Registration No. 333
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BARRINGER TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
Delaware 84-0720473
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
219 South Street
Murray Hill, New Jersey 07974
(908) 665-8200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Stanley S. Binder
Barringer Technologies Inc.
219 South Street, Murray Hill, New Jersey 07974
(908) 665-8200
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
John D. Hogoboom, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement and as
determined by the Selling Securityholders and the holders of the Warrants.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- ----------------------------- ----------------------- ------------------------- ------------------------- -------------------
Title of Each Class of Proposed Maximum
Securities to be Registered Amount to be Aggregate Offering Proposed Maximum Amount of
Registered Price Per Unit Aggregate Offering Price Registration Fee
- ----------------------------- ----------------------- ------------------------- ------------------------- -------------------
Common Stock
($0.01 per share) 125,000(1) $10.35(2) $1,293,750 $382
- ----------------------------- ----------------------- ------------------------- ------------------------- -------------------
Common Stock Underlying
Common Stock Purchase
Warrants 31,250 $10.35(3) $ 323,438 $ 96
- ----------------------------- ----------------------- ------------------------- ------------------------- -------------------
Common Stock Purchase
Warrants 125,000 $10.35(3) $1,293,750 -- (4)
- ----------------------------- ----------------------- ------------------------- ------------------------- -------------------
</TABLE>
(1) Pursuant to Rule 416, there are also being registered an indeterminate
number of shares of the Registrant's common stock, par value $0.01 per
share, which may become issuable pursuant to the anti-dilution provisions
of the Warrants.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon a price of $10.35 per share, which was
the average of the high and low sale prices as reported on the Nasdaq
National Market on May 22, 1998.
(3) Calculated pursuant to Rule 457(g)(3).
(4) Pursuant to Rule 457(g) under the Securities Act of 1933, as amended, no
separate registration fee is required to be paid with respect to the
Warrants registered hereby.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
LEGEND
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 28, 1998
PROSPECTUS
156,250 Shares of Common Stock
125,000 Common Stock Purchase Warrants
BARRINGER TECHNOLOGIES INC.
This Prospectus relates to the offering by certain existing
securityholders of the Company named herein (the "Selling Securityholders") of
the following securities, which may be sold from time to time by the Selling
Securityholders pursuant to this Prospectus: (i) 125,000 shares of common stock,
par value $0.01 per share ("Common Stock"), of Barringer Technologies Inc. (the
"Company") and 125,000 Common Stock Purchase Warrants (the "Warrants") of the
Company issuable upon the exercise of a warrant (the "Underwriter's Warrant")
sold by the Company in connection with its public offering in November 1996, and
(ii) 31,250 shares of Common Stock issuable upon the exercise of the 125,000
Warrants. The Common Stock and the Warrants offered hereby are referred to
herein as the "Securities".
The Underwriter's Warrant is exercisable (x) with respect to the Common
Stock for a period of four years commencing on November 12, 1997 at an exercise
price of $10.276 per share, and (y) with respect to the Warrants for a period of
two years commencing on November 12, 1997 at an exercise price of $0.06 per
Warrant. The Warrants are exercisable until November 12, 1999 and entitle the
holder thereof to purchase one-quarter of one share of Common Stock at a price
of $9.847 per share. The exercise prices of and the number of shares issuable in
connection with the exercise of the Underwriter's Warrant, including the
exercise of the Warrants covered thereby, are subject to adjustment under
certain circumstances. The Warrants are redeemable by the Company for $0.25 per
warrant (subject to adjustment under certain circumstances), upon not less than
30 days' prior written notice, if the closing bid price of the Common Stock
averages in excess of 200% of the exercise price of the Warrants for a period of
30 days ending within 15 days of the redemption notice date. The Underwriter's
Warrant is not subject to redemption by the Company.
If the Underwriter's Warrant and all Warrants covered thereby are
exercised in full, the Company would receive proceeds of approximately $1.6
million (prior to the deduction of fees and expenses payable in connection with
the sale of the Securities offered hereby (the "Offering")). Other than the
proceeds received by the Company from the exercise of the Underwriter's Warrant
and the exercise of the Warrants covered thereby, the Company will not receive
any of the proceeds from the sale of the Securities offered hereby. The Company
estimates that its expenses in connection with the Offering will be
approximately $15,000.
The Selling Securityholders may, from time to time, offer and sell the
Common Stock being offered hereby in the over-the-counter market, in negotiated
transactions, or otherwise, at prices then prevailing or related to the
then-current market price or at negotiated prices. The Common Stock offered
hereby may be sold directly by a Selling Securityholder or through agents or
broker-dealers acting as principal or agent, or in block trades or by one or
more underwriters. See "Plan of Distribution."
The Common Stock and the Warrants are included in the Nasdaq National
Market under the symbols "BARR" and "BARRW", respectively. On May 22, 1998, the
last sale price of the Common Stock as reported on the Nasdaq National Market
was $10 5/8 per share, and the last sale price of the Warrants as reported on
the Nasdaq National Market System was $7/8 per Warrant.
-----------------------------------
See "Risk Factors" on page 4 for certain factors which should be
considered by prospective purchasers of the Securities offered hereby.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
_________________________________________________________________________
The date of this Prospectus is ___________, 1998.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, NW, Washington, D.C. 20549; and at
the Commission's Regional Offices at 500 West Madison, Suite 1400, Chicago,
Illinois 60661 and at Seven World Trade Center, Suite 1300, New York, New York
10048. Copies of such material can be obtained from the Public Reference Section
of the Commission at its principal office at Room 1024, 450 Fifth Street, NW,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding issuers, such as the Company, that file electronically with the
Commission and the address of such Web site is http://www.sec.gov. The Common
Stock and the Warrants are included in the Nasdaq National Market under the
symbols BARR and BARRW, respectively, and reports, proxy statements and other
information regarding the Company may be inspected and copied at the offices of
the Nasdaq Stock Market, 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all respective amendments thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Securities offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and the
exhibits thereto, certain portions of which have been omitted in accordance with
the rules and regulations of the Commission. For further information with
respect to the Company and the Securities offered hereby, reference is made to
the Registration Statement and the related exhibits. Any statements contained
herein concerning the provisions of any document are not necessarily complete
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement. Each such statement is qualified in
its entirety by such reference. Copies of the Registration Statement and the
exhibits thereto are on file at the offices of the Commission and may be
obtained, upon payment of the fee prescribed by the Commission, or may be
examined without charge at the public reference facilities of the Commission
described above.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company
with the Commission pursuant to the Exchange Act, are hereby incorporated by
reference in this Prospectus:
(i) The Company's Annual Report on Form 10-KSB for
the year ended December 31, 1997;
(ii) The Company's Quarterly Report on Form 10-QSB
for the period ended March 31, 1998; and
(iii) The description of the Common Stock set forth
in the Company's Registration Statement filed on Form 8-A and any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the completion of the Offering being made hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company hereby undertakes to provide without charge to
each person, including any beneficial owner, to whom a copy of this Prospectus
has been delivered, upon the written or oral request of any such person, a copy
of any or all of the documents referred to above under "Incorporation of Certain
Documents by Reference" (other than the exhibits to such documents unless such
exhibits are specifically incorporated by reference in such documents). Requests
for such copies should be directed to: Barringer Technologies Inc., 219 South
Street, Murray Hill, New Jersey 07974, Attention: Secretary (telephone no. (908)
665-8200).
FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates by reference
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act that are based on the beliefs of the
Company's management as well as assumptions made by and information currently
available to the Company's management. When used in this Prospectus, the words
"estimate," "project," "believe," "anticipate," intend," "expect," "plan,"
"predict," "may," "should," "will," the negative thereof and similar expressions
are intended to identify forward-looking statements. Such statements reflect the
current views of the Company with respect to future events based on currently
available information and are subject to risks and uncertainties that could
cause actual results to differ materially from those contemplated in such
forward-looking statements. Factors that could cause actual results to differ
materially from the Company's expectations are set forth below under "Risk
Factors," including, but not limited to, "Dependence on Government Procurement
Policies," "Dependence on Large Orders; Customer Concentrations," "Dependence on
IONSCAN(R) and Market Acceptance," "Dependence on New Product Development;
Technological Advancement," "Limited Proprietary Technology," "Fluctuations in
Operating Results," "Competition," "Lengthy Sales Cycle," "International
Business; Risk of Change in Foreign Regulations; Fluctuations in Exchange
Rates," "Dependence on Limited Number of Suppliers," "Ability to Manage Rapid
Growth" and "Risks Associated with Acquisition Strategy." Other factors may be
described from time to time by the Company's public filings with the Securities
and Exchange Commission, news releases and other communications. These
forward-looking statements speak only as of the date hereof. The Company does
not undertake any obligation to release publicly any revisions to these
forward-looking statements to reflect events or circumstances after the date
hereof or to reflect the occurrence of unanticipated events.
RISK FACTORS
The Securities offered hereby involve a high degree of risk.
In addition to the other information contained or incorporated by reference in
this Prospectus, the following risk factors should be considered carefully in
evaluating the Company, its business and an investment in the Securities offered
hereby.
Dependence on Government Procurement Policies
The Company's business is dependent upon purchases of IONSCAN(R)s by government
agencies. Budgetary allocations for detection equipment are dependent, in part,
upon government policies that fluctuate from time to time in response to
political and other factors, including the public's perception of the threat of
airline bombings and other terrorist acts. The Company expects that a
substantial portion of current and anticipated purchases of advanced detection
equipment will continue to be made by government agencies with appropriated
funds. For instance, sales to the FAA constituted approximately 14.8% of the
Company's revenues for the fiscal year ended December 31, 1997.
A reduction of funding for security efforts or drug interdiction could
materially and adversely affect the Company's business, financial condition and
results of operations. There can be no assurance that funding for the purchase
of such equipment will be continued or as to the level of such funding. A
substantial amount of the funds appropriated to date have been and amounts
appropriated in the future will continue to be used to purchase equipment
utilizing other technologies, such as enhanced x-ray, computer aided tomography
("CATSCAN") and other bulk imaging technologies. Accordingly, there can be no
assurance as to the amount that will ultimately be spent on the purchase of
trace particle detection equipment or as to the number of IONSCAN(R)s that will
actually be purchased. In addition, there can be no assurance that the Company's
products will meet any certification or other requirements that may be adopted
by any government agencies.
Dependence on Large Orders; Customer Concentrations
In any given fiscal year, the Company's revenues have principally consisted, and
the Company believes will continue to consist, of large orders for multiple
IONSCAN(R)s from a limited number of customers. While the number and identity of
the Company's customers may vary from period to period, the Company is
nevertheless dependent upon these multiple orders for a substantial portion of
its revenues. There can be no assurance that the Company will obtain such
multiple orders on a consistent basis. During the year ended December 31, 1997,
approximately $8.3 million, or 36.7%, of the Company's revenues were generated
from sales to the Company's three largest customers. During the year ended
December 31, 1996, revenues from the Company's three largest customers were
approximately $2.8 million, or 25.5%, of the Company's revenues. A significant
portion of the Company's anticipated future revenues are expected to result from
orders from the FAA. The Company's inability to obtain sufficient multiple
orders or to expand its customer base could have a material adverse effect on
the Company's business, financial condition and results of operations.
Dependence on IONSCAN(R) and Market Acceptance
The Company derives substantially all of its revenues from the sale of
IONSCAN(R)s. There can be no assurance that markets for the IONSCAN(R) or the
Company's other current or future products will develop as the Company expects
or that the Company will be able to capitalize on such market development.
Similarly, there can be no assurance that any markets that do develop will be
sustained.
Dependence on New Product Development; Technological Advancement
The Company's success is dependent upon its ability to continue to enhance the
IONSCAN(R) and to develop or acquire new products and technologies that
incorporate technological advances, keep pace with evolving industry standards
and respond to changing customer requirements. If the Company is unable to
develop and introduce new products or enhancements in a timely manner in
response to changing market conditions or customer requirements, the Company's
business, financial condition and results of operations would be materially and
adversely affected.
In addition, from time to time the Company or its present or potential
competitors may introduce new products, capabilities or technologies that have
the potential to replace, shorten the life spans of, or render obsolete the
Company's existing products. There can be no assurance that the Company will be
successful in convincing potential customers that the IONSCAN(R) is superior to
such other systems or products, that new systems with comparable or greater
performance, lower prices and faster or equivalent throughput will not be
introduced, or that, if such products are introduced, customers will not delay
or cancel existing or future orders for the IONSCAN(R). Announcements of
currently planned or other new products may cause customers to delay their
purchasing decisions in anticipation of such products, as occurred in late 1994
when the Company introduced the Model 400 IONSCAN(R). Such delays could have a
material adverse effect on the Company's business, financial condition and
results of operations.
