-----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, BuTXuUVPUDoygau2ANgyP5i6NETJtDmnwClIuC8V1v2NRtnaemmlBnM0gda0eJ2J O74cviM7pcV5JeZ6z93ElQ== 0000889812-00-002358.txt : 20000517 0000889812-00-002358.hdr.sgml : 20000517 ACCESSION NUMBER: 0000889812-00-002358 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20000331 FILED AS OF DATE: 20000516 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRECISE TECHNOLOGY INC CENTRAL INDEX KEY: 0001042317 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 251205268 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 333-32041 FILM NUMBER: 636873 BUSINESS ADDRESS: STREET 1: 501 MOSSIDE BLVD CITY: NORTH VERSAILLES STATE: PA ZIP: 15137 BUSINESS PHONE: 4128232100 MAIL ADDRESS: STREET 1: 501 MOSSIDE BLVD CITY: NORTH VERSAILLES STATE: PA ZIP: 15137 10-Q 1 QUARTERLY REPORT UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM 10-Q /X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 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: 333-32041 --------------- PRECISE TECHNOLOGY, INC. (Exact name of registrant as specified in its charter) Delaware 25-1205268 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 501 Mosside Boulevard North Versailles, Pennsylvania 15137-2553 (Address of principal executive offices) (Zip Code) (412) 823-2100 (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ----- ----- As of May 12, 2000, one share of the Company's Common Stock was outstanding. TABLE OF CONTENTS PART I - FINANCIAL INFORMATION ITEM 1. Financial Statements 3 ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 10 ITEM 3. Quantitative and Qualitative Disclosures About Market Risk 12 PART II - OTHER INFORMATION ITEM 6. Exhibits and Reports on Form 8-K 12 2 PART I - FINANCIAL INFORMATION Item 1. FINANCIAL STATEMENTS PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) CONSOLIDATED BALANCE SHEETS (In thousands)
March 31, December 31, 2000 1999 ---- ---- ASSETS (unaudited) Current assets: Cash and cash equivalents $ 468 $ 318 Accounts receivable, net 17,088 15,133 Inventories, net 7,861 6,352 Deposits on capital leases 4,026 5,276 Prepaid expenses and other 415 289 Deferred income taxes 683 683 -------------- ------------ Total current assets 30,541 28,051 Property, plant and equipment, net 50,776 44,950 Intangible and other assets, net 25,207 25,173 -------------- ------------ Total assets $106,524 $98,174 ============== ============ LIABILITIES AND STOCKHOLDER'S DEFICIT Current Liabilities: Current maturities of long-term debt $ 7,239 $ 5,722 Accounts payable 12,233 11,789 Accrued liabilities 7,014 4,639 Tooling deposits 2,575 1,292 -------------- ------------ Total current liabilities 29,061 23,442 Long-term debt, less current maturities 88,854 85,829 Deferred income taxes 1,247 1,247 Commitments and Contingencies -- -- Stockholder's deficit: Common stock, no par value; 1,000 shares authorized, and 1 share issued and outstanding at March 31, 2000 and December 31, 1999, respectively 1 1 Additional paid-in-capital 3,555 3,555 Minimum pension liability (193) (193) Retained deficit (16,001) (15,707) -------------- ------------ Total stockholder's deficit (12,638) (12,344) -------------- ------------ Total liabilities and stockholder's deficit $(106,524) $98,174 ============== ============
See accompanying notes. 3 PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) CONSOLIDATED STATEMENTS OF INCOME (In thousands)
Three Months Ended March 31, ---------------------------------- 2000 1999 ---- ---- (unaudited) Net sales $30,692 $26,811 Cost of sales 24,793 20,761 -------------- ------------- Gross profit 5,899 6,050 Selling, general, and administrative 3,256 3,091 Amortization of intangible assets 254 254 -------------- ------------- Operating income 2,389 2,705 Other expense (income): Interest expense 2,631 2,519 Other -- (1) -------------- ------------- (Loss) income before income taxes (242) 187 Provision for income taxes 52 195 -------------- ------------- Net loss $ (294) $ (8) ============== =============
See accompanying notes. 4 PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands)
Three Months Ended March 31, --------------------------------- 2000 1999 ---- ---- (unaudited) Operating Activities: Net loss $ (294) $ (8) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation and amortization 2,002 1,970 Amortization of financing fees 126 139 (Gain)/loss on sale of fixed assets (1) 13 Changes in operating assets and liabilities: Accounts receivable (1,955) (1,406) Inventories (1,509) (1,364) Deposits on capital leases 1,250 -- Prepaid expenses and other (541) (172) Accounts payable 445 2,782 Accrued liabilities 2,374 2,025 Tooling deposits 1,284 560 ------------- ----------- Net cash provided by operating activities 3,181 4,539 Investing Activities: Capital expenditures (2,958) (377) Proceeds from sale of fixed assets 1 -- ------------- ----------- Net cash used in investing activities (2,957) (377) Financing Activities: Borrowings on revolving line of credit 10,600 5,200 Payments on revolving line of credit (9,800) (7,600) Repayment of long-term debt (874) (912) ------------- ----------- Net cash used in financing activities (74) (3,312) ------------- ----------- Net increase in cash 150 850 Cash at beginning of period 318 240 ------------- ----------- Cash at end of period $ 468 $ 1,090 ============= ===========
See accompanying notes. 5 PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued) (In thousands)
Three Months Ended March 31, ------------------------------- 2000 1999 ---- ---- (unaudited) Supplemental disclosures of cash flow information: Cash paid during the period for: Interest $ 516 $ 266 ============ ============ Income taxes, net of refund $ 50 $ 41 ============ ============ Supplemental schedule of noncash investing and financing activities: Capital lease agreements for equipment $ 4,613 $ -- ============ ============
