SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported) August 26, 1998
Barringer Technologies Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-3207 84-0720473
(State of (Commission File Number) (IRS Employer
incorporation) Identification No.)
219 South Street, Murray Hill, New Jersey 07974
(Address of principal executive offices) (Zip Code)
(908) 665-8200
(Registrant's telephone number,
including area code)
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Items 1-4. Not Applicable.
Item 5. Other Events.
On August 26, 1998, the Board of Directors of Barringer Technologies
Inc., a Delaware corporation (the "Company"), declared a dividend payable
September 9, 1998 of one right (a "Right") for each outstanding share of common
stock, par value $.01 per share ("Common Stock"), of the Company held of record
at the close of business on September 8, 1998 (the "Record Time"), or issued
thereafter and prior to the Separation Time (as hereinafter defined) and
thereafter pursuant to options and convertible securities outstanding at the
Separation Time. The Rights will be issued pursuant to a Stockholder Protection
Rights Agreement, dated as of August 26, 1998 (the "Rights Agreement"), between
the Company and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent"). Each Right entitles its registered holder to purchase from the
Company, after the Separation Time, one one-hundredth of a share of
Participating Preferred Stock, par value $2.00 per share ("Participating
Preferred Stock"), for $32.50 (the "Exercise Price"), subject to adjustment.
The Rights will be evidenced by the Common Stock certificates until
the close of business on the earlier of (either, the "Separation Time") (i) the
tenth business day (or such later date as the Board of Directors of the Company
may from time to time fix by resolution adopted prior to the Separation Time
that would otherwise have occurred) after the date on which any Person (as
defined in the Rights Agreement) commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an Acquiring Person, as
defined below, and (ii) the first date or such later date as the Board of
Directors of Barringer Technologies Inc. may from time to time fix (the "Flip-in
Date") of public announcement by the Company or any Person that such Person has
become an Acquiring Person (the date of such public announcement being, the
"Stock Acquisition Date"); provided that if the foregoing results in the
Separation Time being prior to the Record Time, the Separation Time shall be the
Record Time; and provided further that if a tender or exchange offer referred to
in clause (i) is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of stock pursuant thereto,
such offer shall be deemed never to have been made. An Acquiring Person is any
Person having Beneficial Ownership (as defined in the Rights Agreement) of 15%
or more of the outstanding shares of Common Stock, which term shall not include
(i) the Company, any wholly-owned subsidiary of the Company or any employee
stock ownership or other employee benefit plan of the Company, (ii) any person
who is the Beneficial Owner of 15% or more of the outstanding Common Stock as of
the date of the Rights Agreement or who shall become the Beneficial Owner of 15%
or more of the outstanding Common Stock solely as a result of an acquisition of
Common Stock by the Company, until such time as such Person acquires additional
Common Stock, other than through a dividend or stock split, (iii) any Person who
becomes the Beneficial Owner of 15% or more of the outstanding Common Stock
without any plan or intent to seek or affect control of the Company if such
Person promptly divests sufficient securities such that such 15% or greater
Beneficial Ownership ceases or (iv) any Person who Beneficially Owns shares of
Common Stock consisting solely of (A) shares acquired pursuant to the grant or
exercise of an option granted by the Company in connection with an agreement to
merge with, or acquire, the Company entered into prior to the Flip-in Date, (B)
shares owned by such Person and its Affiliates and Associates at the time of
such grant and (C) shares, amounting to less than 1% of the outstanding Common
Stock, acquired by Affiliates and Associates of such Person after the time of
such grant. The Rights Agreement provides that, until the Separation Time, the
Rights will be transferred with and only with the Common Stock. Common Stock
certificates issued after the Record Time but prior to the Separation Time shall
evidence one Right for each share of Common Stock represented thereby and shall
contain a legend incorporating by reference the terms of the Rights Agreement
(as such may be amended from time to time). Notwithstanding the absence of the
aforementioned legend, certificates evidencing shares of Common Stock
outstanding at the Record Time shall also evidence one Right for each share of
Common Stock evidenced thereby. Promptly following the Separation Time, separate
certificates evidencing the Rights ("Rights Certificates") will be mailed to
holders of record of Common Stock at the Separation Time.
The Rights will not be exercisable until the Business Day (as defined
in the Rights Agreement) following the Separation Time. The Rights will expire
on the earliest of (i) the Exchange Time (as defined below), (ii) the close of
business on September 8, 2008, (iii) the date on which the Rights are redeemed
as described below and (iv) upon the merger of the Company into another
corporation pursuant to an agreement entered into prior to a Stock Acquisition
Date (in any such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for Common Stock.
In the event that prior to the Expiration Time a Flip-in Date occurs,
the Company shall take such action as shall be necessary to ensure and provide
that each Right (other than Rights Beneficially Owned by the Acquiring Person or
any affiliate or associate thereof, which Rights shall become void) shall
constitute the right to purchase from the Company, upon the exercise thereof in
accordance with the terms of the Rights Agreement, that number of shares of
Common Stock of the Company having an aggregate Market Price (as defined in the
Rights Agreement), on the Stock Acquisition Date that gave rise to the Flip-in
Date, equal to twice the Exercise Price for an amount in cash equal to the then
current Exercise Price. In addition, the Board of Directors of the Company may,
at its option, at any time after a Flip-in Date and prior to the time that an
Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding shares of Common Stock, elect to exchange all (but not less than
all) the then outstanding Rights (other than Rights Beneficially Owned by the
Acquiring Person or any affiliate or associate thereof, which Rights become
void) for shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of the Separation Time
(the "Exchange Ratio"). Immediately upon such action by the Board of Directors
(the "Exchange Time"), the right to exercise the Rights will terminate and each
Right will thereafter represent only the right to receive a number of shares of
Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated, as described in the
preceding paragraph, to issue shares of Common Stock upon exercise of or in
exchange for Rights, the Company, at its option, may substitute therefor shares
of Participating Preferred Stock, at a ratio of one one-hundredth of a share of
Participating Preferred Stock for each share of Common Stock so issuable.
In the event that prior to the Expiration Time the Company enters
into, consummates or permits to occur a transaction or series of transactions
after the time an Acquiring Person has become such in which, directly or
indirectly, (i) the Company shall consolidate or merge or participate in a
binding share exchange with any other Person if, at the time of the
consolidation, merger or share exchange or at the time the Company enters into
an agreement with respect to such consolidation, merger or share exchange, the
Acquiring Person controls the Board of Directors of the Company and (A) any term
of or arrangement concerning the treatment of shares of capital stock in such
merger, consolidation or share exchange relating to the Acquiring Person is not
identical to the terms and arrangements relating to other holders of Common
Stock or (B) the Person with whom such transaction or series of transactions
occurs is the Acquiring Person or an Affiliate or Associate thereof or (ii) the
Company shall sell or otherwise transfer (or one or more of its subsidiaries
shall sell or otherwise transfer) assets (A) aggregating more than 50% of the
assets (measured by either book value or fair market value) or (B) generating
more than 50% of the operating income or cash flow, of the Company and its
subsidiaries (taken as a whole) to any other Person (other than the Company or
one or more of its wholly owned subsidiaries) or to two or more such Persons
which are affiliated or otherwise acting in concert, if, at the time of such
sale or transfer of assets or at the time the Company (or any such subsidiary)
enters into an agreement with respect to such sale or transfer, the Acquiring
Person controls the Board of Directors of the Company (a "Flip-over Transaction
or Event"), the Company shall take such action as shall be necessary to ensure,
and shall not enter into, consummate or permit to occur such Flip-over
Transaction or Event until it shall have entered into a supplemental agreement
with the Person engaging in such Flip-over Transaction or Event or the parent
corporation thereof (the "Flip-over Entity"), for the benefit of the holders of
the Rights, providing, that upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right to
purchase from the Flip-over Entity, upon exercise thereof in accordance with the
terms of the Rights Agreement, that number of shares of common stock of the
Flip-over Entity having an aggregate Market Price on the date of consummation or
occurrence of such Flip-over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the then current Exercise Price and (ii)
the Flip-over Entity shall thereafter be liable for, and shall assume, by virtue
of such Flip-over Transaction or Event and such supplemental agreement, all the
obligations and duties of the Company pursuant to the Rights Agreement. For
purposes of the foregoing description, the term "Acquiring Person" shall include
any Acquiring Person and its Affiliates and Associates counted together as a
single Person.
The Board of Directors of the Company may, at its option, at any time
prior to the Flip-in Date, redeem all (but not less than all) the then
outstanding Rights at a price of $.01 per Right) (the "Redemption Price"), as
provided in the Rights Agreement. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, without any further
action and without any notice, the right to exercise the Rights will terminate
and each Right will thereafter represent only the right to receive the
Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their ownership of
Rights, have no rights as stockholders of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. However, the
Rights may cause substantial dilution to a person or group that acquires 15% or
more of the Common Stock unless the Rights are first redeemed by the Board of
Directors of the Company. Nevertheless, the Rights should not interfere with a
transaction that is in the best interests of the Company and its stockholders
because the Rights can be redeemed on or prior to the Flip-in Date, before the
consummation of such transaction.
As of August 15, 1998, there were 7,815,297 shares of Common Stock
issued (of which 7,600,597 shares were outstanding and 214,700 shares were held
in treasury) and 1,640,037 shares reserved for issuance pursuant to employee
benefit plans warrants, and convertible securities. As long as the Rights are
attached to the Common Stock, the Company will issue one Right with each new
share of Common Stock so that all such shares will have Rights attached.