Limited Proprietary Technology
Certain of the technology used in the IONSCAN(R) is licensed by the Company from
the Canadian government pursuant to a license agreement that expires in March
1999, subject to the Company's right to extend on a year-to-year basis through
March 2009. While the Company holds patents relating to certain components,
systems and techniques used in the IONSCAN(R) and while certain other elements
of the IONSCAN(R) are protected by other intellectual property rights, the
Company has no comprehensive patent or similar exclusive intellectual property
right covering the IONSCAN(R) in its entirety. In addition, the basic IMS
technology used by the Company is not proprietary and is available in the public
domain. Accordingly, present and potential competitors could use such basic
technology to duplicate the performance of the IONSCAN(R).
Fluctuations in Operating Results
The Company's past operating results have been, and its future operating results
will be, subject to fluctuations resulting from a number of factors, including:
the timing and size of orders from, and shipments to, major customers; budgeting
and purchasing cycles of its customers; delays in product shipments caused by
customer requirements or the inability of customers to accept shipments; the
timing of enhancements to the IONSCAN(R) by the Company or new products
introduced by the Company or its competitors; changes in pricing policies by the
Company, its competitors or suppliers, including possible decreases in average
selling prices of the IONSCAN(R) in response to competitive pressures; the
proportion of revenues derived from competitive bid processes; the mix between
sales to domestic and international customers; market acceptance of enhanced
versions of the IONSCAN(R); the availability and cost of key components; the
availability of manufacturing capacity; and fluctuations in general economic
conditions. The Company also may choose to reduce prices or to increase spending
in response to competition or to pursue new market opportunities, and may incur
significant charges or expenses in connection with acquisitions and strategic
relationships, all of which may have a material adverse effect on the Company's
business, financial condition and results of operations. The Company's revenues
in any period are substantially derived from sales of IONSCAN(R)s to a limited
number of customers and such revenues are recognized upon shipment. As a result,
variations in the number of orders or the timing of shipments may cause the
Company's quarterly and annual operating results to vary substantially.
Moreover, government agencies and certain other customers expend unused budgeted
funds at the end of their respective fiscal years, causing the Company's sales
to be higher during such periods. Because the Company generally recognizes
substantially all of the revenue from a sale upon shipment, and because the
recognition of revenue from the sale of relatively few IONSCAN(R)s may
substantially impact the Company's profitability during any period, the impact
of these budgetary considerations on the delivery date of a relatively few units
could significantly affect the Company's quarterly results and the
predictability of such quarterly results.
Competition
The Company competes with other entities, including Intelligent Detection
Systems Inc., Ion Track Instruments Inc. and Thermedics Detection Inc., a number
of which have significantly greater financial, marketing and other resources
than the Company. Principal competitive factors include selectivity (the ability
of an instrument to identify the presence of a particular substance),
sensitivity (the ability of an instrument to detect small amounts of a
particular substance), false alarm rate, price, marketing, ease of use and speed
of analysis. There can be no assurance that the Company will be able to continue
to compete successfully with its competitors or be able to compete with new
market entrants or in new markets that may develop.
The Company competes for government expenditures with equipment manufacturers,
such as InVision Technologies, Inc. and Vivid Technologies, Inc., utilizing
other types of detection technologies, including enhanced x-ray, CATSCAN and
other bulk imaging technologies, as well as with manufacturers of other IMS
equipment and manufacturers using other trace particle detection technologies,
such as gas chromatography and chemiluminescence.
The Company also competes with the use of canines to locate the presence of
explosives or drugs.
As a result of recent government initiatives, the Company anticipates that
additional technologies, including improved IMS technologies, will be developed
and that new competitors will enter the Company's markets. The failure of the
Company to develop improvements or otherwise successfully compete in its markets
would have a material adverse effect on the Company's business, financial
condition and results of operations.
Lengthy Sales Cycle
The Company's sales process is often protracted due to the lengthy approval
processes that typically accompany government expenditures. Typically, six to 12
months may elapse between a new customer's initial evaluation of the IONSCAN(R)
and the placement of an order.
International Business; Risk of Change in Foreign Regulations; Fluctuations in
Exchange Rates
The Company markets its products to customers outside of the U.S. and,
accordingly, is exposed to the risks of international business operations,
including unexpected changes in foreign and domestic regulatory requirements,
possible foreign currency controls, uncertain ability to protect and utilize its
intellectual property in foreign jurisdictions, currency exchange rate
fluctuations or devaluations, tariffs or other barriers, difficulties in
staffing and managing foreign operations, difficulties in obtaining and managing
vendors and distributors and potentially negative tax consequences.
International sales are subject to certain inherent risks including embargoes
and other trade barriers, staffing and operating foreign sales and service
operations and collecting accounts receivable. The Company is also subject to
risks associated with regulations relating to the import and export of high
technology products. The Company cannot predict whether, or to what extent,
quotas, duties, taxes or other charges or restrictions upon the importation or
exportation of the Company's products in the future will be implemented by the
U.S. or any other country. There can be no assurance that any of these factors
will not have a material adverse effect on the Company's business, financial
condition and results of operations.
A portion of the Company's revenues and expenses are denominated in foreign
currencies. Fluctuations in currency exchange rates could adversely affect the
Company's profitability and could cause the Company's products to become
relatively more expensive to customers in a particular country, leading to fewer
sales or reduced selling prices in that country. As a result, the Company is
exposed to a certain degree of exchange rate risk. The Company generally does
not hedge its foreign exchange exposure. There can be no assurance that the
Company will not experience material losses in the future as a result of
currency fluctuations or that any such losses will not have a material adverse
effect on the Company's business, financial condition and results of operations.
Dependence on Limited Number of Suppliers
Certain key components used in the Company's products have been designed by the
Company, are manufactured pursuant to the Company's specifications and are
currently purchased from only one or a limited number of suppliers. The Company
currently does not have long-term agreements with these suppliers. Moreover, in
view of the high cost of many of these components, the Company does not maintain
significant inventories of some necessary components. Recently, the Company has
significantly increased its purchases of certain components to meet expected
demand for the IONSCAN(R). As a result, in certain circumstances, the Company
has had to enter into new supply relationships in order to satisfy its increased
demand for components and may be required to do so in the future. If the
Company's suppliers were to experience financial, operational, production or
quality assurance difficulties, the supply of components to the Company would be
reduced or interrupted. In the event that a supplier were to cease operations,
discontinue production of a component or withhold supply for any reason, the
Company might be unable to acquire certain components from alternative sources,
to find alternative third-party manufacturers or sub-assemblers, or to obtain
sufficient quantities of certain components, which could result in delays or
interruptions in product shipments, and could have a material adverse effect on
the Company's business, financial condition and results of operations.
