SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
AMENDMENT NO. 1 TO
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
________________________
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2632319
(State of incorporation (I.R.S. employer
or organization) identification no.)
5 SYLVAN WAY
PARSIPPANY, NEW JERSEY
(Address of principal executive offices)
07054
(zip code)
________________________
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF
THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH EACH CLASS IS
TO BE REGISTERED TO BE
REGISTERED
COMMON STOCK, AMERICAN STOCK EXCHANGE
PAR VALUE $.01 PER SHARE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF
THE ACT:
NONE
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
At a Special Meeting of Stockholders (the "Meeting") of
Diagnostic/Retrieval Systems, Inc., a Delaware corporation (the
"Company") held on March 26, 1996, the Stockholders approved an
Amended and Restated Certificate of Incorporation (the "Restated
Certificate"), the full text of which, as amended, is
incorporated herein by reference as Exhibit 2. The approval of
the Restated Certificate effected a reclassification of each
share of the Company's Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), and each share of the
Company's Class B Common Stock, par value $.01 per share (the
"Class B Common Stock"), into one share of common stock, par
value $.01 per share (the "Common Stock"), of the Company (the
"Reclassification") and adopted provisions (a) to provide that
action by stockholders may be taken only at a duly called annual
or special meeting, and not by written consent (the "Consent
Provision") and (b) to provide that the stockholders of the
Company would have the right to make, adopt, alter, amend, change
or repeal the By-Laws only upon the affirmative vote of not less
than 66 2/3% of the outstanding capital stock of the Company
entitled to vote thereon (the "By-Law Amendment Provision").
This registration statement relates to the registration with
the Securities and Exchange Commission of shares of the Common
Stock. The Company is authorized to issue 22,000,000 shares,
consisting of 2,000,000 shares of Preferred Stock, $10.00 par
value (the "Preferred Stock") and 20,000,000 shares of Common
Stock. The following is a summary description of the rights,
preferences and privileges of the Common Stock and is qualified
in its entirety by reference to the Restated Certificate and the
Amended and Restated By-Laws (the "By-Laws") attached hereto as
Exhibit 3.
No holder of shares of stock of the Company of any class now
or hereafter authorized shall be entitled as of right to purchase
or subscribe for any part of any unissued shares of stock of the
Company of any class now or hereafter authorized or any
additional shares of stock to be issued by reason of any increase
of the authorized capital stock of the Company of any class, or
any bonds, certificates of indebtedness, debentures or other
securities convertible into stock of the Company of any class now
or hereafter authorized, but any such unissued stock or such
additional authorized issue of new stock, or such securities
convertible into stock, may be issued and disposed of, pursuant
to resolutions of the Board of Directors, to such persons, firms,
corporations or associations, and upon such terms, as may be
deemed advisable by the Board of Directors in the exercise of its
discretion.
COMMON STOCK
The holders of the Common Stock are entitled to receive
dividends when, as and if declared by the Company's Board of
Directors and share ratably in the assets of the Company
available for distribution to stockholders in the event of the
Company's liquidation, dissolution or winding up.
The shares of Common Stock are fully paid and non-
assessable. Holders of Common Stock will have no preemptive
rights to purchase or subscribe for securities of the Company and
the Common Stock is not subject to redemption by the Company or
convertible. All holders of the Common Stock will have the same
preferences, rights, powers and qualifications, including one
vote for each share of Common Stock held by a stockholder. There
is no cumulative voting.
RESTATED CERTIFICATE AND BY-LAWS AND CERTAIN ANTI-TAKEOVER
EFFECTS
The Company's Restated Certificate and By-Laws currently
contain certain provisions which may have the effect of delaying,
deferring or making move expensive or difficult a change in
control. Such provisions include (a) the staggered Board, (b)
the existence of authorized but unissued Preferred Stock, (c) the
supermajority vote requirement with respect to the amendment of
the By-Laws, (d) the requirement that stockholder action may be
taken only at a duly called annual or special meeting, (e) that
special meetings may be called only by the Board and (f) the
advance notice provisions in the By-Laws.
Staggered Board. The Board is divided into classes with
each class of directors consisting of as nearly an equal number
of directors as possible. At each annual meeting beginning with
the 1996 Annual Meeting, one class of directors will be elected
to succeed those whose terms expire by all holders of the Common
Stock, with each newly elected director to serve a three-year
term.
The staggered Board may discourage minority stockholders
from attempting to elect the Company's entire board of directors
through a proxy contest or otherwise, even though they do not own
a majority of the Company's outstanding shares entitled to vote.
