<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------------
AMERICAN SCIENCE AND ENGINEERING, INC.
--------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2440991
------------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification. No.)
829 MIDDLESEX TURNPIKE, BILLERICA, MA 01821
-------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
---------------
AMERICAN SCIENCE AND ENGINEERING, INC.
EXECUTIVE EQUITY INCENTIVE PLAN
--------------------------------------
(Full Title of Plan)
JEFFREY A. BERNFELD
AMERICAN SCIENCE AND ENGINEERING, INC.
829 MIDDLESEX TURNPIKE
BILLERICA, MASSACHUSETTS 01821
--------------------------------------
(Name and Address of Agent for Service)
(508) 262-8700
--------------
(Telephone Number, Including Area Code, of Agent for Service)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share (1) Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.66 2/3 par value 40,000(2) $10.31(3) $412,400(3) $124.96
=============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration
fee pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Such presently indeterminable number of additional shares of Common
Stock are also registered hereunder as may be issued in the event of a merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other similar change in Common Stock.
(3) Based upon the average high and low prices for the Registrant's
Common Stock, $.66 2/3 par value (the "Common Stock"), on May 23, 1997 as
reported by the American Stock Exchange.
Total Number of Pages ______ Exhibit Index at Page 8
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's latest Annual Report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or either (i) the latest
prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"), that contains
audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed or (ii)
the Registrant's effective Registration Statement on Form 10
filed under the Exchange Act containing audited financial
statements for the Registrant's latest fiscal year;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Registrant's documents referred to in (a)
above; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A (File No.
1-06549) filed under the Exchange Act with the Securities and
Exchange Commission.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock to be issued under the
American Science and Engineering, Inc. Executive Equity Incentive Plan has been
passed upon for the Registrant by Brown, Rudnick, Freed & Gesmer, One Financial
Center, Boston, Massachusetts 02111.
-2-
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws permits the
indemnification of directors and officers to the extent authorized by the
Articles of Organization or By-Laws of a corporation or by a vote of the
stockholders. Except as otherwise provided by the Articles of Organization or
By-Laws, indemnification of persons who are not directors of a corporation may
be provided to the extent authorized by the directors. No indemnification may be
provided for any person with respect to any matter as to which he shall have
been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
Article VI of the Registrant's By-Laws provides in substance that the
Registrant shall indemnify any person who was or is a party or was threatened to
be made a party to any threatened, pending or completed action or suit, by
reason of the fact that he is or was serving as a director or officer of the
Registrant or is or was serving at the request of the Registrant as a director,
trustee or officer of another corporation or entity, against expenses actually
incurred by such person in connection with any civil action, suit or proceeding
to which such person may be made a party, or by which such person shall be
threatened, by reason of any alleged act or failure to act in his present or
former capacity as a director or officer of the Registrant or as a director,
trustee or officer of such affiliated corporation or entity, provided, however,
that no person has the right to indemnification in relation to any matter as to
which such person shall have been finally adjudged in any legal proceeding not
to have acted in good faith and the reasonable belief that his action was in the
best interest of the Registrant. In the event of any settlement of any action,
suit or proceeding, the right to indemnification is limited to matters as to
which the Registrant is advised by counsel that such settlement is reasonable
and that such person has acted in good faith and the reasonable belief that his
action was in the best interest of the Registrant. The right of indemnification
contained in the Registrant's By-Laws is non-exclusive and is in addition to any
other rights such person may have.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the Registrant's By-Laws, or otherwise, the Registrant
has been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. Exemption From Registration Claimed.
Not Applicable.
-3-
<PAGE> 4
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
<S> <C>
4.1 Restated Articles of Organization of the Registrant, as
amended by Articles of Amendment dated October 29, 1976,
Articles of Amendment dated May 17, 1976, Articles of
Amendment dated March 28, 1973, and Articles of Amendment
dated November 5, 1996.
4.2 By-Laws of the Registrant, as amended (filed as Exhibit
2(a)(iii) to the Registrant's Registration Statement on
Form S-7 (Registration No. 2-56452) (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).