Ability to Manage Rapid Growth
The Company has rapidly expanded its business operations as a result of
increased demand for the IONSCAN(R), which has placed significant demands on the
Company's manufacturing, management and working capital resources and operating,
management and financial control systems. Failure to maintain needed resources
or to enhance the Company's operating, management and financial control systems
as and when necessary, or difficulties encountered during such enhancements,
could have a material adverse effect on the Company's business, financial
condition and results of operations. The Company's future growth also will
depend on its ability to continue to improve and expand its engineering and
technical resources and to attract, retain and motivate key personnel. The
failure of the Company to increase its revenues sufficiently to compensate for
increased expenses resulting from current or future expansion, or the Company's
failure to otherwise adequately manage the growth of its business, would have a
material adverse effect on the Company's business, financial condition and
results of operations. Further, there can be no assurance that the Company can
sustain its recent rapid growth.
Risks Associated with Acquisition Strategy
An element of the Company's strategy is to seek acquisition partners that would
complement the Company's existing product offerings, augment its market
coverage, enhance its technological capabilities or otherwise offer growth
opportunities. Although the Company has no present understandings, commitments
or agreements with respect to any material acquisition of any business, products
or technologies, the Company may make such acquisitions in the future. Future
acquisitions by the Company could result in potentially dilutive issuances of
equity securities, the incurrence of debt and contingent liabilities,
amortization expenses relating to goodwill and other intangible assets, and the
incurrence of significant charges or expenses relating to any acquired business,
any of which could materially and adversely affect the Company's business,
financial condition and results of operations. Acquisitions entail numerous
risks, including difficulties in the assimilation of acquired businesses,
products and technologies, diversion of management's attention from other
business concerns, risks of entering markets in which the Company has no or
limited prior experience and potential loss of key employees of acquired
organizations. The Company's management has limited experience in assimilating
acquired organizations. No assurance can be given as to the ability of the
Company to integrate successfully any businesses, products, technologies or
personnel that might be acquired in the future, and the failure of the Company
to do so could have a material adverse effect on the Company's business,
financial condition and results of operations.
Retention of and Dependence on Key Personnel
The Company's success will depend, in part, on its ability to retain the
services of its key personnel, including management and scientific employees,
who are and will continue to be instrumental in the development and management
of the Company's business. Although the Company has entered into employment
agreements with its Chief Executive Officer and certain of its other senior
executives, the loss of the services of one or more of the Company's key
employees could have a material adverse effect on the Company.
Warranty Claims
The Company generally provides a one-year parts and labor warranty on each
IONSCAN(R), although from time to time the Company has provided extended
warranties. Although the Company has not experienced significant warranty
claims, there can be no assurance that such claims will not increase as the
Company's sales and product offerings increase. Increased warranty claims could
have a material adverse effect on the Company's business, financial condition
and results of operations.
Potential Product Liability Insurance Limits
The Company currently maintains product liability insurance in the amount of
$10.0 million per occurrence. The Company's insurance policy covers certain
claims and the cost of legal fees involved in the defense of such claims, which
are either covered under the policy or alleged in such a manner so as to invoke
the insurer's duty to defend the Company. The Company believes that, as it
distributes more products into the marketplace and expands its product lines,
its exposure to potential product liability claims and litigation may increase.
There can be no assurance that the Company's current level of insurance will be
sufficient to protect the business and assets of the Company from all claims,
nor can any assurance be given that the Company will be able to maintain its
existing coverage or obtain additional coverage at commercially reasonable
rates. Product liability losses in excess of insurance coverage could have a
material adverse effect on the Company's business, financial condition and
results of operations.
Shares Eligible For Future Sale
Assuming the sale of all of the shares covered hereby (including shares issuable
upon the exercise of the Warrants), 8,005,185 shares of Common Stock will be
outstanding. All of the shares offered hereby will be freely tradable unless
acquired by affiliates of the Company. The remaining 7,848,935 shares are freely
tradable. An additional 1,063,475 shares of Common Stock are issuable upon the
exercise or conversion of outstanding stock options, warrants and convertible
securities outstanding as of May 15, 1998, all of which have been registered for
resale by the holders thereof and are, therefore, freely tradable. In connection
with a recent public offering by the Company, certain of the officers and
directors of the Company, who held an aggregate of 709,621 shares of Common
Stock (including 534,550 shares issuable upon exercise or conversion of
outstanding options, warrants and convertible securities) as of February 1,
1998, agreed not to offer or sell, directly or indirectly, any securities of the
Company in the public market for a period of 90 days from March 30, 1998
(subject to certain exceptions) without prior written consent of the
representatives of the underwriters of such offering.
The Company cannot predict the effect, if any, that sales of additional shares
of Common Stock or the availability of shares for future sale will have on the
market price of the Common Stock or the Warrants. Sales in the public market of
substantial amounts of Common Stock (including shares issued upon the exercise
or conversion of outstanding options, warrants and convertible securities), or
the perception that such sales might occur, could adversely affect prevailing
market prices for the Common Stock or the Warrants. Such sales also may make it
more difficult for the Company to sell equity securities or equity related
securities in the future at a time and price that the Company deems appropriate.
Effects of Warrants
Holders of the Warrants will have the opportunity to profit from a rise in the
market price of the Common Stock without assuming the risk of ownership of the
shares of Common Stock issuable upon the exercise of such Warrants, with a
resulting dilution in the interests of the Company's stockholders by reason of
exercise thereof at a time when the exercise price is less than the market price
for the Common Stock. Further, the terms on which the Company could obtain
additional capital during the life of the Warrants may be adversely affected.
Holders of Warrants may be expected to exercise their Warrants at a time when
the Company could, in all likelihood, obtain any needed capital by an offering
of Common Stock on terms more favorable than those provided by such Warrants.
