-----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, Cpa/MYKvCx7SjXzJTOu/PZXGNxb/gA99IYyczEgc3dWAhreVv7Ja+bUyLWsbDk0/ BwrMMD6711hRzgfIzlKx6Q== 0000950124-95-003818.txt : 19951120 0000950124-95-003818.hdr.sgml : 19951120 ACCESSION NUMBER: 0000950124-95-003818 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19951001 FILED AS OF DATE: 19951115 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: LABARGE INC CENTRAL INDEX KEY: 0000057139 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATIONS EQUIPMENT, NEC [3669] IRS NUMBER: 730574586 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-05761 FILM NUMBER: 95593472 BUSINESS ADDRESS: STREET 1: 707 NORTH SECOND STREET CITY: ST LOUIS STATE: MO ZIP: 63102-2538 BUSINESS PHONE: 314-231-5960 MAIL ADDRESS: STREET 1: P.O. BOX 14499 CITY: ST. LOUIS STATE: MO ZIP: 63178-4499 FORMER COMPANY: FORMER CONFORMED NAME: DORSETT ELECTRONICS INC DATE OF NAME CHANGE: 19690406 10-Q 1 10-Q 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q QUARTERLY REPORT UNDER SECTION 13 OR 15 (D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarter Ended October 1, 1995 Commission file number: 1-5761 - ------------------------------------------------------------------------------ LaBarge, Inc. - ------------------------------------------------------------------------------ (Exact name of registrant as specified in its charter) DELAWARE 73-0574586 - ------------------------------------- -------------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) P.O. Box 14499, St. Louis, Missouri 63178 - ------------------------------------- -------------------------- (Address) (Zip Code) (314) 231-5960 - ------------------------------------------------------------------------------ (Registrant's telephone number, including Area Code) - ------------------------------------------------------------------------------ (Former name, former address and former fiscal year, if changed since last report.) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X . No . ------- ------- Indicate the number of shares outstanding of each of the Issuer's classes of common stock as of November 2, 1995. 15,296,059 of common shares. 2 LaBARGE, INC. STATEMENTS OF OPERATIONS (Unaudited) (dollars in thousands except per share data)
THREE MONTHS ENDED OCTOBER 1, October 2, 1995 1994 - -------------------------------------------------------------------------------------------------------------- NET SALES $ 13,361 $ 17,111 - -------------------------------------------------------------------------------------------------------------- COSTS AND EXPENSES: Cost of sales 11,322 14,339 Selling and administrative expenses 1,673 2,069 - -------------------------------------------------------------------------------------------------------------- 12,995 16,408 - -------------------------------------------------------------------------------------------------------------- EARNINGS FROM OPERATIONS 366 703 - -------------------------------------------------------------------------------------------------------------- Interest expense 319 548 Other income, net 46 33 - -------------------------------------------------------------------------------------------------------------- EARNINGS BEFORE INCOME TAXES 93 188 Income tax expense (benefit) 6 11 - -------------------------------------------------------------------------------------------------------------- NET EARNINGS $ 87 $ 177 ============================================================================================================== Net earnings per common share $.01 $.01 - -------------------------------------------------------------------------------------------------------------- Average common shares outstanding 15,246 15,209 ==============================================================================================================
See accompanying notes to financial statements. -2- 3 LaBARGE, INC. BALANCE SHEET (Unaudited) (dollars in thousands except per share data)
OCTOBER 1, July 2, 1995 1995 - ----------------------------------------------------------------------------------------------------------------------- ASSETS CURRENT ASSETS: Cash and cash equivalents $ 316 $ 143 Accounts and notes receivable, net 8,016 9,017 Inventories 14,602 14,133 Prepaid expenses 332 293 Deferred tax assets, net 758 758 - ----------------------------------------------------------------------------------------------------------------------- TOTAL CURRENT ASSETS 24,274 24,344 - ----------------------------------------------------------------------------------------------------------------------- MARKETABLE SECURITIES, AT COST 250 - PROPERTY, PLANT AND EQUIPMENT, NET 2,947 2,676 DEFERRED TAX ASSETS, NET 2,492 2,492 OTHER ASSETS, NET 2,164 2,096 - ----------------------------------------------------------------------------------------------------------------------- $ 31,877 $ 31,608 ======================================================================================================================= LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES: Short-term borrowings $ 5,500 $ 2,500 Current maturities of long-term debt 1,510 1,670 Trade accounts payable 5,504 5,013 Accrued liabilities 2,180 2,392 Current liabilities from discontinued operations - 269 - ----------------------------------------------------------------------------------------------------------------------- TOTAL CURRENT LIABILITIES 14,694 11,844 - ----------------------------------------------------------------------------------------------------------------------- LONG-TERM OBLIGATIONS: Long-term debt 3,777 6,467 - ----------------------------------------------------------------------------------------------------------------------- 3,777 6,467 - ----------------------------------------------------------------------------------------------------------------------- STOCKHOLDERS' EQUITY: Common stock, $.01 par value. Authorized 20,000,000 shares; issued 15,296,059 shares at October 1, 1995 and 15,227,316 shares at July 2, 1995 153 152 Additional paid-in capital 12,624 12,554 Retained earnings 629 600 Less stock in treasury; -0- shares at October 1, 1995 and 5,391 shares at July 2, 1995 - (9) - ----------------------------------------------------------------------------------------------------------------------- TOTAL STOCKHOLDERS' EQUITY 13,406 13,297 - ----------------------------------------------------------------------------------------------------------------------- $ 31,877 $ 31,608 =======================================================================================================================
See accompanying notes to financial statements. -3- 4 LaBARGE, INC. STATEMENTS OF CASH FLOWS (Unaudited) (dollars in thousands)