4.4 Common Stock Purchase Warrant, dated July 18, 1995, issued
in the name of Grayson & Associates (filed as Exhibit 4.6
to the Registrant's Registration Statement on Form S-3)
(Registration No. 33-61903) (the "Form S-3"), and
incorporated herein by reference).
4.5 Subscription Agreement, dated July 8, 1995, between the
Registrant and Samuel International Investors, L.D.C.
(filed as Exhibit 4.7 to the Form S-3, and incorporated
herein by reference).
4.6 Common Stock Purchase Warrant, in the form issued to
certain of the Registrant's lenders, with schedule of
lenders, exercise prices and share amounts attached (filed
as Exhibit 4.8 to the Registrant's Form S-3, and
incorporated herein by reference).
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer
23.1 Consent of Brown, Rudnick, Freed & Gesmer (contained in its
opinion filed as Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney.
99 American Science and Engineering, Inc. Executive Equity
Incentive Plan.
</TABLE>
Item 9. Undertakings.
-4-
<PAGE> 5
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;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual
-5-
<PAGE> 6
report to security-holders that is incorporated by reference in the prospectus
and furnished pursuant to, and meeting the requirements of, Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
D. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described under
"Item 6 --- Indemnification of Directors and Officers" above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
-6-
<PAGE> 7
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Billerica, Commonwealth of Massachusetts, on May
27, 1997.
American Science and Engineering, Inc.
/s/Ralph S. Sheridan
-----------------------------------------
By: Ralph S. Sheridan, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/Ralph S. Sheridan President and Director May 27, 1997
- -------------------- (Principal Executive
Ralph S. Sheridan Officer)
/s/Lee C. Steele Vice President and May 27, 1997
- -------------------- Treasurer (Principal
Lee C. Steele Financial Officer)
/s/Herman Feshbach Director May 27, 1997
- --------------------
Herman Feshbach
/s/Al Gladen Director May 27, 1997
- --------------------
Al Gladen
/s/Hamilton W. Helmer Director May 27, 1997
- --------------------
Hamilton W. Helmer
Director May 27, 1997
- --------------------
Donald J. McCarren
/s/William E. Odom Director May 27, 1997
- --------------------
William E. Odom
</TABLE>
-7-
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description of Exhibit Page
- ------- ---------------------- ----
<S> <C> <C>
4.1 Restated Articles of Organization of the Registrant, as amended by Articles of
Amendment dated October 29, 1976, Articles of Amendment dated May 17, 1976,
Articles of Amendment dated March 28, 1973, and Articles of Amendment dated
November 5, 1996.
4.2 By-Laws of the Registrant, as amended (filed as Exhibit 2(a)(iii) to the Registrant's
Registration Statement on Form S-7) (Registration No. 2-56452) (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). *
4.4 Common Stock Purchase Warrant, dated July 18, 1995, issued in the name of
Grayson & Associates (filed as Exhibit 4.6 to the Registrant's Registration Statement
on Form S-3) (Registration No. 33-61903) (the "Form S-3"), and incorporated herein
by reference). *
4.5 Subscription Agreement, dated July 8, 1995, between the Registrant and Samuel
International Investors, L.D.C. (filed as Exhibit 4.7 to the Form S-3, and
incorporated herein by reference). *
4.6 Common Stock Purchase Warrant, in the form issued to certain of the Registrant's
lenders, with schedule of lenders, exercise prices and share amounts attached (filed
as Exhibit 4.8 to the Registrant'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.
99 American Science and Engineering, Inc. Executive Equity Incentive Plan.
</TABLE>
- ----------------------------------
* Incorporated by reference and not filed herewith.
-8-
<PAGE> 1
EXHIBIT 4.1
[ILLEGIBLE] FEDERAL IDENTIFICATION
- -------- NO. 04-2240991
Examiner
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
N/A ARTICLES OF AMENDMENT
- -------- (GENERAL LAWS, CHAPTER 156B, SECTION 72)
Name
Approved
We, Ralph S. Sheridan , *President
------------------------------------------------------
and Jeffrey A. Bernfeld , *Clerk
------------------------------------------------------
of American Science and Engineering, Inc.
