CONFORMED COPY
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended May 30, 1998 Commission File Number 0-6365
APOGEE ENTERPRISES, INC.
------------------------
(Exact Name of Registrant as Specified in Charter)
Minnesota 41-0919654
--------- ----------
(State of Incorporation) (IRS Employer ID No.)
7900 Xerxes Avenue South, Suite 1800, Minneapolis, Minnesota 55431
------------------------------------------------------------------
(Address of Principal Executive Offices)
Registrant's Telephone Number (612) 835-1874
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 close of the latest practicable date.
Class Outstanding at June 30, 1998
- --------------------------------- ----------------------------
Common Stock, $.33 1/3 Par Value 27,583,435
APOGEE ENTERPRISES, INC.
FORM 10-Q
TABLE OF CONTENTS
FOR THE QUARTER ENDED MAY 30, 1998
Description Page
----------- ----
PART I
- ------
Item 1. Financial Statements
Consolidated Balance Sheets as of May 30, 1998
and February 28, 1998 3
Consolidated Results of Operations for the
Quarters Ended May 30, 1998 and May 31, 1997 4
Consolidated Statements of Cash Flows for the
Quarters Ended May 30, 1998 and May 31, 1997 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 7-11
PART II Other Information
- -------
Item 5. Other Information 12
Item 6. Exhibits and Reports on Form 8-K 12
Exhibits Index 14
2
APOGEE ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Thousands of Dollars)
May 30, 1998 February 28, 1998
------------ -----------------
ASSETS
Current assets
Cash and cash equivalents (including restricted funds of
$-0- and $208, respectively) $ 11,701 $ 7,853
Receivables, net of allowance for doubtful accounts 148,823 145,121
Inventories 63,908 64,183
Costs and earnings in excess of billings on uncompleted
contracts 8,939 6,796
Refundable income taxes 6,573 16,533
Deferred tax assets 12,955 14,218
Other current assets 5,968 7,540
--------- ---------
Total current assets 258,867 262,244
--------- ---------
Property, plant and equipment, net 132,954 129,937
Marketable securities - available for sale 26,738 18,706
Investments 609 709
Intangible assets, at cost less accumulated amortization 57,061 50,500
Other assets 2,026 2,025
--------- ---------
Total assets $ 478,255 $ 464,121
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Accounts payable $ 59,573 $ 44,055
Accrued expenses 101,033 108,893
Billings in excess of costs and earnings on uncompleted
contracts 24,572 23,141
Current installments of long-term debt 1,279 1,679
--------- ---------
Total current liabilities 186,457 177,768
--------- ---------
Long-term debt 153,838 151,967
Other long-term liabilities 24,481 24,785
Shareholders' equity
Common stock, $.33 1/3 par value; authorized 50,000,000
shares; issued and outstanding 27,621,000 and 27,453,000
shares, respectively 9,207 9,151
Additional paid-in capital 40,969 38,983
Retained earnings 64,294 61,899
Unearned compensation (1,188) (686)
Net unrealized gain on marketable securities 197 254
--------- ---------
Total shareholders' equity 113,479 109,601
--------- ---------
Total liabilities and shareholders' equity $ 478,255 $ 464,121
========= =========
See accompanying notes to consolidated financial statements.
3
APOGEE ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED RESULTS OF OPERATIONS
FOR THE QUARTERS ENDED MAY 30, 1998 AND MAY 31, 1997
(Thousands of Dollars Except Share and Per Share Amounts)
Quarter Ended
May 30, 1998 May 31, 1997
------------ ------------
Net sales $233,127 $223,851
Cost of sales 187,804 176,962
-------- --------
Gross profit 45,323 46,889
Selling, general and administrative expenses 36,045 32,353
Provision for restructuring and other unusual items -- 1,208
-------- --------
Operating income 9,278 13,328
Interest expense, net 2,646 2,304
-------- --------
Earnings before income taxes and other items below 6,632 11,024
Income taxes 2,454 4,000
Equity in net loss of affiliated companies 300 250
-------- --------
Net earnings $ 3,878 $ 6,774
======== ========
Earnings per share-Basic $ 0.14 $ 0.24
======== ========
Earnings per share-Diluted $ 0.14 $ 0.24
======== ========
Cash dividends per common share $ 0.050 $ 0.045
======== ========
See accompanying notes to consolidated financial statements.
