<PAGE>
As filed with the Securities and Exchange Commission on January 22, 1997
Registration No. 333-________
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________
BARRINGER LABORATORIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0951626
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15000 WEST 6TH AVENUE, SUITE 300
GOLDEN, COLORADO 80401-5047
(303) 277-1687
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
__________
NON-QUALIFIED STOCK OPTION AGREEMENTS
1989 INCENTIVE STOCK OPTION PLAN
CONSULTANT STOCK OPTION
(Full titles of the plans)
__________
COPIES OF COMMUNICATIONS TO:
REID A. GODBOLT, ESQ. ROBERT H. WALKER, PRESIDENT
JONES & KELLER, P.C. 15000 WEST 6TH AVENUE, SUITE 300
1625 BROADWAY, SUITE 1600 DENVER, COLORADO 80401-5047
DENVER, COLORADO 80202 (303) 277-1687
(303) 573-1600
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
__________
CALCULATION OF REGISTRATION FEE
<TABLE>
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
Proposed
Amount Proposed maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered per share (1) offering price fee (1)
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1989 Incentive Stock Option Plan
- Common Stock, $.01 Par Value 74,000 $.90 $66,600 $23
- Common Stock, $.01 Par Value 80,000 $1.00 $80,000 $28
- Common Stock, $.01 Par Value 46,000 $2.00 (2) $92,000 $32
- ---------------------------------------------------------------------------------------------------
Non-Qualified Stock Option Agreements
- Common Stock, $.01 Par Value 25,000 $.90 $22,500 $8
- Common Stock, $.01 Par Value 110,000 $1.00 $120,000 $41
- Common Stock, $.01 Par Value 25,000 $1.63 $40,750 $14
- ---------------------------------------------------------------------------------------------------
Consultant's Stock Option
- Common Stock, $.01 Par Value 24,000 $1.06 $25,440 $9
- ---------------------------------------------------------------------------------------------------
Total 384,000 $447,290 $155
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) Filing fee as calculated pursuant to Rule 457(h) of the Securities Act of
1933.
(2) The average of the bid and asked price of the common stock on January 20,
1997 was $2.00.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
BARRINGER LABORATORIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENTS
1989 INCENTIVE STOCK OPTION PLAN
CONSULTANT STOCK OPTION
Cross Reference Sheet for Prospectus Pursuant to Rule 404(a)
Form S-8
ITEM NO. ITEM CAPTION HEADING IN PROSPECTUS
- -------- ------------ ---------------------
1 Information Required in the Information Required in the
Section 10(a) Prospectus Section 10(a) Prospectus
2 Registrant Information and Incorporation of Documents by
Employee Plan Annual Information Reference
ii
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information regarding the various
plans required by Item I of Form S-8 and the statement of availability of
Registrant information will be sent or given to persons as specified by Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. The
Registrant shall maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, the Registrant shall furnish to the
Commission or its staff a copy or copies of all of the documents included in
such file.
iii
<PAGE>
PROSPECTUS DATED JANUARY 22, 1997
BARRINGER LABORATORIES, INC.
_____________
COMMON STOCK, $.01 PAR VALUE
UP TO 128,800 SHARES
_____________
This Prospectus relates to the offering of 128,800 shares of Common
Stock, $.01 par value ("Common Stock") of Barringer Laboratories, Inc. (the
"Company") by seven selling stockholders (the "Selling Stockholders"). See
"Selling Stockholders." The Common Stock to which this Prospectus relates
was issued pursuant to the Company's 1989 Incentive Stock Option Plan,
certain Non-Qualified Stock Option Agreements issued to Directors of the
Company, and a stock option issued for advisory services. The Selling
Stockholders may offer to sell any of the Common Stock covered by this
Prospectus from time to time at prices and upon terms then obtainable in (i)
ordinary brokers' transactions, (ii) block transactions in accordance with
the rules of the National Association of Securities Dealers, Inc., (iii)
purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus, or (iv) a combination of
any such methods of sale in each case at market prices. See "Plan of
Distribution." The Selling Stockholders and certain broker-dealers who
participate in sales of Common Stock covered by this Prospectus may be deemed
to be statutory underwriters within the meaning of the Securities Act of
1933, as amended (the "Securities Act"). Commissions paid or discounts or
concessions allowed to any such broker-dealers by any person, any profits
received from reselling the Common Stock covered by this Prospectus if any
such broker-dealers purchase any such Common Stock as a principal, may be
deemed to be underwriting discounts and commissions under the Securities Act.
The Selling Stockholders or purchasers of Common Stock will pay all
discounts, commissions, and fees incurred in selling Common Stock covered by
this Prospectus, except that the Company will bear all expenses incident to
the registration and qualification of the Shares under the Securities Act,
and state securities laws, on behalf of the Selling Stockholders. The
Company will receive no proceeds from sales by the Selling Stockholders. See
"Use of Proceeds."
The Common Stock is traded on the Nasdaq OTC Bulletin Board under the
symbol BALB. On January 20, 1997, the average of the bid and ask price of the
Common Stock on the OTC Bulletin Board was $2.00 per share.
_____________________
THE SECURITIES OFFERED HEREBY ENTAIL CERTAIN RISKS WHICH SHOULD BE CONSIDERED BY
INVESTORS. SEE "RISK FACTORS."
_____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
_____________________
<PAGE>
TABLE OF CONTENTS
PAGE
----
AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. . . . . . . . . . . . . . . 3
THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
DESCRIPTION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . 8
LEGAL MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2
<PAGE>
AVAILABLE INFORMATION
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 periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission" or "SEC"). Such
reports and other information concerning the Company may be inspected and copies
may be obtained at the Commission's Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C., as well as the following regional offices: 75 Park
Place, 14th Floor, New York, New York and 500 West Madison Street, Suite 1400,
Chicago, Illinois. The Company has filed with the Commission a Registration
Statement under the Securities Act of 1933, as amended (the "Act"), with respect
to the securities offered pursuant to this Prospectus. For further information,
reference is made to the Registration Statement and the exhibits thereto, which
are available for inspection at no fee at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. Copies
of the foregoing material can also be obtained at prescribed rates from the
Public Reference Section of the Commission. Also, the Commission maintains a
worldwide website that contains such materials of the Company at
"http://www.sec.gov."
The Company furnishes to its stockholders annual reports containing
financial statements audited by its independent certified public accountants.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
pursuant to the Exchange Act are incorporated in this Prospectus by reference:
1. Annual Report on Form 10-KSB for the Year Ended December 31, 1995, as
amended;
2. Quarterly Reports on Form 10-QSB for the Quarters Ended March 31,
1996, June 30, 1996 and September 30, 1996;
3. Current Reports on Form 8-K dated October 9, 1996 and November 13,
1996; and
4. Registration on Form 8-A dated January 10, 1990.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents (such documents, and the documents enumerated above, being
hereafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, including any beneficial
owner, on the written or oral request of any such person, a copy of any or all
of the Incorporated Documents, other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference therein. Requests
shall be directed to Barringer Laboratories, Inc., 15000 West 6th Avenue, Suite
300, Golden, Colorado 80401, Attention: Charles E. Ramsay, Secretary (telephone
number (303) 277-1687). The information relating to the Company contained in
this Prospectus does not purport to be comprehensive and should be read together
with the information contained in the Incorporated Documents.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER WILL,
UNDER ANY CIRCUMSTANCES, CREATE
3
<PAGE>
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE COMPANY'S AFFAIRS SINCE
THE DATE OF THIS PROSPECTUS OR THAT THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
THE COMPANY
Barringer Laboratories, Inc. (the "Company") is an analytical services
company, principally engaged in analytical testing for the environmental and
mineral exploration industries. The Company was incorporated under Delaware law
on December 1, 1988. The Company's principal office is located at 15000 West
6th Avenue, Suite 300, Golden, Colorado 80401 (telephone (303) 277-1687). The
Company also maintains a laboratory facility in Reno, Nevada, and a mineral
sample preparation facility in Hermosillo, Sonora, Mexico.
