<PAGE> 1
As filed with the Securities and Exchange Commission on July 30, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
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)
MASSACHUSETTS 04-2440991
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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)
-------------------------
Jeffrey A. Bernfeld, 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) 856-8200
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/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If the delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
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<TABLE>
<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
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<S> <C> <C> <C> <C>
Common Stock, $.66 2/3 par value per share..... 267,183 shares $11.69 $3,123,369 $1,077.02
==============================================================================================================================
</TABLE>
(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 July 25, 1996.
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 number of pages . Exhibit Index at Page .
<PAGE> 2
PROSPECTUS
AMERICAN SCIENCE AND ENGINEERING, INC.
-------------------------
267,183 Shares of Common Stock
(Par Value $0.66 2/3 Per Share)
All of the shares of Common Stock offered hereby will be 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 July 25, 1996, the average of the reported high and
low prices of the Common Stock on the American Stock Exchange was $11.69 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" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR A
DISCUSSION OF MATERIAL RISKS IN CONNECTION WITH THE PURCHASE OF THE COMMON STOCK
OFFERED HEREBY.
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.
The date of this Prospectus is July , 1996.
<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:
Jeffrey A. Bernfeld, Esquire, Vice President, General Counsel (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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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 services with respect to,
x-ray inspection systems utilizing proprietary x-ray technology. The Company
applies its backscatter and transmission x-ray detection and imaging technology
to governmental and commercial applications, particularly detection of illegal
drugs and other contraband, aviation security, executive security, mail and
parcel screening, protection of high risk government offices, special event
security and other security inspection applications. The Company, which competes
at the high end of the market, has traditionally offered its systems at a price
higher than that of competing systems that the Company believes are less capable
than its systems. The Company has recently brought to market new products and
focused on selling products that the Company believes have features that create
product differentiation and potential competitive advantage. In addition, the
Company's CargoSearch(TM) products are priced lower than its competitors'
comparable products.
The Company is winding down its electronic control systems business,
serving only existing customers at this time. Such business is no longer
material to the Company's operations or financial results.
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."
THE OFFERING
<TABLE>
<S> <C>
Shares offered by
Selling Stockholders.................. 267,183 shares
Shares outstanding as of
July 5, 1996.......................... 4,510,847
AMEX Symbol............................. ASE
Proceeds................................ The Company will not
receive any proceeds of
this offering.
</TABLE>
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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.
LIMITED RECENT HISTORY OF PROFITABILITY
Prior to fiscal 1996, during which the Company had net income of
$802,000, the Company had net losses in five of its prior 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.
CUSTOMER CONCENTRATION
The Company's business is heavily dependent upon sales to agencies of
the United States government.
During fiscal 1996, more than half of x-ray products sales were under
direct contracts and subcontracts with U.S. federal agencies. The Company's
largest customer, the U.S. Customs Service, which is an agency of the United
States government, accounted for approximately 16% of the Company's net revenues
for fiscal 1996. Termination of this relationship would have a material adverse
effect on the Company. Generally, the government may terminate its contracts
with the Company 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 18%, 29%, 28%, 44% and 37% of the Company's net revenues for the
fiscal years ended March 29, 1996, March 31, 1995, April 1, 1994, March 31, 1993
and March 31, 1992, respectively. The Company anticipates 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.
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LIMITED SOURCES OF MATERIALS AND SERVICES
The Company currently procures certain critical components for its products from
single or limited sources. For example, the Company currently procures certain
of its X-ray tubes and related control devices from two sources; each such
source is the Company's sole supplier of particular tubes. Both of these sources
are located outside the United States. The Company has multiple sources,
including sources located in the United States, of other types of x-ray tubes.
In addition, the Company relies on single suppliers for the assembly of
proprietary circuit boards and all of the Company's scintillating material.
While long term supply contracts exist with a few single-source vendors, the
Company generally purchases these materials on a purchase order basis, and the
Company does not carry significant inventories of these materials. The inability
of the Company to obtain these materials in reliable, high-quality quantities
would result in significant delays or reductions in product shipments. The
Company from time to time experiences delays in receiving components from
vendors, and no assurance can be given that similar problems will not recur. If
the Company were to change certain of its vendors, a qualification process would
be required for the potential new suppliers, creating potential delays or
reductions in product shipments. Further, single source vendors could impose
significant price increases. The Company's reliance on single or limited sources
involves several additional risks, including reduced control over the timely
delivery, reliability, and quality of critical components. Any inability of the
Company to obtain timely deliveries of materials of acceptable quality, or a
significant increase in the prices of materials, could materially and adversely
affect the Company's operating results.
EXPOSURE TO VOLATILE FEDERAL FUNDING PRIORITIES
The Company does a significant amount of business with agencies of the United
States government. See "RISK FACTORS-Customer Concentration." There can be no
assurance that the Company's existing relationships with Federal agencies will
continue, nor that the agencies themselves will continue to exist in their
present form. Further, national priorities are subject to change and often do
change, especially in response to the four-year Presidential election cycle.
Such changes could include a shift in the current priorities that have led to
demand for the Company's products. Additionally, the Company is exposed to the
Federal budget approval and appropriation cycle, which may be subject to
significant and unpredictable delays. All of these factors may materially and
adversely affect the Company's operating results.
COMPETITOR LITIGATION AND INTELLECTUAL PROPERTY CLAIMS
The X-ray security industry is characterized by vigorous competition, in part
through the pursuit and enforcement of intellectual property rights. Initiating
or defending against the enforcement of such rights may result in significant,
protracted, and costly litigation. At present, the Company is pursuing an
aggressive and complex intellectual property case against its former President
and founder. Also, a competitor recently filed a request for a declaratory
judgment that its product does not infringe upon certain of the Company's
patents. The Company expects
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intellectual property disputes to be an ordinary part of its business for the
foreseeable future. The Company may initiate claims or litigation against third
parties for infringement of the Company's intellectual property rights, or to
establish the validity of the Company's property rights. There can be no
assurance that the Company will prevail in any such action. Litigation by or
against the Company could result in significant expense to the Company and
divert the efforts of technical and management personnel, whether or not such
litigation results in a favorable outcome for the Company. In the event of an
adverse result in any such litigation, the Company could be required to pay
substantial damages, cease the manufacture, use and sale of infringing products,
expend significant resources to develop non-infringing technology, discontinue
the use of certain processes, or obtain licenses for the infringing technology.