The Rights Agreement (which includes as Exhibit A the forms of Rights
Certificate and Election to Exercise and as Exhibit B the form of Certificate of
Designation and Terms of the Participating Preferred Stock) is attached hereto
as an exhibit and is incorporated herein by reference. The foregoing description
of the Rights is qualified in its entirety by reference to the Rights Agreement
and such exhibits thereto.
In connection with the adoption of the Rights Agreement, the Board of
Directors of the Company also amended certain provisions of the Company's
Amended and Restated By-laws. Among other things, special meetings of Company
stockholders now may only be called by the Chairman of the Board, the Chief
Executive Officer or by a majority of the Board of Directors, and stockholders
will be required to provide advance notice of any proposals or director
nominations to be made at annual and special meetings of stockholders.
Item 6. Not Applicable.
Item 7. Exhibits.
3.1 By-laws of the Company, as amended and restated, effective August 26,
1998.
4.1 Rights Agreement, which includes as Exhibit A the forms of Rights
Certificate and Election to Exercise and as Exhibit B the form of
Certificate of Designation and Terms of the Participating Preferred
Stock.
99.1 Press release, dated August 26, 1998, issued by the Company.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BARRINGER TECHNOLOGIES INC.
By: /s/Stanley S. Binder
Name: Stanley S. Binder
Title: Chairman of the Board and
Chief Executive Officer
Date: September 2, 1998
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
3.1 By-laws of Barringer Technologies, Inc.
(the "Company"), as amended and restated,
effective August 26, 1998.
4.1 Stockholder Protection Rights Agreement,
dated as of August 26, 1998 (the "Rights
Agreement"), between the Company and
American Stock Transfer & Trust Company,
as Rights Agent, including as Exhibit A
the forms of Rights Certificate and of
Election to Exercise and as Exhibit B
the form of Certificate of Designation
and Terms of the Participating Preferred
Stock of the Company.
99.1 Press release, dated August 26, 1998,
issued by the Company.
AMENDED AND RESTATED BY-LAWS
OF
BARRINGER TECHNOLOGIES INC.
(Effective August 26, 1998)
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 May 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 nor more than sixty 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 Chairman of the Board of Directors (the "Chairman") or the
Chief Executive Officer (the "Chief Executive Officer"), and shall be called by
the Secretary at the request in writing of a majority of the Board of Directors.
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 nor more than sixty 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 or less than ten days before the date of such meeting, or more
than sixty 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 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 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
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 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 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 or her 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 or her ability.
Section 2.13. Advance Notice of Stockholder Proposals. At any annual
or special meeting of stockholders, proposals by stockholders and persons
nominated for election as directors by stockholders shall be considered only if
advance notice thereof has been timely given as provided herein and such
proposals or nominations are otherwise proper for consideration under applicable
law and the certificate of incorporation and by-laws of the Corporation. Notice
of any proposal to be presented by any stockholder or of the name of any person
to be nominated by any stockholder for election as a director of the Corporation
at any meeting of stockholders shall be delivered to the Secretary of the
Corporation at its principal executive office not less than 60 nor more than 90
days prior to the date of the meeting; provided, however, that if the date of
the meeting is first publicly announced or disclosed (in a public filing or
otherwise) less than 70 days prior to the date of the meeting, such advance
notice shall be given not more than ten days after such date is first so
announced or disclosed. Public notice shall be deemed to have been given more
than 70 days in advance of the annual meeting if the Corporation shall have
previously disclosed, in these by-laws or otherwise, that the annual meeting in
each year is to be held on a determinable date, unless and until the Board
determines to hold the meeting on a different date. Any stockholder who gives
notice of any such proposal shall deliver therewith the text of the proposal to
be presented and a brief written statement of the reasons why such stockholder
favors the proposal and setting forth such stockholder's name and address, the
number and class of all shares of each class of stock of the Corporation
beneficially owned by such stockholder and any material interest of such
stockholder in the proposal (other than as a stockholder). Any stockholder
desiring to nominate any person for election as a director of the Corporation
shall deliver with such notice a statement in writing setting forth the name of
the person to be nominated, the number and class of all shares of each class of
stock of the Corporation beneficially owned by such person, the information
regarding such person required by paragraphs (a), (e) and (f) of Item 401 of
Regulation S-K adopted by the Securities and Exchange Commission (or the
corresponding provisions of any regulation subsequently adopted by the
Securities and Exchange Commission applicable to the Corporation), such person's
signed consent to serve as a director of the Corporation if elected, such
stockholder's name and address and the number and class of all shares of each
class of stock of the Corporation beneficially owned by such stockholder. As
used herein, shares "beneficially owned" shall mean all shares as to which such
person, together with such person's affiliates and associates (as defined in
Rule 12b-2 under the Securities Exchange Act of 1934), may be deemed to
beneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, as well as all shares as to which such person, together with such
person's affiliates and associates, has the right to become the beneficial owner
pursuant to any agreement or understanding, or upon the exercise of warrants,
options or rights to convert or exchange (whether such rights are exercisable
immediately or only after the passage of time or the occurrence of conditions).
The person presiding at the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall
determine whether such notice has been duly given and shall direct that
proposals and nominees not be considered if such notice has not been given.
DIRECTORS
Section 3.1. Powers of the Board of Directors. The business of the
Corporation shall be managed by its Board of Directors 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 of Directors
shall be not less than three nor more than nine. Within the limits above
specified, the number of directors shall be determined by resolution of the
Board of Directors 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 a 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 of Directors (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten 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. Any director may resign at any time by
giving written notice to the Secretary. A resignation from the Board of
Directors 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 of Directors. A
regular meeting of each newly elected Board of Directors 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 of Directors.
Other regular meetings by the Board of Directors may be held at such times and
places as the Board of Directors may from time to time determine. Special
meetings of the Board of Directors shall be held whenever called by order of the
Board of Directors or by the Chief Executive Officer, the President or the
Secretary at the written request of any three directors, and at such place or
places as may be fixed by the Board of Directors 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 of Directors need not be given. Notice of the time
and place of every special meeting of the Board of Directors shall be given at
least two 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 of Directors 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 of
Directors, except as may otherwise be specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 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 of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of
Directors 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 of
Directors or committee.
Section 3.9. Compensation and Reimbursement of Directors. The Board of
Directors 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 of Directors or committee thereof which
authorizes such contract or transaction, or solely because his, her 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
of Directors or the committee, and the Board of Directors 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 of Directors,
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 of Directors which authorizes the contract or
transaction.
Section 3.11. Executive Committee. The Board of Directors may, from
time to time, by resolution passed by a majority of the whole Board of
Directors, 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 of Directors in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it. Such Committee shall serve at the pleasure
of the Board of Directors, 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 of Directors may, from time
to time, by resolution passed by a majority of the whole Board of Directors,
establish one or more committees of the Board of Directors, having such powers
and responsibilities, and consisting of two or more directors of the
Corporation, as the Board of Directors shall designate. Any and all such
committees shall serve at the pleasure of the Board of Directors, 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.
Section 3.13. Organization. At all meetings of the Board of Directors,
the Chairman, or in the Chairman's absence, the Vice-Chairman of the Board of
Directors (the "Vice Chairman"), or in the Vice Chairman's absence, the Chief
Executive Officer, or in the Chief Executive Officer's absence, the President,
or in the President's absence, a chairman chosen by the directors, shall
preside.
Section 3.14. Chairman of the Board of Directors. The Chairman shall
preside at all meetings of the Board of Directors and of the stockholders where
present; and in general shall perform all duties as may be prescribed by the
Board of Directors from time to time.
Section 3.15. Vice Chairman of the Board of Directors. In the absence
of the Chairman or in the event of the Chairman's death or inability to act, the
Vice Chairman shall perform the duties of the Chairman, and when so acting,
shall have all the authority of and be subject to all the restrictions upon the
Chairman. The Vice Chairman shall perform such other duties as from time to time
may be prescribed by the Chairman or by the Board of Directors.
OFFICERS
Section 4.1. Authorized Officers. The officers of the Corporation
shall be a Chief Executive Officer, a President, one or more Vice Presidents, a
Treasurer and a Secretary. One person may hold more than one office.
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 of Directors at its first meeting
held after each Annual Meeting of Stockholders. The Board of Directors 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 of Directors, 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 of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors . Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
Section 4.4. Resignation. Any officer may resign at any time by giving
written notice to the Chief Executive Officer 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 of Directors may require any officer
to give security for the faithful performance of his or her duties. Such
security may be in the form of a bond in such form and with such surety or
sureties as the Board of Directors may approve.
Section 4.6. Compensation. The Board of Directors 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. Chief Executive Officer. The Chief Executive Officer,
subject to the control of the Board of Directors shall have general charge and
supervision over and responsibility for the business and affairs of the
Corporation and corporate development, expansion and contraction and long-range
planning of the Corporation, including, without limitation, the acquisition,
development and disposition of facilities necessary to implement the foregoing;
and shall have the authority to instruct, direct, and control the Corporation's
other officers, employees and agents. The Chief Executive Officer may sign, with
the Secretary or any other proper officer of the Corporation thereunto
authorized by the Board of Directors, certificates representing shares of the
Corporation, and deeds, mortgages, bonds, contracts, or other instruments which
the Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors 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 incident to the office of chief executive officer of a
corporation, and such other duties as may be prescribed by the Board of
Directors or the Chairman from time to time.
Section 4.8 President. The President shall be the chief operating
officer of the Corporation and, subject to the control of the Board of Directors
shall have general and active management of the business and affairs of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President may sign, with the Secretary or
any other proper officer of the Corporation thereunto authorized by the Board of
Directors, certificates representing shares of the Corporation, and deeds,
mortgages, bonds, contracts, or other instruments which the Board of Directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors 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 of Directors or the Chairman from time
to time.
