<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
AMERICAN SCIENCE AND ENGINEERING, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2440991
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification. No.)
829 MIDDLESEX TURNPIKE, BILLERICA, MA 01821
(Address of Principal Executive Offices) (Zip Code)
-------------
AMERICAN SCIENCE AND ENGINEERING, INC.
1996 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of Plan)
JEFFREY A. BERNFELD
AMERICAN SCIENCE AND ENGINEERING, INC.
829 MIDDLESEX TURNPIKE
BILLERICA, MASSACHUSETTS 01821
(Name and Address of Agent for Service)
(508) 262-8700
(Telephone Number, Including Area Code, of Agent for Service)
-------------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price Registration Fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.66 2/3 par value 300,000 (2) $11.69 (3) $3,507,000 (3) $1,209.31
=============================================================================================
</TABLE>
================================================================================
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Such presently indeterminable number of additional shares of Common
Stock are also registered hereunder as may be issued in the event of a merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other similar change in Common Stock.
(3) Based upon the average high and low prices for the Registrant's
Common Stock, $.66 2/3 par value (the "Common Stock"), on July 25, 1996 as
reported by the American Stock Exchange.
Total Number of Pages Exhibit Index at Page
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's latest Annual Report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or either (i) the latest
prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"), that contains
audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed or (ii)
the Registrant's effective Registration Statement on Form 10
filed under the Exchange Act containing audited financial
statements for the Registrant's latest fiscal year;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Registrant's documents referred to in (a)
above; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A (File No.
1-06549) filed under the Exchange Act with the Securities and
Exchange Commission.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock to be issued upon exercise
of options granted under the American Science and Engineering, Inc. 1996 Stock
Plan for Non-Employee Directors has been passed upon for the Registrant by
Brown, Rudnick, Freed & Gesmer, One Financial Center, Boston, Massachusetts
02111.
II-1
<PAGE> 3
Item 6. 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 Registrant's By-Laws provides in substance that the
Registrant 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
Registrant or is or was serving at the request of the Registrant 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 Registrant 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 Registrant. In the event of any settlement of any action,
suit or proceeding, the right to indemnification is limited to matters as to
which the Registrant 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 Registrant. The right of indemnification
contained in the Registrant's By-Laws is non-exclusive and is in addition to any
other rights such person may have.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the Registrant's By-Laws, or otherwise, the Registrant
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.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- --------------------------
<S> <C>
4.1 Restated Articles of Organization of the Registrant, as
amended by Articles of Amendment dated October 29, 1976,
Articles of Amendment dated May 17,
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- --------------------------
<S> <C>
1976, and Articles of Amendment dated March 28, 1973 (filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form S-3
filed with the Securities and Exchange Commission on July 30, 1996,
and incorporated herein by reference).
4.2 By-Laws of the Company, as amended (filed as Exhibit 2(a)(iii) to
the Form S-7 and incorporated herein by reference).
4.3 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 (filed as Exhibit 4.6 to the Company's
Registration Statement on Form S-3) (Registration No. 33-61903) (the
"Form S-3"), and incorporated herein by reference).
4.7 Subscription Agreement, dated July 8, 1995, between the Company and
Samuel International Investors, L.D.C. (filed as Exhibit 4.7 to the
Form S-3, and incorporated herein by reference).
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 (filed as Exhibit 4.8 to the Company's Form
S-3, and incorporated herein by reference).
5 Legal 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.
99 American Science and Engineering, Inc. 1996 Stock Plan for
Non-Employee Directors.
</TABLE>
Item 9. 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:
II-3
<PAGE> 5
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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.
B. The undersigned Registrant hereby undertakes 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 Section 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.
C. The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security-holders that is incorporated by
reference in the prospectus and furnished pursuant to, and meeting the
requirements of, Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is
II-4
<PAGE> 6
specifically incorporated by reference in the prospectus to provide such interim
financial information.
D. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described under
"Item 6 --- Indemnification of Directors and Officers" above, 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-5
<PAGE> 7
SIGNATURES
The Registrant. 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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Billerica, Commonwealth of Massachusetts, on
July 26, 1996.