ENVIRONMENTAL ANALYTICAL LABORATORY SERVICES. From its laboratory in
Golden, Colorado, the Company performs analytical testing services for
governmental agencies, engineering consultants and industries involved in
environmental monitoring programs and hazardous waste management. The market
for the Company's services results primarily from its customers' need to
comply with U.S. federal and state regulations that relate to environmental
protection and the management and treatment of hazardous wastes. These
customers typically rely on independent laboratories such as the Company for
ongoing analysis and monitoring of such wastes.
The Company provides a comprehensive range of laboratory analyses to detect
and measure chemical contaminants and radioactive materials in samples of soil,
water, air, industrial wastes and effluents, biological materials, and
underground storage tanks. The types of laboratory testing performed include
analysis of samples for such contaminates as pesticides, herbicides, PCBs and
trace metals; hazardous waste characterization pursuant to the Resource
Conservation and Recovery Act of 1976, as amended (I.E., characterization with
regard to corrosivity, ignitability, reactivity, toxicity); clinical chemistry
testing of body fluids and tissue analysis for trace metals, organics and
radionuclides; and radioactivity analysis in a wide range of matrices, including
water, soils and sediments, vegetation, produce and animal tissues. In
addition, the Company has the capability to analyze co-contaminated wastes, a
combination of hazardous wastes contaminated with radioactive materials. During
1995, the Company processed in its environmental laboratory in Golden over
30,000 samples for approximately 220 customers.
MINERAL. The Company conducts its geochemical assays from its Reno mineral
assay laboratory, which is equipped to perform precious metal fire assays,
atomic absorption metal determinations and standard chemical procedures for
mineral analysis. Cyanide leach tests for characterizing the metallurgical
properties of gold ores are also carried out. Data handling in the laboratory
is managed by the proprietary Laboratory Information Management System which
provides customers with direct access to such data as soon as the analysis is
complete. Over 195,000 samples were processed in 1995 in Reno's mineral
laboratory for approximately 85 customers. The Company also has a satellite
sample preparation facility in Hermosillo, Sonora, Mexico.
4
<PAGE>
RISK FACTORS
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK, SHOULD BE
CONSIDERED SPECULATIVE AND SHOULD NOT BE PURCHASED BY ANYONE WHO CANNOT AFFORD A
COMPLETE LOSS OF THEIR INVESTMENT. PROSPECTIVE INVESTORS SHOULD CAREFULLY
CONSIDER THE FOLLOWING RISK FACTORS WITH RESPECT TO THE COMPANY. THE HEADINGS
ARE NOT INTENDED TO DESCRIBE FULLY THE RISKS, BUT ARE INTENDED TO ALERT
PROSPECTIVE INVESTORS TO THE GENERAL SUBJECT MATTERS OF THE RISKS DESCRIBED.
SIGNIFICANT CUSTOMERS
A substantial portion of the Company's sales are made to existing customers
on a repeat basis. The Company's customers include public utilities, consulting
and construction engineers, waste management companies, government agencies, oil
refineries, mining companies and a variety of other industrial companies. One
customer, MK-Ferguson, accounted for approximately 12% and 11% of the Company's
sales in 1995 and 1994, respectively. The loss of material customers could have
a materially adverse impact on the Company.
COMPETITION
There are many independent analytical testing laboratories which compete
for the environmental and hazardous waste testing business in the United States.
The Company competes with a number of companies which have significantly greater
resources. Many of these laboratories use similar equipment and processes as
the Company. Competition is based not only on price, but also on reputation for
accuracy and ability to respond rapidly. In addition, many industrial companies
have their own in-house analytical testing capabilities. There are, for
example, approximately 50 companies currently participating in the Environmental
Protection Agency's Contract Laboratory Program. With respect to environmental
testing, most of the Company's competitors are either privately owned or are a
part of a larger organization. Among such competitors which may have greater
resources, financial and other, are Thermo Analytical, Inc., Lockheed
Analytical, and Quanterra Corporation.
DEPENDENCE ON KEY PERSONS
The future success of the Company is highly dependent upon the efforts of
certain of its executive officers and directors. Loss of any such persons would
likely have an adverse impact on the Company. The Company does not have
employment contracts with any of these persons nor does the Company have any
life insurance on any of the lives of any of its executive officers or
directors.
TRADING MARKET
Presently, the Company's Common Stock trades in the OTC Bulletin Board
under the trading symbol "BALB." This market is an automated quotation market,
and is characterized by small issuers and a lack of significant or orderly
trading volumes. These factors could lead to volatility and thin trading of the
Company's Common Stock. The Company's long-term goal is to list its Common
Stock on the Nasdaq SmallCap Market, although this result cannot be assured
because the Company presently does not meet several of the required criteria.
NO DIVIDENDS
The Company has not paid cash dividends on its Common Stock and does not
anticipate paying cash dividends in the foreseeable future. The payment of
future dividends and the amount thereof will depend upon the Company's earnings,
financial condition, capital requirements and such other factors as the Board of
Directors may consider relevant. The Company is a party to a line-of-credit
agreement equal to 80% of eligible accounts receivable which prohibits the
declaration or payment of cash dividends. This prohibition has the practical
effect of restricting the payment of cash dividends on the Company's Common
Stock. There can be no assurance that dividends will ever be paid.
5
<PAGE>
BACKLOG
The backlog of orders at December 31, 1995 and 1994 was $1,123,000 and
$1,515,000, respectively. Certain contracts in the backlog of orders may be
greater than a year due to customer control over the flow of samples. This is
not indicative of sales in 1996. The level of backlog is not necessarily
indicative of trends in the Company's business because of the objective of
fulfilling customer's service requirements as quickly as possible. The majority
of 1995 backlog is related to government funding. There can be no assurance
that backlog orders will generate sales.
UNCERTAINTY OF GOVERNMENT CONTRACTS
During 1995, the Company's environmental laboratory in Golden, Colorado,
experienced a 41.3% increase over sales in 1994. Approximately 44% of 1995 and
40% of 1994 environmental sales were directly a result of analytical services
provided under contracts relating to federal spending on environmental
enforcement and environmental restoration. Due to the uncertainty surrounding
the allocation of funds through the government budgeting process, there is no
assurance that environmental sales resulting from government programs will
continue in such amounts. For example, during the first six months of 1996, the
Company experienced a significant slowdown in sales due to the uncertainty
surrounding the allocation of funds through the government budgeting process.
These uncertainties can cause wide swings in the Company's revenues and can lead
to inconsistent sales levels. There can be no assurance that government
contracts will be available in the future.
