-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QHguo0ZNQfy6MyGGTznyrO0uy9UAO6tZnT2Ed+l0r/SB8BU/b5KRHY0ncnBscUov IWCd3rfbMF4F0+6a1x2FNA== 0000071241-00-000016.txt : 20000411 0000071241-00-000016.hdr.sgml : 20000411 ACCESSION NUMBER: 0000071241-00-000016 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19991231 FILED AS OF DATE: 20000329 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW BRUNSWICK SCIENTIFIC CO INC CENTRAL INDEX KEY: 0000071241 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY APPARATUS & FURNITURE [3821] IRS NUMBER: 221630072 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: SEC FILE NUMBER: 000-06994 FILM NUMBER: 583482 BUSINESS ADDRESS: STREET 1: 44 TALMADGE RD STREET 2: PO BOX 4005 CITY: EDISON STATE: NJ ZIP: 08818-4005 BUSINESS PHONE: 9082871200 MAIL ADDRESS: STREET 1: 44 TALMADGE ROAD STREET 2: PO BOX 4005 CITY: EDISON STATE: NJ ZIP: 08818-4005 10-K405 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K 405 ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT OF 1934 For the Fiscal Year Ended December 31, 1999 Commission File Number 0-6994 NEW BRUNSWICK SCIENTIFIC CO., INC. (Exact name of registrant as specified in its charter) New Jersey 22-1630072 ----------- ---------- (State of incorporation) (I.R.S. Employer Identification Number) 44 Talmadge Road, Edison, N.J. 08818-4005 ----------------------------------------- (Address of principal office) Registrant's telephone number: (732) 287-1200 -------------- Securities registered pursuant to Section 12(b) of the Act: - ------------------------------------------------------------------ Name of each exchange Title of each class on which registered ---------------------- ------------------------ None N/A Securities registered pursuant to Section 12(g) of the Act: - ------------------------------------------------------------------ Title of class ---------------- Common stock - par value $0.0625 Common stock Purchase Rights 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. The aggregate market value of the voting stock held by non-affiliates of the registrant was $30,554,575 as of February 10, 2000. This figure was calculated by reference to the high and low prices of such stock on February 10, 2000. The number of shares outstanding of the Registrant's Common stock as of February 10, 2000: 5,356,487 --------- DOCUMENTS INCORPORATED BY REFERENCE Registrant's Proxy Statement and Annual Report to be filed within 120 days after the end of the fiscal year 1999, are incorporated in Part III herein. The EXHIBITS INDEX is on Page 48. 1 ------ PART I ------ ITEM 1. BUSINESS -------- New Brunswick Scientific Co., Inc. and its subsidiaries ("NBS" or "the Company") design, manufacture and market a variety of equipment used in biotechnology to create, maintain, measure and control the physical and biochemical conditions required for the growth and detection of microorganisms. This equipment is used in medical, biological, chemical, and environmental research and for the commercial development of antibiotics, proteins, hormones, enzymes, monoclonal antibodies, agricultural products, fuels, vitamins, vaccines and other substances. The equipment sold by NBS includes fermentation equipment, bioreactors, biological shakers, nutrient sterilizing and dispensing equipment, ultra-low temperature freezers and tissue culture apparatus. In late 1999, the Company acquired DJM Cryo-Research Limited, the manufacturer of the ultra-low temperature freezers which the Company has been marketing. DGI BioTechnologies, LLC. (DGI) was established in 1995 by the Company to develop and commercialize a novel technology, the Diogenesis process, that facilitates the discovery of new drugs. DGI is more than eighty two percent (82%) owned and fully funded by the Company and occupies specially designed laboratory space at the Company's headquarters facility in Edison, New Jersey. Diogenesis has been developed to provide the pharmaceutical and biotechnology industries with site-directed assay systems to rapidly generate small, orally available, organic drug leads. Unlike other techniques, leads generated by DGI's process will uniformly possess the defining characteristics of effective drugs: activity, selectivity and affinity for the biological target. DGI has been granted a U.S. patent and has applied for foreign patents covering its proprietary drug lead discovery technology which utilizes state-of-the-art molecular-biological and immunological tools to scan known pharmaceutical targets in a manner that offers major advantages over existing drug discovery approaches. DGI has also submitted patent applications in connection with various assays it has developed. DGI's strategy is to enter into partnership agreements with multiple pharmaceutical and/or biotechnology companies whereby DGI will generate focused libraries of small molecule compounds known to be active against the partner's target. DGI will generate revenues from research on behalf of corporate partners, milestone payments for the identification of leads and product royalties. The employees, certain consultants and the Board of Managers of DGI have been issued options, which if exercised, in the aggregate represent approximately 5.8% of DGI. NBS was incorporated in 1958 as the successor to a business founded in 1946 by David and Sigmund Freedman, its principal stockholders and two of its directors and executive officers. The Company owns its 243,000 square foot headquarters and primary production facility located on 17 acres of land in Edison, New Jersey. 2 PRODUCTS -------- Fermentation Equipment and Bioreactors. A fermentor is a device used to ----------------------------------------- create, maintain and control the physical, chemical, and biochemical environmental conditions required for growing bacteria, yeast, fungi and other similar microorganisms. Bioreactors serve an identical purpose for the propagation of animal and plant cells. The Company's fermentors and bioreactors range in size from small research models to large systems that are used in cGMP production facilities. The larger systems are typically sold under contract. The number of larger systems sold in any reporting period may materially affect the sales and profitability of the Company. NBS has supplied fermentors and bioreactors to universities, biotechnology and pharmaceutical company laboratories since the 1950's. NBS' fermentors and bioreactors are used for applications using microorganisms engineered by recombinant DNA techniques; immunology; and the production of monoclonal antibodies. Animal and plant cells as well as bacteria and viruses are usually grown on a small scale for research purposes. As the process is scaled up (i.e., replicated, using larger volumes), physical and chemical parameters, such as pH, vessel pressure and chemical composition may change, and the equipment used may require increasingly sophisticated control systems. Scale-up, which is one of the important uses of the Company's pilot scale systems is a complex technical procedure critical to successful commercialization of biological processes. Pilot scale systems may be used to set parameters or to determine the feasibility of production at greater volumes, depending