. Section 7.13. No Prejudice. No amendment to or repeal of this Article VII shall apply to or have any effect on the rights of any person for or with respect to acts or omissions of such person occurring prior to such amendment or repeal. ARTICLE VIII AMENDMENTS These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws shall be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the affirmative vote of the holders of a majority of shares present in person or represented by proxy and entitled to vote on the subject matter at a meeting of stockholders at which a quorum is present or the affirmative vote of a majority of the directors present at a meeting at which a quorum is present. 17 EX-27.1 4 c58681qex27-1.txt FINANCIAL DATA SCHEDULE
5 3-MOS MAR-31-2001 JUL-01-2000 SEP-30-2000 426,335 0 9,696,669 (823,000) 8,893,228 19,166,845 15,609,218 (6,519,320) 31,851,690 18,173,380 3,118,222 0 0 25,877,731 (15,317,643) 31,759,213 11,936,290 11,936,290 8,075,863 2,415,781 (40,600) 0 372,956 (504,264) 0 (504,264) 0 0 0 (504,264) (0.01) (0.01)
-----END PRIVACY-ENHANCED MESSAGE-----