Section 4.9. Vice Presidents. In the absence of the Chief Executive
Officer or the President or in the event of the Chief Executive Officer's and
the President's 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 Chief
Executive Officer and/or the President, and when so acting, shall have all the
authority of and be subject to all the restrictions upon the Chief Executive
Officer and/or the President. Any Vice President may sign, with the Secretary or
any other proper officer of the Corporation thereunto authorized by the Board of
Directors, certificates representing shares of the Corporation; and shall
perform such other duties as from time to time may be prescribed by the Chief
Executive Officer, the President or by the Board of Directors.
Section 4.10. Secretary. The Secretary shall keep the minutes of the
meetings of the stockholders, of the Board of Directors and of the Executive
Committee in books provided for the purpose. The Secretary shall see that all
notices are duly given in accordance with the provisions of these By-laws or as
required by law and shall be custodian of the corporate records and of the seal
of the Corporation. The Secretary 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,
the Secretary shall perform all duties incident to the office of Secretary, and
such other duties as from time to time may be prescribed by the Chief Executive
Officer, the President or by the Board of Directors.
Section 4.11. 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 of
Directors. The Treasurer 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 of Directors whenever requested an
account of the financial condition of the Corporation. In general the Treasurer
shall perform all the duties incident to the office of Treasurer and such other
duties as may be prescribed by the Chief Executive Officer, the President or by
the Board of Directors.
Section 4.12. 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 of Directors, 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 Chief
Executive Officer, the President or by the Board of Directors
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 of
Directors, certifying the number of shares owned by him or her, signed by the
Chief Executive Officer, 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 of Directors 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 of Directors 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 of Directors.
SEAL
Section 8. The Board of Directors 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 of
Directors. If deemed advisable by the Board of Directors, 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 that stockholder.
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 the
lack of notice, either prior thereto or at its commencement. A waiver of notice
need not specify the purpose of any regular or special meeting of the Board of
Directors.
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 of Directors 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 or her
attorney-in-fact, submit a signed waiver of notice of such requirements.
INDEMNIFICATION
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 being or having been such director, officer, employee or
agent or by reason of any action or omission by such person in his or her
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 or her 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 or she 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 or her
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 or she 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 or she 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 of Directors 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 of Directors, at any meeting duly called and held at which a quorum is
present. Any By-law adopted by the Board of Directors may be amended or repealed
by the stockholders entitled to vote thereon as herein provided.
EXHIBIT 4.1
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
August 26, 1998
between
BARRINGER TECHNOLOGIES INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Rights Agent
<PAGE>
<TABLE>
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
Article I
DEFINITIONS
<S> <C> <C>
Section 1.1 Definitions................................................................................2
Article II
THE RIGHTS
Section 2.1 Summary of Rights.........................................................................10
Section 2.2 Legend on Common Stock Certificates.......................................................10
Section 2.3 Exercise of Rights; Separation of Rights..................................................11
Section 2.4 Adjustments to Exercise Price; Number of Rights...........................................14
Section 2.5 Date on Which Exercise is Effective.......................................................16
Section 2.6 Execution, Authentication, Delivery
and Dating of Rights Certificates.......................................................16
Section 2.7 Registration, Registration of Transfer and Exchange.......................................17
Section 2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates.................................18
Section 2.9 Persons Deemed Owners.....................................................................19
Section 2.10 Delivery and Cancellation of Certificates.................................................20
Section 2.11 Agreement of Rights Holders...............................................................20
Article III
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF
CERTAIN TRANSACTIONS
Section 3.1 Flip-in...................................................................................21
Section 3.2 Flip-over.................................................................................24
Article IV
THE RIGHTS AGENT
Section 4.1 General...................................................................................25
Section 4.2 Merger or Consolidation or Change of Name of Rights Agent.................................26
Section 4.3 Duties of Rights Agent....................................................................27
Section 4.4 Change of Rights Agent....................................................................30
<PAGE>
-iii-
Article V
MISCELLANEOUS
Section 5.1 Redemption................................................................................31
Section 5.2 Expiration................................................................................32
Section 5.3 Issuance of New Rights Certificates.......................................................32
Section 5.4 Supplements and Amendments................................................................33
Section 5.5 Fractional Shares.........................................................................33
Section 5.6 Rights of Action..........................................................................34
Section 5.7 Holder of Rights Not Deemed a Stockholder.................................................34
Section 5.8 Notice of Proposed Actions................................................................35
Section 5.9 Notices...................................................................................35
Section 5.10 Suspension of Exercisability..............................................................36
Section 5.11 Costs of Enforcement......................................................................36
Section 5.12 Successors................................................................................37
Section 5.13 Benefits of this Agreement................................................................37
Section 5.14 Determination and Actions by the Board of Directors, etc..................................37
Section 5.15 Descriptive Headings......................................................................37
Section 5.16 Governing Law.............................................................................37
Section 5.17 Counterparts..............................................................................38
Section 5.18 Severability..............................................................................38
</TABLE>
EXHIBITS
Exhibit A Form of Rights Certificate (Together with Form of
Election to Exercise)
Exhibit B Form of Certificate of Designation and Terms of
Participating Preferred Stock
<PAGE>
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time to time, this
"Agreement"), dated as of August 26, 1998, between Barringer Technologies Inc.,
a Delaware corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York corporation, as Rights Agent (the "Rights Agent", which term
shall include any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has (a) authorized and
declared a dividend of one right ("Right") in respect of each share of Common
Stock (as hereinafter defined) held of record as of the close of business on
September 8, 1998 (the "Record Time") and (b) as provided in Section 2.4,
authorized the issuance of one Right in respect of each share of Common Stock
issued after the Record Time and prior to the Separation Time (as hereinafter
defined) and, to the extent provided in Section 5.3, each share of Common Stock
issued after the Separation Time;
WHEREAS, subject to the terms and conditions hereof, each Right entitles
the holder thereof, after the Separation Time, to purchase securities or assets
of the Company (or, in certain cases, securities of certain other entities)
pursuant to the terms and subject to the conditions set forth herein; and
WHEREAS, the Company desires to appoint the Rights Agent to act on behalf
of the Company, and the Rights Agent is willing so to act, in connection with
the issuance, transfer,
<PAGE>
exchange and replacement of Rights Certificates (as hereinafter defined), the
exercise of Rights and other matters referred to herein;
NOW THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms have
the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial Owner of 15%
or more of the outstanding shares of Common Stock; provided, however, that the
term "Acquiring Person" shall not include any Person (i) who is the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock on the date of
this Agreement or who shall become the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock solely as a result of an acquisition by the
Company of shares of Common Stock, until such time hereafter or thereafter as
any of such Persons shall become the Beneficial Owner (other than by means of a
stock dividend or stock split) of any additional shares of Common Stock, (ii)
who becomes the Beneficial Owner of 15% or more of the outstanding shares of
Common Stock but who acquired Beneficial Ownership of shares of Common Stock
without any plan or intention to seek or affect control of the Company, if, upon
notice by the Company, such Person promptly enters into an irrevocable
commitment with the Company to divest, and thereafter promptly divests (without
exercising or retaining any power, including voting, with respect to such
shares), sufficient shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so that such Person ceases to
be the Beneficial Owner of 15% or more of the outstanding shares of Common Stock
or (iii) who Beneficially Owns shares of Common Stock consisting solely of one
or more of (A) shares of Common Stock Beneficially Owned pursuant to the grant
or exercise of an option granted to such Person (an "Option Holder") by the
Company in connection with an agreement to merge with, or acquire, the Company
entered into prior to a Flip-in Date, (B) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock),
Beneficially Owned by such Option Holder or its Affiliates or Associates at the
time of grant of such option and (C) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock) acquired by
Affiliates or Associates of such Option Holder after the time of such grant
which, in the aggregate, amount to less than 1% of the outstanding shares of
Common Stock. In addition, the Company, any wholly-owned Subsidiary of the
Company and any employee stock ownership or other employee benefit plan of the
Company or a wholly-owned Subsidiary of the Company shall not be an Acquiring
Person.
"Affiliate" and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 under the Exchange Act, as such Rule is in effect on
the date of this Agreement.
"Agreement" shall have the meaning set forth in the Preamble.
A Person shall be deemed the "Beneficial Owner", and to have "Beneficial
Ownership" of, and to "Beneficially Own", any securities as to which such Person
or any of such Person's Affiliates or Associates is or may be deemed to be the
beneficial owner of pursuant to Rule 13d-3 and 13d-5 under the Exchange Act, as
such Rules are in effect on the date of this Agreement, as well as any
securities as to which such Person or any of such Person's Affiliates or
Associates has the right to become Beneficial Owner (whether such right is
exercisable immediately or only after the passage of time or the occurrence of
conditions) pursuant to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner", or to have "Beneficial Ownership" of, or to
"Beneficially Own", any security (i) solely because such security has been
tendered pursuant to a tender or exchange offer made by such Person or any of
such Person's Affiliates or Associates until such tendered security is accepted
for payment or exchange or (ii) solely because such Person or any of such
Person's Affiliates or Associates has or shares the power to vote or direct the
voting of such security pursuant to a revocable proxy given in response to a
public proxy or consent solicitation made to more than ten holders of shares of
a class of stock of the Company registered under Section 12 of the Exchange Act
and pursuant to, and in accordance with, the applicable rules and regulations
under the Exchange Act, except if such power (or the arrangements relating
thereto) is then reportable under Item 6 of Schedule 13D under the Exchange Act
(or any similar provision of a comparable or successor report). For purposes of
this Agreement, in determining the percentage of the outstanding shares of
Common Stock with respect to which a Person is the Beneficial Owner, all shares
as to which such Person is deemed the Beneficial Owner shall be deemed
outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in The City of New York are generally authorized or
obligated by law or executive order to close.