DEPENDENCE ON MINERAL INDUSTRY
The Company's mineral testing is dependent upon the level of activity in
the mineral industry, particularly the gold mining industry. Any slowdown in
the mineral industry for whatever reason, including a drop in gold prices, would
decrease the demand for testing services, which would likely in turn decrease
the demand for the Company's mineral testing services. The Company is
attempting to alleviate this risk by expanding services to other countries.
However, there can be no assurance that the Company will be successful in this
endeavor, or that it will not encounter significant risks often associated with
doing business outside of the United States. In any event, the Company's
services would still be negatively affected by a worldwide slowdown of the
mineral industry or the gold mining industry.
AUTHORIZED PREFERRED STOCK
The Company's Certificate of Incorporation authorizes the issuance of up to
1,000,000 shares of Preferred Stock, par value $2.00 per share. The Board of
Directors of the Company has the authority to divide the Preferred Stock into
series and to fix and determine the relative rights and preferences of the
shares of any such series. To the extent that a series of Preferred Stock is
established which bears a dividends, no dividends or other distribution
(including share repurchases) may be made or declared with respect to Common
Stock unless such dividend has been paid. The terms of a series of Preferred
Stock established by the Company could adversely affect the rights of holders of
the Common Stock. In addition, the ability of the Board of Directors to issue
Preferred Stock could impede or deter unsolicited tender offers or takeover
proposals regarding the Company. See "Description of Securities--Preferred
Stock."
USE OF PROCEEDS
Since this Prospectus relates to the offering of shares by the Selling
Stockholders, the Company will not receive any of the proceeds from the sale of
the securities offered hereby.
6
<PAGE>
SELLING STOCKHOLDERS
The stockholders whose shares of Common Stock are covered by this
Prospectus ("Selling Stockholders") are listed below. The amount of Common
Stock to be reoffered or resold by each Selling Stockholder pursuant to this
Prospectus, and any other person with whom each Selling Stockholder is acting in
concert for the purposes of selling Common Stock, is limited by Rule 144(e)
promulgated by the SEC under the Securities Act. Rule 144(e) prohibits reoffers
and resales from exceeding, during any three-month period, the greater of (i)
one percent of the Common Stock outstanding as shown by the most recent report
or statement published by the Company, or (ii) the average weekly reported
volume of trading in the Common Stock reported on the Nasdaq OTC Bulletin Board
during the four calendar weeks preceding the date of receipt of the order to
execute the transaction by the broker or the date of the execution of the
transaction directly with a market maker.
The following table sets forth certain information concerning the Selling
Stockholders.
<TABLE>
Beneficial Number of Beneficial
Ownership Shares of Ownership After
Before Offering Common Offering
Name and Address (Number) (%) Stock Offered (Number) (%)
- ---------------- --------------- --- ------------- --------------- ---
<S> <C> <C> <C> <C> <C>
Randolph H. Ware(1) 30,000 1.8 10,000 20,000 1.2
2105 Kohler
Boulder, Colorado 80303
C.F. Wasser III(1) 141,438 8.5 10,000 131,438 8.0
12290 Chinchilla Court
Rosemont, Minnesota 55068
Anthony R. Barringer(1) 37,000 2.2 10,000 27,000 1.6
25060 Montane Drive West
Golden, Colorado 80401
John J. Harte(6) 48,793 2.9 10,000 38,793 2.3
1028 Dairy Lane
Inverness, Illinois 60067
Robert H. Walker(2) 66,000 3.8 66,000(4) -- --
15000 West 6th Avenue
Suite 303
Denver, Colorado 80401
Charles E. Ramsay(3) 12,800 nil 12,800(5) -- --
15000 West 6th Avenue
Suite 303
Denver, Colorado 80401
Stanley Binder(6) 10,000 nil 10,000 -- --
219 South Street
New Providence, NJ 07974
</TABLE>
____________________
(1) Director of the Company.
(2) Director, President and Chief Executive Officer of the Company.
(3) Chief Financial Officer of the Company.
(4) Does not include 39,000 shares of Common Stock underlying Incentive Stock
Options which vest in part in May of 1997, 1998, 1999 and 2000.
(5) Does not include 15,200 shares of Common Stock underlying Incentive Stock
Options which vest in part in May of 1997, 1998, 1999 and 2000.
(6) Former director of the Company.
7
<PAGE>
PLAN OF DISTRIBUTION
The shares offered hereby on behalf of the Selling Stockholders are to be
sold from time to time by means of (i) ordinary brokers' transactions, (ii)
block transactions in accordance with the rules of the National Association of
Securities Dealers, Inc., (iii) purchases by a broker or dealer as principal and
resales by such broker or dealer for its account pursuant to this Prospectus, or
(iv) a combination of any such methods of sale in each case at market prices.
In connection therewith, distributors' or sellers' commissions may be paid or
allowed which will not exceed those customary in the types of transactions
involved. Commissions may also be received from purchasers for whom brokers or
dealers act as agents. Such brokers or dealers and any other participating
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales.
DESCRIPTION OF SECURITIES
The authorized capital stock of the Company consists of 10,000,000 shares
of Common Stock with a par value of $.01 per share and 1,000,000 shares of
Preferred Stock with a par value of $2.00 per share.
COMMON STOCK
Each record holder of common shares is entitled to one vote for each share
held on all matters properly submitted to the stockholders for their vote.
Holders of outstanding common shares are entitled to those dividends declared by
the Board of Directors out of legally available funds, and, in the event of
liquidation, dissolution or winding up of the affairs of the Company, holders
are entitled to receive ratably the net assets of the Company available to the
stockholders. Holders of outstanding common shares have no preemptive,
conversion, or redemptive rights, nor do they have cumulative voting rights in
the election of directors. All of the issued and outstanding common shares are,
and all unissued securities when offered and sold shall be, duly authorized,
validly issued, fully paid and nonassessable. To the extent that additional
common shares of the Company are issued, the relative interest of then existing
stockholders may be diluted.
PREFERRED STOCK
The Preferred Stock of the Company may be issued in one or more series as
may be determined from time to time by the Board of Directors of the Company.
The Board of Directors of the Company has authority, without a vote or other
action by the stockholders, to fix the rights and preferences of each series of
Preferred Stock, including dividend rights and preferences, rights and
preferences upon liquidation, voting rights, conversion rights and rights
relating to the redemption of shares. The Board of Directors of the Company has
flexibility to increase and issue Preferred Stock for proper corporate purposes,
including deterring takeover bids determined by the Board not to be in the best
interests of the Company and its stockholders.
LEGAL MATTERS
The legality of the Common Stock offered hereby is being passed upon by
Jones & Keller, P.C., Denver, Colorado.
EXPERTS
The consolidated financial statements incorporated by reference in this
Registration Statement have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the periods set forth in
their report incorporated herein by reference, and are incorporated herein in
reliance upon such report given upon the authority of said firm as experts in
auditing and accounting.
8
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
1. Barringer Laboratories, Inc. (the "Company") hereby incorporates by
reference into this registration statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
a. the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1995;
b. the Company's Quarterly Reports on Form 10-QSB for the periods ended
March 31, 1996, June 30, 1996 and September 30, 1996;
c. the Company's Current Reports on Forms 8-K dated October 9, 1996 and
November 13, 1996;
d. the description of the Common Stock, par value $.01 per share, of the
Company set forth in the Registration Statement on Form 8-A, filed
with the Commission on January 16, 1990, including any amendment or
report filed for the purpose of updating such description; and
e. all documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), subsequent to the date of this
Registration Statement shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of the filing of such
documents until such time as there shall have been filed a post-
effective amendment that indicates that all securities offered hereby
have been sold or that deregisters all securities remaining unsold at
the time of such amendment.
