-----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, JYJUeewRXsInpdus4XHsYTms1XGaGFtrxtc4pDiKacxBCJoI+cqfSVlUGJjxnE1S kC7yqsYitrKGtCmLd2QOtw== 0000950123-04-009011.txt : 20040730 0000950123-04-009011.hdr.sgml : 20040730 20040730081913 ACCESSION NUMBER: 0000950123-04-009011 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20040626 FILED AS OF DATE: 20040730 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EDO CORP CENTRAL INDEX KEY: 0000031617 STANDARD INDUSTRIAL CLASSIFICATION: SEARCH, DETECTION, NAVIGATION, GUIDANCE, AERONAUTICAL SYS [3812] IRS NUMBER: 110707740 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-03985 FILM NUMBER: 04940584 BUSINESS ADDRESS: STREET 1: 60 EAST 42ND STREET STREET 2: 42ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10165 BUSINESS PHONE: 2127162000 MAIL ADDRESS: STREET 1: 60 EAST 42ND STREET STREET 2: 42ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10165 10-Q 1 y99482e10vq.txt FORM 10-Q ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM 10-Q (MARK ONE) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JUNE 26, 2004 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 1-3985 ----------------------------- EDO CORPORATION (Exact name of registrant as specified in its charter) NEW YORK 11-0707740 (State of Incorporation) (IRS Employer Identification No.) 60 EAST 42ND STREET, 42ND FLOOR, 10165 NEW YORK, NEW YORK (Zip Code) (Address of principal executive offices) (212) 716-2000 (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 [ ] Indicate by checkmark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act). Yes [X] No [ ] The number of shares of EDO common stock outstanding as of July 26, 2004 was 19,951,853 shares, with a par value $1 per share. ================================================================================ EDO CORPORATION TABLE OF CONTENTS
Page PART I FINANCIAL INFORMATION ITEM 1 Financial Statements..................................................................... 3 Consolidated Balance Sheets - June 26, 2004 and December 31, 2003...................................................... 3 Consolidated Statements of Earnings - Three months ended June 26, 2004 and June 28, 2003....................................... 4 Consolidated Statements of Earnings - Six months ended June 26, 2004 and June 28, 2003......................................... 5 Consolidated Statements of Cash Flows - Six months ended June 26, 2004 and June 28, 2003......................................... 6 Notes to Consolidated Financial Statements............................................... 7 ITEM 2 Management's Discussion and Analysis of Financial Condition and Results of Operations............................................................................... 16 ITEM 3 Quantitative and Qualitative Disclosures about Market Risk............................... 24 ITEM 4 Controls and Procedures.................................................................. 24 PART II OTHER INFORMATION ITEM 4 Submission of Matters to a Vote of Security Holders...................................... 24 ITEM 6 Exhibits and Reports on Form 8-K......................................................... 25 SIGNATURES ............................................................................................... 26
2 PART I - FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS EDO CORPORATION AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS
JUNE 26, DECEMBER 31, 2004 2003 ------------- ------------- (UNAUDITED) (IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS) ASSETS Current assets: Cash and cash equivalents................................................................... $ 80,741 $ 86,632 Accounts receivable, net.................................................................... 136,107 134,303 Inventories................................................................................. 49,403 34,733 Deferred income tax asset, net.............................................................. 3,594 3,594 Prepayments and other....................................................................... 6,145 5,954 ------------- ------------- Total current assets..................................................................... 275,990 265,216 ------------- ------------- Property, plant and equipment, net............................................................ 30,073 31,355 Notes receivable.............................................................................. 6,670 6,538 Goodwill...................................................................................... 92,249 92,527 Other intangible assets, net.................................................................. 53,027 55,898 Deferred income tax asset, net................................................................ 21,610 21,774 Other assets.................................................................................. 19,182 21,388 ------------- ------------- $ 498,801 $ 494,696 ============= ============= LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable............................................................................ $ 16,456 $ 22,801 Accrued liabilities......................................................................... 57,304 61,942 Contract advances and deposits.............................................................. 12,232 8,195 ------------- ------------- Total current liabilities................................................................ 85,992 92,938 ------------- ------------- Long-term debt................................................................................ 137,800 137,800 Post-retirement benefits obligations.......................................................... 72,413 71,898 Environmental obligation...................................................................... 1,697 1,728 Shareholders' equity: Preferred shares, par value $1 per share, authorized 500,000 shares........................................................................... -- -- Common shares, par value $1 per share, authorized 50,000,000 shares, 20,029,970 issued in 2004 and 19,832,108 issued in 2003............... 20,030 19,832 Additional paid-in capital.................................................................. 155,356 150,097 Retained earnings........................................................................... 76,036 69,059 Accumulated other comprehensive loss, net of income tax benefit.................................................................................. (29,215) (29,281) Treasury shares at cost 93,013 shares in 2004 and 88,128 shares in 2003).................... (1,408) (1,255) Unearned Employee Stock Ownership Plan shares............................................... (16,665) (17,290) Deferred compensation under Long-Term Incentive Plan........................................ (3,001) (479) Management group receivables................................................................ (234) (351) ------------- ------------- Total shareholders' equity............................................................... 200,899 190,332 ------------- ------------- $ 498,801 $ 494,696 ============= =============
See accompanying Notes to Consolidated Financial Statements. 3 EDO CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF EARNINGS
FOR THE THREE MONTHS ENDED JUNE 26, JUNE 28, 2004 2003 ------------- --------------- (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) NET SALES................................................................................... $ 126,290 $ 111,736 ------------- --------------- COSTS AND EXPENSES Cost of sales.............................................................................. 95,264 79,190 Selling, general and administrative........................................................ 18,824 21,493 Research and development................................................................... 2,851 2,498 Impairment loss on assets held for sale.................................................... -- 9,160 Acquisition-related costs.................................................................. -- 215 ------------- --------------- 116,939 112,556 ------------- --------------- OPERATING EARNINGS.......................................................................... 9,351 (820) NON-OPERATING INCOME (EXPENSE) Interest income............................................................................ 202 165 Interest expense........................................................................... (2,244) (2,247) Other, net................................................................................. (47) 95 ------------- --------------- (2,089) (1,987) ------------- --------------- Earnings before income taxes.................................................................. 7,262 (2,807) Income tax (expense) benefit.................................................................. (3,086) 1,181 ------------- --------------- Earnings (loss) from continuing operations before discontinued operations..................... 4,176 (1,626) Earnings from discontinued operations, net of tax............................................. -- 1,398 ------------- --------------- NET EARNINGS AVAILABLE FOR COMMON SHARES...................................................... $ 4,176 $ (228) ============= =============== NET EARNINGS PER COMMON SHARE: Basic: Continuing operations...................................................................... $ 0.24 $ (0.09) Discontinued operations.................................................................... -- $ 0.08 ------------- --------------- $ 0.24 $ (0.01) ============= =============== Diluted: Continuing operations...................................................................... $ 0.23 $ (0.09) Discontinued operations.................................................................... -- 0.08 ------------- --------------- $ 0.23 $ (0.01) ============= =============== Weighted-average common shares outstanding: Basic....................................................................................... 17,670 17,276 ============= =============== Diluted..................................................................................... 17,927 17,276 ============= ===============
See accompanying Notes to Consolidated Financial Statements. 4 EDO CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF EARNINGS
FOR THE SIX MONTHS ENDED JUNE 26, JUNE 28, 2004 2003 ----------- ------------- (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) NET SALES ......................................................... $ 237,167 $ 206,113 ----------- ------------- COSTS AND EXPENSES Cost of sales .................................................... 175,922 149,020 Selling, general and administrative .............................. 38,911 36,700 Research and development ......................................... 4,316 4,488 Impairment loss on assets held for sale .......................... -- 9,160 Acquisition-related costs ........................................ -- 420 ----------- ------------- 219,149 199,788 ----------- ------------- OPERATING EARNINGS ................................................ 18,018 6,325 NON-OPERATING INCOME (EXPENSE) Interest income .................................................. 444 400 Interest expense ................................................. (4,467) (4,474) Other, net ....................................................... (25) 128 ----------- ------------- (4,048) (3,946) ----------- ------------- Earnings before income taxes ........................................ 13,970 2,379 Income tax expense .................................................. (5,937) (1,023) ----------- ------------- Earnings from continuing operations before discontinued operations... 8,033 1,356 Earnings from discontinued operations, net of tax ................... -- 1,398 ----------- ------------- NET EARNINGS AVAILABLE FOR COMMON SHARES ............................ $ 8,033 $ 2,754 =========== ============= NET EARNINGS PER COMMON SHARE: Basic: Continuing operations ............................................ $ 0.46 $ 0.08 Discontinued operations .......................................... -- $ 0.08 ----------- ------------- $ 0.46 $ 0.16 =========== ============= Diluted: Continuing operations ............................................ $ 0.45 $ 0.08 Discontinued operations .......................................... -- 0.08 ----------- ------------- $ 0.45 $ 0.16 =========== ============= Weighted-average common shares outstanding: Basic ............................................................. 17,610 17,253 =========== ============= Diluted ........................................................... 17,880 17,493 =========== =============
See accompanying Notes to Consolidated Financial Statements 5 EDO CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 26, JUNE 28, 2004 2003 ---------- -------- (UNAUDITED) (IN THOUSANDS) OPERATING ACTIVITIES: Earnings from operations ............................................. $ 8,033 $ 1,356 Adjustments to earnings to arrive at cash provided by operations: Depreciation ...................................................... 5,455 5,998 Amortization ...................................................... 2,885 2,105 Bad debt expense .................................................. 190 154 Deferred tax provision (benefit) .................................. 164 (3,756) Loss on disposal of property, plant and equipment ................. 26 76 Impairment loss on assets held for sale ........................... -- 9,160 Deferred compensation expense ..................................... 402 121 Non-cash Employee Stock Ownership Plan compensation expense ....... 2,028 1,510 Non-cash stock option compensation expense ........................ -- 292 Dividends on unallocated Employee Stock Ownership Plan shares ..... 139 148 Common shares issued for directors' fees .......................... 67 51 Income tax benefit from stock options and Long-Term Incentive Plan .................................................. 449 45 Changes in operating assets and liabilities, excluding effects of acquisitions: Accounts receivable ............................................. (1,994) 12,206 Inventories ..................................................... (14,670) (1,150) Prepayments and other assets .................................... 1,719 630 Accounts payable, accrued liabilities and other ................. (10,651) (12,553) Contract advances and deposits .................................. 4,037 (9,517) ---------- ---------- Cash (used) provided by operations ..................................... (1,721) 6,876 ---------- ---------- Net Cash provided by discontinued operations ........................... -- 47 INVESTING ACTIVITIES: Purchase of plant and equipment ...................................... (4,199) (4,573) Payments received on notes receivable ................................ 150 101 Release of restricted cash ........................................... -- 27,153 Purchase of marketable securities .................................... -- (22) Cash paid for acquisitions, net of cash acquired ..................... -- (88,792) Cash received from Emblem escrow settlement .......................... 301 -- ---------- ---------- Cash used by investing activities ...................................... (3,748) (66,133) ---------- ---------- FINANCING ACTIVITIES: Proceeds from exercise of stock options .............................. 656 69 Proceeds from management group receivables ........................... 117 242 Repayments of acquired debt .......................................... -- (11,998) Payment of common share cash dividends ............................... (1,195) (1,182) ---------- ---------- Cash used by financing activities ...................................... (422) (12,869) ---------- ---------- Net decrease in cash and cash equivalents .............................. (5,891) (72,079) Cash and cash equivalents at beginning of year ......................... 86,632 132,320 ---------- ---------- CASH AND CASH EQUIVALENTS AT END OF PERIOD ............................. $ 80,741 $ 60,241 ========== ========== Supplemental disclosures: Cash paid for: Interest .......................................................... $ 3,617 $ 3,617 ========== ========== Income taxes ...................................................... $ 7,332 $ 6,424 ========== ==========
See accompanying Notes to Consolidated Financial Statements. 6 EDO CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (1) UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS The accompanying unaudited consolidated financial statements have been prepared in accordance with instructions to Form 10-Q and, therefore, do not include all information and footnotes normally included in consolidated financial statements prepared in conformity with accounting principles generally accepted in the United States. They should be read in conjunction with the consolidated financial statements and notes thereto of EDO Corporation and Subsidiaries (the "Company") for the year ended December 31, 2003 filed by the Company on Form 10-K with the Securities and Exchange Commission. The accompanying consolidated financial statements include all adjustments (consisting of normal recurring adjustments) that management considers necessary for a fair presentation of its consolidated financial position and results of operations for the interim periods presented. The results of operations for the interim periods are not necessarily indicative of the results that may be expected for the entire year. (2) STOCK-BASED COMPENSATION The Company accounts for its stock-based compensation plans in accordance with Accounting Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to Employees" and related interpretations. Under APB No. 25, because the exercise price of the Company's stock options is set equal to the market price of the underlying stock on the date of grant, no compensation expense is recognized. The following table illustrates the effect on net earnings and earnings per share if the Company had applied the fair market value recognition provisions of SFAS No. 123 "Accounting for Stock-Based Compensation" whereby compensation expense would be recognized as incurred for stock-based employee compensation. For purposes of pro forma disclosures, the estimated fair value of the options is amortized to expense over the options' vesting period.