THREE MONTHS ENDED OCTOBER 1, October 2, 1995 1994 - ---------------------------------------------------------------------------------------------------------------------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net earnings $ 87 $ 177 Adjustments to reconcile net cash provided by operating activities: Depreciation and amortization 210 272 Accretion of discount on long-term assets from business divestitures (7) (8) Accretion of discount on note from discontinued operations 6 11 Changes in assets and liabilities: Accounts and notes receivable, net 751 1,411 Inventories (469) (622) Prepaid expenses (39) (12) Trade accounts payable 491 (1,010) Accrued liabilities (212) (203) Current liabilities from discontinued operations (275) (125) - ---------------------------------------------------------------------------------------------------------------------------- Net cash provided (used) by operating activities 543 (109) - ---------------------------------------------------------------------------------------------------------------------------- CASH FLOWS FROM INVESTING ACTIVITIES: Additions to property, plant and equipment (443) (237) Additions to other assets of continuing operations (99) (62) - ---------------------------------------------------------------------------------------------------------------------------- Net cash (used) by investing activities (542) (299) - ---------------------------------------------------------------------------------------------------------------------------- CASH FLOWS FROM FINANCING ACTIVITIES: Repayments of long-term debt (350) (446) Exercise of stock warrants and options 14 60 Purchase of common stock to treasury 8 - Net change in short-term borrowings 500 900 - ---------------------------------------------------------------------------------------------------------------------------- Net cash provided by financing activities 172 514 - ---------------------------------------------------------------------------------------------------------------------------- NET INCREASE IN CASH AND CASH EQUIVALENTS 173 106 CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 143 140 - ---------------------------------------------------------------------------------------------------------------------------- CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 316 $ 246 ============================================================================================================================
See accompanying notes to financial statements. -4- 5 LaBARGE, INC. FORM 10-Q NOTES TO FINANCIAL STATEMENTS (UNAUDITED) 1. FINANCIAL STATEMENTS - BASIS OF PREPARATION The balance sheet at October 1, 1995 and the related statements of operations for the three months ended October 1, 1995 and October 2, 1994 have been prepared by LaBarge, Inc. (the "Company") without audit. In the opinion of management, adjustments of a normal and recurring nature, necessary to present fairly the financial position and the results of operations and cash flows for the aforementioned periods, have been made. Certain information and footnote disclosures normally included in financial statements prepared in conformity with generally accepted accounting principles have been condensed or omitted. These financial statements should be read in conjunction with the audited financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the fiscal year ended July 2, 1995. 2. ACCOUNTS AND NOTES RECEIVABLE Accounts and notes receivable consist of the following: (dollars in thousands)
OCTOBER 1, July 2, 1995 1995 - -------------------------------------------------------------------------------------------------------------------- Billed shipments, net of progress payments $ 6,179 $ 6,668 Unbilled costs and accrued profits, net of progress payments 748 901 - -------------------------------------------------------------------------------------------------------------------- Trade receivables - gross 6,927 7,569 Less: Allowance for doubtful accounts (178) (168) - -------------------------------------------------------------------------------------------------------------------- Trade receivables - net 6,749 7,401 Current portion of notes receivable 837 1,168 Other current receivables 430 448 - -------------------------------------------------------------------------------------------------------------------- $ 8,016 $ 9,017 ====================================================================================================================
Unbilled amounts represent revenues recognized on contracts, less applicable progress payments received, for which billings have not been presented to the customers at the balance sheet dates. Unbilled amounts are usually billed within the month following the closing date as units are delivered to the customer. Progress payments are payments from customers in accordance with contractual terms for contract costs incurred to date. Such payments are credited to the customer at the time of shipment. Notes receivable include a note from a prior divestiture of $237,000, and a note from a former officer of the Company totaling $600,000. -5- 6 Other current receivables represent amounts due from employees for travel advances and other miscellaneous sources. 3. INVENTORIES Inventories consist of the following: (dollars in thousands)
OCTOBER 1, July 2, 1995 1995 - ------------------------------------------------------------------------------------------------------------- Raw materials $ 9,233 $ 8,609 Work in process 6,067 6,181 - ------------------------------------------------------------------------------------------------------------- 15,300 14,790 Less progress payments (698) (657) - ------------------------------------------------------------------------------------------------------------- $ 14,602 $ 14,133 =============================================================================================================
In accordance with contractual agreements, the government has a security interest in inventories related to contracts for which progress payments have been received. 4. MARKETABLE SECURITIES At October 1, 1995, the Company had $250,000 in common stock of Venisect, Inc. which is valued at cost. -6- 7 5. SHORT- AND LONG-TERM OBLIGATIONS Short-term borrowings, long-term debt and the current maturities of long-term debt consist of the following: (dollars in thousands)
OCTOBER 1, July 2, 1995 1995 - --------------------------------------------------------------------------------------------------------- SHORT-TERM BORROWINGS: Revolving credit agreement: Balance at period-end $ 5,500 $ 2,500 Interest rate at period-end 10.25% 10.50% Average amount of short-term borrowings outstanding during period (rounded to nearest thousand) $ 5,292 $ 2,472 Average interest rate for period 10.38% 9.70% Maximum short-term borrowings at any month-end $ 5,700 $ 5,000 ========================================================================================================= Total short-term borrowings $ 5,500 $ 2,500 ========================================================================================================= OCTOBER 1, July 2, 1995 1995 - --------------------------------------------------------------------------------------------------------- LONG-TERM DEBT: Sanwa Business Credit Corporation: Revolving credit agreement $ - $ 2,500 Term loan 655 805 Chemical Bank term loan 893 1,071 12% Subordinated Notes 3,386 3,386 Industrial revenue bond due semiannually through 1997, interest at 8% 180 180 Other 173 195 - --------------------------------------------------------------------------------------------------------- 5,287 8,137 Less current maturities 1,510 1,670 - --------------------------------------------------------------------------------------------------------- Total long-term debt $ 3,777 $ 6,467 =========================================================================================================
