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Index to Exhibits on page 12
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 29, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 0-1088
KELLY SERVICES, INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
DELAWARE 38-1510762
--------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
999 WEST BIG BEAVER ROAD, TROY, MICHIGAN 48084
----------------------------------------------
(Address of principal executive offices)
(Zip Code)
(810) 362-4444
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
---- ----
At November 1, 1996, 34,474,225 shares of Class A and 3,583,605 shares of Class
B common stock of the Registrant were outstanding.
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KELLY SERVICES, INC. AND SUBSIDIARIES
Page
Number
------
PART I. FINANCIAL INFORMATION
Statements of Earnings 3
Balance Sheets 4
Statements of Stockholders' Equity 5
Statements of Cash Flows 6
Management's Discussion and
Analysis of Results of
Operations and Financial
Condition 7
PART II. OTHER INFORMATION 10
Signature 11
Index to Exhibits Required by
Item 601, Regulation S-K 12
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KELLY SERVICES, INC. AND SUBSIDIARIES
STATEMENTS OF EARNINGS
(UNAUDITED)
(In thousands of dollars except per share items)
13 Weeks Ended 39 Weeks Ended
------------------------------ ------------------------------
Sept. 29, 1996 Oct. 1, 1995 Sept. 29, 1996 Oct. 1, 1995
------------- ------------- ------------- -------------
Sales of services $873,242 $698,453 $2,411,435 $1,971,555
Cost of services 711,950 555,968 1,960,202 1,574,374
-------- -------- ---------- ----------
Gross profit 161,292 142,485 451,233 397,181
Selling, general and
administrative expenses 125,794 111,125 367,791 323,219
-------- -------- ---------- ----------
Earnings from operations 35,498 31,360 83,442 73,962
Interest income 822 1,798 3,509 6,508
-------- -------- ---------- ----------
Earnings before income taxes 36,320 33,158 86,951 80,470
-------- -------- ---------- ----------
Income taxes:
Federal 11,830 10,285 27,885 25,180
State and other 3,060 2,500 7,285 5,995
-------- -------- ---------- ----------
Total income taxes 14,890 12,785 35,170 31,175
-------- -------- ---------- ----------
Net earnings $ 21,430 $ 20,373 $ 51,781 $ 49,295
======== ======== ========== ==========
Earnings per share $.56 $.54 $1.36 $1.30
Dividends per share $.21 $.20 $.62 $.58
Average shares outstanding
(thousands) 38,057 38,005 38,038 37,986
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KELLY SERVICES, INC. AND SUBSIDIARIES
BALANCE SHEETS AS OF SEPTEMBER 29, 1996 AND DECEMBER 31, 1995
(UNAUDITED)
(In thousands of dollars)
ASSETS 1996 1995
- ------ ------------ ------------
CURRENT ASSETS:
Cash and equivalents $ 9,603 $ 52,811
Short-term investments 36,424 74,737
Accounts receivable, less
allowances of $11,165 and
$6,950, respectively 554,915 397,534
Prepaid expenses and other
current assets 38,969 33,520
--------- ---------
Total current assets 639,911 558,602
PROPERTY AND EQUIPMENT:
Land and buildings 36,002 35,153
Equipment, furniture and
leasehold improvements 128,030 113,521
Accumulated depreciation (79,514) (64,286)
--------- ---------
Total property and equipment 84,518 84,388
INTANGIBLES AND OTHER ASSETS 81,101 75,697
--------- ---------
TOTAL ASSETS $805,530 $718,687
========= =========
LIABILITIES & STOCKHOLDERS' EQUITY
- ----------------------------------
CURRENT LIABILITIES:
Accounts payable $ 81,281 $ 53,013
Payroll and related taxes 148,729 118,996
Accrued insurance 49,175 51,309
Income and other taxes 23,423 19,265
--------- ---------
Total current liabilities 302,608 242,583
--------- ---------
STOCKHOLDERS' EQUITY:
Capital stock, $1 par value 40,116 40,116
Treasury stock, 2,058 shares in
1996 and 2,101 shares in 1995,
respectively, at cost (6,200) (6,327)
Paid-in capital 8,238 7,215
Earnings invested in the business 460,768 435,100
--------- ---------
Total stockholders' equity 502,922 476,104
--------- ---------
TOTAL LIABILITIES &