<PAGE>
"Close of business" on any given date shall mean 5:00 p.m. New York City
time on such date or, if such date is not a Business Day, 5:00 p.m. New York
City time on the next succeeding Business Day.
"Common Stock" shall mean the shares of Common Stock, par value $.01 per
share, of the Company.
"Company" shall have the meaning set forth in the Preamble.
"Election to Exercise" shall have the meaning set forth in Section 2.3(d)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Ratio" shall have the meaning set forth in Section 3.1(c) hereof.
"Exchange Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at which a holder
may purchase the securities issuable upon exercise of one whole Right. Until
adjustment thereof in accordance with the terms hereof, the Exercise Price shall
equal $32.50.
"Expansion Factor" shall have the meaning set forth in Section 2.4(a)
hereof.
"Expiration Time" shall mean the earliest of (i) the Exchange Time, (ii)
the Redemption Time, (iii) the close of business on the tenth anniversary of the
Record Time and (iv) immediately prior to the effective time of a consolidation,
merger or share exchange of the Company (A) into another corporation or (B) with
another corporation in which the Company is the surviving corporation but Common
Stock is converted into cash and/or securities of another corporation, in either
case pursuant to an agreement entered into by the Company prior to a Stock
Acquisition Date.
"Flip-in Date" shall mean any Stock Acquisition Date or such later date as
the Board of Directors of the Company may from time to time fix by resolution
adopted prior to the Flip-in Date that would otherwise have occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean (i) in the case
of a Flip-over Transaction or Event described in clause (i) of the definition
thereof, the Person issuing any securities into which shares of Common Stock are
being converted or exchanged and, if no such securities are being issued, the
other party to such Flip-over Transaction or Event and (ii) in the case of a
Flip-over Transaction or Event referred to in clause (ii) of the definition
thereof, the Person receiving the greatest portion of the (A) assets or (B)
operating income or cash flow being transferred in such Flip-over Transaction or
Event, provided in all cases if such Person is a subsidiary of a corporation,
the parent corporation shall be the Flip-Over Entity.
"Flip-over Stock" shall mean the capital stock (or similar equity interest)
with the greatest voting power in respect of the election of directors (or other
persons similarly responsible for direction of the business and affairs) of the
Flip-Over Entity.
"Flip-over Transaction or Event" shall mean a transaction or series of
transactions after a Flip-in Date in which, directly or indirectly, (i) the
Company shall consolidate or merge or participate in a share exchange with any
other Person if, at the time of the consolidation, merger or share exchange or
at the time the Company enters into any agreement with respect to any such
consolidation, merger or share exchange, the Acquiring Person controls the Board
of Directors of the Company and either (A) any term of or arrangement concerning
the treatment of shares of capital stock in such consolidation, merger or share
exchange relating to the Acquiring Person is not identical to the terms and
arrangements relating to other holders of the Common Stock or (B) the Person
with whom the transaction or series of transactions occurs is the Acquiring
Person or an Affiliate or Associate of the Acquiring Person or (ii) the Company
shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer) assets (A) aggregating more than 50% of the assets
(measured by either book value or fair market value) or (B) generating more than
50% of the operating income or cash flow, of the Company and its Subsidiaries
(taken as a whole) to any Person (other than the Company or one or more of its
wholly owned Subsidiaries) or to two or more such Persons which are Affiliates
or Associates or otherwise acting in concert, if, at the time of the entry by
the Company (or any such Subsidiary) into an agreement with respect to such sale
or transfer of assets, the Acquiring Person Controls the Board of Directors of
the Company. An Acquiring Person shall be deemed to Control the Company's Board
of Directors when, following a Flip-in Date, the persons who were directors of
the Company (or persons nominated and/or appointed as directors by vote of a
majority of such persons) before the Stock Acquisition Date shall cease to
constitute a majority of the Company's Board of Directors.
"Market Price" per share of any securities on any date shall mean the
average of the daily closing prices per share of such securities (determined as
described below) on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date; provided, however,
that if an event of a type analogous to any of the events described in Section
2.4 hereof shall have caused the closing prices used to determine the Market
Price on any Trading Days during such period of 20 Trading Days not to be fully
comparable with the closing price on such date, each such closing price so used
shall be appropriately adjusted in order to make it fully comparable with the
closing price on such date. The closing price per share of any securities on any
date shall be the last reported sale price, regular way, or, in case no such
sale takes place or is quoted on such date, the average of the closing bid and
asked prices, regular way, for each share of such securities, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange, Inc.
or, if the securities are not listed or admitted to trading on the New York
Stock Exchange, Inc., as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the securities are listed or admitted to trading
or, if the securities are not listed or admitted to trading on any national
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or such other system then in use, or,
if on any such date the securities are not listed or admitted to trading on any
national securities exchange or quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the securities selected by the Board of Directors of the
Company; provided, however, that if on any such date the securities are not
listed or admitted to trading on a national securities exchange or traded in the
over-the-counter market, the closing price per share of such securities on such
date shall mean the fair value per share of securities on such date as
determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm, and set forth
in a certificate delivered to the Rights Agent.
"Option Holder" shall have the meaning set forth in the definition of
Acquiring Person.
"Person" shall mean any individual, firm, partnership, association, group
(as such term is used in Rule 13d-5 under the Securities Exchange Act of 1934,
as such Rule is in effect on the date of this Agreement), corporation or other
entity.
"Preferred Stock" shall mean the series of Participating Preferred Stock,
par value $2.00 per share, of the Company created by a Certificate of
Designation and Terms in substantially the form set forth in Exhibit B hereto
appropriately completed.
"Record Time" shall have the meaning set forth in the Recitals.
"Redemption Price" shall mean an amount equal to one cent, $0.01.
"Redemption Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 5.1 hereof.
"Right" shall have the meaning set forth in the Recitals.
"Rights Agent" shall have the meaning set forth in the Preamble.
"Rights Certificate" shall have the meaning set forth in Section 2.3(c)
hereof.
"Rights Register" shall have the meaning set forth in Section 2.7(a)
hereof.
"Separation Time" shall mean the close of business on the earlier of (i)
the tenth business day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to the Separation
Time that would otherwise have occurred) after the date on which any Person
commences a tender or exchange offer which, if consummated, would result in such
Person's becoming an Acquiring Person and (ii) the Flip-in Date; provided, that
if the foregoing results in the Separation Time being prior to the Record Time,
the Separation Time shall be the Record Time and provided further, that if any
tender or exchange offer referred to in clause (i) of this paragraph is
cancelled, terminated or otherwise withdrawn prior to the Separation Time
without the purchase of any shares of Common Stock pursuant thereto, such offer
shall be deemed, for purposes of this paragraph, never to have been made.
"Stock Acquisition Date" shall mean the first date of public announcement
by the Company (by any means) or by an Acquiring Person (including by means of
filing a Schedule 13D or Schedule 13G under the Securities Exchange Act of 1934
(or any comparable or successor report or schedule) or an amendment thereto)
that a Person has become an Acquiring Person.
"Subsidiary" of any specified Person shall mean any corporation or other
entity of which a majority of the voting power of the equity securities or a
majority of the equity interest is Beneficially Owned, directly or indirectly,
by such Person.
"Trading Day," when used with respect to any securities, shall mean a day
on which the New York Stock Exchange, Inc. is open for the transaction of
business or, if such securities are not listed or admitted to trading on the New
York Stock Exchange, Inc., a day on which the principal national securities
exchange on which such securities are listed or admitted to trading is open for
the transaction of business or, if such securities are not listed or admitted to
trading on any national securities exchange, a Business Day.
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. As soon as practicable after the Record Time, the
Company will mail a letter summarizing the terms of the Rights to each holder of
record of Common Stock as of the Record Time, at such holder's address as shown
by the records of the Company.
2.2 Legend on Common Stock Certificates. Certificates for the Common Stock
issued after the Record Time but prior to the Separation Time shall evidence one
Right for each share of Common Stock represented thereby and shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
Until the Separation Time (as defined in the
Rights Agreement referred to below), this
certificate also evidences and entitles the
holder hereof to certain Rights as set forth
in a Rights Agreement, dated as of August 26,
1998 (as such may be amended from time to
time, the "Rights Agreement"), between
Barringer Technologies Inc. (the "Company")
and American Stock Transfer & Trust Company,
as Rights Agent, the terms of which are
hereby incorporated herein by reference and a
copy of which is on file at the principal
executive offices of the Company. Under
certain circumstances, as set forth in the
Rights Agreement, such Rights may be
redeemed, may become exercisable for
securities or assets of the Company or
securities of another entity, may be
exchanged for shares of Common Stock or other
securities or assets of the Company, may
expire, may become void (if they are
"Beneficially Owned" by an "Acquiring Person"
or an Affiliate or Associate thereof, as such
terms are defined in the Rights Agreement, or
by any transferee of any of the foregoing) or
may be evidenced by separate certificates and
may no longer be evidenced by this
certificate. The Company will mail or arrange
for the mailing of a copy of the Rights
Agreement to the holder of this certificate
without charge after the receipt of a written
request therefor.
Certificates representing shares of Common Stock that are issued and outstanding
at the Record Time shall evidence one Right for each share of Common Stock
evidenced thereby notwithstanding the absence of the foregoing legend.
