-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, XUcm/iS5QZZ+eqN40q86+UKJ909NbuLbZ2Y+11LmQHm7CXWF727F2BZYikVqrJ12 FdjnXQ0zPU8o3kygO3gLYw== 0000905718-95-000051.txt : 199507100000905718-95-000051.hdr.sgml : 19950710 ACCESSION NUMBER: 0000905718-95-000051 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19950509 FILED AS OF DATE: 19950707 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BARRINGER TECHNOLOGIES INC CENTRAL INDEX KEY: 0000010119 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 840720473 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-03207 FILM NUMBER: 95552735 BUSINESS ADDRESS: STREET 1: 219 SOUTH STREET CITY: NEW PROVIDENCE STATE: NJ ZIP: 07974 BUSINESS PHONE: 9086658200 MAIL ADDRESS: STREET 1: 219 SOUTH STREET CITY: NEW PROVIDENCE STATE: NJ ZIP: 07974 FORMER COMPANY: FORMER CONFORMED NAME: BARRINGER RESOURCES INC DATE OF NAME CHANGE: 19910331 FORMER COMPANY: FORMER CONFORMED NAME: BARRINGER RESEARCH INC DATE OF NAME CHANGE: 19800821 10-K/A 1 July 7, 1995 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 RE: Form 10-K/A2 of Barringer Technologies Inc. Dear Sir or Madam: Enclosed for filing, pursuant to the Securities Exchange Act of 1934, is Barringer Technologies Inc.'s second amendment to its Annual Report on Form 10-K/A2. Thank you for your cooperation in this matter. Please call the undersigned if you have any questions or comments. Thank you. Very truly yours, Edward M. Zimmerman SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K/A2 Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. For the fiscal year ended December 31, 1994 Commission File Number: 0-3207 Barringer Technologies Inc. (Exact name of registrant as specified in its charter) Delaware 84-0720473 (State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.) 219 South Street, New Providence, NJ 07974 (Address, Including Zip Code, of Principal Executive Offices) (908) 665-8200 (Registrant's Telephone Number, Including Area Code) Securities registered pursuant to Section 12(b) of the Act: NONE Securities registered pursuant to Section 12(g) of the Act: Common Stock, par value $.01 per share Class E Warrants Units Indicate by check mark whether: the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. The aggregate market value of voting stock held by nonaffiliates of the registrant is $6,236,000 as of March 31, 1995. Indicate the number of shares of each of the issuer's classes of common stock, outstanding as of the latest practicable date. Outstanding as of March 24, 1995 Common Stock, $.01 par value 11,486,828 shares Documents Incorporated by Reference: NONE Barringer Technologies Inc. (the "Company") hereby amends Part III and Part IV of its Annual Report on Form 10-K for the fiscal year ended December 31, 1994 as filed with the Securities and Exchange Commission on April 17, 1995, as amended by its Form 10-K/A1 filed April 28, 1995, by adding thereto the text of Items 10 through 13 of Part III and Item 14 of Part IV below. PART III Item 10. Directors and Executive Officers of the Registrant. Director Name Position with the Company and Affiliates Since Stanley S. Binder Director, President and Chief Executive Officer 1991 of the Company; Director of Barringer Laboratories, Inc. ("Labco"). John H. Davies Director and Executive Vice President of the 1992 Company; President and Chief Executive Officer of Barringer Research Ltd. John J. Harte Director and Vice President, Special Projects, 1986 of the Company; Chairman of the Board of Labco. Richard D. Condon Director of the Company 1992 John D. Abernathy Director of the Company 1993 James C. McGrath Director of the Company 1994 Richard S.Rosenfeld Vice President-Finance, Chief Financial Officer, Treasurer and Assistant Secretary of the Company. -- Kenneth S. Wood Vice President and Secretary of the Company; President of Barringer Instruments, Inc. ("BII"). -- Mr. Stanley S. Binder, 53, is a Director and the President and Chief Executive Officer of the Company. He is also a Director of Labco. From 1977 to May 1989, Mr. Binder served as Chief Financial Officer to Keystone Camera Products Corporation, Clifton, New Jersey, and its predecessors, the principal business of which was the manufacture of low cost point and shoot cameras. Keystone Camera Products Corporation filed a petition for protection under the bankruptcy laws in January 1991. In July 1989, Mr. Binder joined the Company and has since held the following offices with the Company: President from 1989 to the present date, Chief Operating Officer from 1989 to June 1990, Chief Financial Officer from 1989 until July 1993, and Chief Executive Officer from July 1990 to the present date. Mr. Binder is also an independent general partner in the Special Situations Fund III, L.P., a substantial investor in the Company. See Item 13, "Certain Relationships and Related Transactions." Mr. John H. Davies, 59, is a Director and Executive Vice President of the Company and the President and Chief Executive Officer of Barringer Research Ltd.("BRL"). Mr. Davies joined BRL in 1967 and has been an Executive Vice President and Director of the Company since January 1992. Mr. Davies has served BRL as a Vice President, and a Senior Vice President; and currently as BRL's President (since 1984) and Chief Executive Officer (since August 1989). Mr. John J. Harte, 53, is a Director and Vice President, Special Projects, of the Company and Chairman of the Board of Labco, and has held such positions since joining the Company and Labco in 1986. He is a certified public accountant and, since 1978, has been and continues to be a Vice President of Mid-Lakes Distributing Inc., a manufacturer and distributor of heating and air conditioning parts and equipment located in Chicago, Illinois. Mr. Richard D. Condon, 60, has been a Director of the Company since February 1992. Since 1989, he has worked as a consultant to and director of Analytical Technology, Inc., Boston, Massachusetts, a scientific instrumentation company. Mr. John D. Abernathy, 58, a Director of the Company since October, 1993, is a certified public accountant and, since January 1995, has been Executive Director of Patton Boggs LLP, a law firm. He is also a Director of Oakhurst Capital, Inc., a distributor of automotive parts and accessories. From March 1994 to January 1995, he was a financial and management consultant. From March 1991 to March 1994, he was the Managing Director of Summit Solomon & Feldesman, a law firm in dissolution since March 1993. From July 1983 until June 1990, Mr. Abernathy was Chairman and Chief Executive Partner of BDO Seidman, a public accounting firm. Mr. James C. McGrath, 53, a Director of the Company since January 1994, is an international security consultant. Since July 1989, he has been President of McGrath International, Inc., a management consulting firm specializing in the security field. Mr. Richard S. Rosenfeld, 48, is a certified public accountant and has been Vice President-Finance and Chief Financial Officer of the Company since July 1993; he has also been the Treasurer and Assistant Secretary of the Company since January 1992, and was a consultant to the Company from