<PAGE>
July 7, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Form 10-K/A2 of Barringer Technologies Inc.
Dear Sir or Madam:
Enclosed for filing, pursuant to the Securities Exchange Act of 1934,
is Barringer Technologies Inc.'s second amendment to its Annual Report
on Form 10-K/A2.
Thank you for your cooperation in this matter. Please call the
undersigned if you have any questions or comments. Thank you.
Very truly yours,
Edward M. Zimmerman
</page>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A2
Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the fiscal year ended December 31, 1994
Commission File Number: 0-3207
Barringer Technologies Inc.
(Exact name of registrant as specified in its charter)
Delaware 84-0720473
(State or Other Jurisdiction of
Incorporation or Organization) (I.R.S. Employer Identification No.)
219 South Street, New Providence, NJ 07974
(Address, Including Zip Code, of Principal Executive Offices)
(908) 665-8200
(Registrant's Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
Class E Warrants
Units
Indicate by check mark whether: the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K.
The aggregate market value of voting stock held by nonaffiliates of the
registrant is $6,236,000 as of March 31, 1995.
Indicate the number of shares of each of the issuer's classes of common
stock, outstanding as of the latest practicable date.
Outstanding as of March 24, 1995
Common Stock, $.01 par value 11,486,828 shares
Documents Incorporated by Reference: NONE
Barringer Technologies Inc. (the "Company") hereby amends Part
III and Part IV of its Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 as filed with the Securities and Exchange Commission on
April 17, 1995, as amended by its Form 10-K/A1 filed April 28, 1995, by
adding thereto the text of Items 10 through 13 of Part III and Item 14 of
Part IV below.
PART III
Item 10. Directors and Executive Officers of the Registrant.
Director
Name Position with the Company and Affiliates Since
Stanley S. Binder Director, President and Chief Executive Officer 1991
of the Company; Director of Barringer Laboratories,
Inc. ("Labco").
John H. Davies Director and Executive Vice President of the 1992
Company; President and Chief Executive
Officer of Barringer Research Ltd.
John J. Harte Director and Vice President, Special Projects, 1986
of the Company; Chairman of the Board of Labco.
Richard D. Condon Director of the Company 1992
John D. Abernathy Director of the Company 1993
James C. McGrath Director of the Company 1994
Richard S.Rosenfeld Vice President-Finance, Chief Financial Officer,
Treasurer and Assistant Secretary of the Company. --
Kenneth S. Wood Vice President and Secretary of the Company;
President of Barringer Instruments, Inc. ("BII"). --
Mr. Stanley S. Binder, 53, is a Director and the President and
Chief Executive Officer of the Company. He is also a Director of Labco.
From 1977 to May 1989, Mr. Binder served as Chief Financial Officer to
Keystone Camera Products Corporation, Clifton, New Jersey, and its
predecessors, the principal business of which was the manufacture of low
cost point and shoot cameras. Keystone Camera Products Corporation filed a
petition for protection under the bankruptcy laws in January 1991. In July
1989, Mr. Binder joined the Company and has since held the following
offices with the Company: President from 1989 to the present date, Chief
Operating Officer from 1989 to June 1990, Chief Financial Officer from 1989
until July 1993, and Chief Executive Officer from July 1990 to the present
date. Mr. Binder is also an independent general partner in the Special
Situations Fund III, L.P., a substantial investor in the Company. See Item
13, "Certain Relationships and Related Transactions."
Mr. John H. Davies, 59, is a Director and Executive Vice
President of the Company and the President and Chief Executive Officer of
Barringer Research Ltd.("BRL"). Mr. Davies joined BRL in 1967 and has been
an Executive Vice President and Director of the Company since January 1992.
Mr. Davies has served BRL as a Vice President, and a Senior Vice President;
and currently as BRL's President (since 1984) and Chief Executive Officer
(since August 1989).
Mr. John J. Harte, 53, is a Director and Vice President,
Special Projects, of the Company and Chairman of the Board of Labco, and
has held such positions since joining the Company and Labco in 1986. He is
a certified public accountant and, since 1978, has been and continues to be
a Vice President of Mid-Lakes Distributing Inc., a manufacturer and
distributor of heating and air conditioning parts and equipment located in
Chicago, Illinois.
Mr. Richard D. Condon, 60, has been a Director of the Company
since February 1992. Since 1989, he has worked as a consultant to and
director of Analytical Technology, Inc., Boston, Massachusetts, a
scientific instrumentation company.
Mr. John D. Abernathy, 58, a Director of the Company since
October, 1993, is a certified public accountant and, since January 1995,
has been Executive Director of Patton Boggs LLP, a law firm. He is also a
Director of Oakhurst Capital, Inc., a distributor of automotive parts and
accessories. From March 1994 to January 1995, he was a financial and
management consultant. From March 1991 to March 1994, he was the
Managing Director of Summit Solomon & Feldesman, a law firm in
dissolution since March 1993. From July 1983 until June 1990,
Mr. Abernathy was Chairman and Chief Executive Partner of BDO Seidman,
a public accounting firm.
Mr. James C. McGrath, 53, a Director of the Company since
January 1994, is an international security consultant. Since July 1989, he
has been President of McGrath International, Inc., a management consulting
firm specializing in the security field.
Mr. Richard S. Rosenfeld, 48, is a certified public accountant
and has been Vice President-Finance and Chief Financial Officer of the
Company since July 1993; he has also been the Treasurer and Assistant
Secretary of the Company since January 1992, and was a consultant to the
Company from July 1991 to December 1991. From July 1984 to October 1990,
he was Controller, Vice President-Finance, for Keystone Camera Products
Corporation, Clifton, New Jersey, the principal business of which was the
manufacture of low cost point and shoot cameras. Keystone Camera Products
Corporation filed a petition for protection under the bankruptcy laws in
January 1991.
Mr. Kenneth S. Wood, 44, has been a Vice President of the
Company and the President of BII since January 1992 and the Secretary of
the Company since March 1993. He was Vice President of Operations for BII
from April 1990 to January 1992. From July 1978 until April 1990, he was
Program Director for Lockheed Electronics, the principal business of which
is aerospace and defense electronics.