See accompanying notes. 6 PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS MARCH 31, 2000 (Unaudited) 1. Financial Statement Presentation The consolidated balance sheet at March 31, 2000, and the consolidated statements of income and consolidated statements of cash flows for the periods ended March 31, 2000 and 1999, have been prepared by Precise Technology, Inc. ("Precise"), without audit. In the opinion of Management, all recurring and non-recurring adjustments necessary to present fairly the financial position, results of operations and changes in cash flows at March 31, 2000 and for the periods presented have been made. The accompanying condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required for complete financial statements prepared in accordance with generally accepted accounting principles. It is suggested that these consolidated financial statements be read in conjunction with the Company's annual report on Form 10-K for the year ended December 31, 1999 which contains a summary of the Precise's accounting principles and other information. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. The results of operations for the period ended March 31, 2000 are not necessarily indicative of the operating results to be expected for the full year. 2. Inventories The major components of inventories were as follows: March 31, December 31, 2000 1999 ------------------ ------------------ (unaudited) Finished products $2,316 $1,998 Raw materials 2,564 1,815 Tooling and dies 2,981 2,539 ------------------ ------------------ Total $7,861 $6,352 ================== ================== 7 PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS MARCH 31, 2000 (Unaudited) 3. Commitments and Contingencies Precise is involved from time to time in lawsuits that arise in the normal course of business. Precise actively and vigorously defends all lawsuits. Management believes that there are no pending lawsuits that will have a material affect on the Precise's financial position. 4. Long-Term Debt On June 13, 1997, Precise entered into a $30 million Credit Agreement with a financial institution, which expires in 2002. The Credit Agreement contains certain covenants which require Precise to maintain leverage ratios, fixed charge and interest coverage ratios and minimum net worth. The Credit Agreement further limits capital expenditures, declaration of dividends and other restricted payments, and additional indebtedness. The Credit Agreement contains other operating covenants, including a restriction on the sale, encumbrance or transfer of the Precise's assets or capital stock. The Credit Agreement was amended, effective March 31, 1999. The amendment reduced the borrowing capacity of Precise by allowing for draws of a specified percentage of certain assets, determined on a monthly basis, up to a maximum of $30 million. The borrowing capacity of Precise as of March 31, 2000, was approximately $16.6 million. 5. Segment Information Precise has two reportable segments: injection molding and mold manufacturing. Precise's injection molding segment produces high-volume, highly engineered, precision thermoplastic products. Precise's mold manufacturing segment has extensive tool and die manufacturing capabilities. Precise evaluates performance and allocates resources based on gross margin and/or market need. As a result, Precise does not allocate certain general and administrative expenses to its operating segments including depreciation, amortization and interest expense. Precise's reportable segments are business units that offer different products and services. The reportable segments are each managed separately because they manufacture and distribute distinct products or services with different production processes. 8 PRECISE TECHNOLOGY, INC. (A WHOLLY-OWNED SUBSIDIARY OF PRECISE HOLDING CORPORATION) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS MARCH 31, 2000 (Unaudited) 5. Segment Information - (continued) Information by industry segment is set forth below:
Three Months Ended March 31, 2000 --------------------------------------------------------------- Unallocated Injection Mold Corporate Total Molding Manufacturing Items Consolidated -------------- ---------------- --------------- -------------- (in thousands) Revenues from external customers $26,703 $3,989 $ -- $30,692 Segment gross margin 5,534 365 -- 5,899 Depreciation and amortization expense 1,540 261 201 2,002 Interest expense -- -- 2,631 2,631 Segment assets 59,073 12,142 35,309 106,524 Net capital expenditures 7,151 365 54 7,570 Three Months Ended March 31, 1999 --------------------------------------------------------------- Unallocated Injection Mold Corporate Total Molding Manufacturing Items Consolidated -------------- ---------------- --------------- -------------- (in thousands) Revenues from external customers $22,278 $ 4,533 $ -- $26,811 Segment gross margin 5,926 124 -- 6,050 Depreciation and amortization expense 1,358 263 349 1,970 Interest expense -- -- 2,519 2,519 Segment assets 48,287 13,174 33,993 95,454 Net capital expenditures 334 -- 43 377