STOCKHOLDERS' EQUITY $805,530 $718,687
========= =========
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KELLY SERVICES, INC. AND SUBSIDIARIES
STATEMENTS OF STOCKHOLDERS' EQUITY
(UNAUDITED)
(In thousands of dollars)
13 Weeks Ended 39 Weeks Ended
---------------------------- -----------------------------
Sept. 29, 1996 Oct. 1, 1995 Sept. 29, 1996 Oct. 1, 1995
------------ ------------ ------------ ------------
Capital Stock
Class A common stock
Balance at beginning of period $ 36,527 $ 36,511 $ 36,512 $ 36,507
Conversions from Class B -- -- 15 4
--------- --------- --------- ---------
Balance at end of period 36,527 36,511 36,527 36,511
Class B common stock
Balance at beginning of period 3,589 3,605 3,604 3,609
Conversions to Class A -- -- (15) (4)
--------- --------- --------- ---------
Balance at end of period 3,589 3,605 3,589 3,605
Treasury Stock
Balance at beginning of period (6,205) (6,181) (6,327) (6,186)
Exercise of stock options 2 (155) 61 (185)
Restricted stock awards 3 6 66 41
--------- --------- --------- ---------
Balance at end of period (6,200) (6,330) (6,200) (6,330)
Paid-in Capital
Balance at beginning of period 8,194 6,638 7,215 5,868
Exercise of stock options 12 475 474 948
Restricted stock awards 32 57 549 354
--------- --------- --------- ---------
Balance at end of period 8,238 7,170 8,238 7,170
Earnings Invested in the Business
Balance at beginning of period 447,231 411,040 435,100 391,718
Net earnings 21,430 20,373 51,781 49,295
Cash dividends (7,992) (7,603) (23,586) (22,036)
Equity adjustment for foreign
currency translation (cumulative
charge of $406 in 1996 and
credit of $3,024 in 1995) 99 (401) (2,527) 4,432
--------- --------- --------- ---------
Balance at end of period 460,768 423,409 460,768 423,409
--------- --------- --------- ---------
Stockholders' Equity at end of period $502,922 $464,365 $502,922 $464,365
========= ========= ========= =========
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KELLY SERVICES, INC. AND SUBSIDIARIES
STATEMENTS OF CASH FLOWS
(UNAUDITED)
FOR THE 39 WEEKS ENDED SEPTEMBER 29, 1996 AND OCTOBER 1, 1995
(In thousands of dollars)
1996 1995
---------- ----------
Cash flows from operating activities:
Net earnings $51,781 $49,295
Noncash adjustments:
Depreciation and amortization 19,316 16,433
Changes in certain working capital
components (104,052) (58,049)
-------- --------
Net cash from operating activities (32,955) 7,679
-------- --------
Cash flows from investing activities:
Capital expenditures (17,745) (25,192)
Proceeds from sales and maturities of
short-term investments 835,485 887,679
Purchases of short-term investments (797,172) (840,221)
Increase in intangibles and other assets (8,385) (16,904)
-------- --------
Net cash from investing activities 12,183 5,362
-------- --------
Cash flows from financing activities:
Dividend payments (23,586) (22,036)
Exercise of stock options and
restricted stock awards 1,150 1,158
-------- --------
Net cash from financing activities (22,436) (20,878)
-------- --------
Net change in cash and equivalents (43,208) (7,837)
Cash and equivalents at beginning
of period 52,811 49,207
-------- --------
Cash and equivalents at end of period $ 9,603 $41,370
======== ========
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MANAGEMENT'S DISCUSSION AND
ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION
Results of Operations:
Third Quarter
Sales of services in the third quarter of 1996 were $873,242,000, an
increase of 25% from the same period in 1995. Domestic sales grew
25%, and reflects strong growth in the staffing business and
significant expansion in our staff leasing services. International
sales continued to grow at double digit rates.
Cost of services, consisting of payroll and related costs of employees
assigned to customers, increased 28.1% in the third quarter as compared
to the same period in 1995. Average hourly wage rates and related
costs from U.S. operations have increased from 1995 at a rate somewhat
higher than the general inflation rate due to a tightening labor
market.