2. The Company will provide without charge to each person to whom a
copy of this Prospectus has been delivered, on the written or oral request of
such person, a copy of any or all of the documents referred to above which
have been or may be incorporated in this Prospectus by reference, other than
exhibits to such documents, and any or all other documents required to be
delivered to employees of the Company pursuant to Rule 428(b) under the
Securities Act. Written requests or requests by telephone for such copies, or
additional information about the Incentive Stock Purchase Agreements, should
be directed to Charles E. Ramsay, Barringer Laboratories, Inc., 15000 West
6th Avenue, Suite 300, Golden, Colorado 80401-5047, (303) 277-1687.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Generally, Delaware law permits a corporation to indemnify a person who was
or is an officer, director, agent, or employee, or who serves at the
corporation's request as an officer, director, agent, or employee, of another
corporation, partnership, trust, joint venture, or other enterprise ("nominee"),
who was, is, or is threatened to be named a defendant in a legal proceeding by
virtue of such person's position in the corporation or nominee, but only if the
person acted in good faith and reasonably believed that the conduct was in or at
least not opposed to the corporation's best interest, and, in the case of a
criminal proceeding, the person had no reasonable cause to believe the conduct
was unlawful. A person may be indemnified within the above limitations against
judgments, fines, settlements, and reasonable expenses actually incurred.
Generally, an officer, director, agent, or employee of the corporation or
nominee may not be indemnified, however, against judgments, fines, and
settlements incurred in a proceeding in which the person is found liable to the
corporation and may not be indemnified for expenses unless and only to the
extent that, in view of all the circumstances, the person is fairly and
reasonably entitled to indemnification for such expenses. A corporation must
indemnify a director, officer, employee, or agent against reasonable expenses
incurred in
II-1
<PAGE>
connection with a proceeding in which the person is a party because of the
person's corporate position, if the person was successful, on the merits or
otherwise, in the defense of the proceeding. Under certain circumstances, a
corporation may also advance expenses to such person. Under Delaware law, a
corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee, or agent of the corporation against any
liability asserted against and incurred by the person in such capacity, or
arising out of the person's status as such a person, regardless of whether the
applicable law otherwise empowers the corporation to indemnify that person
against such liability.
Article Seventh of the Registrant's Articles of Incorporation grants the
Company the power to indemnify officers, directors, employees, agents or any
person who serves or has served at the Company's request as a director, officer,
employee or agent of another corporation, partnership, joint venture or other
enterprise to the extent permitted by Delaware law.
Section 1022(b)(7) of the Delaware General Corporation Law provides that
the certificate of incorporation of a corporation governed by such act may
contain:
A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that such
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 stockholder; (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation
of law; (iii) under Section 174 of this title [concerning unlawful
dividend payments, stock purchases, or stock redemptions]; or (iv) for
any transaction from which the director derived an improper personal
benefit. No such provision shall eliminate or limit the liability of
a director for any act or omission occurring prior to the date when
such provision becomes effective.
Article Eighth of the Registrant's Articles of Incorporation limits the
liability of directors to the full extent provided by Delaware law.
The Registrant also has a directors, officers and corporate liability
policy with American International Specialty Lines Insurance Company under
which Registrant and the Registrant's officers and directors are covered for
losses arising from claims against the Registrant or such persons who held
their official positions at the time of a "wrongful act" defined, in general,
to be any actual or alleged: (1) error or misstatement; (2) misleading
statement; (3) act or omission; or (4) breach of duty. As to the Registrant
only, "wrongful acts" are limited solely to certain securities claims.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following documents are filed as a part of this registration statement.
Where such filing is made by incorporation by reference to a previously filed
report, such report is identified. See the Index to Exhibits included with the
exhibits filed as a part of this report.
EXHIBIT DESCRIPTION
- ------- -----------
3.1A Articles of Incorporation of the Registrant(1)
3.1B Bylaws of the Registrant(1)
4.1 1989 Incentive Stock Option Plan of the Registrant. Filed herewith.
4.2 Form of Non-Qualified Stock Option Agreement. Filed herewith.
4.3 Rumler Stock Option Agreement dated April 17, 1996. Filed herewith.
II-2
<PAGE>
5.1 Opinion of Jones & Keller, P.C. Filed herewith.
23.1 Consent of Jones & Keller, P.C. (included in their opinion
filed as Exhibit 5.1). Filed herewith.
23.2 Consent of BDO Seidman, LLP. Filed herewith.
25.1 Power of Attorney (see signature page of this Registration
Statement).
______________
1 Filed as the same exhibit number with Registration Statement No. 33-31626
on Form S-1, declared effective by the Securities and Exchange Commission
on December 20, 1989 and incorporated herein by reference.
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), 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; and
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) 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. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
II-3
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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-8 and authorized this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Golden and County of Jefferson, Colorado, on January 17, 1997.
BARRINGER LABORATORIES, INC.
By: /s/ Robert H. Walker
--------------------------------------
Robert H. Walker, President
POWER OF ATTORNEY
Each individual whose signature appears below hereby designates and
appoints Robert H. Walker and Charles E. Ramsay, and each of them, as such
person's true and lawful attorneys-in-fact and agents (the
"Attorneys-in-Fact") with full power of substitution and resubstitution, for
each person and in such person's name, place, and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, which amendments may make such
changes in this registration statement as either Attorneys-in-Fact deems
appropriate and to file each such amendment with all exhibits thereto, and
all documents in connection therewith, with the Securities and Exchange
Commission, granting unto such Attorneys-in-Fact and each of them, 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 such person might or could do in person, hereby ratifying and
confirming all that such Attorneys-in-Fact or either of them, or their
substitute or substitutes, 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 indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Robert H. Walker Director, President January 17, 1997
- --------------------------- and Chief Executive Officer
Robert H. Walker (Principal Executive Officer)
/s/ Anthony R. Barringer Director January 17, 1997
- ---------------------------
Anthony R. Barringer
/s/ Randolph H. Ware Director January 17, 1997
- ---------------------------
Randolph H. Ware
/s/ C.F. Wasser Director January 17, 1997
- ---------------------------
C.F. Wasser, III
/s/ J. Francis Lavelle Director January 17, 1997
- ---------------------------
J. Francis Lavelle
/s/ R. Scott Asen Director January 17, 1997
- ---------------------------
R. Scott Asen
/s/ John P. Holmes Director January 17, 1997
- ---------------------------
John P. Holmes
/s/ Charles E. Ramsay Chief Financial Officer, January 17, 1997
- --------------------------- Treasurer and Secretary
Charles E. Ramsay
<PAGE>
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
4.1 1989 Incentive Stock Option Plan of the Registrant. Filed herewith.
4.2 Form of Non-Qualified Stock Option Agreement. Filed herewith.
4.3 Rumler Stock Option Agreement dated April 17, 1996. Filed herewith.
5.1 Opinion of Jones & Keller, P.C. Filed herewith.
23.1 Consent of Jones & Keller, P.C. (included in their opinion
filed as Exhibit 5.1). Filed herewith.