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED JUNE 26, JUNE 28, JUNE 26, JUNE 28, 2004 2003 2004 2003 ---------- ----------- ---------- --------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Earnings: As reported .............................................. $ 4,176 $ (228) $ 8,033 $ 2,754 Stock option compensation expense based on fair value method, net of tax .................................... (375) (415) (795) (848) ---------- ----------- ---------- --------- Pro forma ................................................ 3,801 $ (643) $ 7,238 $ 1,906 ========== =========== ========== ========= Basic earnings per common share: As reported .............................................. $ 0.24 $ (0.01) $ 0.46 $ 0.16 Pro forma ................................................ 0.22 (0.04) 0.41 0.11 Diluted earnings per common share: As reported .............................................. $ 0.23 $ (0.01) $ 0.45 $ 0.16 Pro forma ................................................ 0.21 (0.04) 0.40 0.11 ========== =========== ========== =========
(3) ACQUISITIONS On June 16, 2003, the Company acquired for cash all of the stock of Emblem Group Ltd. ("Emblem"), a privately-held company based in Brighton, England. Emblem, now known as EDO (UK) Ltd., is a supplier of aerospace and defense products and services, primarily through its MBM Technology Ltd. unit in England, now known as EDO MBM Technology Ltd., and Artisan Technologies, Inc. subsidiary in the United States, now known as EDO Artisan. Emblem has a core competency in aircraft weapons-carriage and interfacing systems that will reinforce EDO's position as a global leader in aircraft armament release systems. Emblem is expected to broaden the Company's customer base in Europe. The purchase price was (pound)16.1 million ($27.0 million), excluding transaction costs of approximately $1.9 million. In the second quarter of 2004 we received $0.3 million from an escrow account resulting in a decrease in purchase price and therefore goodwill. Emblem became part of the Company's Defense segment. The excess of the purchase price over the net assets acquired recorded as goodwill and other intangibles related to Emblem's units located in England is deductible for U.S. income tax purposes over 15 years. The excess of the purchase price over the net assets acquired related to Artisan Technologies, Inc. is not deductible for income tax purposes. On March 10, 2003, the Company acquired for cash all of the stock of Darlington, Inc. ("Darlington"), a privately-held defense communications company based in Alexandria,Virginia. Darlington designs, manufactures and supports military communications equipment and information networking systems. The acquisition has enhanced the Company's existing positions on long-range platforms and programs across the U.S. military services and in particular the U.S. Marine Corps. The purchase price was $25.6 million, excluding transaction costs of approximately $0.3 million. In addition, the Company acquired and immediately paid off debt 7 of $4.9 million. Darlington became part of the Company's Defense segment. The excess of the purchase price over the net assets acquired recorded as goodwill and other intangible assets is deductible for income tax purposes over 15 years. On February 5, 2003, a wholly-owned subsidiary of the Company acquired for cash all of the stock of Advanced Engineering & Research Associates, Inc.("AERA"), a privately-held company located in Alexandria, Virginia. AERA, which was merged with another EDO subsidiary and renamed EDO Professional Services Inc., provides professional and information technology services primarily to the Department of Defense and other government agencies. The acquisition expanded the range of such services that the Company offers. The purchase price was $38.1 million, excluding transaction costs of $0.3 million. In addition, the Company acquired and immediately paid off debt of $3.8 million. AERA became part of the Company's Defense segment. The excess of the purchase price over the net assets acquired recorded as goodwill and other intangible assets is deductible for income tax purposes over 15 years. These acquisitions were accounted for as purchases and, accordingly, their operating results are included in the Company's consolidated financial statements since their respective acquisition dates. Unaudited pro forma results of operations, assuming the acquisitions of Emblem, Darlington, and AERA had been completed at the beginning of each period are summarized below. The results reflect adjustments to net sales, cost of sales, amortization expense, compensation expense, purchased in-process research and development costs, interest income and expense and income tax expense. The interest rate used in determining pro forma adjustments to interest income or expense was based on the average yield of the Company's invested cash and cash equivalents and approximated 1.0% for the period presented below.
FOR THE SIX MONTHS ENDED JUNE 28, 2003 ---- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Net Sales $ 266,844 ========== Earnings available for common shares...................... $ 5,376 ========== Diluted earnings per common share......................... $ 0.31 ==========
The pro forma results of operations are not necessarily indicative of the actual results of operations that would have occurred had these acquisitions been completed at the beginning of the period, or of the results which may occur in the future. The following table summarizes the allocation of the purchase price to the assets acquired and liabilities assumed at the date of acquisition.
EMBLEM DARLINGTON AERA AT JUNE 16, AT MARCH 10, AT FEBRUARY 5, 2003 2003 2003 Current assets $ 9,314 $ 11,943 $ 13,022 Plant and equipment 3,537 1,534 1,048 Customer contracts and relationships 7,698 14,400 17,100 Purchased technologies 5,355 - - Non-compete agreements 318 30 2,420 Tradename 669 400 500 Goodwill 9,307 13,462 11,649 Other assets - 446 414 Liabilities (7,257) (16,326) (7,791) --------- ---------- ---------- Total purchase price $ 28,941 $ 25,889 $ 38,362 ========= ========== ==========
Allocations of the purchase prices for AERA, Darlington and Emblem have been finalized. There are outstanding amounts held in escrow which, when settled, may result in further adjustments to goodwill. (4) BUSINESS COMBINATIONS AND GOODWILL AND OTHER INTANGIBLE ASSETS Statement of Financial Accounting Standard ("SFAS") No. 141, "Business Combinations," requires that the purchase method of accounting be used for all business combinations initiated after June 30, 2001. SFAS No. 141 also includes guidance on the initial recognition and measurement of goodwill and other intangible assets arising from business combinations completed after June 30, 2001. SFAS No. 142, "Goodwill and Other Intangible Assets," prohibits the amortization of goodwill and intangible assets with indefinite useful lives and requires that these assets be reviewed for impairment at least annually. Intangible assets with definite lives are amortized over their estimated useful lives. 8 In accordance with SFAS No. 142, goodwill must be tested at least annually for impairment at the reporting unit level. If an indication of impairment exists, the Company is required to determine if such goodwill's implied fair value is less than the carrying value in order to determine the amount, if any, of the impairment loss required to be recorded. Impairment indicators include, among other conditions, cash flow deficits, an historic or anticipated decline in revenue or operating profits, adverse legal or regulatory developments, accumulation of costs significantly in excess of amounts originally expected to acquire the asset and/or a material decrease in the fair value of some or all of the assets. The changes in the carrying amount of goodwill by segment for the six months ended June 26, 2004 are as follows:
COMMUNI- CATIONS AND SPACE DEFENSE PRODUCTS TOTAL ------- -------- ----- (IN THOUSANDS) Balance as of January 1, 2004 ............ $ 90,866 $ 1,661 $ 92,527 Adjustment of certain AERA liabilities ... 23 -- 23 Emblem purchase price adjustment ......... (301) -- (301) --------- --------- --------- Balance as of June 26, 2004 .............. $ 90,588 $ 1,661 $ 92,249 ========= ========= =========
Summarized below are intangible assets subject to amortization.
JUNE 26, DECEMBER 31, 2004 2003 LIFE ---------- ---------- ---- (IN THOUSANDS) Capitalized non-compete agreements related to the acquisitions of DSI/AERA/Darlington/Emblem...................... $ 3,118 $ 3,118 1-5 years Purchased technologies related to the acquisitions of Condor/Emblem................................................... 17,003 17,003 8-20 years Customer contracts and relationships related to the acquisitions of AERA/Darlington/Emblem........................................ 39,198 39,198 10-20 years Tradename related to the acquisitions of AERA/Darlington/Emblem.......................................... 1,569 1,569 5-10 years Other intangible assets related to the acquisition of Condor...... 916 916 2 years ---------- ---------- 61,804 61,804 Less accumulated amortization..................................... (8,777) (5,906) ---------- ---------- $ 53,027 $ 55,898 ========== ==========
The amortization expense for the three months ended June 26, 2004 and June 28, 2003 amounted to $1.4 million and $1.1 million, respectively. The amortization expense for the six months ended June 26, 2004 and June 28, 2003 amounted to $2.9 million and $2.0 million, respectively. Total remaining amortization expense for 2004, 2005, 2006, 2007, 2008 and thereafter related to these intangible assets is estimated to be $2.6 million, $5.3 million, $5.3 million, $5.1 million, $4.5 million and $30.2 million, respectively. All intangible assets other than goodwill are subject to amortization. (5) INVENTORIES Inventories are summarized by major classification as follows:
JUNE 26, DECEMBER 31, 2004 2003 ---------- ------------ (IN THOUSANDS) Raw material and supplies ................ $ 9,666 $ 8,624 Work-in-process .......................... 53,609 38,052 Finished goods ........................... 1,726 1,870 Less: Unliquidated progress payments .. (15,598) (13,813) ---------- ------------ $ 49,403 $ 34,733 ========== ============
9 (6) EARNINGS PER SHARE The following table sets forth the computation of basic and diluted earnings per share:
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED JUNE 26, JUNE 28, JUNE 26, JUNE 28, 2004 2003 2004 2003 ---------- ----------- ---------- ---------- (IN THOUSANDS) Numerator: Net Earnings for basic and diluted calculation ... $ 4,176 $ (228) $ 8,033 $ 2,754 ========== =========== ========== ========== Denominator: Denominator for basic calculation ................ 17,670 17,276 17,610 17,253 Effect of dilutive securities: Stock options ................................. 257 -- 270 240 Convertible notes ............................. -- -- -- -- ---------- ----------- ---------- ---------- Denominator for diluted calculation .............. 17,927 17,276 17,880 17,493 ========== =========== ========== ==========
The assumed conversion of the Notes was anti-dilutive for 2004 and 2003. The following table summarizes, for each year presented, the number of shares excluded from the computation of diluted earnings per share, as their effect upon potential issuance was anti-dilutive.
AS OF JUNE 26, JUNE 28, 2004 2003 ---- ---- 5.25 % Convertible Subordinated Notes..... 4,408 4,408 Unexercised stock options..................... 342 523 ----- ----- 4,750 4,931 ===== =====
(7) DEFINED BENEFIT PLAN The Company maintains a qualified noncontributory defined benefit pension plan covering less than half of its employees. In November 2002, the plan was amended whereby benefits accrued under the plan were frozen as of December 31, 2002. The Company's funding policy is to make annual contributions to the extent such contributions are actuarially determined and tax deductible. For the three months ended June 26, 2004 and June 28, 2003, the Company recorded pension expense of $0.5 million and $1.0 million, respectively. For the six months ended June 26, 2004 and June 28, 2003, the Company recorded pension expense of $1.1 million and $2.0 million, respectively. Summarized below are the components of the expense for each period presented.
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED JUNE 26, JUNE 28, JUNE 26, JUNE 28, 2004 2003 2004 2003 --------- -------- -------- -------- (IN THOUSANDS) Service cost ..................................... $ -- $ -- $ -- $ -- Interest cost .................................... 3,037 3,182 6,074 6,364 Expected return on plan assets ................... (3,176) (3,062) (6,352) (6,124) Amortization of unrecognized net loss ............ 689 880 1,378 1,760 ---------- --------- --------- --------- $ 550 1,000 $ 1,100 $ 2,000 ========== ========= ========= =========
(8) EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST The Company sponsors an employee stock ownership plan which provides retirement benefits to substantially all employees. The cost basis of the unearned/unallocated shares was initially recorded as a reduction to shareholders' equity. Compensation expense is recorded based on the market value of the Company's common shares as they are committed-to-be-released quarterly, as payments are made under the related indirect loan. The difference between the market value and the cost basis of the shares was recorded as additional paid-in capital. Dividends on unallocated shares are recorded as compensation expense. (9) COMPREHENSIVE INCOME As of June 26, 2004, accumulated other comprehensive loss included in the accompanying consolidated balance sheet primarily represents additional minimum liabilities on benefit plans. Comprehensive income for the three months ended June 26, 2004 was $4.2 10 million compared to comprehensive loss for the three months ended June 28, 2003 of $0.4 million. Comprehensive income from continuing operations for the six months ended June 26, 2004 was $8.1 million compared to comprehensive income for the six months ended June 28, 2003 of $2.6 million. (10) BUSINESS SEGMENTS The Company determines its operating segments based upon an analysis of its products and services, production processes, types of customers, economic characteristics and the related regulatory environment, which is consistent with how management operates the Company. The Company's operations are conducted in three segments: Defense, Communications and Space Products, and Engineered Materials. The Defense segment provides integrated front-line warfighting systems and components including electronic warfare, radar countermeasures systems, reconnaissance and surveillance systems, aircraft weapons suspension and release systems, airborne mine countermeasures systems, integrated combat and sonar systems, command, control, communications, computers and intelligence (C4I) products and systems, undersea-warfare systems and professional, operational, technical and information technology services for military forces and governments worldwide. The Communications and Space Products segment supplies antenna products and ultra-miniature electronics and systems for the remote sensing and electronic warfare industries. The Engineered Materials segment supplies commercial and military piezo-electric ceramic products and integrated composite structures for the aircraft and oil industries.