American Science and Engineering, Inc.
/s/ Ralph S. Sheridan
---------------------------------
By: Ralph S. Sheridan, President
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.
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Ralph S. Sheridan President and Director July 26, 1996
- ------------------------------- (Principal Executive
Ralph S. Sheridan Officer)
/s/ Lee C. Steele Vice President and July 26, 1996
- ------------------------------- Treasurer (Principal
Lee C. Steele Financial Officer)
/s/ Herman Feshbach Director July 26, 1996
- -------------------------------
Herman Feshbach
/s/ Alfred M. Gladen Director July 26, 1996
- -------------------------------
Alfred M. Gladen
/s/ Hamilton W. Helmer Director July 26, 1996
- -------------------------------
Hamilton W. Helmer
/s/ Donald J. McCarren Director July 26, 1996
- -------------------------------
Donald J. McCarren
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description of Exhibit Page
- ------- ---------------------- ----
<S> <C> <C>
4.1 Restated Articles of Organization of the Registrant, as amended by
Articles of Amendment dated October 29, 1976, Articles of Amendment
dated May 17, 1976, and Articles of Amendment dated March 28, 1973
(filed as Exhibit 4.1 to the Registrant's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on July
30, 1996, and incorporated herein by reference). *
4.2 By-Laws of the Company, as amended (filed as Exhibit 2(a)(iii) to
the Form S-7 and incorporated herein by reference). *
4.3 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.
99 American Science and Engineering, Inc. 1996 Stock Plan for
Non-Employee Directors
</TABLE>
- ------------------------------
* Incorporated by reference and not filed herewith.
<PAGE> 1
EXHIBIT 5
[BROWN RUDNICK FREED & GESMER LETTERHEAD]
July 31, 1996
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, MA 01821
Re: American Science and Engineering, Inc.
Registration Statement on Form S-8
Gentlemen:
We are counsel for American Science and Engineering, Inc., a
Massachusetts corporation (the "Company"). We have been asked to deliver this
opinion in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"), of
a Registration Statement on Form S-8 (the "Registration Statement") relating to
300,000 shares of the Company's Common Stock, $.66 2/3 par value (the "Shares").
The Shares are issuable pursuant to the Company's 1996 Stock Plan for
Non-Employee Directors (the "1996 Plan"). 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 and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of the following documents (collectively, the "Documents"):
1. a certificate from the Secretary of State of the Commonwealth
Massachusetts dated July 26, 1996 as to the legal existence and good standing of
the Company;
2. a copy of the Restated Articles of Organization of the Company, as
amended to date, and a certificate of the Clerk that there have been no further
amendments thereto;
3. a copy of the By-laws of the Company, as amended to date, certified
by the Clerk of the Company as presently being in effect;
4. votes of the Board of Directors of the Company relating to the
approval of the 1996 Plan, certified by the Clerk of the Company;
A Partnership of
Professional Corporations
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
617-856-8200
FAX: 617-856-8201
Hartford/Providence
<PAGE> 2
American Science and Engineering, Inc.
July 31, 1996
Page 2
5. the 1996 Plan;
6. a letter from the Company's transfer agent as to the issued and
outstanding shares of the Company as of July 25, 1996; and
7. the Registration Statement.
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 that 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, our opinion hereafter expressed is based solely
upon (1) our review of the Documents, (2) discussions with those of our
attorneys who have devoted substantive attention to the preparation of the
Registration Statement and (3) 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 below, and our express opinion therein contained shall not be
interpreted to be an implied opinion upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and will be validly issued, fully
paid, and non-assessable, when issued in accordance with the terms and
conditions of the 1996 Plan.
<PAGE> 3
American Science and Engineering, Inc.
July 31, 1996
Page 3
We hereby consent to the reference to this Firm in the Registration
Statement and to the filing of this opinion as Exhibit (5) to the Registration
Statement.
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
<PAGE> 4
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
In rendering legal opinions, 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 Document is accurate, complete and authentic, each original is
authentic, each copy conforms to an authentic original and all
signatures are genuine.