4
APOGEE ENTERPRISES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE QUARTERS ENDED MAY 30, 1998 AND MAY 31, 1997
(Thousands of Dollars)
1998 1997
-------- --------
OPERATING ACTIVITIES
Net earnings $ 3,878 $ 6,774
Adjustments to reconcile net earnings to net cash provided by
operating activities:
Depreciation and amortization 6,958 5,766
Provision for losses on accounts receivable 639 408
Deferred income tax (benefit) expense 1,263 (1,738)
Equity in net earnings of affiliated companies 300 250
Other, net (1) 1,742
Changes in operating assets and liabilities, net of effect of
acquisitions
Receivables (4,263) (1,342)
Inventories 308 (3,970)
Costs and earnings in excess of billings on uncompleted
contracts (2,143) 8,443
Other current assets 2,648 933
Accounts payable and accrued expenses 6,929 (10,145)
Billings in excess of costs and earnings on uncompleted
contracts 1,431 (151)
Refundable income taxes and accrued income taxes 9,991 9,967
Other long-term liabilities (806) (4,297)
-------- --------
Net cash provided by operating activities 27,132 12,640
-------- --------
INVESTING ACTIVITIES
Capital expenditures (9,483) (8,356)
Acquisition of businesses, net of cash acquired (4,701) (500)
Increase in marketable securities (8,120) (6,821)
Investments in and advances to affiliated companies (200) (350)
Proceeds from sale of property and equipment 68 77
Other, net (41) (62)
-------- --------
Net cash used in investing activities (22,477) (16,012)
-------- --------
FINANCING ACTIVITIES
Payments on long-term debt (526) (518)
Proceeds from issuance of long-term debt 1,997 13,257
Repurchase and retirement of common stock (115) (5,289)
Proceeds from issuance of common stock 2,056 2,825
Dividends paid (1,382) (1,246)
Increase in deferred debt expense (2,837) --
-------- --------
Net cash (used in) provided by financing activities (807) 9,029
-------- --------
Increase in cash 3,848 5,657
Cash at beginning of period 7,853 4,065
-------- --------
Cash at end of period $ 11,701 $ 9,722
======== ========
See accompanying notes to consolidated financial statements.
5
APOGEE ENTERPRISES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
In the opinion of the Company, the accompanying unaudited consolidated
financial statements contain all adjustments (consisting of only normal
recurring accruals) necessary to present fairly the financial position
as of May 30, 1998 and May 31, 1997, and the results of operations and
cash flows for each of the thirteen week periods ended May 30, 1998 and
May 31, 1997. Certain prior year amounts have been reclassified to
conform to the current period presentation.
The financial statements and notes are presented as permitted by Form
10-Q and do not contain certain information included in the Company's
annual financial statements and notes. The results of operations for
the thirteen week periods ended May 30, 1998 and May 31, 1997 are not
necessarily indicative of the results to be expected for the full year.
During the first quarter of fiscal 1999, the Company adopted Statement
of Financial Accounting Standards No. 130 (FAS 130), "Reporting
Comprehensive Income." The adoption of FAS 130 had no effect on the
consolidated financial statements.
The Company's fiscal year ends on the Saturday closest to February 28.
Each interim quarter ends on the Saturday closest to the end of the
months of May, August and November.
2. Earnings per share
The following table presents a reconciliation of the denominators used
in the computation of basic and diluted earnings per share.
May 30, 1998 May 31, 1997
------------ ------------
Basic earnings per share-weighted
common shares outstanding
27,536,441 27,903,938
Weighted common share assumed upon
exercise of stock options
246,077 605,469
---------- ----------
Diluted earnings per share-weighted
common shares and common shares
equivalent outstanding
27,782,518 28,509,407
========== ==========
3. Inventories
Inventories consist of the following:
May 30, 1998 February 28, 1998
------------ -----------------
Raw materials and supplies $19,835 $20,017
In process 4,452 4,749
Finished goods 39,621 39,417
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$63,908 $64,183
======= =======
6
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
SALES AND EARNINGS
- ------------------
Net sales were $233.1 million, a 4% increase over the $223.9 million reported a
year ago. First quarter earnings fell 43% to $3.9 million, or 14 cents per
share, from $6.8 million, or 24 cents per share, a year ago. Last year's net
sales have been restated to reflect the deconsolidation of the Company's
European curtainwall operations, reflecting our ceding of control over those
entities.
The following table presents sales and operating income data for the Company's
three segments and on a consolidated basis for the first quarter, when compared
to the corresponding period a year ago. Operating results are discussed below.
QUARTER ENDED
--------------------------
MAY 30, 1997 MAY 30, 1998 PERCENTAGE CHANGE
============ ============ =================
NET SALES
Glass technologies $ 52,045 $ 54,539 5
Auto glass 90,257 96,756 7
Building products & services $ 83,792 84,184 -
Eliminations (2,243) (2,352) 5
-------- ---------
Total $223,851 $ 233,127 4
======== =========
OPERATING INCOME (LOSS)
Glass technologies $ 5,277 $ 3,093 (41)
Auto glass 6,345 4,913 (23)
Building products & services $ 1,734 1,091 (37)
Corporate and other (28) 181 NM
-------- ---------
Total $ 13,328 $ 9,278 (30)
======== =========
Glass Technologies (GT)
- -----------------------
First quarter earnings decreased to $3.1 million compared to $5.3 million in the
year-ago quarter. Net sales continued to improve increasing 5% over the prior
period. Earnings dipped due to the temporary suspension of Viratec's Optium(TM)
cathode ray tube (CRT) coating line in conjunction with its relocation from
Minnesota to the West Coast, the effect of production expansion and softening in
selected products due to the Asian Crisis.