6. Subsequent Events On May 5, 2000, Precise purchased all of the outstanding stock of Phaff B.V., a private limited company, incorporated under the laws of the Netherlands. The acquisition was financed with indebtedness under the Credit Agreement totaling $11.1; $9.0 million of which was a term loan and $2.1 of which was a draw on Precise's revolving line of credit. The acquisition was accounted for as a purchase in accordance with generally accepted accounting principles. The purchase price will be allocated to acquired assets based upon the fair market values at the date of the acquisition, with any remaining amount being allocated to goodwill. This allocation will be made within one year of the acquisition date. 9 Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS On May 5, 2000, Precise purchased all of the outstanding stock of Phaff B.V., a limited liability company, incorporated under the laws of the Netherlands. The acquisition was financed with a $9.0 million term loan and a $2.1 million draw on Precise's revolving line of credit. Precise's operating data for the three months ended March 31, 2000 and 1999 are set forth below as percentages of net sales:
Three Months Ended March 31, -------------------------- 2000 1999 Net sales 100.0% 100.0% Cost of sales 80.8 77.4 ------------- ------------ Gross profit 19.2 22.6 Selling, general and administrative 10.6 11.5 Amortization of intangible assets 0.8 1.0 ------------- ------------ Operating income 7.8 10.1 Other expense (income): Interest expense 8.6 9.4 Other 0.0 (0.0) ------------- ------------ (Loss)/income before income taxes (0.8) 0.7 Provision for income taxes 0.2 0.7 ------------- ------------ Net loss (1.0)% (0.0)% ============= ============
RESULTS OF OPERATIONS Three Months Ended March 31, 2000 compared to Three Months Ended March 31, 1999 Net sales. Precise's net sales increased to $30.7 million for the three months ended March 31, 2000, an increase of $3.9 million, or 14.5%, from the comparable period in the prior year. The increase in net sales was attributable to increased injection molding sales in the amount of $4.4 million, which were partially offset by decreased mold manufacturing sales in the amount of $0.5 million. Injection molding sales for the three months ended March 31, 2000, increased $4.4 million, or 19.9%, to $26.7 million. The increase is primarily attributable to sales at two new injection molding facilities in the amount of $4.2 million. These facilities began operations in the fourth quarter of 1999 and the first quarter of 2000. Mold manufacturing sales for the three months ended March 31, 2000, decreased $0.5 million, or 12.0%, to $4.0 million. The decrease is primarily due to a decrease in mold sales related to the management of mold manufacturing programs performed by outside vendors of $1.4 million, which was partially offset by an increase in internally-produced mold manufacturing sales of $0.9 million. Gross Profit. Precise's gross profit decreased to $5.9 million for the three months ended March 31, 2000, from $6.1 million for the three months ended March 31, 1999. Gross profit margin decreased to 19.2% for the three months ended March 31, 2000 from 22.6% in the comparable period in the prior year. Injection molding's gross profit for the three months ended March 31, 2000 decreased $0.4 million, or 6.6%, to $5.5 million due as a percentage of injection molding net sales, gross profit decreased from 26.6% to 20.7% for the three months ended March 31, 2000. The decrease was primarily due to the start up of a new facility as well as the start up of significant programs at several other facilities, a contract restriction in passing resin price increases to a significant customer and decreased equipment utilization. Mold manufacturing's gross profit for the three months ended March 31, 2000 increased $241,000, to $365,000 due to increased utilization associated with the increase in internally-produced mold manufacturing sales. Selling, general and administrative. Selling, general and administrative expenses increased to $3.3 million for the three months ended March 31, 2000, an increase of $165,000, or 5.3%, over the 10 comparable period in the prior year. Selling, general and administrative expenses, as a percentage of net sales, decreased from 11.5% to 10.6% for the three months ended March 31, 1999 and March 31, 2000, respectively. The increase in selling, general and administrative expenses was primarily due to increased salaries, wages, and fringe benefits due to annual merit increases and an increase in total employees and an increase in insurance expense. These increases were partially offset by a decrease in fees and services. Amortization. Precise's amortization of intangible assets remained constant at $254,000 for the three months ended March 31, 2000, compared to the same period in the prior year. As a percentage of net sales, amortization expense decreased to 0.8% for the three months ended March 31, 2000, from 1.0% for the same period in the prior year. Operating income. Operating income decreased to $2.4 million for the three months ended March 31, 2000, a decrease of $316,000, or 11.7%, over the comparable period in the prior year. Operating income as a percentage of net sales decreased to 7.8% for the three months ended March 31, 2000 from 10.1% in the comparable period in the prior year, primarily as a result of higher selling, general and administrative expenses. Interest expense. Interest expense increased to $2.6 million for the three months ended March 31, 2000 from $2.5 million in the comparable period in the prior year representing an increase of 4.4%. This increase is primarily a result of interest due on a higher level of outstanding indebtedness. As a percentage of net sales, interest expense decreased from 9.4% for the three months ended March 31, 1999, to 8.6% for the three months ended March 31, 2000. Provision for income tax. Precise's effective tax rates differed from the applicable statutory rates for the three months ended March 31, 2000 and 1999 primarily due to nondeductible