3. All official public records are accurate, complete and properly indexed
and filed.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation
by reference in this registration statement on Form S-8 for the American
Science and Engineering, Inc. 1996 Stock Plan for Non-Employee Directors, to be
filed July 31, 1996 of our report dated June 5, 1996 included in American
Science and Engineering, Inc.'s Annual Report on Form 10-K for the year ended
March 29, 1996 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
- -----------------------
Boston, Massachusetts
July 25, 1996
<PAGE> 1
EXHIBIT 24
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 Jeffrey
Bernfeld, and each 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-8 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>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Ralph S. Sheridan President and Director July 26, 1996
- ------------------------------- (Principal Executive
Ralph S. Sheridan Officer)
/s/ Lee C. Steele Vice President and
- ------------------------------- Treasurer (Principal July 26, 1996
Lee C. Steele Financial Officer)
/s/ Herman Feshbach Director July 26, 1996
- -------------------------------
Herman Feshbach
/s/ Alfred M. Gladen Director July 26, 1996
- -------------------------------
Alfred M. Gladen
/s/ Hamilton W. Helmer Director July 26, 1996
- -------------------------------
Hamilton W. Helmer
/s/ Donald J. McCarren Director July 26, 1996
- -------------------------------
Donald J. McCarren
</TABLE>
-9-
<PAGE> 1
EXHIBIT 99
AMERICAN SCIENCE AND ENGINEERING, INC.
1996 STOCK PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose. The purposes of this 1996 Stock Plan for Non-Employee
Directors are to (i) attract and retain the services of experienced and
knowledgeable non-employee directors of the Corporation for the benefit of the
Corporation and its stockholders, (ii) to provide additional incentives for such
non-employee directors to continue to work for the best interests of the
Corporation and its stockholders through continuing ownership of its common
stock, and (iii) associate more closely the interests of such non-employee
Directors with those of the Corporation's stockholders.
2. Definitions. As used herein, each of the following terms has the
indicated meaning:
"Corporation" means American Science and Engineering, Inc.
"Fair Market Value" means the closing sale price quoted on the
American Stock Exchange or such other national securities exchange or the Nasdaq
Stock Market ("NASDAQ") on which the Shares may be traded on the date of the
grant of such Shares or on the date of grant of the Option to which such Shares
relate, as the case may be. If the Shares are not then so traded, the Fair
Market Value shall be determined by the Board of Directors of the Corporation in
its sole and reasonable discretion.
"New Non-Employee Director Period" means the period from January 11
until August 31 of the same year, or if sooner, until the next Annual Meeting or
Special Meeting in Lieu of Annual Meeting of Shareholders of the Corporation
held during such year.
"Option" means the contractual right to purchase Shares upon the
specific terms set forth in this Plan.
"Option Exercise Period" means the period commencing one (1) year
after the date of grant of an Option pursuant to this Plan and ending ten years
from the date of grant.
"Plan" means this American Science and Engineering, Inc. 1996 Stock
Plan for Non-Employee Directors.
"Prorated Amount" means a fraction equal to the number of full months
between the date on which the Non-Employee Director first becomes a Non-Employee
Director and August 31 divided by twelve (12) (the "Prorated Amount").
"Shares" means the Common Stock, $.66 2/3 par value, of the
Corporation.
<PAGE> 2
"Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Corporation if, at the time of grant of the
award hereunder, each of the corporations other than the last in the unbroken
chain owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
"Termination Date" means the date on which a Non-Employee Director
ceases to be a Non-Employee Director for any reason whatsoever, including by
reason of death, permanent disability or retirement.