July 1991 to December 1991. From July 1984 to October 1990, he was Controller, Vice President-Finance, for Keystone Camera Products Corporation, Clifton, New Jersey, the principal business of which was the manufacture of low cost point and shoot cameras. Keystone Camera Products Corporation filed a petition for protection under the bankruptcy laws in January 1991. Mr. Kenneth S. Wood, 44, has been a Vice President of the Company and the President of BII since January 1992 and the Secretary of the Company since March 1993. He was Vice President of Operations for BII from April 1990 to January 1992. From July 1978 until April 1990, he was Program Director for Lockheed Electronics, the principal business of which is aerospace and defense electronics. All Directors are elected by the holders of the Company's common stock, par value $.01 per share ("Common Stock"), the Company's convertible preferred stock, par value $1.25 per share ("Convertible Preferred Stock"), the Company's Class A convertible preferred stock, par value $2.00 per share ("Class A Convertible Preferred Stock"), and the Company's Class B convertible preferred stock, par value $2.00 per share ("Class B Convertible Preferred Stock"), to serve one (1) year terms or until their successors shall be elected and shall qualify. Mr. Binder has an employment and consulting agreement with the Company. See Item 11, "Certain Compensation Arrangements." Other officers serve at the discretion of the Board of Directors. There are no family relationships among any of the directors and executive officers. Under Section 16(a) of the Securities Exchange Act of 1934, the Company's directors, executive officers, and persons holding more than ten percent of the Company's Common Stock are required to report their initial ownership of the Company's Common Stock and any changes in such ownership to the Securities and Exchange Commission. These persons also are required to furnish the Company with a copy of all Section 16(a) forms they file. The Company is obligated to disclose any failures to, on a timely basis, file such reports. To the Company's knowledge, based solely on a review of such reports and any amendments thereto which have been furnished to the Company, the Company has not identified any reports required to be filed during the 1994 fiscal year that were not filed on a timely manner. However, the Company has identified one instance of a report required to be filed during the 1993 fiscal year, which was not filed on a timely basis. That report related to the purchase by Mr. Abernathy on October 12, 1993 of directors warrants, which was reported approximately four months late in February 1994. Item 11. Executive Compensation. Executive Officer Compensation. The following table sets forth the compensation paid for the past three fiscal years to the President and Chief Executive Officer of the Company and each other executive officer of the Company whose total annual salary and bonus are $100,000 or more:
SUMMARY COMPENSATION TABLE Annual Compensation Long-Term Compensation Other Annual Restricted Securities Name and Principal Compen- Stock Underlying LTIP All Other Position Year Salary Bonus sation Awards Options Payouts Compensation(1) Stanley S. Binder 1994 $164,178 - - - - - $ 5,940 President and Chief 1993 148,272 $17,400 - - - - 5,492 Executive Officer 1992 131,640 - - - - - 5,674 John H. Davies 1994 114,830* - - - - - 5,741* Executive Vice 1993 115,785* 15,600 - - - - President of the 1992 114,000* - - - - - Company; President and Chief Executive Officer of Barringer Research Ltd. Kenneth S. Wood 1994 107,422 - - - - - 2,436 Vice President and 1993 97,874 14,400 - - - - 2,386 Secretary of the 1992 91,500 - - - - - Company; President of Barringer Instruments, Inc. Richard S. Rosenfeld 1994 88,400 - - - - - 4,545 Vice President Finance, 1993 68,094 12,600 - - - - 1,976 Treasurer and Chief 1992 52,965 - - - - - 1,976 Financial Officer of the Company
____________________________ * Amounts converted to US dollars at the average exchange rate for the respective year. (1) Represents amounts contributed by the Company pursuant to the Company's tax-qualified 401(k) deferred compensation plan ("401(k) Plan"). The 401(k) Plan provides that the Company will make matching contributions to the participants in the 401(k) Plan equal to 100% of the first 2% of a participant's salary contributed and 50% of the next 5% of a participant's salary contributed, which contributions vest proportionately over a five year period commencing at the end of the participant's first year with the Company. There were no stock options granted in 1994 to any of the executive officers named in the Summary Compensation Table. The following table sets forth information with respect to the executive officers named in the foregoing Summary Compensation Table concerning the exercise of stock options during 1994 and unexercised options held by such executive officers as of December 31, 1994, the end of the last fiscal year: AGGREGATED OPTION EXERCISES IN 1994 AND FISCAL YEAR-END OPTION VALUES Value of Unexercised in-the-Money Number of Securities Options at (S) Underlying Unexercised Year-End Shares Acquired Value Options at Year-end Exercisable/ Name On Exercise Realized(1) Exercisable/Unexercisable Unexercisable Stanley S.Binder 150,000 $ 87,625 - - John H. Davies - - - - Kenneth S. Wood 40,000 $ 5,900 36,000/24,000 - Richard S. Rosenfeld - - 25,000/10,000 - _______________________________
(1) Dollar values are calculated by determining the difference between the fair market value of the Common Stock underlying the options and the exercise price of the options on the date of exercise. The Company's Canadian subsidiary, Barringer Research Ltd., maintained a defined benefit pension plan for its Canadian employees that was terminated on December 31, 1993. Mr. Davies was a participant in that plan. His projected annual benefit at age 65 has been set at approximately Cdn. $74,000, which amount may be subject to change only in response to changes in the Canadian pension regulatory scheme. Directors' Compensation. The Board has adopted a compensation plan for outside directors. Outside directors are entitled to an annual retainer paid at the rate of $2,500 per quarter and a fee of $1,000 for each meeting attended. In addition, outside directors are eligible to participate in the 1991 Warrant Plan (as described below). Although Mr. Harte is a non-employee director, he does not participate in the Company's compensation plan for non- directors. Mr. Harte receives a fee of $2,000 per month for services he renders to the Company, and a fee of $1,000 for each meeting he attends in his capacity as a director. The Board of Directors has adopted the 1991 Directors Warrant Plan (the "1991 Warrant Plan"). Under the 1991 Warrant Plan, each non-employee director, upon election or appointment to the Board, will be sold, at $0.10 per warrant, 15,000 warrants, each of which may be exercised within five years to purchase one share of Common Stock at an exercise price to be determined by the Board at the time of such sale, which exercise price shall not be less than