23.2 Consent of BDO Seidman, LLP. Filed herewith.
25.1 Power of Attorney (see signature page of this Registration
Statement).
<PAGE>
BARRINGER LABORATORIES, INC.
1989 INCENTIVE STOCK OPTION PLAN
1. PURPOSE. The purpose of this 1989 Employees' Incentive Stock Option
Plan ("the Plan") is to provide an incentive for individuals rendering
services to Barringer Laboratories, Inc. ("the Company") or another Eligible
Company, as hereinafter defined, to continue their association with the Company
and/or another Eligible Company and to encourage them to promote the performance
and growth objectives of the Company and other Eligible Companies by affording
them an opportunity to acquire ownership of the Company's stock. It is intended
that options granted under the Plan shall be "incentive stock options" within
the meaning of Section 422A of the Internal Revenue Code of 1986, as amended
("the Code"). Incentive stock options shall be granted only to employees of the
Company or another Eligible Company.
2. ELIGIBLE COMPANY. As used herein, an "Eligible Company" shall mean
the Company and any Subsidiary of the Company (as defined in Section 12 below).
3. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided in
Section 9 hereof, the aggregate number of shares of Common Stock ($.01 par
value) of the Company which may be issued and sold pursuant to options granted
under the Plan shall not exceed 200,000 shares. Such shares may be either
authorized but unissued shares or shares held in the treasury of the Company. If
options granted under the Plan shall terminate or expire without being exercised
in their entirety, the unexercised shares covered thereby shall again become
subject to option under the Plan.
4. ADMINISTRATION. The Plan shall be administered by the Stock Option
Plan Committee (the "Committee"), which shall be appointed by the Board of
Directors of the Company (the "Board") and shall consist of not less than three
directors who shall receive no compensation for serving on the Committee. The
Board shall fill all vacancies in the Committee and may remove any member of
the Committee at any time, with or without cause. The Committee shall select
its own Chairman and shall hold its meetings at such times and places as it
may determine. A majority of the whole Committee shall constitute a quorum.
The act of a majority of the Committee present at any meeting at which a quorum
is present, or an act approved in writing by all members of the Committee, shall
be the act of the Committee. No Committee member may vote with respect to
options granted to him.
Subject to the express provisions of the Plan, the Committee shall have
full authority, subject to Section 5 below: (a) to determine, in its discretion,
the individuals to whom, and the times at which, options shall be granted, the
number of shares subject to each option, and the provisions of the respective
option agreements (which need not be identical), including provisions
concerning the time or times when, and the extent to which, the options may be
exercised and provisions concerning the effect of approved leaves of absence on
continuity of service; (b) to prescribe, amend and rescind rules and
regulations relating to the Plan; (c) to interpret the Plan and the respective
option agreements; and (d) to make all other determinations necessary or
advisable to administer the Plan.
Notwithstanding the powers vested in the Committee, the Board shall also
have authority to perform each and every function and to exercise any and all of
the powers allocated or granted to the Committee in this and any other paragraph
of this Plan; provided, however, that the selection of any director to whom an
option may be issued and the determination of the number of shares to be subject
to such option shall be made only by the Committee. All determinations and
interpretations by the Committee shall be binding and conclusive upon all
parties, unless a dispute shall arise between the Committee and the Board, in
which event the determinations and interpretations of the Board shall prevail.
The actual grant of an option under the Plan shall take place when the
Board by resolution, written consent or other appropriate corporate action
determines to grant such an option to a particular Optionee at a particular
price pursuant to the determinations made by the Committee, but no Optionee
shall have the right to exercise such option until a written stock option
agreement complying with Section 8 hereof shall have been duly executed and
delivered by or on behalf of the Company. Such corporate action by the Board
shall serve only to formalize the determinations made by the Committee and is
not meant to usurp the above described authority of the Committee.
5. AWARD OF OPTIONS AND ELIGIBILITY OF OPTIONEES. Options to purchase
shares of the Company under the Plan may be granted to any full-time employee of
the Company or another Eligible Company provided such employee
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<PAGE>
is a United States taxpayer. Directors of the Company or another Eligible
Company are not considered to be officers or employees for purposes of the
Plan and must be otherwise eligible to participate. More than one option may
be granted to any eligible person. A person receiving a grant of an option
pursuant to this Plan is hereinafter sometimes referred to as an "Optionee."
It is contemplated that shares sold, issued and delivered under the Plan
will be registered under the United States Securities Act of 1933 or other
applicable federal or state statute in effect at the time of such sale, issuance
and delivery. If shares sold, issued and delivered under the Plan are not so
registered, such sale, issuance and delivery of shares will be effected in such
manner as to be exempt from such registration. If shares of Common Stock of the
Company are listed upon any securities exchange at the time of the issuance of
any shares upon the exercise of any option granted pursuant hereto, the shares
so issued will be subject to listing upon any such securities exchange prior to
issue thereof.
The Company shall not be required to issue any certificate or certificates
for shares of its Common Stock purchased upon the exercise of any part of an
option prior to (a) the completion of any registration or other qualification of
such shares under any state or federal law or rulings or regulations of any
governmental regulatory body, which the Company shall, in its sole discretion,
determine to be necessary or advisable, (b) the admission of such shares to
listing on any stock exchange on which the stock may then be listed, and (c) the
obtaining of any approval or other clearance from any governmental agency, which
the Company shall, in its sole discretion, determine to be necessary or
advisable. The Company shall make reasonable efforts to take all such steps as
may be required by law and applicable regulations, including rules and
regulations of the Securities and Exchange Commission and any stock exchange on
which the stock may then be listed, in connection with the issuance or sale of
any shares purchased upon the exercise of an option or the listing of said
shares on said exchange.
6. OPTION PRICE. The purchase price per share at which each option
granted under the Plan may be exercised shall be determined by the Committee but
shall not be less than the fair market value of such shares at the time of grant
of the option as determined by the Committee provided, however, that when the
employee being granted an incentive stock option hereunder is the owner of 10%
or more of the total combined voting power of all classes of stock of the
Company or a Subsidiary (as defined in Section 12), such price shall not be less
than 110 of such value. In determining whether an individual has such a 10% or
more stock interest, the rules of Section 425(d) of the Code shall be
applicable.
7. PERIOD OF PLAN. No options shall be granted under the Plan after the
expiration of ten (10) years from the adoption of the Plan by the Board on
December 10, 1989, at which time (December 10, 1999) the Plan will expire,
except as to options then outstanding thereunder, which shall remain in effect
until they have been exercised in full or shall have expired by their terms.