2.3 Exercise of Rights; Separation of Rights. (a) Subject to Sections 3.1,
5.1 and 5.10 and subject to adjustment as herein set forth, each Right will
entitle the holder thereof, after the Separation Time and prior to the
Expiration Time, to purchase, for the Exercise Price, one one-hundredth of a
share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised and (ii) each
Right will be evidenced by the certificate for the associated share of Common
Stock (together, in the case of certificates issued prior to the Record Time,
with the letter mailed to the record holder thereof pursuant to Section 2.1) and
will be transferable only together with, and will be transferred by a transfer
(whether with or without such letter) of, such associated share.
(c) Subject to the terms and conditions hereof, after the Separation Time
and prior to the Expiration Time, the Rights (i) may be exercised and (ii) may
be transferred independent of shares of Common Stock. Promptly following the
Separation Time, the Rights Agent will mail to each holder of record of Common
Stock as of the Separation Time (other than any Person whose Rights have become
void pursuant to Section 3.1(b)), at such holder's address as shown by the
records of the Company (the Company hereby agreeing to furnish copies of such
records to the Rights Agent for this purpose), (x) a certificate (a "Rights
Certificate") in substantially the form of Exhibit A hereto appropriately
completed, representing the number of Rights held by such holder at the
Separation Time and having such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any national securities
exchange or quotation system on which the Rights may from time to time be listed
or traded, or to conform to usage, and (y) a disclosure statement describing the
Rights.
(d) Subject to the terms and conditions hereof, Rights may be exercised on
any Business Day after the Separation Time and prior to the Expiration Time by
submitting to the Rights Agent the Rights Certificate evidencing such Rights
with an Election to Exercise (an "Election to Exercise") substantially in the
form attached to the Rights Certificate duly completed, accompanied by payment
in cash, or by certified or official bank check or money order payable to the
order of the Company, of a sum equal to the Exercise Price multiplied by the
number of Rights being exercised and a sum sufficient to cover any transfer tax
or charge which may be payable in respect of any transfer involved in the
transfer or delivery of Rights Certificates
<PAGE>
or the issuance or delivery of certificates for shares or depositary receipts
(or both) in a name other than that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(d), and subject to the terms
and conditions hereof, the Rights Agent will thereupon promptly (i)(A)
requisition from a transfer agent stock certificates evidencing such number of
shares or other securities to be purchased (the Company hereby irrevocably
authorizing its transfer agents to comply with all such requisitions) and (B) if
the Company elects pursuant to Section 5.5 not to issue certificates
representing fractional shares, requisition from the depositary selected by the
Company depositary receipts representing the fractional shares to be purchased
or requisition from the Company the amount of cash to be paid in lieu of
fractional shares in accordance with Section 5.5 and (ii) after receipt of such
certificates, depositary receipts and/or cash, deliver the same to or upon the
order of the registered holder of such Rights Certificate, registered (in the
case of certificates or depositary receipts) in such name or names as may be
designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights Agent
to such holder or to such holder's duly authorized assigns.
(g) The Company covenants and agrees that it will (i) take all such action
as may be necessary to ensure that all shares delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject to
payment of the Exercise Price), be duly and validly authorized, executed, issued
and delivered and fully paid and nonassessable; (ii) take all such action as may
be necessary to comply with any applicable requirements of the Securities Act
<PAGE>
of 1933 or the Exchange Act, and the rules and regulations thereunder, and any
other applicable law, rule or regulation, in connection with the issuance of any
shares upon exercise of Rights; and (iii) pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of
the original issuance or delivery of the Rights Certificates or of any shares
issued upon the exercise of Rights, provided, that the Company shall not be
required to pay any transfer tax or charge which may be payable in respect of
any transfer involved in the transfer or delivery of Rights Certificates or the
issuance or delivery of certificates for shares in a name other than that of the
holder of the Rights being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights. (a) In the event the
Company shall at any time after the Record Time and prior to the Separation Time
(i) declare or pay a dividend on Common Stock payable in Common Stock, (ii)
subdivide the outstanding Common Stock or (iii) combine the outstanding Common
Stock into a smaller number of shares of Common Stock, (x) the Exercise Price in
effect after such adjustment will be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the number of shares of Common
Stock (the "Expansion Factor") that a holder of one share of Common Stock
immediately prior to such dividend, subdivision or combination would hold
thereafter as a result thereof and (y) each Right held prior to such adjustment
will become that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among the shares of
Common Stock with respect to which the original Rights were associated (if they
remain outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock will have
exactly one Right associated with it. Each adjustment made pursuant to this
paragraph shall be made as of the payment or effective date for the applicable
dividend, subdivision or combination.
<PAGE>
In the event the Company shall at any time after the Record Time and prior
to the Separation Time issue any shares of Common Stock otherwise than in a
transaction referred to in the preceding paragraph, each such share of Common
Stock so issued shall automatically have one new Right associated with it, which
Right shall be evidenced by the certificate representing such share. To the
extent provided in Section 5.3, Rights shall be issued by the Company in respect
of shares of Common Stock that are issued or sold by the Company after the
Separation Time.
(b) In the event the Company shall at any time after the Record Time and
prior to the Separation Time issue or distribute any securities or assets in
respect of, in lieu of or in exchange for Common Stock (other than pursuant to a
regular periodic cash dividend or a dividend paid solely in Common Stock)
whether by dividend, in a reclassification or recapitalization (including any
such transaction involving a merger, consolidation or share exchange), or
otherwise, the Company shall make such adjustments, if any, in the Exercise
Price, number of Rights and/or securities or other property purchasable upon
exercise of Rights as the Board of Directors of the Company, in its sole
discretion, may deem to be appropriate under the circumstances in order to
adequately protect the interests of the holders of Rights generally, and the
Company and the Rights Agent shall amend this Agreement as necessary to provide
for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this Section 2.4
shall be calculated to the nearest cent. Whenever an adjustment to the Exercise
Price is made pursuant to this Section 2.4, the Company shall (i) promptly
prepare a certificate setting forth such adjustment and a brief statement of the
facts accounting for such adjustment and (ii)
<PAGE>
promptly file with the Rights Agent and with each transfer agent for the Common
Stock a copy of such certificate.
(d) Rights certificates shall represent the securities purchasable under
the terms of this Agreement, including any adjustment or change in the
securities purchasable upon exercise of the Rights, even though such
certificates may continue to express the securities purchasable at the time of
issuance of the initial Rights Certificates.
2.5 Date on Which Exercise is Effective. Each person in whose name any
certificate for shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares represented
thereby on the date upon which the Rights Certificate evidencing such Rights was
duly surrendered and payment of the Exercise Price for such Rights (and any
applicable taxes and other governmental charges payable by the exercising holder
hereunder) was made; provided, however, that if the date of such surrender and
payment is a date upon which the stock transfer books of the Company are closed,
such person shall be deemed to have become the record holder of such shares on,
and such certificate shall be dated, the next succeeding Business Day on which
the stock transfer books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights Certificates.
(a) The Rights Certificates shall be executed on behalf of the Company by its
Chairman of the Board, the President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding
<PAGE>
that such individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Rights Certificates.
Promptly after the Company learns of the Separation Time, the Company will
notify the Rights Agent of such Separation Time and will deliver Rights
Certificates executed by the Company to the Rights Agent for counter-signature,
and, subject to Section 3.1(b), the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any purpose
unless manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of countersignature
thereof.
2.7 Registration, Registration of Transfer and Exchange. (a) After the
Separation Time, the Company will cause to be kept a register (the "Rights
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company will provide for the registration and transfer of Rights. The Rights
Agent is hereby appointed "Rights Registrar" for the purpose of maintaining the
Rights Register for the Company and registering Rights and transfers of Rights
after the Separation Time as herein provided. In the event that the Rights Agent
shall cease to be the Rights Registrar, the Rights Agent will have the right to
examine the Rights Register at all reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time, upon surrender
for registration of transfer or exchange of any Rights Certificate, and subject
to the provisions of Section 2.7(c) and (d), the Company will execute, and the
Rights Agent will countersign and deliver, in the name of the holder or the
designated transferee or transferees, as required pursuant to the holder's
instructions, one or more new Rights Certificates evidencing the same aggregate
number of Rights as did the Rights Certificate so surrendered.
<PAGE>
(b) Except as otherwise provided in Section 3.1(b), all Rights issued upon
any registration of transfer or exchange of Rights Certificates shall be the
valid obligations of the Company, and such Rights shall be entitled to the same
benefits under this Agreement as the Rights surrendered upon such registration
of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the Rights Agent, as the case
may be, duly executed by the holder thereof or such holder's attorney duly
authorized in writing. As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
(d) The Company shall not be required to register the transfer or exchange
of any Rights after such Rights have become void under Section 3.1(b), been
exchanged under Section 3.1(c) or been redeemed under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates. (a) If any
mutilated Rights Certificate is surrendered to the Rights Agent prior to the
Expiration Time, then, subject to Sections 3.1(b), 3.1(c) and 5.1, the Company
shall execute and the Rights Agent shall countersign and deliver in exchange
therefor a new Rights Certificate evidencing the same number of Rights as did
the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent prior
to the Expiration Time (i) evidence to their satisfaction of the destruction,
loss or theft of any Rights Certificate and (ii) such security or indemnity as
may be required by them to save each of them and any of their agents harmless,
then, subject to Sections 3.1(b), 3.1(c) and 5.1 and in the absence of notice to
the Company or the Rights Agent that such Rights Certificate has been
<PAGE>
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Rights Agent shall countersign and deliver, in lieu of any such
destroyed, lost or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so destroyed,
lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under this
Section 2.8, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Rights Agent)
connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.8 in
lieu of any destroyed, lost or stolen Rights Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and, subject to Section 3.1(b) shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Rights duly
issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights Certificate
(or, prior to the Separation Time, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of the
Company or the Rights Agent may deem and treat the person in whose name such
Rights Certificate (or, prior to the Separation Time, such Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, including the payment of the
Redemption Price and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary. As used in this Agreement, unless the context
otherwise requires, the term "holder" of
<PAGE>
any Rights shall mean the registered holder of such Rights (or, prior to the
Separation Time, the associated shares of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights Certificates
surrendered upon exercise or for registration of transfer or exchange shall, if
surrendered to any person other than the Rights Agent, be delivered to the
Rights Agent and, in any case, shall be promptly cancelled by the Rights Agent.