Possible Redemption of Warrants
The Warrants are redeemable by the Company for $0.25 per Warrant (subject to
adjustment under certain circumstances), upon not less than 30 days' prior
written notice, if the closing bid price of the Common Stock averages in excess
of 200% of the exercise price of the Warrants for a period of 30 days ending
within 15 days of the redemption notice date. Redemption of the Warrants could
force the holders thereof to exercise earlier than they would otherwise have, to
exercise at a time when it may be disadvantageous for holders to do so or to
sell at the then-current market price when holders might otherwise wish to
retain their Warrants for possible appreciation. Alternatively, the holders may
accept the redemption price when it is likely to be substantially less than the
then-current market value thereof. Any holders who do not exercise their
Warrants prior to redemption will forfeit the right to purchase the shares of
Common Stock underlying such Warrants.
Current Prospectus to Exercise Warrants
The Warrants are not exercisable unless, at the time of exercise, the Company
has a current prospectus covering the shares of Common Stock issuable upon
exercise of such Warrants. In addition, in the event that any holder of Warrants
attempts to exercise such Warrants at any time after nine months from the date
of this Prospectus, the Company may be required to file a post-effective
amendment and deliver a current prospectus before the Warrants can be exercised.
Although the Company has undertaken to use its best efforts to maintain a
current prospectus covering the Common Stock issuable upon exercise of the
Warrants, there is no assurance that the Company will be able to do so. The
value of the Warrants may be greatly reduced if a current prospectus covering
the Common Stock issuable upon exercise of the Warrants is not kept effective.
Absence of Public Market for Warrants; Potential Volatility of Stock Price
While the Warrants trade sporadically on the Nasdaq National Market System,
there can be no assurance that an active trading market in the Warrants will be
developed or, if developed, be maintained. As a result, purchasers may have
difficulty selling, or otherwise disposing of, the Warrants offered hereby. In
addition, prior to this Offering, there have been significant fluctuations in
the trading price of the Common Stock. No assurance can be given that such
volatility will not continue following the completion of this Offering.
Certain Charter Provisions
The Company's Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), contains provisions which require the favorable vote of the
holders of not less than 80.0% of the outstanding shares of Common Stock for the
approval of any merger, consolidation or other combination with, or sale, lease
or exchange of all or substantially all of the assets of the Company to, another
entity holding more than 10.0% of the Company's outstanding voting equity
securities or any affiliate of such entity. These provisions could discourage
potential acquisition proposals, delay or prevent a change in control of the
Company and limit the price that certain investors might be willing to pay in
the future for shares of the Common Stock.
The Board of Directors of the Company is empowered to issue shares of preferred
stock without stockholder action. The existence of this "blank check" preferred
stock could render more difficult or discourage an attempt to obtain control of
the Company by means of a tender offer, merger, proxy contest or otherwise and
may adversely affect the prevailing market price of the Common Stock. The
Company currently has no plans to issue additional shares of preferred stock. In
addition, Section 203 of the Delaware General Corporation Law restricts certain
persons from engaging in business combinations with the Company.
THE COMPANY
The Company is the world's leading manufacturer (based on
units sold) of high sensitivity equipment used for detecting and identifying
trace amounts of plastic and other explosives and illegal drugs. The Company
designs and produces products that employ a proprietary application of ion
mobility spectrometry ("IMS") technology that can detect and identify targeted
compounds in amounts smaller than one-billionth of a gram in approximately six
seconds. The Company's objective is to leverage its position as the world's
leading provider of trace detection systems in its core markets and to become a
leading supplier of other advanced technology security solutions. The Company
intends to achieve this objective by further penetrating its existing markets,
leveraging its IMS technology for new applications, pursuing strategic
relationships and acquisitions and expanding its sales and marketing
capabilities.
The Company's current principal product, the IONSCAN(R), is a
portable desktop system used in explosives detection and drug interdiction
applications. As of December 31, 1997, the Company had sold over 700 units
(including 335 during 1997) in 39 countries.
The markets for the Company's IONSCAN(R) currently include
aviation security, other transport security, facilities protection, forensics,
military, corrections, customs and law enforcement. The Company's customers
include the Federal Aviation Administration, the U.S. Air Force, the U.S. Coast
Guard, the U.S. Drug Enforcement Agency and the Federal Bureau of Investigation,
as well as customs agencies in France, Canada, Australia and Japan and various
prison facilities in the U.S. and elsewhere. The IONSCAN(R) is also installed at
over 40 airports and transportation centers in countries throughout the world,
including Gatwick Airport and Heathrow Airport in the United Kingdom, John F.
Kennedy International Airport and Chicago O'Hare International Airport in the
United States and Kuala Lumpur Airport in Malaysia, as well as the Eurotunnel.
The Company believes that its principal competitive advantages are the detection
capability, reliability, versatility, cost effectiveness, ease of use and
portability of the IONSCAN(R). These advantages enable the IONSCAN(R) to be used
both in lieu of and in conjunction with bulk imaging technologies, such as
enhanced x-ray and computer aided tomography.
The Company believes that many of the markets it serves are
experiencing substantial growth, principally in reaction to heightened safety
concerns caused by the threat of terrorism and growing public awareness of
drug-related criminal activity. The Company believes that the deployment of
advanced detection equipment, such as the IONSCAN(R), will continue to increase
as the acceptance of using such equipment to combat these concerns increases. In
January 1998, the Company received a $5.4 million order from the FAA as part of
the FAA's publicly announced intention to further deploy advanced detection
technology at the nation's larger airports. In addition, during 1997, the
Company sold a number of IONSCAN(R)s to the U.S. Air Force for use in securing
certain U.S. Air Force bases in the U.S. and abroad. Also in 1997, the Company
sold $2.5 million of IONSCAN(R)s to a correctional agency to assist in stemming
the flow of illegal drugs to inmates.
The Company markets its products through a direct sales
organization comprised of 18 sales people located at its headquarters in New
Jersey and at offices in Toronto, London, Paris and Kuala Lumpur. In addition,
the Company utilizes a network of 45 independent sales and service
representatives located in Europe, the Middle East, Africa, Asia, South America
and Australia.
The Company was incorporated under the laws of the State of
Delaware on September 7, 1967. The Company's principal executive offices are
located at 219 South Street, Murray Hill, New Jersey 07974, and its telephone
number is (908) 665-8200.
USE OF PROCEEDS
If the Underwriter's Warrant and the Warrants covered thereby
are exercised in full at the prices set forth above, the Company would receive
gross proceeds of approximately $1.6 million (prior to the deduction of fees and
expenses incurred in connection with this Offering). Other than the proceeds
received by the Company from the exercise the Underwriter's Warrant and the
exercise of the Warrants covered thereby, the Company will not receive any of
the proceeds from the sale of the Securities offered hereby. The Company
estimates that its expenses in connection with the Offering will be
approximately $15,000. The Company intends to use the net proceeds, if any, from
the exercise of the Underwriter's Warrant (including the exercise of the
Warrants covered thereby) for general corporate purposes.