Gross profit of $161,292,000 was 13.2% higher than 1995, while the
Company-wide gross profit rates as a percentage of sales of services
declined from 20.4% in 1995 to 18.5% in 1996. Growth in the staff
leasing business, with its inherently lower margins, the upward
pressure on wage rates noted above and the growth of sales with our
very large customers, where contracts require special pricing and
additional implementation costs, all had the effect of reducing the
consolidated gross profit rate.
Selling, general and administrative expenses were $125,794,000 in the
third quarter, an increase of 13.2% over the same period in 1995. As a
percent of sales, the spending rate averaged 14.4%, compared to 15.9%
in last year's third quarter.
Earnings before income taxes were $36,320,000, an increase of 9.5%,
compared to pretax earnings of $33,158,000 for the same period in 1995.
The pretax margin was 4.2%, a .5 percentage point decrease from the
third quarter of 1995. Lower interest income represented .1 percentage
point of the decline while the net of the lower gross profit rate and
lower expense spending rate accounted for the remaining .4 percentage
point of the decrease.
Income taxes were 41.0% of pretax income. This was 2.4 percentage
points over the applicable tax rate for the third quarter of 1995 due
to increased state taxes, reduced tax-exempt income and the expiration
of tax credits against federal income tax liability earned through the
targeted jobs tax credit program.
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Net earnings were $21,430,000 in the third quarter of 1996, an increase
of 5.2% over the third quarter of 1995. Earnings per share were $.56
compared to $.54 in the same period last year.
Year-to-Date
Sales of services totaled $2,411,435,000 during the first nine months
of 1996, an increase of 22.3% over 1995. This increase reflects
continued growth in the volume of domestic and international sales.
Cost of services of $1,960,202,000 was 24.5% higher than last year,
reflecting domestic and international volume growth and increases in
payroll costs due to a tightening U.S. labor market.
Gross profit increased 13.6% in 1996 due to strong increased sales
volume, but at lower gross profit rates on sales. The gross profit
rate was 18.7% for the first nine months of 1996 compared to 20.1% for
1995. This decline reflects competitive constraints on price increases
in U.S. service lines, growth of sales with our very large customers
and higher volume growth in the staff leasing business.
Selling, general and administrative expenses of $367,791,000 were 13.8%
higher than last year. The spending rate was 15.3% of sales, 1.1
percentage point below last year's rate. Expenses continue to be
closely monitored in response to tightening margins in both U.S. and
overseas markets.
Earnings before taxes were $86,951,000, an increase of 8.1% over 1995.
These earnings averaged a pretax margin of 3.6%, or .5 percentage point
decrease from 1995. Lower interest income accounted for .2 percentage
point of this decline, and the net of lower gross margin rates, offset
by a decreased expense spending rate, accounted for the remainder.
Income taxes were 40.4% of pretax earnings and were 1.7 percentage
point higher than last year's first nine months' income tax rate. The
absence of the targeted jobs tax credit, reduced tax exempt income, and
increased state and local taxes are the largest components that account
for this change.
Net earnings were $51,781,000, or 5.0% higher than the first nine
months of 1995. Earnings per share were $1.36 compared to $1.30 last
year.
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Financial Condition
The Company's financial condition continues to be strong with cash and
equivalents and short-term investments of $46.0 million. This compares
to the $127.5 million as of December 31, 1995. This decline resulted
primarily from the growth in accounts receivable; the growth in
accounts receivable resulted from the strong increase in sales during
the nine months of 1996.
Assets totaled $805,530,000 at September 29, 1996, an increase of 12.1%
over the $718,687,000 at December 31, 1995. Working capital increased
$21,284,000 during the nine-month period. The components of working
capital, notably accounts receivable, have changed primarily due to
the strong increase in business activity during the year. The current
ratio was 2.1 at September 29, 1996, a decline of .2 percentage point
since December 31, 1995.
The quarterly dividend rate applicable to Class A and Class B shares
outstanding was $.21 per share in the third quarter of 1996. This
compares to a dividend rate of $.20 per share in the third quarter of
1995.
