<PAGE> 1
As filed with the Securities and Exchange Commission on August 16, 1995
Registration No.33-
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
______________________
AMERICAN SCIENCE AND ENGINEERING, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
MASSACHUSETTS 04-2440991
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
</TABLE>
829 Middlesex Turnpike
Billerica, Massachusetts 01821
(508) 262-8700
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
______________________
James C. Nemiah, Esq.
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, Massachusetts 01821
(508) 262-8700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________
Copy to:
Steven R. London, Esquire
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, Massachusetts 02111
(617) 330-9000
Approximate date of commencement of proposed sale to the public: At any time
after the effective date of this Registration Statement.
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, check the following box./X/
<TABLE>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED PER SHARE(1) PRICE(1) FEE
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $. 66 2/3 par value per share.... 229,167 shares $7.13 $1,633,961 $563.43
=====================================================================================================================
<FN>
(1) Estimated solely for the purpose of determining the registration fee, pursuant to Rule 457(c), and based upon the
average of the reported high and low prices of the Registrant's common Stock on the American Stock Exchange on August 14, 1995.
</TABLE>
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.
___ total pages in Registration Statement. Exhibit Index located at page ___.
<PAGE> 2
PROSPECTUS
AMERICAN SCIENCE AND ENGINEERING, INC.
_________________________
229,167 Shares of Common Stock
(Par Value $0.66 2/3 Per Share)
All of the shares of Common Stock offered hereby are being sold by certain
stockholders of the Company. See "SELLING STOCKHOLDERS". The Company will not
receive any proceeds from the sale of the shares offered hereby.
The Common Stock of the Company is traded on the American Stock Exchange
under the symbol ASE. On August 14, 1995, the average of the reported high and
low prices of the Common Stock on the American Stock Exchange was $7.13 per
share.
The Common Stock to which this Prospectus relates may be offered through any
of several methods, including ordinary brokerage transactions or block
transactions on the American Stock Exchange at market prices, or in privately
negotiated transactions at prices agreed upon by the parties. See "PLAN OF
DISTRIBUTION".
AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY INVOLVES A HIGH
DEGREE OF RISK
SEE "RISK FACTORS".
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
===========================================================================
Price to Public Underwriting Discounts Proceeds to Selling
and Commissions Stockholder (1)
---------------------------------------------------------------------------
<S> <C> <C>
Per Share ... $7.13 $0 $7.13
Total ... $1,633,961 $0 $1,633,961
===========================================================================
<FN>
(1) The estimated expenses of issuance and distribution of the Common Stock
offered hereby are $14,363, all of which will be borne by the Company.
(2) The price to public has been estimated based upon the average of the
reported high and low prices of the Common Stock on the American Stock Exchange
on August 14, 1995.
</TABLE>
The date of this Prospectus is August __, 1995.
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C. a Registration Statement on Form S-3 (together
with all amendments and exhibits, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Common Stock offered hereby. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement and the exhibits thereto to which reference is hereby
made. The statements in this Prospectus as to the contents of such Registration
Statement are qualified in their entirety by such reference. The Registration
Statement, together with its exhibits, may be inspected at the Public Reference
Section of the Commission in Washington, D.C. at the address noted below, and
copies of all or any part thereof may be obtained from the Commission upon
payment of the prescribed fees.
The Company is subject to the informational 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
Commission. The Registration Statement and all such reports, proxy statements
and other information can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549, and at the Commission's Regional
Offices at 7 World Trade Center, Suite 1300, 13th Floor, New York, New York
10048-1102, and at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois, 60661-2511. Copies of such material can be obtained from the
Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Company's Common Stock
is listed on the American Stock Exchange, and such reports, proxy statements and
certain other information concerning the Company may be inspected at the offices
of the American Stock Exchange, Inc., 86 Trinity Place, New York, New York
10006.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any document
incorporated by reference in this Prospectus, other than exhibits to any such
document unless such exhibits are specifically incorporated by reference.
Requests for such documents should be directed to American Science and
Engineering, Inc., 829 Middlesex Turnpike, Billerica, Massachusetts 01821, Attn:
Lee C. Steele, Treasurer (telephone number (508) 262-8700).
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offering described herein, and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or the Selling Stockholders. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than those specifically offered hereby or of any securities offered hereby
in any jurisdiction to any person to whom it is unlawful to make an offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create an implication
that the information herein is correct as of any time subsequent to its date.
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<PAGE> 4
PROSPECTUS SUMMARY
This summary is qualified in its entirety by the detailed information appearing
elsewhere or incorporated by reference in this Prospectus.
THE COMPANY
American Science and Engineering, Inc., a Massachusetts corporation formed
in 1958 (together with its subsidiary, the "Company"), develops, produces and
markets, and provides research and engineering service with respect to, x-ray
inspection systems. The Company also manufactures and sells utility load
control systems. The Company applies its technology in x-ray detection and
imaging to governmental and commercial applications, particularly detection of
illegal drugs, aviation security, and other security inspection applications.
The Company has traditionally offered its systems at a price higher than that
of competing systems that the Company believes are less capable than its
systems. During the fiscal year ended March 31, 1995, the Company brought to
market new competitively-priced products and focused on selling products that
had features that created product differentiation and potential competitive
advantage.
The Company also manufactures sophisticated electronic control systems,
primarily a line of electric utility load management equipment sold under the
name ASEPr. The ASEP System, which operates over existing electric utility
distribution networks to communicate with and/or control any connected load, is
used by utility companies for control of deferrable loads to limit peak demand,
for automatic remote meter reading and for automation of the distribution system
to optimize the flow of energy. The Company has been concentrating its efforts
on servicing and supporting existing customers. Most components are built by
subcontractors for existing orders.
The Company's principal offices are located at 829 Middlesex Turnpike,
Billerica, Massachusetts 01821, and its telephone number is (508) 262-8700.
An investment in the shares of Common Stock offered hereby involves a high
degree of risk. See "RISK FACTORS".
<TABLE>
THE OFFERING
<S> <C>
Shares offered by
Selling Stockholders................... 229,167 shares
Shares outstanding as of
August 10, 1995........................ 4,461,238
AMEX Symbol.............................. ASE
Proceeds................................. The Company will not
receive any proceeds of the
offering.
</TABLE>
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<PAGE> 5
RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a high
degree of risk. Prospective investors in the Common Stock should consider
carefully the following risk factors, as well as other information set forth or
incorporated in this Prospectus, in connection with an investment in the Common
Stock offered hereby.
LACK OF LIQUIDITY
During the twelve months ended March 31, 1995, the amount of the Company's
cash and cash equivalents decreased $1,631,000 from approximately $2,500,000 at
April 1, 1994 to approximately $869,000 at March 31, 1995. The Company's
cumulative losses have substantially reduced cash reserves and liquidity. See
"Losses". Management of the Company has developed an interim plan to build
revenues, reduce current operating costs, and monitor and control all
discretionary spending. While management believes significant progress has been
made to position the Company to meet its long-term goals, revenues have been
volatile and have not been sufficient to meet existing cash flow needs of the
business. Management expects to undertake several actions to provide additional
liquidity in fiscal 1996, including raising additional capital. Although
management expects that the Company will have sufficient liquidity to sustain
its operations in the short term, revenues could continue to be volatile and new
cash pressures may arise. There can be no assurance that the Company will be
able to generate adequate cash flow from operations. The Company will require
additional capital in order to fund its continuing operations. There can be
no assurance that the Company will be able to obtain such capital upon favorable
terms, if at all. In order to obtain such capital, the Company may issue
securities that will dilute the interests of the stockholders of the Company.
See "RISK FACTORS - Dilution". Without such additional capital, continued
operating losses will have a material adverse effect on the Company's ability to
continue current operations.
LOSSES
The Company has had net losses in five of its last six fiscal years. The
Company sustained net losses of approximately $967,000 and $3,335,000 for the
fiscal years ended March 31, 1995 and April 1, 1994, respectively. There can be
no assurance that the Company will not sustain net losses in the future. If the
Company continues to sustain losses, it may not be able to fund its continuing
operations. See "RISK FACTORS-Lack of Liquidity".
CUSTOMER CONCENTRATION
The Company's x-ray products business, including manufacturing, contract
research, and field service, which accounted for approximately 97% of the
Company's revenues for the fiscal year ended March 31, 1995, is heavily
dependent upon sales to agencies of the United States government. During the
fiscal year ended March 31, 1995, approximately 55% of x-ray products sales were
under direct contracts and subcontracts with federal, and to a much lesser
extent state, governmental agencies. Two of the Company's customers, which are
agencies of the United States government, accounted for approximately 25% of the
Company's net revenues for the
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<PAGE> 6
fiscal year ended March 31, 1995. Termination of either of these two
relationships would have a material adverse effect on the Company. Generally,
the government may terminate these contracts for convenience, upon certain terms
and conditions, including payment to the Company of costs incurred and an
appropriate fee or profit on work performed. Termination of government contracts
with a significant dollar value would have a material adverse effect on the
Company. Significant reductions or delays in procurements of the Company's
systems by the United States government would also have a material adverse
effect on the Company.
DEPENDENCE ON FOREIGN SALES
Foreign sales, including sales to foreign governments, accounted for
approximately 29%, 28%, 44% and 37% of the Company's net revenues for the fiscal
years ended March 31, 1995, April 1, 1994, March 31, 1993 and March 31, 1992,
respectively. The Company anticipates that foreign sales for the fiscal year
ending March 31, 1996 will represent a higher percentage of net revenues than
they have over the last two years, and that foreign sales will continue to
account for a significant percentage of the Company's net revenues for the
foreseeable future. As a result, a significant portion of the Company's
revenues are subject to risks associated with foreign sales. These risks
include United States and foreign regulatory requirements, currency
fluctuations, policy changes, political and economic instability and
difficulties in managing foreign distributors and representatives. Although the
Company's foreign sales are denominated in United States dollars, changes in the
value of the United States dollar in relation to foreign currencies may
adversely affect the Company's sales to foreign customers.