the market price for the shares underlying the warrants at the time of issuance of such warrants. The 1991 Warrant Plan provides that each such new director shall use the first quarterly director's fees to pay the purchase price for such warrants. Certain Compensation Arrangements. The Company has entered into an Employment and Consulting Agreement with Stanley S. Binder, the President and Chief Executive Officer of the Company, (the "Employment Agreement"), pursuant to which Mr. Binder receives compensation for his services as President of the Company at an initial annual rate of $120,000, subject to increases equal to percentage increases in the Consumer Price Index as well as by increases authorized by the Company's Executive Compensation Committee. Mr. Binder's annual salary effective May 31, 1994 is $171,491. The Employment Agreement renews automatically each year, unless either party gives the other six months prior written notice of non-renewal. In addition, the Employment Agreement provided for the grant to Mr. Binder of an option to purchase 100,000 shares of Common Stock at an exercise price of $1.00 per share, which approximated market value at the time that the Employment Agreement was executed. The Employment Agreement also provided that the Company would grant to Mr. Binder an incentive stock option under the Company's then existing incentive stock option plan to purchase an additional 100,000 shares of Common Stock at an exercise price of $2.00 per share, which was in excess of market value at the time that the Employment Agreement was executed, with 20,000 shares exercisable in each of the five years beginning on July 10, 1991 (exercisable on a cumulative basis). The Company later determined that the number of remaining shares reserved for issuance under the Company's then-existing incentive stock option plan was insufficient to fulfill its obligation to Mr. Binder to grant the second option. As a result, the Board of Directors and Mr. Binder agreed that the Company would grant Mr. Binder, in lieu of the second option described above, a non-qualified option to purchase 100,000 shares of Common Stock at an exercise price of $2.00 per share, subject to anti-dilution provisions, which option would become exercisable immediately as to all shares subject thereto. Such non-qualified option has been granted and has been exercised by Mr. Binder, pursuant to the Stock Option Exercise Program. See Item 13, "Certain Relationships and Related Transactions." Mr. Binder does not receive any additional compensation for his services to Labco. Compensation Committee Interlocks and Insider Participation. The Company's Executive Compensation Committee (the "Committee") is comprised of Messrs. Abernathy, Harte and McGrath. Mr. Condon served on the Committee until May 1994. During the fiscal year ended December 31, 1994, Mr. Harte was also the Vice President, Special Projects, of the Company. Messrs. Abernathy, Condon and McGrath were not officers or employees of the Company during fiscal 1994. The Company owns a 47% common share equity interest in Labco. Mr. Harte is Chairman of the Board of Labco, and Mr. Binder is a Director of Labco. Until January 1994, Mr. Binder was also the Chief Financial Officer and Treasurer of Labco, positions from which he resigned as of that date. Mr. Binder served on the compensation committee of Labco's Board of Directors during fiscal 1994. Except as described in the preceding sentence, no executive officer of the Company and no member of the Committee is a member of any other business entity that has an executive officer that sits on the Company's Board or on the Committee. Pursuant to the terms of a certain Stockholders' Agreement, dated as of December 15, 1989, by and among the Company and certain employees of Labco ("Stockholders' Agreement"), certain stockholders of Labco transferred to the Company in the form of irrevocable proxies the right to vote their shares of Labco common stock, giving the Company voting control of more than 50% of Labco's outstanding common stock. The Stockholders' Agreement also provided that the Company would have the right of first refusal to purchase such shares in the event that such stockholders wish to sell. The Stockholders' Agreement terminated on December 15, 1994, and was not extended by the parties thereto. In order to maintain voting control of more than 50% of Labco's common stock, the Company entered into a stockholders' agreement, dated as of March 16, 1994, with one stockholder of Labco, pursuant to which such stockholder agreed, so long as it is a stockholder of Labco, to vote its 83,000 shares of Labco common stock in the manner designated by the Company. No cash consideration was paid to such stockholder by the Company for such obligations. On April 21, 1994, Mr. Binder exercised options to purchase 150,000 shares of Common Stock pursuant to the Stock Option Exercise Program, in exchange for which Mr. Binder executed notes payable to the Company in the amount of $203,000. For the period in which no interest accrued on the amounts payable to the Company (from April 21, 1994 until the end of fiscal 1994), Mr. Binder received benefits of $10,609 under the Stock Option Exercise Program, representing interest otherwise payable on such $203,000. See Item 12, "Certain Relationships and Related Transactions" for a description of the Stock Option Exercise Program. In April of 1993, the Company had provided to Mr. Binder an unsecured demand loan of $20,000 in connection with the incurrence by Mr. Binder of tax liability upon exercising certain of his non-qualified stock options. That loan did not bear interest for the first year, after which interest accrued at a rate equivalent to the then current prime rate. The total benefit to Mr. Binder during that portion of 1994 in which such loan did not bear interest was $320. Item 12. Security Ownership of Certain Beneficial Owners and Management. The following table sets forth, as of March 1, 1995, the number of shares of Common Stock, Convertible Preferred Stock, and Class B Convertible Preferred Stock owned by each director and all directors and executive officers as a group and any persons (including any "group" as used in Section 13(d)(3) of the Securities Exchange Act of 1934) known by the Company to own beneficially 5% or more of such securities. As of March 1, 1995, there were 11,486,828 shares of Common Stock, 444,099 shares of Convertible Preferred Stock, 82,494 shares of Class A Convertible Preferred Stock and 317,500 shares of Class B Convertible Preferred Stock issued and outstanding. As of that date, none of the officers and directors owned shares of the Company's Class A Preferred Stock, any of the Company's Convertible Debentures or any of the Company's outstanding warrants. Common Stock Convertible Preferred Class A Convertible Class B Convertible Total Common Stock Stock Preferred Stock Stock and Common Stock Equivalents (1) Name of Beneficial Number of Percent of Number of Percent of Number of Percent of Number of Percent of Number of Percent of Owner Shares Class Shares Class Shares Class Shares Class Shares Class Stanley