SELLING SECURITYHOLDERS
The 156,250 shares of Common Stock and 125,000 Warrants to
which this Prospectus relates will be offered from time to time by the Selling
Securityholders named in the following table. One of the Selling
Securityholders, Janney Montgomery Scott, Inc. ("Janney Montgomery Scott") acted
as the representative of the underwriters of the Company's November 1996 public
offering, in which the Company sold 1,437,500 shares of Common Stock and
1,437,500 Warrants. In connection with such offering, in addition to customary
underwriting fees, the Company issued the Underwriter's Warrant to Janney
Montgomery Scott. The Company has filed the registration statement, of which
this Prospectus is a part, at the request of Janney Montgomery Scott pursuant to
the terms of the Underwriter's Warrant. See "Description of Warrants." Messrs.
William J. Barrett and Herbert M. Gardner, officers of Janney Montgomery Scott,
have obtained beneficial interests in certain of the Securities covered by the
Underwriter's Warrant. In July 1996, Messrs. Barrett and Gardner purchased 6%
Subordinated Convertible Debentures from the Company in the principal amounts of
$150,000 and $50,000, respectively. Upon conversion of such debentures in
December 1997, Messrs. Barrett and Gardner received from the Company 54,545 and
18,181 shares of Common Stock, respectively.
The following table sets forth certain information with
respect to the Selling Securityholders. All ownership information is as of May
1, 1998.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Common Stock Warrants
Beneficially Beneficially
Common Stock Owned After Warrants Owned After
Beneficially Maximum Offering if Beneficially Maximum Offering if
Selling Owned Prior to Amount to be Maximum is Owned Prior to Amount to Maximum is
Securityholder Offering (1)(2) Sold (2) Sold (1)(2) Offering be Sold (2) Sold (1)(2)
(1)(2)
Amount % Amount % Amount % Amount %
Janney Montgomery
Scott, Inc. 91,250 1.2 91,250 -- -- 73,000 18.1 73,000 -- --
William J. Barrett 32,500 * 32,500 -- -- 26,000 2.0 26,000 -- --
Herbert M. 32,500 * 32,500 -- -- 26,000 2.0 26,000 -- --
Gardner
- ---------
* Less than 1%
</TABLE>
(1) Assumes the full exercise or conversion of outstanding convertible
securities, warrants, rights or options for such person or entity.
(2) Certain amounts shown here are subject to adjustment in certain
circumstances.
PLAN OF DISTRIBUTION
The Securities offered hereby may be offered and sold from
time to time by the Selling Securityholders upon exercise of the Underwriter's
Warrant by Janney Montgomery Scott. In addition, the Warrants may be exercised
by the holders thereof by tendering the exercise price, together with the
warrant certificate and exercise form, to the Company before November 12, 1999,
the expiration date of the Warrants.
The distribution of the Securities by the Selling
Securityholders, or by their respective pledgees, donees, transferees or other
successors in interest, may be effected from time to time in one or more
transactions on the Nasdaq National Market System, in special offerings,
exchange distributions and/or secondary distributions pursuant to and in
accordance with the applicable rules of the National Association of Securities
Dealers, Inc. ("NASD"), in the over-the-counter market, in negotiated
transactions (including, without limitation, privately negotiated transactions),
through the writing of options on the Securities or, or through the issuance of
other securities convertible into such Securities (whether such options or other
securities are listed on an options or securities exchange or otherwise), or a
combination of such methods of distribution, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices.
Any or all of the Securities may be sold from time to time to
purchasers directly by the Selling Securityholders. Sales of Securities also may
be made pursuant to Rules 144, 144A or 904 of the Securities Act, provided that
the requirements of such rules, including, without limitation, any applicable
holding periods and manner of sale requirements, are met. Alternatively, a
Selling Securityholder may from time to time offer any or all of the Securities
through underwriters, dealers, brokers or agents, including in transactions in
which any such underwriters, dealers, brokers or agents solicit purchasers, in
block transactions or in transactions in which any such underwriters, dealers,
brokers, or agents will attempt to sell such Securities as an agent but may
resell such Securities as a principal pursuant to this Prospectus.
Any underwriters, dealers, brokers or agents participating in
the distribution of the Securities offered hereby may receive compensation in
the form of underwriting discounts, concessions, commissions or fees from a
Selling Securityholder and/or purchasers of the Securities for whom they may act
as agents (which compensation may be in excess of customary commissions). In
addition, a Selling Securityholder and any such underwriters, dealers, brokers
or agents that participate in the distribution of the Securities may be deemed
to be "underwriters" within the meaning of Section 2(11) of the Securities Act
and any commissions received by them and any profit on the resale of the
Securities may be deemed to be underwriting compensation. Additionally, a
Selling Securityholder may pledge the Securities, and in such event agents or
dealers may acquire the Securities or interests therein, and may, from time to
time, effect distribution of the Securities or interests in such capacity.
DESCRIPTION OF WARRANTS
The following is a brief summary of certain provisions of the
Warrants. Such summary does not purport to be complete and is qualified in all
respects by reference to the actual text of the Warrant Agreement (the "Warrant
Agreement") between the Company and American Stock Transfer & Trust Company (the
"Warrant Agent"). A copy of the Warrant Agreement has been incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part.
Exercise Price and Terms
Each Warrant entitles the registered holder thereof to
purchase one-quarter of a share of Common Stock at an exercise price of $9.847
per share prior to November 12, 1999 subject to adjustment in accordance with
the anti-dilution and other provisions referred to below. The holder of any
Warrant may exercise such Warrant by surrendering the certificate representing
the Warrant to the Warrant Agent, with the subscription form thereon properly
completed and executed, together with payment of the exercise price. The
Warrants may be exercised at any time in whole or in part at the exercise price
then in effect until expiration or redemption of the Warrants. No fractional
shares will be issued upon the exercise of the Warrants.
The exercise price of the Warrants was set at a premium to the
then-existing market price of the Common Stock and have no relationship to any
objective criteria of future value and, accordingly, should in no event be
regarded as an indication of any future market price of the Securities offered
hereby.