The average interest rate was computed by dividing the sum of daily interest costs by the sum of the daily borrowings for the respective periods. At October 1, 1995, the Company has reclassified $2,500,000 of revolving debt from long-term to short-term due to the expiration of its loan agreement on July 3, 1996. The Company intends to negotiate a new loan agreement before this date and will again classify a portion thereof to long-term. -7- 8 6. EARNINGS PER COMMON SHARE Earnings per common share is based on the weighted average number of shares outstanding during the quarter. Also outstanding are the following common stock options: 111,000 exercisable at $.66 to $1.125; 75,000 not exercisable until August, 1996 at $1.3125 to $1.4438 per share; 20,000 not exercisable until February, 1997 at $1.3833 per share and 20,000 not exercisable until April, 1997 at $1.4205 per share. The options are not considered dilutive common stock equivalents for the purposes of the earnings per share calculation. 7. INCOME TAXES The tax benefits from the Company's net operating loss carryforwards, which will more likely than not be realized, have been recorded as an asset. As of October 1, 1995, the net value of this benefit was $3,249,562 and is reported as $758,00 in current assets and $2,492,000 in other assets. The net operating loss carryforwards as of July 2, 1995, for Federal Income Tax purposes, were $20,393,000, which are available to offset future Federal taxable income through 2003. The Company also has investment tax credit carryforwards for Federal income tax purposes of approximately $227,000 which are available to reduce future Federal income taxes through 2001. In addition, the Company has alternative minimum tax credit carryforwards of approximately $245,000 which are available to reduce future regular Federal income taxes over an indefinite period. These carryforwards are the result of losses generated by discontinued operations prior to 1987. 8. CASH FLOWS Total cash payments for interest for the three months ended October 1, 1995 were $327,000 compared to $550,000 for the three months ended October 2, 1994. -8- 9 LaBARGE, INC. FORM 10-Q MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATION AND FINANCIAL CONDITION LaBarge, Inc. engineers, manufactures, tests and sells sophisticated electronic control systems and devices and complex interconnect assemblies under contract with its customers. Markets for the Company's products are the defense electronics, telecommunications, medical equipment, aerospace, geophysical/energy and various other commercial/industrial markets. The Company employs approximately 620 people. On December 2, 1994, the Company completed the sale of the on-going business of its operation in Flippin, Arkansas to Avnet, Inc. In the transaction, Avnet purchased substantially all of the assets of the Flippin operation and the related business for approximately $10,455,000 cash and assumed liabilities of approximately $2,900,000. The proceeds from the sale were used to reduce debt. The Company continues to operate its facilities in Huntsville and Berryville, Arkansas; Tulsa, Oklahoma and Joplin, Missouri. The Company will continue, through its remaining operations, to focus on design and manufacture of high-tech electronic systems, devices and interconnect systems with special emphasis on higher value-added products. The Flippin facility manufactured cable assemblies for a variety of markets including computer products and medical equipment. Revenues for the quarter ended October 2, 1994 were approximately $4.7 million (27% of the Company total). The December, 1994 sale of the Flippin facility allowed the exchange and redemption of 15% Subordinated Notes due in May, 1997. Both transactions were part of a Company plan to strengthen its balance sheet. The Company believes the stronger balance sheet will allow it much greater flexibility to invest in growth opportunities at its other facilities. Historically, due to the lead times required in the production of the Company's defense and aerospace products, its backlog of firm, unshipped orders has always been considered important. However, as the Company has decreased its dependence on large defense contracts and increased the proportion of its sales received from non-defense customers which have much shorter lead times and demand just-in-time deliveries, the importance of backlog as a barometer of future performance has decreased. The backlog at October 1, 1995 was approximately $51.6 million compared to $52.1 million at July 2, 1995. The backlog at October 1, 1995 for the products described below consisted of approximately $30.1 million of orders for various defense products, the majority of which contain cancellation and termination provisions, and $21.5 million of orders for commercial products. Approximately $3.2 million of the total backlog is not scheduled to ship within the next 12 months pursuant to the shipment schedules contained in those contracts. -9- 10 Substantially all of the Company's contracts with the United States Government and subcontracts with prime contractors of the United States Government are firm fixed-price contracts. Under firm fixed-price contracts, work is performed and paid for at a fixed amount without adjustment for the actual costs experienced in connection with the contracts. Therefore, unless the customer actually or constructively alters or impedes the work performed, all risk of loss due to cost overruns is borne by the Company. The Company continues to pursue defense-related business. During the first quarter, the Company received additional orders on the AEGIS program totaling $5.2 million. AEGIS is the most advanced shipboard anti-aircraft and anti-missile system in the world. All work on this contract is being performed in Huntsville, Arkansas. Sales to Lockheed Martin represented approximately 34% of total Company sales for the three months ended October 1, 1995. The Company also serves the telecommunications, medical equipment, commercial aerospace, geophysical and other commercial/industrial markets. The Company has aggressively expanded its commercial business over the past several years and intends to continue to do so. Non-defense business represented approximately 36% of total Company sales for the quarter. The Company manufactures products as diverse as an audio tape player used by the vision impaired and data collection equipment used in energy production. As in the defense market, all production is completed on a contract basis. The Company has developed a portable medical laser under a contract from Venisect, Inc. The laser is used to perforate the skin to draw small amounts of blood for testing. Phase II FDA clinical trials are continuing and it is hoped approval for commercial use will be received this fiscal year. The impact on the Company's sales cannot yet be determined. -10- 11 LaBARGE, INC. FORM 10-Q MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION RESULTS OF OPERATIONS THREE MONTHS ENDED OCTOBER 1, 1995 COMPARED TO THREE MONTHS ENDED OCTOBER 2, 1994 Net sales for the three months ended October 1, 1995 were $13,361,000 compared to $17,111,000 for the three months ended October 2, 1994. Excluding Flippin's volume from 1994, the continuing business