Viracon, the segment's largest operating unit, produced another quarter of
improved results, with earnings rising 26% on a sales gain of 13%. Customer
demand for Viracon's high-performance architectural glass products remained
strong. Despite its seasonally soft first quarter, the segment's Tru Vue unit
recorded a net sales improvement.
GT's Viratec unit reported an operating loss for the quarter compared to
operating income a year earlier. In addition to the suspension of the Optium
coating line, GT's Viratec unit also was adversely affected by lower demand for
its anti-glare filter and front-surface mirror products due to the economic
slowdown in Asia.
GT continued to proceed with its announced capital expenditure program. The most
significant projects were the construction of a new Viracon facility in
Statesboro, Georgia, and the relocation of the Optium CRT coating line to a West
Coast location, as noted above. The Optium coating line is expected to be
operating by calendar year-end, while the Statesboro facility is anticipated to
begin generating significant sales in the next fiscal year.
7
Auto Glass (AG)
- ---------------
AG continued its revenue improvements generating a net sales gain of 7% over the
prior period. Earnings decreased from $6.3 million to $4.9 million due to
increases in selling and administrative expenses. Such increases resulted from
investments in information systems technology and an aggressive advertising
campaign. These investments are expected to contribute to future earnings.
On May 29, 1998, the segment acquired an 80% interest in VIS'N Service
Corporation (VIS'N), an insurance claims and policy processing outsource company
headquartered in Red Wing, Minnesota. This acquisition will expand the segment's
capabilities to outsource insurance claims and policy processing beyond its
traditional auto glass market.
During the quarter, AG began to see additional sales as insurance companies
adjusted their allocations of business in response to a merger of two
industry participants. The segment also continued to proceed with efforts to
improve productivity for its auto glass repair and replacement operations.
At the close of the first quarter, AG had 346 retail locations, 73 wholesale
depots and 8 Midas Muffler franchises.
Building Products & Services (BPS)
- ----------------------------------
The Building Products & Services segment (BPS) earned $1.1 million in the first
quarter of fiscal 1999 compared to an operating profit of $1.7 million in the
comparable period a year ago. Net sales were flat compared to last year, which
have been restated to reflect the deconsolidation of European curtainwall
operations. Last year's results benefited from the completion of one significant
curtainwall project in the first quarter.
For the quarter, domestic curtainwall operations reported breakeven results on
an anticipated net sales decline of 28%. The Detention/Security group reported
flat net sales and breakeven results for the period due to losses from a
start-up operation. The segment's Architectural Products and Full Service units
reported solid profits on improved net sales.
The exit from European curtainwall operations remained on track, and the Asian
curtainwall unit had nearly completed the remaining projects in its backlog. All
of the segment's Asian projects are expected to be substantially complete by the
end of the second quarter.
Backlog
- -------
At May 30, 1998, Apogee's consolidated backlog was $312 million, up slightly
from February 28, 1998. The backlogs of BPS's operations represented over 80% of
Apogee's consolidated backlog. The domestic curtainwall backlog stood at $96
million. The Asian curtainwall backlog declined to $5 million as the remaining
projects neared completion. GT's Viracon operation reported a solid backlog of
orders for its architectural glass products and Viratec Thin Films' backlog more
than doubled from last fiscal year-end, primarily due to orders of Optium coated
products.
8
Consolidated
- ------------
The following table compares first quarter results with year-ago results, as a
percentage of sales, for each caption.
Percentage of Net Sales
-----------------------
1998 1999
----- -----
Net sales 100.0 100.0
Cost of sales 79.1 80.6
----- -----
Gross profit 20.9 19.4
Selling, general and administrative expenses 14.5 15.5
Provision for restructuring and other unusual items 0.5 -
----- -----
Operating income 6.0 4.0
Interest expense, net 1.0 1.1
----- -----
Earnings before taxes 4.9 2.8
Income taxes 1.8 1.1
Equity in net loss of affiliated companies 0.1 0.1
----- -----
Net earnings 3.0 1.7
===== =====
Effective tax rate 37.0% 36.3%
On a consolidated basis, cost of sales, as a percentage of net sales, rose
slightly. The primary factors underlying this increase were the effect of the
planned suspension of the Optium cathode ray tube (CRT) coating line and the
absence of significant margin recognized upon the completion of one large
curtainwall project included in last year's first quarter results. These items
were partly offset by productivity gains at AG, Viracon and BPS's Architectural
Products unit, and a continuation of a change in sales mix reflecting higher GT
and AG revenues and lower curtainwall revenues.
Selling, general and administrative (SG&A) expenses rose by $3.7 million, or
11%. The rise included increased investment in information systems technology,
and higher employee and advertising costs. Interest expense rose over last year
primarily due to higher borrowing levels. The effective income tax rate of 37.0%
was up slightly from 36.3% a year ago.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
Financial Condition
- -------------------
NET CASH PROVIDED BY OPERATING ACTIVITIES
Operating activities produced $27.1 million in cash flow for the quarter. That
figure reflected the combination of net earnings, noncash charges and a $15.9
million reduction in working capital, excluding cash. At quarter end, the
Company's working capital stood at $72.4 million. The primary factors underlying
the reduction in working capital were the receipt of approximately $9.6 million
in refundable income taxes and an increase in accounts payable.