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED JUNE 26, JUNE 28, JUNE 26, JUNE 28, 2004 2003 2004 2003 ----------- ---------- ---------- ---------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Net Sales: Defense................................ $ 99,427 $ 86,925 $ 187,467 $ 156,943 Communications and Space Products...... 14,510 13,323 26,062 27,703 Engineered Materials................... 12,353 11,488 23,638 21,467 ----------- ---------- ---------- ---------- $ 126,290 $ 111,736 $ 237,167 $ 206,113 ----------- ---------- ---------- ---------- Operating earnings (loss): Defense................................ $ 8,970 $ 7,364 $ 18,000 $ 12,739 Communications and Space Products...... 97 827 (994) 2,051 Engineered Materials................... 284 149 1,012 695 Impairment loss on assets held for sale........................ -- (9,160) -- (9,160) ----------- ---------- ---------- ---------- 9,351 (820) 18,018 6,325 Net interest expense................... (2,042) (2,082) (4,023) (4,074) Other, net............................. (47) 95 (25) 128 ----------- ---------- ---------- ---------- Earnings before income taxes........... $ 7,262 $ (2,807) $ 13,970 $ 2,379 ----------- ---------- ---------- ----------
(11) GUARANTOR AND NON-GUARANTOR SUBSIDIARIES The Company may, from time to time, issue indebtedness, a condition of which would be the guarantee of this indebtedness by certain of its subsidiaries. Presented below is condensed consolidating financial information for the Company and the contemplated subsidiary guarantors and non-guarantors at June 26, 2004 and December 31, 2003 and for the three and six month periods ended June 26, 2004 and June 28, 2003. Each contemplated subsidiary guarantor is 100% owned, directly or indirectly, by the Company. Any guarantees that may be issued will be full and unconditional, as well as joint and several. In connection with the Company's credit facility, the Company cannot declare or pay any dividend on its outstanding common stock in an amount that exceeds fifty percent of its consolidated net income for the immediately preceding quarter. EDO CORPORATION CONDENSED CONSOLIDATING BALANCE SHEET JUNE 26, 2004
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- --------------- --------------- ------------ ------------- ASSETS Current assets: Cash and cash equivalents $ 66,076 $ 9,637 $ 5,028 $ -- $ 80,741 Accounts receivable, net 27,544 103,966 4,408 189 136,107 Inventories 5,485 40,146 3,772 -- 49,403 Deferred income tax asset, net 3,594 -- -- -- 3,594 Prepayments and other 3,876 1,946 323 -- 6,145 ------------- ------------ ----------- ----------- ----------- Total current assets 106,575 155,695 13,531 189 275,990 Investment in subsidiaries 264,387 -- -- (264,387) -- Property, plant and equipment, net 7,096 19,498 3,479 -- 30,073
11 Notes receivable 6,670 -- -- -- 6,670 Goodwill -- 82,942 9,307 -- 92,249 Other intangible assets, net -- 39,907 13,120 -- 53,027 Deferred income tax asset, net 21,610 -- -- -- 21,610 Other assets 17,948 1,234 -- -- 19,182 ----------- ------------ ------------ --------- ----------- $ 424,286 $ 299,276 $ 39,437 $(264,198) $ 498,801 LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable and accrued liabilities $ 19,375 $ 49,556 $ 5,557 $ (728) $ 73,760 Contract advances and deposits 3,266 8,966 -- -- 12,232 ----------- ------------ ------------ --------- ----------- Total current liabilities 22,641 58,522 5,557 (728) 85,992 Long-term debt 137,800 -- -- -- 137,800 Post retirement benefits obligations 61,141 11,272 -- -- 72,413 Environmental obligation 1,697 -- -- -- 1,697 Intercompany accounts -- 118,198 26,892 (145,090) -- Shareholders' equity: Preferred shares -- -- -- -- -- Common shares 20,030 99 -- (99) 20,030 Additional paid-in capital 155,356 25,223 6,486 (31,709) 155,356 Retained earnings 76,036 90,172 452 (90,624) 76,036 Accumulated other comprehensive loss, net of income tax benefit (29,341) 76 50 -- (29,215) Treasury shares (1,408) (4,052) -- 4,052 (1,408) Unearned ESOP shares (16,665) -- -- -- (16,665) Management group receivables -- (234) -- -- (234) Deferred compensation under Long-Term Incentive Plan (3,001) -- -- -- (3,001) ----------- ------------ ------------ --------- ----------- Total shareholders' equity 201,007 111,284 6,988 (118,380) 200,899 ----------- ------------ ------------ --------- ----------- $ 424,286 $ 299,276 $ 39,437 $(264,198) $ 498,801 =========== ============ ============ ========= ===========
EDO CORPORATION CONDENSED CONSOLIDATING STATEMENT OF EARNINGS FOR THE THREE MONTHS ENDED JUNE 26, 2004
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- --------------- --------------- ------------ ------------- Net Sales $ 20,873 $ 101,336 $ 7,037 $ (2,956) $ 126,290 Costs and expenses: Cost of sales 18,392 72,846 6,982 (2,956) 95,264 Selling, general and administrative 724 18,739 (639) -- 18,824 Research and development 702 1,467 682 -- 2,851 ----------- ------------- ---------- -------- ------------ 19,818 93,052 7,025 (2,956) 116,939 ----------- ------------- ---------- -------- ------------ Operating Earnings 1,055 8,284 12 -- 9,351 Non-operating income (expense) Interest income 161 30 11 -- 202 Interest expense (2,244) -- -- -- (2,244) Other, net (57) 10 -- -- (47) ----------- ------------- ---------- -------- ------------ (2,140) 40 11 -- (2,089) (Loss) earnings before income taxes (1,085) 8,324 23 -- 7,262 Income tax (benefit) expense (16) 3,023 79 -- 3,086 ----------- ------------- ---------- -------- ------------ (Loss) earnings after income taxes (1,069) 5,301 (56) -- 4,176 Equity in undistributed earnings of subsidiaries 5,245 -- -- (5,245) -- ----------- ------------- ---------- -------- ------------ Net earnings $ 4,176 $ 5,301 $ (56) $ (5,245) $ 4,176 =========== ============= ========== ======== ============
EDO CORPORATION CONDENSED CONSOLIDATING STATEMENT OF EARNINGS FOR THE SIX MONTHS ENDED JUNE 26, 2004
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- --------------- --------------- ------------ ------------- Net Sales $ 41,838 $ 187,393 $ 14,383 $ (6,447) $ 237,167 Costs and expenses: Cost of sales 35,482 135,966 10,921 (6,447) 175,922
12 Selling, general and administrative 2,815 33,341 2,755 -- 38,911 Research and development 1,241 2,393 682 -- 4,316 --------- --------- --------- --------- --------- 39,538 171,700 14,358 (6,447) 219,149 --------- --------- --------- --------- --------- Operating Earnings 2,300 15,693 25 -- 18,018 Non-operating income (expense) Interest income 327 64 53 -- 444 Interest expense (4,467) -- -- -- (4,467) Other, net (116) 91 -- -- (25) --------- --------- --------- --------- --------- (4,256) 155 53 -- (4,048) (Loss) earnings before income taxes (1,956) 15,848 78 -- 13,970 Income tax (benefit) expense (791) 6,554 174 -- 5,937 --------- --------- --------- --------- --------- (Loss) earnings after income taxes (1,165) 9,294 (96) -- 8,033 Equity in undistributed earnings of subsidiaries 9,198 -- -- (9,198) -- --------- --------- --------- --------- --------- Net earnings $ 8,033 $ 9,294 $ (96) $ (9,198) $ 8,033 ========= ========= ========= ========= =========
EDO CORPORATION CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE SIX MONTHS ENDED JUNE 26, 2004
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- ---------- -------------- ------------ ------------ OPERATING ACTIVITIES: Earnings from continuing operations $ 8,033 $ 9,294 $ (96) $ (9,198) $ 8,033 Adjustments to earnings to arrive at cash provided (used) by continuing operations: Depreciation 928 4,147 380 -- 5,455 Amortization -- 2,383 502 -- 2,885 Deferred tax benefit -- 190 -- -- 190 Bad debt expense 246 (82) -- -- 164 Loss on sale of property, plant and equipment -- 26 -- -- 26 Deferred compensation expense 402 -- -- -- 402 Non-cash Employee Stock Ownership Plan compensation expense 2,028 -- -- -- 2,028 Dividends on unallocated Employee Stock Ownership Plan shares 139 -- -- -- 139 Common shares issued for directors' fees 67 -- -- 67 Income tax benefit from stock options 449 -- -- -- 449 Changes in operating assets and liabilities, excluding effects of acquisitions: Equity in earnings of subsidiaries (9,198) -- -- 9,198 -- Intercompany 6,460 (7,042) 582 -- -- Accounts receivable 1,543 (3,113) (424) -- (1,994) Inventories (165) (14,022) (483) -- (14,670) Prepayments and other assets 354 1,358 7 -- 1,719 Accounts payable, accrued liabilities and other (14,635) 4,448 (464) -- (10,651) Contract advances and deposits 478 3,559 -- -- 4,037 --------------- ---------- -------------- ------------ ------------ Cash (used) provided by operations (2,871) 1,146 4 -- (1,721) --------------- ---------- -------------- ------------ ------------ INVESTING ACTIVITIES: Purchase of plant and equipment (1,058) (2,997) (144) -- (4,199) Payments received on notes receivable 150 -- -- -- 150 Cash received from Emblem Escrow settlement 301 -- -- -- 301 --------------- ---------- -------------- ------------ ------------ Cash used by investing activities (607) (2,997) (144) -- (3,748) --------------- ---------- -------------- ------------ ------------ FINANCING ACTIVITIES: Proceeds from exercise of stock options 656 -- -- -- 656 Proceeds from management group receivables -- 117 -- -- 117 Payment of common share cash dividends (1,195) -- -- -- (1,195) --------------- ---------- -------------- ------------ ------------ Cash (used) provided by financing activities (539) 117 -- -- (422) --------------- ---------- -------------- ------------ ------------ Net decrease in cash and cash equivalents (4,017) (1,734) (140) -- (5,891) Cash and cash equivalents at beginning of year 70,093 11,371 5,168 -- 86,632 --------------- ---------- -------------- ------------ ------------ Cash and cash equivalents at end of period $ 66,076 $ 9,637 $ 5,028 $ -- $ 80,741 =============== ========== ============== ============ ============
13 EDO CORPORATION CONDENSED CONSOLIDATING BALANCE SHEET DECEMBER 31, 2003
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- ---------- -------------- ------------ ------------ ASSETS Current assets: Cash and cash equivalents $ 70,093 $ 11,371 $ 5,168 $ -- $ 86,632 Accounts receivable, net 29,087 101,233 3,984 (1) 134,303 Inventories 5,320 26,124 3,289 -- 34,733 Deferred income tax asset, net 3,594 -- -- -- 3,594 Prepayments and other 2,610 3,014 330 -- 5,954 --------------- ---------- -------------- ------------ ------------ Total current assets 110,704 141,742 12,771 (1) 265,216 Investment in subsidiaries 261,950 -- -- (261,950) -- Property, plant and equipment, net 6,966 20,674 3,715 -- 31,355 Notes receivable 6,538 -- -- -- 6,538 Goodwill -- 82,919 9,608 -- 92,527 Other intangible assets, net -- 42,276 13,622 -- 55,898 Deferred income tax asset, net 21,774 -- -- -- 21,774 Other assets 19,850 1,538 -- -- 21,388 --------------- ---------- -------------- ------------ ------------ $ 427,782 $ 289,149 $ 39,716 $ (261,951) $ 494,696 LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable and accrued liabilities $ 34,061 $ 44,679 $ 6,004 $ (1) $ 84,743 Contract advances and deposits 2,788 5,407 -- -- 8,195 --------------- ---------- -------------- ------------ ------------ Total current liabilities 36,849 50,086 6,004 (1) 92,938 Long-term debt 137,800 -- -- -- 137,800 Deferred income tax liabilities, net (82) -- 82 -- -- Post retirement benefits obligations 61,035 10,863 -- -- 71,898 Environmental obligation 1,728 -- -- -- 1,728 Intercompany accounts -- 126,326 26,611 (152,937) -- Shareholders' equity: Preferred shares -- -- -- -- -- Common shares 19,832 99 -- (99) 19,832 Additional paid-in capital 150,097 25,221 6,486 (31,707) 150,097 Retained earnings 69,059 80,878 548 (81,426) 69,059 Accumulated other comprehensive loss, net of income tax benefit (29,512) 79 (15) 167 (29,281) Treasury shares (1,255) (4,052) 4,052 (1,255) Unearned ESOP shares (17,290) -- -- -- (17,290) Management group receivables -- (351) -- -- (351) Deferred compensation under Long-Term Incentive Plan (479) -- -- -- (479) --------------- ---------- -------------- ------------ ------------ Total shareholders' equity 190,452 101,874 7,019 (109,013) 190,332 --------------- ---------- -------------- ------------ ------------ $ 427,782 $ 289,149 $ 39,716 $ (261,951) $ 494,696 =============== ========== ============== ============ ============
EDO CORPORATION CONDENSED CONSOLIDATING STATEMENT OF EARNINGS FOR THE THREE MONTHS ENDED JUNE 28, 2003
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- ---------- -------------- ------------ ------------ Continuing Operations: Net Sales $ 20,801 $ 93,840 $ 1,669 $ (4,574) $ 111,736 Costs and expenses: Cost of sales 17,594 65,281 889 (4,574) 79,190 Selling, general and administrative 1,570 19,570 353 -- 21,493 Research and development 885 1,613 -- -- 2,498 Impairment on Deer Park facility -- 9,160 -- -- 9,160 Acquisition-related costs 62 153 -- -- 215 --------------- ---------- -------------- ------------ ------------ 20,111 95,777 1,242 (4,574) 112,556 --------------- ---------- -------------- ------------ ------------ Operating Earnings 690 (1,937) 427 -- (820) Non-operating income (expense) Interest income 132 33 -- -- 165
14 Interest expense (2,247) -- -- -- (2,247) Other, net (51) 146 -- -- 95 --------------- ---------- -------------- ------------ ------------ (2,166) 179 -- -- (1,987) (Loss) earnings from continuing operations before income taxes (1,476) (1,756) 425 -- (2,807) Income tax (benefit) expense (4,237) 2,911 145 -- (1,181) --------------- ---------- -------------- ------------ ------------ Earnings (loss) from continuing operations 2,761 (4,667) 280 -- (1,626) Equity in undistributed earnings of subsidiaries (4,387) -- -- 4,387 -- --------------- ---------- -------------- ------------ ------------ Net earnings from continuing operations (1,626) (4,667) 280 4,387 (1,626) Earnings from discontinued operations 1,398 -- -- -- 1,398 --------------- ---------- -------------- ------------ ------------ Net earnings $ (228) $ (4,667) $ 280 $ 4,387 $ (228) =============== ========== ============== ============ ============
EDO CORPORATION CONDENSED CONSOLIDATING STATEMENT OF EARNINGS FOR THE SIX MONTHS ENDED JUNE 28, 2003
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- ---------- -------------- ------------ ------------ Continuing Operations: Net Sales $ 41,228 $ 172,896 $ 1,669 $ (9,680) $ 206,113 Costs and expenses: Cost of sales 34,833 122,978 889 (9,980) 149,020 Selling, general and administrative 2,967 33,380 353 -- 36,700 Research and development 1,608 2,880 -- -- 4,488 Impairment on Deer Park facility -- 9,160 -- -- 9,160 Acquisition-related costs 125 295 -- -- 420 --------------- ---------- -------------- ------------ ------------ 39,533 168,693 1,242 (9,680) 199,788 --------------- ---------- -------------- ------------ ------------ Operating Earnings 1,695 4,203 427 -- 6,325 Non-operating income (expense) Interest income 344 56 -- -- 400 Interest expense (4,474) -- -- -- (4,474) Other, net (101) 231 (2) -- 128 --------------- ---------- -------------- ------------ ------------ (4,231) 287 (2) -- (3,946) (Loss) earnings from continuing operations before income taxes (2,536) 4,490 425 -- 2,379 Income tax (benefit) expense (4,521) 5,399 145 -- 1,023 --------------- ---------- -------------- ------------ ------------ Earnings (loss) from continuing operations 1,985 (909) 280 -- 1,356 Equity in undistributed earnings of subsidiaries (629) -- -- 629 -- --------------- ---------- -------------- ------------ ------------ Net earnings (loss) from continuing operations 1,356 (909) 280 629 1,356 Earnings from discontinued operations 1,398 -- -- -- 1,398 --------------- ---------- -------------- ------------ ------------ Net earnings $ 2,754 $ (909) $ 280 $ 629 $ 2,754 =============== ========== ============== ============ ============
EDO CORPORATION CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE SIX MONTHS ENDED JUNE 28, 2003