upon the goal of the customer. Particularly in the area of bioreactors, the Company has developed unique designs and has been issued patents to protect its technology. The Company's fermentors and bioreactors incorporate sophisticated instrumentation systems to measure, record and control a multiplicity of process variables. The Company manufactures digital instrumentation for control of fermentors and bioreactors. This instrumentation significantly enhances the utility of any size fermentor or bioreactor. Consisting of an operator display and a series of microprocessor-controlled instrument modules, this control unit uses software developed by the Company to simplify the operation of fermentors and bioreactors while enhancing their performance. It automatically monitors, displays, analyzes, and makes immediately available, data concerning the culture process and permits automatic modification of the various growth conditions without the need of a host computer. This system is designed to replace manually operated controls as well as more complex and more costly automatic systems. Biological Shakers. Biological shakers perform a function similar to fermentors - ------------------ and bioreactors, as they are also used in the process of propagating biological cultures. Shakers agitate flasks under controlled conditions containing biological cultures in a liquid media in which nutrients are dissolved. Nutrients are the source of energy needed for growth, while shaking furnishes the dissolved oxygen needed to permit life processes to take place within the microorganism. NBS Shakers are in worldwide use in biological laboratories for research, development, and in some cases, for production of various medical, biological and chemical 3 products. In addition, shakers are widely used in microbiological and recombinant DNA research. The Company manufactures an extensive line of biological shakers ranging in size from portable laboratory benchtop models to large multitier industrial machines. Some models of the Company's shakers are designed to agitate flasks under controlled environmental conditions of temperature, atmosphere and light. Each shaker incorporates a variable speed regulator and may be equipped to accommodate flasks of various sizes. To permit culture growth under constant and reproducible conditions, shakers manufactured by NBS are precision engineered and manufactured to agitate flasks uniformly and continuously over prolonged periods. The Company manufactures two distinct lines of shakers. Its INNOVA line, which is its most sophisticated shaker, and, its "Classic" Line. The Classic line is intended primarily for sale through distributors. Nutrient Sterilizing and Dispensing Equipment. The Company manufactures devices - --------------------------------------------- that automatically sterilize biological nutrients and then maintains those nutrients at the required temperature for subsequent use. As a complement to its nutrient sterilizers, NBS sells an apparatus which automatically fills culture dishes with sterile nutrient. Tissue Culture Apparatus. The Company manufactures apparatus to rotate bottles - ------------------------- and test tubes slowly and constantly for the purpose of growing animal and plant cells. Certain models of this apparatus may be placed into an incubator and equipped to regulate the speed of rotation. The Company also markets carbon dioxide incubators used in the propagation of tissue cultures. This apparatus has applications in vaccine production, cancer and heart disease research, and the commercial production of pharmaceuticals. Ultra-Low Temperature Freezers - -------------------------------- The Company manufactures a line of ultra-low temperature freezers which are used in laboratories handling DNA, enzymes, tissue samples, blood and blood products as well as in laboratories involved in human reproductive technology. Other Scientific Products. NBS distributes a line of centrifuges for separating - ------------------------- cells from fermentation broth. PRODUCT DEVELOPMENT -------------------- NBS designs and develops substantially all the products it sells. Its personnel, who include biochemical, electrical, chemical, mechanical, electronic and software engineers as well as scientists and technical support staff, formulate plans and concepts for new products and improvements or modifications to existing products. The Company develops specialized software for use with its computer-coupled systems and the microprocessor-controlled instrumentation systems for shakers, fermentors and bioreactors. 4 MANUFACTURING - ------------- Manufacturing is conducted according to planning and production control procedures primarily on a lot production basis rather than on an assembly line. NBS fabricates its parts from purchased raw materials and components and produces most of its subassemblies. These parts, components and subassemblies are carried in inventory in anticipation of projected sales and are then assembled into finished products according to production schedules. In general, manufacturing is commenced in anticipation of orders. The manufacturing processes for the Company's products range from two weeks to many months, depending upon the product size, complexity and quantity. However, a substantial portion of orders received are for items in the process of being manufactured or in inventory. The raw materials used by the Company include stainless steel, carbon steel, copper, brass, aluminum and various plastics. Some components are purchased from others, including pumps, compressors, plumbing fittings, electrical and electronic components, gauges, meters, motors, glassware and general purpose hardware. Many of these components are built to the Company's specifications. NBS is not dependent upon any single supplier for any raw material or component, but delay in receipt of key components can affect the manufacturing schedule. The Company's products are designed to operate continuously over long periods with precision and regularity so that research and production may be conducted under controlled, constant and reproducible conditions. The Company manufactures its products from materials which it selects as having characteristics necessary to meet its requirements. In addition, to ensure that its manufacturing processes result in products meeting exacting specifications and tolerances, NBS follows rigorous inspection procedures. NBS maintains a Quality Assurance Department which is responsible for inspecting raw materials and parts upon arrival at its plant as well as inspecting products during manufacture. NBS' products are serviced at its plant and at its customers' premises by Company technicians, distributors' technicians or, in the case of minor repairs, by sales personnel. MARKETING AND SALES --------------------- The Company sells its equipment to pharmaceutical companies, agricultural and chemical companies, other industrial customers engaged in biotechnology, and to medical schools, universities, research institutes, hospitals, private laboratories and laboratories of Federal, State and Municipal government departments and agencies in the United States. While only a small percentage of the