However, there can be no assurance that licenses will be offered or that the
terms of any offered license will be acceptable to the Company; that the Company
will be successful in developing non-infringing technology; or that the cost or
time required to develop such technology will be reasonable. The inability to
obtain a license from a third party for technology used by the Company could
cause the Company to incur substantial liabilities and to suspend the
manufacture of infringing products. In the event that a third party makes a
successful claim of intellectual property infringement against the Company or
its customers, and a license is not made available to the Company on
commercially reasonable terms, or if the Company is unable to protect its
intellectual property rights against infringement by a third party, the
Company's business, financial condition, and operating results may be adversely
affected.
PRODUCT PERFORMANCE LIABILITY
The Company's products are often used to detect the presence of bombs, weapons,
or other threats to personal safety in buildings, mail and delivery parcels,
aircraft luggage and air cargo, border crossings, public gatherings, and other
high-security venues. Operator error, misuse of the Company's equipment or a
malfunction of that equipment may lead to personal injury, loss of life, and
extensive property damage and resulting claims against the Company. The Company
is not aware that any such claims have been filed or are planned. The Company
maintains product liability, umbrella liability, and special aircraft products
liability insurance to provide a measure of protection against claims alleging
product malfunction or inadequate design. However, should any such claim be
made, there is no assurance that the Company's insurance protection is adequate
to protect against any and all future potential product liability claims.
Moreover, there can be no assurance that adequate product liability insurance
coverage will continue to be available at a reasonable cost. To the degree
liability claims exceed the current or available insurance coverages, there
could be a material adverse effect on the Company's business, financial
condition, and operating results. Additionally, regardless of the adequacy of
the Company's product liability insurance protection, any significant claim may
have a severely negative effect on the Company's industry and market reputation,
leading to a substantial decrease in demand for the Company's products. Such an
occurrence would have a material and adverse effect on the Company's revenues
and operating results.
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<PAGE> 8
RESEARCH AND DEVELOPMENT FUNDING
The Company competes in part based on the value of its advanced technology. It
is the Company's intention to remain on the leading edge of technology in its
fields of interest through research and development. There can be no assurance
that the Company will be able to continue to innovate, to bring its innovations
to market on a timely or cost effective basis, or that its innovations will not
be surpassed by other competitors or new technologies. Furthermore, the Company
must either generate its own research and development funding or obtain funds
from outside sources, primarily the U.S. Government. The Company competes with
many other companies and research institutions for government funding.
Additionally, government funding priorities are subject to frequent changes. See
"RISK FACTORS-Exposure to Volatile Federal Funding Priorities." There can be no
assurance that the Company will be able to generate the funds necessary to
support its research and development activities from operations or other
potential private sources, or that such funds will be available from the
government. The inability of the Company to fund its research and development
activities, or the failure of such activities to generate successful technology
accepted in the marketplace, may have a material adverse effect on the Company's
business and operations.
GLOBAL POLITICAL AND ECONOMIC TRENDS
The Company's products are used primarily to detect drugs, explosives and other
contraband. The willingness of customers to pay for solutions to these problems
is subject in part to worldwide political and economic developments. Terrorist
incidents and other widely publicized events, the election or replacement of
influential politicians, the perceived seriousness of the problems addressed by
the Company's products, media coverage of these issues, budgetary and tax
concerns, exchange rates, diplomatic relations and the like may materially
affect the demand for the Company's products.
RAPID GROWTH
The Company has been experiencing rapid growth, with sales increasing over 37%
from fiscal year 1995 to fiscal year 1996. If achieved, continuing growth at
that rate may strain the Company's resources and limit the Company's ability to
address market opportunities. Continued growth may require significant
additional hiring, with concomitant time and attention paid to recruiting,
training, motivating and managing significant numbers of new employees.
Continued growth may also require expansion of the Company's physical plant and
capital equipment base, require the expansion of the Company's communications
and financial control systems, and other overhead support, and require
additional capital in order to fund such growth and the addition of such
resources and systems. There can be no assurance that such additional human,
financial and material resources will be available to the Company on reasonable
terms or that such resources can be integrated into the Company's operations
quickly and economically enough to allow the Company to continue to respond
profitably to expanding opportunities.
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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. 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 $10.03, in the net tangible book value per
share of Common Stock from the assumed selling price of the Common Stock
($11.69, based on the average of the reported high and low price of the Common
Stock on the American Stock Exchange on July 25, 1996). 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 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 5, 1996, the Company had 4,510,847 shares of Common Stock
outstanding, of which 4,309,890 shares are freely tradeable without restriction
under the Securities Act by persons other than "affiliates" of the Company. The
remaining 200,957 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 1,234,000
shares of Common Stock pursuant to the Company's existing stock option plans. As
of July 1, 1996, there were outstanding options to purchase an aggregate of
591,963 shares of Common Stock. The exercise prices per share of these options
range from $2.88 to $10.25, with a weighted average exercise price of $5.80. Of
the 591,963 shares issuable upon exercise of options, 260,213 shares will be
freely tradeable under the Securities Act, and the remaining 331,750 shares
issuable upon exercise of options will be subject to the restrictions of Rule
144. The Company has reserved for issuance 94,167 shares of Common Stock
pursuant to warrants to purchase Common Stock issued in connection with certain
equity and debt financing transactions. The exercise prices of the warrants
range from $5.875 to $6.25 per share. Upon exercise of the warrants, all 94,167
shares will be freely tradeable under the Securities Act. The average daily
trading volume of the Company's Common Stock for the period from January 1, 1996
through June 30, 1996 was 8,230 shares. The average of the reported high and low
price of the Common Stock on the American Stock Exchange on July 25, 1996 was
$11.69. Sales of
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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
The persons whose names are set forth below are the selling stockholders
(collectively, the "Selling Stockholders") whose shares of Common Stock are
being offered hereby. Certain of the Selling Stockholders are officers and/or
directors of the Company.
Certain of the Selling Stockholders loaned the Company an aggregate of
$650,000 pursuant to a certain Loan and Security Agreement dated as of April 13,
1995 (the "Loan Agreement"). As partial consideration for the making of such
loan, the Company issued such Selling Stockholders an aggregate of 6,500 shares
of Common Stock (the "Shares") and warrants to purchase an aggregate of 65,000
shares of Common Stock (the "Warrants"), all pursuant to the Loan Agreement. The
Company is obligated under the Loan Agreement to register the Shares and the
Common Stock underlying the Warrants under the Securities Act of 1933 for resale
by the Selling Stockholders.
The Company believes that the Loan Agreement was negotiated at
arms-length, and that the terms and the conditions of the Loan Agreement are no
less favorable to the Company than those which the Company could have obtained
in a transaction with independent third parties.