EDO Corporation Parent Company Subsidiary Only Guarantors Non-Guarantors Eliminations Consolidated --------------- ---------- -------------- ------------ ------------ OPERATING ACTIVITIES: Earnings from continuing operations $ 1,356 $ (909) $ 280 $ 629 $ 1,356 Adjustments to earnings to arrive at cash provided (used) by continuing operations: Depreciation 898 5,100 -- -- 5,998 Amortization -- 2,105 -- -- 2,105 Deferred tax benefit (3,757) 1 -- -- (3,756) Bad debt expense -- 154 -- -- 154 Loss on sale of property, plant and equipment 6 70 -- -- 76 Impairment loss on assets held for sale -- 9,160 -- -- 9,160 Deferred compensation expense 121 -- -- -- 121 Non-cash Employee Stock Ownership Plan compensation expense 1,510 -- -- -- 1,510 Non-cash Employee Stock Ownership Plan compensation expense 292 -- -- -- 292 Dividends on unallocated Employee Stock Ownership Plan shares 148 -- -- -- 148 Common shares issued for directors' fees 51 -- -- -- 51
15 Income tax benefit from stock options 45 -- -- -- 45 Changes in operating assets and liabilities, excluding effects of acquisitions: Equity in earnings of subsidiaries 629 -- -- (629) -- Intercompany 15,255 (15,255) -- -- -- Accounts receivable 461 12,719 (974) -- 12,206 Inventories (1,223) (255) 328 -- (1,150) Prepayments and other assets 5 584 41 -- 630 Accounts payable, accrued liabilities and other 2,246 (14,770) (29) -- (12,553) Contract advances and deposits (4,127) (5,390) -- -- (9,517) --------- --------- --------- ----- --------- Cash provided (used) by continuing operations 13,916 (6,686) (354) -- (6,876) --------- --------- --------- ----- --------- Net cash provided by discontinued operations 47 -- -- -- 47 INVESTING ACTIVITIES: Purchase of plant and equipment (2,302) (2,228) (43) -- (4,573) Payments received on notes receivable 75 26 -- -- 101 Purchase of marketable securities (22) -- -- -- (22) Restricted cash 27,153 -- -- -- 27,153 Cash paid for acquisitions, net of cash acquired (88,792) -- -- -- (88,792) --------- --------- --------- ----- --------- Cash used by investing activities (63,888) (2,202) (43) -- (66,133) --------- --------- --------- ----- --------- FINANCING ACTIVITIES: Proceeds from exercise of stock options 69 -- -- -- 69 Proceeds from management group receivables -- 242 -- -- 242 Repayments of acquired debt (11,998) -- -- -- (11,998) Payment of common share cash dividends (1,182) -- -- -- (1,182) --------- --------- --------- ----- --------- Cash (used) provided by financing activities (13,111) 242 -- -- (12,869) --------- --------- --------- ----- --------- Net decrease in cash and cash equivalents (63,036) (8,646) (397) -- (72,079) Cash and cash equivalents at beginning of year 115,160 13,949 3,211 -- 132,320 --------- --------- --------- ----- --------- Cash and cash equivalents at end of period $ 52,124 $ 5,303 $ 2,814 $ -- $ 60,241 ========= ========= ========= ===== =========
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS INTRODUCTION EDO Corporation was incorporated in New York in 1925 by Earl Dodge Osborn, from whose initials "EDO" is derived. EDO Corporation (the "Company") provides military and commercial products and professional services, with core competencies in a wide range of critical defense areas, including: - Defense Electronics - Aircraft Armament - Undersea Warfare - Professional Services - C4I - Command, Control, Communications, Computers, and Intelligence - Integrated Composite Structures We are a leading supplier of sophisticated, highly engineered products and systems for defense, aerospace and industrial applications. We believe our advanced electronic, electromechanical systems, information systems and engineered materials are mission-critical on a wide range of military programs. We have three reporting segments: Defense, Communications and Space Products, and Engineered Materials. Our Defense segment provides integrated front-line warfighting systems and components including electronic-warfare systems, reconnaissance and surveillance systems, aircraft weapons suspension and release systems, integrated combat systems, command, control, communications, computers, and intelligence (C4I) products and systems, undersea-warfare systems and professional and engineering services for military forces and friendly governments worldwide. Our Communications and Space Products segment supplies antenna products and ultra-miniature electronics and systems for the remote sensing and electronic warfare industries. Our Engineered Materials segment supplies commercial and military piezo-electric ceramic products and integrated composite structures for the aircraft and oil industries. A disciplined acquisition program is diversifying the base of major platforms and customers. The Company's Annual Report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to those reports, and the Proxy Statement for its Annual Meeting of Stockholders are made available, free of charge, on its Web site www.edocorp.com, as soon as reasonably practicable after such reports have been filed with or furnished to the Securities and Exchange Commission. 16 DISCUSSION OF CRITICAL ACCOUNTING POLICIES We make estimates and assumptions in the preparation of our consolidated financial statements in conformity with accounting principles generally accepted in the United States. Actual results could differ significantly from those estimates under different assumptions and conditions. We believe that the following discussion addresses our critical accounting policies, which are those that are most important to the portrayal of our consolidated financial condition and results of operations and which require our most difficult and subjective judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain. The following is a brief discussion of the critical accounting policies employed by us. REVENUE RECOGNITION Sales under long-term, fixed-price contracts, including pro-rata profits, are generally recorded based on the relationship of costs incurred to date to total projected final costs or, alternatively, as deliveries and other milestones are achieved or services are provided. These projections are revised throughout the lives of the contracts. Adjustments to profits resulting from such revisions are made cumulative to the date of change and may affect current period earnings. Sales on other than long-term contract orders (principally commercial products) are recorded as shipments are made. Our gross profit is affected by a variety of factors, including the mix of products, systems and services sold, production efficiencies, price competition and general economic conditions. Estimated losses on long-term contracts are recorded when identified. INVENTORIES Inventories under long-term contracts and programs reflect all accumulated production costs, including factory overhead, initial tooling and other related costs (including general and administrative expenses relating to certain of our defense contracts), less the portion of such costs charged to cost of sales. All other inventories are stated at the lower of cost (principally first-in, first-out method) or market. Inventory costs in excess of amounts recoverable under contracts and which relate to a specific technology or application and which may not have alternative uses are charged to cost of sales when such circumstances are identified. From time to time, we manufacture certain products prior to receiving firm contracts in anticipation of future demand. Such costs are inventoried and are incurred to help maintain stable and efficient production schedules. Several factors may influence the sale and use of our inventories, including our decision to exit a product line, technological change, new product development and/or revised estimates of future product demand. If inventory is determined to be overvalued due to one or more of the above factors, we would be required to recognize such loss in value at the time of such determination. Under the contractual arrangements by which progress payments are received, the United States Government has a title to or a security interest in the inventories identified with related contracts. PROPERTY, PLANT AND EQUIPMENT AND OTHER LONG-LIVED ASSETS Property, plant and equipment is recorded at cost and is depreciated on a straight-line basis over the estimated useful lives of such assets. Leasehold improvements are amortized over the shorter of their estimated useful lives or their respective lease periods. In those cases where we determine that the useful life of property, plant and equipment should be shortened, we depreciate the net book value in excess of salvage value over its revised remaining useful life thereby increasing depreciation expense. Factors such as technological advances, changes to our business model, changes in our capital strategy, changes in the planned use of equipment, fixtures, software or changes in the planned use of facilities could result in shortened useful lives. Long-lived assets, other than goodwill, are reviewed by us for impairment whenever events or changes in circumstances indicate that the carrying amount of any such asset may not be recoverable. The estimate of cash flow, which is used to determine recoverability, is based upon, among other things, certain assumptions about future operating performance. Our estimates of undiscounted cash flow may differ from actual cash flow due to such factors including technological advances, changes to our business model, or changes in our capital strategy or planned use of long-lived assets. If the sum of the undiscounted cash flows, excluding interest, is less than the carrying value, we would recognize an impairment loss, measured as the amount by which the carrying value exceeds the fair value of the asset. In accordance with SFAS No. 142, goodwill must be tested at least annually for impairment at the reporting unit level. If an indication of impairment exists, we are required to determine if such goodwill's implied fair value is less than the unit carrying value in order to determine the amount, if any, of the impairment loss required to be recorded. Impairment indicators include, among other conditions, cash flow deficits, an historic or anticipated decline in revenue or operating profits, adverse legal or regulatory developments, accumulation of costs significantly in excess of amounts originally expected to acquire the asset and/or a material decrease in the fair value of some or all of the assets. 17 PENSION AND POST-RETIREMENT BENEFITS OBLIGATIONS We sponsor defined benefit pension and other retirement plans in various forms covering all eligible employees. Several statistical and other factors which attempt to anticipate future events are used in calculating the expense and liability related to the plans. These factors include assumptions about the discount rate and expected return on plan assets within certain guidelines and in conjunction with our actuarial consultants. In addition, our actuarial consultants also use subjective factors such as withdrawal and mortality rates to estimate the expense and liability related to these plans. The actuarial assumptions used by us may differ significantly, either favorably or unfavorably, from actual results due to changing market, economic or regulatory conditions, higher or lower withdrawal rates or longer or shorter life spans of participants. In 2003 we used the building block approach to the estimation of the long-term rate of return on assets. Under this approach, we reviewed the publicly available common source data for the range of returns on basic types of equity and fixed income instruments and the differential to those rates provided by active investment management. In consultation with our actuarial and active asset management consultants and taking into account the funds' actual performance and expected asset allocation going forward, we selected an overall return rate within the resulting range. The expected long-term rate of return on plan assets to be used for 2004 expense is 8.25%. This rate of return was determined by application of a statistical forecast modeling algorithm which, using the pension investment mix and pension demographic data, simulates the long term performance of the plan over a series of 2000 trials of variable economic conditions, rounded to the nearest quarter-percent. The resulting rate is a 50 basis-point reduction in the forecast from that used in 2003. The discount rate also reflects a similar 50 basis-point reduction from that used in 2003. The discount rate is selected based on review of selected widely available index information for high quality corporate bonds such as Factiva, adjusted for term. RESULTS OF OPERATIONS The following information should be read in conjunction with the Consolidated Financial Statements as of June 26, 2004. THREE MONTHS ENDED JUNE 26, 2004 COMPARED WITH THREE MONTHS ENDED JUNE 28, 2003 Net sales by segment were as follows:
THREE MONTHS ENDED INCREASE/(DECREASE) JUNE 26, JUNE 28, FROM SEGMENT 2004 2003 PRIOR PERIOD - ------- -------- -------- ------------------- (DOLLARS IN THOUSANDS) Defense ............................ $ 99,427 $ 86,925 14.4% Communications and Space Products... 14,510 13,323 8.9% Engineered Materials ............... 12,353 11,488 7.5% -------- -------- ---- Total .............................. $126,290 $111,736 13.0% ======== ======== ====
In the Defense segment, approximately $5.4 million of the increase in sales was attributable to sales of Emblem Group Ltd. ("Emblem") since its acquisition date of June 16, 2003. In addition, there were increases in sales of reconnaissance and surveillance systems, professional services and aircraft weapons suspension and release systems, as well as sales beginning to be generated on the recently awarded Joint Enhanced Core Communications Systems ("JECCS") for the Marine Corps. These increases were partially offset by a decrease of $2.3 million to reflect an increase to the estimate-to-complete of an undersea warfare systems program accounted for under the percentage of completion method. The increase in the estimate resulted in a decrease to the percent complete and therefore a decrease to sales. The revision to the estimate resulted from performance issues discovered during testing phases. There was a comparable reduction to operating earnings as discussed below. In the Communications and Space Products segment, the increase in sales was attributable to deliveries on our contract with the U.S. Army for the new electronic force protection devices. This increase in sales was partially offset by a decrease attributable to completion of production deliveries of interference cancellation systems and the basic shortstop electronic protection systems ("SEPS") in the first quarter of 2003. In 2004, we received a $6.8 million incremental award as part of a $45.3 million contract for additional force protection devices for the U.S. Army. This "rapid response" program will be a significant contributor to sales and margin as deliveries increase in the second half of the year. In the Engineered Materials segment, there were increases in sales of integrated composite structures including production and installation of our composite pipe on offshore oil rig projects. These increases were partially offset by decreases in sales of electro-ceramic products attributable to a $0.8 million increase to the estimate-to-complete on work related to the aforementioned undersea warfare systems program accounted for under the percentage of completion method. There was also a comparable reduction to operating earnings as discussed below. 18 Operating earnings by segment were as follows:
THREE MONTHS ENDED JUNE 26, JUNE 28, SEGMENT 2004 2003 - ------- --------- --------- (DOLLARS IN THOUSANDS) Defense ................................ $ 8,970 $ 7,364 Communications and Space Products ...... 97 827 Engineered Materials ................... 284 149 Impairment loss on Deer Park Facility... -- (9,160) --------- --------- Total .................................. $ 9,351 $ (820) ========= =========
Items of note affecting operating earnings are summarized here to help clarify the comparison of results.
