-----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, IRXVj8LiSsRQ8v5jQYJ7yx17Ot0aALxt5V8MvFBlJDmlRTRsCxdAyPyFLRVpb+ad 6pv/RwId2uxvus2Hu9L4pQ== 0000882184-97-000012.txt : 19970515 0000882184-97-000012.hdr.sgml : 19970515 ACCESSION NUMBER: 0000882184-97-000012 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19970331 FILED AS OF DATE: 19970514 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HORTON D R INC /DE/ CENTRAL INDEX KEY: 0000882184 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 752386963 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-14122 FILM NUMBER: 97603577 BUSINESS ADDRESS: STREET 1: 1901 ASCENSION BLVD STREET 2: STE 100 CITY: ARLINGTON STATE: TX ZIP: 76006 BUSINESS PHONE: 8178568200 10-Q 1 FORM 10-Q QUARTERLY REPORT FOR D.R. HORTON, INC. FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D. C. (Mark One) x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES --- EXCHANGE ACT OF 1934 For the Quarterly Period Ended March 31, 1997 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 1-14112 D.R. HORTON, INC. ----------------- (Exact name of registrant as specified in its charter) DELAWARE 75-2386963 -------- ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1901 Ascension Blvd., Suite 100, Arlington, Texas 76006 ------------------------------------------------- ----- (Address of principal executive offices) (Zip Code) (817) 856-8200 -------------- (Registrant's telephone number, including area code) ---------------------------------------------------- (Former name, address and 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 APPLICABLE ONLY TO CORPORATE ISSUERS: Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. Common stock, $.01 par value -- 37,222,841 shares as of May 13, 1997 INDEX D.R. HORTON, INC. PART I.FINANCIAL INFORMATION. Page Item 1.Financial Statements. Consolidated Balance Sheets--March 31, 1997 and September 30, 1996. 3 Consolidated Statements of Income--Three Months Ended March 31, 1997 and 1996; and Six Months Ended March 31, 1997 and 1996. 4 Consolidated Statement of Stockholders' Equity--Six Months Ended March 31, 1997. 5 Consolidated Statements of Cash Flows--Three Months Ended March 31, 1997 and 1996; Six Months Ended March 31, 1997 and 1996. 6 Notes to Consolidated Financial Statements. 7-8 Item 2.Management's Discussion and Analysis of Results of Operations and Financial Condition. 9-12 PART II. OTHER INFORMATION. Item 6.Exhibits and Reports on Form 8-K. 13 SIGNATURES. 14 D.R. HORTON, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS March 31, September 30, 1997 1996 ---- ---- (In thousands) (Unaudited) ASSETS Cash $26,814 $32,467 Inventories: Finished homes and construction in progress 348,148 216,264 Residential lots - developed and under development 191,984 127,707 Land held for development 1,312 1,312 ----- ----- 541,444 345,283 Property and equipment (net) 11,852 5,631 Earnest money deposits and other assets 26,196 15,247 Excess of cost over net assets acquired (net) 28,303 4,285 ------ ----- $634,609 $402,913 ======== ======== LIABILITIES Accounts payable $52,931 $34,391 Accrued expenses and customer deposits 26,164 21,011 Notes payable 318,550 169,873 ------- ------- 397,645 225,275 STOCKHOLDERS' EQUITY Preferred stock, $.10 par value, 30,000,000 shares authorized, no shares issued. - - Common stock, $.01 par value, 100,000,000 shares authorized, 36,839,791 at March 31, 1997 and 32,362,036 at September 30, 1996, issued and outstanding. 368 324 Additional capital 206,147 159,714 Retained earnings 30,449 17,600 ------ ------ 236,964 177,638 ------- ------- $634,609 $402,913 ======== ======== See accompanying notes to consolidated financial statements. -3- D. R. HORTON, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME Three Months Six Months Ended March 31, Ended March 31, --------------- --------------- 1997 1996 1997 1996 ---- ---- ---- ---- (In thousands, except net income per share) (Unaudited) Revenues $159,596 $114,042 $303,977 $235,110 Cost of sales 129,792 93,867 247,828 193,402 ------- ------ ------- ------- 29,804 20,175 56,149 41,708 Selling, general and administrative expense 18,794 12,060 33,911 24,573 ------ ------ ------ ------ Operating income 11,010 8,115 22,238 17,135 Other: Interest expense (816) (272) (1,600) (941) Other income 408 223 1,122 597 --- --- ----- --- (408) (49) (478) (344) ---- --- ---- ---- INCOME BEFORE INCOME TAXES 10,602 8,066 21,760 16,791 Provision for income taxes 3,911 2,944 8,263 6,254 ----- ----- ----- ----- NET INCOME $6,691 $5,122 $13,497 $10,537 ====== ====== ======= ======= Net income per share $0.20 $0.16 $0.40 $0.35 ===== ===== ===== ===== Weighted average number of shares of common stock and common stock equivalents outstanding 34,279 31,517 33,635 29,874 ====== ====== ====== ====== See accompanying notes to consolidated financial statements. -4- D. R. HORTON, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY Total Common Additional Retained Stockholders' Stock Capital Earnings Equity ----- ------- -------- ------ (In thousands) (Unaudited) Balances at October 1, 1996 $324 $159,714 $17,600 $177,638 Net income - - 13,497 13,497 Sale of 3,500,000 shares of common stock and issuance of 844,444 shares as partial consideration for acquisition 43 45,510 - 45,553 Stock issuance under employee benefit plans - 134 - 134 Exercise of stock options 1 789 - 790 Cash dividends paid - - (648) (648) ------------------------------------------ Balances at March 31, 1997 $368 $206,147 $30,449 $236,964 ========================================== See accompanying notes to consolidated financial statements. -5- D. R. HORTON, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS Six Months Ended March 31, --------------- 1997 1996 ---- ---- (In thousands) (Unaudited) OPERATING ACTIVITIES Net income $13,497 $10,537 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 1,651 1,408 Expense associated with issuance of stock under employee benefit plans 100 90 Changes in operating assets and liabilities: Increase in inventories (110,078) (36,428) Increase in earnest money deposits and other assets (7,534) (164) Increase in accounts payable, accrued expenses and customer deposits 13,951 942 ------ --- NET CASH USED IN OPERATING ACTIVITIES (88,413) (23,615) ------- ------- INVESTING ACTIVITIES Purchase of property and equipment (3,778) (1,819) Net cash paid for acquisitions (44,560) (580) ------- ---- NET CASH USED IN INVESTING ACTIVITIES (48,338) (2,399) ------- ------ FINANCING ACTIVITIES Proceeds from notes payable 160,157 51,093 Repayment of notes payable (65,605) (63,721) Issuance of common stock 36,403 43,260 Proceeds from issuance of stock under employee benefit plans 791 543 Cash dividends