Company's sales are made directly to United States government departments and agencies, its domestic business is significantly affected by government expenditures and grants for research to educational research institutions and to industry. The Company regularly evaluates credit granted to customers and generally requires progress payments for the purchase of custom bioprocess equipment. NBS also sells its equipment, both directly and through scientific equipment dealers, to foreign companies, institutions, and governments. The major portion of its foreign 5 sales are made in Canada, Western Europe, the Middle East, China, Japan, India, Taiwan and Australia. NBS also sells its products in the former Soviet Union, Eastern Europe, Africa, other Asian countries and Latin America. These sales may be substantially affected by changes in the capital investment policies of foreign governments, or by the availability of hard currency. Fisher Scientific is the exclusive U.S. distributor of the Company's Classic line of biological shakers. While Fisher is the exclusive U.S. distributor for these NBS Shakers, NBS markets and sells its' shakers and other products on a direct basis as well. Fisher also distributes a few selected INNOVA models. For information concerning net sales in the United States and foreign countries, income (loss) from operations derived therefrom, identifiable assets located in the United States and foreign countries, and export sales for each of the three years ended December 31, 1999, see Note 12 of Notes to Consolidated Financial Statements under the heading "Operations by Geographic Areas." Export sales consist of all sales by the Company's Domestic Operations to customers located outside the United States. Hence, foreign sales include export sales. Substantially all of the orders of the Company's domestic operations, including export orders are booked in United States dollars and are payable promptly upon delivery of the equipment. The Company's wholly owned European subsidiaries book orders for equipment in local currencies and in some instances in United States dollars. The assets and liabilities of the Company's European subsidiaries are valued in local currencies. Fluctuations in exchange rates between those currencies and the dollar have had an impact upon the Company's consolidated financial statements, as measured in United States dollars. Export sales are influenced by changes in the exchange rate of the dollar as those changes affect the cost of the Company's equipment to foreign purchasers. Certain countries, particularly those in Eastern Europe and the former Soviet Union, may not be able to make substantial capital purchases in dollars for economic or political reasons. NBS maintains five European sales offices through wholly-owned subsidiaries, New Brunswick Scientific (U.K.) Limited, in England, New Brunswick Scientific B.V. in The Netherlands, New Brunswick Scientific GmbH in Germany, New Brunswick Scientific NV/SA in Belgium and New Brunswick Scientific S.a.r.l. in France and with three offices, also sells on a direct basis in China. In November 1999, the Company acquired DJM Cryo-Research Limited (subsequently renamed NBS Cryo-Research Limited) (DJM), a manufacturer of ultra-low temperature freezers located in Tollesbury, England. Prior to the acquisition, substantially all of DJM's sales were to the Company. The Company sells these freezers on a direct basis in the United Kingdom, the Netherlands, Belgium and Germany and through distributors in many other countries. The freezers are not currently being sold in the U.S. market. In mid-December 1998, the Company acquired, for an insignificant amount, the assets of Inceltech, a small fermentor manufacturing company located in Toulouse, France and 6 established NBS/Inceltech as part of the Company's existing French subsidiary New Brunswick Scientific S.a.r.lInceltech has a customer base in southern France and the United Kingdom which NBS/Inceltech will continue to serve. Foreign sales of the Company's standard products (i.e., those listed in its product catalogs) are generally made directly by these subsidiaries. At December 31, 1999, NBS had a backlog of unfilled orders of $8,569,000, compared with $8,726,000 at the end of 1998. The December 31, 1999 backlog was comprised of orders for standard equipment as well as orders for larger systems. NBS expects to fill all of its existing backlog during the coming year. One customer based in the United States accounted for approximately 10.6%, 11.6% and 12.0%, respectively, of consolidated net sales during the years ended December 31, 1999, 1998 and 1997. RESEARCH AND DEVELOPMENT - -------------------------- Research and development expenditures, all of which are sponsored by the Company, amounted to $3,919,000 in 1999, $2,995,000 in 1998 and $2,637,000 in 1997. Thirty-Nine (39) of the Company's professional employees were engaged full time in research and development activities. RESEARCH AND LICENSE AGREEMENT - --------------------------------- On May 28, 1999, DGI entered into a Research and License Agreement (the Agreement) with Novo Nordisk A/S, a corporation based in Denmark (Novo). Under the terms of the Agreement, DGI granted to Novo a license to use and sell products worldwide under certain DGI patent rights and technology. In exchange, DGI will receive $1.6 million in non-refundable license fees of which $1.1 million was paid in July 1999 and the remaining $500,000 is due in June 2000. In addition, the Agreement provides for additional payments if specified development milestones are met and the payment of royalties on future sales of a Novo product resulting from the use of DGI's technology, as well as certain other billings for services provided to Novo. INVESTMENT IN ORGANICA, INC. - ------------------------------- Since November 1994, the Company has invested $950,000 (less than a twenty- percent interest) in Organica, Inc. (Organica) which was formed in 1993 to develop and commercialize various "environmentally friendly" products produced via fermentation processes. Organica isolates and cultures naturally occurring microorganisms and fungi and blends them with various nutrient sources and carriers to create its products, which are offered as alternatives to various hazardous products. Organica has focused primarily on natural turf products, compost accelerators, hydrocarbon remediation products and non-caustic drain openers. 