The following table sets forth the name of each of the Selling
Stockholders and (i) to the Company's knowledge, the number of shares of Common
Stock that each Selling Stockholder beneficially owned as of July 1, 1996,
including options and warrants exercisable within 60 days; (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.
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<TABLE>
<CAPTION>
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Shares Beneficially Maximum Number of Shares
Owned Number of Shares of Common Stock
Selling Stockholder's as of Which May be Owned After the
Name & Relationship July 1, 1996 Offered Hereunder Offering(1)
=================================================================================================
<S> <C> <C> <C>
Ralph S. Sheridan,
President and a Director of
the Company 296,500(3)(8) 196,500(2)(3) -0-
Donald J. McCarren,
Director of the Company 36,581(3)(8) 9,281(3)(4) -0-
Hamilton W. Helmer,
Director of the Company 28,781(8) 3,781(5) -0-
Herman Feshbach,
Chairman of the Board 14,040(8) 5,070(5) -0-
Alfred M. Gladen,
Director of the Company 35,055(3) 35,055(3)(6) -0-
Ernest J. Moniz,
Director of the Company
until September 1995 2,926 1,726(5) -0-
Marie Spaulding,
Director of the Company
until September 1995 3,110 1,726(5) -0-
Lee C. Steele,
Chief Financial Officer
of the Company 33,250(3)(8) 8,250(3) -0-
Peter W. Harris, V.P.,
Sales and Marketing of
the Company 22,750(3)(8) 2,750(3) -0-
Samuel International
Investors, L.D.C. 3,044(9) 3,044(7) -0-
=================================================================================================
</TABLE>
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(1) Assumes the sale of all shares of Common Stock registered hereunder,
although, to the Company's knowledge, none of the Selling Stockholders
has made any arrangements to sell any shares of Common Stock at this
time.
(2) Includes 174,500 shares of Common Stock issued to Mr. Sheridan as
compensation for services rendered, of which 160,000 shares were issued
pursuant to Mr. Sheridan's Employment Agreement with the Company and of
which 14,500 shares were issued as bonus compensation.
(3) Includes 20,000, 5,000, 7,500, 2,500 and 30,000 shares of Common Stock
issuable pursuant to the Warrants to Mr. Sheridan, Mr. McCarren, Mr.
Steele, Mr. Harris, and Mr. Gladen, respectively.
(4) Includes 3781 shares issued to Mr. McCarren as compensation for serving
as a Director of the Company.
(5) Represents shares issued as compensation for serving as a Director of
the Company.
(6) Includes 2055 shares issued to Mr. Gladen as compensation on serving as
a Director of the Company.
(7) Represents shares issued to such selling stockholder as a result of an
adjustment to the per share purchase price of Common Stock previously
acquired from the Company by such selling stockholder pursuant to a
certain Offshore Subscription Agreement between the Company and such
selling stockholder.
(8) Includes options to purchase the following number of shares of Common
Stock for each individual: Mr. Sheridan - 80,000; Mr. McCarren -
26,000; Mr. Helmer - 25,000; Dr. Feshbach - 5,000; Mr. Steele - 25,000;
and Mr. Harris - 20,000.
(9) The Company has been unable to determine the precise holdings of Samuel
International Investors, L.D.C. The number of shares indicated
represents the Company's best estimate.
The Company will pay the expenses of registering the shares of Common
Stock being sold hereunder, which are estimated to be $13,377.02.
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 has any agreement, arrangement, or understanding with any broker or
dealer entered into prior to
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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.
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.
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:
-12-
<PAGE> 14
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
March 29, 1996;
(b) The Company's Definitive Proxy Statement for its 1995 Annual
Meeting of Stockholders filed with the Securities and Exchange
Commission on August 11, 1995;
(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.
-13-
<PAGE> 15
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
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.
<TABLE>
<S> <C>
Securities and Exchange Commission Fee ............... $ 1,077.02
Legal Services ....................................... $10,000.00*
Accounting Services................................... $ 1,000.00*
Reproduction Expenses ................................ $ 300.00*
Miscellaneous ........................................ $ 1,000.00*
----------
Total ................................ $13,377.02
</TABLE>
* Estimated.
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> 16
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
4.1 Restated Articles of Organization of the Company, 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.
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 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> 17
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 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; and
(iii) 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; and
(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> 18
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 July 26,
1996.
AMERICAN SCIENCE AND ENGINEERING, INC.
(Registrant)
By: /s/ Ralph S. Sheridan
----------------------------
Ralph S. Sheridan, President
<PAGE> 19
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 A.
Bernfeld, or any of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his 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.
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
- ------------------------ 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>
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description of Exhibit Page
- ------- ---------------------- ----
<S> <C> <C>
4.1 Restated Articles of Organization of the Company, 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.
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 (appearing above the signatures of officers and
directors).
</TABLE>
- -------------------------------
* Incorporated by reference and not filed herewith.
<PAGE> 1
EXHIBIT 4.1
THE COMMONWEALTH OF MASSACHUSETTS
JOHN F. X. DAVOREN
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
---------------
We, Martin Annis , President and
John E. Rogerson , Clerk of
American Science and Engineering, Inc.
--------------------------------------
(Name of Corporation)
located at 955 Massachusetts Avenue, Cambridge, Massachusetts
--------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on March 20, 1973, by
vote of
231,527 shares of common out of 414,445 shares outstanding,
- ----------- --------------- -------------
(Class of Stock)
- ----------- --------------- -------------
(Class of Stock)
- ----------- --------------- -------------
(Class of Stock)
being at least a majority of each class outstanding and entitled to vote
thereon:
CROSS OUT
INAPPLICABLE
CLAUSE
VOTED: To amend the company's Articles of Organization to increase the
- ----- authorized common stock to 3,000,000 shares, with a par value of
$.66 2/3 a share, such amendment to be effective on March 28, 1973.
1 For amendments adopted pursuant to Chapter 156B, Section 70.
2 For amendments adopted pursuant to Chapter 156B, Section 71.
NOTE: Amendments for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be on 8 1/2" wide x 11" high paper and must
have a left hand margin 1 inch wide for binding. Only one side should
be used.
<PAGE> 2
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this
28 day of March , in the year 1973.
/s/ Martin Annis President
------------------------
/s/ John Rogerson Clerk
------------------------
<PAGE> 3
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $500.00
having been paid, said articles are deemed to have
been filed with me this 28th
day of March , 1973
/s/ JOHN F.X. DAVOREN
--------------------------------
JOHN F.X. DAVOREN
Secretary of the Commonwealth
State House, Boston, Mass.
[SEAL: A TRUE COPY ATTEST
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
DATE: 3/11/96 CLERK ]
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
to: John E. Rogerson, Esq.