The Company may at any time deliver to the Rights Agent for cancellation any
Rights Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Rights Certificates
so delivered shall be promptly cancelled by the Rights Agent. No Rights
Certificates shall be countersigned in lieu of or in exchange for any Rights
Certificates cancelled as provided in this Section 2.10, except as expressly
permitted by this Agreement. The Rights Agent shall destroy all cancelled Rights
Certificates and deliver a certificate of destruction to the Company.
2.11 Agreement of Rights Holders. Every holder of Rights by accepting the
same consents and agrees with the Company and the Rights Agent and with every
other holder of Rights that:
(a) prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated share of
Common Stock;
(b) after the Separation Time, the Rights Certificates will be transferable
only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate) for registration of
transfer, the Company, the Rights Agent and any agent of the Company or the
Rights Agent may deem and treat the person in whose name the Rights Certificate
(or, prior to the Separation Time, the associated Common
<PAGE>
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under the
circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration Time a Flip-in
Date shall occur, except as provided in this Section 3.1, each Right shall
constitute the right to purchase from the Company, upon exercise thereof in
accordance with the terms hereof (but subject to Section 5.10), that number of
shares of Common Stock having an aggregate Market Price on the Stock Acquisition
Date equal to twice the Exercise Price for an amount in cash equal to the
Exercise Price (such right to be appropriately adjusted in order to protect the
interests of the holders of Rights generally in the event that on or after such
Stock Acquisition Date an event of a type analogous to any of the events
described in Section 2.4(a) or (b) shall have occurred with respect to the
Common Stock).
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Stock Acquisition Date by an Acquiring Person
or an Affiliate or Associate thereof or by any transferee, direct or indirect,
of any of the foregoing shall become void and any holder of such Rights
(including transferees) shall thereafter have no right to
<PAGE>
exercise or transfer such Rights under any provision of this Agreement. If any
Rights Certificate is presented for assignment or exercise and the Person
presenting the same will not complete the certification set forth at the end of
the form of assignment or notice of election to exercise and provide such
additional evidence of the identity of the Beneficial Owner and its Affiliates
and Associates (or former Beneficial Owners and their Affiliates and Associates)
as the Company shall reasonably request, then the Company shall be entitled
conclusively to deem the Beneficial Owner thereof to be an Acquiring Person or
an Affiliate or Associate thereof or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced thereby to be void and not
transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any time
after a Flip-in Date and prior to the time that an Acquiring Person becomes the
Beneficial Owner of more than 50% of the outstanding shares of Common Stock
elect to exchange all (but not less than all) the then outstanding Rights (which
shall not include Rights that have become void pursuant to the provisions of
Section 3.1(b)) for shares of Common Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted in order to protect the interests
of holders of Rights generally in the event that after the Separation Time an
event of a type analogous to any of the events described in Section 2.4(a) or
(b) shall have occurred with respect to the Common Stock (such exchange ratio,
as adjusted from time to time, being hereinafter referred to as the "Exchange
Ratio").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each Right (other
than Rights that have become void pursuant to Section 3.1(b)) will thereafter
represent only the right to receive a number of shares of Common
<PAGE>
Stock equal to the Exchange Ratio. Promptly after the action of the Board of
Directors electing to exchange the Rights, the Company shall give notice thereof
(specifying the steps to be taken to receive shares of Common Stock in exchange
for Rights) to the Rights Agent and the holders of the Rights (other than Rights
that have become void pursuant to Section 3.1(b)) outstanding immediately prior
thereto by mailing such notice in accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued upon the
exchange of Rights pursuant to this Section 3.1(c) or Section 3.1(d) shall for
all purposes be deemed to have become the holder of record of the shares
represented thereby on, and such certificate shall be dated, the date upon which
the Rights Certificate evidencing such Rights was duly surrendered and payment
of any applicable taxes and other governmental charges payable by the holder was
made; provided, however, that if the date of such surrender and payment is a
date upon which the stock transfer books of the Company are closed, such Person
shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the stock
transfer books of the Company are open.
(d) Whenever the Company shall become obligated under Section 3.1(a) or (c)
to issue shares of Common Stock upon exercise of or in exchange for Rights, the
Company, at its option, may substitute therefor shares of Preferred Stock, at a
ratio of one one-hundredth of a share of Preferred Stock for each share of
Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury shares or
authorized but unissued shares of Common Stock or Preferred Stock of the Company
to permit the exercise or exchange in full of the Rights in accordance with
Section 3.1(a) or (c), and the Company elects not to, or is otherwise unable to,
make the exchange referred to in Section 3.1(c), the Company shall either (i)
call a meeting of stockholders seeking approval to cause sufficient
<PAGE>
additional shares to be authorized (provided that if such approval is not
obtained the Company will take the action specified in clause (ii) of this
sentence) or (ii) take such action as shall be necessary to ensure and provide,
to the extent permitted by applicable law and any agreements or instruments in
effect on the Stock Acquisition Date to which it is a party, that each Right
shall thereafter constitute the right to receive, (x) at the Company's option,
either (A) in return for the Exercise Price, debt or equity securities or other
assets (or a combination thereof) having a fair value equal to twice the
Exercise Price, or (B) without payment of consideration (except as otherwise
required by applicable law), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the Exercise Price, or (y) if
the Board of Directors of the Company elects to exchange the Rights in
accordance with Section 3.1(c), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the product of the Market
Price of a share of Common Stock on the Flip-in Date times the Exchange Ratio in
effect on the Flip-in Date, where in any case set forth in (x) or (y) above the
fair value of such debt or equity securities or other assets shall be as
determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the Company shall not
enter into any agreement with respect to, consummate or permit to occur any
Flip-over Transaction or Event unless and until it shall have entered into a
supplemental agreement with the Flip-over Entity, for the benefit of the holders
of the Rights, providing that, upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right to
purchase from the Flip-over Entity, upon exercise thereof in accordance with the
terms hereof, that number of shares of Flip-over Stock of the Flip-over Entity
having an aggregate
<PAGE>
Market Price on the date of consummation or occurrence of such Flip-over
Transaction or Event equal to twice the Exercise Price for an amount in cash
equal to the Exercise Price (such right to be appropriately adjusted in order to
protect the interests of the holders of Rights generally in the event that after
such date of consummation or occurrence an event of a type analogous to any of
the events described in Section 2.4(a) or (b) shall have occurred with respect
to the Flip-over Stock) and (ii) the Flip-over Entity shall thereafter be liable
for, and shall assume, by virtue of such Flip-over Transaction or Event and such
supplemental agreement, all the obligations and duties of the Company pursuant
to this Agreement. The provisions of this Section 3.2 shall apply to successive
Flip-over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will be redeemed
pursuant to Section 5.1 hereof in connection therewith, the Company shall not
enter into any agreement with respect to, consummate or permit to occur any
Flip-over Transaction or Event if at the time thereof there are any rights,
warrants or securities outstanding or any other arrangements, agreements or
instruments that would eliminate or otherwise diminish in any material respect
the benefits intended to be afforded by this Rights Agreement to the holders of
Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights Agent to act as
agent for the Company in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on
<PAGE>
demand of the Rights Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted to be
done by the Rights Agent in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending against any claim
of liability.
(b) The Rights Agent shall be protected and shall incur no liability for or
in respect of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any certificate for securities
purchasable upon exercise of Rights, Rights Certificate, certificate for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights Agent. (a) Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent is a party, or any corporation succeeding to the shareholder services
business of the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 4.4 hereof. In case at the time
such successor Rights Agent succeeds to the agency created by this
<PAGE>
Agreement any of the Rights Certificates have been countersigned but not
delivered, any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so countersigned;
and in case at that time any of the Rights Certificates have not been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Rights Certificates
will have the full force provided in the Rights Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent is changed and at such
time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be proved
or established by
<PAGE>
the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by a person believed by the Rights Agent to be the Chairman
of the Board, the President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate will be full
authorization to the Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the Rights
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and will be deemed to have been
made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery hereof (except the due
authorization, execution and delivery hereof by the Rights Agent) or in respect
of the validity or execution of any certificate for securities purchasable upon
exercise of Rights or Rights Certificate (except its countersignature thereof);
nor will it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor will it
be responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 3.1(b) hereof) or any adjustment
required under the provisions of Section
<PAGE>
2.4, 3.1 or 3.2 hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise of Rights after receipt
of the certificate contemplated by Section 2.4 describing any such adjustment);
nor will it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any securities purchasable
upon exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when issued, be duly and validly
authorized, executed, issued and delivered and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
person believed by the Rights Agent to be the Chairman of the Board, the
President or any Vice President or the Secretary or any Assistant Secretary or
the Treasurer or any Assistant Treasurer of the Company, and to apply to such
persons for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered by it in good faith in accordance
with instructions of any such person.