paid (648) - ------- ------ NET CASH PROVIDED BY FINANCING ACTIVITIES 131,098 31,175 ------- ------ INCREASE (DECREASE) IN CASH (5,653) 5,161 Cash at beginning of period 32,467 16,737 ------ ------ Cash at end of period $26,814 $21,898 ======= ======= Supplemental cash flow information: Interest paid $8,130 $7,429 ====== ====== Income taxes paid $10,920 $7,270 ======= ====== See accompanying notes to consolidated financial statements. -6- D.R. HORTON, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) March 31, 1997 NOTE A - BASIS OF PRESENTATION The accompanying unaudited, consolidated financial statements include the accounts of the D.R. Horton, Inc. (the "Company") and its subsidiaries. Intercompany accounts and transactions have been eliminated in consolidation. The statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments (consisting only of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the three and six month periods ended March 31, 1997, are not necessarily indicative of the results that may be expected for the year ending September 30, 1997. NOTE B - NET INCOME PER SHARE Net income per share for the three and six month periods ended March 31, 1997 and 1996, is based on the weighted average number of shares of common stock and dilutive common stock equivalents outstanding. On April 23, 1996, the Board of Directors declared an eight percent stock dividend on the Company's common stock, which was paid on May 24, 1996, to stockholders of record on May 8, 1996. Earnings per share and weighted average shares outstanding for the three and six month periods ended March 31, 1996, have been restated to reflect the eight percent stock dividend. NOTE C - PROVISIONS FOR INCOME TAXES Deferred tax liabilities and assets, arising from temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, consist primarily of differences in depreciation, warranty costs and inventory cost capitalization methods and were, as of March 31, 1997, not significant. The provisions for income tax expense for the three and six month periods ended March 31, 1997 and 1996, are based on the effective tax rates estimated to be in effect for the respective years. The deferred income tax provisions were not significant in either period. The difference between income tax expense and tax computed by applying the statutory Federal income tax rate to income before income taxes is due primarily to the effect of applicable state income taxes. NOTE D - INTEREST Three months ended Six months ended March 31, March 31, --------- --------- 1997 1996 1997 1996 ---- ---- ---- ---- (In thousands) Capitalized interest, beginning of period $12,073 $8,343 $11,042 $7,118 Interest incurred 5,139 3,674 9,011 7,554 Interest expensed: Directly (816) (272) (1,600) (941) Amortized to cost of sales (2,270) (1,890) (4,327) (3,876) ------ ------ ------ ------ Capitalized interest, end of period $14,126 $9,855 $14,126 $9,855 ======= ====== ======= ====== -7- D.R. HORTON, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (Continued) March 31, 1997 NOTE E - CAPITALIZATION On March 14, 1997, the Company completed the sale of 3,500,000 additional shares of common stock. The net proceeds of $36.4 million, were used to retire debt and for general corporate purposes. On January 20 and April 17, 1997, the Company's Board of Directors declared cash dividends of $.02 per common share. NOTE F - ACQUISITIONS In October, 1996, the Company completed the acquisition of the principal assets (approximately $7.7 million, primarily inventories) of Trimark Communities, L.L.C., of Denver, Colorado, for $6.8 million in cash and the assumption of approximately $1.0 million in trade accounts and notes payable associated with the acquired assets. In December, 1996, the Company purchased the principal assets (approximately $19.5 million, primarily inventories) of SGS Communities, Inc., of New Jersey, for $10.6 million in cash and the assumption of $10.1 million in trade accounts and notes payable associated with the acquired assets. In February, 1997, the Company completed the acquisition of all of the outstanding capital stock of the entities comprising the Torrey Group of Atlanta, Georgia for $36.9 million in cash, 844,444 newly issued shares of the Company's common stock, valued at $9.2 million, and a contingent payment estimated at $1 million. The estimated market value of the assets acquired, less liabilities assumed, amounts to $24.4 million. At May 13, 1997, the final determination of the valuations of the acquired companies had not been completed. Any subsequent adjustments to the beginning balance sheet valuation amounts estimated herein will be recorded in future periods as adjustments to the excess of cost over net assets acquired and amortized over 20 years. The following unaudited pro forma combined financial data give effect to the Torrey acquisition as if it had occurred on the first day of each period presented. The pro forma information has been prepared utilizing the historical consolidated financial statements of the Company and Torrey. It does not include any adjustments for anticipated cost savings expected to be achieved as a result of the acquisition. The pro forma information should be read in conjunction with the historical financial statements and notes thereto. The pro forma financial data is provided for comparative purposes only and are not necessarily indicative of the results which would have been obtained if the Torrey acquisition had been effected during the periods presented. The pro forma financial information is based upon the purchase method of accounting. Periods ended March 31, 1997 --------------------------- Three Six months months ------ ------ (In thousands, except for net income per share) Total revenues $177,066 $383,821 Net income 5,853 13,666 Net income per share $0.17 $0.40 -8- Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION RESULTS OF OPERATIONS The following tables set forth certain operating and financial data for the Company: Percentages of Revenue ---------------------- Three Six Months Ended Months Ended March 31, March 31, ------------ ------------ 1997 1996 1997 1996 ---- ---- ---- ---- Costs and expenses: Cost of sales 81.3 % 82.3 % 81.5 % 82.3 % Selling, general and administrative expense 11.8 10.6 11.2 10.4 Interest expense 0.5 0.2 0.5 0.4 --- --- --- --- Total costs and expenses 93.6 93.1 93.2 93.1 Other (income) (0.3) (0.2) (0.3) (0.3) ---- ---- ---- ---- Income before income taxes 6.7 7.1 7.1 7.2 Income taxes 2.5 2.6 2.7 2.7 --- --- --- --- Net income 4.2 % 4.5 % 4.4 % 4.5 % === === === ===