HIGHLY COMPETITIVE INDUSTRY; COMPETITION FROM NEW TECHNOLOGIES
The markets for the Company's products are highly competitive and subject
to rapid technological change. Many of the Company's current and potential
competitors have substantially greater resources than the Company. The
Company's success will depend upon its ability to enhance its existing products
and to develop new products to meet customer requirements. The Company's
current lack of liquidity may adversely affect the Company's research and
development efforts to enhance its existing products and develop new products.
See "RISK FACTORS - Lack of Liquidity". Competitors may develop superior
products or products of similar quality at the same or lower prices. Other
technological innovations may impair the Company's ability to market its
products. There can be no assurance that the Company will be able to compete
successfully.
IMMEDIATE DILUTION
Purchasers of the shares of Common Stock offered hereby will experience
immediate dilution, in the amount of $5.67, in the net book value per share of
Common Stock from the assumed selling price of the Common Stock ($7.13, based on
the average of the reported high and low sale prices on the American Stock
Exchange on August 14, 1995). Purchasers of Common Stock will experience
additional dilution upon the exercise of outstanding stock options. See "RISK
FACTORS-Shares Eligible for Future Sale." Furthermore, purchasers of
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<PAGE> 7
the Common Stock may experience additional dilution if the Company raises
additional capital through the issuance of Common Stock or other equity
securities of the Company.
SHARES ELIGIBLE FOR FUTURE SALE
As of July 15, 1995, the Company had 4,461,238 shares of Common Stock
outstanding, of which 4,091,799 shares are freely tradeable without restriction
under the Securities Act by persons other than "affiliates" of the Company. The
remaining 369,439 shares of Common Stock held by current stockholders of the
Company are eligible for sale, subject to the restrictions of Rule 144 under the
Securities Act. The Company has reserved for issuance an aggregate of 675,000
shares of Common Stock pursuant to the Company's existing stock option plans.
As of July 15, 1995, there were outstanding options to purchase an aggregate of
506,194 shares of Common Stock. The exercise prices per share of these options
range from $2.88 to $6.56, with a weighted average exercise price of $4.73. Of
the 506,194 shares issuable upon exercise of options, 346,194 shares will be
freely tradeable under the Securities Act, and the remaining 160,000 shares
issuable upon exercise of options will be subject to the restrictions of Rule
144. The average daily trading volume of the Company's Common Stock for the
period from January 1, 1994 through December 31, 1994 was 5,060 shares. The
average of the reported high and low prices of the Common Stock on the American
Stock Exchange on August 14, 1995 was $7.13. Sales of substantial amounts of
Common Stock in the public market following the offering contemplated hereby
could adversely affect the market price of the Common Stock.
USE OF PROCEEDS
The proceeds from the sale of the shares of Common Stock offered hereby
will be the property of the Selling Stockholders and will be utilized by them as
they see fit. No part of the proceeds will be received by the Company.
SELLING STOCKHOLDERS
Samuel Investors International, L.D.C., a corporation organized under the
laws of the Cayman Islands (sometimes, hereinafter, the "Investor"), and Grayson
& Associates are the selling stockholders (collectively, the "Selling
Stockholders") whose shares of Common Stock are being offered hereby.
The Investor acquired the 200,000 shares of Common Stock registered for
resale by it hereunder, from the Company, for aggregate consideration of
$937,500 ($4.69 per share), pursuant to a subscription agreement dated July 8,
1995 (the "Subscription Agreement"), in a transaction exempt from the
registration requirements of the Securities Act, pursuant to Regulation S
promulgated thereunder (the "Regulation S Offering"). Up to an additional 8,334
shares of Common Stock may be issued to the Investor, as a result of an
adjustment of the $4.69 per share purchase price, as provided in the
Subscription Agreement. See "MATERIAL CHANGES - Regulation S Offering" for a
description of the Regulation S Offering.
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<PAGE> 8
The 29,167 shares registered hereunder for resale by Grayson & Associates
are issuable pursuant to a Common Stock Purchase Warrant ("Warrant") the Company
issued to Grayson & Associates as partial compensation for services rendered to
the Company in connection with the Regulation S Offering. The Company is
obligated under the Warrant to register the underlying shares. As additional
compensation for services rendered, the Company paid Grayson & Associates a cash
fee in the amount of $81,250. For a description of the terms of the Company's
arrangement with Grayson & Associates, see "MATERIAL CHANGES - Regulation S
Offering".
<TABLE>
The following table sets forth the name of each of the Selling Stockholders
and (i) the number of shares of Common Stock that each Selling Stockholder owned
of record as of July 15, 1995, (ii) the maximum number of shares of Common Stock
which may be offered for the account of each of the Selling Stockholders under
this Prospectus and (iii) the number of shares of Common Stock to be owned by
each of the Selling Stockholders after completion of the offering, assuming the
sale of all the Common Stock being offered hereunder.
<CAPTION>
================================================================================
Shares Maximum Number of Shares
Owned Number of Shares of Common Stock
Selling Stockholder's as of Which May Be Owned After
Name & Relationship July 15, 1995 Offered Hereunder the Offering (1)
================================================================================
<S> <C> <C> <C>
Samuel Investors
International, L.D.C. 200,000 200,000 -0-
Grayson & Associates 29,167(2) 29,167(2) -0-
================================================================================
<FN>
(1) Assumes the sale of all shares of Common Stock registered hereunder,
although, to the Company's knowledge, neither of the Selling Stockholders
has made any arrangements to sell any shares of Common Stock at this time.
(2) Represents the number of shares of Common Stock issuable to Grayson &
Associates pursuant to an immediately exercisable Common Stock Purchase
Warrant.
</TABLE>
The Company will pay the expenses of registering the shares of Common Stock
being sold hereunder, which are estimated to be $14,363.
PLAN OF DISTRIBUTION
The Selling Stockholders may from time to time sell any or all of the shares
of Common Stock offered hereby. The price and manner of sale are in the sole
discretion of the Selling Stockholders. The shares of Common Stock offered
hereby may be offered through any of several methods, such as ordinary brokerage
transactions or block transactions on the American Stock Exchange at market
prices, or in privately negotiated transactions at prices agreed upon by the
parties. Neither the Company nor, to the Company's knowledge, the Selling
Stockholders
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<PAGE> 9
has any agreement, arrangement, or understanding with any broker or dealer
entered into prior to the effective date of the Registration Statement of
which this Prospectus is a part with respect to the sale of the Common Stock
offered hereby.
MATERIAL CHANGES
REGULATION S OFFERING
On July 18, 1995, the Company sold 200,000 shares of Common Stock in the
Regulation S Offering (the "Regulation S Shares"), for an aggregate
consideration of $937,500. The per share purchase price ("Purchase Price") of
the Regulation S Shares was $4.69, i.e. seventy-five (75%) percent of the
closing bid price of the Common Stock on the American Stock Exchange on July 7,
1995. Up to an additional 8,334 shares of Common Stock may be issued to the
Investor in connection with any adjustment of the Purchase Price, as provided in
the Subscription Agreement. In the event that the Purchase Price exceeds
seventy-five (75%) percent of the average of the closing bid prices of the
Company's Common Stock, as reported on the American Stock Exchange for the
period commencing with the trading day which is the forty-fifth day following
the closing of the sale of the Regulation S Shares and ending on the sixtieth
day following such closing, the Purchase Price shall be adjusted to be equal to
seventy-five (75%) percent of such average closing bid price, but not less than
$4.50 (as so adjusted, the "Adjusted Purchase Price"). In such event, the
Company is obligated to issue to the Investor, for no additional consideration,
that number of shares of Common Stock ("Adjustment Shares") equal to the excess
of (1) the number of shares of Common Stock the aggregate Purchase Price
($937,500) would have purchased at the Adjusted Purchase Price over (2) 200,000.
The Company is registering, for resale by the Investor under the Securities Act,
the Regulation S Shares on the Registration Statement to which this Prospectus
relates.
The Company intends to use the net proceeds of the Regulation S Offering for
working capital growth, as collateral for standby letters of credit supporting
international sales transactions, to fund the current portion of corporate
indebtedness coming due in the normal course of business, and for general
corporate purposes.
In connection with the Regulation S Offering, the Company entered into
Engagement Letters dated July 11, 1995, in which Grayson & Associates agreed to
assist the Company with the sale of the Regulation S Shares. In consideration
of the services rendered by Grayson & Associates pursuant to the Engagement
Letter, the Company made a cash payment to Grayson & Associates in the amount of
$81,250, which is equal to six and one-half (6.5%) percent of the product of (1)
the number of Regulation S Shares and (2) $6.25, i.e. the closing bid price of
the Common Stock on the American Stock Exchange on July 7, 1995 (the "Closing
Bid Price"). As additional compensation, the Company issued to Grayson &
Associates at the closing of the sale of the Regulation S Shares a Common Stock
Purchase Warrant ("Warrant") exercisable for 29,167 shares of Common Stock
("Warrant Shares"). The number of Warrant Shares is equal to the quotient of
(i) three and one-half (3.5%) percent of the product of (x) the Closing Bid
Price and (y) the number of Regulation S Shares, divided by (ii) $1.50. The
Warrant is immediately exercisable, has a term of five years and is exercisable
at a per share exercise price equal to the
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<PAGE> 10
Closing Bid Price. The Company has agreed to use its best efforts to register
the Warrant Shares on a Registration Statement on Form S-3, within one year
of the date of grant, or, alternatively, subject to underwriter approval, to use
its best efforts to include the Warrant Shares in any other Registration
Statement filed with the Securities and Exchange Commission within such one year
period. The Company is registering, for resale by Grayson & Associates under
the Securities Act, the 29,167 shares of Common Stock underlying the Warrant on
the Registration Statement to which this Prospectus relates. The Company has
agreed to indemnify Grayson & Associates and its principals for liabilities and
expenses, including reasonable attorneys' fees, incurred in connection with
claims arising out of the Regulation S Offering, provided that such claims do
not arise from the indemnified party's gross negligence or violation of
applicable law.