The staggered Board could delay a purchaser's ability to obtain
control of the Board in a relatively short period of time because
it will generally take a purchaser two annual meetings of
stockholders to elect a majority of the Board. A purchaser's
ability to obtain control of the Board will be further deterred
because, pursuant to Section 141(k) of the DGCL, the insurgent
would need to show cause in order to remove any director and
because only the Board of Directors is authorized to fill
vacancies or newly created directorships. Also, since neither
the DGCL nor the Restated Certificate or the By-Laws require
cumulative voting, a purchaser of a block of stock of the Company
constituting less than a majority of the outstanding shares has
no assurance of representation on the Board.
Preferred Stock. The Restated Certificate authorizes
2,000,000 shares of Preferred Stock of which no shares are
outstanding. Subject to applicable law, the Board may issue, in
its sole discretion, shares of Preferred Stock without further
stockholder action. The Preferred Stock may be issued in one or
more series and may have such powers, including voting powers,
and such designations, preferences and relative rights,
qualifications and limitations as the Board may fix by resolution
at the time of issuance. It may be possible for the Board to
use its authority to issue Preferred Stock in a way which could
deter or impede the completion of a tender offer or other
attempts to gain control of the Company of which the Board does
not approve.
The By-Law Amendment Provision. The By-Law Amendment
Provision is intended to discourage and, in certain instances, to
prevent stockholders controlling less than 66 % of the total
voting power of all outstanding voting securities of the Company
from making changes in the By-Laws which may (i) interfere with
or frustrate the power of the then incumbent Board to manage the
business and affairs of the Company, or (ii) increase the number
of directors or reduce the authority of the Board thereby
undercutting the effect of the provisions for a classified Board
of Directors and the other provisions described herein. However,
the By-Law Amendment Provision would enable the holders of more
than 33 % of the total voting power of all outstanding voting
securities of the Company to prevent an amendment to the By-Laws
even if such change were desired by the holders of a majority of
the outstanding voting securities of the Company.
The Consent Provision. The Consent Provision limits the
ability of any stockholder to take action immediately and without
prior notice to the Board. The Consent Provision allows
stockholders to act only at an annual or special meeting. By
prohibiting stockholders from acting without a meeting, the
Consent Provision ensures that all stockholders will have the
opportunity to consider any matter that could affect their
rights. The Consent Provision is intended to provide the Board
and the non-consenting stockholders with an opportunity to review
any proposed action and, if necessary, to take any necessary
action to protect the interest of minority stockholders and the
Company before the proposed action is taken. As a result, the
Board may take actions that certain stockholders believe are not
in their best interests. Additionally, in conjunction with the
Special Meeting Provision, a majority of the incumbent Board
could delay until the annual meeting any action that requires
stockholder approval, even if the proponents of the action have
sufficient stockholder votes to obtain approval of the action at
a stockholder meeting.
The Board, however, believes that action by written consent
of the stockholders is inappropriate for a public company and
that it is in the best interest of the stockholders and the
Company to require full consideration of a matter at a meeting of
stockholders before acting on it.
Stockholder Meeting Provision. Under the DGCL, special
meetings of stockholders of a corporation may be called by a
corporation's board of directors or by such persons as may be
authorized by a corporation's certificate of incorporation or by-
laws. The By-Laws currently provide that a special meeting of
stockholders may be called only by the Board (the "Stockholder
Meeting Provision"). The Stockholder Meeting Provision is
intended to make it more difficult for stockholders to take
actions which require a meeting of stockholders unless the Board
or a majority of the Board calls such a meeting. The Board
believes that it is in the best position to determine those
issues which are properly the subject of a special meeting of
stockholders. In making such a determination, the Board must
consider that conducting stockholder meetings is extremely costly
and time-consuming and distracts management from the day-to-day
operation of the business. The Board believes that it is in the
best position to consider these factors and make the appropriate
determination. Although the Stockholder Meeting Provision has
the effect of precluding the call of a special meeting for
stockholder consideration of a proposal to which the Board is
opposed, the Board believes that stockholders are provided a full
opportunity to make proper proposals at duly convened stockholder
meetings and to request that any such proposal be presented for
consideration to other stockholders in the Company's annual proxy
statement.
Advance Notice Provisions. The By-Laws provide that
stockholders be required to give advance notice to the Company of
(i) any stockholder-proposed director nomination or (ii) any
business to be introduced by a stockholder at any annual meeting
(the "Advance Notice Provisions"). The Advance Notice Provisions
provide that any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election
as director or directors at an annual meeting only if written
notice of such stockholder's intent has been given to the
Secretary of the Company not less than 60 days nor more than 90
days prior to the anniversary date of the immediately preceding
annual meeting. In the event the annual meeting is called for a
date that is not within 30 days before or after such anniversary
date, the stockholder's written notice of such intent must be
given within 10 days before or after such anniversary date. In
the case of a special meeting of stockholders called for the
purpose of electing directors, to be timely, a stockholder's
notice must be delivered to or mailed and received not later than
the close of business on the tenth day following the day on which
notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made by the
Company, whichever first occurs. The Chairman of the meeting may
determine that the nomination of any person was not made in
compliance with the Advance Notice Provisions.