showed a sales gain of approximately 7.4% year-to-year for the three-month period. Gross profit for the three months ended October 1, 1995 was $2,039,000, 15.3% of sales, compared to $2,772,000, 16.2% of sales, for the three months ended October 2, 1994. Due to lower planned sales volume caused by the sale of the Flippin business and fixed costs involved in pursuing new business opportunities, margins are down approximately 1.1% of sales year-to-year. Selling and administrative expenses were $1,673,000, 12.5% of sales, for the three months ended October 1, 1995, compared to $2,069,000, 12.1% of sales, for the three months ended October 2, 1994. Earnings from operations for the three months ended October 1, 1995 were $365,000, 2.7% of sales, compared to $703,000, 4.1% of sales, for the three months ended October 2, 1994. Interest expense for the three months ended October 1, 1995 was $319,000, compared to $548,000 for the three months ended October 2, 1994. Lower debt levels continue to keep interest costs down. Other income was $46,000 and $33,000 for the three months ended October 1, 1995 and October 2, 1994, respectively. This is primarily accretion of a discount on a note receivable. The Company continues to have significant tax loss carryforwards which, in accordance with SFAS 109, results in $3.25 million of deferred tax assets, net of the related valuation allowance as of July 2, 1995. Income tax expense for the three months ended October 1, 1995 and October 2, 1994 was $5,500 and $11,300, respectively. Net earnings for the three months ended October 1, 1995 were $87,000 compared to $177,000 for the three months ended October 2, 1994. -11- 12 Earnings per common share were $.01 for the three months ended October 1, 1995 compared to $.01 for the three months ended October 2, 1994. FINANCIAL CONDITION & LIQUIDITY Over the last year, the Company has taken important steps to improve its financial condition. On December 2, 1994, the Company completed the sale of its operations in Flippin, Arkansas to Avnet, Inc. In the transaction, Avnet purchased the net assets of the Flippin operation and the related business for $10,455,000 and assumed liabilities of $2,900,000. The proceeds of the sale were used to reduce debt. As of October 1, 1995, $9,955,000 of the purchase price has been received and used to reduce debt. At October 1, 1995, the Company had borrowings as follows: a term loan with an initial balance of $3,500,000 payable over four years at an interest rate of prime plus 1.5% and a revolving credit facility of up to $14,500,000 which expires July 3, 1996, at prime plus 1.5% interest, both through Sanwa Business Credit. As of October 1, 1995, $655,000 was outstanding on the term loan and $5,500,000 was outstanding on the revolver. In addition, the Company now has $3,386,000 of 12% Subordinated Notes due May 15, 1998, $894,000 in notes due Chemical Bank at prime plus .5%, plus other debt totaling $352,000. Equity at October 1, 1995 was $13,406,000 or $.88 per common share. Primary sources of the cash generated in the first quarter 1996 are: net income of $87,000 adjusted for non-cash depreciation and amortization of $210,000, reduction of accounts receivable of $1,001,000 and an increase in payables of $491,000. Cash has been used to increase inventories by $469,000, and reduce accrued liabilities and other current liabilities by $487,000. This cash was used to purchase additional equipment. During the three months ended October 1, 1995, the Company increased borrowings by $172,000. -12- 13 PART II
Exhibits Page -------- ---- 3.1(f) Amendment to Certificate of Incorporation dated October 26, 1995, as filed with the State of Delaware on October 27, 1995. 15 3.1(g) Certificate Eliminating Certificate of Designation of Class A and Class B Cumulative Exchangeable Preferred Stock dated October 26, 1995, as filed with the State of Delaware on October 27, 1995. 18 3.1(h) Certificate Eliminating Certificate of Designation of Class C Cumulative Convertible Preferred Stock dated October 26, 1995, as filed with the State of Delaware on October 27, 1995. 21 3.1(i) Restated Certificate of Incorporation dated October 26, 1995, as filed with the State of Delaware on October 31, 1995. 24 3.2(a) The By-Laws of LaBarge, Inc., as amended through October 26, 1995. 30 27 Article 5 Financial Data Schedule. 41
-13- 14 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. LaBARGE, INC. ------------------------ (Registrant) Date 11/14/95 -------- William J. Maender ------------------------ William J. Maender Vice President - Finance, Treasurer and Secretary -14- EX-3.1(F) 2 AMENDMENT TO CERTIFICATE OF INCORPORATION 1 STATE OF DELAWARE OFFICE OF THE SECRETARY OF STATE -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF OCTOBER, A.D. 1995, AT 10 O'CLOCK A.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING. /s/ Edward J. Freel [SECRETARY OF STATE SEAL] ----------------------------------- Edward J. Freel, Secretary of State 0672724 8100 AUTHENTICATION: 7691214 DATE: 950248682 10-27-95 -15- 2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION LaBarge, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of said corporation, duly held on August 15, 1995, the Board of Directors adopted a resolution proposing the following amendments to the Certificate of Incorporation of said corporation, declaring said amendments to be advisable, and calling for presentation of said resolutions to the stockholders. The resolutions are as follows: RESOLVED, that the Certificate of Incorporation of this Corporation be, and the same hereby is, amended by adding a new Article TENTH thereto to read in its entirety as follows: "TENTH: As to the following matters, the affirmative vote of two-thirds (2/3's) of the shares entitled to vote shall be required to approve any proposed stockholder action which otherwise requires stockholder approval under the Delaware General Corporation Law: (a) to sell, exchange, transfer or otherwise dispose of all or substantially all of the corporation's property and assets; (b) to dissolve or liquidate the corporation; (c) to merge or consolidate the corporation with or into another corporation; or (d) to amend, alter or delete from the Certificate of Incorporation this Article TENTH or the paragraph numbered "2" of Article EIGHTH hereof." FURTHER RESOLVED, that this proposed Amendment to the Certificate of Incorporation shall be presented for vote to the stockholders of the Corporation at the Annual Meeting of Stockholders to be held October 26, 1995 with the Board's recommendation that the stockholders vote 'for' the proposed Amendment and, upon receipt of the affirmative vote of a majority of the shares entitled to vote, shall be duly adopted; and -16- 3 FURTHER RESOLVED, that the proper officers of this Corporation are hereby authorized and directed, upon approval of this Amendment by the shareholders of the Corporation, to execute and file with the Secretary of State of Delaware a Certificate of Amendment to the Certificate of Incorporation to reflect the amendment made hereby. SECOND: That thereafter, at the Annual Meeting of Stockholders of this corporation duly called and held on the 26th day of October, 1995, more than a majority of the outstanding stock entitled to vote on said amendment was voted in favor thereof. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said LaBarge, Inc. has caused this Certificate to be signed by Craig E. LaBarge, its President, and William J. Maender, its Secretary, this 26th day of October, 1995. LaBARGE, INC. Attest: William J. Maender By Craig E. LaBarge ---------------------- ------------------------ Secretary President -17- EX-3.1(G) 3 CERTIFICATE ELIMINATING CERTIFICATE/CLASS A & B 1 STATE OF DELAWARE OFFICE OF THE SECRETARY OF STATE -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF OCTOBER, A.D. 1995, AT 10:01 O'CLOCK A.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING. /s/ Edward J. Freel [SECRETARY OF STATE SEAL] ----------------------------------- Edward J. Freel, Secretary of State 0672724 8100 AUTHENTICATION: 7691290 DATE: 950248685 10-27-95 -18- 2 CERTIFICATE ELIMINATING CERTIFICATE OF DESIGNATION OF CLASS A AND CLASS B CUMULATIVE EXCHANGEABLE PREFERRED STOCK OF LABARGE, INC. FROM CERTIFICATE OF INCORPORATION LaBarge, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That on the 24th day of December, 1986, the corporation filed with the Secretary of State of the State of Delaware a "Certificate of Designation, Preferences and Rights of Class A and Class B Cumulative Exchangeable Preferred Stock of LaBarge, Inc." which Certificate was subsequently amended by a Certificate of Amendment of Certificate of Designation filed with the Delaware Secretary of State on the 24th day of August, 1989 (said Certificate and Amendment referred to collectively as the "Certificate of Designation"). SECOND: That at a meeting of the Board of Directors of said corporation duly held on October 26, 1995, the Board of Directors adopted the following resolutions for the purpose of eliminating the Certificate of Designation from the Certificate of Incorporation of the corporation: WHEREAS, there are currently no issued shares of Class A Cumulative Exchangeable Preferred Stock or Class B Cumulative Exchangeable Preferred Stock of the corporation (the "Class A and Class B Preferred") outstanding and no such shares will be issued subject to the Certificate of Designation, Preferences and Rights of Class A and Class B Cumulative Exchangeable Preferred Stock of LaBarge, Inc. as amended (the "Certificate of Designation") with respect to such Classes, and the Board of Directors desires to eliminate the Certificate of Designation from the corporation's Certificate of Incorporation; THEREFORE, IT IS RESOLVED, that no Class A or Class B Preferred shares shall be issued subject to the Certificate of Designation with respect to such Classes; FURTHER RESOLVED, that the Certificate of Designation shall be eliminated from the Certificate of Incorporation of the corporation; -19- 3 FURTHER RESOLVED, that the proper officers of this corporation are hereby authorized and directed to execute and file with the Secretary of State of the State of Delaware pursuant to Section 151(g) of the General Corporation Law of Delaware a certificate setting forth the foregoing resolutions. THIRD: That the aforesaid resolutions were duly adopted in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said LaBarge, Inc. has caused this Certificate to be signed by Craig E. LaBarge, its President and attested by William J. Maender, its Secretary, this 26 day of October, 1995. LaBARGE, INC. Attest: William Maender By Craig E. LaBarge ---------------------------- ---------------------------- Secretary President -20- EX-3.1(H) 4 CERTIFICATE ELIMINATING CERTIFICATE/CLASS C 1 STATE OF DELAWARE OFFICE OF THE SECRETARY OF STATE -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF OCTOBER, A.D. 1995, AT 10:02 O'CLOCK A.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING. /s/ Edward J. Freel [SECRETARY OF STATE SEAL] ----------------------------------- Edward J. Freel, Secretary of State 0672724 8100 AUTHENTICATION: 7691358 DATE: 950248686 10-27-95 -21- 2 CERTIFICATE ELIMINATING CERTIFICATE OF DESIGNATION OF CLASS C CUMULATIVE CONVERTIBLE PREFERRED STOCK OF LABARGE, INC. FROM CERTIFICATE OF INCORPORATION LaBarge, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That on the 25th day of August, 1989, the corporation filed with the Secretary of State of the State of Delaware a "Certificate of Designation, Preferences and Rights of Class C Cumulative Convertible Preferred Stock of LaBarge, Inc." which Certificate was subsequently amended by a Certificate of Amendment of Certificate of Designation filed with the Delaware Secretary of State on the 3rd day of April, 1992 (said Certificate and Amendment referred to collectively as the "Certificate of Designation"). SECOND: That at a meeting of the Board of Directors of said corporation duly held on October 26, 1995, the Board of Directors adopted the following resolutions for the purpose of eliminating the Certificate of Designation from the Certificate of Incorporation of the corporation: WHEREAS, there are currently no issued shares of Class C Cumulative Convertible Preferred Stock of the corporation (the "Class C Preferred") outstanding and no such shares will be issued subject to the Certificate of Designation, Preferences and Rights of Class C Cumulative Convertible Preferred Stock of LaBarge, Inc. as amended (the "Certificate of Designation") with respect to such Class, and the Board of Directors desires to eliminate the Certificate of Designation from the corporation's Certificate of Incorporation; THEREFORE, IT IS RESOLVED, that no Class C Preferred shares shall be issued subject to the Certificate of Designation with respect to such Class; FURTHER RESOLVED, that the Certificate of Designation shall be eliminated from the Certificate of Incorporation of the corporation; -22- 3 FURTHER RESOLVED, that the proper officers of this corporation are hereby authorized and directed to execute and file with the Secretary of State of the State of Delaware pursuant to Section 151(g) of the General Corporation Law of Delaware a certificate setting forth the foregoing resolutions. THIRD: That the aforesaid resolutions were duly adopted in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said LaBarge, Inc. has caused this Certificate to be signed by Craig E. LaBarge, its President and attested by William J. Maender, its Secretary, this 26 day of October, 1995. LaBARGE, INC. Attest: William J. Maender By Craig E. LaBarge -------------------------- --------------------------- Secretary President -23- EX-3.1(I) 5 RESTATED CERTIFICATE OF INCORPORATION 1 STATE OF DELAWARE OFFICE OF THE SECRETARY OF STATE -------------------------------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "LABARGE, INC.", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF OCTOBER, A.D. 1995, AT 10 O'CLOCK A.