THREE MONTHS ENDED JUNE 26, JUNE 28, 2004 2003 -------- --------- (DOLLARS IN THOUSANDS) Pension ..................... $ 550 $ 1,000 ESOP Compensation expense ... $ 977 $ 744 Intangible asset amortization $ 1,438 $ 1,095
The lower pension expense in 2004 compared to 2003 is attributable to the cash contribution we made to our defined benefit plan in 2003. The higher ESOP compensation expense for the second quarter of 2004 is attributable to our higher average stock price compared to the second quarter of 2003. Pension and ESOP compensation expense are allocated between cost of sales and selling, general and administrative expense. The intangible asset amortization expense is associated with the acquisitions made in 2002 and 2003 and affects primarily the Defense segment. The $9.2 million impairment charge related to our Deer Park facility which was later sold in 2003. Operating earnings for the three months ended June 26, 2004 were also affected by several contract-related items which are described in further detail below in the discussion on segment operating earnings. The Defense segment's operating earnings for the three months ended June 26, 2004 were $9.0 million or 9.0% of this segment's net sales compared to $7.4 million or 8.5% of this segment's net sales for the three months ended June 28, 2003. This increase in operating earnings was attributable to continuing higher-margin sales of reconnaissance and surveillance systems and efficiencies achieved on sales of our radar signal simulator. In addition, there was a positive impact to operating earnings of approximately $3.4 million resulting from the release of a reserve which had been previously established for a potential issue on MK105-related contracts. The release of the reserve was triggered by final closeout of MK105 programs and proven performance resulting from system utilization over the course of the year. These increases were partially offset by the effect of increasing the estimate-to-complete on an aircraft armament program resulting in a $1.3 million negative impact to operating earnings and the aforementioned $2.3 million impact on an undersea warfare systems program. We believe that our current estimates reflect the total potential impacts. The Communications and Space Products segment operating earnings for the three months ended June 26, 2004 were $0.1 million or 0.7% of this segment's net sales compared to $0.8 million or 6.2% of this segment's net sales for the three months ended June 28, 2003. The decrease in operating earnings is related primarily to $0.8 million of charges in the antenna product line due to production inefficiencies resulting in inventory adjustments as well as increases in estimates-to-complete. This segment's operating results will be positively affected by the increased activity with respect to the aforementioned U.S. Army program for force protection devices which will be a significant contributor to operating earnings in this segment as the year progresses. The Engineered Materials segment's operating earnings for the three months ended June 26, 2004 were $0.3 million or 2.3% of this segment's net sales compared to operating earnings of $0.1 million or 1.3% of this segment's net sales for the three months ended June 28, 2003. In the second quarter of 2004, there was a negative impact of $0.8 million which related to the undersea warfare systems program issue in the Defense segment. A component for sonar equipment produced in the engineered materials segment experienced failures during testing. The estimate of the cost to remedy the problem resulted in the $0.8 million charge to earnings. During the second quarter of 2003, we incurred a charge of $0.7 million to write-down inventory and receivables related to the microwave product line that serviced the telecommunications industry. As sales were not materializing to expected levels we conducted an analysis which resulted in the write-down of $0.6 million of inventory and $0.1 million of unbilled receivables. Selling, general and administrative expenses for the three months ended June 26, 2004 decreased to $18.8 million or 14.9% of net sales from $21.5 million or 19.2% of net sales for the three months ended June 28, 2003. This decrease was attributable primarily to synergies achieved on the AERA and Darlington acquisitions. Research and development expense for the three months ended June 26, 2004 increased slightly to $2.9 million or 2.3% of net sales from $2.5 million or 2.2% of net sales for the three months ended June 28, 2003. 19 Interest expense, net of interest income, for the three months ended June 26, 2004 remained virtually unchanged at $2.0 million compared to the three months ended June 28, 2003. Interest expense is associated primarily with our $137.8 million principal amount of 5.25% Convertible Subordinated Notes ("Notes") issued in April 2002, amortization of deferred debt issuance costs associated with the offering of the Notes, and amortization of deferred financing costs associated with our credit facility. For the three months ended June 26, 2004, net earnings were $4.2 million or $0.23 per diluted common share on 17.9 million diluted shares compared to a net loss from continuing operations of $1.6 million or $0.09 per diluted common share on 17.3 million diluted shares for the three months ended June 28, 2003. The convertible notes did not have a dilutive effect in either quarter. In the three months ended June 28, 2003, we received notification of final settlement of bankruptcy matters pertaining to our former energy business. Upon the discontinuance of such business in 1996, a liability was established pending final settlement of the bankruptcy. This liability was reversed as of June 28, 2003. Consequently, $1.4 million, which was net of income tax expense of $0.9 million, was reported as earnings from discontinued operations in the accompanying statement of earnings. The net loss including discontinued operations was $0.2 million or $0.01 per diluted share for the three months ended June 28, 2003. SIX MONTHS ENDED JUNE 26, 2004 COMPARED WITH SIX MONTHS ENDED JUNE 28, 2003 Net sales by segment were as follows:
SIX MONTHS ENDED INCREASE/(DECREASE) JUNE 26, JUNE 28, FROM SEGMENT 2004 2003 PRIOR PERIOD - ------- -------- -------- ------------------- (DOLLARS IN THOUSANDS) Defense ............................ $187,467 $156,943 19.4% Communications and Space Products... 26,062 27,703 (5.9)% Engineered Materials ............... 23,638 21,467 10.1% -------- -------- ---- Total .............................. $237,167 $206,113 15.1% ======== ======== ====
In the Defense segment, approximately $12.7 million of the increase in sales was attributable to sales of Emblem Group Ltd. ("Emblem") since its acquisition date of June 16, 2003. In addition, there were increases in sales of reconnaissance and surveillance systems, professional services and aircraft weapons suspension and release systems. There were also sales contributed by the recently awarded Joint Enhanced Core Communication System ("JECCS"). These increases were partially offset by decreases in sales of electronic warfare equipment. The decrease in sales of electronic warfare equipment was due to the completion of the Universal Exciter Upgrade ("UEU") production program in 2003. Also offsetting the increases was the aforementioned decrease of $2.3 million to reflect an increase to the estimate-to-complete of an undersea warfare systems program accounted for under the percentage of completion method. The increase in the estimate resulted in a decrease to the percent complete and therefore a decrease to sales. The revision to the estimate resulted from performance issues discovered during testing phases. There was a comparable reduction to operating earnings as discussed below. In the Communications and Space Products segment, the decrease in sales was attributable to completion of production deliveries of interference cancellation systems and the basic shortstop electronic protection systems ("SEPS") in the first quarter of 2003, as well as a decrease in antenna sales. This decrease in sales was partially offset by deliveries on our contract with the U.S. Army for the new electronic force protection devices. In 2004, we received a $6.8 million incremental award as part of a $45.3 million contract for additional force protection devices. This "rapid response" program will be a significant contributor to sales and margin as deliveries increase in the second half of the year. In the Engineered Materials segment, there were increases in sales of integrated composite structures including production and installation of our composite pipe on offshore oil rig projects. Operating earnings by segment were as follows:
SIX MONTHS ENDED JUNE 26, JUNE 28, SEGMENT 2004 2003 - ------- -------- -------- (DOLLARS IN THOUSANDS) Defense ............................. $ 18,000 $ 12,739 Communications and Space Products ... (994) 2,051 Engineered Materials ................ 1,012 695 Impairment loss on Deer Park Facility -- (9,160) -------- -------- Total ............................... $ 18,018 $ 6,325 ======== ========
Items of note affecting operating earnings are summarized here to help clarify the comparison of results. 20
SIX MONTHS ENDED JUNE 26, JUNE 28, 2004 2003 -------- -------- (DOLLARS IN THOUSANDS) Pension ..................... $ 1,100 $ 2,000 ESOP Compensation expense ... $ 2,028 $ 1,510 Intangible asset amortization $ 2,871 $ 2,028
The lower pension expense in 2004 compared to 2003 is attributable to the cash contribution we made to our defined benefit plan in 2003. The higher ESOP compensation expense for the first six months of 2004 is attributable to our higher average stock price compared to the first six months of 2003. Pension and ESOP compensation expense are allocated between cost of sales and selling, general and administrative expense. The intangible asset amortization expense is associated with the acquisitions made in 2002 and 2003 and affects primarily the Defense segment. The $9.2 million impairment charge related to our Deer Park facility which was later sold in 2003. Operating earnings for the six months ended June 26, 2004 were also affected by several contract-related items which are described in further detail below in the discussion of segment operating earnings. The Defense segment's operating earnings for the six months ended June 26, 2004 were $18.0 million or 9.6% of this segment's net sales compared to $12.7 million or 8.1% of this segment's net sales for the six months ended June 28, 2003. This increase in operating earnings was attributable to continuing higher-margin sales of reconnaissance and surveillance systems. In addition, there was a positive impact to operating earnings of approximately $3.4 million resulting from the release of a reserve which had been previously established for a potential issue on MK105-related contracts. The release of the reserve was triggered by final closeout of MK105 programs and proven performance resulting from system utilization over the course of the year. These increases were partially offset by the effect of increasing the estimate-to-complete on an aircraft armament program resulting in a $1.6 million negative impact to operating earnings and the aforementioned $2.3 million impact on undersea warfare systems program. We believe that our current estimates reflect the total potential impacts. The Communications and Space Products segment operating loss for the six months ended June 26, 2004 was $1.0 million or 3.8% of this segment's net sales compared to operating earnings of $2.1 million or 7.4% of this segment's net sales for the six months ended June 28, 2003. The loss occurred primarily in the first quarter of 2004 and related to adjustments to estimates-to-complete on development and start-up production phases on certain interference cancellation programs resulting from issues discovered in the first quarter during testing. In addition, there was a loss in the antenna product line in the second quarter due to production inefficiencies resulting in inventory adjustments as well as increases in estimates-to-complete. This segment's operating results will be positively affected by the increased activity with respect to the aforementioned force protection devices program which will be a significant contributor to operating earnings in the second half of the year. The Engineered Materials segment's operating earnings for the six months ended June 26, 2004 were $1.0 million or 4.3% of this segment's net sales compared to operating earnings of $0.7 million or 3.2% of this segment's net sales for the six months ended June 28, 2003. In 2004, there was a negative impact of $0.8 million which related to the undersea warfare systems program issue in the Defense segment. A component for sonar equipment produced in the engineered materials segment experienced failures during testing. The estimate of the cost to remedy the problem resulted in the $0.8 million charge to earnings. In 2003, we incurred a charge of $0.7 million to write-down inventory and receivables related to the microwave product line that serviced the telecommunications industry. As sales were not materializing to expected levels, we conducted an analysis which resulted in the write-down of $0.6 million of inventory and $0.1 million of unbilled receivables. Selling, general and administrative expenses for the six months ended June 26, 2004 of $38.9 million decreased as a percent of net sales to 16.4% from 17.8% for the six months ended June 28, 2003. This decrease was attributable primarily to synergies achieved on the AERA and Darlington acquisitions. Research and development expense for the six months ended June 26, 2004 decreased slightly to $4.3 million or 1.8% of net sales from $4.5 million or 2.2% of net sales for the six months ended June 28, 2003. Interest expense, net of interest income, for the six months ended June 26, 2004 remained virtually unchanged at $4.0 million compared to the six months ended June 28, 2003. Interest expense is associated primarily with our $137.8 million principal amount of 5.25% Convertible Subordinated Notes ("Notes") issued in April 2002, amortization of deferred debt issuance costs associated with the offering of the Notes, and amortization of deferred financing costs associated with our credit facility. Income tax expense reflects an effective rate of 42.5% for the six month periods ended June 26, 2004 and June 28, 2003. For the six months ended June 26, 2004, net earnings were $8.0 million or $0.45 per diluted common share on 17.9 million diluted shares compared to net earnings from continuing operations of $1.4 million or $0.08 per diluted common share on 17.5 million diluted shares for the six months ended June 28, 2003. The convertible notes did not have a dilutive effect in either six month period. In the six months ended June 28, 2003, we received notification of final settlement of bankruptcy matters pertaining to our former energy 21 business. Upon the discontinuance of such business in 1996, a liability was established pending final settlement of the bankruptcy. This liability was reversed as of June 28, 2003. Consequently, $1.4 million, which was net of income tax expense of $0.9 million, was reported as earnings from discontinued operations in the accompanying statement of earnings. Net earnings including discontinued operations, were $2.8 million or $0.16 per diluted share for the six months ended June 28, 2003. LIQUIDITY AND CAPITAL RESOURCES BALANCE SHEET Our cash and cash equivalents decreased 6.8% to $80.7 million at June 26, 2004 from $86.6 million at December 31, 2003. This decrease was due primarily to $1.7 million of cash used by operations, $4.2 million used for the purchase of capital equipment and $1.2 million for the payment of common share dividends. These decreases were partially offset by $0.7 million of proceeds from the exercise of stock options and $0.3 million of cash received upon settlement of an escrow related to the purchase of Emblem. Accounts receivable increased 1.3% to $136.1 million at June 26, 2004 from $134.3 million at December 31, 2003 due in part to timing of collections of billed receivables. At June 26, 2004 approximately 79% of billed receivables are in the under-60 days aging category. There was also growth in unbilled receivables resulting from work progressing on large programs such as Joint Strike Fighter and F/A-22. Inventories increased 42.2% to $49.4 million at June 26, 2004 from $34.7 million at December 31, 2003 due primarily to the efforts expended on work-in-progress on major programs, such as the force protection systems program for which deliveries will increase in the second half of the year. The note receivable of $6.7 million at June 26, 2004 and $6.5 million at December 31, 2003 represents the note receivable from the sale of our facility in Deer Park in 2003. Included in other current assets is $1.4 million in notes related to the sale of our former College Point facility in January 1996. The College Point facility notes are due in annual amounts through September 2004 with a final payment of $1.3 million due on December 31, 2004 and bear interest at 7.0% per annum. The latter notes receivable are secured by a mortgage on the facility. FINANCING ACTIVITIES Credit Facility We have a $200.0 million credit facility with a consortium of banks, led by Citibank, N.A. as the administrative agent, Fleet National Bank as the syndication agent and Wachovia Bank, N.A. as the documentation agent. The facility expires in November 2005. The credit facility provides us with sub-limits of borrowing up to $125.0 million for acquisition-related financing and up to $125.0 million in standby letters of credit financing. The potential cash borrowing under the facility is reduced by the amount of outstanding letters of credit. Borrowings under the facility will be priced initially at LIBOR plus a predetermined amount, ranging from 1.25% to 1.75%, depending on our consolidated leverage ratio at the time of the borrowing. At June 26, 2004, LIBOR was approximately 1.58% and the applicable adjustment to LIBOR was 1.25%. The facility requires us to pay each lender in the consortium a commitment fee on the average daily unused portion of their respective commitment at a rate equal to 0.25%. There were no direct borrowings outstanding under the credit facility at June 26, 2004 and December 31, 2003. Letters of credit outstanding at June 26, 2004 pertaining to the credit facility were $43.8 million, resulting in $81.2 million available at June 26, 2004 for standby letters of credit, if needed. In connection with the credit facility, we are required to maintain both financial and non-financial covenants and ratios, including but not limited to leverage ratio, fixed charge coverage ratio, earnings before interest and taxes to interest expense ratio, total unsubordinated debt to tangible net worth, net income and dividends. Also, the Company cannot declare or pay any dividend on its outstanding common stock in an amount that exceeds fifty percent of its consolidated net income for the immediately preceding quarter. As of June 26, 2004, we were in compliance with our covenants. The credit facility is secured by our accounts receivable, inventory and machinery and equipment. 5.25% Convertible Subordinated Notes due 2007("Notes") In April 2002, we completed the offering of the Notes and received proceeds of $133.7 million, net of $4.1 million of commissions paid. Interest payments on the Notes are due April 15 and October 15 of each year, commencing on October 15, 2002. Accrued interest payable, included in accrued liabilities on our consolidated balance sheet, was $1.4 million at June 26, 2004 and $1.5 million at December 31, 2003. 22 The Notes are convertible, unless previously redeemed or repurchased by us, at the option of the holder at any time prior to maturity, into our common shares at an initial conversion price of $31.26 per share, subject to adjustment in certain events. As of June 26, 2004, there had been no conversions. Shelf Registration On December 23, 2003, we filed a shelf registration statement to potentially offer for sale common shares, preferred shares, debt securities and warrants. We may sell any combination of the foregoing securities in one or more offerings up to an aggregate initial offering price of $500,000,000. We believe that, for the foreseeable future, we have adequate liquidity and sufficient capital to fund our currently anticipated requirements for working capital, capital expenditures, including acquisitions, research and development expenditures, interest payments and funding of our pension and post-retirement benefit obligations. We continue to focus on positioning ourselves to be a significant player in the consolidation of first-tier defense suppliers and, to that end, have actively sought candidates for strategic acquisitions. Future acquisitions may be funded from any of the following sources: cash on hand; borrowings under our credit facility; issuance of our common stock or other equity securities; and/or convertible or other debt offerings. COMMITMENTS AND CONTINGENCIES In order to aggregate all commitments and contractual obligations as of June 26, 2004, we have included the following table. We are obligated under building and equipment leases expiring between 2004 and 2017. The aggregate future minimum lease commitments under those obligations with noncancellable terms in excess of one year are shown below. Our commitments under letters of credit and advance payment and performance bonds relate primarily to advances received on foreign contracts should we fail to perform in accordance with the contract terms. We do not expect to have to make payments under these letters of credits or bonds since these obligations are removed as we perform under the related contracts. The amounts for letters of credit and performance bonds represent the amount of commitment expiration per period.