7 - ------ COMPETITION - ----------- The competitive factors affecting the Company's position as a manufacturer of biotechnology equipment include availability, reliability, ease of operation, the price of its products, its responsiveness to the technical needs and service requirements of customers, and product innovation. NBS encounters competition from approximately 11 domestic and 15 foreign competitors in the sale of its products. The Company's principal competitor in the sale of fermentation equipment and bioreactors both in the United States and overseas is B. Braun Biotech, a German company. Additional competitors include L.E. Marubishi Co., Ltd. located in Japan; Applikon, B.V., located in The Netherlands; and Abec, located in Pennsylvania. Although financial information concerning these firms is not readily available, the Company believes that many of its competitors have substantially greater financial resources than the Company. The Company believes that it has the largest worldwide market share for biological shakers. LabLine Instruments, Inc. and Forma Scientific in the United States as well as several manufacturers in Europe are strong competitors of the Company in this market. NBS encounters substantial competition in the sale of most of its other equipment where its sales do not represent major market shares. Although the Company does not encounter substantial competition in the sale of its nutrient sterilizing and dispensing equipment in the U.S. market, substantial competition exists in foreign markets. EMPLOYEES --------- NBS employs approximately 506 people, including 262 people engaged in manufacturing and supervision, 69 in research, development and engineering (including 27 employed by DGI), 123 in sales and marketing, and 52 in administrative and clerical duties. Manufacturing employees currently work a single shift, however, in certain areas a second shift has been employed. The Company's New Jersey manufacturing employees are represented by District 15 of the International Association of Machinists, AFL-CIO under a contract which expires in December 2003. The Company considers its labor relations to be good. WORKING CAPITAL ---------------- NBS maintains a substantial inventory of parts, components and subassemblies to fill orders for its products. Management believes it has adequate working capital for its present level of operations. The Company had a $5 million secured revolving credit agreement with Summit Bank which was effective through May 31, 1999. On April 16, 1999, the Company terminated the credit agreement with Summit Bank and entered into an agreement (the Bank Agreement) with First Union National Bank for a three year, $31 million secured line of credit. The Bank 8 Agreement provides the Company with a $5 million revolving credit facility for both working capital and for letters of credit, a $1 million revolving line of credit for equipment acquisition purposes, a $15 million credit line for acquisitions and a $10 million foreign exchange facility. There are no compensating balance requirements and any borrowings under the Bank Agreement bear interest at various rates based upon a function of the bank's prime rate or Libor at the discretion of the Company. All of the Company's domestic assets, which are not otherwise subject to lien, have been pledged as security for any borrowings under the Bank Agreement. The Bank Agreement contains various business and financial covenants including, among other things, a debt service coverage ratio, a net worth covenant, and a ratio of total liabilities to tangible net worth. PATENTS AND TRADEMARKS ------------------------ NBS holds and has filed applications for United States and foreign patents relating to many of its products, their integral components and significant accessories. NBS also has certain registered trademarks. However, NBS believes that its business is not dependent upon patent, trademark, or other proprietary protection in any material respect. DGI has received a patent covering its platform technology and has filed patent applications covering certain assays. DGI has also applied for a number of trademarks. CAUTIONARY STATEMENT --------------------- Statements included herein which are not historical facts are forward looking statements. Such forward-looking statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The forward looking statements involve a number of risks and uncertainties, including but not limited to, changes in economic conditions, demand for the Company's products, pricing pressures, intense competition in the industries in which the Company operates, the need for the Company to keep pace with technological developments and timely respond to changes in customer needs, the Company's dependence on third party suppliers, the effect on foreign sales of currency fluctuations, acceptance of new products, consistency in the level of orders for custom bioprocess systems, the ability of DGI to achieve its scientific objectives and enter into corporate partnering and/or licensing agreements, the labor relations of the Company and its customers and other factors identified in the Company's Securities and Exchange Commission filings. ITEM 2. PROPERTY -------- The Company's executive, administrative, engineering and domestic sales offices and its manufacturing operations, warehouse and other facilities are located in a Company owned 243,000 square foot one-story steel and concrete block building situated on a 17-acre site in Edison, New Jersey. Approximately 50,000 square feet is office space, approximately 16,000 square feet is laboratory space (including 8,700 square feet occupied by DGI), and the balance is devoted to manufacturing and warehouse facilities. The Company's NBS Benelux B.V. subsidiary owns its 22,825 square foot building in Nijmegen, The Netherlands. 9 The Company's wholly-owned European subsidiaries lease facilities as follows: New Brunswick Scientific (UK) Limited - 17,000 square feet, NBS Cryo-Research Limited - 24,664 square feet, New Brunswick Scientific, S.a.r.l. - approximately 27,000 square feet, NBS GmbH - 1,400 square feet and New Brunswick Scientific NV/SA - 825 square feet. ITEM 3. LEGAL PROCEEDINGS ------------------ No material legal proceedings are currently pending. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS ----------------------------------------------------------- None. ITEM 5. MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED SECURITY HOLDER ------------------------------------------------------------------- MATTERS ----- (A) The Company's Common stock is traded in the National over-the-counter market (Nasdaq symbol NBSC). The following table sets forth the high and low prices for the Company's Common stock as reported by Nasdaq for the periods indicated. The prices represent quotations between dealers reflecting prevailing market factors which may include anticipated markups or markdowns and do not necessarily represent actual transactions.
HIGH LOW ------ ----- 1998 First Quarter. . . . . . . . $ 9.40 $6.82 Second Quarter . . . . . . . 13.00 8.63 Third Quarter. . . . . . . . 8.94 4.00 Fourth Quarter . . . . . . . 7.38 5.25 1999 First Quarter. . . . . . . . $ 7.28 $3.98 Second Quarter . . . . . . . 9.75 4.32 Third Quarter. . . . . . . . 9.00 5.88 Fourth Quarter . . . . . . . 7.13 5.00 2000 First Quarter (through February 10, 2000) $ 9.00 $5.00
(B) The number of holders, including beneficial owners, of NBS' Common stock as of February 10, 2000, is 1,751. (C) NBS paid 10% Common stock dividends on May 14, 1999 and May 15, 1998. 10 ITEM 6. SELECTED FINANCIAL DATA ------------------------- The following table sets forth selected consolidated financial information regarding the Company's financial position and operating results. This information should be read in conjunction with Management's Discussion and Analysis of Financial Condition and Results of Operations and the Consolidated Financial Statements and Notes thereto which appear elsewhere herein.