All Directors are elected by the holders of the Company's
common stock, par value $.01 per share ("Common Stock"), the Company's
convertible preferred stock, par value $1.25 per share ("Convertible
Preferred Stock"), the Company's Class A convertible preferred stock, par
value $2.00 per share ("Class A Convertible Preferred Stock"), and the
Company's Class B convertible preferred stock, par value $2.00 per share
("Class B Convertible Preferred Stock"), to serve one (1) year terms or
until their successors shall be elected and shall qualify. Mr. Binder has
an employment and consulting agreement with the Company. See Item 11,
"Certain Compensation Arrangements." Other officers serve at the
discretion of the Board of Directors.
There are no family relationships among any of the directors
and executive officers.
Under Section 16(a) of the Securities Exchange Act of 1934, the
Company's directors, executive officers, and persons holding more than ten
percent of the Company's Common Stock are required to report their initial
ownership of the Company's Common Stock and any changes in such ownership
to the Securities and Exchange Commission. These persons also are required
to furnish the Company with a copy of all Section 16(a) forms they file.
The Company is obligated to disclose any failures to, on a timely basis,
file such reports. To the Company's knowledge, based solely on a review of
such reports and any amendments thereto which have been furnished to the
Company, the Company has not identified any reports required to be filed
during the 1994 fiscal year that were not filed on a timely manner.
However, the Company has identified one instance of a report required to be
filed during the 1993 fiscal year, which was not filed on a timely basis.
That report related to the purchase by Mr. Abernathy on October 12, 1993 of
directors warrants, which was reported approximately four months late in
February 1994.
Item 11. Executive Compensation.
Executive Officer Compensation.
The following table sets forth the compensation paid for the past three
fiscal years to the President and Chief Executive Officer of the Company
and each other executive officer of the Company whose total annual salary
and bonus are $100,000 or more:
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
<C> <C>
Annual Compensation <C> Long-Term Compensation
Other <C> <C> <C>
<S> <C> <C> <C> Annual Restricted Securities <C>
Name and Principal Compen- Stock Underlying LTIP All Other
Position Year Salary Bonus sation Awards Options Payouts Compensation(1)
Stanley S. Binder 1994 $164,178 - - - - - $ 5,940
President and Chief 1993 148,272 $17,400 - - - - 5,492
Executive Officer 1992 131,640 - - - - - 5,674
John H. Davies 1994 114,830* - - - - - 5,741*
Executive Vice 1993 115,785* 15,600 - - - -
President of the 1992 114,000* - - - - -
Company; President
and Chief Executive
Officer of Barringer
Research Ltd.
Kenneth S. Wood 1994 107,422 - - - - - 2,436
Vice President and 1993 97,874 14,400 - - - - 2,386
Secretary of the 1992 91,500 - - - - -
Company; President
of Barringer Instruments,
Inc.
Richard S.
Rosenfeld 1994 88,400 - - - - - 4,545
Vice President
Finance, 1993 68,094 12,600 - - - - 1,976
Treasurer and
Chief 1992 52,965 - - - - - 1,976
Financial Officer
of the Company
</TABLE>
____________________________
* Amounts converted to US dollars at the average exchange rate for the
respective year.
(1) Represents amounts contributed by the Company pursuant to the
Company's tax-qualified 401(k) deferred compensation plan ("401(k) Plan").
The 401(k) Plan provides that the Company will make matching contributions
to the participants in the 401(k) Plan equal to 100% of the first 2% of a
participant's salary contributed and 50% of the next 5% of a participant's
salary contributed, which contributions vest proportionately over a five
year period commencing at the end of the participant's first year with the
Company.
There were no stock options granted in 1994 to any of the executive
officers named in the Summary Compensation Table.
The following table sets forth information with respect to the executive
officers named in the foregoing Summary Compensation Table concerning the
exercise of stock options during 1994 and unexercised options held by such
executive officers as of December 31, 1994, the end of the last fiscal
year:
AGGREGATED OPTION EXERCISES IN 1994 AND
FISCAL YEAR-END OPTION VALUES
<TABLE>
<C>
Value of
Unexercised
<C> in-the-Money
Number of Securities Options at
(S) <C> <C> Underlying Unexercised Year-End
Shares Acquired Value Options at Year-end Exercisable/
Name On Exercise Realized(1) Exercisable/Unexercisable Unexercisable
Stanley S.Binder 150,000 $ 87,625 - -
John H. Davies - - - -
Kenneth S. Wood 40,000 $ 5,900 36,000/24,000 -
Richard S. Rosenfeld - - 25,000/10,000 -
_______________________________
</TABLE>
(1) Dollar values are calculated by determining the difference between the
fair market value of the Common Stock underlying the options and the
exercise price of the options on the date of exercise.
The Company's Canadian subsidiary, Barringer Research Ltd., maintained
a defined benefit pension plan for its Canadian employees that was
terminated on December 31, 1993. Mr. Davies was a participant in that
plan. His projected annual benefit at age 65 has been set at approximately
Cdn. $74,000, which amount may be subject to change only in response to
changes in the Canadian pension regulatory scheme.
Directors' Compensation.
The Board has adopted a compensation plan for outside directors.
Outside directors are entitled to an annual retainer paid at the rate of
$2,500 per quarter and a fee of $1,000 for each meeting attended. In
addition, outside directors are eligible to participate in the 1991 Warrant
Plan (as described below). Although Mr. Harte is a non-employee director,
he does not participate in the Company's compensation plan for non-
directors. Mr. Harte receives a fee of $2,000 per month for services he
renders to the Company, and a fee of $1,000 for each meeting he attends in
his capacity as a director.
The Board of Directors has adopted the 1991 Directors Warrant Plan (the
"1991 Warrant Plan"). Under the 1991 Warrant Plan, each non-employee
director, upon election or appointment to the Board, will be sold, at $0.10
per warrant, 15,000 warrants, each of which may be exercised within five
years to purchase one share of Common Stock at an exercise price to be
determined by the Board at the time of such sale, which exercise price
shall not be less than the market price for the shares underlying the
warrants at the time of issuance of such warrants. The 1991 Warrant Plan
provides that each such new director shall use the first quarterly
director's fees to pay the purchase price for such warrants.
Certain Compensation Arrangements.