3. Stock Subject to the Plan. The aggregate number of Shares that may be
issued and sold under the Plan shall be 300,000. The Shares to be granted under
this Plan, either directly or upon exercise of Options granted under this Plan,
shall be made available, at the discretion of the Board of Directors, from (i)
treasury Shares and Shares reacquired by the Corporation for such purposes,
including Shares purchased in the open market, (ii) authorized but unissued
Shares, and (iii) Shares previously reserved for issuance upon exercise of
Options which have expired or been terminated. Shares reacquired by the Company
as a result of forfeiture pursuant to the terms of this Plan and any Shares
subject to an Option granted under this Plan which shall expire or terminate for
any reason without having been exercised in full, shall become available for
issuance under the Plan, either directly or upon exercise of additional Options,
so long as the Plan shall remain in effect.
4. Administration of the Plan. The Plan shall be administered by the
Board of Directors of the Corporation (the "Board"). The Board shall, subject to
the provisions of the Plan, grant Shares and Options under the Plan and shall
have the power to construe the Plan, to determine all questions as to
eligibility, and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable.
5. Eligibility. Shares and Options shall be granted only to directors of
the Corporation or of a Subsidiary who are not otherwise employees of the
Corporation or any Subsidiary (each a "Non-Employee Director").
6. Grant of Options.
(a) Each Non-Employee Director other than the Chairman of the Board, who
first becomes a Non-Employee Director during the period commencing on the day
after the Company's most recent Annual Meeting of Shareholders or Special
Meeting in Lieu of Annual Meeting of Shareholders and ending on August 31,
whether by election by the stockholders or appointment by the Board of
Directors, shall be granted an option to purchase the Prorated Amount of 7,000
Shares on the date of his or her initial appointment or election.
(b) Each year, on the date of the Company's Annual Meeting of
Shareholders or Special Meeting in Lieu of Annual Meeting of Shareholders, each
Non-Employee Director as of the close of business on such date, other than the
Chairman of the Board, shall be granted an Option to purchase 7,000 Shares.
-2-
<PAGE> 3
(c) Each year, on the date of the Company's Annual Meeting of
Shareholders or Special Meeting in Lieu of Annual Meeting of Shareholders, the
Chairman of the Board, if such person is a Non-Employee Director as of the close
of business on such date, shall be granted an Option to acquire 7,500 Shares;
provided, however, the person who serves as Chairman of the Board on the date of
adoption of this Plan by the Board of Directors shall not receive Options
hereunder and in lieu thereof, shall continue to receive deferred compensation
in accordance with the deferred compensation arrangement in effect on such date.
If the Chairman of the Board is a Non-Employee Director, and he or she is
initially elected or appointed during the period commencing on the day after the
Company's most recent Annual Meeting of Shareholders or Special Meeting in Lieu
of Annual Meeting of Shareholders and ending on August 31, the Chairman of the
Board shall be granted Options to purchase the Pro-Rata Amount of 7,500 Shares
on the date of his or her initial appointment or election.
7. Grant of Shares.
(a) Each Non-Employee Director other than the Chairman of the Board,
who first becomes a Non-Employee Director during the New Non-Employee Director
Period, whether by election by the stockholders or appointment by the Board of
Directors, shall be granted the Prorated Amount of 2,000 Shares on the date of
his or her initial appointment or election.
(b) On January 10 of each year, each then Non-Employee Director,
other than the Chairman of the Board, shall be granted 2,000 Shares.
(c) On January 10 of each year, the Chairman of the Board, if such
person is a Non-Employee Director, shall be granted 2,500 Shares. If the
Chairman of the Board is a Non-Employee Director, and he or she is initially
elected or appointed during the New Non-Employee Director Period, the Chairman
of the Board shall be granted the Prorata Amount of 2,500 Shares on the date of
his or her initial appointment or election.