Year Ended December 31, - ---------------------------------------- 1999 1998 1997 1996 1995 -------- -------- ------- ------- ------- (In thousands, except per share amounts) Net sales. . . . . . . . . . . . . . . . $54,248 $46,495 $45,596 $42,927 $39,085 Net income (loss). . . . . . . . . . . . (1,148) (156) 1,012 882 1,172 Basic earnings (loss) Per Share (a) . . . . . . . . . . . . . (.22) (.03) .20 .17 .23 Diluted earnings (loss) Per Share (a) . . . . . . . . . . . . . (.22) (.03) .19 .17 .23 Total assets (b) . . . . . . . . . . . . 46,026 39,066 38,090 37,226 35,685 Long-term debt, net of Current installments (b). . . . . . . . 7,347 239 247 401 564 Cash dividends Per Share . . . . . . . . . . . . . . . . . - - - .05 -
(a) Adjusted to reflect 10% stock dividend distributed on May 14, 1999. (b) At year-end ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND ------------------------------------------------------------------- RESULTS OF OPERATIONS ------------------- Statements included herein which are not historical facts are forward looking statements. Such forward-looking statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The forward looking statements involve a number of risks and uncertainties, including but not limited to, changes in economic conditions, demand for the Company's products, pricing pressures, intense competition in the industries in which the Company operates, the need for the Company to keep pace with technological developments and timely respond to changes in customer needs, the Company's dependence on third party suppliers, the effect on foreign sales of currency fluctuations, acceptance of new products, consistency in the level of orders for custom bioprocess systems, the ability of DGI to 11 achieve its scientific objectives and enter into corporate partnering and/or licensing agreements, the labor relations of the Company and its customers and other factors identified in the Company's Securities and Exchange Commission filings. Results of Operations --------------------- 1999 vs. 1998 - --------------- For the year ended December 31 1999, the Company incurred a net loss of $1,148,000 or $.22 per diluted share on net sales of $54,248,000 compared with a net loss of $156,000 or $.03 per diluted share on net sales of $46,495,000 for the year ended December 31, 1998. The 1999 loss reflects non-recurring severance costs of $663,000 for the Company's former President and Chief Executive Officer, Ezra Weisman, who left the Company in January 2000 to pursue other interests. During late 1999, it was agreed that Mr. Weisman would leave the Company in early 2000. Excluding the severance charge there was a loss before income taxes of $40,000. In addition, although there was a consolidated loss before income taxes, a tax expense of $445,000, was required, which is attributable to the Company's foreign subsidiary operations. No tax benefit was recognized for the Company's U.S. operating losses which are primarily attributable to losses incurred by the Company's majority-owned drug-lead discovery operation, DGI BioTechnologies (DGI). Net sales increased $7,753,000, from $46,495,000 to $54,248,000, or 16.7%. The increase in net sales in 1999 is attributable to the receipt by DGI of its first revenues in the amount of $1,785,000 ($1,600,000 of non-refundable license fees and billings for services rendered related to the Research and License Agreement with Novo Nordisk A/S), a 19% increase in export sales and a 33% increase in sales by the Company's European subsidiaries which benefited from strong sales of the Company's core products and ultra-low temperature freezers. Gross margins increased to 40.1% in 1999 from 39.3% in 1998 as a result of the inclusion in net sales of $1,785,000 of the aforementioned licensing revenue for DGI against which there is no cost of sales and which was partially offset by lower margins on core products due to the significant increase in export sales which carry lower margins than sales in the U.S. market. Selling, general and administrative expenses increased $1,705,000 from $13,801,000 to $15,506,000 or 12.4% during 1999 as a result of normal year to year increases, expenses related to the higher level of sales and the strengthening of the Company's European sales and marketing organization including the operating costs of Inceltech, the French fermentor manufacturer acquired by the Company in late 1998. 12 Research, development and engineering expenses increased $1,333,000 or 27.5% to $6,176,000 in 1999 from $4,843,000 in 1998 primarily as the result of a 45.6% increase in costs to support the research efforts of DGI, the Company's drug-lead discovery operation whose expenses increased to $3,198,000 in 1999 from $2,196,000 in 1998, primarily as a result of a significant increase in scientific personnel. Interest income decreased to $45,000 in 1999 from $114,000 in 1998 due to a lower level of invested cash and lower interest rates. The increase in interest expense to $127,000 in 1999 from $8,000 in 1998 is due to borrowings during 1999 under the Company's working capital line and to borrowings in November under the Company's credit agreement for the purchase of DJM Cryo-Research Limited, a manufacturer of ultra-low temperature freezers located in the United Kingdom. Other income (expense), net decreased to an expense of $5,000 in 1999 from an expense of $43,000 in 1998 due to the inclusion in 1998 of a loss related to the disposal of fixed assets which did not occur in 1999. The Company's equity in loss in a joint venture entered into in 1998 increased to $48,000 in 1999 from $36,000 in 1998 due to increased selling and marketing costs of the venture. During 1999, the U.S. dollar strengthened against the currencies of the European countries where the Company has subsidiary operations. The effects of balance sheet translation resulted in a currency translation adjustment of $539,000 which is reflected as a component of accumulated other comprehensive loss in the equity section of the Consolidated Balance Sheet. 1998 vs. 1997 --------------- For the year ended December 31, 1998, the Company incurred a net loss of $156,000 or $.03 per diluted share on net sales of $46,495,000 compared with net income of $1,012,000 or $.19 per diluted share on net sales of $45,596,000 for the year ended December 31, 1997. In 1998, U.S. domestic sales increased 21.6%, but were offset by a 14.2% decrease in international sales resulting in an overall increase in consolidated net sales of 2%. International sales were affected by the Asian financial crisis and its spread to other areas of the world where the Company does business. Gross profit as a percentage of sales declined to 39.3% in 1998 from 40.1% in 1997 as a result of increased shipments in 1998 of custom bioprocess systems which carry lower profit margins than core products. Selling, general and administrative expenses increased to $13,801,000 in 1998 from $13,086,000 in 1997 due to normal annual increases and as the result of an effort to strengthen the Company's sales and service capabilities. Research, development and engineering expenses increased to $4,843,000 in 1998 from $4,139,000 in 1997 due primarily to the strengthening of the Company's bioprocess 13 engineering division as well as its new product