Offsetting these items were increases in accounts receivable and in costs in
excess of billings on uncompleted contracts.
NET CASH PROVIDED BY FINANCING ACTIVITIES
Bank borrowings stood at $152.5 million at May 30, 1998, slightly higher than
the $150.5 million outstanding at February 28, 1998. The nominal additional
borrowings reflected normal working capital variations. Cash provided by
operating activities was sufficient to finance the period's investing activities
and cash dividend requirements. At May 30, 1998, long-term debt stood at 58% of
total capitalization.
In May 1998, the Company obtained a five-year, committed secured credit facility
in the amount of $275 million. This new credit facility requires Apogee to
maintain minimum levels of net worth and certain financial ratios, and is
collateralized by the Company's receivables, inventory, equipment and
intangibles. This facility replaced a $150 million five-year, multi-currency
committed credit facility which had been obtained in May 1996.
The Company anticipates bank borrowings to increase over the next few quarters
as capital spending for productive capacity increases and working capital
requirements are expected to exceed the Company's cash flow from operating
activities.
9
NET CASH USED IN INVESTING ACTIVITIES
Additions to property, plant and equipment during the quarter totaled
approximately $9.5 million. Major items included expenditures for the GT
expansion activities noted above as well as expenditures on information systems
projects throughout the Company. Capital expenditures are expected to increase
primarily due to capacity additions at the Company's new Statesboro, Georgia
facility and other capacity expansions in GT. The AG segment completed the VIS'N
Service Corporation acquisition and one acquisition of retail auto glass
replacement stores for a total of $4.7 million.
Cash increased $3.8 million for the quarter.
Shareholders' Equity
- --------------------
At May 30, 1998, Apogee's shareholders' equity stood at $113.5 million. Book
value per share was $4.11, up from $3.99 per share at February 28, 1998, with
outstanding common shares increasing nominally during the period. Net earnings
and proceeds from common stock issued in connection with our stock-based
compensation plans accounted for the increase, slightly offset by dividends
paid.
Impact of Year 2000
- -------------------
We are reviewing the potential impact of the "Year 2000" date change which
involves the inability of certain software and systems to properly recognize and
process date information relating to the Year 2000. We have assigned a team to
evaluate the nature and extent of the work required to make our systems,
products and infrastructure Year 2000 compliant. A number of existing systems
projects are either underway or under review within our various business units
to incorporate Year 2000 compliance, the cost of which has not been determined.
We continue to evaluate the estimated costs associated with our efforts to
ensure that our systems, products and infrastructure are Year 2000 compliant.
While these on-going efforts will involve additional costs, we believe, based on
available information, that we are and will continue to effectively manage our
Year 2000 transition without any material adverse effect on our business,
results of operations or financial condition.
10
CAUTIONARY STATEMENT
- --------------------
A number of factors should be considered in conjunction with any discussion of
operations or results by the Company or its representatives and any
forward-looking discussion, as well as comments contained in press releases,
presentations to securities analysts or investors, or other communications by
the Company.
These factors are set forth in the cautionary statements filed as Exhibit 99 to
the Company's Form 10-K and include, without limitation, cautionary statements
regarding changes in economic and market conditions, factors related to
competitive pricing, commercial building market conditions, management of growth
or restructuring of business units, expected cost savings from restructurings
cannot be fully realized or realized within the expected timeframe, net sales
following restructurings are lower than expected, costs or difficulties related
to the operation of the businesses or execution of restructurings or exit
activities are greater than expected, the impact of foreign currency markets,
the integration of acquisitions, and the realization of expected economies
gained through expansion and information systems technology. The Company wishes
to caution investors and others to review the statements set forth in Exhibit 99
and that other factors may prove to be important in affecting the Company's
business or results of operations. These cautionary statements should be
considered in connection with this Form 10-Q, including the forward looking
statements contained in the Management's discussion and analysis of the
Company's three business segments. These cautionary statements are intended to
take advantage of the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995.
11
PART II
OTHER INFORMATION
ITEM 5. - Other Information
Pursuant to the Company's By-laws, as amended to date, shareholders desiring to
nominate candidates for election as directors or to make proposals for
consideration by the shareholders at the Company's regularly scheduled annual
meeting of shareholders must notify the Company in the manner set forth in the
Company's By-laws at least 120 days prior to the date that is one year after the
prior year's regular meeting. Therefore, shareholders would be required to
submit any such nominations or proposals to the Company on or before February
23, 1999 to be considered at the Company's 1999 Annual Meeting of Shareholders.
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
Exhibit (3B). Amended and Restated By-Laws of Apogee Enterprises, Inc.
Exhibit (27). Financial Data Schedule (EDGAR filing only)
Exhibit (27.1). Restated Financial Data Schedule (EDGAR filing only)
(b) Registrant filed a Current Report on Form 8-K, dated April 9, 1998,
providing information on fourth quarter and full-year results for the
Company's fiscal year ended February 28, 1998.