8. Terms of Shares, Options and Limitations Thereon.
(a) Shares. Shares not subject to Options shall be granted under this
Plan pursuant to Section 7 without the requirement of any payment from the
Non-Employee Director and shall be deemed to have a value equal to their Fair
Market Value and, upon issuance in accordance with this Plan, shall be fully
paid and non-assessable. Shares not subject to Options shall be forfeited if the
Non-Employee Director ceases to be a Non-Employee Director for cause as defined
in paragraph (d), below prior to one (1) year after the date of grant. If the
Non-Employee Director ceases to be a Non-Employee Director without cause prior
to one (1) year after the date of grant, the Non-Employee Director shall forfeit
only that fraction of the Shares not subject to Options equal to the number of
full months after the Termination Date which remain in the twelve (12)-month
period following the date of grant divided by twelve (12). If the Non-Employee
Director ceases to be a Non-Employee Director by reason of death, permanent
disability or retirement prior to one (1) year after the date of grant, no
Shares shall be subject to forfeiture. Certificates issued in respect of Shares
granted directly to Non-Employee Directors under this Plan and not pursuant to
the exercise of an Option under the Plan shall be registered in
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the name of the recipient, but shall bear the following legend prior to the
expiration of one (1) year after the date of grant:
"The transferability of this Certificate and the shares
of common stock represented hereby is restricted and the shares are
subject to the further terms and conditions contained in the 1996 Stock
Plan for Non-Employee Directors of American Science and Engineering,
Inc. (the "Company"). Copies of said Plan are on file at the Company's
offices in Billerica, Massachusetts."
In order to enforce the restrictions, terms and conditions on such Shares, the
Board of Directors may require each recipient thereof, immediately upon receipt
of a certificate or certificates representing such Shares, to deposit such
certificates together with stock powers and other instructions of transfer as
the Board of Directors may require, appropriately endorsed in blank, with the
Corporation as escrow agent under an escrow agreement in such form as shall be
determined by the Board. Shares not subject to Options may be subject to an
agreement between the Corporation and the holder upon such terms and conditions
not inconsistent with this Plan as the Board of Directors may determine.
(b) Option Agreement. Each Option granted under this Plan shall be
evidenced by an Option agreement between the Corporation and the Option holder
and shall be upon such terms and conditions not inconsistent with this Plan as
the Board of Directors may determine.
(c) Price. The price at which any Shares may be purchased pursuant to
the exercise of an Option shall be the Fair Market Value of the Shares on the
date of the grant of the Option, but in no event shall the price be less than
the par value of the Shares.
(d) Exercise of Option. Subject to Section 4 of this Plan, each
Option granted under this Plan may be exercised in full at one time or in part
from time to time only during the Option Exercise Period by the giving of
written notice, signed by the person or persons exercising the Option, to the
Corporation stating the numbers of Shares with respect to which the Option is
being exercised, accompanied by full payment for such Shares pursuant to Section
7(a) hereof; provided however, (i) if a person to whom an Option has been
granted ceases to be a Non-Employee Director during the Option Exercise Period
by reason of retirement, death or any reason other than termination for cause,
such Option shall be exercisable by him or her or by the executors,
administrators, legatees or distributees of his or her estate until the earlier
of (A) the end of the Option Exercise Period or (B) 36 months following the
Termination Date; and (ii) if a person to whom an Option has been granted ceases
to be a Non-Employee Director of the Corporation by reason of termination for
cause, such Option shall terminate 90 days following the Termination Date.
Termination for cause shall be defined as termination on account of any act of
(i) fraud or intentional misrepresentation, (ii) embezzlement, misappropriation
or conversion of assets or opportunities of the Corporation or any Subsidiary,
or (iii) breach of fiduciary duty. Such Option shall terminate immediately and
shall never be exercisable if the person to whom the Option has been granted
ceases to be a Non-Employee Director by reason of termination for cause prior to
the commencement of the Option Exercise Period. If the person to whom the Option
has been granted ceases to be a Non-Employee Director by reason of
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<PAGE> 5
retirement, death or any other reason other than termination for cause prior to
the commencement of the Option Exercise Period, at the commencement of the
Option Exercise Period, the Option shall be exercisable for that percentage of
the total number of Shares subject to the Option equal to the percentage of the
year since the date of grant of the Option which has elapsed until the
Termination Date. The percentage of the year which has elapsed shall be
determined by dividing the number of full months which have elapsed since the
date of grant of the Option until the Termination Date by twelve (12).
(e) Non-Assignability. No Option or right or interest in an Option
shall be assignable or transferable by the holder except by will or the laws of
descent and distribution and during the lifetime of the holder shall be
exercisable only by him or her.