development efforts and also included $2,196,000 and $1,923,000, respectively, for 1998 and 1997 to support the research efforts of DGI BioTechnologies, the Company's drug-lead discovery operation. Interest income decreased to $114,000 in 1998 from $149,000 in 1997 due to a lower level of invested cash and lower interest rates. The reduction in interest expense in 1998 is primarily the result of the inclusion in 1997 of interest costs related to the settlement of tax audits. The increase in other expense to $43,000 in 1998 from $9,000 in 1997 is primarily due to costs related to the disposal of fixed assets. The Company incurred a loss of $36,000 related to the joint venture entered into during 1998. During 1998, the U.S. dollar remained stable against the currencies of the European countries where the Company has subsidiary operations resulting in virtually no effect on income from foreign operations. The effects of balance sheet translation resulted in a currency translation adjustment of $622,000 which is reflected as a component of accumulated other comprehensive loss in the equity section of the Consolidated Balance Sheet. Financial Condition ------------------- Liquidity and Capital Resources ---------------------------------- During 1999, the Company replaced its then existing bank line of credit with a $31 million line of credit provided by First Union National Bank, which provides $15 million for acquisition purposes, $5 million for working capital, a $10 million foreign exchange facility and $1 million for equipment acquisition purposes. The Company has initiated a program, primarily in its manufacturing operations, which it expects will lead to improvements in efficiency and increases in profitability. Working capital increased from $23,316,000 at December 31, 1998 to $23,358,000 at December 31, 1999 and cash and cash equivalents decreased from $3,793,000 at December 31, 1998 to $2,111,000 at December 31, 1999 as a result of the following: Cash Flows from Operating Activities ---------------------------------------- During the year ended December 31, 1999 net cash used in operating activities amounted to $2,105,000 as compared to cash provided of $766,000 during the year ended December 31, 1998. The primary reasons for the $2,871,000 net decrease from 1998 to 1999 were (i) a net loss in 1999 of $1,148,000 compared with a loss of $156,000 in 1998, (ii) an 14 increase in accounts receivable of $3,242,000 in 1999 compared with a decrease of $721,000 in 1998 and (iii) a decrease in advance payments from customers of $956,000 in 1999 compared with a decrease of $22,000 in 1998, partially offset by (i) no change in deferred income taxes in 1999 compared with an increase of $104,000 in 1998, (ii) a decrease in inventories of $1,101,000 in 1999 compared with an increase of $905,000 in 1998 and an increase in accounts payable and accrued expenses of $506,000 in 1999 compared with an increase of $62,000 in 1998. Cash Flows from Investing Activities ---------------------------------------- Net cash used in investing activities was $6,902,000 in 1999 compared to $1,341,000 in 1998, as a result of an increase of $155,000 related to additions to property, plant and equipment and $5,476,000 related to the acquisition of DJM in 1999, partially offset by sales of equipment in 1999 and 1998 of $129,000 and $46,000, respectively. Cash Flows from Financing Activities ---------------------------------------- Net cash provided by financing activities amounted to $7,455,000 in 1999 compared to $334,000 provided in 1998. 1999 includes (i) mortgage proceeds of $215,000, (ii) borrowings under long-term credit facility of $5,476,000 and (iii) proceeds from issuance of shares under stock purchase and option plans of $518,000. 1998 includes proceeds from issuance of shares under stock purchase and option plans of $449,000 partially offset by repayments of long-term debt of $115,000. Management believes that the resources available to the Company, including its line of credit are sufficient to meet its near and intermediate-term needs, including the funding commitments for DGI. Other Matters ------------- Recently Issued Accounting Standards --------------------------------------- In June 1998, SFAS No. 133 "Accounting for Derivative Instruments and Hedging Activities", was issued to establish standards for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities. It requires that an entity recognize all derivatives as either assets or liabilities in the statement of financial position and measure those instruments at fair value. This statement was amended so that it is effective for all quarters of fiscal years beginning after June 15, 2000. The Company does not believe that this statement will have a material impact on the consolidated financial statements. Drug-Lead Discovery Business ------------------------------ In October 1995, the Company entered the drug-lead discovery business by forming a new company to develop a novel, small molecule drug discovery platform. The company, DGI BioTechnologies (DGI), is majority-owned and fully funded by the Company and 15 occupies specially designed laboratory space at the Company's headquarters facility in Edison, New Jersey. DGI's operations have had a significant negative impact on the Company's 1999 and 1998 earnings and will continue to do so. During 1999 and 1998, $3,198,000 and $2,196,000, respectively, of research, development and engineering expenses were charged to operations. However, in 1999, DGI recorded its first revenues in the amount of $1,785,000 thereby reducing the net loss to $1,413,000. DGI is striving to become financially self-sufficient in 2000 and all options are being explored, including pursuing additional alliances as well as actively seeking strategic partners. Year 2000 Issues ------------------ The Company has not experienced any significant disruptions to its financial or operating activities resulting from Year 2000 issues and has no information that indicates that a significant vendor or service provider may be unable to sell goods or provide services to the Company or that any significant customer may be unable to purchase from the Company because of Year 2000 issues. As a result, the Company does not expect Year 2000 issues to have a material adverse impact on the Company's consolidated financial position, results of operations or cash flows. Costs incurred for Year 2000 matters were immaterial. Euro Conversion ---------------- On January 1, 1999, eleven of the fifteen member countries of the European Union (the "participating countries") - established fixed conversion rates between their existing sovereign currencies (the "legacy currencies") and the Euro. The participating countries adopted the Euro as their common legal currency on that date. As of January 1, 1999, a newly created European Central Bank was established to control monetary policy, including money supply and interest rates for the participating countries. The legacy currencies are scheduled to remain legal tender in the participating countries as denominations of the Euro between January 1, 1999 and January 1, 2002 (the "transition period"). During the transition period, public and private parties may pay for goods and services using either the Euro or the participating country's legacy currency on a "no compulsion, no prohibition" basis. The Company has initiated and is evaluating on an on-going basis the effects, if any, of the Euro conversion upon its business. Factors being considered include, but are not limited to: the possible impact of the Euro conversion on revenues, expenses and income from operations, the ability to adapt information technology to accommodate Euro-denominated transactions, the market risks with respect to financial instruments, the continuity of material contracts, and the potential tax consequences. The Company does not believe that the Euro-conversion will have a material operational or financial impact. 