The Company has entered into an Employment and Consulting Agreement
with Stanley S. Binder, the President and Chief Executive Officer of the
Company, (the "Employment Agreement"), pursuant to which Mr. Binder
receives compensation for his services as President of the Company at an
initial annual rate of $120,000, subject to increases equal to percentage
increases in the Consumer Price Index as well as by increases authorized by
the Company's Executive Compensation Committee. Mr. Binder's annual salary
effective May 31, 1994 is $171,491. The Employment Agreement renews
automatically each year, unless either party gives the other six months
prior written notice of non-renewal. In addition, the Employment Agreement
provided for the grant to Mr. Binder of an option to purchase 100,000
shares of Common Stock at an exercise price of $1.00 per share, which
approximated market value at the time that the Employment Agreement was
executed. The Employment Agreement also provided that the Company would
grant to Mr. Binder an incentive stock option under the Company's then
existing incentive stock option plan to purchase an additional 100,000
shares of Common Stock at an exercise price of $2.00 per share, which was
in excess of market value at the time that the Employment Agreement was
executed, with 20,000 shares exercisable in each of the five years
beginning on July 10, 1991 (exercisable on a cumulative basis). The
Company later determined that the number of remaining shares reserved for
issuance under the Company's then-existing incentive stock option plan was
insufficient to fulfill its obligation to Mr. Binder to grant the second
option. As a result, the Board of Directors and Mr. Binder agreed that the
Company would grant Mr. Binder, in lieu of the second option described
above, a non-qualified option to purchase 100,000 shares of Common Stock at
an exercise price of $2.00 per share, subject to anti-dilution provisions,
which option would become exercisable immediately as to all shares subject
thereto. Such non-qualified option has been granted and has been exercised
by Mr. Binder, pursuant to the Stock Option Exercise Program. See Item 13,
"Certain Relationships and Related Transactions." Mr. Binder does not
receive any additional compensation for his services to Labco.
Compensation Committee Interlocks and Insider Participation.
The Company's Executive Compensation Committee (the "Committee") is
comprised of Messrs. Abernathy, Harte and McGrath. Mr. Condon served on the
Committee until May 1994. During the fiscal year ended December 31, 1994,
Mr. Harte was also the Vice President, Special Projects, of the Company.
Messrs. Abernathy, Condon and McGrath were not officers or employees of the
Company during fiscal 1994.
The Company owns a 47% common share equity interest in Labco. Mr.
Harte is Chairman of the Board of Labco, and Mr. Binder is a Director of
Labco. Until January 1994, Mr. Binder was also the Chief Financial Officer
and Treasurer of Labco, positions from which he resigned as of that date.
Mr. Binder served on the compensation committee of Labco's Board of
Directors during fiscal 1994. Except as described in the preceding
sentence, no executive officer of the Company and no member of the
Committee is a member of any other business entity that has an executive
officer that sits on the Company's Board or on the Committee.
Pursuant to the terms of a certain Stockholders' Agreement, dated as of
December 15, 1989, by and among the Company and certain employees of Labco
("Stockholders' Agreement"), certain stockholders of Labco transferred to
the Company in the form of irrevocable proxies the right to vote their
shares of Labco common stock, giving the Company voting control of more
than 50% of Labco's outstanding common stock. The Stockholders' Agreement
also provided that the Company would have the right of first refusal to
purchase such shares in the event that such stockholders wish to sell. The
Stockholders' Agreement terminated on December 15, 1994, and was not
extended by the parties thereto. In order to maintain voting control of
more than 50% of Labco's common stock, the Company entered into a
stockholders' agreement, dated as of March 16, 1994, with one stockholder
of Labco, pursuant to which such stockholder agreed, so long as it is a
stockholder of Labco, to vote its 83,000 shares of Labco common stock in
the manner designated by the Company. No cash consideration was paid to
such stockholder by the Company for such obligations.
On April 21, 1994, Mr. Binder exercised options to purchase 150,000
shares of Common Stock pursuant to the Stock Option Exercise Program, in
exchange for which Mr. Binder executed notes payable to the Company in the
amount of $203,000. For the period in which no interest accrued on the
amounts payable to the Company (from April 21, 1994 until the end of fiscal
1994), Mr. Binder received benefits of $10,609 under the Stock Option
Exercise Program, representing interest otherwise payable on such $203,000.
See Item 12, "Certain Relationships and Related Transactions" for a
description of the Stock Option Exercise Program. In April of 1993, the
Company had provided to Mr. Binder an unsecured demand loan of $20,000 in
connection with the incurrence by Mr. Binder of tax liability upon
exercising certain of his non-qualified stock options. That loan did not
bear interest for the first year, after which interest accrued at a rate
equivalent to the then current prime rate. The total benefit to Mr. Binder
during that portion of 1994 in which such loan did not bear interest was
$320.
Item 12. Security Ownership of Certain Beneficial Owners and
Management.
The following table sets forth, as of March 1, 1995, the number of
shares of Common Stock, Convertible Preferred Stock, and Class B
Convertible Preferred Stock owned by each director and all directors and
executive officers as a group and any persons (including any "group" as
used in Section 13(d)(3) of the Securities Exchange Act of 1934) known by
the Company to own beneficially 5% or more of such securities. As of March
1, 1995, there were 11,486,828 shares of Common Stock, 444,099 shares of
Convertible Preferred Stock, 82,494 shares of Class A Convertible Preferred
Stock and 317,500 shares of Class B Convertible Preferred Stock issued and
outstanding. As of that date, none of the officers and directors owned
shares of the Company's Class A Preferred Stock, any of the Company's
Convertible Debentures or any of the Company's outstanding warrants.
<TABLE>
<C> <C> <C> <C> <C>
Common Stock Convertible Preferred Class A Convertible Class B Convertible Total Common
Stock Stock Preferred Stock Stock and Common
<S> <C> <C> <C> <C> <C> Stock Equivalents
(1)
Name of Beneficial Number of Percent of Number of Percent of Number of Percent of Number of Percent of Number of Percent of
Owner Shares Class Shares Class Shares Class Shares Class Shares Class
Stanley S. Binder 150,000 1.3% - - - - - - 150,000 (2) 1.3%
John H. Davies 163,117 1.4 - - - - - - 163,117 1.4
John J. Harte 40,000 * - - - - - - 55,000 *
Richard D. Condon - - - - - - - - 15,000 *
John D. Abernathy 6,000 - - - - - - - 21,000 *
James C. McGrath - - - - - - - - 15,000 *
Kenneth S. Wood 40,000 - - - - - - - 100,000 *
Richard S. Rosenfel 1,600 - - 26,600
All directors and executive
officers as a group consisting
of eight (8) persons 400,717 3.5 - - - - - - 545,717 4.7
Special Situations
Fund III, L.P.