Hutchins & Wheeler
One Boston Place
Boston, Massachusetts 02108
<PAGE> 4
THE COMMONWEALTH OF MASSACHUSETTS
PAUL GUZZI
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
02133
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth within
sixty days after the date of vote of stockholders adopting the amendment. The
fee for filing this certificate is prescribed by General Laws, Chapter 156B,
Section 114. Make check payable to the Commonwealth of Massachusetts.
-------------------
We, MARTIN ANNIS , President/ and
SYLVIA J. COX , Clerk/ of
AMERICAN SCIENCE AND ENGINEERING, INC.
- -------------------------------------------------------------------------------
(Name of Corporation)
located at 955 Massachusetts Avenue, Cambridge,
---------------------------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on May 17 , 1976
by vote of
1,307,887 shares of $.66 2/3 par value/Common out of 2,105,190 shares
- --------- ------------------------- ----------
outstanding;
(Class of Stock)
- -------- xxxxxx------------------------------xxxxxx-----------xxxxxxxxxxxxxxxx
(Class of Stock)
- -------- xxxxxx------------------------------xxxxxx-----------xxxxxxxxxxxxxxxx
(Class of Stock)
being at least a majority of each class outstanding and entitled to vote
thereon(1):
CROSS OUT xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
INAPPLICABLE xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
CLAUSE xxxxxxxxxxxxxx(2)
VOTED: That the number of shares of common stock, par value $.66 2/3 per share,
which the corporation is authorized to issue shall be increased from
3,000,000 to 8,000,000 shares.
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: Amendments for which the space provided above is not sufficient should be
set out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets shall be on 8 1/2" wide x 11" high paper and must have a left
hand margin 1 inch wide for binding. Only one side should be used.
<PAGE> 5
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this
17th day of May , in the year 1976.
/s/ MARTIN ANNIS President
- -----------------------------------------------------------------
/s/ SYLVIA COX Clerk
- --------------------------------------------------------------------
<PAGE> 6
RECEIVED
MAY 17,1976
CORPORATION DIVISION
SECRETARY'S OFFICE
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment and, the filing fee
in the amount of $2,500.00 having been paid, said articles are deemed to have
been filed with me this 17th day of May, 1976.
[Box: A TRUE COPY ATTEST
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
3/11/96 CLERK
------- -------------]
/s/ Paul Guzzi
------------------------------------
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Massachusetts
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO:
Broude & Hochberg
------------------------------------------------
75 Federal Street
------------------------------------------------
Boston, Massachusetts 02110
------------------------------------------------
Copy Mailed MAY 21, 1976
<PAGE> 7
THE COMMONWEALTH OF MASSACHUSETTS
PAUL GUZZI
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
02133
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
---------------
We, Martin Annis , President and
Sylvia J. Cox , Clerk of
American Science and Engineering, Inc.
--------------------------------------
(Name of Corporation)
located at 955 Massachusetts Avenue, Cambridge, Massachusetts,
---------------------------------------------------
do hereby certify that the following amendment to the articles of organization
of the corporation was duly adopted at a meeting held on September 28, 1976*,
by vote of
1,714,414 shares of common out of 2,481,190 shares outstanding, for
- ----------- ----------- -------------
(Class of Stock)
Item 1, and
1,732,514 shares of common out of 2,481,190 shares outstanding, for
- ----------- ----------- -------------
(Class of Stock)
Item 2
- ----------- ----------- -------------
(Class of Stock)
being at least
CROSS OUT two-thirds of each class outstanding and entitled to
INAPPLICABLE vote thereon and of each class or series of stock whose
CLAUSE rights are adversely effected thereby. (2)
* as adjourned to October 19, 1976
1 For amendments adopted pursuant to Chapter 156B, Section 70
2 For amendments adopted pursuant to Chapter 156B, Section 71
NOTE: Amendments for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets shall be 8 1/2" wide x 11" high paper and must
have a left hand margin 1 inch wide for binding. Only one side should
be used.
<PAGE> 8
<TABLE>
<CAPTION>
<S> <C>
Item 1 - VOTED: To amend the Restated Articles of Organization adopted September 6,
----- 1967, by striking the following clause from the sentence which appears
as the third full paragraph on Continuation Page 2A of the said Articles:
" . . . but not to engage in a real estate business within the
meaning of Section 7 of Chapter 156 of the General Law."
so that the said paragraph, as amended, shall read as follows:
"To lease, purchase or otherwise acquire and to use, hold,
sell, convey, lease or otherwise dispose of any real estate".
Item 2 - VOTED: To amend the Restated Articles of Organization adopted September 6, 1967,
----- by inserting as a separate paragraph at the end of Continuation Page 2L of
said Articles as follows:
"The Corporation may be a partner or limited partner in any
business enterprise which this Corporation would have the
power to conduct itself."
</TABLE>
The foregoing amendments will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of the General
Laws unless these articles specify, in accordance with the votes adopting the
amendments, a later effective date not more than thirty days after such filing,
in which event the amendments will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this
21st day of October ,in the year 1976.
/s/ Martin Annis President
------------------------
/s/ Sylvia J. Cox Clerk
------------------------
<PAGE> 9
RECEIVED
OCTOBER 29, 1976
CORPORATION DIVISION
SECRETARY'S OFFICE
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
[BOX: A TRUE COPY ATTEST
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
DATE 3/11/96 CLERK ]
------- --------
I hereby approve the within articles of amendment and, the filing fee
in the amount of $50.00 having been paid, said articles are deemed to have been
filed with me this 29th day of October, 1976.
PAUL GUZZI
Secretary of the Commonwealth
State House, Boston, Mass.
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
to:
Broude & Hochberg
75 Federal Street
Boston, Massachusetts 02110
Copy Mailed
<PAGE> 10
THE COMMONWEALTH OF MASSACHUSETTS
KEVIN H. WHITE
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
restated articles of organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114. Make check payable to
the Commonwealth of Massachusetts.
---------------------
We, Martin Annis , President and
John E. Rogerson ,Clerk of
AMERICAN SCIENCE AND ENGINEERING, INC.
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 11 Carleton Street, Cambridge
----------------------------------------------------------------------
do hereby certify that the following restatement of the articles of
organization of the corporation was duly adopted at a meeting held on September
6, 1967, by vote of
15,143 shares of Common out of 16,647 shares outstanding,
- -------------- --------------- ------------
(Class of Stock)
shares of out of shares outstanding, and
- -------------- --------------- ------------
(Class of Stock)
shares of out of shares outstanding,
- -------------- --------------- ------------
(Class of Stock)
being at least two-thirds of each class outstanding and entitled to vote and of
each class or series of stock adversely affected thereby:
1. The name by which the corporation shall be known is:
American Science and Engineering, Inc.