12
CONFORMED COPY
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.
APOGEE ENTERPRISES, INC.
Date: July 14, 1998 Russell Huffer
--------------
Russell Huffer
Chief Executive Officer and President
Date: July 14, 1998 Robert G. Barbieri
------------------
Robert G. Barbieri
Vice President Finance and
Chief Financial Officer
13
EXHIBITS INDEX
Exhibit
- -------
Exhibit 3B Amended and Restated By-Laws of Apogee Enterprises, Inc.
Exhibit 27 Financial Data Schedule (EDGAR filing only)
Exhibit 27.1 Restated Financial Data Schedule (EDGAR filing only)
14
Exhibit 3(B)
AMENDED AND RESTATED BY-LAWS
OF
APOGEE ENTERPRISES, INC., A MINNESOTA CORPORATION
ARTICLE I
SHAREHOLDERS
Section 1.01. Places of Meetings. Meetings of shareholders entitled to vote
shall be held (a) at any place within or without the State of Minnesota which
may be designated by resolution of the Board of Directors, or (b) at any place
within Hennepin County, Minnesota, when the meeting is called by or at the
demand of the corporation's shareholders.
Section 1.02. Regular Meetings. A regular meeting of shareholders entitled
to vote shall by held on such date as the Board of Directors shall by resolution
establish. At the regular meeting, members of the Board of Directors shall be
elected as provided in these By-Laws and the Articles of Incorporation, and such
other business may be transacted as shall be properly brought before the
meeting.
Section 1.03. Special Meetings. Special meetings of the shareholders may be
held at any time and for any purpose and may be called by the Chairman of the
Board, the Chief Executive Officer, the Chief Financial Officer, two or more
directors or by a shareholder or shareholders holding 10% or more of the voting
power of all shares entitled to vote, except that a special meeting for the
purpose of considering any action to directly or indirectly facilitate or affect
a business combination, including any action to change or otherwise effect the
composition of the Board of Directors for that purpose, must be called by 25% or
more of the voting power of all shares entitled to vote. A shareholder or
shareholders holding the requisite percentage of the voting power of all shares
entitled to vote may demand a special meeting of the shareholders by written
notice of demand given to the Chairman of the Board, the Chief Executive Officer
or the Chief Financial Officer of the corporation and containing the purposes of
the meeting. Within 30 days after receipt of demand by one of those officers,
the Board of Directors shall cause a special meeting of shareholders to be
called and held on notice no later than 90 days after receipt of the demand, at
the expense of the corporation. Special meetings shall be held on the date and
at the time and place fixed by the Chairman of the Board or the Board of
Directors, except that a special meeting called by or at demand of a shareholder
or shareholders shall be held in the county where the principal executive office
is located. The business transacted at a special meeting shall be limited to the
purposes as stated in the notice of the meeting.
Section 1.04. Notice of Meetings. Written notice of the time and place of
any meeting of the shareholders entitled to vote thereat shall be sent to their
addresses as the same appear on the stock ledger or on the records of the
corporation, at least five days prior to the meeting, except that notice of a
meeting at which a plan of merger or
exchange is to be considered shall be mailed to all shareholders of record,
whether entitled to vote or not, at least fourteen days prior thereto. Every
notice of any special meeting called pursuant to Section 1.03 hereof shall state
the purpose or purposes for which the meeting has been called, and the business
transacted at all special meetings shall be confined to the purposes stated in
the notice. The written notice of any meeting at which a plan of merger or
exchange is to be considered shall so state such as a purpose of the meeting. A
copy or short description of the plan of merger or exchange shall be included in
or enclosed with such notice.
Section 1.05. Meetings Without Notice. A shareholder may waive notice of
any meeting in writing given either before or after the meeting. By attendance
at and participation in any meeting of the shareholders, a shareholder shall be
deemed to have waived notice thereof, unless the shareholder properly objects
pursuant to Minnesota Statutes ss.302A.435, Subdivision 4. Whenever all the
shareholders entitled to vote shall be present at and consent to or participate
in a meeting without objection, such meeting shall be deemed to be a legal
meeting, and all the business transacted shall be valid in all respects the same
as though such meeting had been regularly called pursuant to proper notice.
Section 1.06. Quorum and Adjourned Meetings. The holders of a majority of
the shares of stock entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of shareholders, except as may be
otherwise provided by law or by the Articles of Incorporation. In the absence of
a quorum, any meeting may be adjourned from time to time or from place to place,
and no notice as to such adjourned meeting or the place thereof need be given
other than by announcement at the meeting at which the requisite amount of
voting stock shall be represented. Any business may be transacted which might
have been transacted at the meeting as originally called.
Section 1.07. Voting and Proxies. At each meeting of the shareholders,
every shareholder having the right to vote shall be entitled to vote either in
person or by proxy. Each shareholder, unless the Articles of Incorporation or
applicable law provide otherwise, shall have one vote for each share having
voting power registered in such shareholder's name on the books of the
corporation. Jointly owned shares may be voted by any joint owner unless the
corporation receives written notice from any one of them denying the authority
of that person to vote those shares. Upon the demand of any shareholder, the
vote upon any question before the meeting shall be by ballot. All questions
shall be decided by a majority vote of the number of shares entitled to vote and
represented at the meeting in person or by proxy at the time of the vote except
if otherwise required by applicable law, the Articles of Incorporation, or these
By-Laws.