9. Change of Control Provisions.
(a) Notwithstanding any other provision of this Plan to the contrary,
in the event of a Change of Control, any Shares not subject to Options which are
forfeitable as of the day prior to the date such Change of Control is determined
to have occurred shall no longer be forfeitable, and any Options outstanding as
of the day prior to the date such Change of Control is determined to have
occurred and not then exercisable shall become fully exercisable to the full
extent of the original grant.
(b) A "Change in Control" shall mean:
(i) there shall have been consummated (a) any consolidation or
merger of the Corporation in which the Corporation is not the
continuing or surviving entity pursuant to which the Shares are
converted into cash, securities or other property, other than a
merger of the Corporation in which the ownership by the
Corporation's stockholders of the securities in the surviving entity
is in the same proportion as the ownership by the Corporation's
stockholders of the stock in the Corporation immediately prior to
the merger or (b) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or
substantially all of the assets of the Corporation; or
(ii) the stockholders of the Corporation have approved any plan
or proposal for the liquidation or dissolution of the Corporation;
or
(iii) any person (as that term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) has become the beneficial owner (within the meaning of
Rule 13d-3 promulgated under the 1934 Act) of 20% or more of the
Corporation's outstanding Shares; or
(iv) that during any period of two consecutive years, individuals
who, at the beginning of such period, constitute the entire Board of
Directors of the Corporation shall cease, for any reason, to
constitute a majority thereof, unless the election, or the
nomination for election by the Corporation's stockholders, of each
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<PAGE> 6
new director was approved by a vote of at least three-quarters of
the directors then still in office who were directors at the
beginning of the period.
10. Payment.
(a) The purchase price of Shares upon exercise of an Option shall be
paid by the Option holder in full upon exercise and may be paid (i) in cash,
(ii) by delivery of Shares valued at Fair Market Value on the date of exercise,
including, to the extent permitted under Rule 16b-3 or any successor Rule under
the Exchange Act exempting certain transactions from the short swing trading
provisions of Section 16 of the Exchange Act, by way of so-called "cashless
exercise" and the netting of the number of Shares issuable upon exercise against
that number of Shares subject to the Option having an aggregate Fair Market
Value equal to the aggregate exercise price, or (iii) any combination of cash
and Shares, as the Board of Directors may determine.
(b) No Shares shall be granted under this Plan or issued or
transferred upon exercise of any Option under this Plan unless and until all
legal requirements applicable to the issuance or transfer of such Shares and
such other requirements as are consistent with the Plan have been complied with
to the satisfaction of the Board of Directors, including without limitation,
those described in Section 10 hereof.
11. Stock Adjustments.
(a) If the Corporation 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 Corporation is not the
surviving corporation, the board of directors of the surviving corporation)
shall have the power to make arrangements, which shall be binding upon the
holders of unexpired Options, for the substitution of new options for, or the
assumption by another corporation of, any unexpired Options 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 stock payable in Shares, the outstanding Shares of the Corporation are
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Corporation, the Board of Directors
shall conclusively determine the appropriate adjustment in the exercise prices
of outstanding Options and in the number and kind of shares as to which
outstanding Options shall be exercisable, in such manner as to result in the
Options being exercisable for that number and kind of shares at the same
aggregate exercise price as the Option holders would have received had they
exercised their Options and had they been treated as stockholders with respect
to all Shares subject to Options immediately prior to such recapitalization,
reclassification, stock split-up, combination of shares, separation or dividend.
(c) In the event of a transaction of the type described in paragraphs
(a) and (b) above, the total number of Shares which may be granted under this
Plan, either directly or on which Options may be granted, shall be appropriately
adjusted by the Board of Directors.
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<PAGE> 7
12. No Rights Other Than Those Expressly Created. Neither this Plan nor
any action taken hereunder shall be construed as (i) giving any Option holder or
stockholder any right to continue to be affiliated with the Corporation, (ii)
giving any Option holder any equity or interest of any kind in any assets of the
Corporation, or (iii) creating a trust of any kind or a fiduciary relationship
of any kind between the Corporation and any such person. No Option holder shall
have any of the rights of a stockholder with respect to Shares covered by an
Option until such time as the Option has been exercised and Shares have been
issued to such person.