153 E. 53rd St.
NY, NY 10022 22,564 * 330,000 74.3% - - - - 392,553 3.3
Herbert Boeckmann II
15505 Roscoe Blvd.
Sepulveda, CA
93134-650 337,223 * - - - - 60,000 18.9% 99,950 *
John R. Purcell
c/o Grenadier
Association
700 Canal Street
Stamford, CT
06902-5921 28,748 * - - - - 100,000 31.5 133,293 1.1
Penfield Partners, Ltd.
153 E 53rd St.
NY, NY 10022 169,614 1.5 - - - - 60,000 18.9 232,341 2.0
Colman Abbe
c/o Hampshire Fin. Group
919 3rd Ave.
NY, NY 10022 58,779 * 29,000 6.5 - - 25,000 7.9 117,429 1.0
Nancy A. Abbe
c/o Hampshire Fin. Group
919 3rd Ave.
NY, NY 10022 9,733 * - - - - 25,000 7.9 35,869 *
R.R. Bowlin
Ft. Wayne, IN 37,194 * - - - - 25,000 7.9 63,330 *
Esther & Carlos Otto
Cheyenne, WY 19,700 * - - 14,060 17.0% - - 34,802 *
Elizabeth Butenschoen
Colfax, CA 2,301 * - - 6,530 7.9% - - 9,315 *
_____________________
*Less than 1%
</TABLE>
(1) Common Stock Equivalents for each person or entity assumes the
exercise of all outstanding warrants for Common Stock, the conversion of
each outstanding share of Convertible Preferred Stock, Class A Convertible
Preferred Stock and Class B Convertible Preferred Stock into Common Stock
and the issuance of all shares of Common Stock subject to options for such
person or entity.
(2) Does not include 22,564 shares of Common Stock and 330,000 shares
of Convertible Preferred Stock owned by Special Situations Fund III, L.P.,
of which Mr. Binder is an Independent General Partner. Mr. Binder
disclaims any beneficial interest in such shares.
Item 13. Certain Relationships and Related Transactions
Under the Company's policies and procedures set forth by the Board of
Directors for reviewing related party transactions, any transaction between
the Company and its respective officers, directors or principal
stockholders must be on terms no less favorable to the Company than can be
obtained from unaffiliated third parties and must be approved by a majority
of the disinterested directors of the Company. Loans will not be made to
officers, directors or 5% stockholders except those made pursuant to the
Company's Stock Option Exercise Program (as described below) and those made
for bona fide business purposes. The Company believes that these measures
ensure that the terms of any related party transaction will be at least as
fair as those that could be obtained in arm's length transactions, unless
intended to constitute additional compensation to the parties involved.
In connection with the Company's stock option plan, the Board of
Directors has approved a stock option exercise program ("Stock Option
Exercise Program"). The Stock Option Exercise Program permits all
employees of the Company and its subsidiaries who are granted stock options
(pursuant to either qualified or non-qualified plans) to finance the
exercise of such options by causing the Company to issue the shares
underlying such options upon receipt by the Company from the employee of a
note evidencing indebtedness to the Company in an amount equal to the
exercise price. Such loans, which are secured by the underlying shares of
Common Stock, are interest-free for one year from the date on which the
employee exercises his option, after which interest accrues at rate per
annum equivalent to the prime rate, which rate is changed monthly.
Pursuant to the Stock Option Exercise Program, on April 21, 1994, Mr.
Binder and Mr. Wood exercised options to purchase 150,000 shares, of Common
Stock and 40,000 shares of Common Stock, respectively, in exchange for
which Mr. Binder and Mr. Wood executed notes payable to the Company in the
amount of $203,000 and $71,600, respectively. For the period in which no
interest accrued to the Company (from April 21, 1994 until the end of
fiscal 1994, ), Mr. Binder and Mr. Wood received benefits of $10,609 and
$3,742, respectively, under the Stock Option Exercise Program, representing
interest otherwise payable on such notes.
On May 9, 1995 the Company sold to the special Situations Fund III,
L.P. ("SSF III"), a current shareholder and an investment group of which
Mr. Binder is an Independent General Partner, and to the Special Situations
Fund Cayman, L.P., an affiliate of SSF III (collectively, with SSF III,
"SSF"), an aggregate of 125 units at a purchase price of $6,000 per unit
for an aggregate purchase price of $750,000. Each unit consists of 10,000
shares of Common Stock and a five-year warrant to purchase 10,000 shares of
Common Stock at $.50 per share, subject to certain anti-dilutive
provisions. As an inducement to enter into the transaction and in lieu of
a transaction fee, the Company also issued to SSI warrants, exercisable for
three years, to purchase an aggregate of 150,000 shares of Common Stock at
$.50 per share, subject to certain anti-dilutive provisions. In addition,
on June 30, 1995, the company sold 22 units to certain officers and
directors of the Company for an aggregate purchase price of $132,000. Such
units were identical to those sold to SSF. For information relating to Mr.
Binder's indebtedness to the Company. See Item 11, "Compensation Committee
Interlocks and Insider Participation" above.
For a description of certain other relationships, see Item 11,
"Management -- Compensation Committee Interlocks and Insider
Participation."
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a)(1) Financial Statements.
The following financial statements of the Company are incorporated by
reference to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, File No. 0-3207.
Report of Independent Certified Public Accountants
Consolidated Statements of Operations for the Years Ended
December 31, 1994, 1993 and 1992
Consolidated Balance Sheets - December 31, 1994 and 1993
Consolidated Statements of Shareholders' Equity for the Years
Ended December 31, 1994, 1993 and 1992
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1994, 1993 and 1992
Notes to Consolidated Financial Statements
(a)(2) Financial Statement Schedule.
The following schedule is incorporated by reference to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994,
File No. 0-3207.