--------------------------------------------------------------------,
(Exact name of corporation)
located at 829 Middlesex Turnpike, Billerica, MA 01821
-------------------------------------------------------------,
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3 and 6
-----------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on
September 26, 1996, by vote of:
------------ --
4,002,882 shares of Common Stock of 4,512,907 shares outstanding,
--------- ------------------- ---------
(type, class & series, if any) As to Amendment to Article 6
3,613,389 shares of Common Stock of 4,512,907 shares outstanding,
--------- ------------------- ---------
(type, class & series, if any) As to Amendment to Article 3
and shares of of shares
--------- ------------------- ---------
(type, class & series, if any)
outstanding,
(1)**being at least a majority of each type, class or series outstanding
C and entitled to vote thereon with respect to the Amendment to Article
P 3./ or (2)**being at least two-thirds of each type, class or series
M outstanding and entitled to vote thereon and of each type, class or
R.A. series of stock whose rights are adversely affected thereby as to the
Amendment to Article 6:
*Delete the inapplicable words. **Delete the inapplicable clause.
(1) For amendments adopted pursuant in Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate
4 8 1/2 x 11 sheets of paper with a left margin of at least 1 inch.
- ----- Additions to more than one article may be made on a single sheet so
.C. long as each article requiring each addition is clearly indicated.
<PAGE> 2
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is aurhorized to issue, fill in the
following:
The total presently authorized is:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ---------------------------------------- -------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ---------------------------------------- -------------------------------------------------
<S> <C> <C> <C> <C>
Common: Common: 8,000,000 $.66 2/3
- ---------------------------------------- -------------------------------------------------
- ---------------------------------------- -------------------------------------------------
Preferred: 100,000 Preferred:
- ---------------------------------------- -------------------------------------------------
- ---------------------------------------------------------------------------------------------
</TABLE>
Change the total authorized to:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ---------------------------------------- -------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ---------------------------------------- -------------------------------------------------
<S> <C> <C> <C> <C>
Common: Common: 20,000,000 $.66 2/3
- ---------------------------------------- -------------------------------------------------
- ---------------------------------------- -------------------------------------------------
Preferred: 100,000 Preferred:
- ---------------------------------------- -------------------------------------------------
- ---------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
Article 6 is hereby amended by inserting at the beginning thereof the following:
Elimination of Directors' Personal Liability. No director shall be personally
liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director notwithstanding any provision of law imposing
such liability; provided, however, that this provision shall not eliminate or
limit the liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under section sixty-one or sixty-two of Chapter 156B of the
Massachusetts General Laws, or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment to or repeal of this
paragraph shall apply to or have any effect on the liability of any director of
the Corporation for or with respect to any acts or omissions of such director
occurring prior to the date of such amendment or repeal.
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
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.
Later effective date: .
--------------------------------
SIGNED UNDER THE PENALTIES OF PERJURY, this 31st day of October , 1996.
--------- ----------- --
x /s/ Ralph S. Sheridan , *President
- -----------------------------------------------------------------
/s/ Jeffrey A. Bernfeld
- -----------------------------------------------------------------, *Clerk
* Delete the inapplicable words
<PAGE> 4
THE COMMONWEALTH OF MASSACHUSETTS
[Date Stamp]
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 $12,100.00
having been paid, said articles are deemed to have
been filed with me this 5th day of November 1996.
Effective date:
-----------------------------------
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
- -----------------------------
A TRUE COPY ATTEST
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
DATE 3/6/97 CLERK [ILLEGIBLE]
------ -----------
- -----------------------------
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Jeffrey A. Bernfeld, Esquire
American Science and Engineering, Inc.
--------------------------------------
829 Middlesex Turnpike
--------------------------------------
Billerica, MA 01821
--------------------------------------
<PAGE> 5
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> 6
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> 7
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> 8
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> 9
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> 10
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> 11
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> 12
<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> 13
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> 14
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> 15
<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> 16
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> 17
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> 18
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> 19
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> 20
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> 21
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> 22
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> 23
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> 24
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> 25
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> 26
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> 27
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> 28
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> 29
[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
May 28, 1997
American Science and Engineering, Inc.
829 Middlesex Turnpike
Billerica, MA 01821
Re: American Science and Engineering, Inc.