Payments Due In (in millions): --------------------------------------------------- 2009 and Total 2004 2005 2006 2007 2008 Beyond ------ ------ ------ ------ ------ ------ -------- 5.25% Convertible Subordinated Notes due 2007..................................... $137.8 $ -- $ -- $ -- $137.8 $ -- $ -- Operating leases........................... 79.4 8.3 12.6 8.7 8.3 7.5 34.0 Letters of credit.......................... 44.2 4.3 37.9 -- 2.0 -- -- Advance payment and performance bonds...... 1.9 0.2 -- -- -- -- 1.7 ------ ------ ------ ------ ------ ------ ------ Total...................................... $263.3 $ 12.8 $ 50.5 $ 8.7 $148.1 $ 7.5 $ 35.7 ====== ====== ====== ====== ====== ====== ======
Additionally, we are subject to certain legal actions that arise out of the normal course of business. It is our belief that the ultimate outcome of these actions will not have a material adverse effect on our consolidated financial position, results of operations or liquidity. A hedging contract was put in place at the end of June 2004 which related to a long-term contract denominated in Euros. There was no significant impact on reported results as of and for the six months ended June 26, 2004. CONCENTRATION OF SALES We conduct a significant amount of our business with the United States Government. Although there are currently no indications of a significant change in the status of government funding of certain programs, should this occur, our results of operations, financial position and liquidity could be materially affected. Such a change could have a significant impact on our profitability and our stock price. This could also affect our ability to acquire funds from our credit facility due to covenant restrictions or from other sources. BACKLOG The funded backlog of unfilled orders at June 26, 2004 increased to $535.9 million from $462.3 million at December 31, 2003. Our backlog consists primarily of current orders under long-lived, mission-critical programs on key defense platforms. "SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 The statements in this Quarterly Report and in oral statements that may be made by representatives of the Company relating to plans, strategies, economic performance and trends and other statements that are not descriptions of historical facts may be forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27(a) of the Securities Act of 23 1933 and Section 21(e) of the Securities Exchange Act of 1934. Forward looking statements are inherently subject to risks and uncertainties, and actual results could differ materially from those currently anticipated due to a number of factors, which include, but are not limited to the following for each of the types of information noted below. U.S. and international military program sales, follow on procurement, contract continuance, and future program awards, upgrades and spares support are subject to: U.S. and international military budget constraints and determinations; U.S. congressional and international legislative body discretion; U.S. and international government administration policies and priorities; changing world military threats, strategies and missions; competition from foreign manufacturers of platforms and equipment; NATO country determinations regarding participation in common programs; changes in U.S. and international government procurement timing, strategies and practices, the general state of world military readiness and deployment; and the ability to obtain export licenses. Commercial satellite programs and equipment sales, follow-on procurement, contract continuance and future program awards, upgrades and spares support are subject to: establishment and continuance of various consortiums for satellite constellation programs; delay in launch dates due to equipment, weather or other factors beyond our control; and development of sufficient customer base to support a particular satellite constellation program. Commercial product sales are subject to: success of product development programs currently underway or planned; competitiveness of current and future production costs and prices and market and consumer base development of new product programs. Achievement of margins on sales, earnings and cash flow can be affected by: unanticipated technical problems; government termination of contracts for convenience; decline in expected levels of sales; underestimation of anticipated costs on specific programs; the ability to effect acquisitions; and risks inherent in integrating recent acquisitions into our overall structure. Expectations of future income tax rates can be affected by a variety of factors, including statutory changes in Federal and state tax rates, nondeductibility of goodwill amortization and IPR&D acquired in a stock purchase business combination and the nondeductibility of our noncash ESOP compensation expense. The Company has no obligation to update any forward-looking statements. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISKS The information called for by this item is provided under Item 2 - "Management's Discussion and Analysis of Financial Condition and Results of Operations." ITEM 4. CONTROLS AND PROCEDURES EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES As of the end of the period covered by this Quarterly Report on Form 10-Q, EDO carried out an evaluation of the effectiveness of the design and operation of its disclosure controls and procedures under the supervision and with the participation of its management, including its Review and Disclosure Committee, its Chief Executive Officer and its Chief Financial Officer. The Chief Executive Officer and Chief Financial Officer concluded that EDO's disclosure controls and procedures are effective to ensure that material information is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission rules and forms. CHANGES IN INTERNAL CONTROLS There were no changes in EDO's internal controls over financial reporting during EDO's last fiscal quarter that have materially affected, or are likely to materially affect internal controls over financial reporting. PART II - OTHER INFORMATION ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS At the Company's Annual Meeting of Shareholders held on April 27, 2004, the following actions were taken: (a) Messrs. George M. Ball, Leslie F. Kenne, James Roth, James M. Smith and Robert S. Tyrer were elected as directors. The votes cast for, against or withheld for each nominee were as follows: 24
Name Votes For Votes Against Votes Withheld ---- ---------- ------------- -------------- George M. Ball 17,465,156 N/A 799,665 Leslie F. Kenne 17,843,869 N/A 420,952 James Roth 17,838,370 N/A 426,451 James M. Smith 17,520,469 N/A 744,352 Robert S. Tyrer 18,134,100 N/A 130,721
(b) An amendment to the Certificate of Incorporation to eliminate the classification of the Board of Directors and to remove the requirement that the vote of the holders of 80% of the outstanding shares of the Corporation be required to amend, alter, change or repeal the classification of Board of Directors or to remove any director without cause was approved: there were 17,688,125 votes cast in favor, 560,035 votes cast against, and 36,660 abstentions. (c) The EDO Corporation 2004 Non-Employee Director Stock Ownership Plan was approved: there were 14,250,661 votes cast in favor, 1,942,917 votes cast against, and 59,912 abstentions. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) EXHIBITS 3(a)(1) Restated Certificate of Incorporation of the Company dated May 15, 2003 (incorporated herein by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003, Exhibit 3(a)(1)). 3(a)(2)* Amendment of the Restated Certificate of Incorporation of the Company dated May 10, 2004. 3(b)* By-Laws of the Company as amended July 27, 2004. 31.1* Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2* Certification of Chief Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32* Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. * Filed herewith. (b) REPORTS ON FORM 8-K The following report on Form 8-K was filed during the six months ended June 26, 2004:
DATE OF REPORT ITEMS REPORTED - -------------- -------------------------------------------------------------- April 29, 2004 Earnings Release, dated April 29, 2004, announcing financial results for the quarter ended March 27, 2004.
25 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, its principal financial officer, thereunto duly authorized. EDO CORPORATION (Registrant) By: /s/ FREDERIC B. BASSETT -------------------------------------------- Dated: July 30, 2004 Frederic B. Bassett Vice President Finance, Treasurer and Chief Financial Officer 26 EX-3.A.2 2 y99482exv3waw2.txt RESTATED CERTIFICATE OF INCORPORATION Exhibit 3(a)(2) CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF EDO CORPORATION Under Section 805 of the Business Corporation Law The undersigned, being Secretary and Vice-President, Administration, of EDO Corporation, hereby certifies: 1. The name of the Corporation is EDO Corporation. The name under which the Corporation was originally incorporated was Edo Aircraft Corporation. 2. The Corporation's Certificate of Incorporation was filed by the Department of State on October 16, 1925. 3. A Restatement of the Certificate of Incorporation was filed by the Department of State on November 23, 1983. 4. A Restatement of the Certificate of Incorporation was filed by the Department of State on May 27, 2003. 5. The Restated Certificate of Incorporation, as now in effect, is further amended as set forth below, as authorized by Section 801 of the Business Corporation Law, to provide for annual election of directors. 6. In order to accomplish the foregoing, the Restated Certificate of Incorporation is amended to read as follows: The second and third sentences of Article FIFTH of the Restated Certificate of Incorporation shall be deleted in their entirety and replaced by the following: The directors elected at the annual meeting of shareholders held in 2004 shall, along with the directors elected at the annual meetings of shareholders held in 2002 and 2003, serve until the annual meeting of shareholders to be held in 2005 and until their successors shall be elected and qualified, or until their earlier death, resignation or removal. Beginning with the annual meeting of shareholders to be held in 2005, at each annual meeting of shareholders the directors elected at such meeting shall serve until the next annual meeting of shareholders and until their successors shall be elected and qualified, or until their earlier death, resignation or removal. Any one or more or all of the directors may be removed for cause at any time by the vote of the shareholders holding a majority of the shares of the corporation, at any special or regular meeting and thereupon the terms of each director or directors who shall have been removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors to be filled as provided in the By-laws of the Company. 6. The foregoing Amendment of the Restated Certificate of Incorporation was authorized by the vote of the board of directors followed by the affirmative vote of 88% of holders of outstanding shares of the Corporation entitled to vote thereon at a meeting of the shareholders held on April 27, 2004. IN WITNESS WHEREOF, the undersigned has made and subscribed this Certificate of Amendment of the Certificate of Incorporation and affirmed it as true under penalties of perjury, this 10th day of May, 2004. /s/ William J. Frost -------------------------------------------- William J. Frost Vice President-Administration and Secretary 2 EX-3.B 3 y99482exv3wb.txt BY-LAWS Exhibit 3(b) EDO CORPORATION (A New York Corporation) BY-LAWS As Amended July 27, 2004 TABLE OF CONTENTS
Page ARTICLE I Meetings of Shareholders Section 1.01 Annual Meetings....................................................... 4 Section 1.02 Special Meetings...................................................... 4 Section 1.03 Place of Meetings..................................................... 4 Section 1.04 Notice of Meetings.................................................... 4 Section 1.05 Quorum................................................................ 5 Section 1.06 Inspectors of Election................................................ 5 Section 1.07 Qualification of Voters............................................... 5 Section 1.08 Vote of Shareholders.................................................. 6 Section 1.09 Proxies............................................................... 7 Section 1.10 Record Date........................................................... 7 Section 1.11 Adjourned Meetings.................................................... 8 Section 1.12 Notice of Shareholder Proposal........................................ 8 ARTICLE II Board of Directors Section 2.01 General Powers........................................................ 8 Section 2.02 Number, Term of Office, Election and Qualifications................... 9 Section 2.03 Regular Meetings...................................................... 10 Section 2.04 Special Meetings...................................................... 10 Section 2.05 Quorum and Voting..................................................... 10 Section 2.06 Resignations.......................................................... 10 Section 2.07 Directors Emeritus.................................................... 11 Section 2.08 Removal of Directors.................................................. 11 Section 2.09 Newly Created Directorships and Vacancies............................. 11 Section 2.10 Action by Written Consent............................................. 11 Section 2.11 Participation in a Meeting by Telephone............................... 12
ARTICLE III Executive Committee and other Committees Section 3.01 How Constituted....................................................... 12 Section 3.02 Powers of the Committees.............................................. 12 Section 3.03 Proceedings, Quorum and Manner of Acting.............................. 12 ARTICLE IV Notices Section 4.01 Form and Delivery..................................................... 13 Section 4.02 Waiver................................................................ 13 ARTICLE V Officers Section 5.01 Number and Qualification.............................................. 13 Section 5.02 Appointment and Term of Office........................................ 13 Section 5.03 Subordinate Officers.................................................. 14 Section 5.04 Resignations.......................................................... 14 Section 5.05 Removal............................................................... 14 Section 5.06 Vacancies............................................................. 14 Section 5.07 The Chief Executive Officer........................................... 14 Section 5.08 The President......................................................... 15 Section 5.09 The Vice Presidents................................................... 15 Section 5.10 The Secretary......................................................... 15 Section 5.11 The Treasurer......................................................... 16 ARTICLE VI Fiscal Matters Section 6.01 Execution of Instruments.............................................. 16 Section 6.02 Loans, etc. .......................................................... 17 Section 6.03 Deposits.............................................................. 17 Section 6.04 Checks, Drafts, etc. ................................................. 17
ARTICLE VII 2 Capital Stock Section 7.01 Certificate for Shares................................................ 17 Section 7.02 Transfer of Shares; Registered Shareholders........................... 18 Section 7.03 Transfer Agents and Registrars........................................ 18 Section 7.04 Record Date........................................................... 18 Section 7.05 Lost or Destroyed Certificates........................................ 19 ARTICLE VIII Books and Records Section 8.01 Books and Records..................................................... 19 Section 8.02 Examination of Books.................................................. 19 ARTICLE IX Indemnification Section 9.01 Indemnification - Third Party and Derivative Actions.................. 20 Section 9.02 Payment of Indemnification; Repayment................................. 21 Section 9.03 Procedure for Indemnification......................................... 22 Section 9.04 Survival; Preservation of Other Rights................................ 23 Section 9.05 Savings Clause........................................................ 23 ARTICLE X Miscellaneous Section 10.01 Corporate Seal....................................................... 23 Section 10.02 Fiscal Year.......................................................... 23 ARTICLE XI Amendments Section 11.01 Amendments........................................................... 24 Section 11.02 Notice of Amendment.................................................. 24
3 ARTICLE I Meetings of Shareholders Section 1.01 Annual Meetings The annual meeting of shareholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held at such date and time as the Directors may determine. Section 1.02 Special Meetings Special meetings of shareholders may be called at any time by the Chairman of the Board of Directors, or by the Chief Executive Officer, or by order of the Board of Directors, or by a majority of the directors then in office acting without a meeting. At any special meeting of shareholders, only such business may be transacted as is related to the purpose or purposes set forth in the notice required by Section 1.04. Section 1.03 Place of Meetings Each meeting of shareholders shall be held at the principal office of the Corporation in the State of New York or at such other place within or without the State of New York as may be specified in the notice of the meeting. Section 1.04 Notice of Meetings Written or electronic notice of the place, date and hour of each meeting of the shareholders shall be given as provided in Section 4.01 to each shareholder entitled to vote thereat, or otherwise entitled by law to notice thereof, not less than 10 nor more than 60 days before the meeting or shall be given by third-class mail not fewer than twenty-four (24) nor more than sixty (60) days before the date of the meeting. If mailed such notice shall be deemed given when deposited in the United States mail, with postage thereon prepaid, directed to the shareholder at the shareholder's address as it appears on the record of shareholders, or, if the shareholder shall have filed with the Secretary of the Corporation a request that notices to the shareholder be mailed to some other address, then directed to the shareholder at such other address. If transmitted electronically, such notice shall be deemed given when directed to the shareholder's electronic mail address as supplied by the shareholder to the Secretary of the Corporation or as otherwise directed pursuant to the shareholder's authorization or instructions. Notice of a special meeting shall also state the purposes for which the meeting is called and indicate by or at whose direction the notice is being issued. If any action is proposed to be taken at any shareholders' meeting which would, if taken, entitle shareholders fulfilling the requirements of section 623 of the New York Business Corporation Law (relating to a shareholder's statutory appraisal rights) to receive payment for their shares, the notice shall also include a statement to that effect. Notice of any meeting need not be given to any shareholder with whom communication is then unlawful by virtue of any law of the State of New York or of the United States of America 4 now or hereafter enacted or amended or any rule, regulation, proclamation or executive order issued under any such law. Section 1.05 Quorum of Shareholders Except as otherwise provided by law and subject to the provisions of Section 1.07 and Section 6.02(b), the holders of a majority of the votes of shares issued and outstanding entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of shareholders, provided that when a specified item of business is required to be voted on by a particular class or series of shares, voting as a class, the holders of a majority of the votes of shares of such class or series shall constitute a quorum for the transaction of such specified item of business. Section 1.06 