--------------------------------------------------------------
Companies for which this report is filed are: Kelly Services, Inc. and
its subsidiaries, Kelly Assisted Living Services, Inc., Kelly
Properties, Inc., Kelly Professional and Technical Services, Inc.,
Kelly Services (Canada), Ltd., Les Services Kelly (Quebec) Inc.,
Lenore Simpson Personnel, Ltd., Societe Services Kelly, Kelly Professional
Services (France), Inc., Kelly Services (UK), Ltd., Kelly Services
(Ireland), Ltd., Kelly Services (Australia), Ltd., Kelly Services (New
Zealand), Ltd., Kelly Services (Nederland), B.V., Kelly Services of
Denmark, Inc., OK Personnel Service Holding SA, Kelly de Mexico, S.A.
de C.V., Kelly Services Norge A.S., KSI Acquisition Corp., Kelly
Pinpoint, Inc., Your Staff, Inc., The Wallace Law Registry, Inc.,
Kelly Services France S.A., Bourse Du Travail Temporaire 2000, Kelly
Formation S.A.R.L., Kelly Services Luxembourg S.A.R.L., Kelly Services
Italia S.R.L., Kelly Services Iberia Holding Company, S.L., Kelly
Services Empleo E.T.T., S.L. and Kelly Services Seleccion y Formacion,
S.L.
The information furnished reflects all adjustments which are, in the
opinion of management, necessary for a fair presentation of the results
of operations for the period in this filing.
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
------------------
Reference is made to Item 3, Legal Proceedings, of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1995 and to the description therein of the
proposed imposition by the Internal Revenue Service of an
accumulated earnings tax in connection with an audit of
the Company's consolidated federal tax liability for the
years 1988, 1989 and 1990. As disclosed in Item 1,
Legal Proceedings, of the Company's Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 1996,
this assessment was waived in its entirety by the
Internal Revenue Service in April, 1996.
Item 6. Exhibits and Reports on Form 8-K.
---------------------------------
(a) See Index to Exhibits required by Item 601,
Regulation S-K, set forth on page 12 of this filing.
(b) No reports on Form 8-K were filed during the quarter
for which this report is filed.
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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.
KELLY SERVICES, INC.
Date: November 12, 1996
/s/ P. K. Geiger
P. K. Geiger
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
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INDEX TO EXHIBITS
REQUIRED BY ITEM 601,
REGULATION S-K
---------------------
Exhibit
No. Description Document
- ------- ----------- --------
3 By-Laws, as amended on August 20, 1996. 2
4 Rights of security holders are defined in
Articles Fourth, Fifth, Seventh, Eighth,
Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth and Fifteenth of the Certificate
of Incorporation. (Reference is made to
Exhibit 3.2 to the Form 10-Q for the quarterly
period ended June 30, 1996, filed with the
Commission in August, 1996, which is incorporated
herein by reference.)
27 Financial Data Schedule 3
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KELLY SERVICES, INC.
B Y - L A W S
ARTICLE I
OFFICES
Section 1. The registered office shall be in the
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at
such other places both within and without the State of
Delaware as the board of directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the
election of directors shall be held at such place either
within or without the State of Delaware as shall be
designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time
and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be
held on such date and at such time as shall be designated
from time to time by the board of directors and stated in
the notice of the meeting, at which shareholders shall elect
by a plurality vote a board of directors, and transact such
other business as may properly be brought before the
meeting.
Section 3. Written notice of the annual meeting
stating the place, date, and hour of the meeting shall be
given to each stockholder entitled to vote at such meeting
not less than ten days nor more than 60 days before the date
of the meeting.
Section 4. The Secretary of the corporation shall
prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to
the meeting at the place where the meeting is to be held.
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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.
Section 5. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Board of
Directors or by a committee of the Board of Directors which
has been duly designated and empowered by the Board of
Directors. Such special meetings may not be called by any
other person or persons.
Section 6. Written notice of a special meeting stating
the place, date, and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not
less than ten days nor more than 60 days before the date of
the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. The holders of 60% 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 statute or by the
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. At such adjourned meeting, at
which a quorum shall be present or represented, any business
may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for
more than thirty days or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 8. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having
voting power present in person or represented by proxy shall
decide any question brought before such meeting, unless the
question is one which by express provision of the statutes
or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern
and control the decision of such question.