goodwill amortization. Liquidity and Capital Resources Precise generated cash flows from operations totaling $3.2 million and $4.5 million in the three months ended March 31, 2000 and 1999, respectively. The decrease in cash flows from operations is primarily attributable to a lower increase in accounts payable as compared to the prior period, partially offset by a decrease in deposits on capital leases. Also contributing to the decrease in cash flows from operations is the increase in accounts receivable and tooling deposits, both of which are due to the increase in the level of business activity. Precise's cash flows used in investing activities totaled $3.0 million and $0.4 million in the first quarter of 2000 and 1999, respectively, excluding capital lease agreements for equipment totaling $4.6 million in the three months ended March 31, 2000. The capital leases entered into in the first quarter of 2000, related to machinery acquired for new molding programs at several molding facilities in an aggregate amount of $3.1 million; and $1.3 million for the acquisition of machinery at a new molding facility. During the first three months of 2000, Precise expended approximately $1.6 million on leasehold improvements and automation equipment needed for new programs and $0.5 million on additional machinery and equipment at the Streetsboro facility. During the first three months of 1999, Precise expended approximately $0.4 million in cash capital expenditures primarily for auxiliary and assembly equipment. Precise's cash flows used in financing activities totaled $74,000 and $3.3 million for the three months ended March 31, 2000 and 1999, respectively. During the three months ended March 31, 2000, cash used in financing activities was comprised of regularly scheduled principal payments on Precise's capital lease obligations and revolving line of credit, which was partially offset by borrowings on the revolving line of credit. During the three months ended March 31, 1999, regularly scheduled principal payments on Precise's capital lease obligations and payments on the revolving line of credit contributed to the cash used in financing activities. Management believes that Precise's cash flow from operations, together with borrowings under its Credit Agreement, which had a borrowing capacity of $16.6 million of which $7.9 million was available at March 31, 2000, provides it with sufficient liquidity necessary to fund capital improvements, service indebtedness and meet working capital requirements for Precise's existing operations. However, Precise is highly leveraged and, as a result, funds available for working capital, capital expenditures, and other purposes may be limited or unavailable in the event Precise does not generate cash flow at or above expected levels, which could have a material adverse effect on its business, financial condition and results of operations. 11 Cautionary Statement on Forward-Looking Statements This Report contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Investors are cautioned that any forward-looking statements, including statements regarding the intent, belief, or current expectations of Precise or its management, are not guarantees of future performance and involve risks, uncertainties, and other factors, some of which are beyond Precise's control, and that actual results may differ materially from those in forward-looking statements. Such risks, uncertainties and other factors include, but are not limited to: (a) general economic conditions in the markets in which Precise operates, (b) reliance on key customers and supply contracts, (c) volatility of customer demand (d) exposure to fluctuations in resin cost and supply, (e) customer outsourcing decisions, (f) reliance on key manufacturing facilities, (g) the impact of significant competition from companies of varying sizes including divisions or subsidiaries of larger companies and (h) other risks detailed from time to time in the Company's Securities and Exchange Commission filings. Precise does not intend to update these forward-looking statements. Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Precise is exposed to market risk from changes in interest rates. Precise's primary interest rate risk relates to its long-term debt obligations. At March 31, 2000, Precise had total long-term obligations, including the current portion of those obligations, of approximately $96.1 million. Of that amount $87.5 million was in fixed rate obligations and $8.6 million was in variable rate obligations. Assuming a 10% increase in interest rates on Precise's variable rate obligations (i.e., an increase from the March 31, 2000 weighted average interest rate of 8.80% to a weighted average interest rate of 9.68%), interest expense for the three months ended March 31, 2000 would be approximately $19,000 higher based on the March 31, 2000 outstanding balance of variable rate obligations. To date, Precise has not entered into any interest rate swap or exchange agreements. PART II - OTHER INFORMATION Item 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits (i) Exhibit 27 - Financial Data Schedule (ii) Exhibit 3.15 -- Articles of Incorporation of Precise International, Inc. (iii) Exhibit 3.16 - Bylaws of Precise International, Inc. (b) Reports on Form 8-K None 12 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the Undersigned, thereunto duly authorized. PRECISE TECHNOLOGY, INC. (Registrant) Date May 15, 2000 /s/ John R. Weeks ------------ ----------------- John R. Weeks President and Chief Executive Officer Date May 15, 2000 /s/ Gregory R. Conley ------------ --------------------- Gregory R. Conley Vice President and Chief Financial