2. The purposes for which the corporation is formed are as follows:
See continuation page 2A.
NOTE: Provisions for which the space provided under articles 2, 4, 5, and 6 is
not sufficient should be set out on continuation sheets to be numbered 2A, 2B,
etc. Indicate under each article where the provision is set out. Continuation
sheets shall be on 8 1/2" wide x 11" high paper and must have a left-hand
margin 1 inch wide for binding. Only one side should be used.
<PAGE> 11
<TABLE>
3 The total number of shares and the par value, if any, of each class of
stock which the corporation is authorized to issue is as follows:
<CAPTION>
WITHOUT PAR VALUE WITH PAR VALUE
----------------- --------------
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
- -------------- ---------------- ---------------- ---------
<S> <C> <C> <C>
Preferred 100,000 None
Common None 2,000,000 $0.66 2/3
</TABLE>
*4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting powers,
qualifications, special or relative rights or privileges as to each
class thereof and any series now established:
See Continuation Pages 2B to 2J inclusive.
*5. The restrictions, if any, imposed by the articles of organization upon
the transfer of shares of stock of any class are as follows:
None
*6. Other lawful provision, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
See Continuation Pages 2K and 2L
* If there are no such provisions, state "None."
<PAGE> 12
Continuation Page 2A
2. To acquire, hold, manage, buy and sell securities of other
corporations and enterprises of every kind; to engage in research and furnish
services in all fields, including without limitation, science and engineering,
and to engage directly or indirectly in the development, manufacture,
installation, purchase, sale or lease of machinery, appliances and devices of
all kinds which may be needed to carry on such research or which may be
developed or produced as a result thereof.
To design materials and equipment for use in education or otherwise, to
prepare working prototypes and detailed drawings of such materials and
equipment and to manufacture, install, purchase, sell, license the use of or
lease such designs or equipment; to discover, invent or acquire processes,
improvements, inventions, designs, patents, patent rights, and rights and
licenses, trademarks, trade names, copyrights and trade secrets applicable to
any of the foregoing, and to hold, use, sell, license the use of and otherwise
deal in or dispose of the same; to acquire, hold, use and dispose of, buy and
sell, and on commission or otherwise deal in personal property of whatever kind
and wherever situated, and rights and interests therein, including the purchase
of stock and securities of the corporation; to lend money, credit or security
to, to guarantee or assume the obligations of, and to aid in any other manner,
other concerns wherever or however organized, any obligation of which or any
interest in which is held by this corporation, or in the affairs or prosperity
of which this corporation has a lawful interest.
To lease, purchase, or otherwise acquire and to use, hold, sell,
convey, lease or otherwise dispose of, any real estate, but not to engage in a
real estate business within the meaning of Section 7 of Chapter 156 of the
General Laws.
In furtherance of and not in limitation of the foregoing purposes, this
corporation shall have all the general powers conferred by the laws of the
Commonwealth of Massachusetts and all powers necessary, desirable or incidental
to carrying out its corporate powers including specifically the power to pledge
or mortgage as security for borrowed money any property real or personal owned
by the corporation.
<PAGE> 13
Continuation Page 2B
4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting powers,
qualifications, special or relative rights or privileges as to each class
thereof and any series now established:
There shall be two classes of stock, consisting of Common Stock of the par
value of $0.66 2/3 per share and Preferred Stock without par value.
The Common Stock.
-----------------
The 20,000 shares of Common Stock of $10.00 par value authorized before
the adoption of these Restated Article of Organization shall be changed to
300,000 shares of Common Stock of the par value of $0.66 2/3 per share and the
number of authorized shares of Common Stock shall be increased by the adoption
of these Restated Articles to 2,000,000 shares of Common Stock of par value of
$0.66 2/3 per share as set forth in Article 3 above, and each share of the
20,000 shares of Common Stock of $10.00 par value which the Corporation was
authorized to issue before the adoption of these Restated Articles of
Organization, whether issued, unissued, or held in the treasury of the
Corporation, shall be changed into and become 15 shares of the Common Stock of
par value $0.66 2/3. The aggregate par value of the common shares of par value
$0.66 2/3 per share becoming outstanding by virtue of such change shall be the
same as the aggregate amount of the capital of the corporation represented by
the outstanding common shares of the par value of $10.00 per share so changed.
Holders of shares of the Common Stock of $0.66 2/3 value shall be entitled
to one vote for each share held on all questions on which shareholders are
entitled to vote, and shall vote as a separate class on any matter as to which
such class vote is required by the General Laws of Massachusetts or as to which
such class vote may be specified in the designation of the voting rights of any
series established under the class of Preferred Stock.
The No Par Preferred Stock.
---------------------------
(1) Series of Preferred Stock.
The Board of Directors shall have authority to divide the No Par
Preferred Stock into series, and to determine and fix the relative rights and
preferences of the shares of any series so established prior to the issuance
thereof, but only with respect to:
(a) The rate of dividend;
(b) The right of redemption and the price, terms and manner of
redemption;
(c) Special and relative rights on liquidation;
<PAGE> 14
continuation Page 2C
(d) Sinking or purchase fund provisions;
(e) Conversion rights, if the shares of any series are issued
with the privilege of conversion;
(f) Conditions under which the several series shall have
separate voting rights or no voting rights.
Except as to the matters expressly set forth above in this Paragraph
(1), all series of the No Par Preferred Stock of the corporation, whenever
designated and issued, shall have the same preferences, limitations and
relative rights and shall rank equally, share ratably and be identical in all
respects as to all matters.
All shares of any one series of No Par Preferred Stock hereinabove
authorized shall be alike in every particular, and each series thereof shall be
distinctly designated by letter or descriptive words or figures.
(2) Dividends.
Before any dividends shall be paid or set apart for payment upon the
Common Stock, the holders of No Par Preferred Stock shall be entitled to
receive dividends at the rate per annum specified as to each series pursuant to
Paragraph (1), payable quarterly upon such date as shall be specified as to
each series by the Board of Directors out of the unreserved earned surplus of
the corporation or out of any capital surplus legally available for the payment
of such dividends, when and as declared by the Board of Directors. Such
dividends shall accrue on each share of No Par Preferred Stock from the first
day of the dividend period following that in which such share is issued. All
dividends on No Par Preferred Stock shall be cumulative so that if the
corporation shall not pay the quarterly dividend, or any part thereof, on the
No Par Preferred Stock then issued and outstanding, such deficiency in the
dividend on the No Par Preferred Stock shall thereafter be fully paid, but
without interest, before any dividend shall be paid or set apart for payment on
the Common Stock.