Section 9. Each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by
proxy appointed by an instrument in writing subscribed by
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such stockholder for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy
provides for a longer period.
Section 10. No action required or permitted to be
taken at any annual meeting or special meeting of the
stockholders of this corporation may be taken without a
meeting and the power of the stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall
constitute the whole board shall be no fewer than five (5)
and no more than nine (9). The directors shall be elected
as provided in Section 2 of this Article. The directors
shall be classified with respect to the term for which they
shall severally hold office by dividing them into three
classes, as nearly equal in number as may be, the classes to
hold office for successive terms of three years,
respectively, but all directors shall hold office until
their successors are elected and qualified.
Section 2. Vacancies and newly created directorships
resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining
director, and a director so chosen shall hold office until
the next annual election of the class for which such
director shall have been chosen and until a successor is
duly elected and qualifies, unless sooner displaced. If
there are no directors in office, then an election of
directors may be held in the manner provided by statute.
Section 3. The business of the corporation shall be
managed by its board of directors which shall have and
exercise full power in the management and conduct of the
business and affairs of the corporation and do all such
lawful acts and things as are not by statute or by the
certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation
may hold meetings, both regular and special, either within
or without the State of Delaware.
Section 5. Immediately following and at the place of
holding the annual meeting of stockholders, the board of
directors, as constituted upon final adjournment of such
annual meeting, shall convene for the purpose of electing
officers and transacting any other business properly brought
before it. No notice of such meeting to the newly elected
directors shall be necessary in order legally to constitute
the meeting, provided a quorum shall be present.
Section 6. Regular meetings of the board of directors
may be held without notice at such time and at such place as
shall from time to time be determined by the board.
Section 7. Special meetings of the board may be called
by the president on one day's notice to each director,
either personally or by mail or by telegram; special
meetings shall be called by the president or secretary in
like manner and on like notice on the written request of a
majority of the directors then in office.
Section 8. At all meetings of the board a majority of
the board of directors shall constitute a quorum for the
transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the
certificate of incorporation or these by-laws, 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 of
proceedings of the board or committee.
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COMMITTEES OF DIRECTORS
Section 10. The board of directors may, by resolution
passed by 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, 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. Such committee or committees shall
have such name or names as may be determined from time to
time by resolution adopted by the board of directors.
Section 11. Each committee shall keep regular minutes
of its meetings and report the same to the board of
directors when required.
COMPENSATION OF DIRECTORS
Section 12. Directors, as such, shall not receive any
stated salary for their services. By resolution of the
board of directors, however, directors who are not officers
may be paid an annual retainer, a fixed sum for attendance
at each meeting of the board of directors and its committees
of which they are members, and their expenses of attendance
at such meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the
statutes or of the certificate of incorporation or of these
by-laws, 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 or her
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.
- 6 -
Section 2. Whenever any notice is required to be given
under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, a waiver thereof in
writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be
chosen by the board of directors and shall be a chairman of
the board, president, executive vice presidents, senior vice
presidents, vice presidents, a secretary, a treasurer, one
or more assistant secretaries and treasurers, a controller
and such other officers and agents as the board may deem
necessary for the transaction of the business of the
corporation. The same person may be selected to fill more
than one office except the offices of president and vice
president. The board of directors shall choose the
president from among their own number. A vice president who
is not a director shall not succeed to or fill the office of
president. Every officer and agent appointed by the board
of directors shall be employed on a month-to-month basis
only, unless otherwise provided in a written contract of
employment specifically approved by the board of directors.
Section 2. The salaries of all officers and agents of
the corporation shall be fixed by the president of the
company subject to revision by the board of directors.
Section 3. Any officer elected or appointed by the
board of directors may be removed at any time either with or
without cause by the affirmative vote of a majority of the
board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
CHAIRMAN OF THE BOARD
Section 4. The chairman of the board shall have
general control of the affairs of the corporation, subject
only to the board of directors. The chairman shall preside
at all meetings of the board of directors at which he or she
is present.