16 Investment in Organica, Inc. ------------------------------- Since November 1994, the Company has invested $950,000 (less than a twenty-percent interest) in Organica, Inc. (Organica) which was formed in 1993 to develop and commercialize various "environmentally friendly" products produced via fermentation processes. Organica isolates and cultures naturally occurring microorganisms and fungi and blends them with various nutrient sources and carriers to create its products, which are offered as alternatives to various hazardous products. Organica has focused primarily on natural turf products, compost accelerators, hydrocarbon remediation products and non-caustic drain openers. Organica, Inc. is in transition as its Chief Executive Officer has left the company and its executive offices have been consolidated with its Pennsylvania production facility. While the Company continues to believe in the marketability of Organica's products, it is closely monitoring its investment in Organica relative to Organica's operations and financial results during this transition period. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA ----------------------------------------------- NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Independent Auditors' Report Consolidated Balance Sheets as of December 31, 1999 and 1998 Consolidated Statements of Operations for the years ended December 31, 1999, 1998 and 1997 Consolidated Statements of Shareholders' Equity for the years ended December 31, 1999, 1998 and 1997 Consolidated Statements of Cash Flows for the years ended December 31, 1999, 1998 and 1997 Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 1999, 1998 and 1997 Notes to Consolidated Financial Statements Schedule II - Valuation and Qualifying Accounts 17 Independent Auditors' Report The Board of Directors and Shareholders New Brunswick Scientific Co., Inc.: We have audited the consolidated financial statements of New Brunswick Scientific Co., Inc. and subsidiaries as listed in the accompanying index. In connection with our audits of the consolidated financial statements, we also have audited the financial statement schedule as listed in the accompanying index. These consolidated financial statements and financial statement schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedule based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of New Brunswick Scientific Co., Inc. and subsidiaries as of December 31, 1999 and 1998, and the results of their operations and their cash flows for each of the years in the three year period ended December 31, 1999 in conformity with generally accepted accounting principles. Also in our opinion, the related financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, present fairly, in all material respects, the information set forth therein. KPMG LLP Short Hills, New Jersey February 11, 2000 18 NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS DECEMBER 31, 1999 AND 1998 (In thousands, except for share data)
1999 1998 -------- -------- ASSETS Current assets: $ 2,111 $ 3,793 Accounts receivable, net of allowance for doubtful accounts, 1999 - $339 and 1998 - $235. . . . . . 13,769 10,230 Refundable income taxes. . . . . . . . . . . . . . . . . . 28 173 Deferred income taxes (Note 8) . . . . . . . . . . . . . . 85 134 Inventories (Note 2) . . . . . . . . . . . . . . . . . . . 14,997 15,923 Prepaid expenses and other current assets. . . . . . . . . 897 951 -------- -------- Total current assets . . . . . . . . . . . . . . . 31,887 31,204 -------- -------- Property, plant and equipment, net (Notes 3 and 6) . . . . . 7,023 5,622 Excess of cost over net assets acquired less accumulated amortization of $18 in 1999 (Note 4). . . . . . 4,751 - Deferred income taxes (Note 8) . . . . . . . . . . . . . . . 153 104 Other assets (Note 5). . . . . . . . . . . . . . . . . . . . 2,212 2,136 -------- -------- $46,026 $39,066 ======== ======== LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Current installments of long-term debt (Note 6). . . . . . $ 236 $ 27 Accounts payable and accrued expenses (Note 7) . . . . . . 8,293 7,861 -------- -------- Total current liabilities. . . . . . . . . . . . . 8,529 7,888 -------- -------- Long-term debt, net of current installments (Note 6) . . . . 7,347 239 Other liabilities (Note 9) . . . . . . . . . . . . . . . . . 380 492 Commitments and contingencies (Note 13) Shareholders' equity (Note 10): Common stock, $0.0625 par; authorized 25,000,000 shares; Outstanding, 1999 - 5,344,000 shares; 1998 - 4,770,444 shares; net of shares held in treasury, 1999 - 473,069 and 1998 - 430,063. . . . . . . . . . . . . . . . 334 298 Capital in excess of par . . . . . . . . . . . . . . . . . 32,907 28,361 Retained earnings. . . . . . . . . . . . . . . . . . . . . (2,107) 3,137 Accumulated other comprehensive loss . . . . . . . . . . . (1,032) (985) Notes receivable from exercise of stock options. . . . . . (332) (364) -------- -------- Total shareholders' equity . . . . . . . . . . . . 29,770 30,447 -------- -------- $46,026 $39,066 ======== ======== See notes to consolidated financial statements.
19 NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENT OF OPERATIONS DECEMBER 31, 1999, 1998 AND 1997 (In thousands, except for share data)
1999 1998 1997 ---------- ----------- ---------- Net sales. . . . . . . . . . . . . . . . . . . . $ 54,248 $ 46,495 $ 45,596 Operating costs and expenses: Cost of sales. . . . . . . . . . . . . . . . . 32,471 28,242 27,319 Selling, general and administrative expenses. . . . . . . . . . . . . . . . . . . 15,506 13,801 13,086 Research, development and engineering expenses. . . . . . . . . . . . . . . . . . . 6,176 4,843 4,139 Non-recurring severance costs. . . . . . . . . 663 - - ---------- ----------- ---------- Total operating costs and expenses . . . . . . . 54,816 46,886 44,544 ---------- ----------- ---------- Income (loss) from operations. . . . . . . . . . (568) (391) 1,052 ---------- ----------- ---------- Other income (expense): Interest income. . . . . . . . . . . . . . . . 45 114 149 Interest expense . . . . . . . . . . . . . . . (127) (8) (71) Other income (expense), net. . . . . . . . . . (5) (43) (9) Equity in loss in joint venture company. . . . (48) (36) - ---------- ----------- ---------- (135) 27 69 ---------- ----------- ---------- Income (loss) before income tax expense (benefit) . . . . . . . . . . . . . . . . . . . (703) (364) 1,121 Income tax expense (benefit) (Note 8). . . . . . 445 (208) 109 ---------- ----------- ---------- Net income (loss). . . . . . . . . . . . . . . . $ (1,148) $ (156) $ 1,012 ========== =========== ========== Basic income (loss) per share. . . . . . . . . . $ (.22) $ (.03) $ .20 ========== =========== ========== Diluted income (loss) per share. . . . . . . . . $ (.22) $ (.03) $ .19 ========== =========== ========== Basic weighted average number of shares Outstanding . . . . . . . . . . . . . . . . . . 5,306 5,162 5,078 ========== =========== ========== Diluted weighted average number of shares Outstanding . . . . . . . . . . . . . . . . . . 5,306 5,162 5,200 ========== =========== ==========