Registration Statement on Form S-8
Gentlemen:
We are counsel for American Science and Engineering, Inc. (the
"Company"). We have been asked to deliver this opinion in connection with the
preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), of a Registration Statement on
Form S-8 (this "Registration Statement") relating to 40,000 shares of the
Company's Common Stock, $.66 2/3 par value (the "Shares"). This opinion letter,
together with Schedule A attached hereto (this "Opinion Letter"), is being
rendered in connection with the filing of the Registration Statement.
The 40,000 Shares covered by the Registration Statement are issuable
under the Company's Executive Equity Incentive Plan (the "Plan").
In connection with this Opinion Letter, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of the following documents (collectively, the "Documents"):
1. a certificate from the Secretary of State of the Commonwealth of
Massachusetts as of a recent date as to the legal existence and good standing of
the Company;
2. a copy of the Restated Articles of Organization of the Company, as
amended to date, and a certificate of the Clerk that there have been no further
amendments thereto;
3. a copy of the By-laws of the Company, as amended to date, certified
by the Clerk of the Company as presently being in effect;
4. votes of the Board of Directors of the Company relating to the
approval of the Plan, certified by the Clerk of the Company;
<PAGE> 2
May 28, 1997
Page 2
5. the Plan;
6. a letter from the Company's transfer agent as to the issued and
outstanding shares of the Company's Common Stock, $.66 2/3 par value; and
7. the Registration Statement.
We have assumed, for the purposes of our opinions herein, that any
conditions to the issuance of the Shares under the Plan have been or will be
satisfied in full.
We have, without independent investigation, relied upon the
representations and warranties of the various parties as to matters of objective
fact contained in the Documents.
In addition, this Firm, in rendering legal opinions, customarily makes
certain assumptions which are described in Schedule A hereto. In the course of
our representation of the Company in connection with the preparation of the
Registration Statement, nothing has come to our attention which causes us to
believe reliance upon any of these assumptions is inappropriate, and, with your
concurrence, the opinions hereafter expressed are based upon those assumptions.
The Enumerated Party referred to in Schedule A is the Company.
We have not made any independent review or investigation of orders,
judgments, rules or other regulations or decrees by which the Company or any of
its property may be bound, nor have we made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company.
With your concurrence, our opinion hereafter expressed is based solely
upon (1) our review of the Documents, (2) discussions with those of our
attorneys who have devoted substantive attention to the preparation of the
Registration Statement, and (3) such review of published sources of law as we
have deemed necessary.
Our opinions contained herein are limited to the laws of the
Commonwealth of Massachusetts and the Federal law of the United States of
America.
We express no legal opinion upon any matter other than those explicitly
addressed below, and our express opinion therein contained shall not be
interpreted to be an implied opinion upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued and paid for in accordance
with the terms and conditions of the Plan, the Shares will be validly issued,
fully paid, and non-assessable.
<PAGE> 3
May 28, 1997
Page 3
We hereby consent to the reference to this firm in the Registration
Statement and to the filing of this opinion as Exhibit (5)(a) to the
Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed &
Gesmer, P.C., a Partner
By: /s/ John G. Nossiff
-----------------------------------------
John G. Nossiff, a Member
<PAGE> 4
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
In rendering legal opinions, Brown, Rudnick, Freed & Gesmer makes
certain customary assumptions described below:
1. Each natural person executing any of the Documents has sufficient legal
capacity to enter into such Documents.
2. Each Document is accurate, complete and authentic, each original is
authentic, each copy conforms to an authentic original and all
signatures are genuine.
3. All official public records are accurate, complete and properly indexed
and filed.
4. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence by or among any of the parties to the
Documents.
5. The conduct of the parties to the Documents has complied in the past
and will comply in the future with any requirement of good faith, fair
dealing and conscionability.
6. The Enumerated Party will obtain all permits and governmental approvals
required in the future and take all actions similarly required relevant
to its performance of its obligations under the Documents.
7. All parties to or bound by the Documents will act in accordance with,
and will refrain from taking any action that is forbidden by, the terms
and conditions of the Documents.