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THE PRESIDENT
Section 5. The president shall be the chief executive
officer and the chief operating officer of the corporation;
shall preside at all meetings of the stockholders; shall, in
the absence or incapacity of the chairman of the board,
perform all the duties and functions of that office; shall
see that all orders and resolutions of the board of
directors are carried into effect; and shall perform the
duties that usually pertain to this office.
EXECUTIVE VICE PRESIDENTS
Section 6. The board of directors may appoint one or
more executive vice presidents, who shall direct the
administration of the affairs of the corporation, being
responsible to the president and to the chairman of the
board. The president shall designate the order in which
executive vice presidents shall perform all of the functions
and duties of the office of president in the absence or
incapacity of the president, and shall designate the order
in which executive vice presidents shall perform all of the
functions and duties of the chairman of the board in the
absence or incapacity of both the chairman of the board and
the president. Executive vice presidents shall have such
general powers and duties of supervision and management as
shall be assigned to them by the chairman of the board and
the president.
SENIOR VICE PRESIDENTS
Section 7. The board of directors may appoint one or
more senior vice presidents, who shall have such general
powers and duties of supervision and management as shall be
assigned to them by the chairman of the board, the
president, and the executive vice presidents. The president
shall designate the order in which senior vice presidents
shall perform all of the functions and duties of the office
of president in the absence or incapacity of the president
and the executive vice presidents, and shall designate the
order in which senior vice presidents shall perform all of
the functions and duties of the chairman of the board in the
absence or incapacity of the chairman of the board, the
president, and the executive vice presidents.
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VICE PRESIDENTS
Section 8. The board of directors may appoint one or
more vice presidents, who shall have such general powers and
duties of supervision and management as shall be assigned to
them by the chairman of the board, the president, the
executive vice presidents, and the senior vice presidents.
The president shall designate the order in which vice
presidents shall perform all of the functions and duties of
the office of president in the absence or incapacity of the
president, the executive vice presidents, and the senior
vice presidents, and shall designate the order in which vice
presidents shall perform all of the functions and duties of
the chairman of the board in the absence or incapacity of
the chairman of the board, the president, the executive vice
presidents, and the senior vice presidents.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. 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. The secretary shall
give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision
he or she shall be. The secretary shall have custody of the
corporate seal of the corporation. The secretary, or an
assistant secretary, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may
be attested by the secretary's signature or by the signature
of such assistant secretary.
Section 10. The assistant secretary, or if there be
more than one, the assistant secretaries in the order
determined by the board of directors (or if there be no such
determination, then in the order of their election), shall,
in the absence of the secretary or in the event of the
secretary's inability or refusal to act, perform the duties
and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of
directors may from time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of
the corporate funds and securities 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.
Section 12. The treasurer shall disburse the funds of
the corporation as may be ordered by the board of directors,
taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its
regular meetings, or when the board of directors so
requires, an account of all transactions as treasurer.
The treasurer shall have such other duties as may be delegated
to him or her from time to time by the president, subject to
review by the board of directors.
Section 13. The assistant treasurer, or if there shall
be more than one, the assistant treasurers in the order
determined by the board of directors (or if there be no such
determination, then in the order of their election), shall,
at the direction of or in the absence of the treasurer or in
the event of his inability or refusal to act, perform the
duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
CONTROLLER
Section 14. The controller shall account for all
transactions, including all receipts and disbursements, of
the corporation and shall render to the president and the
board of directors at its regular meetings or when the board
of directors so requires an account of all such transactions
and of the financial condition of the corporation. He shall
have such other duties as may be delegated to him from time
to time by the president, subject to review by the board of
directors.
RESIGNATIONS
Section 15. Any director or officer may resign at any
time, and if made in writing, the resignation is to be
deemed accepted and effective from the time of its receipt
by the corporation, unless some later time be fixed in the
resignation, and then from that time.
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ARTICLE VI
CERTIFICATES OF STOCK
Section 1. 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 of the board of
directors or the president or a vice president or the
treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the corporation, under the seal of
the corporation, certifying the number of shares owned by
him in the corporation.