13. Miscellaneous.
(a) Withholding of Taxes. Pursuant to applicable federal, state,
local or foreign laws, the Corporation may be required to collect income or
other taxes upon the grant of Shares or grant of an Option to, or exercise of an
Option by, a holder. The Corporation may require, as a condition to the grant of
Shares or exercise of an Option, that the recipient pay the Corporation, at such
time as the Board of Directors determines, the amount of any taxes which the
Board of Directors may determine is required to be withheld.
(b) Securities Law Compliance. Upon grant of Shares or exercise of an
Option, the holder shall be required to make such representations and furnish
such information as may, in the opinion of counsel for the Corporation, be
appropriate to permit the Corporation to issue or transfer the Shares in
compliance with the provisions of applicable federal or state securities laws.
The Corporation, in its discretion, may postpone the issuance and delivery of
Shares hereunder until completion of such registration or other qualification of
such Shares under any federal or state laws, or stock exchange listing, as the
Corporation may consider appropriate. The Corporation is not obligated to
register or qualify the Shares under federal or state securities laws and may
refuse to issue such Shares if neither registration nor exemption therefrom is
practical. The Board of Directors may require that prior to the issuance or
transfer of any Shares hereunder, the recipient enter into a written agreement
to comply with any restrictions on subsequent disposition that the Board of
Directors or the Corporation deems necessary or advisable under any applicable
federal and state securities laws. Certificates representing the Shares issued
hereunder may be legended to reflect such restrictions.
(c) Indemnity. The Board of Directors shall not be liable for any
act, omission, interpretation, construction or determination made in good faith
in connection with their responsibilities with respect to the Plan, and the
Corporation hereby agrees to indemnify the members of the Board of Directors, in
respect of any claim, loss, damage, or expense (including counsel fees) arising
from any such act, omission, interpretation, construction or determination to
the full extent permitted by law.
(d) Options Not Deemed Incentive Stock Options. Options granted under
the Plan shall not be deemed incentive stock options as that term is defined in
Section 422A of the Internal Revenue Code of 1986, as amended.
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<PAGE> 8
14. Effective Date; Amendment; Termination.
(a) The effective date of this Plan shall be the date of the approval
of stockholders of the Corporation holding at least a majority of the voting
stock of the Corporation present or represented and entitled to vote at a
meeting of the stockholders.
(b) The Board of Directors may at any time, and from time to time,
amend, suspend or terminate this Plan in whole or in part, provided, however,
that so long as there is a requirement under Rule 16b-3 or any successor Rule
under the Exchange Act for stockholder approval of the Plan and certain
amendments thereto, any such amendment which (i) materially increases the
benefits accruing to participants in the Plan, (ii) materially increases the
number of Shares which may be granted or be subject to Options granted under the
Plan, or (iii) materially modifies the requirements for eligibility to
participate in the Plan, shall be subject to stockholder approval; and provided
further, that, the provisions of this Plan relating to the amount and price of
securities to be awarded and the timing of such awards may not be amended more
than once every six months, other than to comport with changes in the Internal
Revenue Code of 1986, as amended, the Employee Retirement Income Security Act,
or the rules thereunder. However, except as provided herein, no amendment,
suspension or termination of this Plan may affect the rights of any person to
whom Shares or an Option have been granted without such person's consent.
(c) This Plan shall terminate five years from its effective date, and
no Shares or Options shall be granted under this Plan thereafter, but such
termination shall not affect the validity of Options granted prior to the date
of termination.
Date of Board of Directors Adoption: ___________, 1996
The undersigned, ____________________, being the Clerk of American
Science and Engineering, Inc., hereby certifies that the within Plan is a true
and correct copy of the American Science and Engineering, Inc. 1996 Stock Plan
for Non-Employee Directors.
__________________________________
Name: ________________, Clerk
Date of Stockholder Approval: __________ __, 1996
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