New sales contracts, net Homes in of cancellations Home closings sales backlog -------------------------- ---------------------------- ----------------- Three Six Three Six Months Ended Months Ended Months Ended Months Ended As of March 31, March 31, March 31, March 31, March 31, --------- --------- --------- --------- --------- 1997 1996 1997 1996 1997 1996 1997 1996 1997 1996 ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- Mid-Atlantic (New Jersey, North and South Carolina, Washington, D.C 192 165 300 278 151 134 267 271 361 205 Midwest (Illinois, Kansas, Minnesota, Missouri, Ohio) 140 162 229 273 106 63 211 135 202 252 Southeast (Alabama, Florida, Georgia) Tennessee) 298 149 398 256 241 106 371 246 407 200 Southwest (Arizona, New Mexico, Texas) 339 363 604 630 270 293 603 601 490 446 West (California, Colorado, Nevada, Utah) 312 189 501 290 202 102 373 176 381 195 --- --- --- --- --- --- --- --- --- --- Totals 1,281 1,028 2,032 1,727 970 698 1,825 1,429 1,841 1,298 ===== ===== ===== ===== === === ===== ===== ===== =====
-9- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Three Months Ended March 31, 1997 Compared to Three Months Ended March 31, 1996 Revenues for the three months ended March 31, 1997, increased by 39.9%, to $159.6 million, from $114.0 million in the comparable period of 1996. The number of homes closed by the Company increased by 39.0%, to 970 homes in the three months ended March 31, 1997, from 698 in the same period of 1996. Percentage increases in revenues ranging from 19.5% to 105.3% were achieved in four of the Company's five market regions, with a 3.5% decline in the Southwest region. The increases in both revenues and home closings were due in part to the results achieved by the Torrey Group, the acquisition of which was consummated in February, 1997. In the three months ended March 31, 1997, the Torrey Group provided $24.1 million in revenues, closing 170 homes. The average selling price of homes closed in the three months ended March 31, 1997, was $164,200, essentially unchanged from $163,800 in the same period of 1996. The increase in average sales price was attributable to differences in the geographic mix of markets in which homes were closed. New net sales contracts increased 24.6%, to 1,281 homes for the three months ended March 31, 1997, from 1,028 homes for the three months ended March 31, 1996. The Torrey Group had 191 new net home sales during the current period. Excluding them, new net sales contracts amounted to 1,090 homes in the current three-month period, a 6.0% increase over 1996. The Company was operating in 272 subdivisions at March 31, 1997, compared to 174 subdivisions at March 31, 1996. At March 31, 1997, the Company's backlog of sales contracts was 1,841 homes, a 41.8% increase over comparable figures at March 31, 1996. The backlog of sales contracts held by the Torrey Group amounted to 343. Without them, the backlog would have been 1,498 homes, an increase of 15.4%. The average sales value of homes in backlog increased by 1.3%, to $176,200 at March 31, 1997, from $174,000 at March 31, 1996. Cost of sales increased by 38.3%, to $129.8 million in the three months ended March 31, 1997, from $93.9 million in the comparable period of 1996. The increase was primarily attributable to the increase in revenues. As a percentage of revenues, cost of sales decreased to 81.3% in 1997 from 82.3% in 1996, as the Company was able to increase sales prices while controlling costs. Selling, general and administrative (SG&A) expense increased by 55.8%, to $18.8 million in the three months ended March 31, 1997, from $12.1 million in the comparable period of 1996. As a percentage of revenues, SG&A expense increased 1.2%, to 11.8% in 1997, from 10.6% in 1996. The increase in SG&A expenses as a percentage of revenues was primarily due to costs associated with consummating the new acquisitions and integrating their operations into the Company's. Costs associated with converting beginning sales backlog to revenues at a slower rate than the Company has experienced in the past also caused an increase in SG&A expenses as a percentage of revenues. Interest expense totalled $0.8 million in the three months ended March 31, 1997, compared to $0.3 million in the comparable period of 1996. The Company follows a policy of capitalizing interest only on inventory under construction or development. During the three months ended March 31, 1997 and 1996, the Company expensed a portion of incurred interest and other financing costs due to increased levels of developed lots and finished homes. Capitalized interest and other financing costs are included in cost of sales at the time of home closings. Other income, which consists mainly of interest income, the pre-tax earnings of the DRH Title Companies, and, in the 1997 period, pre-tax earnings of DRH Mortgage Company, Ltd., increased to $408,000 in the three months ended March 31, 1997, from $223,000 for the same period of 1996. The provision for income taxes was $3.9 million in the three months ended March 31, 1997, up $1.0 million from the $2.9 million for the comparable quarter of 1996. The increase in income taxes was primarily attributable to the increase in income before income taxes. -10- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Six Months Ended March 31, 1997 Compared to Six Months Ended March 31, 1996 Revenues for the six months ended March 31, 1997, increased by 29.3%, to $304.0 million, from $235.1 million in the comparable period of 1996. The number of homes closed by the Company increased by 27.7%, to 1,825 in the six months ended March 31, 1997, from 1,429 in the same period of 1996. Percentage increases in revenues ranging from 2.4% to 115.4% were achieved in each of the Company's market regions. The Torrey Group of companies was acquired during the six months ended March 31, 1997, and provided $24.1 million in revenues, closing 170 homes. Excluding them, revenues increased 19.0%, to $279.9 million (1,655 homes) in the current six-month period. There was a 1.0% increase in the average selling price of homes closed, to $166,300 in the six months ended March 31, 1997, from $164,700 in the same period of 1996. The increase in average sales price was attributable to differences in the geographic mix of markets in which homes were closed. The dollar amount of new net sales contracts increased 17.9%, to $342.1 million (2,032 homes) for the six months ended March 31, 1997, from $290.3 million (1,727 homes) for the comparable period of 1996. New net sales for the Torrey Group during the current six-month period amounted to $27.7 million (191 homes). Net of their effect, the dollar value of new net sales contracts increased by 8.3%, to $314.4 million (1,841 homes) in the six months ended March 31, 1997. Cost of sales increased by 28.1%, to $247.8 million