Schedule II - Valuation and Qualifying Accounts
All other schedules called for by Regulation S-X are not submitted
because they are not applicable or not required or because the required
information is not material or is included in the financial statements or
notes thereto.
(b) Reports on Form 8-K.
None.
(c) Exhibits.
3.1A Certificate of Incorporation of Barringer Technologies Inc.
(formerly Barringer Research Inc.) and any amendments thereto (13)
3.1B Certificate of Designation of Class A Convertible Preferred Stock
of the Company. (8)
3.1C Certificate of Decrease in the Number of Shares of Class A
Convertible Preferred Stock and Certificate of Designation
of Class B Convertible Preferred Stock. (9)
3.2A By-laws of the Company.
4.6A Class E Warrant Agreement between the Company and American
Stock Transfer & Trust Company. (1)
4.16 Indenture between the Company and The Colorado National Bank of
Denver as Trustee, dated July 15, 1981. (7)
10.15 Employment Agreement, dated as of July 10, 1989, between the
Company and Stanley S. Binder. (1)
10.16 Barringer Resources, Inc. 1990 Stock Option Plan. (5)
10.17B Stockholders' Agreement, dated as of December 15, 1989, by
and among the Company and certain Employees of Barringer
Laboratories, Inc. (1)
10.24 License Agreement dated February 27, 1989 between Canadian
Patents and Development Limited - Societe Canadienne Des
Brevets Et D'Exploitation Limite and Barringer Instruments
Limited. (4)
10.25 Contribution Agreement dated December 22, 1989 by and among
Defense Industrial Research Program, the Department of
National Defense, Barringer Research Limited and Barringer
Instruments Limited. (4)
10.28 Form of Stock Purchase Agreement dated December 9, 1991 between
the Company and certain Selling Stockholders. (4)
10.29 Stock Purchase Agreement dated May 11, 1992 by and between
Barringer Laboratories, Inc. and Philip Environmental Inc. (10)
10.31 Form of Stock Purchase Agreement dated as of November 30, 1992
by and between the Company and certain accredited investors. (10)
10.32 Financial Advisory Agreement dated April 2, 1992 between the
Company and Laidlaw International, Inc. (10)
10.33 Stock Purchase Agreement dated as of February 2, 1993 by and
between the Company and Special Situations Caymen Fund, L.P. (10)
10.34 Form of Stock Purchase Agreement dated as of December 13, 1993
by and between the Company and certain accredited investors. (11)
10.35 Voting Agreement by and between the Company and Special
Situations Fund III, L.P. (11)
10.36 Loan Agreement, dated September 20, 1994, between Ontario
Development Corporation and Barringer Research Limited (12)
11 Statement re: computation of earnings per share (12)
21 Subsidiaries of Barringer Technologies Inc. (11)
23.1 Consent of Independent Certified Public Accountants (12)
23.2 Consent of Independent Certified Public Accountants (12)
__________________________
(1) Incorporated by reference to the identically numbered exhibit to the
Registrant's Registration Statement on Form S-1, File No. 33-31626.
(2) Incorporated by reference to the identically numbered exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1989, File No. 0-3207.
(3) Incorporated by reference to the identically numbered exhibit to the
Registrant's Registration Statement on Form S-1, File No. 33-22851.
(4) Incorporated by reference to the identically numbered exhibit to the
Registrant's Registration Statement on Form S-1, File No. 33-43094.
(5) Incorporated by reference to Exhibit 10.25 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1990, File No. 0-
3207.
(6) Incorporated by reference to Exhibit 4.1.1 to Registration Statement
on Form S-1 File No. 2-70458.
(7) Incorporated by reference to Exhibit 4.3 to Registration Statement on
Form S-1 File No. 2-70458.
(8) Incorporated by reference to Exhibit 1.3 to the Registrant's
Registration Statement on Form S-1, File No. 33-31626.
(9) Incorporated by reference to Exhibit 1.4 to the Registrant's
Registration Statement on Form S-1, File No. 33-43094.
(10) Incorporated by reference to the identically numbered exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1992, File No. 0-3207.
(11) Incorporated by reference to the identically numbered exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1993, File No. 0-3207.
(12) Incorporated by reference to the identically numbered exhibit to the
Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1994, File No. 0-3207.
(13) Incorporated by reference to the identically numbered exhibit to the
Registrant's Annual Report on Form 10-K/A1 for the fiscal year ended
December 31, 1994, File No. 0-3207.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
BARRINGER TECHNOLOGIES INC.
By: /s/ Richard S. Rosenfeld
Richard S. Rosenfeld,
Vice President-
Finance, Chief
Financial Officer
and Treasurer
(Principal Financial
Officer and
Principal Accounting
Officer)
Dated: July 7, 1995
INDEX TO EXHIBITS
Exhibit
Number Page No.
Exhibit 3.2A By-laws of Barringer Technologies Inc.
</page>
<PAGE>
EXHIBIT 3.2A
</page>
AMENDED AND RESTATED BY-LAWS
OF
BARRINGER TECHNOLOGIES INC.
(Effective September 13, 1994)
OFFICES
Section 1.1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 1.2. Other Offices. The Corporation may also
establish and maintain such other offices as the Board of Directors may
from time to time deem necessary or advisable or as the business of the
Corporation may require.
STOCKHOLDERS
Section 2.1. Place of Meetings of Stockholders. Meetings of
the Stockholders shall be held at such place or places as may be fixed from
time to time by the Board of Directors and the Corporation.
Section 2.2. Annual Meeting of Stockholders. The annual
meeting of the Stockholders for the election of directors and for the
transaction of such other business as may properly come before the meeting
shall be held on the second Wednesday of June of each year, if not a legal
holiday, and if that day be a legal holiday, then on the next business day
following; provided, however, that the annual meeting may be held on such
other day as determined by resolution of the Board of Directors, as stated
in the notice of the meeting.
Section 2.3. Notice of the Annual Meeting of Stockholders.
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 (10) nor more than sixty (60) days before the
date of the meeting.
Section 2.4. Special Meetings of Stockholders. Special
meetings of the Stockholders, for any purpose or purposes, unless otherwise
prescribed by law, may be called by the President, and shall be called by
the President or Secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of Stockholders owning a
majority in amount of the entire capital stock of the Corporation issued
and outstanding and entitled to vote. Such request shall state the purpose
or purposes of the proposed meeting.