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING. /s/ Edward J. Freel [SECRETARY OF STATE SEAL] ----------------------------------- Edward J. Freel, Secretary of State 0672724 8100 AUTHENTICATION: 7694608 DATE: 950251563 10-31-95 -24- 2 RESTATED CERTIFICATE OF INCORPORATION OF LABARGE, INC. _______________ LaBarge, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (originally incorporated in the State of Delaware on February 19, 1968 under the name Interim Electronics Inc.), DOES HEREBY CERTIFY: That at a meeting of the Board of Directors of said corporation duly held on October 26, 1995, the Board of Directors adopted a Restated Certificate of Incorporation for said corporation. The Restated Certificate of Incorporation only restates and integrates and does not further amend the provisions of the corporation's Certificate of Incorporation as theretofore amended or supplemented, and there is no discrepancy between the provisions of said Certificate as amended and the provisions of the Restated Certificate of Incorporation. The Restated Certificate of Incorporation was duly adopted in accordance with the provisions of Section 245 of the General Corporation Law of the State of Delaware, and is set forth in its entirety as follows: FIRST: The name of the corporation is LaBARGE, INC. SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, in the County of New Castle, and the name of the registered agent of the corporation in the Sate of Delaware at such address is THE CORPORATION TRUST COMPANY. -25- 3 THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of common stock which the corporation shall have authority to issue is 20,000,000. The par value of each of such shares of common stock is 1c.. The total number of shares of preferred stock which the corporation shall have authority to issue is 2,000,000 shares. The par value of each such share of preferred stock is $1.00 per share. The preferred stock may be issued from time to time, in one or more series, with such designations, preferences and relative, participating, optional or other rights, qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions providing for the issue of such series adopted by the Board of Directors from time to time, pursuant to the authority hereby given. A copy of such resolution or resolutions shall be set forth in a certificate made, executed, acknowledged, filed and recorded in the manner required by the laws of the State of Delaware in order to make the same effective. Each series shall consist of such number of shares as shall be stated and expressed in such resolution or resolutions providing for the issuance of the stock of such series. All shares of any one series of preferred stock shall be alike in every particular. So long as any Class A and Class B Cumulative Exchangeable Preferred Stock shall be issued and outstanding, it shall have the Preferences and Rights set forth on the Certificate of Designation filed with the Delaware Secretary of State on December 24, 1986. FIFTH: The name and the mailing address of the incorporator is as follows: NAME MAILING ADDRESS R. G. Dickerson 229 South State Street Dover, Delaware SIXTH: The corporation is to have perpetual existence. -26- 4 SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the corporation, including the election of the Chairman of the Board of Directors, if any, the President, the Treasurer, the Secretary, and other principal officers of the -27- 5 corporation, shall be vested in its Board of Directors. No election of directors need be by written ballot. 2. The power to make, alter, or repeal the By-Laws, and to adopt any new By-Law, except a By-Law classifying directors for election for staggered terms, shall be vested in the Board of Directors. NINTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. TENTH: As to the following matters, the affirmative vote of two-thirds (2/3's) of the shares entitled to vote shall be required to approve any proposed stockholder action which otherwise requires stockholder approval under the Delaware General Corporation Law: (a) to sell, exchange, transfer or otherwise dispose of all or substantially all of the corporation's property and assets; (b) to dissolve or liquidate the corporation; (c) to merge or consolidate the corporation with or into another corporation; or (d) to amend, alter or delete from the Certificate of Incorporation this Article TENTH or the paragraph numbered "2" of Article EIGHTH hereof. -28- 6 IN WITNESS WHEREOF, LaBarge, Inc. has caused this Restated Certificate of Incorporation to be signed by Craig E. LaBarge, its President, and attested by William J. Maender, its Secretary this 26th day of October, 1995. LaBARGE, INC. Attest: William J. Maender By Craig E. LaBarge --------------------- ---------------------------- Secretary Craig E. LaBarge, President -29- EX-3.2(A) 6 THE BY-LAWS OF LABARGE, INC. AS AMENDED 1 BYLAWS OF LaBARGE, INC. (A Delaware Corporation) (As amended through October 26, 1995) ARTICLE I STOCKHOLDERS 1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the Chairman or Vice Chairman of the Board of Directors, if any, or by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation certifying the number of shares owned by him in the corporation. If such certificate is countersigned by a transfer agent other than the corporation or its employee or by a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the General Corporation Law. Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the certificate representing such shares. The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of any lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate. 2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. In lieu thereof it shall either pay in cash the fair value of fractions of a share, as determined by the Board of Directors, to those entitled thereto or issue scrip or fractional warrants in registered or bearer form over the manual or facsimile signature of an officer of the corporation or of its agent, exchangeable as therein provided for full shares, -30- 2 but such scrip or fractional warrants shall not entitle the holder to any rights of a stockholder except as therein provided. Such scrip or fractional warrants may be issued subject to the condition that the same shall become void if not exchanged for certificates representing full shares of stock before a specified date, or subject to the condition that the shares of stock for which such scrip or fractional warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of such scrip or fractional warrants, or subject to any other conditions which the Board of Directors may determine. 3. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon. 4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to or dissent from any corporate action in writing without a meeting, or for the purpose of determining stockholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the directors may fix, in advance, a date as the record date for any such determination of stockholders. Such date shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. If no record date is fixed, the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. When a determination of stockholders of record entitled to notice of or to vote at any meeting of stockholders has been made as provided in this paragraph, such determination shall apply to any adjournment thereof; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. 5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term "share" or "shares" or "share of stock", or "shares of stock" or "stockholder" or "stockholders" refers to an outstanding share or shares of stock and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of outstanding shares of stock of any class upon which or upon whom the Certificate of Incorporation confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the Certificate of Incorporation may provide for more than one class -31- 3 or series of shares of stock, one or more of which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or a decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the Certificate of Incorporation. 