S. Binder 150,000 1.3% - - - - - - 150,000 (2) 1.3% John H. Davies 163,117 1.4 - - - - - - 163,117 1.4 John J. Harte 40,000 * - - - - - - 55,000 * Richard D. Condon - - - - - - - - 15,000 * John D. Abernathy 6,000 - - - - - - - 21,000 * James C. McGrath - - - - - - - - 15,000 * Kenneth S. Wood 40,000 - - - - - - - 100,000 * Richard S. Rosenfel 1,600 - - 26,600 All directors and executive officers as a group consisting of eight (8) persons 400,717 3.5 - - - - - - 545,717 4.7 Special Situations Fund III, L.P. 153 E. 53rd St. NY, NY 10022 22,564 * 330,000 74.3% - - - - 392,553 3.3 Herbert Boeckmann II 15505 Roscoe Blvd. Sepulveda, CA 93134-650 337,223 * - - - - 60,000 18.9% 99,950 * John R. Purcell c/o Grenadier Association 700 Canal Street Stamford, CT 06902-5921 28,748 * - - - - 100,000 31.5 133,293 1.1 Penfield Partners, Ltd. 153 E 53rd St. NY, NY 10022 169,614 1.5 - - - - 60,000 18.9 232,341 2.0 Colman Abbe c/o Hampshire Fin. Group 919 3rd Ave. NY, NY 10022 58,779 * 29,000 6.5 - - 25,000 7.9 117,429 1.0 Nancy A. Abbe c/o Hampshire Fin. Group 919 3rd Ave. NY, NY 10022 9,733 * - - - - 25,000 7.9 35,869 * R.R. Bowlin Ft. Wayne, IN 37,194 * - - - - 25,000 7.9 63,330 * Esther & Carlos Otto Cheyenne, WY 19,700 * - - 14,060 17.0% - - 34,802 * Elizabeth Butenschoen Colfax, CA 2,301 * - - 6,530 7.9% - - 9,315 * _____________________ *Less than 1%
(1) Common Stock Equivalents for each person or entity assumes the exercise of all outstanding warrants for Common Stock, the conversion of each outstanding share of Convertible Preferred Stock, Class A Convertible Preferred Stock and Class B Convertible Preferred Stock into Common Stock and the issuance of all shares of Common Stock subject to options for such person or entity. (2) Does not include 22,564 shares of Common Stock and 330,000 shares of Convertible Preferred Stock owned by Special Situations Fund III, L.P., of which Mr. Binder is an Independent General Partner. Mr. Binder disclaims any beneficial interest in such shares. Item 13. Certain Relationships and Related Transactions Under the Company's policies and procedures set forth by the Board of Directors for reviewing related party transactions, any transaction between the Company and its respective officers, directors or principal stockholders must be on terms no less favorable to the Company than can be obtained from unaffiliated third parties and must be approved by a majority of the disinterested directors of the Company. Loans will not be made to officers, directors or 5% stockholders except those made pursuant to the Company's Stock Option Exercise Program (as described below) and those made for bona fide business purposes. The Company believes that these measures ensure that the terms of any related party transaction will be at least as fair as those that could be obtained in arm's length transactions, unless intended to constitute additional compensation to the parties involved. In connection with the Company's stock option plan, the Board of Directors has approved a stock option exercise program ("Stock Option Exercise Program"). The Stock Option Exercise Program permits all employees of the Company and its subsidiaries who are granted stock options (pursuant to either qualified or non-qualified plans) to finance the exercise of such options by causing the Company to issue the shares underlying such options upon receipt by the Company from the employee of a note evidencing indebtedness to the Company in an amount equal to the exercise price. Such loans, which are secured by the underlying shares of Common Stock, are interest-free for one year from the date on which the employee exercises his option, after which interest accrues at rate per annum equivalent to the prime rate, which rate is changed monthly. Pursuant to the Stock Option Exercise Program, on April 21, 1994, Mr. Binder and Mr. Wood exercised options to purchase 150,000 shares, of Common Stock and 40,000 shares of Common Stock, respectively, in exchange for which Mr. Binder and Mr. Wood executed notes payable to the Company in the amount of $203,000 and $71,600, respectively. For the period in which no interest accrued to the Company (from April 21, 1994 until the end of fiscal 1994, ), Mr. Binder and Mr. Wood received benefits of $10,609 and $3,742, respectively, under the Stock Option Exercise Program, representing interest otherwise payable on such notes. On May 9, 1995 the Company sold to the special Situations Fund III, L.P. ("SSF III"), a current shareholder and an investment group of which Mr. Binder is an Independent General Partner, and to the Special Situations Fund Cayman, L.P., an affiliate of SSF III (collectively, with SSF III, "SSF"), an aggregate of 125 units at a purchase price of $6,000 per unit for an aggregate purchase price of $750,000. Each unit consists of 10,000 shares of Common Stock and a five-year warrant to purchase 10,000 shares of Common Stock at $.50 per share, subject to certain anti-dilutive provisions. As an inducement to enter into the transaction and in lieu of a transaction fee, the Company also issued to SSI warrants, exercisable for three years, to purchase an aggregate of 150,000 shares of Common Stock at $.50 per share, subject to certain anti-dilutive provisions. In addition, on June 30, 1995, the company sold 22 units to certain officers and directors of the Company for an aggregate purchase price of $132,000. Such units were identical to those sold to SSF. For information relating to Mr. Binder's indebtedness to the Company. See Item 11, "Compensation Committee Interlocks and Insider Participation" above. For a description of certain other relationships, see Item 11, "Management -- Compensation Committee Interlocks and Insider Participation." PART IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K. (a)(1) Financial Statements. The following financial statements of the Company are incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 0-3207. Report of Independent Certified Public Accountants Consolidated Statements of Operations for the Years Ended December 31, 1994, 1993 and 1992 Consolidated Balance Sheets - December 31, 1994 and 1993 Consolidated Statements of Shareholders' Equity for the Years Ended December 31, 1994, 1993 and 1992 Consolidated Statements of Cash Flows for the Years Ended December 31, 1994, 1993 and 1992 Notes to Consolidated Financial Statements (a)(2) Financial Statement Schedule. The following schedule is incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 0-3207. Schedule II - Valuation and Qualifying Accounts All other schedules called for by Regulation S-X are not submitted because they are not applicable or not required or because the required information is not material or is included in the financial statements or notes thereto. (b) Reports on Form 8-K. None. (c) Exhibits. 3.1A Certificate of Incorporation of Barringer Technologies Inc. (formerly Barringer Research Inc.) and any amendments thereto (13) 3.1B Certificate of Designation of Class A Convertible Preferred Stock of the Company. (8) 3.1C Certificate of Decrease in the Number of Shares of Class A Convertible Preferred Stock and Certificate of Designation of Class B Convertible Preferred Stock. (9) 3.2A By-laws of the Company. 