Inspectors of Election The Board of Directors shall appoint one or more inspectors to act at a meeting of shareholders or any adjournment thereof and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed, or if such persons are unable to act at the meeting, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his or her ability. The inspectors shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum and the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. On request of the person presiding at the meeting or any shareholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question or matter determined by them and execute a certificate of any fact found by them. The date and time (which need not be a particular time of day) of the opening and the closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced by the person presiding at the meeting at the beginning of the meeting and, if no date and time is so announced, the polls shall close at the end of the meeting, including any adjournment thereof. Except as otherwise required by the New York Business Corporation Law, no ballot, proxies or consents, nor any revocation thereof or changes thereto, shall be accepted by the inspectors after the closing of polls. Section 1.07 Qualification of Voters (a) Unless otherwise provided in the Certificate of Incorporation at each meeting of shareholders, each holder of record of common shares entitled to vote at such meeting shall be entitled to one vote for each such common share 5 standing in his, her or its name on the record of shareholders on the record date as determined pursuant to Section 1.10. (b) Treasury shares and shares held by another domestic or foreign corporation of any type or kind, if a majority of the shares entitled to vote in the election of directors of such other corporation is held by the Corporation, shall not be shares entitled to vote or to be counted in determining the total number of outstanding shares (c) Shares held by an administrator, executor, guardian, conservator, committee or other fiduciary, except a trustee, may be voted by him, her or it, either in person or by proxy, without transfer of such shares into his, her or its name. (d) Shares held by a trustee may be voted by him, her or it, either in person or by proxy, only after the shares have been transferred into his, her or its name as trustee or into the name of his, her or its nominee. (e) Shares standing in the name of another domestic or foreign corporation of any type or kind may be voted by such officer, agent or proxy as the by-laws of such corporation may provide, or, in the absence of such provision, as the board of directors of such corporation may determine. (f) A shareholder shall not sell his, her or its vote or issue a proxy to vote to any person for any sum of money or anything of value except as permitted by law. (g) At each meeting of shareholders, each holder of record of preferred shares entitled to vote at such meeting shall be entitled to such number of votes as may be specified in the Certificate of Incorporation. Section 1.08 Vote of Shareholders Except as at the time otherwise expressly required by statute, by the Certificate of Incorporation of the Company or by Section 1.06 (regarding appointment of Inspectors), Section 2.02 (regarding election of directors) or Section 2.08 (regarding removal of directors), all corporate action to be taken by vote of the shareholders shall be authorized by a majority of the votes cast in favor or against such action by the holders of shares entitled to vote thereon at a meeting of the shareholders at which a quorum is present. Except as otherwise provided in the certificate of incorporation or the specific provision of a by-law adopted by the shareholders, an abstention shall not constitute a vote cast. The authority of the holder of a proxy to act shall not be revoked by the incompetence or death of the shareholder who executed the proxy unless, before the authority is exercised, written notice of an adjudication of such incompetence or of such death is received by the Secretary or any Assistant Secretary. Without limiting the manner in which a shareholder may authorize another person or persons to act for him, her or it as 6 proxy, the following shall constitute a valid means by which a shareholder may grant such authority: (1) A shareholder may execute a writing authorizing another person or persons to act for the shareholder as proxy. Execution may be accomplished by the shareholder or the shareholder's authorized officer, director, employee or agent signing such writing or causing his or her signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature. (2) A shareholder may authorize another person or persons to act for the shareholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be reasonably determined that the telegram, cablegram or other electronic transmission was authorized by the shareholder. If it is determined that such telegrams, cablegrams or other electronic transmissions are valid, the inspectors shall specify the nature of the information upon which they relied. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this Section 1.08 may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. Section 1.09 Proxies Any shareholder entitled to vote at a meeting of shareholders or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy. Each proxy must be in writing, signed by the shareholder or by his attorney-in-fact and shall be filed with the secretary of any meeting at which the holder thereof votes thereunder. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Each proxy shall be revocable at the pleasure of the shareholder executing it, except if and to the extent that an irrevocable proxy is given and is permitted by law. Section 1.10 Record Date The Board of Directors may fix, in advance, a date as the record date for determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting. Such date shall be not more than 60 nor less than 10 days before the date of such meeting nor more than sixty (60) days prior to any other action. If no record date is 7 fixed: (1) the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held; and (2) the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the Board of Directors relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date for the adjourned meeting. Section 1.11 Adjourned Meetings The holders of a majority of the shares present in person or by proxy at a meeting and entitled to vote thereat may from time to time adjourn the meeting, whether or not a quorum was present at the meeting. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made pursuant to Section 1.10, such determination shall apply to any adjournment of the meeting unless the Board of Directors fixes a new record date for the adjourned meeting. When a meeting is adjourned to another time or place, no notice need be given if such time or place is announced at the meeting at which the adjournment is taken. However, if the Board of Directors fixes a new record date for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to notice. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. Section 1.12 Notice of Shareholder Proposal For business proposed by a Shareholder to be a proper subject for action at an Annual Shareholders meeting, in addition to any requirement of law the Shareholder must timely request (by Certified Mail - Return Receipt Requested) that the proposal be included in the Corporation's proxy statement for the meeting, and such request must satisfy all of the provisions of Rule 14a-8 under the Securities Exchange Act of 1934, as amended. ARTICLE II Board of Directors Section 2.01 General Powers The property, affairs and business of the Corporation shall be managed under the direction of the Board of Directors. 8 Section 2.02 Number, Term of Office, Election and Qualifications (a) The full Board of Directors shall consist of not less than nine nor more than fifteen directors, all of whom shall be at least 21 years of age on the date of the annual meeting of shareholders. The Chairman of the Board of Directors shall be chosen by the Directors from among the directors and shall preside at all meetings of the shareholders and of the Board of Directors at which he shall be present. Past or present officers or employees of the Corporation shall not comprise more than one third of the Board of Directors. Each director shall hold at least 1000 shares of any class of the Corporation; provided that failure to hold such number of shares shall not prevent or disqualify any person not a director from being elected a director pursuant to this Section 2.02 or Section 2.09 or from serving as a director for a period of one year from the time of such election. (b) Subject to the provisions of this Section and of Section 2.09, the number of directors, within the limits provided, necessary to constitute a full Board shall be determined from time to time by vote of a majority of the entire Board of Directors. Directors shall be elected at the annual meeting of shareholders. If the number of directors be increased between annual meetings of shareholders, the additional directors to fill the vacancies thus created shall be elected as provided in Section 2.09. (c) At each annual meeting of shareholders the directors elected at such meeting shall serve until the next annual meeting of shareholders and until their successors shall be elected and qualified, or until their earlier death, resignation or removal. (d) A director elected to fill a vacancy, unless elected by the shareholders, shall be elected to hold office for a term expiring at the next meeting of shareholders at which the election of directors is in the regular order of business. (e) At each meeting of shareholders for the election of directors the directors shall be chosen and elected by a plurality of the votes cast at such meeting by the holders of shares entitled to vote in the election. Any shareholder may recommend a nominee for membership on the Board of Directors provided such recommendations for nominees, to be proposed at any Annual meeting are made in writing addressed to the Secretary of the Corporation prior to the fifteenth of December preceding the date of such meeting. (f) No person shall serve as a director beyond the annual meeting of shareholders following his or her attainment of age 72. 9 Section 2.03 Regular Meetings Promptly after the close of each annual meeting of the shareholders, the Board of Directors shall, without notice, meet where such annual meeting was held, or at such other place as may be fixed by resolution of the Board of Directors, for the purpose of appointing officers and committees for the ensuing year and transacting other proper business. Other regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be scheduled and such schedule may be changed at any regular meeting of the Board of Directors or at any special meeting called for that purpose, provided that notice of the change shall be given to all directors no later than 5 days prior to the first meeting held under such schedule as so changed. Section 2.04 Special Meetings Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the Chief Executive Officer, or any two directors. If such a meeting is called by the Chairman of the Board of Directors or by the Chief Executive Officer, such person shall, or shall direct the Secretary to, fix a time and place for and give notice of the time, place, and purposes of such meeting. If such a meeting is called by any two directors, upon delivery to the Chairman of the Board of Directors, Chief Executive Officer or Secretary, in person or by registered mail, of a request in writing for a special meeting, specifying the purposes thereof, it shall be the duty of the person to whom the request is delivered to fix a time and place for (unless the requesting directors shall have fixed such time and place) and give notice of the time, place and purposes of such meeting. All such notices of meetings shall be given as provided in Section 4.01, if by mail, at least three days before the day on which the meeting is to be held, or, if by personal delivery, telephone or telegram, not later than the day before the day on which the meeting is to be held. Section 2.05 Quorum and Voting A majority of directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if a quorum shall not be present thereat, a majority of the directors present may from time to time adjourn any such meeting until a quorum shall be present, and the meeting may be held at adjourned without further notice. If a quorum is present at any meeting, the vote of a majority of the directors present shall be the act of the Board of Directors, except as otherwise provided by law. The directors shall act only as a Board and, except as provided in Section 1.02 (relating to calling special meetings of the shareholders), Section 2.04 (relating to the adjournment of meetings in the absence of a quorum), individual directors shall have no powers as such. Section 2.06 Resignations Any director may resign at any time by delivering a written resignation to either the Chairman of the Nominating and Governance Committee, the Chairman of the Board of 10 Directors, the Chief Executive Officer, the President or the Secretary. Unless otherwise specified therein, such resignation shall take effect upon such delivery. Section 2.07 Directors Emeritus The Board of Directors may also appoint a retiring Chairman of the Board to emeritus status which shall not include the right to vote, or to be counted toward the determination of the full Board of Directors or for the determination of a quorum. Section 2.08 Removal of Directors Any one or more of the directors may be removed for cause at any time by the vote of the shareholders holding a majority of the shares of the Corporation entitled to vote for the election of directors, at any special or regular meeting of the shareholders and thereupon the terms of each director or directors who shall have been removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors. Any vacancy in the Board of Directors caused by any such removal may be filled at such meeting by the shareholders entitled to vote for the election of directors; if the shareholders do not fill such vacancy at such meeting, such vacancy may be filled in the manner provided in Section 2.09. The provisions of this Section may be amended, altered or repealed only by the shareholders in the manner specified in clause (1) of Section 11.01. Section 2.09 Newly Created Directorships and Vacancies Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board of Directors for any reason may be filled (unless theretofore filled by the shareholders in accordance with the provisions of Section 2.09) by vote of a majority of the directors then in office, although less than a quorum exists. Any such newly created directorship or vacancy (unless theretofore filled by the directors in accordance with the provisions of this Section) may also be filled by the shareholders entitled to vote for the election of directors at any meeting held during the existence of such vacancy provided that the notice of the meeting shall have mentioned such vacancy or expected vacancy. Section 2.10 Action by Written Consent Any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or the committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the Board of Directors or committee shall be filed with the minutes of the proceedings of the Board of Directors or committee. 11 Section 2.11 Participation in a Meeting by Telephone Any one or more members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at such meeting. ARTICLE III Committees of the Board Section 3.01 How Constituted By resolution adopted by a majority of the entire Board of Directors, the Board may designate one or more committees each consisting of three or more directors. Each such committee shall serve at the pleasure of the Board. Section 3.02 Powers of Committees To the extent provided by resolution adopted by a majority of the entire Board of Directors, committees shall have and may exercise any of the powers of the Board of Directors except that no such committee shall have authority as to the following matters: (a) the submission to shareholders of any action as to which shareholders' approval is required by law; (b) the filling of vacancies in the Board of Directors or in any committee thereof; (c) the fixing of compensation of the directors for serving on the Board of Directors or any committee thereof; (d) the amendment or repeal of the By-Laws, or the adoption of new By-Laws; or (e) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable. Section 3.03 Proceedings, Quorum and Manner of Acting Subject to the control of the Board of Directors, each committee may adopt such rules and regulations governing its proceedings, quorum and manner of acting as it shall deem proper and desirable, provided that a quorum shall not be less than two directors. 12 ARTICLE IV Notices Section 4.01 Form and Delivery Except as otherwise expressly provided by law or by these By-Laws, any written notice required to be given by law, the Certificate of Incorporation or these By-Laws to any shareholder, director or other person may be delivered personally or by mail or, in the case of notices to directors, by telephone or telegram. Notice by mail shall be deemed to have been given at the time when such notice is deposited in the United States mail, postage prepaid, addressed to such shareholder, director or other person at his last known address as the same appears on the records of the Corporation or, if a shareholder shall have filed with the Secretary a written request that notices to him or her be mailed to some other address, then directed to him or her at such other address. Section 4.02 Waiver No notice required to be given by any statute, by the Certificate of Incorporation or by these By-Laws need be given to any person otherwise entitled to notice who signs in person or, if a shareholder, by proxy, a waiver of notice, whether signed before or after the time of the action to which the notice relates. In addition, the attendance by any shareholder at any meeting of the shareholders in person or by proxy without protesting prior to the conclusion of such meeting the absence of notice thereof to such shareholder, and the attendance by any director at any meeting of the Board of Directors without protesting prior to such meeting or at its commencement such absence of notice, shall, in each such case, constitute a waiver of notice of such meeting ARTICLE V Officers Section 5.01 Number and Qualification The officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary and a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 5.03. Any one person may hold more than one of such offices except those of President and Secretary. The Chief Executive Officer shall be chosen from among the directors. No other officer need be a director. Officers shall be at least 21 years of age and no more than 70 years of age on the date of the annual meeting of shareholders. Section 5.02 Appointment and Term of Office Officers (unless appointed under power delegated pursuant to the second sentence of Section 5.03) shall be appointed by the Board of Directors and (unless appointed under the provisions of Section 5.03 for a different term) shall hold office until the first meeting 13 of the Board of Directors following the next succeeding annual meeting of shareholders and thereafter until their successor(s) shall have been appointed and qualified or until their earlier death or disqualification or until they shall have resigned in the manner provided in Section 5.04 or shall have been removed in the manner provided in Section 5.05. Section 5.03 Subordinate Officers The Board of Directors from time to time may appoint such other officers or agents as it may deem advisable, each of whom shall have such title, hold office for such period, have such authority and perform such duties as the Board of Directors from time to time may determine. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective titles, terms of office, authorities and duties. Section 5.04 Resignations Any officer may resign at any time by delivering a written resignation to the Board of Directors, the Chief Executive Officer or the Secretary. Unless otherwise specified therein, such resignation shall take effect upon such delivery. Section 5.05 Removal Any officer may be removed at any time, either for or without cause, by action of the Board of Directors. Section 5.06 Vacancies A vacancy in any office because of death, resignation, removal, disqualification or any other cause, may be filled in the manner prescribed in this Article for regular appointment to such office. Section 5.07 The Chief Executive Officer The Chief Executive Officer of the Corporation shall report directly to the Board. Except in such instances as the Board may confer powers in particular transactions upon any other officer, and subject to the control and direction of the Board, the Chief Executive Officer shall manage the business and affairs of the Corporation and shall communicate to the Board and any committee thereof reports, proposals and recommendations for their respective consideration or action. He may do and perform all acts on behalf of the Corporation. In the absence of the Chairman of the Board, the Chief Executive Officer shall preside at all meetings of the shareholders and of the Board of Directors at which he or she shall be present. 14 Section 5.08 The President The President shall have such powers and performs such duties as the Board and the Chief Executive Officer (to the extent he is authorized by the Board of Directors to prescribe the authority and duties of other officers) may from time to time prescribe or as may be prescribed in these By-Laws. Section 5.09 The Vice Presidents The Vice Presidents shall have such powers and perform such duties as the Board or the Chief Executive Officer (to the extent he or she is authorized by the Board of Directors to prescribe the authority and duties of other officers) may from time to time prescribe or as may be prescribed in these By-Laws. Section 5.10 The Secretary The Secretary shall: (a) Keep the minutes of meetings of shareholders and of the Board of Directors and cause the same to be recorded in books kept for that purpose. (b) Upon the request of any shareholder given at or prior to any meeting of shareholders, produce at such meeting a list of shareholders as of the record date for such meeting, certified by the corporate officer responsible for its preparation or by a transfer agent. (c) Cause all notices to be duly given in accordance with the provisions of these By-Laws and as required by statute. (d) Be custodian of the records and seal of the Corporation, and cause such seal (or a facsimile thereof) to be affixed to all certificates for shares of the Corporation the issuance of which shall have been authorized by the Board of Directors, and to all instruments the execution of which under the seal of the Corporation shall have been duly authorized. (e) Cause a record of shareholders to be kept in accordance with Section 8.01. (f) In general, perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him or her by the Board of Directors or the President. 15 Section 5.11 The Treasurer The Treasurer shall: (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation. (b) Cause the moneys and other valuable effects of the Corporation not otherwise employed to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 6.03. (c) Cause the moneys of the Corporation to be disbursed by electronic funds transfers, checks or drafts (signed as provided in Section 6.04) upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed. (d) Render to the Board of Directors or the Chief Executive Officer, whenever requested, a statement of the financial condition of the Corporation and of all transactions effected by the Treasurer, and render a full financial report at any annual meeting of shareholders if called upon to do so. (e) Cause to be kept at the principal office of the Corporation correct books of account of all its business and transactions and exhibit such books to any director upon application at such office during business hours. (f) Be empowered from time to time to require from all officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation. (g) In general, perform all duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him or her by the Board of Directors or the Chief Executive Officer. ARTICLE VI Fiscal Matters Section 6.01 Execution of Instruments The Chief Executive Officer, President, any Vice President or the Treasurer may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation in the ordinary course of its business. Subject to the approval of the Board of Directors, any officer or agent of the Corporation may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or agent to enter into any contract or 16 execute and deliver any instrument in the name and on behalf of the Corporation. Any such authorization may be general or confined to specific instances. Section 6.02. Loans, etc. (a) No loans or advances to or by the Corporation shall be contracted, and no notes or other evidences of indebtedness shall be issued in its name, unless and except as authorized by the Board of Directors. Any such authorization may be general or confined to specific instances. So far as may be lawful, any officer or agent of the Corporation thereunto so authorized may effect loans and advances to or by the Corporation, and for loans and advances made to the Corporation may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. So far as may be lawful, any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer, as security for the payment of any and all loans or advances to or indebtedness and liabilities of the Corporation, any and all stocks, bonds, claims and other personal property, securities or receivables at any time owned by the Corporation or to which it is or will be at any time entitled, and to that end may endorse, assign and deliver the same and take any action necessary or proper in connection therewith. (b) No loan shall be made by the Corporation to any officer or director of the Corporation except as may be permitted by law. Section 6.03. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors from time to time may select, or as may be selected by any officer or agent authorized to do so by the Board of Directors. Section 6.04 Checks, Drafts, etc. All notes, drafts, acceptances, checks, endorsements, and all evidences of indebtedness of the Corporation whatsoever, shall be signed by such officer or officers or such agent or agents of the Corporation and in such manner as the Board of Directors from time to time may determine. ARTICLE VII Capital Stock Section 7.01 Certificates for Shares Shares of the Corporation shall be represented by certificates, in form approved by the Board of Directors, signed by the Chairman of the Board of Directors, the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an 17 Assistant Treasurer and sealed with the seal of the Corporation. Such seal may be a facsimile, engraved, lithographed, printed or otherwise reproduced. The signatures of such persons upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation itself or its employee. In case any such person who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be in such position before such certificate is issued, it may be issued by the Corporation with the same effect as if such person had not ceased to be in such position at the date of its issue. Section 7.02 Transfer of Shares; Registered Shareholders (a) Shares of the Corporation shall be transferable only upon the books of the Corporation kept for such purpose upon surrender to the Corporation or its transfer agent or agents of a certificate representing shares, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer. (b) The Board of Directors, subject to applicable law and these By-Laws, may make such rules, regulations and conditions as it may deem expedient concerning the subscription for, issue, transfer and registration of, shares of the Corporation. Except as otherwise provided by law, the Corporation, prior to due presentment for registration of transfer, may treat the registered owner of shares as the person exclusively entitled to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. Section 7.03 Transfer Agents and Registrars The Board of Directors may appoint one or more transfer agents and may appoint one or more registrars of the shares of the Corporation, and upon such appointments being made, no certificate representing shares shall be valid unless and until countersigned by one of such transfer agents, if any, and registered by one of such registrars, if any. The same person may act as transfer agent and registrar for the shares of any class of the Corporation. Section 7.04 Record Date The Board of Directors may fix, in advance, a date as the record date for determining the shareholders entitled to receive payment of any dividend, the allotment of any rights, the making of any distribution, or for the delivery of evidences of rights or evidences of interests arising out of any change, conversion or exchange of shares. Such date shall be not more than 60 days prior to any such action. 18 Section 7.05 Lost or Destroyed Certificates The Corporation may issue a new certificate in the place of any certificate theretofore issued by it alleged to have been lost or destroyed, and the Board of Directors may require the owner of the lost or destroyed certificate, or his legal representative, to give the Corporation a bond in such sum as the Board may direct, with such surety or sureties as may be satisfactory to the Board, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate. A new certificate may be issued without requiring any bond when, in the judgment of the Board of Directors, it is proper to do so. ARTICLE VIII Books and Records Section 8.01 Books and Records The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of the shareholders, the Board of Directors and the Executive Committee, if any. The Corporation shall keep at the principal office of the Corporation in the State of New York or at the office of its transfer agent or registrar in the State of New York a record containing the names and addresses of all shareholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof. Any of the foregoing books, minutes or records may be in written form or in any other form capable of being converted into written form within a reasonable time. Unless otherwise expressly required by statute or by these By-Laws, the books and records of the Corporation shall be kept, within or outside the State of New York, at such place or places as may be designated from time to time by the Board of Directors. Section 8.02 Examination of Books So far as permitted by law, the Board of Directors shall have power to determine from time to time whether, to what extent, at what times and places and under what conditions and regulations, the books, records, documents and accounts of the Corporation, or any of them, shall be open to inspection by shareholders; and no shareholder shall have any right to inspect any books, records, documents or accounts of the Corporation, except as conferred by statute or these By-Laws or authorized by resolution of the shareholders or the Board of Directors. 19 Article IX Indemnification Section 9.01 Indemnification--Third Party and Derivative Actions (a) The Company shall indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, such person's testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. (b) The termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not in itself create a presumption that any such director or officer did not act, in good faith, for a purpose which such director or officer reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company or that such person had reasonable cause to believe that his conduct was unlawful. (c) The Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that he, his testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys' fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests 20 of the Company, except that no indemnification under this subparagraph (c) shall be made in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper. (d) For the purpose of this Section 1, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person's duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company. Section 9.02 Payment of Indemnification; Repayment (a) A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Section 1 of this Article shall be entitled to indemnification as authorized in such Section. (b) Except as provided in the foregoing sentence, any indemnification under Section 1 of this Article, unless ordered by a court under Section 724 of the New York Business Corporation Law as from time to time amended, shall be made by the Company, only if authorized in the specific case: (1) by the Board of Directors acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 1 of this Article or otherwise established by the Company pursuant to the last sentence of Section 4 of this Article; or (2) if a quorum under the foregoing subparagraph (1) is not obtainable or, even if obtainable, a quorum of disinterested directors so directs: (i) by the Board of Directors upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set 21 forth in such Section 1 of this Article or otherwise established by the Company pursuant to the last sentence of Section 4 of this Article has been met by such director or officer, or (ii) by the shareholders upon a finding that the director or officer has met such applicable standard of conduct. (c) Expenses incurred in defending a civil or criminal action or proceeding shall be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount as, and to the extent, required by Section 2(d) of this Article. (d) All expenses incurred in defending a civil or criminal action or proceeding which are advanced by the Company under this Article or allowed by a court shall be repaid in case the person receiving such advancement or allowance is ultimately found, under the procedure set forth in this Article, not to be entitled to indemnification or, where indemnity is granted, to the extent the expenses so advanced by the Company or allowed by the court exceed the indemnification to which he is entitled. Section 9.03 Procedure for Indemnification Any indemnification of a director or officer of the Company under Section 1, or advance of costs, charges and expenses under Section 2(c) of this Article, shall be made promptly, and in any event within 60 days, upon the written request of the director or officer. The right to indemnification or advances as granted by this Article shall be reenforceable by the director or officer in any court of competent jurisdiction if the Company denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person's costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the Company. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 2(c) of this Article where the required undertaking, if any, has been received by the Company) that the claimant has not met the standard of conduct set forth in Section 1 of this Article or otherwise established by the Company pursuant to the last sentence of Section 4 of this Article, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including its Board of Directors, its independent legal counsel, and its stockholders), to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 of this Article or otherwise established by the Company pursuant to the last sentence of Section 4 of this Article, nor the fact that there has been an actual determination by the Company (including its Board of Directors, its independent legal counsel, and its stockholders) that the claimant has not met such 22 applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 9.04 Survival; Preservation of Other Rights The foregoing indemnification provisions shall be deemed to be a contract between the Company and each director and officer (and each director and officer of any of its subsidiaries) who serves in such capacity at any time while these provisions as well as the relevant provisions of the New York Business Corporation Law are in effect and any repeal or modification thereof shall not affect any right or obligation then existing with respect to any state of facts then or previously existing or any action, suit, or proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such a "contract right" may not be modified retroactively without the consent of such director or officer. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. The Company is hereby authorized to provide further indemnification if it deems it advisable by resolution of shareholders or directors or by agreement. Section 9.05 Savings Clause If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each director or officer of the Company as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Company, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and to the full extent permitted by applicable law. ARTICLE X Miscellaneous Section 10.01 Corporate Seal The seal of the Corporation shall be circular in form and shall bear the name of the Corporation and the words and figures "Corporate Seal - 1925 - New York. Section 10.02 Fiscal Year The fiscal year of the Corporation shall be the calendar year. 23 ARTICLE XI Amendments Section 11.01 Amendments All By-Laws of the Corporation, whether adopted by the Board of Directors or the shareholders, shall be subject to amendment, alteration or repeal, and new by-laws may be made, either (1) by vote of the holders of the shares of the Corporation at the time entitled to vote in the election of directors, given at any annual or special meeting of shareholders the notice of which shall have specified or summarized the proposed amendment, alteration, repeal or new by-laws, or (2) by the affirmative vote of at least a majority of the total number of directors then necessary to constitute a full Board, as determined pursuant to Section 2.02, given at any annual, regular or special meeting the notice or waiver of notice of which, unless none is required under the provisions of Section 4.02, shall have specified or summarized the proposed amendment, alteration, repeal or new by-law, provided that the shareholders may at any time provide in the By-Laws that any specified provision or provisions of the By-Laws may be amended, altered or repealed only in the manner specified in the foregoing clause (1), in which event such provision or provisions shall be subject to amendment, alteration or repeal only in such manner. Section 11.02 Notice of Amendment If any by-law regulating an impending election of directors is adopted, amended or repealed by the Board of Directors, there shall be set forth in the notice of the next meeting of shareholders for the election of directors the by-law so adopted, amended or repealed, together with a concise statement of the changes made. 24 EX-31.1 4 y99482exv31w1.txt CERTIFICATION OF CEO Exhibit 31.1 CERTIFICATION PURSUANT TO 15 U.S.C. SECTION 10A, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, James M. Smith, certify that: 1. I have reviewed this report on Form 10-Q of EDO Corporation (the "registrant"); 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) [omitted in accordance with SEC Release Nos. 33-8238 and 34-47986]; (c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors: (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: July 30, 2004 /s/ JAMES M. SMITH ----------------------------- James M. Smith Chairman, President and Chief Executive Officer EX-31.2 5 y99482exv31w2.txt CERTIFICATION OF CFO Exhibit 31.2 CERTIFICATION PURSUANT TO 15 U.S.C. SECTION 10A, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Frederic B. Bassett, certify that: 1. I have reviewed this report on Form 10-Q of EDO Corporation (the "registrant"); 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) [omitted in accordance with SEC Release Nos. 33-8238 and 34-47986]; (c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors: (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: July 30, 2004 /s/ FREDERIC B. BASSETT ----------------------------------- Frederic B. Bassett Vice President - Finance, Treasurer and Chief Financial Officer EX-32 6 y99482exv32.txt CERTIFICATION OF CEO AND CFO Exhibit 32 CERTIFICATION Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned certifies that (1) this Quarterly Report of EDO Corporation (the "Company") on Form 10-Q for the quarter ended June 26, 2004, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934, as amended, and (2) the information contained in this Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ JAMES M. SMITH --------------------------- James M. Smith Chief Executive Officer July 30, 2004 /s/ FREDERIC B. BASSETT --------------------------- Frederic B. Bassett Chief Financial Officer July 30, 2004 -----END PRIVACY-ENHANCED MESSAGE-----