Section 1.08. Record Date. The Board of Directors may fix a time, not
exceeding 60 days preceding the date of any meeting of shareholders, as a record
date for the determination of the shareholders entitled to notice of and to
vote at such meeting, notwithstanding any transfer of shares on the books of the
corporation after any record date so fixed.
Section 1.09. Nomination of Directors. Only persons nominated in accordance
with the following procedures shall be eligible for election by shareholders as
directors. Nominations of persons for election as directors at a meeting of
shareholders called for the purpose of electing directors may be made (a) by or
at the direction of the Board of Directors or (b) by any shareholder in the
manner herein provided. For a nomination to be properly made by a shareholder,
the shareholder must give written notice to the Secretary of the corporation so
as to be received at the principal executive offices of the corporation not
later than (a) with respect to an annual meeting of shareholders, at least 120
days before the date that is one year after the prior year's regular meeting and
(b) with respect to a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which
the notice of such meeting is first given to shareholders. Each such notice
shall set forth (a) the name and address of the shareholder who intends to make
the nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understanding between the
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder; (d) such other information regarding each nominee proposed by
such shareholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated, by the Board of
Directors; and (e) the consent of each nominee to serve as a director of the
corporation if so elected.
Section 1.10. Shareholder Proposals. To be properly brought before a
regular meeting of shareholders, business must be (a) specified in the notice of
the meeting, (b) directed to be brought before the meeting by the Board of
Directors or (c) proposed at the meeting by a shareholder who (i) was a
shareholder of record at the time of giving of notice provided for in these
bylaws, (ii) is entitled to vote at the meeting and (iii) gives prior notice of
the matter, which must otherwise be a proper matter for shareholder action, in
the manner herein provided. For business to be properly brought before a regular
meeting by a shareholder, the shareholder must give written notice to the
Secretary of the corporation so as to be received at the principal executive
offices of the corporation at least 120 days before the date that is one year
after the prior year's regular meeting. Such notice shall set forth (a) the name
and record address of the shareholder and of the beneficial owner, if any, on
whose behalf the proposal will be made, (b) the class and number of shares of
the corporation owned by the shareholder and beneficially owned by the
beneficial owner, if any, on whose behalf the proposal will be made, (c) a brief
description of the business desired to be brought before the regular meeting and
the reasons for conducting such business and (d) any material interest in such
business of the shareholder and the beneficial owner, if any, on whose behalf
the proposal is made. The Chair of the meeting may refuse to acknowledge any
proposed business not made in compliance with the foregoing procedure.
ARTICLE II
DIRECTORS
Section 2.01. Number and Election. Directors shall be divided into three
classes of approximately equal size and, after an initial staggering of director
terms, shall be elected to each regular shareholder meeting for three-year terms
as provided in the corporation's Articles of Incorporation. The number of
directors shall be fixed exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the Board of Directors then in office.
Section 2.02. Vacancies. Any vacancies in the Board of Directors by reason
of an increase in the number of directors, death, disability, resignation,
removal or otherwise, shall be filled solely by majority vote of the remaining
directors then in office, though less than a quorum, and any such director so
elected shall hold office for a term expiring at the regular meeting of
shareholders at which the term of office of the class to which the director has
been elected, expires.
Section 2.03. Removal. Any director may be removed from office as a
director (i) by the affirmative vote of the holders of 80% of the combined
voting power of the then outstanding shares of stock of the corporation entitled
to vote generally in that election of directors, voting together as a single
class and only for cause, or (ii) by a majority of the directors then in office
with or without cause.
Section 2.04. Place of Meetings. The Board of Directors may meet at such
places, in the State of Minnesota or in any State, as the majority may from time
to time determine.
Section 2.05. Regular Meetings. The Board of Directors may provide by
resolution the date, time and place, either within or without the State of
Minnesota, for the holding of meetings of the Board of Directors without other
notice than such resolution.
Section 2.06. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the Chief Executive Officer, the
President or by any two directors, by giving at least two days' notice thereof.
Section 2.07. Meetings Without Notice. Any director may in writing either
before or after the meeting, waive notice thereof. Without notice, any director
by his attendance at any meeting of the Board of Directors, or at any duly
constituted committee thereof, shall be deemed to have waived notice thereof,
except where the director objects at the beginning of the meeting to the
transaction of business because the meeting is not lawfully called or convened
and does not participate thereafter in the meeting.
Section 2.08. Consent to Action. Any action which might be taken at a
meeting of the Board of Directors, or of any duly constituted committee thereof,
may be taken
without a meeting if done in writing signed by all of the directors, or members
of such committees.