Section 2.5. Notice of Special Meetings of Stockholders.
Written notice of a special meeting of Stockholders 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 (10) nor more than sixty (60)
days before the date of the meeting, to each Stockholder entitled to vote
as such meeting.
Section 2.6. Fixing Record Date. The Board of Directors may
fix, in advance, a date as the record date for the purpose of determining
the Stockholders entitled to notice of or to vote at any meeting of
Stockholders or any adjournment thereof, or for the payment of any dividend
or other distribution or allotment of any rights, or to exercise any rights
in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, which record date shall not precede the
date upon which the resolution fixing the record date is adopted and which
record date shall not be more than sixty (60) or less than ten (10) days
before the date of such meeting, or more than sixty (60) days prior to any
other lawful action.
Section 2.7. List of Stockholders Entitled to Vote. The
officer who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten (10) 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. 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 (10) days prior to the meeting, either at a place within the city
where the meeting is to be held, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may
be inspected by any Stockholder who is present.
Section 2.8. Quorum; Adjourned Meetings. The holders of
shares of stock having a majority of the votes entitled to be cast by the
holders of all issued and outstanding shares of stock entitled to vote at
the meeting, 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 the
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 (30) 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 2.9. Vote Required to Act. When a quorum is present
at any meeting, the vote of the holders of a majority of the voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon 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; provided, however, that
at all meetings of stockholders for the election of directors a plurality
of the votes cast shall be sufficient to elect.
Section 2.10. Voting Rights of Stockholders; Proxies. Unless
the Certificate of Incorporation of the Corporation shall provide
otherwise, each Stockholder shall at every meeting of the Stockholders be
entitled to one (1) vote in person or by proxy for each share of the
capital stock having voting power held by such Stockholder. Each
Stockholder entitled to vote at any meeting of Stockholders or to express
consent or dissent without a meeting may authorize another person or person
to act for him or her by proxy, but no proxy shall be voted after three (3)
years from its date, unless the proxy provides for a longer period.
Without limiting the manner in which a Stockholder may authorize another
person or persons to act for him or her as proxy, a Stockholder may execute
a writing authorizing another person or persons to act for him or her as
proxy. Execution may be accomplished by the Stockholder or his or her
authorized officer, director, employee or agent signing such writing or
causing his or her signature to be affixed to such writing by any
reasonable means including, but not limited to, by facsimile signature, and
shall be filed with the Secretary of the Corporation.
Section 2.11. Action Without Meeting. Any action required
to be taken at any annual or special meeting of Stockholders of the
Corporation, or any action which may be taken at any annual or special
meeting of such Stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those Stockholders who have not consented in writing.
Section 2.12. Inspectors at Stockholders' Meeting. The Board
of Directors, in advance of any meeting of Stockholders, may appoint one or
more inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the presiding officer may, and on the
request of any Stockholder entitled to vote thereat shall, appoint one or
more inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the
best of his ability.
DIRECTORS
Section 3.1. Powers of the Board of Directors. The business
of the Corporation shall be managed by its Board of Directors (sometimes
hereinafter referred to as the "Board") which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not be
statute or by the Certificate of Incorporation or by these By-laws directed
or required to be exercised or done by the Stockholders.
Section 3.2. Number, Election, Tenure and Qualification of
Directors. The number of directors which shall constitute the whole Board
shall be not less than three (3) nor more than fifteen (15). Within the
limits above specified, the number of directors shall be determined by
resolution of the Board at any meeting. The directors shall be elected at
the annual meeting of the Stockholders, except as provided in Section 3.3
of these By-laws, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be Stockholders.
Section 3.3. Newly Created Directorships and Vacancies.
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 the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office,
then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a
majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any Stockholder
or Stockholders holding at least ten (10%) percent of the total number of
the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
Section 3.4. Resignations. A resignation from the Board shall
be deemed to take effect upon its receipt by the Secretary, unless
otherwise specified therein.
Section 3.5. Place and Time of Meetings of the Board. A
regular meeting of each newly elected Board shall be held immediately
following the Annual Meeting of Stockholders and at the place of such
meeting, or as soon as practicable thereafter at such place as shall have
been previously fixed for that purpose by resolution of the Board. Other
regular meetings by the Board may be held at such times and places as the
Board may from time to time determine. Special meetings of the Board shall
be held whenever called by order of the Board, by the President or by the
Secretary at the written request of any three directors, and at such place
or places as may be fixed by the Board or designated in the notice of such
meeting.
Section 3.6. Notice of Meetings of the Board of Directors.
Notice of regular meetings of the Board need not be given. Notice of the
time and place of every special meeting of the Board shall be given at
least two (2) days before the meeting. Except as otherwise provided by law
or by these By-laws, any notice of meeting need not specify the purpose of
the meeting.
Section 3.7. Quorum. At all meetings of the Board a majority
of the total number 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,
except as may otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any
meeting of the Board, 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 3.8. Action Without Meeting. 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 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.
Section 3.9. Compensation and Reimbursement of Directors. The
Board may fix the compensation of directors for services in any capacity,
and may allow directors a fixed sum and expenses of attendance, if any, for
attendance at each directors' meeting. Members of committees may be
allowed similar compensation and reimbursement for their services as such.
No such payment shall preclude any director or committee member from
serving the Corporation in any other capacity and receiving compensation
therefore.
Section 3.10. Interest Directors. No contract or other
transaction between the Corporation and one or more of its directors,
officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely
because such director or officer is present at or participates in the
meeting of the Board or committee thereof which authorizes such contract or
transaction, or solely because his or their votes are counted for such
purposes, if:
(1) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are
known to the Board or the committee, and the Board or committee in
good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(2) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are
known to the Stockholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote of the
Stockholders; or
(3) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by
the Board, a committee thereof, or the Stockholders.
Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board which authorizes the
contract or transaction.
Section 3.11. Executive Committee. The Board may, from time
to time, by resolution passed by a majority of the whole Board, designate
an Executive Committee consisting of two or more directors of the
Corporation. The Executive Committee shall have and exercise all of the
powers of the Board 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 shall serve at the
pleasure of the Board, which shall have the power at any time to change the
members thereof, to fill vacancies therein and to discharge such Committee,
with or without cause.