4.6A Class E Warrant Agreement between the Company and American Stock Transfer & Trust Company. (1) 4.16 Indenture between the Company and The Colorado National Bank of Denver as Trustee, dated July 15, 1981. (7) 10.15 Employment Agreement, dated as of July 10, 1989, between the Company and Stanley S. Binder. (1) 10.16 Barringer Resources, Inc. 1990 Stock Option Plan. (5) 10.17B Stockholders' Agreement, dated as of December 15, 1989, by and among the Company and certain Employees of Barringer Laboratories, Inc. (1) 10.24 License Agreement dated February 27, 1989 between Canadian Patents and Development Limited - Societe Canadienne Des Brevets Et D'Exploitation Limite and Barringer Instruments Limited. (4) 10.25 Contribution Agreement dated December 22, 1989 by and among Defense Industrial Research Program, the Department of National Defense, Barringer Research Limited and Barringer Instruments Limited. (4) 10.28 Form of Stock Purchase Agreement dated December 9, 1991 between the Company and certain Selling Stockholders. (4) 10.29 Stock Purchase Agreement dated May 11, 1992 by and between Barringer Laboratories, Inc. and Philip Environmental Inc. (10) 10.31 Form of Stock Purchase Agreement dated as of November 30, 1992 by and between the Company and certain accredited investors. (10) 10.32 Financial Advisory Agreement dated April 2, 1992 between the Company and Laidlaw International, Inc. (10) 10.33 Stock Purchase Agreement dated as of February 2, 1993 by and between the Company and Special Situations Caymen Fund, L.P. (10) 10.34 Form of Stock Purchase Agreement dated as of December 13, 1993 by and between the Company and certain accredited investors. (11) 10.35 Voting Agreement by and between the Company and Special Situations Fund III, L.P. (11) 10.36 Loan Agreement, dated September 20, 1994, between Ontario Development Corporation and Barringer Research Limited (12) 11 Statement re: computation of earnings per share (12) 21 Subsidiaries of Barringer Technologies Inc. (11) 23.1 Consent of Independent Certified Public Accountants (12) 23.2 Consent of Independent Certified Public Accountants (12) __________________________ (1) Incorporated by reference to the identically numbered exhibit to the Registrant's Registration Statement on Form S-1, File No. 33-31626. (2) Incorporated by reference to the identically numbered exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, File No. 0-3207. (3) Incorporated by reference to the identically numbered exhibit to the Registrant's Registration Statement on Form S-1, File No. 33-22851. (4) Incorporated by reference to the identically numbered exhibit to the Registrant's Registration Statement on Form S-1, File No. 33-43094. (5) Incorporated by reference to Exhibit 10.25 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1990, File No. 0- 3207. (6) Incorporated by reference to Exhibit 4.1.1 to Registration Statement on Form S-1 File No. 2-70458. (7) Incorporated by reference to Exhibit 4.3 to Registration Statement on Form S-1 File No. 2-70458. (8) Incorporated by reference to Exhibit 1.3 to the Registrant's Registration Statement on Form S-1, File No. 33-31626. (9) Incorporated by reference to Exhibit 1.4 to the Registrant's Registration Statement on Form S-1, File No. 33-43094. (10) Incorporated by reference to the identically numbered exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1992, File No. 0-3207. (11) Incorporated by reference to the identically numbered exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 0-3207. (12) Incorporated by reference to the identically numbered exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 0-3207. (13) Incorporated by reference to the identically numbered exhibit to the Registrant's Annual Report on Form 10-K/A1 for the fiscal year ended December 31, 1994, File No. 0-3207. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. BARRINGER TECHNOLOGIES INC. By: /s/ Richard S. Rosenfeld Richard S. Rosenfeld, Vice President- Finance, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) Dated: July 7, 1995 INDEX TO EXHIBITS Exhibit Number Page No. Exhibit 3.2A By-laws of Barringer Technologies Inc. EXHIBIT 3.2A EX-3 2 AMENDED AND RESTATED BY-LAWS OF BARRINGER TECHNOLOGIES INC. (Effective September 13, 1994) OFFICES Section 1.1. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 1.2. Other Offices. The Corporation may also establish and maintain such other offices as the Board of Directors may from time to time deem necessary or advisable or as the business of the Corporation may require. STOCKHOLDERS Section 2.1. Place of Meetings of Stockholders. Meetings of the Stockholders shall be held at such place or places as may be fixed from time to time by the Board of Directors and the Corporation. Section 2.2. Annual Meeting of Stockholders. The annual meeting of the Stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the second Wednesday of June of each year, if not a legal holiday, and if that day be a legal holiday, then on the next business day following; provided, however, that the annual meeting may be held on such other day as determined by resolution of the Board of Directors, as stated in the notice of the meeting. Section 2.3. Notice of the Annual Meeting of Stockholders. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each Stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Section 2.4. Special Meetings of Stockholders. Special meetings of the Stockholders, for any purpose or purposes, unless otherwise prescribed by law, may be called by the President, and shall be called by the President or Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of Stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 2.5. Notice of Special Meetings of Stockholders. Written notice of a special meeting of Stockholders stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each Stockholder entitled to vote as such meeting. Section 2.6. Fixing Record Date. The Board of Directors may fix, in advance, a date as the record date for the purpose of determining the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, or for the payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, which record date shall not precede the date upon which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) or less than ten (10) days before the date of such meeting, or more than sixty (60) days prior to any other lawful action. Section 2.7. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. Section 2.8. Quorum; Adjourned Meetings. The holders of shares of stock having a majority of the votes entitled to be cast by the holders of all issued and outstanding shares of stock entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the Stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the Stockholders, the Stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting. Section 2.9. Vote Required to Act. When a quorum is present at any meeting, the vote of the holders of a majority of the voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the Certificate of Incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question; provided, however, that at all meetings of stockholders for the election of directors a plurality of the votes cast shall be sufficient to elect. Section 2.10. Voting Rights of Stockholders; Proxies. Unless the Certificate of Incorporation of the Corporation shall provide otherwise, each Stockholder shall at every meeting of the Stockholders be entitled to one (1) vote in person or by proxy for each share of the capital stock having voting power held by such Stockholder. Each Stockholder entitled to vote at any meeting of Stockholders or to express consent or dissent without a meeting may authorize another person or person to act for him or her by proxy, but no proxy shall be voted after three (3) years from its date, unless the proxy provides for a longer period. Without limiting the manner in which a Stockholder may authorize another person or persons to act for him or her as proxy, a Stockholder may execute a writing authorizing another person or persons to act for him or her as proxy. Execution may be accomplished by the Stockholder or his or her authorized officer, director, employee or agent signing such writing or causing his or her signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature, and shall be filed with the Secretary of the Corporation. Section 2.11. Action Without Meeting. Any action required to be taken at any annual or special meeting of Stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those Stockholders who have not consented in writing. Section 2.12. Inspectors at Stockholders' Meeting. The Board of Directors, in advance of any meeting of Stockholders, may appoint one or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed, the presiding officer may, and on the request of any Stockholder entitled to vote thereat shall, appoint one or more inspectors. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. DIRECTORS Section 3.1. Powers of the Board of Directors. The business of the Corporation shall be managed by its Board of Directors (sometimes hereinafter referred to as the "Board") which may exercise all such powers of the Corporation and do all such lawful acts and things as are not be statute or by the Certificate of Incorporation or by these By-laws directed or required to be exercised or done by the Stockholders. Section 3.2. Number, Election, Tenure and Qualification of Directors. The number of directors which shall constitute the whole Board shall be not less than three (3) nor more than fifteen (15). Within the limits above specified, the number of directors shall be determined by resolution of the Board at any meeting. The directors shall be elected at the annual meeting of the Stockholders, except as provided in Section 3.3 of these By-laws, and each director elected shall hold office until his successor is elected and qualified. Directors need not be Stockholders. Section 3.3. Newly Created Directorships and Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any Stockholder or Stockholders holding at least ten (10%) percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3.4. Resignations. A resignation from the Board shall be deemed to take effect upon its receipt by the Secretary, unless otherwise specified therein. Section 3.5. Place and Time of Meetings of the Board. A regular meeting of each newly elected Board shall be held immediately following the Annual Meeting of Stockholders and at the place of such meeting, or as soon as practicable thereafter at such place as shall have been previously fixed for that purpose by resolution of the Board. Other regular meetings by the Board may be held at such times and places as the Board may from time to time determine. Special meetings of the Board shall be held whenever called by order of the Board, by the President or by the Secretary at the written request of any three directors, and at such place or places as may be fixed by the Board or designated in the notice of such meeting. Section 3.6. Notice of Meetings of the Board of Directors. Notice of regular meetings of the Board need not be given. Notice of the time and place of every special meeting of the Board shall be given at least two (2) days before the meeting. Except as otherwise provided by law or by these By-laws, any notice of meeting need not specify the purpose of the meeting. Section 3.7. Quorum. At all meetings of the Board a majority of the total number of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.8. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 3.9. Compensation and Reimbursement of Directors. The Board may fix the compensation of directors for services in any capacity, and may allow directors a fixed sum and expenses of attendance, if any, for attendance at each directors' meeting. Members of committees may be allowed similar compensation and reimbursement for their services as such. No such payment shall preclude any director or committee member from serving the Corporation in any other capacity and receiving compensation therefore. Section 3.10. Interest Directors. No contract or other transaction between the Corporation and one or more of its directors, officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because such director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes such contract or transaction, or solely because his or their votes are counted for such purposes, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the Stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board, a committee thereof, or the Stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board which authorizes the contract or transaction. Section 3.11. Executive Committee. The Board may, from time to time, by resolution passed by a majority of the whole Board, designate an Executive Committee consisting of two or more directors of the Corporation. The Executive Committee shall have and exercise all of the powers of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Such Committee shall serve at the pleasure of the Board, which shall have the power at any time to change the members thereof, to fill vacancies therein and to discharge such Committee, with or without cause. Section 3.12. Other Committees. The Board may, from time to time, by resolution passed by a majority of the whole Board, establish one or more committees of the Board, having such powers and responsibilities, and consisting of two or more directors of the Corporation, as the Board shall designate. Any and all such committees shall serve at the pleasure of the Board, which shall have the power at any time to change the members thereof, to fill vacancies therein and to discharge any such committee, with or without cause. OFFICERS Section 4.1. Authorized Officers. The officers of the Corporation shall be a President, one or more Vice-Presidents, a Treasurer and a Secretary. One person may hold more than one office, and if the same person holds both the office of Secretary and the office of Treasurer, he may be known as the Secretary-Treasurer. Section 4.2. Election or Appointment and Term of Office. The officers of the corporation, other than subordinate or assistant officers, shall be elected or appointed annually by the Board at its first meeting held after each Annual Meeting of Stockholders. The Board may from time to time appoint such subordinate or assistant officers, with such powers and duties, as it may deem desirable, and may from time to time authorize any officer to appoint and remove such subordinate or assistant officers and prescribe their powers and duties. Each officer shall hold office until his or her successor has been elected or appointed and qualified or until the office is declared vacant by the Board, unless he or she shall sooner die, resign or be removed as hereinafter provided. Section 4.3. Removal. Any officer of the Corporation elected or appointed by the Board may be removed at any time by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Corporation shall be filled by the Board. Section 4.4. Resignation. Any officer may resign at any time by giving written notice to the President or the Secretary. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5. Security. The Board may require any officer to give security for the faithful performance of his duties. Such security may be in the form of a bond in such form and with such surety or sureties as the Board may approve. Section 4.6. Compensation. The Board shall have power to fix the compensation of all officers of the Corporation. It may authorize any officers upon whom the power of appointing subordinate or assistant officers may have been conferred to fix the compensation of such subordinate or assistant officers. Section 4.7. President. The President shall be the chief executive officer of the Corporation and, subject to the control of the Board and the Executive Committee, shall in general supervise and control all of the business and affairs of the Corporation. He shall, when present, preside at all meetings of the Stockholders and of the Board. He may sign, with the Secretary or any other proper officer of the Corporation thereunto authorized by the Board, certificates representing shares of the Corporation, and deeds, mortgages, bonds, contracts, or other instruments which the Board has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties as may be prescribed by the Board from time to time. Section 4.8. Vice Presidents. In the absence of the President or in the event of his death or inability to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated at the time of their election, or in the absence of any designation, then in the order of their seniority) shall perform the duties of the President, and when so acting, shall have all the authority of and be subject to all the restrictions upon the President. Any Vice-President may sign, with the Secretary or any other proper officer of the Corporation thereunto authorized by the Board, certificates representing shares of the Corporation; and shall perform such other duties as from time to time may be assigned to him by the President or by the Board. Section 4.9. Secretary. The Secretary shall keep the minutes of the meetings of the Stockholders, of the Board and of the Executive Committee in books provided for the purpose. He shall see that all notices are duly given in accordance with the provisions of these By-laws or as required by law. He shall be custodian of the corporate records and of the seal of the Corporation. He shall see that the corporate seal is affixed to all documents, the execution of which on behalf of the corporation under its seal is duly authorized, and when so affixed may attest the same. In general, he shall perform all duties incident to the office of Secretary, and such other duties as from time to time may be assigned to him by the President or by the Board. Section 4.10. Treasurer. The Treasurer shall have charge of and be responsible for all funds, securities, receipts and disbursements of the Corporation and shall deposit or cause to be deposited in the name of the Corporation all moneys or other valuable effects in such banks, trust companies or other depositories as shall from time to time be designated by the Board. He shall have charge and custody of and be responsible for the keeping of correct and complete books and records of the account of the Corporation and shall render to the Board whenever requested an account of the financial condition of the Corporation. In general he shall perform all the duties incident to the office of Treasurer and such other duties as may be assigned to him by the President or by the Board. Section 4.11. Assistant Secretaries and Assistant Treasurers. The Assistant Secretary and Assistant Treasurer or, if there be more than one, the Assistant Secretaries and Assistant Treasurers in the order determined by the Board, shall, in the absence or inability of the Secretary or the Treasurer, perform the duties and exercise the powers of the Secretary and the Treasurer, respectively, and shall perform such other duties and have such other powers as from time to time may be assigned to them or any of them by the President or by the Board. SHARES AND STOCKHOLDERS Section 5.1. Certificates. Each Stockholder shall be entitled to a share certificate or certificates in a form to be approved by the Board, certifying the number of shares owned by him, signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary and sealed with the seal of the Corporation or a facsimile thereof. Section 5.2. Transfer of Shares. Transfer of shares of stock of the Corporation shall be made only on the books of the corporation by the holder thereof or by duly authorized power of attorney duly executed and filed with the Secretary of the Corporation, or its transfer agent, and upon the surrender of the certificate representing the shares to be transferred properly endorsed and bearing the requisite amount of stock transfer stamps, if any, duly canceled. No transfer of shares of stock of the Corporation shall be valid as against the Corporation, its Stockholders and creditors for any purpose, until it shall have been entered in the stock books of the corporation by an entry showing from and to whom transferred. Section 5.3. Lost, Mutilated or Destroyed Certificates. In case any share certificate is lost, mutilated or destroyed, the Board may authorize the issuance of a new certificate in place thereof upon such terms and conditions as it may deem advisable. DEPOSITORIES Section 6. The Board may designate one or more depositaries for the funds of the Corporation and shall determine what officer or officers or other agents or employees shall be entitled to act on behalf of the Corporation with respect to accounts of the Corporation with such depositories. FISCAL YEAR Section 7. The fiscal year of the Corporation shall be fixed, and shall be subject to change, by resolution of the Board. SEAL Section 8. The Board shall provide a suitable seal having inscribed thereon the name of the Corporation, the year 1967 and such other appropriate legend as may from time to time be determined by the Board. If deemed advisable by the Board, a duplicate seal or seals may be provided and kept for the necessary purposes of the Corporation. NOTICES Section 9.1. Manner of Notice. Whenever by