Section 2.09. Conference Communications. Any or all directors may
participate in any meeting of the Board of Directors, or of any duly constituted
committee thereof, by any means of communication through which the directors may
simultaneously hear each other during such meeting. For the purposes of
establishing a quorum and taking any action at the meeting, such directors
participating pursuant to this Section 2.09 shall be deemed present in person at
the meeting; and the place of the meeting shall be the place of origination of
the conference telephone conversation or other comparable communication
technique.
Section 2.10. Quorum and Adjourned Meetings. At all meetings of the Board
of Directors, a quorum sufficient for the transaction of business shall consist
of a majority of the directors. If, however, such quorum shall not be present at
any such meeting, those present thereat shall have power to adjourn the meeting
from day to day without notice other than announcement at the meeting, until a
quorum shall be present.
Section 2.11. Committees. A resolution approved by the affirmative vote of
a majority of the Board of Directors may establish committees having the
authority of the Board of Directors in the management of the business of the
corporation to the extent provided in the resolution. A committee shall consist
of one or more persons, who need not be directors, appointed by affirmative vote
of a majority of the directors present. Committees are subject to the direction
and control of, and vacancies in the membership thereof shall be filled by, the
Board of Directors, except as provided in Section 2.12. A majority of the
members of the committee holding office immediately prior to a meeting of the
committee shall constitute a quorum for the transaction of business, unless a
larger or smaller proportion or number is provided in the resolution
establishing the committee.
Section 2.12. Committee of Disinterested Persons. Pursuant to the procedure
set forth in Section 2.11, the Board of Directors may establish a committee
composed of two or more disinterested directors or other disinterested persons
to determine whether it is in the best interests of the corporation to pursue a
particular legal right or remedy of the corporation and whether to cause the
dismissal or discontinuance of a particular proceeding that seeks to assert a
right or remedy on behalf of the corporation. The committee, once established,
is not subject to the direction or control of, or termination by, the Board of
Directors. A vacancy on the committee may be filled by a majority of the
remaining committee members. The good faith determinations of the committee are
binding upon the corporation and its directors, officers and shareholders. The
committee terminates when it issues a written report of its determination to the
Board of Directors.
Section 2.13. Compensation. The Board of Directors may fix the
compensation, if any, of directors.
ARTICLE III
OFFICERS
Section 3.01. Officers, Qualifications, Authority and Election. Officers
shall be chosen by the Board of Directors and shall consist of a Chairman of the
Board, a Chief Executive Officer, a President, a Secretary, a Chief Financial
Officer, a Treasurer, a Controller and such other officers as the Board of
Directors may from time to time deem advisable including one or more Vice
Presidents, a Vice Chairman and an Executive Vice President. The Board of
Directors may fix the powers, duties and compensation of any of the officers not
specifically provided for herein. Officers, other than the Chairman of the
Board, the Chief Executive Officer and the President, may or may not be members
of the Board of Directors. Any two or more offices may be held by the same
person at the same time. Officers shall hold their respective offices at the
pleasure of the Board of Directors. Any officer may be removed at any time by
the Board of Directors with or without cause. In case of the death,
disqualification, absence or inability to act of any officer of the corporation
or for any other reason the Board of Directors may deem sufficient, the Board of
Directors may delegate the powers and/or duties of such officers to any other
officer or to any director. Ownership of stock shall not be a qualification
necessary to the holding of office.
Section 3.02. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the shareholders and of the directors. He shall have
such other powers and perform such other duties as the Board of Directors may
from time to time prescribe.
Section 3.03. Vice Chairman. In the absence of the Chairman of the Board,
the Vice Chairman shall preside at meetings of the shareholders and of the
directors.
Section 3.04. Chief Executive Officer. The Chief Executive Officer shall
have general and active management of the business under the supervision and
direction of the Board of Directors, and shall be responsible for carrying out
all orders and resolutions of the Board of Directors. He shall have the general
powers and duties usually vested in the office of chief executive officer of a
corporation and shall have such other powers and perform such other duties as
the Board of Directors may from time to time prescribe.
Section 3.05. President. The President shall perform such duties as the
Board of Directors or the Chief Executive Officer may from time to time
designate.
Section 3.06. Inability of the Chief Executive Officer. In the case of the
death, disqualification, absence or incapacity of the Chief Executive Officer,
the Chairman of the Board, or, in the event of his death, disqualification,
absence or incapacity, the Vice Chairman, shall have all the powers and perform
all the duties of the Chief Executive Officer. In case of the death,
disqualification, absence or incapacity of the Chief Executive Officer, Chairman
of the Board and the Vice Chairman, then the President or, failing such, the
Executive Vice President or, failing such, the most senior Vice
President, if any, shall have all of the powers and perform all of the duties of
the Chief Executive Officer.
Section 3.07. Secretary. The Secretary shall attend all meetings of the
Board of Directors and of the shareholders, and shall record all votes and the
minutes of all proceedings thereof. He shall keep the stock books of the
corporation and shall have custody of the corporate seal. He shall give or cause
to be given notice of all meetings of the shareholders and of the Board of
Directors; provided, however, notice given by another shall not be ineffective
merely because it was not given by the Secretary. The Secretary shall perform
such other duties as may from time to time be prescribed by the Board of
Directors or by the Chief Executive Officer.