(h) The Rights Agent and any stockholder, director, officer or employee of
the Rights Agent may buy, sell or deal in Common Stock, Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were
<PAGE>
not Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Rights Agent will not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and be discharged
from its duties under this Agreement upon 90 days' notice (or such lesser notice
as is acceptable to the Company) in writing mailed to the Company and to each
transfer agent of Common Stock by registered or certified mail, and to the
holders of the Rights in accordance with Section 5.9. The Company may remove the
Rights Agent upon 30 days' notice in writing, mailed to the Rights Agent and to
each transfer agent of the Common Stock by registered or certified mail, and to
the holders of the Rights in accordance with Section 5.9. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, the Company
will appoint a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of any Rights (which holder shall,
with such notice, submit such holder's Rights Certificate for inspection by the
Company), then the holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States
<PAGE>
or any state of the United States, in good standing, which is authorized under
such laws to exercise the powers of the Rights Agent contemplated by this
Agreement and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50,000,000. After appointment, the
successor Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Company will file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and mail a notice thereof in
writing to the holders of the Rights. Failure to give any notice provided for in
this Section 4.4, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the Company may, at its
option, at any time prior to the Flip-in Date, elect to redeem all (but not less
than all) the then outstanding Rights at the Redemption Price and the Company,
at its option, may pay the Redemption Price either in cash or shares of Common
Stock or other securities of the Company deemed by the Board of Directors, in
the exercise of its sole discretion, to be at least equivalent in value to the
Redemption Price.
<PAGE>
(b) Immediately upon the action of the Board of Directors of the Company
electing to redeem the Rights (or, if the resolution of the Board of Directors
electing to redeem the Rights states that the redemption will not be effective
until the occurrence of a specified future time or event, upon the occurrence of
such future time or event), without any further action and without any notice,
the right to exercise the Rights will terminate and each Right will thereafter
represent only the right to receive the Redemption Price in cash or securities,
as determined by the Board of Directors. Promptly after the Rights are redeemed,
the Company shall give notice of such redemption to the Rights Agent and the
holders of the then outstanding Rights by mailing such notice in accordance with
Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire at the
Expiration Time and no Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are exchanged or
redeemed, as provided in Section 3.1 or 5.1 hereof, respectively.
5.3 Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock by the Company
following the Separation Time and prior to the Expiration Time pursuant to the
terms of securities convertible or redeemable into shares of Common Stock or to
options, in each case issued or granted prior to, and outstanding at, the
Separation Time, the Company shall issue to the holders of such shares of Common
Stock, Rights Certificates representing the appropriate
<PAGE>
number of Rights in connection with the issuance or sale of such shares of
Common Stock; provided, however, in each case, (i) no such Rights Certificate
shall be issued, if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or to the Person to whom such Rights
Certificates would be issued, (ii) no such Rights Certificates shall be issued
if, and to the extent that, appropriate adjustment shall have otherwise been
made in lieu of the issuance thereof, and (iii) the Company shall have no
obligation to distribute Rights Certificates to any Acquiring Person or
Affiliate or Associate of an Acquiring Person or any transferee of any of the
foregoing.
5.4 Supplements and Amendments. The Company and the Rights Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Rights (i) prior to the Flip-in Date, in any respect and (ii) on or
after the Flip-in Date, to make any changes that the Company may deem necessary
or desirable and which shall not materially adversely affect the interests of
the holders of Rights generally or in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be inconsistent with any
other provisions herein or otherwise defective. The Rights Agent will duly
execute and deliver any supplement or amendment hereto requested by the Company
which satisfies the terms of the preceding sentence.
5.5 Fractional Shares. If the Company elects not to issue certificates
representing fractional shares upon exercise or redemption of Rights, the
Company shall, in lieu thereof, in the sole discretion of the Board of
Directors, either (a) evidence such fractional shares by depositary receipts
issued pursuant to an appropriate agreement between the Company and a depositary
selected by it, providing that each holder of a depositary receipt shall have
all of the
<PAGE>
rights, privileges and preferences to which such holder would be entitled as a
beneficial owner of such fractional share, or (b) pay to the registered holder
of such Rights the appropriate fraction of the Market Price per share in cash.
5.6 Rights of Action. Subject to the terms of this Agreement (including
Sections 3.1(b) and 5.14), rights of action in respect of this Agreement, other
than rights of action vested solely in the Rights Agent, are vested in the
respective holders of the Rights; and any holder of any Rights, without the
consent of the Rights Agent or of the holder of any other Rights, may, on such
holder's own behalf and for such holder's own benefit and the benefit of other
holders of Rights, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, such
holder's right to exercise such holder's Rights in the manner provided in such
holder's Rights Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific performance of
the obligations under, and injunctive relief against actual or threatened
violations of, the obligations of any Person subject to this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as such, of any
Rights shall be entitled to vote, receive dividends or be deemed for any purpose
the holder of shares or any other securities which may at any time be issuable
on the exercise of such Rights, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings
<PAGE>
or other actions affecting stockholders (except as provided in Section 5.8
hereof), or to receive dividends or subscription rights, or otherwise, until
such Rights shall have been exercised or exchanged in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall
propose after the Separation Time and prior to the Expiration Time (i) to effect
or permit a Flip-over Transaction or Event or (ii) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Right, in accordance with Section 5.9 hereof, a
notice of such proposed action, which shall specify the date on which such
Flip-over Transaction or Event, liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least 20 Business Days prior to
the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this Agreement to
be given or made by the Rights Agent or by the holder of any Rights to or on the
Company shall be sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Barringer Technologies Inc.
219 South Street
Murray Hill, NJ 07974
Attention: Secretary
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Attention: Corporate Trust Department
<PAGE>
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the registry books of the transfer agent for the Common Stock. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action will or need be taken pursuant to
Section 3.1 or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights for a reasonable period in order to
take such action or comply with such laws. In the event of any such suspension,
the Company shall issue as promptly as practicable a public announcement stating
that the exercisability or exchangeability of the Rights has been temporarily
suspended. Notice thereof pursuant to Section 5.9 shall not be required.
Failure to give a notice pursuant to the provisions of this Agreement shall
not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the Company or any
other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
<PAGE>
5.12 Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Determination and Actions by the Board of Directors, etc. The Board of
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement. All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of Directors of
the Company to any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.16 Governing Law. THIS AGREEMENT AND EACH RIGHT ISSUED HEREUNDER SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
<PAGE>
THE STATE OF DELAWARE AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE AND
PERFORMED ENTIRELY WITHIN SUCH STATE.
5.17 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
5.18 Severability. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BARRINGER TECHNOLOGIES INC.
By: /s/ Stanley S. Binder
Name: Stanley S. Binder
Title: Chairman of the Board and
Chief Executive Officer
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Herbert J. Lemmer
Name: Herbert J. Lemmer
Title: Vice President
<PAGE>
EXHIBIT A
[Form of Rights Certificate]
Certificate No. W- _______ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY
EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. RIGHTS BENEFICIALLY
OWNED BY ACQUIRING PERSONS OR AFFILIATES OR ASSOCIATES
THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) OR TRANSFEREES OF ANY OF THE FOREGOING WILL
BE VOID.
Rights Certificate
BARRINGER TECHNOLOGIES INC.
This certifies that ____________________, or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Stockholder Protection Rights Agreement, dated as of August
26, 1998 (as amended from time to time, the "Rights Agreement"), between
Barringer Technologies Inc., a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, a New York corporation, as Rights Agent
(the "Rights Agent", which term shall include any successor Rights Agent under
the Rights Agreement), to purchase from the Company at any time after the
Separation Time (as such term is defined in the Rights Agreement) and prior to
the close of business on September 8, 2008, one one-hundredth of a fully paid
share of Participating Preferred Stock, par value $2.00 per share (the
"Preferred Stock"), of the Company (subject to adjustment as provided in the
Rights
<PAGE>
Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Rights Certificate with the Form of Election to Exercise duly
executed at the principal office of the Rights Agent in The City of New York.
The Exercise Price shall initially be $32.50 per Right and shall be subject to
adjustment in certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the Rights
evidenced hereby may entitle the registered holder thereof to purchase
securities of an entity other than the Company or securities of the Company
other than Preferred Stock or assets of the Company, all as provided in the
Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates. Copies of
the Rights Agreement are on file at the principal office of the Company and are
available without cost upon written request.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
evidencing an aggregate number of Rights equal to the aggregate number of Rights
evidenced by the Rights Certificate or Rights Certificates surrendered. If this
Rights Certificate shall be exercised in part, the registered holder shall be
entitled to receive, upon surrender hereof, another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
<PAGE>
Subject to the provisions of the Rights Agreement, each Right evidenced by
this Certificate may be (a) redeemed by the Company under certain circumstances,
at its option, at a redemption price of $0.01 per Right or (b) exchanged by the
Company under certain circumstances, at its option, for one share of Common
Stock or one one-hundredth of a share of Preferred Stock per Right (or, in
certain cases, other securities or assets of the Company), subject in each case
to adjustment in certain events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of any securities
which may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Rights evidenced by
this Rights Certificate shall have been exercised or exchanged as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
<PAGE>
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Date: ____________
ATTEST: BARRINGER TECHNOLOGIES INC.
___________________________ By_________________________
Secretary
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By____________________________
Authorized Signature
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED ______________________________________ hereby sells,
assigns and transfers unto ____________________________________________________
(Please print name
________________________________________________________________________________
and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer the within Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated: _______________, ____
Signature Guaranteed: _________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee Medallion program), pursuant to SEC Rule
17Ad-15.