Section 3.12. Other Committees. The Board may, from time to
time, by resolution passed by a majority of the whole Board, establish one
or more committees of the Board, having such powers and responsibilities,
and consisting of two or more directors of the Corporation, as the Board
shall designate. Any and all such committees shall serve at the pleasure
of the Board, which shall have the power at any time to change the members
thereof, to fill vacancies therein and to discharge any such committee,
with or without cause.
OFFICERS
Section 4.1. Authorized Officers. The officers of the
Corporation shall be a President, one or more Vice-Presidents, a Treasurer
and a Secretary. One person may hold more than one office, and if the same
person holds both the office of Secretary and the office of Treasurer, he
may be known as the Secretary-Treasurer.
Section 4.2. Election or Appointment and Term of Office. The
officers of the corporation, other than subordinate or assistant officers,
shall be elected or appointed annually by the Board at its first meeting
held after each Annual Meeting of Stockholders.
The Board may from time to time appoint such subordinate or
assistant officers, with such powers and duties, as it may deem desirable,
and may from time to time authorize any officer to appoint and remove such
subordinate or assistant officers and prescribe their powers and duties.
Each officer shall hold office until his or her successor has
been elected or appointed and qualified or until the office is declared
vacant by the Board, unless he or she shall sooner die, resign or be
removed as hereinafter provided.
Section 4.3. Removal. Any officer of the Corporation elected
or appointed by the Board may be removed at any time by the affirmative
vote of a majority of the Board. Any vacancy occurring in any office of
the Corporation shall be filled by the Board.
Section 4.4. Resignation. Any officer may resign at any time
by giving written notice to the President or the Secretary. Any such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.5. Security. The Board may require any officer to
give security for the faithful performance of his duties. Such security
may be in the form of a bond in such form and with such surety or sureties
as the Board may approve.
Section 4.6. Compensation. The Board shall have power to fix
the compensation of all officers of the Corporation. It may authorize any
officers upon whom the power of appointing subordinate or assistant
officers may have been conferred to fix the compensation of such
subordinate or assistant officers.
Section 4.7. President. The President shall be the chief
executive officer of the Corporation and, subject to the control of the
Board and the Executive Committee, shall in general supervise and control
all of the business and affairs of the Corporation. He shall, when
present, preside at all meetings of the Stockholders and of the Board. He
may sign, with the Secretary or any other proper officer of the Corporation
thereunto authorized by the Board, certificates representing shares of the
Corporation, and deeds, mortgages, bonds, contracts, or other instruments
which the Board has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board or
by these By-laws to some other officer or agent of the Corporation, or
shall be required by law to be otherwise signed or executed; and in general
shall perform all duties as may be prescribed by the Board from time to
time.
Section 4.8. Vice Presidents. In the absence of the President
or in the event of his death or inability to act, the Vice President (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated at the time of their election, or in the absence of any
designation, then in the order of their seniority) shall perform the duties
of the President, and when so acting, shall have all the authority of and
be subject to all the restrictions upon the President. Any Vice-President
may sign, with the Secretary or any other proper officer of the Corporation
thereunto authorized by the Board, certificates representing shares of the
Corporation; and shall perform such other duties as from time to time may
be assigned to him by the President or by the Board.
Section 4.9. Secretary. The Secretary shall keep the minutes
of the meetings of the Stockholders, of the Board and of the Executive
Committee in books provided for the purpose. He shall see that all notices
are duly given in accordance with the provisions of these By-laws or as
required by law. He shall be custodian of the corporate records and of the
seal of the Corporation. He shall see that the corporate seal is affixed
to all documents, the execution of which on behalf of the corporation under
its seal is duly authorized, and when so affixed may attest the same. In
general, he shall perform all duties incident to the office of Secretary,
and such other duties as from time to time may be assigned to him by the
President or by the Board.
Section 4.10. Treasurer. The Treasurer shall have charge of
and be responsible for all funds, securities, receipts and disbursements of
the Corporation and shall deposit or cause to be deposited in the name of
the Corporation all moneys or other valuable effects in such banks, trust
companies or other depositories as shall from time to time be designated by
the Board. He shall have charge and custody of and be responsible for the
keeping of correct and complete books and records of the account of the
Corporation and shall render to the Board whenever requested an account of
the financial condition of the Corporation. In general he shall perform
all the duties incident to the office of Treasurer and such other duties as
may be assigned to him by the President or by the Board.
Section 4.11. Assistant Secretaries and Assistant Treasurers.
The Assistant Secretary and Assistant Treasurer or, if there be more than
one, the Assistant Secretaries and Assistant Treasurers in the order
determined by the Board, shall, in the absence or inability of the
Secretary or the Treasurer, perform the duties and exercise the powers of
the Secretary and the Treasurer, respectively, and shall perform such other
duties and have such other powers as from time to time may be assigned to
them or any of them by the President or by the Board.
SHARES AND STOCKHOLDERS
Section 5.1. Certificates. Each Stockholder shall be entitled
to a share certificate or certificates in a form to be approved by the
Board, certifying the number of shares owned by him, signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary and sealed with the
seal of the Corporation or a facsimile thereof.
Section 5.2. Transfer of Shares. Transfer of shares of stock
of the Corporation shall be made only on the books of the corporation by
the holder thereof or by duly authorized power of attorney duly executed
and filed with the Secretary of the Corporation, or its transfer agent, and
upon the surrender of the certificate representing the shares to be
transferred properly endorsed and bearing the requisite amount of stock
transfer stamps, if any, duly canceled. No transfer of shares of stock of
the Corporation shall be valid as against the Corporation, its Stockholders
and creditors for any purpose, until it shall have been entered in the
stock books of the corporation by an entry showing from and to whom
transferred.
Section 5.3. Lost, Mutilated or Destroyed Certificates. In
case any share certificate is lost, mutilated or destroyed, the Board may
authorize the issuance of a new certificate in place thereof upon such
terms and conditions as it may deem advisable.