Adjustments
The exercise price and the number of shares of Common Stock
purchasable upon the exercise of the Warrants are subject to adjustment upon the
occurrence of certain events, including stock dividends, stock splits,
combinations or reclassifications of the Common Stock, or sale by the Company of
shares of its Common Stock or other securities convertible into Common Stock
(exclusive of shares issued upon the exercise or conversion of outstanding
options, warrants and convertible securities) at a price below the market price
(as defined) of the Common Stock. Additionally, an adjustment would be made in
the case of a reclassification or exchange of Common Stock, consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving corporation) or
sale of all or substantially all of the assets of the Company in order to enable
Warrant holders to acquire the kind and number of shares of stock or other
securities or property receivable in such event by a holder of the number of
shares of Common Stock that might otherwise have been purchased upon the
exercise of the Warrants.
Redemption Provisions
The Warrants are subject to redemption by the Company, at
$0.25 per Warrant (subject to adjustment under certain circumstances), upon not
less than 30 days' prior written notice, if the bid price of the Common Stock as
reported by Nasdaq averages in excess of 200% of the exercise price of the
Warrants for a period of 30 days ending within 15 days of the redemption notice
date. In the event that the Company exercises the right to redeem the Warrants,
such Warrants will be exercisable until the close of business on the date for
redemption fixed in the redemption notice. If any Warrant called for redemption
is not exercised by such time, it will cease to be exercisable and its holder
will be entitled only to the redemption price.
Transfer, Exchange and Exercise
The Warrants are in registered form and may be presented to
the Warrant Agent for transfer, exchange or exercise at any time on or prior to
the earlier of (i) the business day prior to the redemption date, or (ii) their
expiration date, November 12, 1999, at which time the Warrants become wholly
void and of no value. If a market for the Warrants develops, the holder may sell
the Warrants instead of exercising them. There can be no assurance, however,
that a market for the Warrants will develop or continue.
Warrant Holder Not a Stockholder
The Warrants do not confer upon holders any voting, dividend
or other rights as stockholders of the Company.
Modification of Warrants
The Company and the Warrant Agent may make such modifications
to the Warrants as they deem necessary and desirable that do not adversely
affect the interests of the warrant holders. The Company may, in its sole
discretion, lower the exercise price of the Warrants for a period of not less
than thirty days on not less than thirty days' prior written notice to the
warrant holders and Janney Montgomery Scott. Except as described above,
modification of the number of securities purchasable upon the exercise of any
Warrant, the exercise price and the expiration date with respect to any Warrant
or any other modification to the Warrants requires the consent of the holders of
two-thirds of the outstanding Warrants.
The Warrants are not exercisable unless, at the time of the
exercise, the Company has a current prospectus covering the shares of Common
Stock issuable upon exercise of the Warrants, and such shares have been
registered, qualified or are deemed to be exempt under the securities laws of
the state of residence of the exercising holder of the Warrants. Although the
Company will use its best efforts to have all the shares of Common Stock
issuable upon exercise of the Warrants registered or qualified on or before the
exercise date and to maintain a current prospectus relating thereto until the
expiration of the Warrants, there can be no assurance that it will be able to do
so.
SECURITIES AND EXCHANGE COMMISSION'S POSITION ON INDEMNIFICATION
Article Tenth of the Company's Certificate of Incorporation
and Section 10 of the Company's by-laws, as amended, provide that the Company
shall, to the fullest extent permitted by law, indemnify each person (including
the heirs, executors, administrators and other personal representatives of such
person) against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by such person in
connection with any threatened, pending or actual suit, action or proceeding
(whether civil, criminal, administrative or investigative in nature or
otherwise) in which such person may be involved by reason of the fact that he or
she is or was a director or officer of the Company or is serving any other
incorporated or unincorporated enterprise in any of such capacities at the
request of the Company. Such provisions may provide indemnification to the
officers, directors or controlling persons of the Company for liability under
the Securities Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
Certain matters with respect to the validity and legality of
the Securities offered hereby have been passed upon for the Company by
Lowenstein Sandler PC, Roseland, New Jersey.
EXPERTS
The financial statements and schedule of the Company included
in the 1997 Form 10-KSB and incorporated by reference in this Prospectus and
elsewhere in the Registration Statement have been audited by BDO Seidman, LLP,
independent certified public accountants, to the extent and for the periods set
forth in their report incorporated herein by reference and are incorporated
herein in reliance upon such report given upon the authority of said firm as
experts in auditing and accounting.
<PAGE>
No dealer, salesman or any other person
has been authorized to give any
information or to make any
representations in connection with this
offering other than those contained in
this Prospectus and, if given or made,
such other information and
representations must not be relied upon
as having been authorized by the
Company. Neither the delivery of this
Prospectus nor any sale made hereunder
shall, under any circumstances, create
any implication that there has been no
change in the affairs of the Company 156,250 Shares
since the date hereof or that the of Common Stock
information contained herein is correct
as of any time subsequent to its date. and
This Prospectus does not constitute an
offer to sell or a solicitation of an 125,000 Common Stock
offer to buy such securities in any Purchase Warrants
circumstances in which such offer or
solicitation is unlawful.
BARRINGER TECHNOLOGIES INC.
______________
PROSPECTUS
______________
---------------------
TABLE OF CONTENTS
Page _______, 1998
Available Information................................ 2
Incorporation of Certain
Documents by Reference............................. 2
Forward-Looking Statements........................... 3
Risk Factors......................................... 4
The Company..........................................11
Use of Proceeds......................................12
Selling Securityholders..............................12
Plan of Distribution.................................12
Description of Warrants..............................13
Securities and Exchange Commission's
Position on Indemnification........................15
Legal Matters........................................15
Experts ............................................15
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table lists the expenses which will be incurred
in connection with the issuance and distribution of the Securities being
registered.
Expense
Securities and Exchange Commission Registration Fee $ 478
Accounting Fees and Expenses 5,000
Legal Fees and Expenses 5,000
Blue Sky Fees and Expenses 1,000
Printing and Engraving 1,000
Miscellaneous 2,522
TOTAL $15,000
All of the above amounts (other than the filing fee payable to
the Securities and Exchange Commission) are estimates only. All of the above
expenses will be paid by the Company.
Item 15. Indemnification of Directors and Officers
The Certificate of Incorporation, as amended (the "Certificate
of Incorporation"), and the Company's by-laws, as amended ("By-laws"), provide
that the Company shall, to the fullest extent permitted by law, indemnify each
person (including the heirs, executors, administrators and other personal
representatives of such person) against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by such person in connection with any threatened, pending or actual
suit, action or proceeding (whether civil, criminal, administrative or
investigative in nature or otherwise) in which such person may be involved by
reason of the fact that he or she is or was a director or officer of the Company
or is serving any other incorporated or unincorporated enterprise in any of such
capacities at the request of the Company.