8. EXERCISE AND TERM OF OPTIONS. Each option granted under the Plan
shall be evidenced by a stock option agreement in the form approved by the
Board, which shall be executed by the Company and by the Optionee, and shall be
subject to the following terms and conditions:
(a) Each option shall provide for a fixed expiration date of not more than
five (5) years from the date of grant;
(b) Subject to subsection (d) of this Section 8, each Optionee must remain
in the continuous employ of the Company or another Eligible Company for a period
of two (2) years from the date of grant before he may exercise any part of his
option;
(c) Each option may provide that, in the event of the death of the
Optionee during the continuance of his employment by an Eligible Company
(without regard to the length of his employment by an Eligible Company),
such options shall be exercisable at any time or from time to time prior to
the fixed termination date set forth therein by the estate of such deceased
Optionee or by any person who shall acquire the right to exercise such option by
bequest or inheritance up to the full number of shares then remaining subject to
the option, whether or not at the date of death such option would have been
exercisable in full by the Optionee;
(d) Each option shall provide that it shall terminate on the earliest of
(i) the fixed termination date set forth therein, (ii) three (3) months (one (1)
year in the case where the Optionee is disabled within the meaning of Section
2
<PAGE>
105(d)(4) of the Code) after the date of the termination of the Optionee's
employment by an Eligible Company for any cause other than death, or (iii) three
(3) months after the date when the Eligible Company of which the Optionee is an
employee ceases to be an Eligible Company; provided, however, that an option, in
case of the termination of employment (other than by death) of the Optionee or
the Eligible Company's ceasing to be such, may be exercised only up to the full
number of shares which such Optionee might have purchased under such option
immediately prior to such termination of employment or cessation as an Eligible
Company; and provided, further, that the option may be canceled by the Board at
any time prior to the exercise thereof if the Board determines by express
resolution in its sole and absolute discretion that the Optionee has committed
an act materially inimical to the interests of the Company or another Eligible
Company;
(e) The option price of each share purchased pursuant to each option shall
be paid in full in cash at the time such option is exercised, and certificates
representing fully-paid and non-assessable shares so purchased shall thereupon
be issued and delivered to the person entitled thereto subject to the provisions
of Section 5 hereof. The Committee may, in its discretion, at the request of an
optionee, accept previously acquired shares of Common Stock in full or partial
payment of the exercise price. Shares of Common Stock so accepted shall be
valued at the fair market value of such shares on the date immediately prior to
the date of such exercise, such fair market value being the mean between the
closing bid and asked price for the Common Stock as reported by the National
Association of Securities Dealers Automated Quotation System on such date or
such other basis as the Committee shall determine;
(f) Certificates representing fully-paid and non-assessable shares
purchased pursuant to the exercise of an option shall carry a designation
indicating that the shares so represented by a given certificate were purchased
pursuant to an incentive stock option;
(g) No incentive stock option shall be granted hereunder to the extent the
aggregate fair market value (as of the date the option is granted) of the stock
with respect to which incentive stock options are exercisable for the first time
by the Optionee in any calendar year exceeds $100,000.
9. ADJUSTMENT IN SHARES SUBJECT TO THE PLAN. The aggregate number and
kind of shares available under the Plan, the maximum number of shares as to
which options may be granted to any individual and the option price per share
shall be appropriately adjusted in the event of any reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation or other similar change in the corporate structure or
capitalization of the Company or in its shares; provided, however, that no
adjustment in the option price shall be made which would reduce the option price
per share to less than the par value thereof.
10. NON-TRANSFERABILITY OF OPTIONS. No options granted under the Plan
shall be transferable by an Optionee otherwise than by will or by the laws of
descent and distribution. During the Optionee's lifetime the options shall be
exercisable only by him.
11. USE OF PROCEEDS. The proceeds received by the Company from the sale
of its shares on exercise of options pursuant to the Plan shall be used by it
for its general corporate purposes.
12. DEFINITIONS. As used in this Plan, the term "Company" shall include
Barringer Laboratories, Inc. and any corporation which may acquire all or
substantially all of its assets or with or into which it may be merged or
consolidated; and the term "Subsidiary" shall mean any corporation in which the
Company owns directly or indirectly, through an unbroken chain of corporations,
stock possessing 50% or more of the total combined voting power of all classes
of stock.
13. AMENDMENT AND TERMINATION. The Board may amend, suspend or
discontinue the Plan at any time except with respect to options then outstanding
under the Plan but, except as otherwise provided in Section 9 hereof, may not
increase the maximum number of shares permitted to be optioned under the Plan
or reduce the option price or extend the period within which options may be
exercised.
14. RIGHT TO TERMINATE EMPLOYMENT. Nothing contained herein or in any
stock option agreement executed pursuant hereto shall restrict the right of the
Company to terminate the employment of any Optionee at any time, with or without
cause.
3
<PAGE>
15. APPROVAL BY STOCKHOLDERS. This Plan shall be submitted for approval
to the Company's stockholders at the next Annual Meeting.
4
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made and entered into effective this ____
day of ___________, by and between _________ and BARRINGER LABORATORIES, INC., a
Delaware corporation ("Corporation").
RECITALS:
WHEREAS, the Corporation desires to provide Corporation, an incentive to
benefit and advance the success of the Corporation by affording an opportunity
to purchase its common shares (the "Capital Stock") as hereinafter provided.
NOW THEREFORE, in consideration of these Recitals and the mutual promises,
covenants and conditions hereinafter set forth, the parties hereto agree as
follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement. Corporation hereby grants to ______ the option to purchase _____
shares of the common stock of the Corporation, upon the terms and conditions as
set forth herein. The number of shares of which ____ is granted an option
hereunder is subject to adjustment in the manner provided in Section 10 of this
Agreement.
2. EXERCISE PRICE. The exercise price for said shares shall be $ per
share.
3. TERM OF OPTION. The term of this Option shall expire at ____ pm
Mountain Standard Time on _________, subject to earlier termination as otherwise
provided in this Agreement.
4. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Option Agreement, the Option may be exercised by written notice to the
Corporation addressed to the Corporation's President. Such notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by ______. The certificate or
certificates for the shares as to which the Option shall have been so exercised
shall be registered in the name of ________ and shall be delivered to ________
as provided in the written notice of _______. All shares that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid
and nonassessable.
5. MEDIUM AND TIME OF PAYMENT. The exercise price shall be due and
payable immediately upon exercise of the option and may be paid in cash, by
certified funds, or, in the sole discretion of the Board of Directors, by tender
and conveyance of real or personal property, the fair market value of which is
equal to the option price. The Board shall, in its sole discretion, determine
the fair market value of any property, real or personal, paid in consideration
of such shares.
6. DELIVERY OF CERTIFICATES. The certificates evidencing the shares
purchased on exercise of this option shall be delivered to ________ within a
reasonable time after _________ tender of the purchase price as set forth in
Paragraph 5, above.
7. RIGHTS PRIOR TO EXERCISE. The holder of the option shall not have any
rights of a shareholder with respect to the shares covered by this Option
Agreement except to the extent that Director has otherwise duly purchased or
acquired shares, and certificates representing such shares have been delivered
to him.
8. NON TRANSFERABILITY. The rights under this Option Agreement shall not
be transferable by sale, conveyance, will, marriage, death or otherwise. More
particularly, but without limiting the generality of the foregoing, the option
granted under this Agreement, may not be assigned, transferred, pledged, or
hypothecated in any way, shall not be assignable by operation of law, and shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition, whether
voluntary or involuntary, contrary to the provisions hereof, and the levy of an
execution, attachment, or similar process upon the rights under this Option
Agreement shall be null and void and without effect.
1
<PAGE>
9. AMENDMENT AND TERMINATION OF AGREEMENT.
A. This Agreement may be amended at any time and any particular by a
writing signed by the party against whom enforcement of any such amendment is
sought.
B. This Agreement shall automatically terminate upon the occurrence of
any of the following events:
a. The written agreement of ______ and Corporation to terminate this
Agreement;
b. The bankruptcy of Corporation; or
c. The liquidation or dissolution of Corporation.
C. This Agreement shall terminate at the discretion of the Corporation,
upon the material violation of _______ of any term or provision of this Option
Agreement.