Any dividend paid upon the No Par Preferred Stock at a time when any
accrued dividends for any prior period are delinquent shall be expressly
declared as a dividend in whole or partial payment of the accrued dividend for
the earliest period for which dividends are then delinquent, and shall be so
designated to each shareholder to whom payment is made.
(3) Voting Rights.
The holders of each series of No Par Preferred Stock shall be entitled
to such number of votes per share on all questions on which shareholders are
entitled to vote as specified pursuant to Paragraph
<PAGE> 15
Continuation Page 2D
(1), with respect to that series of No Par Preferred Stock. Holders of No Par
Preferred Stock, or of any series thereof, shall also have such right to vote as
a separate class as is provided by the General Laws of Massachusetts and as
shall be specified pursuant to Paragraph (1).
So long as any shares of Preferred Stock shall be outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of at least two-thirds of the aggregate number of shares of Preferred
Stock at the time outstanding, by an amendment to the Articles of Organization
or by merger or consolidation or in any other manner,
(i) authorize any class of stock ranking either as to payment of
dividends or distribution of assets, prior to the Preferred Stock; or
(ii) alter or change the preferences, special rights or powers
given to the Preferred Stock so as to affect such class of stock
adversely, but nothing herein contained shall required such a class
vote or consent (1) in connection with any increase in the total
number of authorized shares of Common Stock or Preferred Stock, (2) in
connection with the authorization or increase of any class of stock
ranking on a parity with the Preferred Stock, or (3) in connection
with the fixing of any of the particulars of shares of other series of
Preferred Stock that may be fixed by the Board of Directors; or
(iii) purchase or redeem less than all of the Preferred Stock at
the time outstanding unless the full dividends to which all shares of
the Preferred Stock of all series then outstanding shall then be
entitled shall have been paid or declared and a sum sufficient for the
payment thereof set apart;
provided, however, that no such vote or written consent of the holders of the
Preferred Stock shall be required if, at or prior to the time when the issuance
of any such prior stock is to be made or any such change is to take effect or
when any such purchase or redemption is to take effect, as the case may be,
provision is made for the redemption of all shares of Preferred Stock at the
time outstanding.
(4) Liquidation, Dissolution or Winding Up.
In case of voluntary or involuntary liquidation, dissolution or winding
up of the corporation, the holders of each series of No Par Preferred Stock
shall be entitled to receive out of the assets of the corporation in money or
money's worth the amount specified pursuant to Paragraph (1) with respect to
that series of No Par Preferred Stock, together with all accrued but unpaid
dividends thereon, before any of such assets shall be paid or distributed to
holders of Common Stock.
<PAGE> 16
Continuation Page 2E
(5) Redemption.
The following general redemption provisions shall apply to each series
of No Par Preferred Stock (hereinafter in this paragraph referred to as
"Series"): On or prior to the date fixed for redemption of a particular Series
as specified in the notice or redemption for said Series, the Corporation shall
deposit adequate funds for such redemption, in trust for the account of holders
of the Series to be redeemed, with a bank having trust powers or a trust
company in good standing and having capital, surplus and undivided profits
aggregating at least One Million Dollars ($1,000,000), and if the name and
address of such bank or trust company and the deposit of or intent to deposit
the redemption funds in such trust account shall have been stated in such
notice of redemption, then from and after the mailing of such notice and the
making of such deposit the shares of the Series called for redemption shall no
longer be deemed to be outstanding for any purpose whatsoever, and all rights
of the holders of such shares in or with respect to the corporation shall
forthwith cease and terminate except only the right of the holders of such
shares (a) to transfer such shares prior to the date fixed for redemption, (b)
to received out of said deposit the redemption price of such shares together
with accrued but unpaid dividends to the date fixed for redemption, without
interest, upon surrender of the certificate or certificates representing the
shares to be redeemed, and (c) if the shares of the Series were issued with the
privilege of conversion into Common Stock, to convert such shares into shares
of Common Stock at any time prior to the close of business on the fifth day
preceding the redemption date for such shares upon surrender of the certificate
or certificates representing the shares to be converted.
Any portion of the moneys so deposited by the corporation, in respect
of shares of the Series converted into Common Stock, shall be repaid to the
corporation upon its request.
Any moneys so deposited by the corporation which shall remain unclaimed
by the holders of the Series called for redemption and not converted shall, at
the end of six years after the date fixed for redemption, be paid to the
corporation upon its request, after which repayment the holders of the shares
so called for redemption shall no longer look to the said bank or trust company
for the payment of the redemption price but shall look only to the corporation
or to others, as may be, for the payment of any lawful claim for such moneys
which holders of said shares may still have.
(6) Conversion Rights.
The following general conversion provisions shall apply to each Series
of No Par Preferred Stock which is convertible into Common Stock (hereinafter,
in this paragraph, referred to as "Series"):
<PAGE> 17
Continuation Page 2F
(i) All shares of Common Stock issued upon conversion shall be
fully paid and non-assessable, and shall be free of all taxes, liens
and charges with respect to the issue thereof except taxes payable by
reason of issuance in a name other than that of the holder of the share
or shares converted and except as otherwise provided by applicable
provisions of the General Laws of Massachusetts.
(ii) The number of shares of Common Stock issuable upon
conversion of a particular Series at any time shall be the quotient
obtained by dividing the aggregate conversion value, as herein
provided, of the shares of that Series surrendered for conversion, by
the conversion price per share of Common Stock then in effect for that
Series as herein provided. The corporation shall not be required,
however, upon any such conversion, to issue any fractional share of
Common Stock, but in lieu thereof the corporation may pay to the
shareholder who would otherwise by entitled to receive such fractional
share if issued, a sum in cash equal to the value of such fractional
share at the rate of the then market value per share of Common Stock,
determined in such manner as the Board of Directors of the corporation
may provide.
(iii) The basic conversion price per share of Common Stock for
a particular Series, as provided for herein under the detailed
descriptions of the individual Series, shall be subject to adjustment as
follows:
(a) An increased conversion price per share of Common
Stock shall become effective whenever the outstanding shares
of Common Stock shall be combined into a smaller number of
shares. Such increased conversion price per share of Common
Stock shall be computed as follows: (1) Separately, for each
Series, multiply the total number of shares of Common Stock
outstanding immediately prior to the decrease in the number of
such shares through such combination, by the conversion price
then in effect for each Series; (2) Divide each of the
resulting products by the total number of shares of Common
Stock outstanding immediately after such decrease in number of
shares through such combination. The quotients so obtained
(taken to the nearest full cent) shall thereafter, until any
further change is required under the provisions of this
subparagraph (6) be respectively the conversion price per
share of Common Stock for each Series.