Section 3.08. Chief Financial Officer. The Chief Financial Officer shall be
responsible for all financial operations of the corporation, including, without
limitation, raising funds, establishing and maintaining banking relationships,
keeping accurate financial records for the corporation, financial administration
and maintenance of internal controls. He shall report the financial condition of
the corporation at the annual meeting of the shareholders in each year and at
all other times when requested by the Board of Directors or the Chief Executive
Officer, and shall perform such other duties as may be prescribed by the Board
of Directors or the Chief Executive Officer.
Section 3.09. Treasurer. The Treasurer shall have the care and custody of
the corporate funds and securities, and shall disburse the funds of the
corporation as may be ordered from time to time by the Board of Directors or the
Chief Executive Officer. He shall perform such other duties as may be prescribed
by the Board of Directors or the Chief Executive Officer.
Section 3.10. Controller. The Controller shall be the chief accounting
officer of the corporation. He shall be responsible, under the direction of the
Chief Financial Officer, for keeping complete and accurate records of the
business, assets, liabilities and transactions of the corporation and for the
preparation of such financial statements as may be required by law or are needed
for internal management purposes. He shall perform such other duties as may be
prescribed by the Board of Directors, the Chief Executive Officer or the Chief
Financial Officer.
ARTICLE IV
STOCK
Section 4.01. Certificates. Certificates of stock shall be numbered, shall
be entered in the books of the corporation as they are issued, shall show the
holder's name and the number of shares, shall be signed by the Chairman of the
Board, the Chief Executive Officer or the President and countersigned by the
Secretary, and shall have the corporate seal affixed thereto. Such signatures
may be by facsimile if authorized by the Board of Directors. Every certificate
surrendered to the corporation for exchange or
transfer shall be cancelled and no new certificate shall be issued in exchange
for any existing certificate unless such existing certificate shall have been so
cancelled.
Section 4.02. Transfers. Transfers of shares shall be made on the books of
the corporation only by the order of the person named in the certificate, by an
attorney lawfully constituted in writing or by a duly authorized
attorney-in-fact and upon surrender of the certificate of stock to be
transferred.
Section 4.03. Ownership. The corporation shall be entitled to treat the
holder of record of any share or shares of stock as the owner in fact thereof
for all purposes whatsoever and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, save as
may be expressly provided by applicable law.
Section 4.04. Lost Certificates. Any person claiming a certificate of stock
to be lost or destroyed shall make an affidavit or affirmation of that fact, and
shall, unless the Board of Directors waives the requirement, give the
corporation a bond of indemnity in form and amount and with one or more sureties
satisfactory to the Secretary whereupon a new certificate may be issued of the
same tenor and for the same number of shares as the one alleged to be lost or
destroyed.
ARTICLE V
EXECUTION OF CORPORATE CONTRACTS
Except as otherwise provided by the Board of Directors, all contracts of
the corporation shall be executed on its behalf by the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer, the Controller, an Executive Vice President, a Vice President or such
other person or persons as one of these officers may from time to time authorize
so to do. Notes given and drafts accepted by the corporation shall be valid only
when signed by the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer, the Controller, an
Executive Vice President, a Vice President or such other person as one of these
officers may from time to time authorize so to do. Checks, drafts, and other
evidences of indebtedness to the corporation shall, for the purpose of deposit,
discount and collection, be endorsed by these same officers or their delegees.
Whenever the Board of Directors shall provide that any contract be executed or
any other act be done in any other manner and by any other officer than as
specified in these By-Laws, such method of execution or action shall be as
equally effective to bind the corporation as specified herein.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall end with the close of business on
the Saturday closest to the last day in February in each year or as otherwise
determined by the Board of Directors.
ARTICLE VII
INDEMNIFICATION
The corporation shall indemnify such persons, for such expenses and
liabilities, in such manner, under such circumstances, and to such extent as
required or permitted by the Minnesota Business Corporation Act, ss.302A.521, as
now enacted or hereafter amended.
ARTICLE VIII
AMENDMENTS
These By-Laws may be altered or amended by majority vote of the entire
Board of Directors, subject to the power of the shareholders to adopt, amend or
repeal the By-Laws as provided in Minnesota Statutes ss. 302A.181, Subdivision
3.
5
1,000
3-MOS
FEB-27-1999
MAR-01-1998
MAY-30-1998
11,701
26,738
155,779
6,956
63,908
258,867
272,684
139,730
478,255
186,457
0
0
0
9,207
104,272
478,255
233,127
233,127
187,804
35,406
0
639
2,646
6,632
2,454
3,878
0
0
0
3,878
0.14
0.14
5
1,000
3-MOS
FEB-28-1998
MAR-02-1997
MAY-31-1997
7,500
26,496
169,913
7,678
62,343
253,369
248,255
128,512
455,585
186,457
0
0
0
9,277
165,699
455,585
223,851
223,851
176,962
31,945
1,208
408
2,304
11,024
4,000
6,774
0
0
0
6,774
0.24
0.24