10. CHANGES IN CAPITAL STRUCTURE. In the event of the declaration of any
stock dividend on stock to which an Option is granted pursuant to this
Agreement, or in the event of any reorganization, merger, consolidation,
acquisition, separation, recapitalization, split-up, combination or exchange of
shares of stock, or like adjustment, the number of shares of stock and the class
of shares of stock available pursuant to this Agreement and the number and class
of shares of stock subject to any Option granted pursuant to this Agreement, and
the Option prices, shall be adjusted by appropriate changes in this Agreement
and in any Options outstanding pursuant to this Agreement. In the event of the
complete liquidation or dissolution of the Corporation, other than as an
incident to a merger, reorganization, or other adjustment referred to in the
immediately preceding paragraph, any Options granted pursuant to this Agreement
and remaining unexercised shall be deemed canceled, notwithstanding anything to
the contrary provided in this Agreement.
11. INVESTMENT UNDERTAKING. Unless the shares issued upon exercise of all
or any part of the Option have been registered for sale under the Securities Act
of 1933 (the "Act") and applicable state securities law, the Corporation will
required the ______ to represent that the _______ is purchasing Capital Stock
for investment with no view to the distribution thereof and the Corporation will
place a legend on the certificate representing such shares restricting the
transfer thereof.
12. REGISTRATION OF OPTIONED SHARES. Notwithstanding anything to the
contrary herein provided, the Corporation agrees that it shall promptly file, at
its sole expense, an S-8 with the Securities and Exchange Commission, or
otherwise take such action as will effect the registration of the Capital Stock
under the Act, and take such action under applicable state securities law so
that the shares issued pursuant to the exercise of this Option shall be
appropriately registered. The Corporation agrees that it shall pursue
prosecution of any such filing with reasonable diligence.
13. RESTRICTIONS ON TRANSFERABILITY. __________ acknowledges that he has
been advised that he must hold the shares acquired upon the exercise of the
Option granted hereunder for such period as is required by the Act unless they
are subsequently registered under the Act or an exemption from such registration
is available. _________ has been advised that any routine sales of securities
made in reliance upon Rule 144 of the General Rules and Regulations under the
Act can be made only after the requisite holding period in limited amounts in
accordance with the terms and conditions of that Rule and that, in the case of
securities to which that Rule is not applicable, compliance with some other
disclosure exemption will be required. ________ understands that the
Corporation is under no obligation to register any such shares for resale by
________ or to comply with any exemption form the registration provisions of the
Act.
_______ hereby agrees to indemnify the Corporation against all liability, costs
or expenses arising as a result of a sale of or a distribution by _______ of any
of such shares in violation of the Act.
14. MISCELLANEOUS.
A. AGREEMENT BINDING. This Agreement shall be binding upon the parties,
their legal representatives, successors and assigns.
2
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B. ENTIRE CONTRACT. This Agreement contains the entire understanding of
the parties and supersedes all previous verbal and written agreements. There are
no other agreements, representations, or warranties other than as set forth
herein. This Agreement may be amended only by a written instrument executed by
the parties.
C. NON-WAIVER. No delay or failure by either party to exercise any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
D. LAW TO GOVERN. This Agreement and all matters and issues collateral
thereto shall be construed according to the laws of the State of Colorado.
E. JURISDICTION AND VENUE. The parties agree that the District Court of
the City and County of Denver, Colorado, shall have exclusive jurisdiction,
including IN PERSONAM jurisdiction, and shall be the exclusive venue for any and
all controversies and claims arising out of or relating to this Agreement or a
breach thereof, except as otherwise unanimously agreed upon by the parties.
F. ATTORNEYS' FEES. If any party shall commence any action or proceeding
against another party in order to enforce the provisions hereof, or to recover
damages as .e result of the alleged breach of any of the provisions hereof, the
prevailing party therein shall be entitled to recover all reasonable costs
incurred in connection therewith, including, but not limited to, reasonable
attorneys' fees.
G. GENDER AND NUMBER. As used herein, the masculine gender shall include
the feminine and neuter genders, and the singular shall include the plural, and
vice versa, where the context requires.
H. SEVERABILITY. If any provision of this Agreement becomes or is found
to be illegal or unenforceable for any reason, such clause or provision must
first be modified to the extent necessary to make this Agreement legal and
enforceable and then if necessary, second, severed from the remainder of the
Agreement to allow the remainder of the Agreement to remain in full force and
effect.
I. CAPTIONS. All captions, titles, headings and divisions hereof are for
purposes of convenience and reference only, and shall not be construed to limit
or affect the interpretation of this Agreement.
J. COUNTERPARTS. This Agreement may be executed in counterparts and any
and all such executed counterparts shall constitute a single agreement binding
on each of the parties hereto.
K. EXECUTION BY FACSIMILE. Evidence of the execution of this Agreement
by any party may be provided by facsimile and if so provided shall be legal,
valid and binding on any party executing in such manner.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
CORPORATION:
BARRINGER LABORATORIES, INC.
By:_______________________________
Its: Chief Executive Officer
<PAGE>
RUMLER STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 17th day of April, 1996,
between BARRINGER LABORATORIES, INC., a Delaware corporation, (hereinafter
called "Barringer") and Paul E. Rumler (hereinafter called the "Optionee").
However, for purposes of determining vesting of the option granted hereunder,
the effective date shall be April 1, 1996 (the "Vesting Effective Date").
RECITALS
WHEREAS, Barringer has engaged Optionee to perform certain services
pursuant to the terms of that certain Fee Agreement between the parties of even
date (the "Fee Agreement");
WHEREAS, in partial consideration for the performance of the services
required under the Fee Agreement, Barringer has agreed to issue Rumler an option
to purchase from the Company 24,000 shares of its common stock, pursuant to the
terms and conditions of this Agreement.
NOW THEREFORE, in consideration of these Recitals and the mutual promises
and obligations hereinafter set forth, the parties hereto agree as follows:
1. GRANT OF OPTION. Barringer hereby grants to Optionee the option (the
"Option") to purchase 24,000 shares of its voting, $0.01 par value common stock
(hereinafter called the "Option Ed Shares"), at a price of $1.06 per share (the
"Option Price"), in accordance with and subject to the terms and conditions of
this Agreement.
2. VEST IN OF OPTION. Subject to the terms of this Agreement, the Option
granted hereunder shall vest and be exercisable as to one-twenty fourth (1/24)
of the twenty four thousand option Ed shares (one thousand (1,000) of the option
Ed shares) for each full calendar month, commencing on April 1, 1996, for which
Rumler Law Corporation PC ("Rumler Law Corporation") provides a discount of at
least one thousand four hundred eighty five dollars ($1,485) of services, valued
under Rumler Law Corporation's then current standard fee schedule. Therefore,
for example, if Rumler Law Corporation shall perform services for Barringer
pursuant to the Fee Agreement through and including October 31, 1996 but not
thereafter at the minimum level described above, then, subject to the terms of
this Agreement, Optionee shall have the right to exercise the option granted
hereunder with respect to seven thousand (7,000) shares.