The Regulation S Offering was approved by the Company's Board of Directors
on June 30, 1995. The average of the reported high and low prices of the Common
Stock on the American Stock Exchange on June 30, 1995 was $7.09.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of Chapter 156B of the Massachusetts General Laws permits the
indemnification of directors and officers to the extent authorized by the
Articles of Organization or By-Laws of a corporation or by a vote of the
stockholders. Except as otherwise provided by the Articles of Organization or
By-Laws, indemnification of persons who are not directors of a corporation may
be provided to the extent authorized by the directors. No indemnification may
be provided for any person with respect to any matter as to which he shall have
been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
Article VI of the Company's By-Laws provides in substance that the Company
shall indemnify any person who was or is a party or was threatened to be made a
party to any threatened, pending or completed action or suit, by reason of the
fact that he is or was serving as a director or officer of the Company or is or
was serving at the request of the Company as a director, trustee or officer of
another corporation or entity, against expenses actually incurred by such person
in connection with any civil action, suit or proceeding to which such person may
be made a party, or by which such person shall be threatened, by reason of any
alleged act or failure to act in his present or former capacity as a director or
officer of the Company or as a director, trustee or officer of such affiliated
corporation or entity, provided, however, that no person has the right to
indemnification in relation to any matter as to which such person shall have
been finally adjudged in any legal proceeding not to have acted in good faith
and the reasonable belief that his action was in the best interest of the
Company. In the event of any settlement of any action, suit or proceeding, the
right to indemnification is limited to matters as to which the Company is
advised by counsel that such settlement is reasonable and that such person has
acted in good faith and the reasonable belief that his action was in the best
interest of the Company. The right of indemnification contained in the
Company's By-Laws is non-exclusive and is in addition to any other rights such
person may have.
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<PAGE> 11
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or controlling persons of the Company
pursuant to the Company's By-Laws, or otherwise, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended March 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1995; and
(c) The description of Common Stock contained in the Company's
Registration Statement on Form 8-A (File No. 1-06549) filed
under the Exchange Act.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of this offering, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
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<PAGE> 12
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
Item 14. Other Expenses Of Issuance And Distribution
The following sets forth the expenses expected to be incurred by the Company
in connection with the distribution of Common Stock offered hereby.
<S> <C>
Securities and Exchange Commission Fee...... $ 563
Legal Services.............................. $10,000*
Accounting Services......................... $ 2,500*
Reproduction Expenses....................... $ 300*
Miscellaneous............................... $ 1,000*
Total.................................. $14,363
<FN>
* Estimated.
</TABLE>
The Selling Stockholders are not paying any of the foregoing expenses.
Item 15. Indemnification of Directors and Officers
Reference is made to the information contained in the Prospectus under the
heading "INDEMNIFICATION OF DIRECTORS AND OFFICERS", which information is
incorporated herein by reference.
II-1
<PAGE> 13
<TABLE>
Item 16. Exhibits
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C>
4.1 Restated Articles of Organization of the Company (filed as
Exhibit 3A to the Company's Registration Statement
on Form S-1 (Registration No. 2-27345) (the "Form S-1"), and
incorporated herein by reference).
4.2 Articles of Amendment to the Restated Articles of Organization
of the Company (filed as Exhibit 2(a)(ii)(B) to the Company's Registration Statement on Form S-7
(Registration No. 2-56452) (the "Form S-7"), and incorporated
herein by reference).
4.3 Articles of Amendment to the Restated Articles of Organization
of the Company (filed as Exhibit 12 to the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1976,
and incorporated herein by reference).
4.4 By-Laws of the Company, as amended (filed as Exhibit 2(a)(iii)
to the Form S-7 and incorporated herein by reference).
4.5 Specimen Certificate of Common Stock (filed as Exhibit 2(a)(i)
to the Form S-7, and incorporated herein by reference).
4.6 Common Stock Purchase Warrant, dated July 18, 1995, issued in
the name of Grayson & Associates.
4.7 Subscription Agreement, dated July 8, 1995, between the Company
and Samuel International Investors, L.D.C.
4.8 Common Stock Purchase Warrant, in the form issued to certain of
the Company's lenders, with schedule of lenders, exercise prices
and share amounts attached.
5 Opinion of Brown, Rudnick, Freed & Gesmer
23.1 Consent of Brown, Rudnick, Freed & Gesmer (contained in its opinion filed as Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on signature page of Registration Statement).
</TABLE>
II-2
<PAGE> 14
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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;
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement 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.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the Registrant's By-Laws, 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
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 Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 15
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Billerica, Commonwealth of Massachusetts on August
16, 1995.
AMERICAN SCIENCE AND ENGINEERING, INC.
(Registrant)
By:/s/ Ralph S. Sheridan
----------------------------
Ralph S. Sheridan, President
<PAGE> 16
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ralph S. Sheridan, Lee C. Steele, and James C.
Nemiah, or any of them, his/her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him/her and in his/her name,
place and stead, in any and all capacities to sign any or all amendments,
including post-effective amendments, to the Form S-3 Registration Statement to
which this instrument is attached and to file such amendments, including
post-effective amendments, with all exhibits thereto and other documents in
connection therewith, with the Commission, granting unto each of said
attorneys-in-fact and agents, 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 each of said attorney-in-fact
and agent, or his substitute, may lawfully do or cause to be done by virtue
hereof.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Name Capacity Date
---- -------- ----
<S> <C> <C>
/s/ Ralph S. Sheridan President and Director August 16, 1995
------------------------ (Principal Executive
Ralph S. Sheridan Officer)
/s/ Lee C. Steele Vice President and
------------------------ Treasurer (Principal August 16, 1995
Lee C. Steele Financial Officer
and Principal Accounting
Officer)
/s/ Herman Feshbach Director August 16, 1995
------------------------
Herman Feshbach
/s/ Hamilton W. Helmer Director August 16, 1995
------------------------
Hamilton W. Helmer
/s/ Donald J. McCarren Director August 16, 1995
------------------------
Donald J. McCarren
/s/ Ernest J. Moniz Director August 16, 1995
------------------------
Ernest J. Moniz
/s/ Marie T. Spaulding Director August 16, 1995
------------------------
Marie T. Spaulding
</TABLE>
<PAGE> 17
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit Description of Exhibit Page
------- ---------------------- ----
<S> <C> <C>
4.1 Restated Articles of Organization of the
Company (filed as Exhibit 3A to the
Company's Registration Statement on Form S-1
(Registration No. 2-27345) (the "Form S-1"),
and incorporated herein by reference). *
4.2 Articles of Amendment to the Restated
Articles of Organization of the Company
(filed as Exhibit 2(a)(ii)(B) to the
Company's Registration Statement on Form S-7
(Registration No. 2-56452) (the "Form S-7"),
and incorporated herein by reference). *
4.3 Articles of Amendment to the Restated
Articles of Organization of the Company
(filed as Exhibit 12 to the Company's Annual
Report on Form 10-K for the fiscal year ended
March 31, 1976, and incorporated herein by
reference). *
4.4 By-Laws of the Company, as amended (filed as
Exhibit 2(a)(iii) to the Form S-7 and
incorporated herein by reference). *
4.5 Specimen Certificate of Common Stock (filed
as Exhibit 2(a)(i) to the Form S-7, and
incorporated herein by reference). *
4.6 Common Stock Purchase Warrant, dated July 18,
1995, issued in the name of Grayson &
Associates.
4.7 Subscription Agreement, dated July 8, 1995,
between the Company and Samuel International
Investors, L.D.C.
4.8 Common Stock Purchase Warrant, in the Form
issued to certain of the Company's lenders,
with schedule of lenders, exercise prices and
share amounts attached.
5 Opinion of Brown, Rudnick, Freed & Gesmer
23.1 Consent of Brown, Rudnick, Freed & Gesmer
(contained in its opinion filed as Exhibit 5)
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (appearing above the
signatures of officers and directors).
<FN>
--------------------------------
* Incorporated by reference and not filed herewith.
</TABLE>
<PAGE> 1
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE
EFFECTED WITHOUT (I) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, OR
(II) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO THE
COMPANY, THAT AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
<TABLE>
<S> <C> <C>
Warrant No. of
No. 1 STOCK PURCHASE WARRANT Shares 29,167
----- -------
</TABLE>
TO SUBSCRIBE FOR AND PURCHASE COMMON STOCK OF
AMERICAN SCIENCE AND ENGINEERING, INC.
THIS CERTIFIES that, for value received, Grayson & Associates (together with
any subsequent transferees of all or any portion of this Warrant, the "Holder"),
is entitled, upon the terms and subject to the conditions hereinafter set forth,
to subscribe for and purchase from American Science and Engineering, Inc., a
Massachusetts corporation (hereinafter called the "Company"), at the price of
$6.25 per share (subject to adjustment as provided in Section 6, the "Warrant
Purchase Price"), up to 29,167 fully paid and non-assessable shares of the
Company's common stock, $0.66-2/3 par value per share (the "Shares").
1. DEFINITIONS. As used herein the following terms shall have the
following meanings:
"ACT" means the Securities Act of 1933 as amended, or a similar Federal
statute and the rules and regulations of the Commission issued under that Act,
as they each may, from time to time, be in effect.
"COMMISSION" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the securities laws of the United
States.
"REGISTRATION STATEMENT" means a registration statement (other than a
registration statement on Form S-8 solely with respect to employee benefit
plans, or on Form S-4 solely with respect to Rule 145 transactions, or any
successor form or forms used for the purpose specified by such forms) filed by
the Company with the Commission under the Act for a public offering and sale of
securities of the Company.