Officer (Principal financial and accounting officer) 13 EX-3.15 2 CERTIFICATE OF INCORPORATION CERTIFICATE OF INCORPORATION OF PRECISE INTERNATIONAL, INC. a Delaware corporation FIRST. The name of the corporation is Precise International, Inc. (hereinafter the "Corporation"). SECOND. The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD. The nature of the business of or purpose to be conducted or promoted by 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 (the "General Corporation Law"). FOURTH. The total number of shares of capital stock which the Corporation shall have authority to issue is 100 shares of common stock, par value $.01 per share. FIFTH. The Board of Directors is authorized to make, alter or repeal the By-Laws of the Corporation. Election of directors need not be by written ballot unless the By-Laws so provide. SIXTH. The name and mailing address of the sole incorporator is: Name Mailing Address Stacie Corrado 200 Park Avenue New York, NY 10166-4193 SEVENTH. No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that this provision shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Corporation and its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (iii) under Section 174 of the General Corporation Law; or (iv) for any transaction from which the director derived an improper personal benefit. EIGHTH. The Corporation shall, to the extent required, and may, to the extent permitted by the General Corporation Law, indemnify and reimburse all persons whom it may indemnify and reimburse pursuant thereto. IN WITNESS WHEREOF, the undersigned has executed this Certificate this 20th day of March, 2000. /s/ Stacie Corrado --------------------------- Stacie Corrado Sole Incorporator EX-3.16 3 BY-LAWS OF PRECISE INTERNATIONAL, INC. BY-LAWS OF PRECISE INTERNATIONAL, INC., a Delaware corporation ARTICLE I Offices ------- Section 1.1 Registered Office. The registered office of the Corporation in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware, County of New Castle. The name of the Corporation's registered agent at such address shall be 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 may from time to time determine or the business of the Corporation may require. ARTICLE II Stockholders ------------ Section 2.1 Annual Meetings. An annual meeting of stockholders shall be held each year for the election of directors at such date, time and place either within or without the State of Delaware as shall be designated by the Board of Directors. Any other proper business may be transacted at the annual meeting of stockholders. Section 2.2 Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman, if any, the Vice Chairman, if any, or the President and shall be called by the Chairman or the Secretary at the request, in writing, stating the purpose or purposes of the meeting, of stockholders who hold a majority of the outstanding shares of each class of capital stock entitled to vote at the meeting. Each special meeting shall be held at such date, time and place either within or without the State of Delaware as shall be designated by the person or persons calling such meeting at least ten days prior to such meeting. Section 2.3 Notice of Meeting. Unless otherwise provided by law, whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the date, time and place of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at the meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation. Section 2.4 Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 2.5 Quorum. Unless otherwise provided by law or the certificate of incorporation, at each meeting of stockholders, the presence in person or representation by proxy of the holders of a majority of the outstanding shares of each class of capital stock entitled to vote at the meeting shall constitute a quorum for the transaction of business. For purposes of the foregoing, two or more classes or series of capital stock shall be considered a single class if the holders thereof are entitled to vote together as a single class at the meeting. In the absence of a quorum, the stockholders so present and represented may, by vote of the holders of a majority of the shares of capital stock of the Corporation so present and represented, adjourn the meeting from time to time until a quorum shall attend, and the provisions of Section 2.4 of these by-laws shall apply to each such adjournment. Shares of its own capital stock belonging on the record date for the meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity. Section 2.6 Organization. Meetings of stockholders shall be presided over by the Chairman, if any, or in his absence by the Vice Chairman, if any, or in his absence by the President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting. Section 2.7 Voting; Proxies. Unless otherwise provided by the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of capital stock held by him which has voting power on the subject matter submitted to a vote at the meeting. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary before the proxy is voted. Unless otherwise required by -2- law, voting of stockholders for the election of directors need not be by written ballot. Voting of stockholders for all other matters need not be by written ballot unless so determined at a stockholders meeting by the vote of the holders of a majority of the outstanding shares of each class of capital sock present in person or represented by proxy at the meeting and entitled to vote on the subject matter submitted to a vote at the meeting. Unless otherwise provided by law or the certificate of incorporation, the vote of the holders of a majority of the shares of capital stock of the Corporation present in person or represented by proxy at a meeting at which a quorum is present and entitled to vote on the subject matter submitted to a vote at the meeting shall be the act of the stockholders. Section 2.8 Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, more than ten days after the date upon which the resolution fixing the record date with respect to the taking of corporate action by written consent without a meeting is adopted by the Board of Directors, nor more than sixty days prior to any other action. If no record date is fixed: (a) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (b) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed; (c) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when prior action by the Board of Directors is required, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (d) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. 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 the adjourned meeting. Section 2.9 List of Stockholders Entitled to Vote. The Secretary shall make, at least ten 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 ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. -3- Section 2.10 Consent of Stockholders in Lieu of Meeting. Unless otherwise provided by the certificate of incorporation, any action required by law to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III Board of Directors ------------------ Section 3.1 Powers; Number; Qualifications. Unless otherwise provided by law or the certificate of incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Unless otherwise provided by the certificate of incorporation, the Board of Directors shall consist of such number of directors as the Board of Directors shall from time to time designate. Unless otherwise provided by the certificate of incorporation, directors need not be stockholders. Section 3.2 Election; Term of Office; Resignation; Removal; Vacancies. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director 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. Any director or the entire Board of Directors may be removed, with or without cause, by the vote of the holders of a majority of shares of capital stock then entitled to vote at an election of directors. Whenever the holders of shares of any class or series of capital stock are entitled to elect one or more directors by the provisions of the certificate of incorporation, the provisions of the preceding sentence shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series of capital stock and not to the vote of the holders of the outstanding shares of capital stock as a whole. Unless otherwise provided by the certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having a right to vote as a single class may be filled by the vote of a majority of the directors then in office, although less than a quorum, or by the vote of the sole remaining director. Whenever the holders of shares of any class or classes of capital stock or series thereof are entitled to elect one or more directors by the provisions of the certificate of incorporation, vacancies and newly created directorships of such class or classes or series thereof may be filled by the vote of a majority of the directors elected by such class or classes or series thereof then in office, or by the vote of the sole remaining director so elected. -4- Section 3.3 Regular Meetings. Regular meetings of the Board of Directors shall be held at such dates, times and places either within or without the State of Delaware as the Board of Directors shall from time to time determine. Section 3.4 Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman, if any, the Vice Chairman, if any, the President or by any two members of the Board of Directors. Each special meeting shall be held at such date, time and place either within or without the State of Delaware as shall be fixed by the person or persons calling the meeting. Section 3.5 Notice of Meetings. Written notice of each meeting of the Board of Directors shall be given which shall state the date, time and place of the meeting. The written notice of any meeting shall be given at least twenty-four hours in advance of the meeting to each director. Notice may be given by letter, telegram, telex or facsimile and shall be deemed to have been given when deposited in the United States mail, delivered to the telegraph company or transmitted by telex or facsimile, as the case may be. Section 3.6 Telephonic Meetings Permitted. Members of the Board of Directors or any committee designated by the Board of Directors may participate in a meeting of the Board of Directors or of such committee by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this by-law shall constitute presence in person at such meeting. Section 3.7 Quorum; Vote Required for Action. Unless otherwise required by law, at each meeting of the Board of Directors, the presence of one-third of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the vote of a greater number is required by law or the certificate of incorporation. In case at any meeting of the Board of Directors a quorum shall not be present, the members of the Board of Directors present may by majority vote to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall attend. Section 3.8 Organization. Meetings of the Board of Directors shall be presided over by the Chairman, if any, or in his absence by the Vice Chairman, if any, or in his 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 absence the chairman of the meeting may appoint any person to act as secretary of the meeting. Section 3.9 Action by Directors Without a Meeting. Unless otherwise provided by 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. -5- Section 3.10 Compensation of Directors. Unless otherwise provided by the certificate of incorporation, the Board of Directors shall have the authority to fix the compensation of directors, which compensation may include the reimbursement of expenses incurred in connection with meetings of the Board of Directors or a committee thereof. ARTICLE IV Committees ---------- Section 4.1 Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, 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 of such committee at any meeting thereof. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Section 4.2 Power of Committees. Any committee designated by the Board of Directors, to the extent provided in a resolution of the Board of Directors, 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 and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority to take any action which by law may only be taken by the Board of Directors or to take any action with reference to: amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors, fix the designation and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of dissolution, removing or indemnifying directors or amending these by-laws; and, unless a resolution of the Board of Directors expressly so provides, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law of the State of Delaware. Section 4.3 Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may adopt, amend and repeal rules for the conduct of its business. In the absence of a resolution by the Board of Directors or a provision in the rules of such committee to the contrary, the presence of a majority of the total number of members of such committee shall constitute a quorum for the transaction of business, and the -6- vote of a majority of the members present at a meeting at which a quorum is present shall be the act of such committee. ARTICLE V Officers -------- Section 5.1 Officers; Elections. As soon as practicable after the annual meeting of stockholders in each year, the Board of Directors shall elect from its membership or outside thereof a President, a Secretary, a Chief Executive Officer, an Executive Vice President, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers or agents as it may determine. Unless otherwise provided by the certificate of incorporation, any number of offices may be held by the same person. Section 5.2 Term of Office; Resignation; Removal; Vacancies. Except as otherwise provided by the Board of Directors when electing any officer, each officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his election, or until his successor is elected and qualified or until his earlier resignation or removal. Any officer may resign at any time upon written notice to the Corporation directed to the Board of Directors and 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. 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 for the unexpired portion of the term by the Board of Directors. Section 5.3 Powers and Duties. The officers of the Corporation shall have such powers and duties in the management of the Corporation as shall be stated in these by-laws or in a resolution of the Board of Directors which is not inconsistent with these by-laws and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the Board of Directors. Section 5.4 Chairman of the Board. The Chairman of the Board shall determine and administer the policies of the corporation, subject to the instructions of the Board of Directors. The Chairman of the Board shall preside at all meetings of the shareholders and of the Board of Directors and shall be a member ex officio of all committees of the Board of Directors. The Chairman of the Board shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required of permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. Section 5.5 Chief Executive Officer. The chief executive officer of the corporation, shall preside at all meetings of the shareholders and the Board of Directors, shall have general and active management of the business of the corporation and shall see that all orders and -7- resolutions of the Board of Directors are carried into effect. The chief executive officer shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. Section 5.6 President. The president of the corporation, in the absence or disability of the chief executive officer, shall preside at all meetings of the shareholders and the Board of Directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. Section 5.7 Executive Vice-President. The executive vice-president in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 5.8 Vice Presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the Board of Directors, shall, in the absence or disability of the executive vice president, perform the duties and exercise the powers of the executive vice-president and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 5.9 Secretary. The secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The secretary shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision the secretaries shall be. The secretary shall have custody of the corporate seal of the corporation and the secretary or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the secretaries signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by her signature. Section 5.10 Assistant Secretaries. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 5.11 The 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 -8- 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 president and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all the treasurers 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 the treasurers office and for the restoration to the corporations in case of the treasurers death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 5.12 Assistant Treasurers. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the Board of Directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 5.13 Other Officers; Security. The other officers, if any, of the Corporation shall have such duties and powers as generally pertain to their respective offices and such other duties and powers as the Board of Directors shall from time to time delegate to each such officer. The Board of Directors may require any officer, agent or employee to give security, by bond or otherwise, for the faithful performance of his duties. Section 5.14 Compensation of Officers. The compensation of each officer shall be fixed by the Board of Directors and no officer shall be prevented from receiving such compensation by virtue of his also being a director. ARTICLE VI Stock ----- Section 6.1 Certificates. Every holder of one or more shares of capital stock of the Corporation shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman, if any, or the Chief Executive Officer, President or a Vice President, and by the Treasurer or an Assistant Treasurer, if any, or the Secretary or an Assistant Secretary, certifying the number of shares owned by him in the Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Section 6.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the -9- owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. ARTICLE VII Indemnification of Directors and Officers ----------------------------------------- Section 7.1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he is or was a director or officer of the Corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all reasonable expense, liability and loss (including, without limitation, reasonable attorneys' fees, judgments, fines and amounts paid in settlement) incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators; provided, however, that, except as provided in Section 7.2 below with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this ARTICLE VII shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee) shall be made only upon delivery to the corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this ARTICLE VII or otherwise. Section 7.2 Right of Indemnitee to Bring Suit. If a claim under Section 7.1 above is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be thirty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in -10- part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that and (b) in any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this ARTICLE VII or otherwise shall be on the Corporation. Section 7.3 Non-Exclusivity of Rights under this ARTICLE. The rights to indemnification and to the advancement of expenses conferred in this ARTICLE VII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. Section 7.4 Insurance. The Corporation may purchase and maintain insurance on its own behalf or on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. Section 7.5 Indemnification of Employees and Agents. The Corporation may, to the extent authorized at any time from time to time by the Board of Directors, grant rights to indemnification and the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this ARTICLE VII with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. -11- ARTICLE VIII Miscellaneous ------------- Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors. Section 8.2 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. Section 8.3 Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever notice is required to be given by law, the certificate of incorporation or these by-laws, a written waiver thereof, signed by the person entitled to notice, 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 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. Unless otherwise provided by the certificate of incorporation, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice. Section 8.4 Interested Directors, Officers, Quorum. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (a) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (b) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. Section 8.5 Books and Records. The books and records of the Corporation may be kept within or without the State of Delaware at such place or places as may be designated from time to time by the Board of Directors. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other information storage device provided that the records so kept can -12- be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same. Section 8.6 Amendment of By-Laws. These By-laws may be amended or repealed, and new by-laws adopted, by the Board of Directors, but the stockholders entitled to vote may adopt additional by-laws and may amend or repeal any by-law whether or not adopted by them. -13- EX-27 4 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM (1) THE CONSOLIDATED UNAUDITED INTERIM FINANCIAL STATEMENTS OF PRECISE TECHNOLOGY, INC. AS OF MARCH 31, 2000 AND FOR THE THREE MONTHS THEN ENDED AND (2) THE CONSOLIDATED FINANCIAL STATEMENTS OF PRECISE TECHNOLOGY, INC. AS OF DECEMBER 31, 1999 AND FOR THE YEAR THEN ENDED AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 3-MOS 12-MOS DEC-31-2000 DEC-31-1999 MAR-31-2000 DEC-31-1999 468 318 0 0 17,230 15,218 142 85 7,861 6,352 30,541 28,051 77,630 70,049 26,854 25,099 106,524 98,174 29,061 23,442 0 0 0 0 0 0 1 1 (12,638) (12,344) 106,524 98,174 30,692 110,130 30,692 110,130 24,793 85,809 28,303 99,203 0 (243) 0 0 2,631 10,365 (242) 805 52 755 (294) 50 0 0 0 0 0 0 (294) 50 0.0 0.0 0.0 0.0
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