in the six months ended March 31, 1997, from $193.4 million in the comparable period of 1996. The increase was primarily attributable to the increase in revenues. Cost of sales as a percentage of revenues decreased to 81.5% in 1997 from 82.3% in 1996. Selling, general and administrative (SG&A) expense increased by 38.0%, to $33.9 million in the six months ended March 31, 1997, from $24.6 million in the comparable period of 1996. As a percentage of revenues, SG&A expense increased to 11.2% for the six months ended March 31, 1997, from 10.4% for the same period of 1996. The increase in SG&A expenses as a percentage of revenues is due primarily to the costs associated with consummating the new acquisitions and integrating their operations into the Company's. Interest expense during the six months ended March 31, 1997 amounted to $1.6 million, compared to $0.9 million in the comparable period of 1996. The Company follows a policy of capitalizing interest only on inventory under construction or development. During the six months ended March 31, 1997 and 1996, the Company expensed a portion of incurred interest and other financing costs due to increased levels of developed lots and finished homes. Capitalized interest and other financing costs are included in cost of sales at the time of home closings. Other income, which consists mainly of interest income, pre-tax earnings of the DRH Title Companies and, in the 1997 period, pre-tax earnings of DRH Mortgage Co., Ltd., increased to $1,122,000 in the six months ended March 31, 1997, from $597,000 in the same period of 1996. The provision for income taxes increased by 32.1%, to $8.3 million in the six months ended March 31, 1997, from $6.3 million in the comparable period of 1996, due primarily to the increase in income before income taxes. FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES At March 31, 1997, the Company had available cash and cash equivalents of $26.8 million. Inventories (including finished homes, construction in progress, and developed residential lots and other land) at March 31, 1997, increased by $196.2 million from September 30, 1996, due to the acquisitions of the assets (primarily inventories) of Trimark and SGS and the purchase of Torrey. Inventories also increased due to a general increase in business activity and the expansion of operations in the newer market areas. The inventory increase and the acquisitions were financed by borrowing and $36.4 million raised from the public sale of 3.5 million shares of the Company's common stock. As a result of the acquisitions and inventory growth, -11- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS the Company's ratio of notes payable to total capital increased to 57.3% at March 31, 1997, from 48.9% at September 30, 1996. The stockholders' equity to total assets ratio was 37.3% at March 31, 1997, compared to the September 30, 1996 level of 44.1%. In February, 1997, the Company increased and restructured its major unsecured bank credit facility, to a total of $400 million. The restructured facility consists of a $100 million four-year term loan, a $275 million three-year revolving loan, and a $25 million three-year letter of credit facility. The restructured facility, along with other unsecured bank credit facilities, brings the Company's total borrowing capacity to $400 million. At March 31, 1997, the Company had outstanding debt of $318.6 million, of which $308.1 million represented advances under existing bank credit facilities. On January 20, 1997, the Company's Board of Directors declared a cash dividend of $.02 per common share, payable on February 13, 1997, to stockholders of record on January 31, 1997. On April 17, 1997, the Company's Board of Directors declared an additional cash dividend of $.02 per common share, payable on May 15, 1997, to stockholders of record on April 30, 1997. The Company has made three acquisitions during fiscal 1997. In October, 1996, the Company completed the acquisition of the principal assets (approximately $7.7 million, primarily inventories) of Trimark for $6.8 million in cash and the assumption of approximately $1.0 million in trade accounts and notes payable associated with the acquired assets. In December, 1996, the Company purchased the principal assets (approximately $19.5 million, primarily inventories) of SGS for $10.6 million in cash and the assumption of $10.1 million in trade accounts and notes payable associated with the acquired assets. In February, 1997, the Company completed the acquisition of all of the outstanding capital stock of the entities comprising Torrey. The Company paid consideration consisting of $36.9 million in cash and 844,444 newly issued, restricted shares of the Company's common stock, valued at $9.2 million, and agreed to a contingent payment estimated at $1 million. Estimated market values of the net assets acquired in the Torrey acquisition total $24.4 million. The Company's rapid growth and acquisition strategy require significant amounts of cash. It is anticipated that future home construction, lot and land purchases and acquisitions will be funded through internally generated funds and new and existing borrowing relationships. In the near future, the Company anticipates filing a shelf registration statement for debt securities and common and preferred stock aggregating $250 million. Market conditions will determine when and whether the Company sells any securities using this registration statement. Also, the Company has negotiated a revised bank credit facility aggregating $625 million that is scheduled to be completed in mid-June, 1997. There are no assurances that the Company will sell securities using the shelf registration or that it will consummate the proposed, revised bank credit facility. Except for ordinary expenditures for the construction of homes, the acquisition of land and lots for development and sale of homes, at March 31, 1997, the Company had no material commitments for capital expenditures. -12- PART II. OTHER INFORMATION. ITEM 1-3. Inapplicable. ITEM 4. Submission of Matters to a Vote of Security Holders. On January 23, 1997, the Company held its Annual Meeting of Stockholders (the "Annual Meeting"). At the Annual Meeting, the stockholders re-elected all nine members of the Board of Directors of the Company to serve until the Company's next annual meeting of stockholders and until their respective successors are elected and qualified. The names of the nine directors, the votes cast for and against their re-election, the number of votes withheld, the number of abstentions and the number of non-votes were as follows:
Name Votes For Votes Against Votes Withheld Abstentions Non-Votes Richard Beckwitt 21,983,493 0 10,285,830 92,713 0 Richard I. Galland 21,975,467 0 10,285,830 100,739 0 Donald R. Horton 21,990,829 0 10,285,830 85,377 0 Richard L. Horton 21,987,113 0 10,285,830 89,093 0 Terrill J. Horton 21,987,113 0 10,285,830 89,093 0 David J. Keller 21,987,113 0 10,285,830 89,093 0 Francine I. Neff 21,982,103 0 10,285,830 94,103 0 Scott J. Stone 21,987,113 0 10,285,830 89,093 0 Donald J. Tomnitz 21,987,113 0 10,285,830 89,093 0
ITEM 5. Inapplicable. ITEM 6. Exhibits and Reports on Form 8-K. (a) Exhibits. 3.1 Amended and Restated Bylaws of the Company, amended as of January 23, 1997. 27 Financial Data Schedule (b) Reports on Form 8-K. The registrant filed a Current Report on Form 8-K dated March 13, 1997. -13- SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. D.R. HORTON, INC. Date: May 14, 1997 By David J. Keller, on behalf of D.R. Horton, Inc. and as Executive Vice President, Treasurer and Chief Financial Officer (Principal Financial and Accounting Officer) EX-3.1 2 AMENDED AND RESTATED BYLAWS D.R. HORTON, INC. AMENDED AND RESTATED BYLAWS Table of Contents Page ARTICLE I - MEETINGS OF STOCKHOLDERS Section 1. Time and Place of Meetings . . . . . . . . . . 1 Section 2. Annual Meeting . . . . . . . . . . . . . . . . 1 Section 3. Special Meetings . . . . . . . . . . . . . . . 2 Section 4. Notice of Meetings . . . . . . . . . . . . . . 2 Section 5. Quorum . . . . . . . . . . . . . . . . . . . . 3 Section 6. Voting . . . . . . . . . . . . . . . . . . . . 3 ARTICLE II - DIRECTORS Section 1. Powers .........................................3 Section 2. Number and Term of Office ......................4 Section 3. Election, Term of Office and Nomination.........4 Section 4. Vacancies and New Directorships.................5 Section 5. Regular Meetings................................5 Section 6. Special Meetings ...............................5 Section 7. Quorum..........................................6 Section 8. Written Action..................................6 Section 9. Participation in Meetings by Conference Telephone............................6 Section 10. Committees......................................6 Section 11. Compensation....................................7 Section 12. Rules...........................................7 ARTICLE III - NOTICES Section 1. Generally.......................................7 Section 2. Waivers.........................................7 ARTICLE IV - OFFICERS Section 1. Generally.......................................8 Section 2. Compensation....................................8 Section 3. Succession......................................8 Section 4. Authority and Duties............................8 Section 5. Chairman........................................9 Section 6. President.......................................9 -i- Table of Contents (continued) Page Section 7. Execution of Documents and Action with Respect to Securities of Other Corporations....................................9 Section 8. Vice Presidents.................................9 Section 9. Secretary and Assistant Secretaries.............10 Section 10. Treasurer and Assistant Treasurers..............10 Section 11. Chief Financial Officer.........................11 Section 12. General Counsel.................................11 ARTICLE V - STOCK Section 1. Certificates....................................11 Section 2. Transfer........................................12 Section 3. Lost, Stolen or Destroyed Certificates..........12 Section 4. Record Date.....................................12 ARTICLE VI - GENERAL PROVISIONS Section 1. Fiscal Year.....................................14 Section 2. Corporate Seal..................................14 Section 3. Reliance upon Books, Reports and Records.....................................14 Section 4. Time Periods....................................14 Section 5. Dividends.......................................14 ARTICLE VII - AMENDMENTS Section 1. Amendments......................................14 -ii- D.R. HORTON, INC. AMENDED AND RESTATED BYLAWS ARTICLE I MEETINGS OF STOCKHOLDERS Section 1. Time and Place of Meetings. All meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, within or without the State of Delaware, as may be designated by the Board of Directors, or by the Chairman of the Board, the President or the Secretary in the absence of a designation by the Board of Directors, and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual Meeting. (A) An annual meeting of the stockholders, commencing with the year 1992, shall be held at such date, place and time as shall be designated from time to time by resolution of the Board of Directors, at which meeting the stockholders shall elect by a plurality vote the directors to succeed those whose terms expire and shall transact such other business as may properly be brought before the meeting. (B) At any annual meeting of stockholders, only such new business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before the meeting (i) by, or at the direction of, the Board of Directors or (ii) by any stockholder entitled to vote at such meeting. Only such new business and only such proposals as have been raised in accordance with the procedures set forth in this Section 2(B) shall be eligible for action or consideration at an annual meeting. In order for a proposal to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation as set forth in this Section 2(B). To be timely, a stockholder's notice must be delivered to, or mailed and received at, the principal executive office of the corporation not less than thirty (30) calendar days prior to the date of the originally scheduled meeting, regardless of any postponements, deferrals or -1- adjournments of that meeting to a later date; provided, however, that, if less than forty (40) calendar days' notice or prior public disclosure of the date of the scheduled meeting is given or made by the Corporation, notice by the stockholder to be timely must be so received not later than the close of business on the tenth calendar day following the earlier of the day on which such notice of the date of the scheduled meeting was mailed or the day on which such public disclosure was made. Such stockholder's notice shall set forth as to each matter the stockholder proposes to bring before the meeting (a) a description of the proposal desired to be brought before the meeting and the reasons for conducting such business at the meeting, (b) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the Corporation beneficially owned by such stockholder on the date of such stockholder's notice and (d) any financial or other interest of such stockholder in the proposal. Section 3. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law or by the Restated Certificate of Incorporation, as amended or further restated from time to time, may be called at any time by the Board of Directors or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in these bylaws, include the power to call such meetings, but such special meetings may not be called by any other person or persons. Section 4. Notice of Meetings. Written notice of every meeting of the stockholders, stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting, except as otherwise provided herein or by law. When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, written notice of the place, date and time of the adjourned meeting shall be given in conformity herewith. At -2- any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 5. Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by law or by the Restated Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. Section 6. Voting. Except as otherwise provided by law or by the Restated Certificate of Incorporation, each stockholder shall be entitled at every meeting of the stockholders to one vote for each share of stock having voting power standing in the name of such stockholder on the books of the Corporation on the record date for the meeting and such votes may be cast either in person or by written proxy. Every proxy must be duly executed and filed with the Secretary of the Corporation. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. Every vote taken by written ballot shall be counted by one or more inspectors of election appointed by the Board of Directors. When a quorum is present at any meeting, the vote of the holders of a majority of the stock which has voting power present in person or represented by proxy shall decide any question properly brought before such meeting, unless the question is one upon which by express provision of law, the Restated Certificate of Incorporation or these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. ARTICLE II DIRECTORS Section 1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of -3- Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders. Section 2. Number and Term of Office. The Board of Directors shall consist of one or more members. Subject to the provisions of the Restated Certificate of Incorporation as amended or restated from time to time, the number of directors shall be fixed by resolution of the Board of Directors or by the stockholders at the annual meeting or a special meeting. Any decrease in the authorized number of directors shall not be effective until the expiration of the term of the directors then in office, unless, at the time of such decrease, there shall be vacancies on the Board which are being eliminated by such decrease. Section 3. Election, Term of Office and Nomination. (A) Except as provided in Section 4 of this Article, the directors shall be elected at each annual meeting of stockholders, but if any such annual meeting is not held or the directors are not elected thereat, then the directors may be elected at any special meeting of stockholders held for that purpose. Each director shall hold office until a successor has been elected and qualified. (B) Only persons who are nominated in accordance with the following procedures shall be eligible for election by the stockholders as directors. Nominations of persons for election as directors of the Corporation may be made at a meeting of stockholders at which directors are being elected (i) by, or at the direction of, the Board of Directors or by, or at the direction of, any committee or person authorized or appointed for that purpose by the Board of Directors or (ii) by any stockholder of the Corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 3(B). Any nomination other than those governed by clause (i) of the preceding sentence shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a shareholder's notice shall be delivered to, or mailed and received at, the principal executive office of the Corporation not less than thirty (30) calendar days prior to the date of the originally scheduled meeting, regardless of any postponements, deferrals or adjournments of that meeting to a later date; provided, however, that, if less than forty (40) calendar days' -4- notice or prior public disclosure of the date of the scheduled meeting is given or made by the Corporation, notice by the stockholder, to be timely, must be so received not later than the close of business on the tenth calendar day following the earlier of the day on which such notice of the date of the scheduled meeting was mailed or the day on which such public disclosure was made. Such stockholder's notice to the Secretary shall set forth (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class and number of any shares of the Corporation which are beneficially owned by such person and (iv) any other information relating to such person that is required to be disclosed in solicitations for proxies for election of directors pursuant to any then existing rule or regulation promulgated under the Securities Exchange Act of 1934, as amended (whether or not then applicable to the Corporation); and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder and (ii) the class and number of shares of the Corporation which are beneficially owned by such stockholder. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee as a director. No person shall be eligible for election as a director unless nominated as set forth herein. Section 4. Vacancies and New Directorships. Vacancies and newly created directorships resulting from any increase in the authorized number of directors which occur between annual meetings of the stockholders may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so elected shall hold office until the next annual meeting of the stockholders and until their successors are elected and qualified, except as required by law. Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders and at such other time and place as shall from time to time be determined by the Board of Directors. Section 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or the President on one day's written notice to each director by whom such -5- notice is not waived, given either personally or by mail or telegram, and shall be called by the President or the Secretary in like manner and on like notice on the written request of any two directors. Section 7. Quorum. At all meetings of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time to another place, time or date, without notice other than announcement at the meeting, until a quorum shall be present. Section 8. Written Action. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes or proceedings of the Board or Committee. Section 9. Participation in Meetings by Conference Telephone. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any such committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 10. 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 one or more of the directors of the Corporation and each to have such lawfully delegable powers and duties as the Board may confer. Each such committee shall serve at the pleasure of the Board of Directors. 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. Except as otherwise provided by law, any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of -6- 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. Any committee or committees so designated by the Board shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Unless otherwise prescribed by the Board of Directors, a majority of the members of the committee shall constitute a quorum for the transaction of business, and the act of a majority of the members present at a meeting at which there is a quorum shall be the act of such committee. Each committee shall prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board of Directors, and shall keep a written record of all actions taken by it. Section 11. Compensation. The Board of Directors may establish such compensation for, and reimbursement of the expenses of, directors for attendance at meetings of the Board of Directors or committees, or for other services by directors to the Corporation, as the Board of Directors may determine. Section 12. Rules. The Board of Directors may adopt such special rules and regulations for the conduct of their meetings and the management of the affairs of the Corporation as they may deem proper, not inconsistent with law or these bylaws. ARTICLE III NOTICES Section 1. Generally. Whenever by law or under the provisions of the Restated Certificate of Incorporation or these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram, telephone or facsimile transmission. Section 2. Waivers. Whenever any notice is required to be given by law or under the provisions of the Restated Certificate of Incorporation or these bylaws, a waiver thereof in writing, signed -7- by the person or persons entitled to such notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to such notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. ARTICLE IV OFFICERS Section 1. Generally. The officers of the Corporation shall be elected by the Board of Directors and shall consist of a President, a Secretary, and a Treasurer. The President shall be a member of the Board of Directors. The Board of Directors may also choose any or all of the following: a Chairman of the Board, one or more Divisional Presidents, Vice Presidents, Senior Vice Presidents, Executive Vice Presidents and Assistant Vice Presidents, a Chief Financial Officer, a Controller, a General Counsel, one or more Assistant Secretaries and Assistant Treasurers and such other officers as the Board of Directors shall deem necessary or desirable in the conduct of the affairs of the Company, with such designations, titles, duties and responsibilities as the Board of Directors shall determine. Section 2. Compensation. The compensation of all officers and agents of the Corporation who are also directors of the Corporation shall be fixed by the Board of Directors. The Board of Directors may delegate the power to fix the compensation of other officers and agents of the Corporation to an officer of the Corporation. Section 3. Succession. The officers of the Corporation shall hold office until their successors are elected and qualified. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors. Section 4. Authority and Duties. Each of the officers of the Corporation shall have such authority and shall perform such duties as are as are stated in these bylaws and as may be specified from time to -8- time by the Board of Directors in a resolution which is not inconsistent with these bylaws. Section 5. Chairman. The Chairman of the Board of Directors, if one be chosen, shall preside at all meetings of the stockholders and of the Board of Directors and he shall have such other duties and responsibilities as may be assigned to him by the Board of Directors. The Chairman may delegate to any qualified person authority to chair any meeting of the stockholders, either on a temporary or a permanent basis. Section 6. President. The President shall be responsible for the active management and direction of the business and affairs of the Corporation. In case no Chairman of the Board is chosen, or of the inability or failure of the Chairman to perform the duties of that office, the President shall perform the duties of the Chairman. Section 7. Execution of Documents and Action with Respect to Securities of Other Corporations. The President shall have and is hereby given, full power and authority, except as otherwise required by law or directed by the Board of Directors, (a) to execute, on behalf of the Corporation, all duly authorized contracts, agreements, deeds, conveyances or other obligations of the Corporation, applications, consents, proxies and other powers of attorney, and other documents and instruments, and (b) to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders (or with respect to any action of such stockholders) of any other corporation in which the Corporation may hold securities and otherwise to exercise any and all rights and powers which the Corporation may possess by reason of its ownership of securities of such other corporation. In addition, the President may delegate to other officers, employees and agents of the Corporation the power and authority to take any action which the President is authorized to take under this Section 7, with such limitations as the President may specify; such authority so delegated by the President shall not be re-delegated by the person to whom such execution authority has been delegated. Section 8. Vice Presidents. Each Vice President, however titled, shall perform such duties and services and shall have such authority and responsibilities as shall be assigned to or required from time to time by the Board of Directors, the President or the -9- Executive or Senior Vice President to whom such Vice President reports. Section 9. Secretary and Assistant Secretaries. (A) The Secretary shall attend all meetings of the stockholders and all meetings of the Board of Directors and record all proceedings of the meetings of the stockholders and of the Board of Directors and shall perform like duties for the standing committees when requested by the Board of Directors or the President. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors. The Secretary shall perform such other duties as may be prescribed by the Board of Directors or the President. The Secretary shall have charge of the seal of the Corporation and authority to affix the seal to any instrument. The Secretary or any Assistant Secretary may attest to the corporate seal by handwritten or facsimile signature. The Secretary shall keep and account for all books, documents, papers and records of the Corporation except those for which some other officer or agent has been designated or is otherwise properly accountable. The Secretary shall have authority to sign stock certificates. (B) Assistant Secretaries, in the order of their seniority, shall assist the Secretary and, if the Secretary is unavailable or fails to act, perform the duties and exercise the authorities of the Secretary. Section 10. Treasurer and Assistant Treasurers. (A) The Treasurer shall have the custody of the funds and securities 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 Treasurer with the prior approval of the Board of Directors or the President. The Treasurer shall disburse the funds and pledge the credit of the Corporation as may be directed by the Board of Directors and shall render to the Board of Directors and the President, as and when required by them, or any of them, an account of all transactions by the Treasurer. (B) Assistant Treasurers, in the order of their seniority, shall assist the Treasurer and, if the Treasurer is unable or fails to act, perform the duties and exercise the powers of the Treasurer. -10- Section 11. Chief Financial Officer. The Chief Financial Officer shall be the chief accounting officer of the Corporation. The Chief Financial Officer shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation in accordance with accepted accounting methods and procedures. The Chief Financial Officer shall initiate periodic audits of the accounting records, methods and systems of the Corporation. The Chief Financial Officer shall render to the Board of Directors and the President, as and when required by them, or any of them, a statement of the financial condition of the Corporation. In case no Chief Financial Officer is chosen, or of the inability of failure of the Chief Financial Officer to perform the duties of that office, the Treasurer shall perform the duties of the Chief Financial Officer. Section 12. General Counsel. The General Counsel shall be the chief legal officer of the Corporation. The General Counsel shall provide legal counsel and advice to the Board of Directors and to the officers with respect to compliance with applicable laws and regulations. The General Counsel shall also provide or obtain legal representation of the Corporation in proceedings by or against the Corporation. The General Counsel shall render to the Board of Directors and the President, as and when required by them, or any of them, a report on the status of claims against, and pending litigation of, the Corporation. ARTICLE V STOCK Section 1. Certificates. Certificates representing shares of stock of the Corporation shall be in such form as shall be determined by the Board of Directors, subject to applicable legal requirements. Such certificates shall be numbered and their issuance recorded in the books of the Corporation, and such certificate shall exhibit the holder's name and the number of shares and shall be signed by, or in the name of the Corporation by the Chairman of the Board or the President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Corporation and shall bear the corporate seal. Any or all of the signatures and the seal of the Corporation, if any, upon such certificates may be facsimiles, engraved or printed. -11- Section 2. Transfer. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue, or to cause its transfer agent to issue, a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 3. Lost, Stolen or Destroyed Certificates. The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates the Secretary may require the owner of such lost, stolen or destroyed certificate or certificates to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate. Section 4. Record Date. (A) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. -12- (B) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which resolution fixing the record date is adopted by the Board of Directors and which date shall not be more than ten days which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. (C) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. -13- ARTICLE VI GENERAL PROVISIONS Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by the Board of Directors. Section 2. Corporate Seal. The Board of Directors may adopt a corporate seal and use the same by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 3. Reliance upon Books, Reports and Records. Each director, each member of a committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation's officers or employees, or committees of the Board of Directors, or by any other person as to matters the director, committee member or officer believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation. Section 4. Time Periods. In applying any provision of these bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded and the day of the event shall be included. Section 5. Dividends. The Board of Directors may from time to time declare and the Corporation may pay dividends upon its outstanding shares of capital stock, in the manner and upon the terms and conditions provided by law and the Restated Certificate of Incorporation. ARTICLE VII AMENDMENTS Section 1. Amendments. These bylaws may be altered, amended or repealed, or new bylaws may be adopted, by the stockholders or -14- by the Board of Directors; provided, however, that the stockholders may not alter, amend or repeal the provisions of Section 2 of Article I or Sections 2 or 3 of Article II of these Bylaws or this Section 1 of this Article VII except upon the affirmative vote of the holders of not less than sixty-six and two-thirds percent (66 2/3%) of the total voting power of all outstanding shares of voting stock of the Corporation. -15- EX-27 3 FDS FOR SECOND QUARTER 10-Q
5 This schedule contains summary financial information extracted from the Consolidated Balance Sheets and Consolidated Statements of Income found on pages 3 and 4 of the Company's Form 10-Q for the year-to-date, and is qualified in its entirety by reference to such financial statements. 1,000 6-MOS SEP-30-1997 OCT-01-1996 MAR-31-1997 26,814 0 0 0 541,444 568,258 11,852 0 634,609 79,095 0 0 0 368 236,596 634,609 303,977 303,977 247,828 247,828 0 0 1,600 21,760 8,263 13,497 0 0 0 13,497 .40 0
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