"SHARES" means the 29,167 shares of the Company's Common Stock issued or
issuable to the Holder upon the exercise of this Warrant and any other shares of
Common Stock of the Company issued with respect to such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, mergers,
consolidations, or similar events); provided, however, that any shares
previously sold by the Holder to the public pursuant to a registered
-1-
<PAGE> 2
public offering or Rule 144 under the Act shall cease to be within the
definition of "Shares" as used herein.
2. PURCHASE RIGHTS. The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, at any time and from time to time
commencing on the date hereof and ending at 5:00 p.m. on July 18, 2000.
3. EXERCISE OF WARRANT. Subject to Section 2 above, the purchase rights
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by certified check, of an amount
equal to the then applicable Warrant Purchase Price per share multiplied by the
number of Shares then being purchased. Upon exercise, the Holder shall be
entitled to receive, within a reasonable time, a certificate or certificates,
issued in the Holder's name or in such name or names as the Holder may direct,
for the number of Shares so purchased. The Shares so purchased shall be deemed
to be issued as of the close of business on the date on which this Warrant shall
have been exercised.
4. SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company covenants that
all shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance, be fully paid and non-
assessable, and free from all taxes, liens and charges with respect to the issue
thereof. During the period within which the purchase rights represented by the
Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. NO FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal
to such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
6. ADJUSTMENTS OF WARRANT PURCHASE PRICE AND NUMBER OF SHARES.
(a) If there shall be any change in the Common Stock of the Company through
merger, consolidation, reorganization, recapitalization, stock dividend, stock
split or other change in the corporate structure of the Company, appropriate
adjustments shall be made by the Board of Directors of the Company (or if the
Company is not the surviving corporation in any such transaction, the Board of
Directors of the surviving corporation) in the aggregate number and kind of
shares subject to this Warrant, and the number and kind of shares and the price
per share then applicable to shares covered by the unexercised portion of this
Warrant.
(b) Upon each adjustment under subparagraph (a) above, the Company shall give
prompt written notice thereof addressed to the Holder at the address of such
holder as shown on the
-2-
<PAGE> 3
records of the Company, which notice shall state the Warrant Purchase Price
resulting from such adjustment and the increase or decrease, if any, in
the number of shares of Common Stock issuable upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
7. REGISTRATION RIGHTS. The Company agrees as follows:
(a) Subject to subparagraph (b) of this Section 7, the Company shall use its
best efforts to register the Shares, within one year from the date hereof,
under the Act for resale by the Holder on a Registration Statement on Form S-3,
or any successor abbreviated registration form.
(b) If the Company shall determine to register any shares of its Common Stock
under the Act within one year from the date hereof and, in connection therewith,
the Company may lawfully register any of the Shares, as an alternative to the
right granted to the Holder in subparagraph (a) hereof, the Company, at its
option, will promptly give written notice thereof to the Holder. Upon the
written request of the Holder within 30 days after receipt of any such notice
from the Company, the Company will, except as herein provided, cause all of the
Shares which the Holder has requested to be registered to be included in the
related Registration Statement, all to the extent requisite to permit the sale
or other disposition of the Shares. However nothing herein shall prevent the
Company from at any time abandoning or delaying any registration.
(c) If any shares registered pursuant to this Section 7 shall be included in
an underwritten public offering in whole or in part, the Company may require
that the shares requested for inclusion hereunder be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. The number of Shares otherwise to be included in
the underwritten public offering shall be subject to the approval of the
managing underwriter, and in the event that less than all of the Shares are
approved by such underwriter for inclusion in the public offering, the number of
shares, if any, to be included will be reduced on a pro rata basis with the
shares proposed to be included in such offering by any other selling shareholder
(exclusive of the Company). Notwithstanding anything to the contrary herein,
the parties acknowledge that only those shares, if any, approved by the managing
underwriter shall be registered under this section 7 in an underwritten public
offering.
8. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Section 7 to effect the registration of the Shares under
the Act, the Company will:
(a) prepare and file with the Commission a Registration Statement with
respect to such Shares, and use its best efforts to cause such Registration
Statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such Shares;
(b) prepare and file with the Commission such amendments to such Registration
Statement and supplements to the prospectus contained therein as may be
necessary to keep such Registration Statement effective for such period as may
be reasonably necessary to effect the sale of such Shares;
-3-
<PAGE> 4
(c) furnish to the Holder participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the Registration Statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities covered by
such Registration Statement under the state securities or blue sky laws of such
jurisdictions as the Holder may reasonably request within 20 days following the
original filing of such Registration Statement, except that the Company shall
not for any purpose be required to execute a general consent to service of
process or to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
(e) notify the Holder promptly after it shall receive notice thereof, of the
time when such Registration Statement has become effective or a supplement to
any prospectus forming a part of such registration statement has been filed;
(f) notify the Holder promptly of any request by the Commission for the
amending or supplementing of such Registration Statement or prospectus or for
additional information;
(g) prepare and promptly file with the Commission and promptly notify the
Holder of the filing of such amendment or supplement to such Registration
Statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Act, any event shall have occurred as the
result of which any such prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and
(h) advise the Holder promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
9. EXPENSES. All expenses in connection with, or incidental to, the
preparation and filing of any Registration Statement pursuant to Section 7
hereof, any registration or qualification under securities or blue sky laws of
states in which the offering will be made, and any filing fee of the National
Association of Securities Dealers, Inc. ("NASD") relating to such offering,
shall be borne by the Company; provided, however, that the Holder shall bear its
pro rata share of the underwriting discount and commissions and transfer taxes,
all fees and disbursements of Holder's counsel, and, to the extent required by
applicable state securities laws and NASD rules and regulations, all legal fees
and disbursements and other expenses of complying with state securities or blue
sky laws of any jurisdictions in which the Shares to be offered are to be
registered or qualified.
-4-
<PAGE> 5
10. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE AND EXPIRATION OF WARRANT.
The rights and obligations of the Company and the Holder set forth in Sections
7, 8 and 9 shall survive the exercise and expiration of this Warrant.
11. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder
to any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the shares of Common Stock so
purchased. Notwithstanding the foregoing, upon request of the Holder, the
Company shall transmit to the Holder such information, documents and reports as
are generally distributed to holders of the capital stock of the Company. Upon
valid exercise of this Warrant and payment for the shares of Common Stock so
purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
12. SALE OR TRANSFER OF THE WARRANT; LEGEND. The Warrant and the shares
of Common Stock shall not be sold or transferred unless either (i) they first
shall have been registered under the Act, or (ii) the Company first shall have
been furnished with an opinion of legal counsel satisfactory to the Company
to the effect that such sale or transfer is exempt from the registration
requirements of the Act. Each certificate representing any Warrant shall bear
the legend set out on page 1 hereof. Each certificate representing any Common
Stock shall bear a legend substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
13. MODIFICATIONS AND WAIVERS. This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
14. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid,
to the Holder at its address shown on the books of the Company or to the
Company at the address indicated therefor on the signature page of this
Warrant.
15. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss,
-5-
<PAGE> 6
theft or destruction, of an indemnity or security reasonably satisfactory to
it, and upon reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of this Warrant or
stock certificate, if mutilated, the Company will make and deliver a new
Warrant or stock certificate, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant or stock certificate.
16. REPRESENTATIONS AND WARRANTIES OF HOLDER. By accepting this Warrant,
the Holder represents and warrants that it is acquiring this Warrant and the
Shares for its own account, for investment and not with a view to, or for sale
in connection with, any distribution thereof or any part thereof. Holder
represents and warrants that it (a) is experienced in the evaluation of
businesses similar to the Company, (b) is able to fend for itself in the
transactions contemplated by this Warrant, (c) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Company, (d) has the ability to
bear the economic risks of an investment in the Company, (e) has been furnished
with or has had access to all material information concerning the Company and
(f) has been afforded the opportunity to ask questions of and to receive
answers from the Company and to obtain any additional information necessary to
make an informed investment decision with respect to an investment in the
Company.
17. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, and all of the obligations of
the Company relating to the Shares issuable upon exercise of this Warrant shall
survive the exercise and termination of this Warrant and all of the covenants
and agreements of the Company shall inure to the benefit of the successors and
assigns of the Holder.
18. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts, other than the choice of law principles
thereof.
IN WITNESS WHEREOF, AMERICAN SCIENCE AND ENGINEERING, INC. has caused this
Warrant to be executed under seal by its officer thereunto duly authorized.
DATED: As of July 18, 1995
AMERICAN SCIENCE AND ENGINEERING, INC.
CORPORATE
SEAL
By: /s/ Ralph Sheridan
-------------------------
Ralph Sheridan, President
-6-
<PAGE> 7
EXHIBIT A
NOTICE OF EXERCISE
------------------
To: AMERICAN SCIENCE AND ENGINEERING, INC.
1. The undersigned hereby elects to purchase _______ shares of Common Stock
of AMERICAN SCIENCE AND ENGINEERING, INC. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
The undersigned further represents that such shares shall not be sold or
transferred unless either (1) they first shall have been registered under the
Securities Act of 1933, as amended, or (ii) the Company first shall have been
furnished with an opinion of legal counsel reasonably satisfactory to the
Company to the effect that such sale or transfer is exempt from the registration
requirement.
4. In the event of partial exercise, please re-issue an appropriate Warrant
exercisable into the remaining shares.
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
(Signature)
-------------------------------
(Date)
-7-
<PAGE> 1
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
------------------------------------------
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT dated as of July
8, 1995 (this "Agreement"), is executed in reliance upon the exemption from
registration afforded by Regulation S ("Regulation S") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933,
as amended. Capitalized terms used herein and not defined shall have the
meanings given to them in Regulation S.