3. ACCELERATION OF VESTING. Notwithstanding the foregoing, if at any
time prior to the date two years from the effective date of this Agreement and
during a period in which Rumler Law Corporation is performing services pursuant
to the terms of the Fee Agreement there is a "change of control" at Barringer,
then, subject to the terms of this Agreement, the Option granted hereunder shall
on the date of the change of control vest and be fully exercisable as to all of
the twenty four thousand option Ed shares or such lesser number of shares as
were not otherwise vested. For purposes of this Agreement, a "change of
control" shall be deemed to occur when and only when any of the following events
first occurs: (i) any person or entity becomes the beneficial owner, directly or
indirectly, of securities of Barringer representing more than fifty percent of
the combined voting power of Barringer's then outstanding voting securities, or
(ii) three or more directors, whose election or nomination for election is not
approved by a majority of the members of the Barringer's board of directors on
the effective date of this Agreement, are elected within any twelve month period
to serve on Barringer's board of directors, or (iii) the members of Bar
ringer's board of directors on the effective date of this Agreement cease to
constitute a majority of its board of directors without the approval of the
remaining members of that board, or (iv) any merger (other than a merger where
Barringer is the survivor and there is no change of control pursuant to (i),
(ii) or (iii) of this sentence), consolidation, liquidation or dissolution of
Barringer or the sale of all or substantially all of its assets.
4. MANNER OF EXERCISE. The Option may only be exercised with respect to
that number of shares as to which Optionee is then vested and only as to that
portion not previously exercised. The Option shall be exercised by giving
Barringer written notice as to its exercise, identifying the number of shares as
to which the Option is exercised, and by tendering payment in full, in certified
or guaranteed funds, for the number of purchased shares. Upon receipt of such
written notice and payment of the purchase price as required above, Barringer
will cause certificates for the shares purchased thereunder to be issued and
delivered to Optionee.
5. CONDITIONS TO EXERCISE. Exercise of the Option as hereinabove
provided shall be subject to the following express conditions:
1
<PAGE>
a. The Optionee may only exercise the Option to the extent it has vested
in him.
b. From and after the date on which Optionee ceases to perform services
for Barringer pursuant to the terms of the Fee Agreement for any reason other
than the expiration of its two year term, Optionee may exercise the Option, to
the extent it has vested in him, for a period of twenty-four months.
c. This Option shall not be exercisable if, or at any time when, such
exercise would cause a violation of any applicable law or regulation.
d. This Option shall expire on March 31, 2000, at 5:00 p.m. mountain
time, with respect to any portion of the Option which has not been exercised
prior to that date and time.
6. OPTION NON-TRANSFERABLE. This Option may not be transferred by the
Optionee otherwise than by Will or by the laws of the descent and distribution
and may be exercised during the lifetime of the Optionee only by him or a
pension plan maintained for his benefit.
7. CONTINUATION OF ENGAGEMENT. This Agreement shall not be construed as
giving Rumler Law Corporation any right to continue to perform services pursuant
to the terms of the Fee Agreement or to affect or limit in any way Barringer's
right to terminate its engagement under the Fee Agreement at any time, with or
without cause.
8. ADJUSTMENT OF OPTION PRICE AND NUMBER OF OPTIONED SHARES. In the
event of any reorganization, recapitalization, stock split, stock dividend,
combination of shares, merger, consolidation or other similar change in the
corporate structure or capitalization of Barringer or respecting its common
stock, the number of Optioned Shares and the Option and the Option Price per
share shall be appropriately adjusted; but no such adjustment in the Option
Price shall be made which would reduce the Option Price per share to less than
the par value thereof.
9. INVESTMENT UNDERTAKING. The parties acknowledge that the Optioned
Shares are unregistered. Unless the shares issued upon exercise of all or any
part of this Option have been registered for sale under the Securities Act of
1933 (the "Act") and applicable state securities law, which Barringer may, but
need not, do as it determines in the exercise of its sole discretion, Barringer
will require the Optionee to represent that he is taking the Optioned Shares for
investment purposes only with no view to the distribution thereof and Barringer
will place a legend on each certificate representing such shares restricting the
transfer thereof. Optionee agrees that Barringer may place with its transfer
agent a stop transfer order with respect to the certificates representing such
shares to effect compliance with the Act and with other applicable laws and
regulations. If, however, the Optioned Shares have been registered by
Barringer, then Barringer shall issue registered shares to Optionee upon
Optionee's exercise of the Option in the manner provided by this Agreement.
10. RESTRICTIONS ON TRANSFERABILITY. Optionee acknowledges that he has
been advised that he must hold the shares acquired upon the exercise of the
Option granted hereunder for such period as is required by the Act unless they
are subsequently registered under the Act or an exemption from such registration
is available. Optionee has been advised that any routine sales of securities
made in reliance upon Rule 144 of the General Rules and Regulations under the
Act can be made only after the requisite holding period in limited amounts in
accordance with the terms and conditions of that Rule and that, in the case of
securities to which that Rule is not applicable, compliance with some other
disclosure exemption will be required. Optionee understands that Barringer is
under no obligation to register any such shares for resale by Optionee or to
comply with any exemption form the registration provisions of the Act. Optionee
hereby agrees to indemnify Barringer against all liability, costs or expenses
arising as a result of a sale of or a distribution by Optionee of any of such
shares in violation of the Act.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
BARRINGER LABORATORIES, INC.
By: /s/ Robert H. Walker
----------------------------------
Robert H. Walker, Chief Executive Officer
/s/ Paul E. Rumler
----------------------------------
Paul E. Rumler
2
<PAGE>
JONES & KELLER, P.C.
1625 BROADWAY, SUITE 1600
DENVER, COLORADO 80202
TELEPHONE: (303) 573-1600
FACSIMILE: (303) 573-0769
January 22, 1997
Barringer Laboratories, Inc.
15000 West 6th Avenue, Suite 300
Golden, Colorado 80401
Gentlemen:
We have acted as counsel for Barringer Laboratories, Inc. (the "Company")
in connection with a Registration Statement on Form S-8, filed by the Company
under the Securities Act of 1933 with the Securities and Exchange Commission.
The Registration Statement relates to the proposed public offer and sale of up
to 384,000 shares of Common Stock, $.01 par value (the "Shares"). The
Registration Statement and exhibits thereto filed with the Securities and
Exchange Commission under such Act are referred to herein as the "Registration
Statement."
We have examined the Certificate of Incorporation, as amended, of the
Company as filed with the Delaware Secretary of State, the Bylaws of the
Company, and the minutes of meetings and records of proceedings of the Board of
Directors of the Company, the applicable laws of the State of Delaware, and a
copy of the Registration Statement.
Based upon the foregoing, and having regard for such legal considerations
as we deemed relevant, we are of the opinion that the Shares, upon issuance,
will be fully paid and non-assessable.
This letter is governed by, and shall be interpreted in accordance with,
the Legal Opinion Accord (the "Accord") of the ABA Section of Business Law
(1991). As a consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage and other limitations, all as
more particularly described in the Accord, and this letter should be read in
conjunction therewith.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement.
Very truly yours,
/s/ Jones & Keller, P.C.
JONES & KELLER, P.C.
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Barringer Laboratories, Inc.
Golden, Colorado
We consent to the incorporation by reference in this Registration Statement of
our report dated March 6, 1996, relating to the consolidated financial
statements of Barringer Laboratories, Inc. appearing in the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1995.
We also consent to the reference to us under the caption "Experts" in the
Registration Statement.
/s/ BDO Seidman, LLP
BDO SEIDMAN, LLP
Denver, Colorado
January 22, 1997