(b) A reduced conversion price per share of Common Stock
shall become effective for any Series whenever the corporation
shall issue in any manner any Common Stock (other than common
stock (1) issued upon conversion of the presently authorized
100,000 shares of No Par Preferred Stock, and (2) issued
pursuant to any employee stock option plan) in addition to the
shares of Common Stock issued and outstanding as of the
effective date of the amendment to the Articles of Organization
which designated such Series, without receiving therefor a
consideration per
<PAGE> 18
Continuation Page 2G
share at least equal to the market value per share of
the Common Stock of the corporation on the date of such issue,
such market value to be determined in such manner as the Board
of Directors may provide. Such reduced conversion price per
share of Common Stock shall be computed by multiplying the
conversion price for each Series then in effect by a fraction,
the numerator of which is the sum of (1) the market value per
share of the Common Stock on the date of such issue multiplied
by the total number of shares of Common Stock outstanding
immediately prior to the issuance of such additional shares of
Common Stock plus (2) the total amount of the consideration,
if any, received for the issuance of such additional shares of
Common Stock, and the denominator of which is the market value
per share of the Common Stock on the date of such issue
multiplied by the total number of shares of Common Stock
outstanding immediately after the issuance of such additional
shares of Common Stock. The result so obtained (taken to the
nearest full cent) shall thereafter, until any further change
is required under the provisions of this subparagraph (6), be
respectively the conversion prices per share of Common Stock
for each Series.
(iv) In the event that the corporation shall give notice of
redemption of any shares of a particular Series, an adjusted conversion
price shall be determined in respect only of the shares so called for
redemption, in accordance with the provisions of clause (iii), except
that for the purpose of such determination, Common Stock shall be
deemed to have been issued in accordance with the terms of all options
or rights to purchase shares of Common Stock or securities convertible
into shares of Common Stock which may be outstanding immediately prior
to the close of business on the final date for the conversion of the
shares so called for redemption. The conversion price so determined
shall be stated in the notice of redemption and have no application to
any shares other than the shares so called for redemption.
(v) For the purpose of making the computations prescribed
above, the following rules shall apply:
(a) In determining the consideration received for the
issuance of any additional shares of Common Stock, no
deductions shall be made for the amounts of any commissions or
other expenses paid or incurred by the corporation for any
underwriting or otherwise in connection with the issuance of
such additional shares of Common Stock.
(b) In case Common Stock shall be issued by way of
stock dividend or in subdivision or reclassification of Common
Stock outstanding prior to such issue, the excess of number of
shares of Common Stock outstanding immediately thereafter over
the number of shares of Common
<PAGE> 19
Continuation Page 2H
Stock outstanding immediately prior thereto (except such shares issued as stock
dividends which shall not in the aggregate during any fiscal year of the
corporation exceed 5% of the Common Stock outstanding at the beginning of such
fiscal year) shall be deemed to be additional shares, and the corporation shall
be deemed to have received no consideration for the issuance thereof.
(c) If the corporation issues any shares (other than shares of the
presently authorized No Par Preferred Stock and options granted pursuant to any
employee stock option plan) convertible into Common Stock, or any obligations so
convertible, or any options or warrants to purchase or subscribe for any shares
of Common Stock, and if any of such shares or obligations be converted into
Common Stock or if any of such options or warrants be exercised and Common Stock
be issued in connection with such exercise, the corporation shall be deemed to
have received for the Common Stock issued upon such conversion or exercise an
aggregate consideration equal to the consideration received by the corporation
for the convertible shares or obligation so converted or for the options or
warrants so exercised (before deducting any commissions or other expenses paid
or incurred by the corporation for any underwriting or otherwise in connection
with the issuance of the convertible shares or obligations so converted or the
options or warrants so exercised) plus, in the case of the issuance of Common
Stock in connection with the exercise of options or warrants, the consideration
received by the corporation for the issuance of Common Stock upon such exercise;
provided, however, that adjustments of the conversion price by reason of the
conversion of such shares or obligations or by reason of the exercise of such
options or warrants need not be made upon each such conversion or exercise but
may be made from time to time under such reasonable regulations as shall be
provided by the Board of Directors but at least once in each month immediately
following any calendar month during which any such conversion or exercise shall
occur.
(d) If the corporation shall issue any additional shares of Common Stock,
or any shares (other than shares of the presently authorized No Par Preferred
Stock and options granted pursuant to any employee stock option plan)
convertible into Common Stock, or any obligations so convertible, or any options
or warrants to purchase or subscribe for any shares of Common Stock, for a
consideration other than cash, the amount of the consideration received therefor
by the corporation shall be deemed to be the fair value of such consideration,
which shall be determined by the Board of Directors at or before the time or
issuance of such shares or obligations.
<PAGE> 20
Continuation Page 2I
(vi) If the corporation shall be consolidated with or merged
into, or sell or dispose of all or substantially all of its property
and assets, to any other corporation, proper provisions shall be made
as part of the terms of such consolidation, merger or sale that the
holder of any shares of a particular Series at the time outstanding
shall thereafter be entitled to such conversion rights with respect to
securities and other assets of the corporation resulting from such
consolidation, merger or sale as shall be substantially equivalent to
the conversion rights herein granted.
(vii) Except as provided in clauses (iii) and (iv) of this
subparagraph (6), the corporation shall not in any manner dilute,
impair or change the conversion rights of any Series without making
adequate provisions for an adjustment of the conversion rights of such
Series.
(viii) No adjustment with respect to dividends upon any Series
or with respect to dividends upon Common Stock, shall be made in
connection with any conversion.
(ix) Whenever there is an issue of additional shares of Common
Stock of the corporation requiring a change in the conversion price as
provided above, and whenever there occurs any other event which results
in a change in the existing conversion rights of the holders of shares
of a Series, the corporation shall file with its transfer agent or
agents and at its principal office in Cambridge, Massachusetts, a
statement signed by the President or a Vice-President and by the
Treasurer or Assistant Treasurer of the corporation, describing
specifically such issue of additional shares of Common Stock or such
other event (and, in the case of a consolidation or merger, the terms
thereof) and the actual conversion prices or basis of conversion as
changed by such issue or event and the change, if any, in the
securities issuable upon conversion. Whenever there are issued by the
corporation any options or rights to purchase shares of Common Stock or
securities convertible into shares of Common Stock, the corporation
shall also file in like manner a statement describing the same and the
consideration receivable by the corporation therefrom. The statement
so filed shall be open to inspection by any holder of record of shares
of any Series.