8. There are no agreements or understandings among the parties to or bound
by the Documents, and there is no usage of trade or course of prior
dealing among such parties, that would define, modify, waive, or
qualify the terms of any of the Documents.
<PAGE> 1
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-8 for the
American Science and Engineering, Inc. Executive Equity Incentive Plan to
be filed May 28, 1997, of our reports 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.
Arthur Andersen LLP
Boston, Massachusetts
May 21, 1997
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ralph S. Sheridan, Lee C. Steele, and Jeffrey
Bernfeld, and each of them, his/her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him/her and in his/her
name, place and stead, in any and all capacities to sign any or all amendments,
including post-effective amendments, to the Form S-8 Registration Statement to
which this instrument is attached and to file such amendments, including
post-effective amendments, with all exhibits thereto and other documents in
connection therewith, with the Commission, granting unto each of said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorney-in-fact
and agent, or his substitute, may lawfully do or cause to be done by virtue
hereof.
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/Ralph S. Sheridan President and Director May 27, 1997
- -------------------- (Principal Executive
Ralph S. Sheridan Officer)
/s/Lee C. Steele Vice President and May 27, 1997
- -------------------- Treasurer (Principal
Lee C. Steele Financial Officer)
/s/Herman Feshbach Director May 27, 1997
- --------------------
Herman Feshbach
/s/Al Gladen Director May 27, 1997
- --------------------
Al Gladen
/s/Hamilton W. Helmer Director May 27, 1997
- --------------------
Hamilton W. Helmer
Director May 27, 1997
- --------------------
Donald J. McCarren
/s/William E. Odom Director May 27, 1997
- --------------------
William E. Odom
</TABLE>
<PAGE> 1
EXHIBIT 99
AMERICAN SCIENCE AND ENGINEERING, INC.
EXECUTIVE EQUITY INCENTIVE PLAN
<TABLE>
<CAPTION>
<S> <C>
COVERED EXECUTIVES: Initially limited to Executive Officers of the Company,
other than the CEO. Expandable at the discretion of
the Board.
TERM OF THE PLAN: Open-ended, depending
on participation, other plans that
may be instituted from time to time,
and other factors. The Plan may be
terminated by the Board at any time.
NUMBER OF SHARES RESERVED: 40,000
ELIGIBILITY: Any Executive Officer who receives a bonus in any
year in which the Plan is in effect, expandable at any
time at the discretion of the Board.
PURCHASE OF STOCK: An Executive Officer may buy original issue Company
Common Stock in any dollar amount up to the gross
amount of the bonus granted to that Officer. The
number of shares of stock that may be purchased
("Purchased Stock") shall be determined by dividing
the amount of money designated by the Officer by the
closing price of the Common Stock on the American
Stock Exchange on the day the Officer elects to
participate in the Plan. The number of shares of
Purchased Stock will be rounded down to the nearest
whole share. The Officer shall decide whether and to
what extent to participate in the Plan within 30 days of
being informed of the amount of his or her bonus.
VESTING OF PURCHASED STOCK: All Purchased Stock shall immediately vest in the
Officer and shall not be subject to forfeiture or
restriction except as required by relevant securities
laws, the rules of the Securities and Exchange
Commission and Company rules applicable to all
employees.
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C>
MATCHING INCENTIVE: For every two shares of Purchase
Stock purchased by an Officer under
the Plan, the Company will grant the
Officer one share of Restricted
Common Stock ("Restricted Stock").
The terms of the Restricted Stock
are set forth below.
RESTRICTIONS: Restricted Stock shall not be transferable for three
years and shall be subject to forfeiture if the Officer
leaves the Company for any reason other than death or
permanent disability prior to the end of the three year
restricted period. Certificate(s) evidencing Restricted
Stock shall be original issue Company Common Stock
and shall bear an appropriate legend setting forth the
restrictions upon transfer to which the Restricted Stock
is subject. Upon the expiration of the three year
restricted period, the Restricted Stock shall be treated
as Purchased Stock and the Officer may request that
the restrictive legend be removed from the Restricted
Stock certificate(s).
REGISTRATION: Stock issued pursuant to the Plan may be registered
with the Securities and Exchange Commission from
time to time in the discretion and at the convenience of
the Company.
</TABLE>