6. STOCKHOLDER MEETINGS. - TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the directors. - PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors may, from time to time fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the corporation in the State of Delaware. - CALL. Annual meetings and special meetings may be called by the directors or by any officer instructed by the directors to call the meeting. - NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting, and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. If any action is proposed to be taken which would, if taken, entitle stockholders to receive payment for their shares of stock, the notice shall include a statement of that purpose and to that effect. Except as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who submits a written waiver of notice by him before or after the time stated therein. Attendance of a person at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not -32- 4 lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice. - STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or other municipality or community where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of stockholders. - CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting: The Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President, a Vice President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting. - PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. - INSPECTORS AND JUDGES. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election or judges of the vote, as the case may be, to act at the meeting or any adjournment thereof. If an inspector or inspectors or judge or judges are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors or judges. In case any person who may be appointed as a inspector or judge fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector or judge, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector or judge at such meeting with strict impartiality and -33- 5 according to the best of his ability. The inspectors or judges, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, 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 stockholders. On request of the person presiding at the meeting, the inspector or inspectors or judge or judges, if any, shall make a report in writing of any challenge, question or matter determined by him or them and execute a certificate of any fact found by him or them. - QUORUM. The holders of a majority of the outstanding shares of stock shall constitute a quorum at a meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum. - VOTING. Each share of stock shall entitle the holder thereof to one vote. In the election of directors, a plurality of the votes cast shall elect. Any other action shall be authorized by a majority of the votes cast except where the General Corporation Law, the Certificate of Incorporation or these Bylaws prescribes a different percentage of votes and/or a different exercise of voting power. In the election of directors, voting need not be by ballot. Voting by ballot shall not be required for any other corporate action except as otherwise provided by the General Corporation Law. - STOCKHOLDER ACTION WITHOUT MEETINGS. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if all of the stockholders who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such corporate action being taken; or if less than all of said stockholders, but not less than those having at least the minimum voting power required to take corporate action under the provisions of the General Corporation Law, the Certificate of Incorporation or these Bylaws, shall consent in writing to such corporate action; provided that prompt notice be given to all stockholders of the taking of such action without a meeting and by less than unanimous written consent. ARTICLE II DIRECTORS 1. FUNCTIONS AND DEFINITION. The business of the corporation shall be managed by the Board of Directors of the corporation. The use of the phrase "whole board" herein refers to the total number of directors which the corporation would have if there were no vacancies. 2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The initial Board of Directors shall consist of eight persons. Thereafter the number of directors constituting the -34- 6 whole board shall be at least three, except that, where all the shares of stock of the corporation are owned beneficially and of record by less than three stockholders, the number of directors may be less than three but not less than the number of such stockholders. Subject to the foregoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the directors, or, if the number is not fixed, the number shall be three. The number of directors may be increased or decreased by action of the directors. 3. ELECTION AND TERM. The directors shall be divided into three classes: Class A, Class B and Class C. Such classes shall be as nearly equal in number as possible. The term of office of the initial Class A directors shall expire at the Annual Meeting of Stockholders in 1996; the term of office of the initial Class B directors shall expire at the Annual Meeting of Stockholders in 1997; and the term of office of the initial Class C directors shall expire at the Annual Meeting of Stockholders in 1998, or thereafter in each case when their respective successors are elected and have qualified. At each annual election held after classification and the initial election of directors according to classes, the directors chosen to succeed those whose terms then expire shall be identified as being of the same class as the directors they succeed and shall be elected for a term expiring at the third succeeding annual meeting or thereafter when their respective successors in each case are elected and have qualified. If the number of directors is changed, any increase or decrease in directors shall be apportioned among the classes so as to maintain all classes in nearly equal in number as possible and any individual director elected to any class shall hold office for a term which shall coincide with the term of such class. If the office of any director becomes vacant at any time by reason of death, resignation, retirement, disqualification, removal from office or otherwise, or if any new directorship is created by any increase in the authorized number of directors, a majority of the directors then in office, although less than a quorum, or the sole remaining director, may choose a successor or fill the vacancy or the newly created directorship, and the director so chosen shall hold office, subject to the provisions of these Bylaws, until the expiration of the term of the class to which he has been chosen and until his successor shall be duly elected and qualified. 