Section 145 of the General Corporation Law of the State of
Delaware (the "GCL") permits a corporation, under specified circumstances, to
indemnify its directors, officers, employees or agents against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties by reason of the fact that they were or are
directors, officers, employees or agents of the corporation, if such directors,
officers, employees or agents acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reason to believe their conduct was unlawful. In a derivative action, i.e., one
by or in the right of the corporation, indemnification may be made only for
expenses actually and reasonably incurred by directors, officers, employees or
agents in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been judged liable to the corporation unless and only to
the extent that the court in which the action or suit was brought shall
determine upon application that the defendant directors, officers, employees or
agents are fairly and reasonably entitled to indemnity for such expenses despite
such adjudication of liability.
The Certificate of Incorporation also contains a provision
limiting the personal liability of directors to the fullest extent permitted or
authorized by the GCL or other applicable law. Under the GCL, such provision
would not limit liability of a director for (i) breach of the director's duty of
loyalty, (ii) acts or omissions not in good faith or involving intentional
misconduct or knowing violation of law, (iii) payment of dividends or
repurchases or redemptions of stock other than from lawfully available funds, or
(iv) any transactions from which the director derives an improper benefit.
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
3.1 Certificate of Incorporation of the Company, as amended.
3.2 By-laws of the Company.
4.1 Form of Warrant Agreement
4.2 Form of Warrant Agreement with Janney Montgomery Scott, Inc.
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Lowenstein Sandler PC (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page).
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
and
(iii) Include any additional or changed material information
with respect to the plan of distribution.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this amendment to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Murray Hill, State of New Jersey, on
May 28, 1998.
BARRINGER TECHNOLOGIES INC.
By: /S/ STANLEY S. BINDER
---------------------------
Stanley S. Binder, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below on May 28, 1998. Each of the undersigned hereby
constitutes and appoints Stanley S. Binder and Richard S. Rosenfeld, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-3 relating to the
securities offered pursuant hereto and to file the same, together with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission and such other state and federal government
commissions and agencies as may be necessary or advisable, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Signature Title
/S/ STANLEY S. BINDER President, Chief Executive Officer
- ------------------------------- (Principal Executive Officer) and
Stanley S. Binder Director
/S/ JOHN D. ABERNATHY
- -------------------------------
John D. Abernathy Director
/S/ RICHARD D. CONDON
- -------------------------------
Richard D. Condon Director
/S/ JOHN H. DAVIES
- -------------------------------
John H. Davies Director
/S/ JOHN H. HARTE
- -------------------------------
John J. Harte Director
JAMES C. MCGRATH
- -------------------------------
James C. McGrath Director
/S/ RICHARD S. ROSENFELD
- -------------------------------
Richard S. Rosenfeld Vice President-Finance, Chief Financial Officer
and Treasurer (Principal Accounting
and Principal Financial Officer)
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
3.1 Certificate of Incorporation of the Company, as amended (previously
filed as Exhibit 3.1 to the Company's Registration Statement on Form
SB-2 (File No. 333-33129) and incorporated herein by reference).
3.2 By-laws of the Company (previously filed as Exhibit 3.2A to the
Company's Annual Report on Form 10-K/A-2 for the fiscal year ended
December 31, 1994 (File No. 0-3207) and incorporated herein by
reference).
4.1 Form of Warrant Agreement (previously filed as Exhibit 4.1 to the
Company's Registration Statement on Form SB-2 (File No. 333-13703) and
incorporated herein by reference).
4.2 Form of Warrant Agreement with Janney Montgomery Scott (previously filed
as Exhibit 4.2 to the Company's Registration Statement on Form SB-2
(File No. 333-13703) and incorporated herein by reference).
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Lowenstein Sandler PC (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page).
John D. Hogoboom Tel 973.597.2382 Fax 973.597.2383
Member of the Firm [email protected]
May 27, 1998
Barringer Technologies Inc.
219 South Street
New Providence, New Jersey 07974
Dear Sirs:
In connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of (i) 125,000 shares of common stock, par value $0.01 per share
(the "Common Stock"), of Barringer Technologies Inc., a Delaware corporation
(the "Company") issuable upon exercise of warrants issued by the Company to the
managing underwriter of its November 1996 public offering (the "Underwriter's
Warrants") (together with such indeterminate number of additional shares of
Common Stock as may become issuable pursuant to the anti-dilution provisions of
the Underwriter's Warrants, the "Shares"), (ii) 125,000 warrants to purchase
shares of Common Stock issuable upon exercise of the Underwriter's Warrants
(together with such indeterminate number of additional purchase warrants as may
become issuable pursuant to the anti-dilution provisions of the Underwriter's
Warrants, the "Purchase Warrants"), and (iii) 31,250 shares of Common Stock
issuable upon the exercise of the Purchase Warrants (together with such
indeterminate number of additional shares of Common Stock as may become issuable
pursuant to the anti-dilution provisions of the Purchase Warrants, the "Purchase
Warrant Shares"), we have examined such corporate records, certificates and
other documents and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion, (i) when
the Shares have been duly issued by the Company upon the due exercise of the
Underwriter's Warrants so that the number of shares of Common Stock then
outstanding does not exceed the number of shares of Common Stock then
authorized, and the Company has received payment in full of the exercise price
therefor, the Shares will be duly authorized, validly issued, fully paid and
non-assessable, (ii) upon the due exercise of the Underwriter's Warrants and the
Company's receipt of the purchase price therefor, the Purchase Warrants will
constitute valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles, and (iii) subject to the opinion set forth in
clause (ii) above, when the Purchase Warrant Shares have been duly issued by the
Company upon the due exercise of the Purchase Warrants so that the number of
shares of Common Stock then outstanding does not exceed the number of shares of
Common Stock then authorized, and the Company has received payment in full of
the exercise price therefor, the Purchase Warrant Shares will be duly
authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
LOWENSTEIN SANDLER PC
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Barringer Technologies Inc.
Murray Hill, New Jersey
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated February
19, 1998 (March 13, 1998 as to Note 16), relating to the consolidated financial
statements and schedule of Barringer Technologies Inc. appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/BDO SEIDMAN
_____________________________
BDO SEIDMAN, LLP
Woodbridge, New Jersey
May 27, 1998