This Agreement has been executed by the undersigned in connection with
the private placement of shares of Common Stock, par value $.66 2/3 per share,
of American Science and Engineering, Inc., a corporation organized under the
laws of the Commonwealth of Massachusetts, with its principal executive offices
located at 829 Middlesex Turnpike, Billerica, MA (hereinafter referred to as
"Seller"). The undersigned Samuel Investors International, L.D.C., located at
c/o Caledonian Bank & Trust, P.O. Box 1043, Caledonian House, Georgetown, Grand
Cayman, a corporation organized under the laws of the Cayman Islands, a
non-U.S.A. jurisdiction (herinafter referred to as "Buyer"), hereby represents
and warrants to, and agrees with Seller as follows:
THE COMMON STOCK OFFERED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER (THE "1933 ACT"), AND MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES (AS DEFINED IN
REGULATION S OF THE 1933 ACT) OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S OF THE 1933 ACT)
EXCEPT PURSUANT TO REGISTRATION UNDER OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
1. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE.
---------------------------------------
(a) SUBSCRIPTION. The undersigned Buyer hereby subscribes for and
agrees to purchase 200,000 shares of the Seller's Common Stock (the "Shares").
(b) PURCHASE PRICE. The per share purchase price for the Shares shall
be 75% of the closing bid price of the Shares, as reported on the American
Stock Exchange, for the trading day prior to the date the Buyer transmits to
Seller a signed copy of this Agreement (the "Purchase Price"). Based upon the
closing bid price on July 7, 1995 of $6.25, the aggregate Purchase Price shall
be $937,500.
(c) PAYMENT. The aggregate Purchase Price, for the Shares shall be
payable at closing by delivering immediately available funds in United States
Dollars by wire transfer to the designated depository for closing by delivery
of securities versus payment.
(d) CLOSING. Subject to the satisfaction of the conditions set forth in
Sections 7, 8 and 9 hereof, the closing of the transactions contemplated by
this Agreement shall
<PAGE> 2
take place on the date which is two business days after the Shares have been
approved for listing on the American Stock Exchange, or such earlier or later
date as is mutually agreed to in writing by Buyer and Seller.
2. SUBSCRIBER REPRESENTATIONS: ACCESS TO INFORMATION.
(a) OFFSHORE TRANSACTION. In connection with the sale of the Shares,
Buyer represents and warrants to, and covenants and agrees with, Seller
as follows:
(i) Buyer is not a natural person resident in the United
States, is not organized under the laws of any jurisdiction within the
United States, was not formed by a U.S. Person (as defined in Section
902(o) of Regulation S) for the purpose of investing in Regulation S
securities and is not otherwise a U.S. Person. Buyer is not, and on the
closing date will not be, an affiliate of Seller;
(ii) At the time the buy order was originated, Buyer was outside the
United States and is outside of the United States as of the date of
the execution and delivery of this Agreement;
(iii) No offer to purchase the Shares was made in the United States;
(iv) Buyer is purchasing the Shares for its own account or for the
account of persons (who are not U.S. Persons), each of whom has
entered into an offshore securities subscription agreement in a form
substantially similar to this Agreement, and Buyer and each such person
is qualified to purchase the Shares under the laws of its residence and
the offer and sale of the Shares will not violate the securities or
other laws of such jurisdiction. Buyer is purchasing the Shares
for investment purposes only and not with a present view to the
distribution or public offering thereof. Buyer's present intention is to
hold the Shares for investment for an indefinite period of time, and
Buyer's present investment objective in purchasing the Shares is to
achieve long-term capital growth from the possible appreciation in
value of the Shares, although Buyer understands that Seller makes no
assurances that there will be any appreciation in value. Buyer
presently intends not to resell or otherwise distribute the Shares in
the United States for an indefinite period of time;
(v) Notwithstanding Buyer's present investment intent as described
in subparagraph (iv), above, all offers and sales of the Shares by Buyer
shall be made in compliance with any applicable securities laws of any
applicable jurisdiction and in accordance with Rule 903 or 904, as
applicable, of Regulation S or pursuant to registration of securities
under the 1933 Act or pursuant to an exemption from registration. In any
case, the Shares have not been and will not be offered or sold by Buyer
to, or for the account or benefit of, a U.S. Person or within the United
States until after the end of the
<PAGE> 3
forty (40) day period commencing on the later of the date of closing of the
offering of the Shares or the date of the first offer of the Shares to persons
other than distributors (the "Restricted Period");
(vi) The transactions contemplated by this Agreement (a) have not been
and will not be pre-arranged by Buyer with a purchaser located in the United
States or a purchaser which is a U.S. Person, and (b) are not and will not be
part of a plan or scheme by Buyer to evade the registration provisions of the
1933 Act;
(vii) Buyer understands that the Shares are not registered under the
1933 Act and are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States securities laws,
and that Seller is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgements and understandings of Buyer set forth
herein in order to determine the applicability of such exemptions and the
suitability of Buyer to acquire the Shares;
(viii) Buyer shall take all reasonable steps to ensure its compliance
with Regulation S and, notwithstanding Buyer's present investment intent as
described in subparagraph (iv) above, shall promptly send to each purchaser who
acts as a distributor, dealer or a person receiving a selling concession, fee
or other remuneration in respect of the Shares, who purchases prior to the
expiration of the Restricted Period referred to in subparagraph (v) above, a
confirmation or other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales as Buyer pursuant to
Section 903(c)(2)(iv) of Regulation S;
(ix) Buyer has not conducted and shall not conduct any "directed
selling efforts" as that term is defined in Rule 902(b) of Regulation S, nor
has Buyer conducted any general solicitation relating to the offer and sale
of Shares in the United States or elsewhere;
(x) This Agreement has been duly authorized, validly executed and
delivered on behalf of Buyer and is a valid and binding agreement in
accordance with its terms, subject to general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally;
(xi) The execution and delivery of this Agreement and the consummation
of the purchase of the Shares and the transactions contemplated by this
Agreement do not and will not conflict with or result in a breach by Buyer of
any of the terms or provisions of, or constitute a default under, the articles
of incorporation or by-laws (or similar constitutive documents) of Buyer or any
indenture, mortgage, deed of trust, or other
<PAGE> 4
material agreement or instrument to which Buyer is a party or by
which it or any of its properties or assets are bound, or any
existing applicable law, rule or regulation of the United States,
any State thereof or any other government or applicable
jurisdiction or any applicable decree, judgment or order of any
court or regulatory body, administrative agency or other
governmental body having jurisdiction over Buyer or any of its
properties or assets;
(xii) Notwithstanding Buyer's present investment intent as
described in subparagraph (iv), above, all invitations, offers
and sales of or in respect of, the Shares by Buyer and any
distribution by Buyer of any documents relating to any offer by
it of the Shares will be in compliance with applicable laws and
regulations and will be made in such a manner that no prospectus
need be filed and no other filing need be made by Seller with any
regulatory authority or stock exchange in any country or any
political sub-division of any country;
(xiii) Notwithstanding Buyer's present investment intent as
described in subparagraph (iv), above, Buyer will not make any
offer or sale of Shares by any means which would not comply with
the laws and regulations of the territory in which such offer or
sale takes place or to which such offer or sale is subject or
which would in connection with any such offer or sale impose upon
Seller any obligation to satisfy any public filing or
registration requirement or provide or publish any information of
any kind whatsoever or otherwise undertake or become obliged to
do any act; and
(xiv) Neither Buyer nor any of its affiliates has entered,
has the intention of entering, or will during a period of 60 days
following the closing enter or into any put option, short
position or other similar instrument or position with respect to
the Shares or securities of the same class as the Shares.
(b) NO GOVERNMENT RECOMMENDATION OR APPROVAL. Buyer understands
that no Federal or State agency has passed on or made any recommendation or
endorsement of the Shares.
(c) CURRENT PUBLIC INFORMATION. Buyer acknowledges that it and
its advisors, if any, have been furnished with all materials and information
relating to the business, finances and operations of Seller and all materials
relating to the offer and sale of the Shares which have been requested by Buyer,
all of which written materials and information contained a legend substantially
similar to that appearing in the preamble to this Agreement on the first page
hereof. Buyer further acknowledges that it and its advisors, if any, have
received complete and satisfactory answers to such inquiries. Without limiting
the generality of the foregoing, Buyer has received Seller's (1) Annual Report
on Form 10-K for the fiscal year ended March 31, 1995, (2) Quarterly Reports on
Form 10-Q for the fiscal quarters ended July 1, 1994, September 30, 1994, and
December 30, 1994, (3) Seller's year-end earnings press release and (4) a
description of Seller's use of the proceeds of the offering of the Shares.
Buyer
-4-<PAGE> 5
acknowledges that no representations have been made to it orally or in writing
regarding the Seller except by means of information in reports filed by the
Seller with the United States Securities and Exchange Commission or by means of
responses by the officers of the Seller to questions asked pursuant to this
Paragraph (c), and, by executing this Agreement, Buyer acknowledges that it is
not relying upon any representations or information other than information
contained in such reports or furnished in response to such questions, and the
results of an investigation by Buyer or Buyer's professional advisors.
(d) BUYER'S SOPHISTICATION. Buyer acknowledges that the purchase
of the Shares involves a high degree of risk, including the total loss of
Buyer's investment. Buyer has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
purchasing the Shares. Buyer is financially able to bear the risk of losing
its entire investment, has adequate means of providing for its needs and
possible contingencies, and has no need for liquidity in this investment.
3. SELLER REPRESENTATIONS.
(a) REPORTING COMPANY STATUS. Seller is a "Reporting Issuer" as
defined by Rule 902 of Regulation S. Seller has registered its Common Stock
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the Common Stock is listed and trades on the American
Stock Exchange. Seller has filed all material required to be filed pursuant to
all reporting obligations under either Section 13(a) or 15(d) of the Exchange
Act for a period of at least twelve (12) months immediately preceding the offer
or sale of the Shares.
(b) CURRENT PUBLIC INFORMATION. Seller has furnished Buyer with
copies of its most recent report filed under the Exchange Act referred to in
Section 2(c) above.
(c) OFFSHORE TRANSACTION. Seller has not offered the Shares to
any person in the United States, any identifiable groups of U.S. citizens
abroad, or to any U.S. Person.