The Advance Notice Provisions further provide that, for
business to be properly introduced by a stockholder of the
Company where such business is not specified in the notice of
meeting or brought by or at the direction of the Board, the
stockholder must have given not less than 60 nor more than 90
days prior to the anniversary date of the immediately preceding
annual meeting of the stockholders. In the event the annual
meeting is called for a date that is not within 30 days before or
after such anniversary date, notice by the stockholder must be
given 10 days before or after such anniversary date. The
Chairman of the Board may, if the facts warrant, determine and
declare that any business was not properly brought before such
meeting and such business will not be transacted.
The Advance Notice Provisions are designed to provide the
Company with advance warning of a threatened proxy contest and
time to evaluate and react to any such contest. Although the
Advance Notice Provisions do not give the Board or the Chairman
of the meeting any powers to approve or disapprove such
stockholder nominees or other matters, the Advance Notice
Provisions may have the effect of (i) precluding the
consideration of nominees and other matters at a particular
meeting or (ii) discouraging or deterring a third party from
conducting a solicitation of proxies to elect its own slate of
directors or otherwise attempting to obtain control of the
Company, if the proper procedures are not followed, even if such
matters may be deemed by some stockholders to be beneficial to
the Company and its stockholders.
ITEM 2. EXHIBITS
Exhibit 1. Form of stock certificate of common
stock, par value $.01 per share.
*Exhibit 2. Form of Amended and Restated
Certificate of Incorporation
of the Company, as filed March
__, 1996 (incorporated herein by
reference to Exhibit 2 to the
Registration Statement on Form
8-A filed with Securities and
Exchange Commission on March 21,
1996).
*Exhibit 3. Form of Amended and Restated
By-Laws of the Company, as
amended as of March __, 1996
(incorporated herein by refer
ence to Exhibit 3 to the
Registration Statement on Form
8-A filed with Securities and
Exchange Commission on March
21, 1996).
___________________
* Previously filed.
SIGNATURES
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
By:/s/ NANCY R. PITEK
Nancy R. Pitek
Comptroller,
Treasurer and Secretary
Dated: March 27, 1996
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
1. Form of stock certificate of common stock, par
value $.01 per share.
*2. Form of Amended and Restated
Certificate of Incorporation of
the Company, as filed March __,
1996 (incorporated herein by
reference to Exhibit 2 to the
Registration Statement on Form 8-A
filed with Securities and Exchange
Commission on March 21, 1996).
*3. Form of Amended and Restated By-Laws of the
Company, as amended as of March __, 1996
(incorporated herein by reference to Exhibit
3 to the Registration Statement on Form 8-A
filed with Securities and Exchange Commission
on March 21, 1996).
___________________
* Previously filed.
[FACE OF CERTIFICATE]
No. [ ] SHARES
DRS
Diagnostic/Retrieval Systems, Inc.
Incorporated Under the Laws
of the State of Delaware
COMMON STOCK
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 252456 40 5
This Certifies that ______________________
is the owner of _______________________
Fully Paid and Non-Assessable Shares of the COMMON Stock of
the par value of one cent ($.01) each of
Diagnostic/Retrieval Systems, Inc.
transferable on the books of the Corporation by the holder
hereof, in person or by duly authorized attorney, upon
surrender of this Certificate properly endorsed. This
Certificate is not valid unless countersigned by the Transfer
Agent.
IN WITNESS WHEREOF the Corporation has caused this
Certificate to be signed by the facsimile signatures of its
duly authorized officers and a facsimile of its corporate seal
to be hereunto affixed.
Dated:
COUNTERSIGNED AND REGISTERED:
THE TRUST COMPANY OF NEW JERSEY,
TRANSFER AGENT AND REGISTRAR
BY________________________________
AUTHORIZED OFFICER
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
CONTROLLER, TREASURER AND SECRETARY
[corporate seal]
[REVERSE SIDE OF CERTIFICATE]
Diagnostic/Retrieval Systems, Inc.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF
EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
SUCH REQUEST MAY BE MADE TO THE CORPORATION OR THE TRANSFER
AGENT.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common UNIF GIF MIN ACT....Custodian......
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to
JT TEN - as joint tenants with Minors Act.........
right of survivorship (State)
and not as tenants
in common
Additional abbreviations may also be used though not in the above
list.
For Value Received, ____________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE _____________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
___________________________________________________________________
____________________Shares of the capital stock represented by the
within Certificate, and do hereby irrevocably constitute and
appoint_________________Attorney to transfer the said stock on the
books of the within named Corporation with full power of
substitution in the premises.
Dated_____________________
___________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
Signature(s) Guaranteed:
______________________________________
THE SIGNATURES SHOULD 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 S.E.C. RULE 17Ad-15.