law, the Certificate of Incorporation or these By-laws, notice is required or permitted to be given to any Stockholder, director, officer or member of a committee, it shall not be construed to require personal notice, but such notice may be given in writing, by mail, addressed to such person at his or her address as the same appears on the books of the Corporation or to such other address as such person may have designated in a written request to the Secretary of the Corporation, with postage prepaid thereon, and such notice shall be deemed to be given at the time when the same shall be so deposited in the United States mail. Section 9.2. Waiver of Notice to Stockholders. Notice of a meeting need not be given to any Stockholder who submits a signed waiver of notice in person or by proxy, whether before or after the meeting. The attendance of any Stockholder at a meeting, in person or by proxy, except for the purpose of objecting at the beginning of the meeting to the lack of notice to such meeting, shall constitute a waiver of notice by him. Section 9.3. Waiver-of Notice to Directors. Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him. A waiver of notice need not specify the purpose of any regular or special meeting of the Board. Section 9.4. When Notice or Lapse of Time Unnecessary. Whenever by law, the Certificate of Incorporation or these By-laws or by the term of any agreement or instrument, the Corporation or the Board is authorized to take any action after notice to any person or persons, such action may be taken without notice if at any time before or after such action is completed the person or persons entitled to such notice or entitled to participate in the action to be taken or, in the case of a Stockholder, his attorney-in-fact, submit a signed waiver of notice of such requirements. Section 10. Indemnification. Every person (and the heirs, executors and administrators of such person) who is or was a director, officer, employee or agent of the Corporation, or any other company which such person serves or served as such at the request of the Corporation, shall be indemnified by the Corporation against all judgments, payments in settlement (whether or not approved by court), fines, penalties and other reasonable costs and expenses (including fees and disbursements of counsel) imposed upon or incurred by such person in connection with or resulting from any action, suit, proceeding, investigation or claim, civil, criminal, administrative, legislative or other (including any criminal action, suit or proceeding in which such person enters a plea of guilty or nolo contendere or its equivalent), or any appeal relating thereto, which is brought or threatened either by or in the right of the Corporation or such other company (herein called a "derivative action") or by any other person, governmental authority or instrumentality (herein called a "third-party action"), and in which such person is made a part or is otherwise involved by reason of his being or having been such director, officer, employee or agent or by reason of any action or omission by such person in his capacity as such director, officer, employee or agent if either (a) such person is wholly successful, on the merits or otherwise, in defending such derivative or third-party action or (b) in the judgment of a court of competent jurisdiction or, in the absence of such a determination, in the judgment of a majority of a quorum of the directors of the Corporation (which quorum shall not include any director who is a party to or is otherwise involved in such action) or, in the absence of such a disinterested quorum, in the opinion of independent legal counsel (i) in the case of a derivative action, such person acted without negligence or misconduct in the performance of his duties to the Corporation or such other company, or (ii) in the case of a third-party action, such person acted in good faith in what he reasonably believed to be the best interests of the Corporation or such other company and, in addition, in any criminal action, such person had no reasonable cause to believe that his action was unlawful; provided that, in the case of a derivative action, such indemnification shall not be made in respect of any payment to the Corporation or such other company or any stockholder thereof in satisfaction of judgment or in settlement unless either (x) a court of competent jurisdiction has approved such settlement, if any, and the reimbursement of such payment or (y) if the court in which such action has been instituted lacks jurisdiction to grant such approval or such action is settled before the institution of judicial proceedings, in the opinion of independent legal counsel, the applicable standard of conduct specified in this sentence has been met, such action was without merit, such settlement was in the best interests of the Corporation or such other company and the reimbursement of such payment is permissible under applicable law. In case such person is successful, on the merits or otherwise, in defending part of such action or, in the judgment of such a court or such directors or in the opinion of such counsel, has met the applicable standard of conduct specified in the preceding sentence with respect to part of such action, he shall be indemnified by the Corporation against the judgments, settlement payments, fines, penalties and other costs and expenses attributable to such part of such action. The foregoing rights of indemnification shall be in addition to any rights to which any such director, officer, employee or agent may otherwise be entitled under any agreement or vote of Stockholders or at law or in equity or otherwise, including, but not limited to, any indemnification to which such director, officer, employee or agent may now or hereafter be entitled under Section 145 of the General Corporation Law of the State of Delaware. In any case in which, in the judgment of a majority of such a disinterested quorum of the directors, any such director, officer, employee or agent will be entitled to indemnification under the foregoing provisions of this Article, such amounts as they deem necessary to cover the reasonable costs and expenses incurred by such person in connection with the action, suit, proceeding, investigation or claim prior to final disposition thereof may be advanced to such person, in the case of a director or officer, upon receipt of an undertaking by or on behalf of such person to repay such amounts if it is ultimately determined that he is not so entitled to indemnification and in the case of an employee or agent, upon such terms and conditions, if any, as the Board deems appropriate. AMENDMENT AND REPEAL Section 11. Mode of Amendment or Appeal. These By-laws may be amended, repealed or new By-laws adopted, by vote of the holders of a majority of the stock having voting power or by the affirmative vote of a majority of the entire Board, at any meeting duly called and held at which a quorum is present. Any By-law adopted by the Board may be amended or repealed by the Stockholders entitled to vote thereon as herein provided. -----END PRIVACY-ENHANCED MESSAGE-----