(i) At the time the buy order was originated, Seller and/or
its agents reasonably believe Buyer was outside of the United
States and was not a U.S. person, based solely on the
representations of Buyer in Section 2(a) hereof.
(ii) Seller and/or its agents reasonably believe that the
transaction has not been pre-arranged with a buyer in the United
States, based solely on the representations of Buyer in Section
2(a) hereof.
(iii) No offer to buy or sell the Shares was or will be made by
Seller to any person in the United States.
(iv) The sale of the Shares by Seller pursuant to this
Agreement will be made in accordance with the provisions and
requirements of Regulation S.
-5-<PAGE> 6
(v) The transactions contemplated by this Agreement (a) have
not been and will not pre-arranged by Seller with a purchaser
located in the United States or a purchaser which is a U.S.
Person, and (b) are not and will not be part of a plan or scheme
by Seller to evade the registration provisions of the 1933 Act.
(d) NO DIRECTED SELLING EFFORTS. In regard to this transaction,
Seller has not conducted any "directed selling efforts" as that term is defined
in Rule 902 of Regulation S nor has Seller conducted any general solicitation
relating to the offer and sale of the securities which are the subject of this
transaction in the United States or elsewhere.
(e) CONCERNING THE SHARES. The Shares when issued and delivered
will be duly authorized, validly issued, fully paid and non-assessable and will
not subject the holders thereof to personal liability by reason of being such
holders. There are no preemptive rights of any shareholder of the Company.
(f) SUBSCRIPTION AGREEMENT. This Agreement has been duly
authorized, validly executed and delivered on behalf of Seller and is a valid
and binding agreement in accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
(g) NON-CONTRAVENTION. The execution and delivery of this
Agreement and the consummation of the issuance of the Shares and the
transactions contemplated by this Agreement do not and will not conflict with or
result in a breach by Seller of any of the terms or provisions of, or constitute
a default under, the articles of incorporation or by-laws of Seller, or any
indenture, mortgage, deed of trust, or other material agreement or instrument to
which Seller is a party or by which it or any of its properties or assets are
bound, or any existing applicable law, rule or regulation of the United States
or any State thereof or any applicable decree, judgment or order of any Federal
or State court, Federal or State regulatory body, administrative agency or other
United States governmental body having jurisdiction over Seller or any of its
properties or assets.
(h) APPROVALS. Seller is not aware of any authorization, approval
or consent of any governmental body which is legally required for the issuance
and sale of the Shares as contemplated by this Agreement.
4. EXEMPTION: RELIANCE ON REPRESENTATIONS. Buyer understands that the
offer and sale of the Shares are not being registered under the 1933 Act. Seller
and Buyer are relying on the rules governing offers and sales made outside the
United States pursuant to Regulation S.
5. TRANSFER AGENT INSTRUCTIONS. Seller's transfer agent will be
instructed to issue one or more share certificates representing the Shares sold
hereunder without restrictive legend in the name of Buyer (or its nominee (being
a non-U.S. Person) or such non-U.S. Persons as may be designated by Buyer prior
to the closing) and in such denominations to be specified prior to closing.
Seller further warrants that no instructions other than these
-6-<PAGE> 7
instructions and instructions to impose a "stop transfer" instruction with
respect to the certificates until the end of the Restricted Period of 41 days
from closing have been given to the transfer agent. Nothing in this section,
however, shall affect in any way Buyer's obligations and agreement to comply
with all applicable securities laws upon resale of the Shares.
6. STOCK DELIVERY INSTRUCTIONS. The Share certificates in the form required
to be delivered by Section 5 above shall be delivered to the Buyer on a
delivery versus payment basis at such time and place as shall be mutually
agreed by Seller and Buyer, provided that such certificates shall be made
available for inspection at such reasonable time as Buyer may request prior
to closing.
7. CONDITIONS TO SELLER'S OBLIGATION TO SELL. Seller's obligation to sell
the Shares is conditioned upon:
(a) The receipt and acceptance by Buyer of this Agreement as evidenced
by execution of this Agreement by the Chairman of the Board or President of
Buyer.
(b) Delivery into the closing depository of good funds by Buyer as
payment in full of the aggregate Purchase Price of the Shares.
(c) The receipt by Seller of a certificate from an authorized officer of
Buyer certifying that the representations and warranties contained in Section 2
hereof are true and correct as of the closing date.
(d) the receipt of approval for listing the Shares of the American
Stock Exchange.
8. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE. Buyer's obligation to
purchase the Shares is conditioned on:
(a) The receipt and acceptance by Seller of this Agreement as evidenced
by execution of this Agreement by the duly authorized officer of Seller.
(b) Delivery of certificates representing the Shares as described in
Section 5 hereof.
(c) The absence of any event or circumstance that could reasonably be
expected to have a material adverse effect on the financial condition of
Seller, or the market price of Seller's stock as reported on the American Stock
Exchange, in any such event as determined by Buyer in its reasonable discretion.
(d) The receipt by Buyer of a certificate from an authorized officer of
Seller certifying that the representations and warranties contained in Section
3 hereof are true and correct as of the closing date and that, to the best of
Seller's knowledge, the conditions set forth in subsection (d) above have been
complied with.
<PAGE> 8
(e) The Company's counsel, Brown, Rudnick, Freed & Gesmer, shall have
delivered an opinion to the Buyer substantially in the form of EXHIBIT A hereto.
9. PURCHASE PRICE ADJUSTMENT. The Purchase Price for the Shares shall be
recalculated sixty days following closing. The average shall be calculated of
the closing bid prices of the Shares, as reported on the American Stock
Exchange, for each trading day commencing with the trading day which is the
45th day following closing and ending on the 60th day following closing. If 75%
of that average is less than the Purchase Price, the per share purchase price
shall be adjusted to be 75% of that average, but not less than $4.50 (as so
adjusted, the "Adjusted Purchase Price"), and the Seller shall promptly issue
and deliver to the Buyer, for no additional consideration, that number of
fully-paid and nonassessable additional Shares equal to the difference between
200,000 and the number of Shares the aggregate Purchase Price would have
purchased at the Adjusted Purchase Price. Such Shares shall be subject to the
terms of paragraphs 2, 3, 4, 5, 10 and 12 of the Agreement. If the Adjusted
Purchase Price is greater than or equal to the Purchase Price set forth in
Section 1(b), there shall be no Purchase Price adjustment.
10. REGISTRATION OF THE SHARES. It is the Company's present intention to
file, after the closing of the sale of the Shares, and to cause to become
effective, a registration statement on Form S-3 under the 1933 Act covering the
resale of the Shares. Any such registration statement shall remain effective
for up to one hundred twenty (120) days or until all of the Shares are sold,
whichever is later. the Company shall provide the Buyer with such numbers of
copies of the prospectus as shall be reasonably requested to facilitate the
sale of the Shares. The Company shall bear and pay all expenses incurred in
connection with any such registration, excluding discounts and commissions.
11. OFFERING MATERIALS. All offering materials and documents used in
connection with offers and sales of the Shares prior to the expiration of the
Restricted Period referred to in Section 2(a)(v) hereof shall include
statements to the effect that the Shares have not been registered under the
1933 Act and that neither buyer, nor any direct or indirect purchaser of the
Shares from Buyer, may directly or indirectly offer or sell the Shares in the
United States or to U.S. Persons (other than distributors) unless the Shares
are registered under the 1933 Act, or an exemption from the registration
requirements of the 1933 Act is available. Such statements shall appear (1) on
the cover of any prospectus or offering circular used in connection with the
offer or sale of the Shares, (2) in the underwriting section of any prospectus
or offering circular used in connection with the offer or sale of the Shares,
and (3) in any advertisement made or issued by Seller, Buyer, any other
distributor, any of their respective affiliates, or any person acting on behalf
of any of the foregoing.
<PAGE> 9
12. MISCELLANEOUS.
(a) This Agreement constitutes the entire contract between the parties,
and neither party shall be liable or bound to the other in any manner by any
warranties, representations or covenants except as specifically set forth
herein. Any previous agreement among the parties related to the transactions
described herein is superseded hereby. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto. Nothing in this Agreement,
express or implied, is intended to confer upon any party, other than the
parties hereto, and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein.
(b) Buyer is an independent contractor, and is not the agent of Seller.
Buyer is not authorized to bind Seller, or to make any representations or
warranties on behalf of Seller.
(c) Seller makes no representation or warranty with respect to Seller,
its finances, assets, business prospects or otherwise, except as expressly set
forth herein. Buyer will advise each purchaser and potential purchaser of the
Shares of the foregoing sentence, and that such purchaser is relying on its own
investigation with respect to all such matters, and that such purchaser will be
given access to any and all documents and Seller personnel it may reasonably
request for such investigation.
(d) All representations and warranties contained in this Agreement by
Seller and Buyer shall survive the closing of the transactions contemplated by
this Agreement.
(e) This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts, United States of America and shall be binding
upon the successors and assigns of each party hereto. This Agreement may be
executed in counterparts, and the facsimile transmission of an executed
counterpart to this Agreement shall be effective as an original.
<PAGE> 10
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
Official Signatory of Seller:
/s/ Ralph S. Sheridan
-----------------------------------
By: /s/ Ralph S. Sheridan
-----------------------------------
Title: President and CEO
-----------------------------------
Official Signatory of Buyer:
By: /s/ Kenneth Silverman
-----------------------------------
-----------------------------------
Title: President
Exact Name of Buyer:
/s/ Samuel Investor's Int'l,. L.D.C.
-----------------------------------
Address of Buyer:
-----------------------------------
-----------------------------------
-----------------------------------
<PAGE> 1
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF OR OF THE
SECURITIES PURCHASABLE UPON THE EXERCISE THEREOF. NO SUCH SALE OR
DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
STOCK PURCHASE WARRANT
To Purchase Shares of Common Stock, $.66 2/3 par value of
AMERICAN SCIENCE AND ENGINEERING, INC.