(x) The corporation shall at all times have authorized and
shall at all times reserve and set aside a sufficient number of duly
authorized shares of Common Stock for the conversion of all Stock of
all Series then outstanding. Upon or prior to the occurrence of any
event which may give rise to a change in the conversion price per share
of Common Stock, the corporation shall make adequate provision so that
shares of Common Stock thereafter issued on conversion of shares of
each Series shall be validly issued, fully paid and non-assessable; and
the corporation shall make appropriate provisions
<PAGE> 21
Continuation Page 2J
so that any issue of Common Stock or of any other class of
shares of the corporation as a dividend on, or in subdivision or
reclassification of, Common Stock, shall be made applicable to shares of
Common Stock held for conversion of each Series at the time such shares
of Common Stock shall be issued upon such conversion.
Dividend Preference
-------------------
All shares of No Par Preferred Stock shall rank equally and shall share
ratably, in proportion to the rate of dividend fixed hereunder in respect to
each such share, in all dividends paid or set aside for payment for any
dividend period or part thereof upon any such shares.
Liquidation Preference
----------------------
In case of the voluntary or involuntary liquidation, dissolution, or
winding up of the corporation, if the assets of the corporation shall be
insufficient to pay the holders of all the No Par Preferred Stock then
outstanding the entire amounts to which they may be entitled, the holders of
each outstanding series of the No Par Preferred Stock shall share ratably in
such assets in proportion to the respective liquidation prices.
<PAGE> 22
2K
6. Other lawful provisions for the conduct and regulation of the business and
affairs of the corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the corporation, or of its directors or
stockholders, or of any class of stockholders:
No Director or officer shall be disqualified by his office from dealing or
contracting as vendor, purchaser or otherwise, whether in his individual
capacity or through any other corporation, trust, association or firm in which
he is interested as stockholder, director, trustee, partner or otherwise, with
the corporation or any corporation, trust, association or firm in which the
corporation shall be a stockholder or otherwise interested or which shall hold
stock or be otherwise interested in the corporation, nor shall any such dealing
or contract be avoided, nor shall any Director or officer so dealing or
contracting be liable to account for any profit or benefit realized through any
such dealing or contract to the corporation or to any stockholder or creditor
thereof because of the fiduciary relationship established by reason of his
holding such Directorship or office. Such Director or officer shall, however,
disclose the nature of any such interest then existing, though not necessarily
the details or extent thereof, to the Board of Directors before any action is
taken by the Board authorizing such dealing or contract, or if any such interest
shall later arise, within a reasonable time thereafter. A general notice that a
Director or officer is a Director, stockholder, officer, trustee or partner of,
or otherwise interested in, any specified corporation, trust, association or
firm and is to be regarded as interested in all transaction therewith shall be a
sufficient disclosure under this paragraph. No Director shall vote as a Director
on any such dealing or contract, and if he does so vote his vote shall not be
counted but shall not render such dealing or contract voidable, except that a
Director may vote on any contract or agreement by the corporation to idemnify
him, and except also that such prohibition against voting may at any time be
suspended or relaxed by the stockholders at a meeting called for the purpose.
No stockholder shall be disqualified from dealing or contracting as
vendor, purchaser or otherwise, either in his individual capacity or through any
other corporation, trust, association or firm in which he is interested as
stockholder, director, trustee, partner or otherwise, with
<PAGE> 23
2L
the corporation or any corporation, trust, association or firm in which
the corporation shall be a stockholder or otherwise interested or which shall
hold stock or be otherwise interested in the corporation, nor shall any such
dealing or contract be avoided, nor shall any stockholder so dealing or
contracting be liable to account for any profit or benefit realized through any
such contract or dealing to the corporation or to any stockholder or creditor
thereof by reason of such stockholder holding stock in the corporation to any
amount, nor shall any fiduciary relationship be deemed to be established by
such stockholding.
Meetings of the stockholders of the corporation may be held at any
place within the United States.
<PAGE> 24
Articles of organization of the corporation as heretofore amended, except
amendments to the following articles 2, 3, 4, 5, and 6.
-------------------------------------
(* If there are no such amendments, state "None".)
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this
6th day of September in the year 1967
/s/ Martin Annis President
- --------------------------------------------------------------
/s/ John E. Rogerson Clerk
- --------------------------------------------------------------
<PAGE> 25
[stamp: RECEIVED
SEP-7 1967
CORPORATION DIVISION
SECRETARY'S OFFICE]
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
I hereby approve the within restated articles
of organization and, the filing fee in the amount
of $2,050.00 having been paid, said articles are
deemed to have been filed with me this 7th day of
September, 1967
/s/ Kevin H. White
[box: A TRUE COPY ATTEST KEVIN H. WHITE
/s/ Michael Joseph Connolly Secretary of the Commonwealth
MICHAEL JOSEPH CONNOLLY State House, Boston, Mass.
SECRETARY OF STATE
DATE 2/28/85 CLERK ghm]
------- ---
Anthony J. Medaglia
Hutchins & Wheeler
294 Washington St.
Boston
<PAGE> 1
EXHIBIT 5
[BROWN, RUDNICK, FREED & GESMER LETTERHEAD]
July 30, 1996
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 267,183 shares of the
Company's Common Stock, $.66 2/3 par value, 207,183 of which are issued and
outstanding (the "Shares"), and 60,000 of which are issuable upon exercise of
certain common stock purchase warrants (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
to date, and a certificate of the Clerk of the Company that
there have been no further amendments thereto;
(ii) a copy of the By-laws 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 26, 1996 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");
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 30, 1996
Page 2
(vi) Common Stock Purchase Warrants, in the form issued by the
Company to each of Ralph S. Sheridan, Donald J. McCarren, Lee C.
Steele, Peter W. Harris and Alfred M. Gladen (collectively, the
"Warrants");
(vii) a letter from the Company's transfer agent as to the issued and
outstanding shares of the Company as of July 25, 1996; and
(viii) a Certificate of the Treasurer as to payment for the Shares.
We have assumed, for the purposes of our opinions herein, that the
conditions of the respective parties to the Subscription Agreement and the
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 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, the opinions expressed herein 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.
<PAGE> 3
American Science and Engineering, Inc.
July 30, 1996
Page 3
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.
2. The Warrant Shares have been duly authorized for issuance, and
when issued and delivered in accordance with the terms and
conditions of the Warrants, such Shares will be validly issued,
fully paid and non-assessable.
We hereby consent to the reference to our Firm in the Registration
Statement and 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 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
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
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 to be filed July 30, 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