DEPOSITORIES
Section 6. The Board may designate one or more depositaries
for the funds of the Corporation and shall determine what officer or
officers or other agents or employees shall be entitled to act on behalf of
the Corporation with respect to accounts of the Corporation with such
depositories.
FISCAL YEAR
Section 7. The fiscal year of the Corporation shall be fixed,
and shall be subject to change, by resolution of the Board.
SEAL
Section 8. The Board shall provide a suitable seal having
inscribed thereon the name of the Corporation, the year 1967 and such other
appropriate legend as may from time to time be determined by the Board. If
deemed advisable by the Board, a duplicate seal or seals may be provided
and kept for the necessary purposes of the Corporation.
NOTICES
Section 9.1. Manner of Notice. Whenever by law, the
Certificate of Incorporation or these By-laws, notice is required or
permitted to be given to any Stockholder, director, officer or member of a
committee, it shall not be construed to require personal notice, but such
notice may be given in writing, by mail, addressed to such person at his or
her address as the same appears on the books of the Corporation or to such
other address as such person may have designated in a written request to
the Secretary of the Corporation, with postage prepaid thereon, and such
notice shall be deemed to be given at the time when the same shall be so
deposited in the United States mail.
Section 9.2. Waiver of Notice to Stockholders. Notice of a
meeting need not be given to any Stockholder who submits a signed waiver of
notice in person or by proxy, whether before or after the meeting. The
attendance of any Stockholder at a meeting, in person or by proxy, except
for the purpose of objecting at the beginning of the meeting to the lack of
notice to such meeting, shall constitute a waiver of notice by him.
Section 9.3. Waiver-of Notice to Directors. Notice of a
meeting need not be given to any director who submits a signed waiver of
notice whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of
notice to him. A waiver of notice need not specify the purpose of any
regular or special meeting of the Board.
Section 9.4. When Notice or Lapse of Time Unnecessary.
Whenever by law, the Certificate of Incorporation or these By-laws or by
the term of any agreement or instrument, the Corporation or the Board is
authorized to take any action after notice to any person or persons, such
action may be taken without notice if at any time before or after such
action is completed the person or persons entitled to such notice or
entitled to participate in the action to be taken or, in the case of a
Stockholder, his attorney-in-fact, submit a signed waiver of notice of such
requirements.
Section 10. Indemnification. Every person (and the heirs,
executors and administrators of such person) who is or was a director,
officer, employee or agent of the Corporation, or any other company which
such person serves or served as such at the request of the Corporation,
shall be indemnified by the Corporation against all judgments, payments in
settlement (whether or not approved by court), fines, penalties and other
reasonable costs and expenses (including fees and disbursements of counsel)
imposed upon or incurred by such person in connection with or resulting
from any action, suit, proceeding, investigation or claim, civil, criminal,
administrative, legislative or other (including any criminal action, suit
or proceeding in which such person enters a plea of guilty or nolo
contendere or its equivalent), or any appeal relating thereto, which is
brought or threatened either by or in the right of the Corporation or such
other company (herein called a "derivative action") or by any other person,
governmental authority or instrumentality (herein called a "third-party
action"), and in which such person is made a part or is otherwise involved
by reason of his being or having been such director, officer, employee or
agent or by reason of any action or omission by such person in his capacity
as such director, officer, employee or agent if either (a) such person is
wholly successful, on the merits or otherwise, in defending such derivative
or third-party action or (b) in the judgment of a court of competent
jurisdiction or, in the absence of such a determination, in the judgment of
a majority of a quorum of the directors of the Corporation (which quorum
shall not include any director who is a party to or is otherwise involved
in such action) or, in the absence of such a disinterested quorum, in the
opinion of independent legal counsel (i) in the case of a derivative
action, such person acted without negligence or misconduct in the
performance of his duties to the Corporation or such other company, or (ii)
in the case of a third-party action, such person acted in good faith in
what he reasonably believed to be the best interests of the Corporation or
such other company and, in addition, in any criminal action, such person
had no reasonable cause to believe that his action was unlawful; provided
that, in the case of a derivative action, such indemnification shall not be
made in respect of any payment to the Corporation or such other company or
any stockholder thereof in satisfaction of judgment or in settlement unless
either (x) a court of competent jurisdiction has approved such settlement,
if any, and the reimbursement of such payment or (y) if the court in which
such action has been instituted lacks jurisdiction to grant such approval
or such action is settled before the institution of judicial proceedings,
in the opinion of independent legal counsel, the applicable standard of
conduct specified in this sentence has been met, such action was without
merit, such settlement was in the best interests of the Corporation or such
other company and the reimbursement of such payment is permissible under
applicable law. In case such person is successful, on the merits or
otherwise, in defending part of such action or, in the judgment of such a
court or such directors or in the opinion of such counsel, has met the
applicable standard of conduct specified in the preceding sentence with
respect to part of such action, he shall be indemnified by the Corporation
against the judgments, settlement payments, fines, penalties and other
costs and expenses attributable to such part of such action.
The foregoing rights of indemnification shall be in addition to
any rights to which any such director, officer, employee or agent may
otherwise be entitled under any agreement or vote of Stockholders or at law
or in equity or otherwise, including, but not limited to, any
indemnification to which such director, officer, employee or agent may now
or hereafter be entitled under Section 145 of the General Corporation Law
of the State of Delaware.
In any case in which, in the judgment of a majority of such a
disinterested quorum of the directors, any such director, officer, employee
or agent will be entitled to indemnification under the foregoing provisions
of this Article, such amounts as they deem necessary to cover the
reasonable costs and expenses incurred by such person in connection with
the action, suit, proceeding, investigation or claim prior to final
disposition thereof may be advanced to such person, in the case of a
director or officer, upon receipt of an undertaking by or on behalf of such
person to repay such amounts if it is ultimately determined that he is not
so entitled to indemnification and in the case of an employee or agent,
upon such terms and conditions, if any, as the Board deems appropriate.
AMENDMENT AND REPEAL
Section 11. Mode of Amendment or Appeal. These By-laws may be
amended, repealed or new By-laws adopted, by vote of the holders of a
majority of the stock having voting power or by the affirmative vote of a
majority of the entire Board, at any meeting duly called and held at which
a quorum is present. Any By-law adopted by the Board may be amended or
repealed by the Stockholders entitled to vote thereon as herein provided.