<TABLE>
<S> <C>
Warrant Number of
No. Shares
----------- ------------
</TABLE>
THIS CERTIFIES that, for the consideration described in Section 1,
below, American Science and Engineering, Inc., a Massachusetts corporation (the
"Company") hereby grants the right to _________________________________________
(the "Initial Holder", and together with any subsequent transferees of all or
any portion of this Warrant, the "Holder") and said Holder is hereby entitled,
upon the terms and subject to the conditions hereinafter set forth, to
subscribe for and purchase from the Company, the number of fully paid and
nonassessable shares of the Company's Common Stock, $.66 2/3 par value (the
"Common Stock") set forth in Section 5 hereof.
1. CONSIDERATION. This Warrant is issued to the Holder in partial
consideration for a loan from the Initial Holder to the Company pursuant to that
certain Loan and Security Agreement dated April 13, 1995 by and between, among
others, the Company and the Initial Holder (the "Loan Agreement").
2. DEFINITIONS. As used herein the following terms shall have the
following meanings:
a. Act - The Securities Act of 1933, as amended.
b. Other Securities - Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or other) which the
Holder at any time shall be entitled to receive, or shall have received, upon
the exercise of this Warrant, in lieu of or in addition to Common Stock, or
which at any time shall be issuable or shall have been issued in exchange for or
in replacement of Common Stock or Other Securities.
c. Shares - The shares of Common Stock (and/or Other Securities or
property) issued and issuable upon exercise of this Warrant.
-1-
<PAGE> 2
3. EXERCISE PERIOD. The purchase rights represented by this Warrant are
exercisable by the Holder, in whole or in part, and by any party to whom this
Warrant or any portion thereof may be transferred pursuant to Section 12(d), in
whole or in part, at any time and from time to time prior to August ___, 1997;
provided, however, that in the event that the Company defaults with respect to
its obligation under the Loan Agreement to pay principal and/or interest as
required thereunder (a "Payment Default"), then the Holder's right to purchase
the Shares hereunder shall be extended until that date which is twenty-four (24)
months after the date on which the Company has paid in full all principal and
interest owed to the Initial Holder under the Loan Agreement (the "Expiration
Date").
4. EXERCISE PRICE. Subject to adjustment as provided in Section 9, the
price at which the Shares may be purchased (the "Exercise Price") shall be
$_________ per share, the lowest reported closing price of the Stock on the
American Stock Exchange (or such other exchange or quotation system on which the
Common Stock is then listed or quoted) during the one hundred twenty (120) day
period from April 13, 1995 to the date hereof; provided, however, that in the
event of a Payment Default, the price at which the Shares may be purchased shall
be adjusted to the lowest reported closing price on the American Stock Exchange
(or such other exchange or quotation system on which the Common Stock is then
listed or quoted) during the period beginning on the date hereof and ending on
the date on which the Company has paid in full all principal and interest owed
to the Initial Holder under the Loan Agreement; and provided, further, that if
the Holder exercises this Warrant, or any part thereof, prior to the date on
which all interest and principal due under the Loan Agreement is paid in full to
the Initial Holder, as applicable, the Exercise Price of the Shares purchased in
connection with such exercise shall be the lowest reported closing price of the
Common Stock on the American Stock Exchange (or such other exchange or quotation
system on which the Common Stock is then listed or quoted) during the period
beginning on the date hereof and ending on the date of such exercise.
5. SHARES ISSUABLE ON EXERCISE OF WARRANT. The total number of shares of
Common Stock issuable on exercise of this Warrant shall be ____________________
6. EXERCISE OF WARRANT. Subject to the limitations hereinafter set
forth, the Warrant may be exercised, in whole or in part and from time to time,
by the surrender of this Warrant and the duly executed Notice of Exercise
attached hereto, at the office of the Company, 829 Middlesex Turnpike,
Billerica, MA 01821 (or such other office of the Company as it may designate)
and upon payment of the Exercise Price for the Shares thereby purchased (payment
to be in cash or certified or bank check payable to the order of the Company).
Upon exercise, and subject to Section 10, the Holder shall be entitled to
receive, within forty-five (45) days of the Exercise Date (as hereinafter
defined), a certificate or certificates, issued in the Holder's name or in such
name or names as the Holder may direct, for the number of Shares so purchased in
accordance with the terms of this Warrant. The Shares so purchased shall be
deemed to be issued as of the close of business on the date on which this
Warrant shall have been exercised (the "Exercise Date").
-2-
<PAGE> 3
The Company covenants that all shares of Common Stock and Other
Securities which are issued upon the exercise of this Warrant shall be fully
paid and nonassessable.
7. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu thereof, a cash payment shall be made equal to such fraction
multiplied by the fair market value of the Shares on a per share basis on the
Exercise Date. The fair market value of the Shares shall be the closing price
as reported on the American Stock Exchange, or such other exchange or quotation
system on which the Common Stock is then listed or quoted, or if not so listed
or quoted, as determined by the Company's Board of Directors acting in good
faith.
8. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder
to any voting rights or other rights as a shareholder of the Company prior to
exercise and payment of the Exercise Price, nor shall this Warrant give the
Holder any equity or interest of any kind in any assets of the Company, or
create a trust of any kind or a fiduciary relationship of any kind between the
Holder and the Company. Notwithstanding the foregoing, the Company shall
transmit to the Holder such information, documents and reports as are generally
distributed to the holders of Common Stock concurrently with the distribution
thereof to the shareholders.
As to any claim for any unpaid amounts under this Agreement, any person
having a claim for payment shall be an unsecured creditor. The Holder shall not
have any of the rights of a stockholder with respect to the Shares until such
time as the Warrant has been exercised and payment in full has been tendered to
and accepted by the Company.
9. STOCK ADJUSTMENTS.
a. If the Company is a party to any merger or consolidation, any
purchase or acquisition of property or stock, or any separation, reorganization
or liquidation, the Board of Directors (or, if the Company is not the surviving
corporation, the Board of Directors of the surviving corporation) shall make
appropriate arrangements, which shall be binding upon the Holder, for the
substitution of new warrants for, or the assumption by another corporation of,
any unexpired Warrants then outstanding hereunder.
b. If by reason of recapitalization, reclassification, stock split-
up, combination of shares, separation (including a spin-off) or dividend on the
Common Stock payable in Common Stock, the outstanding shares of Common Stock of
the Company are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company, the Board
of Directors of the Company shall conclusively determine the appropriate
adjustment, if any, in the Exercise Price of the Warrant and in the number and
kind of shares as to which the Warrant shall be exercisable.
10. COMPLIANCE WITH LAWS.
a. WITHHOLDING OF TAXES. Pursuant to applicable federal, state,
local or foreign laws, the Company may be required to collect income or other
taxes upon the grant of
-3-
<PAGE> 4
this Warrant or exercise of the Warrant by the Holder. The Company may require,
as a condition to the exercise of this Warrant, that the Holder pay the
Company the amount of any taxes which the Company may reasonably determine is
required to be withheld. The Company may withhold shares of Common Stock
covered by the Warrant, or an equivalent dollar amount, or may accept cash
payments or issued and outstanding Stock in satisfaction of any such
obligation.
b. SECURITIES LAW COMPLIANCE. Upon exercise of a Warrant, the
Holder shall be required to make such representations and furnish such
information as may, in the opinion of counsel for the Company, be appropriate to
permit the Company to issue or transfer the Shares in compliance with the
provisions of applicable federal or state securities laws. The Company, in its
discretion, may postpone the issuance and delivery of Shares upon any exercise
of this Warrant until the Shares may be issued in compliance with the provisions
of applicable federal and state securities laws. The Company may require that
prior to the issuance or transfer of Shares upon exercise of the Warrant, the
Holder enter into a written agreement to comply with any restrictions on
subsequent disposition that the Company deems necessary or advisable under any
applicable federal and state securities laws. Certificates of Stock issued
hereunder may be legended to reflect such restrictions.
c. GENERAL. No Shares shall be issued upon exercise of this Warrant
unless and until all other legal requirements applicable to the issuance of such
Warrant Shares have been complied with.
11. SALE OR TRANSFER OF THE WARRANT; LEGEND. The Warrant and the Shares
shall not be sold or transferred unless either (a) they first shall have been
registered under the Act, or (b) the Company first shall have been furnished
with an opinion of legal counsel satisfactory to the Company to the effect that
such sale or transfer is exempt from the registration requirements of the Act.
Each certificate representing any Warrant shall bear the legend set forth at the
top of page 1 hereof. Each certificate representing any Share shall bear a
legend substantially in the following form, as appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
This Warrant and such Shares may be subject to additional restrictions on
transfer imposed under applicable state and federal securities law.