Section 2. Where a certificate is countersigned (1) by
a transfer agent other than the corporation or its employee,
and, (2) by a registrar other than the corporation or its
employee, the signatures of the officers of the corporation
may be facsimiles. In case any officer who has signed or
whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer before such certificate
is issued, it may be issued by the corporation with the same
effect as if he or she were such officer at the date of
issue.
LOST CERTIFICATES
Section 3. The board of directors 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 the fact by the person
claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate
or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as it
shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may
be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. 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
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succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty
days prior to any other action. In no event shall such
record date precede the date of the resolution establishing
it. 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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to
recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to
vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or
other claim to interest in such share or shares on the part
of any other person, whether or not it shall have express or
other notice hereof, except as otherwise provided by the
laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the common stock of the
corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the board of
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directors at any regular or special meeting, pursuant to
law. Dividends may be paid in cash, in property, or in
shares of the common stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may
be set aside out of any funds of the corporation available
for dividends such sum or sums as the directors from time to
time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of
the corporation, or for such other purpose as the directors
shall think conducive to the interest of the corporation,
and the directors may modify or abolish any such reserve in
the manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at
each annual meeting a full and clear statement of the
business and condition of the corporation.
CHECKS AND NOTES
Section 4. All checks or demands for money of the
corporation shall be signed by such officer or officers or
such other person or persons as the board of directors may
from time to time designate. The notes of the corporation
shall be signed by at least two of the officers of the
corporation appointed by the board of directors.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall
end at the close of business on the Sunday nearest
December 31.
SEAL
Section 6. The corporate seal shall be circular in form
and contain around its circumference the full corporate name
of the corporation and the state of incorporation and in the
center the words "Corporate Seal" and the year of
incorporation. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced
or otherwise.
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INDEMNIFICATION
Section 7. A director or officer, or former director
or officer, of the corporation, or any person who may have
served at its request as a director or officer of
another corporation in which it owns stock or of which it is
a creditor, and such person's heirs, executors, and
administrators, shall be indemnified by the corporation
against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any action, suit
or proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the corporation) to which he or she may be made a party by
reason of any alleged acts or omissions as such director or
officer if such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any
criminal action or proceeding, such person had no reasonable
cause to believe his or her conduct was unlawful.
Section 8. A director or officer, or former director
or officer, of the corporation, or any person who may have
served at its request as a director or officer of another
corporation in which it owns stock or of which it is a
creditor, and such person's heirs, executors, and
administrators, shall be indemnified by the corporation
against all expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with 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 any alleged acts or omissions as such director
or officer if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and except that no
indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application
that despite the adjudication of liability but in view of
all of the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 9. To the extent that a director or officer of
the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in Section 7 or 8 of this Article VII, or in
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defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
therewith.
Section 10. Expenses incurred by a director or
officer, former director or officer, or such person's heirs,
executors and administrators in defending a civil or
criminal action may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
director or officer, or such person's heirs, executors or
administrators to repay such amount if it shall ultimately
be determined that he or she is not entitled to be
indemnified by the corporation.
Section 11. The foregoing rights of indemnification
and advancement of expenses shall be in addition to and not
exclusive of any and all other rights to which such director
or officer, or former director or officer, or such person's
heirs, executors or administrators might be entitled as a
matter of law.
ARTICLE VIII
AMENDMENTS
Section 1. Subject to the provisions of statute, the
by-laws of the corporation may be adopted, amended or
repealed by the affirmative vote of a majority of the total
number of directors or by the affirmative vote of holders of
75% of the voting power of all of the stock of this
corporation entitled to vote in elections of directors,
provided, however, that no by-law or by-laws fixing the
qualifications, classifications or term of office of any
member or members of the then existing board shall be made
or altered during the term of office of the then existing
board of directors. The by-laws may contain any provision
for the regulation and management of the affairs of the
corporation and the rights or powers of its stockholders,
directors, officers, or employees not inconsistent with the
laws of the State of Delaware.
5
1,000
9-MOS
DEC-29-1996
SEP-29-1996
9,603
36,424
566,080
11,165
0
639,911
164,032
79,514
805,530
302,608
0
0
0
40,116
462,806
805,530
0
2,411,435
0
1,960,202
0
0
0
86,951
35,170
51,781
0
0
0
51,781
1.36
0