4. MEETINGS. - TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. - PLACE. Meetings may be held at such place within or without the State of Delaware as shall be fixed by the Board or in the call of the meeting. Meetings may be held, and members may be present at any meeting, by long distance or conference telephone connection. - CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice Chairman of the Board, if any, of the President, or of a majority of the directors in office. -35- 7 - NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors. The notice of any meeting need not specify the purpose of the meeting. Any requirement of furnishing a notice shall be waived by any director who participates therein or signs a written waiver of such notice before or after the time stated therein. - QUORUM AND ACTION. One-third of the whole Board, but not less than two members, shall constitute a quorum except for filling a vacancy or vacancies as provided in Article II, Section 3. A majority of the directors present, whether or not a quorum exists, may adjourn a meeting to another time and place. Except as otherwise provided by the General Corporation Law, the Board shall act by vote of a majority of the directors present at a meeting, a quorum existing. - CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall preside. 5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed for cause by the stockholders or the Board of Directors. 6. COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. 7. ACTION IN WRITING. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. -36- 8 ARTICLE III OFFICERS 1. OFFICERS SHALL BE CHOSEN BY DIRECTORS. The officers of the corporation shall be elected by the Board of Directors and shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. The Board of Directors may also elect a Chairman of the Board of Directors, a Vice Chairman thereof, one or more Executive Vice Presidents, a Controller, and one or more Assistant Secretaries and Assistant Treasurers; two or more offices may be held by the same person. 2. ELECTION AT DIRECTORS' ORGANIZATION MEETING. The Board of Directors at its first meeting and thereafter annually shall elect a President, a Vice President, a Secretary and a Treasurer. 3. APPOINTMENT OF OTHER OFFICERS. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. 4. COMPENSATION. The salaries of all officers of the corporation shall be fixed by the Board of Directors. 5. TENURE. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed for cause or without cause at any time by the affirmative vote of a majority of the members of the Board of Directors. Any officer may resign at any time upon written notice. Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors. 6. CHIEF EXECUTIVE OFFICER. The powers of the Chief Executive Officer of the corporation shall be vested in the President, unless the Chairman of the Board has previously been designated by the Board of Directors to be the Chief Executive Officer of the corporation. If the powers of the Chief Executive Officer shall be vested solely in the Chairman of the Board, the President shall be subordinate only to the Chairman of the Board and shall be the Chief Operating Officer of the corporation and shall be in charge of, and exercise general supervisory control over, all operational phases and departments of the corporation. In general, the Chief Executive Officer shall perform all duties usually vested in the Chief Executive Officer of a corporation and such other duties as may be prescribed from time to time by the Board of Directors. The President shall preside at all meetings of the stockholders and of the Board of Directors, unless there shall be a Chairman of the Board, in which case the President shall preside in the absence or with the consent of the Chairman of the Board. 7. VICE PRESIDENT. A Vice President shall have such powers and perform such duties as may be assigned to him by the Board of Directors or the Chief Executive Officer of -37- 9 the corporation. In the absence or disability of the Chief Executive Officer of the corporation and the President, the Vice President, if only one, and if more than one, a Vice President designated by the Board of Directors or the Chief Executive Officer of the corporation shall perform the duties and exercise the powers of the Chief Executive Officer. A Vice President may sign and execute contracts and other obligations pertaining to the regular course of his duties. 8. SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer of the corporation, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. The Secretary may sign and execute contracts and other obligations pertaining to the regular course of his duties. 9. ASSISTANT SECRETARIES. An Assistant Secretary shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer of the corporation may from time to time prescribe. 10. TREASURER. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer of the corporation and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, the Treasurer shall give the corporation a bond, in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 11. ASSISTANT TREASURER. An Assistant Treasurer shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer of the corporation may from time to time prescribe. -38- 10 12. DELEGATION OF POWER. In case of absence of any officer of the corporation or for any other reason that the Board of Directors may deem sufficient, the Board may delegate the powers or duties of such officer to any other officer or to any director for the time being, provided a majority of the entire Board concurs therein. ARTICLE IV CORPORATE SEAL The corporate seal shall be in such form as the Board of Directors shall prescribe. ARTICLE V FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors. ARTICLE VI AMENDMENTS These Bylaws may be made, altered, amended or repealed, subject to the provisions of the Certificate of Incorporation, at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such making, alteration, amendment or repeal be contained in the notice of such special meeting; provided, however, that any Bylaw, other than an original Bylaw, which provides for the election of directors by classes for staggered terms shall be adopted by the stockholders. Notwithstanding the foregoing, any amendment of Article II hereof shall require the affirmative vote of a majority of the members of the Board of Directors or of holders of two-thirds (2/3s) of the outstanding shares entitled to vote. ARTICLE VII INDEMNIFICATION 1. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of this corporation, (not including any predecessor corporation), or is or was serving at the request of this corporation (not including any predecessor corporation) as a director, officer, employee or -39- 11 agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of this corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of this corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. 2. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of this corporation (not including any predecessor corporation), or is or was serving at the request of this corporation (not including any predecessor corporation), as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. 3. The indemnification provided by this Bylaw shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. -40- EX-27 7 FINANCIAL DATA SCHEDULE
5 1,000 3-MOS JUL-02-1995 OCT-01-1995 316 250 6,927 (178) 14,602 24,274 11,340 (8,393) 31,877 14,694 0 153 0 0 13,253 31,877 13,361 13,361 11,322 12,995 46 0 319 93 6 87 0 0 0 87 .01 .01
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