12. MISCELLANEOUS.
-4-
<PAGE> 5
a. RESERVATION OF SHARES. During the term of this Warrant, the
Company shall at all times reserve and keep available for issuance a sufficient
number of Shares or Other Securities, if necessary, to satisfy the requirements
of this Warrant.
b. AMENDMENT. This Agreement may only be modified or amended by a
written instrument signed by both parties.
c. NOTICE. Any notices required to be given under this Agreement
shall be sufficient if in writing and if sent by nationally recognized overnight
courier service or registered or certified mail, return receipt requested, and
addressed as follows:
if to the Company:
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, MA 01821
Attn: Treasurer
if to the Initial Holder:
-------------------------------
-------------------------------
-------------------------------
if to any other Holder to such address of such Holder shown on the books of the
Company, or to such other address as either party may designate under the
provisions hereof.
d. TRANSFER. The Holder may request an exchange, transfer or
further division of the Warrant and upon surrender of the Warrant and compliance
with all other terms set forth herein and compliance with applicable federal and
state securities laws, the Company shall issue a new Warrant of like tenor and
dated as of such exchange, transfer or division. The Company shall maintain at
its principal place of business a registry showing the name and address of the
registered Holder or Holders of this Warrant. This Warrant may be surrendered
for exchange, transfer or exercise, in accordance with its terms, at such office
of the Company, and the Company shall be entitled to rely in all respects, prior
to written notice to the contrary upon such registry.
e. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. Upon receipt
by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company shall
-5-
<PAGE> 6
make and deliver a new Warrant of like tenor and dated as of such cancellation,
in lieu of this Warrant.
f. REPRESENTATIONS. By accepting this Warrant, the Holder
represents and warrants that it is acquiring this Warrant and the Shares for its
own account, for investment and not with a view to, or for sale in connection
with, any distribution thereof or any part thereof. Holder represents and
warrants that it is (i) an "accredited investor" as that term is defined in Rule
501(a) promulgated under the Act, (ii) experienced in the evaluation of
businesses similar to the Company, (iii) is able to fend for itself in the
transactions contemplated by this Warrant, (iv) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Company, (v) has the ability to bear
the economic risks of an investment in the Company, (vi) has been furnished with
or has had access to such information as is specified in subparagraph (b)(2) of
Rule 502 promulgated under the Act and (vii) has been afforded the opportunity
to ask questions of and to receive answers from the Company and to obtain any
additional information necessary to make an informed investment decision with
respect to an investment in the Company.
g. BINDING OBLIGATIONS. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company.
h. GOVERNING LAW. All rights and obligations under this Agreement
shall be governed by the laws of The Commonwealth of Massachusetts.
i. HEADINGS. The paragraph headings used in this Agreement are for
convenience of reference only, and are not to be construed as part of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument under seal, effective as of the date written on the first page of
this Agreement.
AMERICAN SCIENCE AND
ENGINEERING, INC.
By:
--------------------------
Name:
---------------------
Title: , duly
--------------
authorized
By:
--------------------------
Name:
---------------------
Title: , duly
--------------
authorized
-6-
<PAGE> 7
HOLDER:
-----------------------------
-7-
<PAGE> 8
ATTACHMENT A
------------
[WARRANT HOLDER'S ADDRESS]
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, MA 01821
Attention: Treasurer
---------- ---------
Gentlemen:
Pursuant to our Warrant Agreement dated as of April ___, 1995, I hereby
elect to exercise the Warrant to the extent indicated:
------------------------------------------------------------------
Number of Shares Per Share Total
Which I Elect to x Price = Price
Purchase
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
Enclosed with this letter is full payment of the total price of the shares
described above. Kindly issue a certificate or certificates to me or those
persons described on the attached sheet, if any, representing the shares which
are being acquired by this exercise, and deliver it or them to the address
provided above.
Very truly yours,
---------------------------
-8-
<PAGE> 9
<TABLE>
AMERICAN SCIENCE AND ENGINEERING, INC.
SCHEDULE OF WARRANTS ISSUED ON AUGUST 14, 1995
Warrants, in the form to which this schedule is attached, were issued on
August 14, 1995 to the persons below, for the number of shares and exercise
prices indicated.
<CAPTION>
WARRANT SHARES EXERCISE PRICE NAME
------------------------------------------------------------
<S> <C> <C> <C>
1 7,500 $5 7/8 LEE C. STEELE
2 2,500 $5 7/8 PETER W. HARRIS
3 20,000 $5 7/8 RALPH S. SHERIDAN
4 5,000 $5 7/8 DONALD J. MCCARREN
5 30,000 $5 7/8 ALFRED GLADEN
</TABLE>
<PAGE> 1
[LETTERHEAD]
August 16, 1995
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, MA 01821
Ladies and Gentlemen:
We have acted as counsel to American Science and Engineering, Inc., a
Massachusetts corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission, under the Securities Act
of 1933, as amended (the "1933 Act"), of a Registration Statement on Form S-3
(the "Registration Statement") relating to an aggregate 229,167 shares of the
Company's Common Stock, $.66 2/3 par value, 200,000 of which are issued and
outstanding (the "Shares"), and 29,167 of which are issuable upon exercise of a
certain Common Stock Purchase Warrant (the "Warrant Shares"). This opinion
letter, together with Schedule A attached hereto (the "Opinion Letter"), is
being rendered in connection with the filing of the Registration Statement.
In connection with this Opinion Letter, we have examined the following
(collectively, the "Documents"):
(i) the Restated Articles of Organization of the Company, as amended, as
certified by the Secretary of State of The Commonwealth of
Massachusetts on July 12, 1995, and a certificate of the Clerk of the
Company that there have been no further amendments thereto;
(ii) a copy of the Bylaws of the Company, as amended, certified by the
Clerk of the Company, as presently being in effect;
(iii) certain votes of the Board of Directors of the Company, certified by
the Clerk of the Company, as presently being in effect;
(iv) a certificate dated July 12, 1995 of the Secretary of State of The
Commonwealth of Massachusetts as to the good standing of the Company;
(v) a subscription agreement dated July 8, 1995 between the Company and
Samuel Investors International, L.D.C. (the "Subscription
Agreement");
<PAGE> 2
[LOGO]
American Science and Engineering, Inc.
August 16, 1995
Page 2
(vi) engagement letters dated July 11, 1995 between the Company and
Grayson & Associates (together, the "Engagement Letter"); and
(vii) a Common Stock Purchase Warrant, dated July 18, 1995, issued by the
Company in the name of Grayson & Associates (the "Warrant").
We have assumed, for the purposes of our opinions herein, that the
conditions of the respective parties to the Subscription Agreement, Engagement
Letter and Warrant have been or will be satisfied in full.
We have, without independent investigation, relied upon the representations
and warranties of the various parties as to matters of objective fact contained
in the Documents.
In addition, this Firm, in rendering legal opinions, customarily makes
certain assumptions which are described in Schedule A hereto. In the course of
our representation of the Company in connection with the preparation of the
Registration Statement, nothing has come to our attention which causes us to
believe reliance upon any of these assumptions is inappropriate, and, with your
concurrence, the opinions hereafter expressed are based upon those assumptions.
The Enumerated Party referred to in Schedule A is the Company.
We have not made any independent review or investigation of orders,
judgments, rules or other regulations or decrees by which the Company or any of
its property may be bound, nor have we made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company.
With your concurrence, the opinions expressed herein, whether or not
qualified by language such as "to our knowledge," are based solely upon (i) our
review of the Documents, (ii) discussions with those of our attorneys who have
devoted substantive legal representation to the Company in connection with the
preparation of the Registration Statement, and (iii) such review of published
sources of law as we have deemed necessary.
Our opinions contained herein are limited to the laws of The Commonwealth
of Massachusetts and the Federal law of the United States of America.
We express no legal opinion upon any matter other than those explicitly
addressed in numbered paragraphs 1 and 2 below, and our express opinions therein
contained shall not be interpreted to be implied opinions upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized and validly issued, and are
fully paid and non-assessable.
<PAGE> 3
[LOGO]
American Science and Engineering, Inc.
August 16, 1995
Page 3
2. The Warrant Shares have been duly authorized for issuance, and
when issued and delivered in accordance with the Warrant, will be
validly issued, fully paid and non-assessable.
We understand that this Opinion is to be used in connection with the
aforesaid Registration Statement filed with the Securities and Exchange
Commission. We consent to the filing of this Opinion as an Exhibit to said
Registration Statement and to the reference to our firm wherever it appears in
the Registration Statement, including the Prospectus constituting a part thereof
and any amendments thereof. This Opinion may be used in connection with the
offering of the Shares and Warrant Shares only while the Registration Statement
as amended remains in effect.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed & Gesmer, P.C.,
a Partner
By: /s/ Steven R. London
--------------------------
Steven R. London, a Member
SRL/DHM/JGN
<PAGE> 4
[LOGO]
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
--------------------
In rendering legal opinions in third party transactions, Brown, Rudnick,
Freed & Gesmer makes certain customary assumptions described below:
1. Each natural person executing any of the Documents
has sufficient legal capacity to enter into such Documents.
2. Each person other than the Enumerated Party has all requisite
power and authority and has taken all necessary corporate or
other action to enter into those Documents to which it
is a party or by which it is bound, to the extent necessary to
make the Documents enforceable against it.
3. Each person other than the Enumerated Party has complied with
all legal requirements pertaining to its status as such status
relates to its rights to enforce the Documents against the
Enumerated Party.
4. Each Document is accurate, complete and authentic, each
original is authentic, each copy conforms to an authentic
original and all signatures are genuine.
5. All official public records are accurate, complete and properly
indexed and filed.
6. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress, or undue influence by or among
any of the parties to the Documents.
7. The conduct of the parties to the Documents has complied in the
past and will comply in the future with any requirement of good
faith, fair dealing and conscionability.
8. The Enumerated Party will not in the future take any
discretionary action (including a decision not to act) permitted
under any Document that would result in a violation of law or
constitute a breach or default under that or any other Document
or court or administrative orders, writs, judgments
and decrees that name the Enumerated Party and are
specifically directed to it or its property.
9. The Enumerated Party will obtain all permits and governmental
approvals required in the future and take all actions similarly
required relevant to its performance of its obligations under
the Documents.
<PAGE> 5
[LOGO]
10. All parties to or bound by the Documents will act in accordance
with, and will refrain from taking any action that is forbidden
by, the terms and conditions of the Documents.
11. There are no agreements or understandings among the parties to
or bound by the Documents, and there is no usage of trade or
course of prior dealing among such parties, that would define,
modify, waive, or qualify the terms of any of the Documents.
<PAGE> 1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation
by reference in the Registration Statement of our reports dated June 27, 1995
and August 11, 1995 included in American Science and Engineering, Inc.'s Form
10-K for the year ended March 31, 1995 and Form 10-Q for the quarter ended June
30, 1995, respectively, and to all references to our firm included in or made
part of this Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on August 17, 1995.
/S/ Arthur Andersen LLP
Arthur Andersen LLP
Hartford, Connecticut
August 11, 1995