<PAGE>
- --------------------------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
__________________________
Signature
- --------------------------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Rights evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
<PAGE>
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: BARRINGER TECHNOLOGIES INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Rights represented by the attached Rights
Certificate to purchase the shares of Participating Preferred Stock issuable
upon the exercise of such Rights and requests that certificates for such shares
be issued in the name of:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
Dated: _______________, ____
Signature Guaranteed: _________________________
Signature
(Signature must correspond to name as
written upon the face of the attached
Rights Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
<PAGE>
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
SEC Rule 17Ad-15.
________________________________________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of Common Stock, that the Rights evidenced by the attached
Rights Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
__________________
Signature
________________________________________________________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Rights evidenced by the attached Rights Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement)
or a transferee of any of the foregoing and accordingly will deem the Rights
evidenced by such Rights Certificate to be void and not transferable or
exercisable.
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF DESIGNATION
AND TERMS OF PARTICIPATING PREFERRED
STOCK OF BARRINGER TECHNOLOGIES INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, _______________________ and ____________________,
the _______________, and _______________, respectively, of Barringer
Technologies Inc., a Delaware corporation (the "Corporation"), do hereby certify
as follows:
Pursuant to authority granted by Article FOURTH of the Certificate of
Incorporation of the Corporation, as amended, and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$2.00 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of Preferred
Stock, par value $2.00 per share, of the Corporation, and the designation
and certain terms, powers, preferences and other rights of the shares of
such series, and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Participating Preferred Stock" (hereinafter called "this Series").
Each share of this Series shall be identical in all respects with the
other shares of this Series except as to the dates from and after
which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be _______,*
which number may from time to time be increased or decreased (but not
below the number then outstanding) by the Board of Directors. Shares
of this Series purchased by the
- --------
* Insert a number equivalent to 1/100 of the sum of the number of outstanding
shares of Common Stock, reserved conversion shares (if any), and stock options,
rounded up to a round number.
<PAGE>
Corporation shall be cancelled and shall revert to authorized but
unissued shares of Preferred Stock undesignated as to series. Shares
of this Series may be issued in fractional shares, which fractional
shares shall entitle the holder, in proportion to such holder's
fractional share, to all rights of a holder of a whole share of this
Series.
(iii) The holders of full or fractional shares of this Series shall be
entitled to receive, when and as declared by the Board of Directors,
but only out of funds legally available therefor, dividends, (A) on
each date that dividends or other distributions (other than dividends
or distributions payable in Common Stock of the Corporation) are
payable on or in respect of Common Stock comprising part of the
Reference Package (as defined below), in an amount per whole share of
this Series equal to the aggregate amount of dividends or other
distributions (other than dividends or distributions payable in Common
Stock of the Corporation) that would be payable on such date to a
holder of the Reference Package and (B) on the last day of March,
June, September and December in each year, in an amount per whole
share of this Series equal to the excess (if any) of $____* over the
aggregate dividends paid per whole share of this Series during the
three month period ending on such last day. Each such dividend shall
be paid to the holders of record of shares of this Series on the date,
not exceeding sixty days preceding such dividend or distribution
payment date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend or distribution.
Dividends on each full and each fractional share of this Series shall
be cumulative from the date such full or fractional share is
originally issued; provided that any such full or fractional share
originally issued after a dividend record date and on or prior to the
dividend payment date to which such record date relates shall not be
entitled to receive the dividend payable on such dividend payment date
or any amount in respect of the period from such original issuance to
such dividend payment date.
The term "Reference Package" shall initially mean 100 shares
of Common Stock, par value $.01 per share ("Common Stock"), of the
Corporation. In the event the Corporation shall at any time after
the close of business on __________, ____** (A) declare or pay a
dividend on any Common Stock payable in Common Stock, (B) subdivide
any Common Stock or (C) combine any Common Stock into a smaller number
of shares, then and in each such case the
- ---------
* Insert an amount equal to 1/4 of 1% of the Exercise Price divided by the
number of shares of Preferred Stock purchasable upon exercise of one Right.
** For a certificate of designation relating to shares to be issued pursuant to
Section 2.3 of the Rights Agreement, insert the Separation Time. For a
certificate of designation relating to shares to be issued pursuant to Section
3.1(d) of the Rights Agreement, insert the Flip-in Date.
Reference Package after such event shall be the Common Stock that a
holder of the Reference Package immediately prior to such event would
hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled
to any dividends, whether payable in cash, property or stock, in
excess of fullcumulative dividends, as herein provided on this Series.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or upon any
other stock ranking junior to this Series as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this Series as to
dividends and upon liquidation), unless, in each case, the full
cumulative dividends (including the dividend to be due upon payment
of such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall have
been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification or
other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this Series shall at the
same time be similarly exchanged or changed in an amount per whole
share equal to the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, that a
holder of the Reference Package would be entitled to receive as a
result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the
holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or any other stock of the Corporation
ranking junior to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to the greater of (A)
$__________* or (B) the aggregate amount distributed or to be
distributed prior to such date in connection with such liquidation,
dissolution or winding up to a holder of the
<PAGE>
Reference Package (such greater amount being hereinafter referred to
as the "Liquidation Preference"), together with accrued dividends to
such distribution or payment date, whether or not earned or declared.
If such payment shall have been made in full to all holders of shares
of this Series, the holders of shares of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made on
account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this
Series, ratably in proportion to the full distributable amounts for
which holders of all such parity shares are respectively entitled upon
such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of Common
Stock or any other stock of the Corporation ranking junior upon
liquidation to this Series.
For the purposes of this Section (v), the consolidation or
merger of, or binding share exchange by, the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders
required by law or by the Certificate of Incorporation, as amended, of
the Corporation, each whole share of this Series shall, on any matter,
vote as a class with any other capital stock comprising part of the
Reference Package and voting on such matter and shall have the number
of votes thereon that a holder of the Reference Package would have.
* Insert an amount equal to 100 times the Exercise Price in effect as of the
Separation Time.
<PAGE>
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the ____ day of _____________, _______.
____________________
Attest:
_____________________
FOR IMMEDIATE RELEASE
CONTACT: Cheryl Schneider/Tessa Lavender
Press: Michael McMullan
Morgen-Walke Associates, Inc.
(212) 850-5600
BARRINGER TECHNOLOGIES INC. ADOPTS A STOCKHOLDER PROTECTION RIGHTS PLAN
Murray Hill, NJ, August 26, 1998 - Barringer Technologies Inc., (Nasdaq: BARR,
BARRW), announced today that its Board of Directors has adopted a Stockholder
Protection Rights Plan ("Plan"). Pursuant to the Plan, one Right will be
distributed as a dividend on each outstanding share of Barringer Common Stock.
The dividend will be paid on September 9, 1998 to stockholders of record on
September 8, 1998.
The Rights are not being distributed in response to any effort to acquire
control of the Company and the Board of Directors is not aware of any such
effort. Rather, it was adopted to assure that all Barringer stockholders receive
fair and equal treatment in the event of any proposed takeover of the Company
and to guard against partial tender offers, squeeze-outs, open market
accumulations and other tactics intended to gain control of Barringer without
paying all stockholders a fair control premium.
The Rights will be exercisable only if a person or a group has acquired 15% or
more of Barringer's Common Stock or commences a tender offer that will result in
such person or group owning 15% or more of Barringer's Common Stock, and, until
that time, the Rights will be evidenced by the Common Stock certificates, will
automatically trade with the Common Stock, and will not be exercisable.
Thereafter, separate Rights certificates will be distributed and each Right will
entitle its holder to purchase Participating Preferred Stock having economic and
voting terms equivalent to one share of Common Stock for an exercise price of
$32.50.
Among its other provisions, the Plan provides that if a person or group acquires
15% or more of Barringer's outstanding Common Stock (an "Acquiring Person"),
each Right (other than Rights beneficially owned by any Acquiring Person or
transferees thereof, which Rights become void) will more entitle its holder
(other than such person or members of such group) to purchase, at the Right's
then-current exercise price, a number of shares of Barringer's Common Stock (or
Participating Preferred Stock) having a market value of twice such price. The
Rights may be redeemed by the Board of Directors for $0.01 per Right prior to
the occurrence of such event.
Additionally, if after an Acquiring Person controls Barringer's Board of
Directors, Barringer is involved in certain business combinations or sells more
than 50% of its assets or earning power (or has entered an agreement to do any
of the foregoing), each Right will entitle its holder to purchase, at the
Right's then-current exercise price, a number of shares of common stock of the
Acquiring Person having a market value of twice such price.
If any person or group acquires between 15% and 50% of Barringer's Common Stock,
Barringer's Board of Directors may, at its option, exchange one share of
Barringer Common Stock (or one one-hundredth of a share of Participating
Preferred Stock) for each Right.
A letter to stockholders regarding the Rights Agreement and a summary of certain
terms of the Rights Agreement will be mailed to stockholders.
In connection with the adoption of the Rights Agreement, the Board of Directors
of Barringer also amended certain provisions of Barringer's Amended and Restated
By-laws. Among other things, special meetings of Barringer stockholders now may
only be called by the Chairman of the Board, the Chief Executive Officer or by a
majority of the Board of Directors, and stockholders will be required to provide
advance notice of any proposals or director nominations to be made at annual and
special meetings of stockholders.
Headquartered in Murray Hill, New Jersey, Barringer Technologies Inc. is
principally engaged in developing, manufacturing, and marketing of high
technology products for drug and explosive detection and other security and
industrial applications. The IONSCAN[R] is the Company's proprietary trace
particle drug and explosive detection unit.