See notes to consolidated financial statements. 20 NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997 (Dollars in thousands)
Notes Receivable Accumulated From Common Stock Capital Other Exercise ------------ in Excess Retained Comprehensive Of Stock Shares Amount of Par Earnings Income (Loss) Options Total ------------ -------- ---------- ------------- --------------- ---------- -------- Balance, January 1, 1997. . . . . 3,808,932 $ 238 $ 20,738 $ 9,092 $ (817) $ - $29,251 Issue of shares under employee stock purchase plan. . . . . . . 13,997 1 78 79 Discount from fair market value upon issue of options under stock option plan for nonemployee directors 35 35 Issue of shares under stock option plans . . . . . . . . . . 1,050 8 8 Notes receivable from exercise of stock options (63) (63) 10% stock dividend. . . . . . . . 380,866 24 2,995 (3,019) - Net income 1,012 1,012 Other comprehensive loss adjustment (298) (298) Balance, December 31, 1997. . . . 4,204,845 $ 263 $ 23,854 $ 7,085 $ (1,115) $ (63) $30,024 Issue of shares under employee stock purchase plan . . . . . . 14,813 1 90 91 Issue of shares under stock option plans. . . . . . . . . . 129,430 8 524 532 Tax benefits related to exercise of stock options 127 127 Notes receivable from exercise of stock options (301) (301) 10% stock dividend. . . . . . . . 421,356 26 3,766 (3,792) - Net loss (156) (156) Other comprehensive income adjustment 130 130 Balance, December 31, 1998. . . . 4,770,444 $ 298 $ 28,361 $ 3,137 $ (985) $ (364) $30,447 Issue of shares under employee stock purchase plan . . . . . . 21,790 2 106 108 Issue of shares under stock option plans. . . . . . . . . . 69,895 4 346 350 Tax benefits related to exercise of stock options 28 28 Payment on notes receivable from exercise of stock options 32 32 10% stock dividend. . . . . . . . 481,871 30 4,066 (4,096) - Net loss (1,148) (1,148) Other comprehensive loss adjustment (47) (47) Balance, December 31, 1999. . . . 5,344,000 $ 334 $ 32,907 $ (2,107) $ (1,032) $ (332) $29,770 ============ ======== ========== ======== ========== ====== ========
See notes to consolidated financial statements 21 NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997 (In thousands)
1999 1998 1997 -------- -------- --------- Cash flows from operating activities: Net income (loss) . . . . . . . . . . . . . . . . . . . . $(1,148) $ (156) $ 1,012 Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: Depreciation and amortization . . . . . . . . . . . . 1,111 1,178 931 Deferred income taxes . . . . . . . . . . . . . . . . - (104) (37) Discount from fair value upon issue of options. . . . - - 35 Change in related balance sheet accounts, excluding effect of acquisition: Accounts receivable . . . . . . . . . . . . . . . . . (3,242) 721 (964) Refundable income taxes . . . . . . . . . . . . . . . 144 141 20 Inventories . . . . . . . . . . . . . . . . . . . . . 1,101 (905) (2,171) Prepaid expenses and other current assets . . . . . . (1) (149) (6) Accounts payable and accrued expenses . . . . . . . . 506 62 598 Advance payments from customers . . . . . . . . . . . (956) (22) 630 Other liabilities . . . . . . . . . . . . . . . . . . 380 - - -------- -------- --------- Net cash provided by (used in) operating activities. . . (2,105) 766 48 -------- -------- --------- Cash flows from investing activities: Additions to property, plant and equipment . . . . . . . (1,435) (1,280) (733) Sale of equipment. . . . . . . . . . . . . . . . . . . . 129 46 18 Acquisition of DJM Cryo-Research Group, net of cash acquired. . . . . . . . . . . . . . . . . (5,476) - - Increase in insurance cash surrender value . . . . . . . (120) (107) (93) Investment in Organica . . . . . . . . . . . . . . . . . - - (250) -------- -------- --------- Net cash used in investing activities. . . . . . . . . . (6,902) (1,341) (1,058) -------- -------- --------- Cash flows from financing activities: Proceeds from mortgage . . . . . . . . . . . . . . . . . 215 - - Borrowings under long-term credit facility . . . . . . . 6,745 - - Repayments of long-term debt . . . . . . . . . . . . . . (23) (115) (134) Proceeds from issue of shares under stock purchase and option plans . . . . . . . . . . . . . . 518 449 87 -------- -------- --------- Net cash provided by (used in) financing activities. . . 7,455 334 (47) Net effect of exchange rate changes on cash . . . . . . . . (130) 66 (171) -------- -------- --------- Net decrease in cash and cash equivalents . . . . . . . . . (1,682) (175) (1,228) Cash and cash equivalents at beginning of year. . . . . . . 3,793 3,968 5,196 -------- -------- --------- Cash and cash equivalents at end of year. . . . . . . . . . $ 2,111 $ 3,793 $ 3,968 ======== ======== ========= Supplemental disclosures of cash flow information: Cash paid during the year for: Interest. . . . . . . . . . . . . . . . . . . . . . . . $ 85 $ 6 $ 58 Income taxes. . . . . . . . . . . . . . . . . . . . . . 145 104 377 Supplemental disclosure of non cash financing activities: Notes received upon exercise of stock options . . . . . . . . . . . . . . . . . . . $ - $ 301 $ - Notes payable related to DJM Cryo-Research acquisition. 404 - -
See notes to consolidated financial statements. 22 NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997 (In thousands)
1999 1998 1997 -------- ------- -------- Net income (loss). . . . . . . . . . . . . . $(1,148) $ (156) $ 1,012 Other comprehensive income (loss): Foreign currency translation adjustment. (539) 622 (723) Pension liability adjustment . . . . . . 492 (492) 425 -------- ------- -------- Net comprehensive income (loss). . . . . . . $(1,195) $ (26) $ 714 ======== ======= ========
See notes to consolidated financial statements. 23 1. Summary of significant accounting policies: Principles of consolidation: The consolidated financial statements include the accounts of New Brunswick Scientific Co., Inc., its wholly owned subsidiaries and majority-owned limited liability company (the Company). All significant intercompany transactions and balances have been eliminated. Translation of foreign currencies: Translation adjustments for the Company's foreign operations are included as a component of accumulated other comprehensive loss in shareholders' equity. Transaction gains and losses, which are not significant in amount, are included in the consolidated statements of operations as part of "Other income (expense), net". Cash and cash equivalents: The Company considers all highly liquid debt instruments with original maturities of three months or less to be cash equivalents in the statements of cash flows. Inventories: Inventories are stated at the lower of cost (first in, first out or average) or market. Cost elements include material, labor and manufacturing overhead. Property, plant and equipment: Property, plant and equipment are stated at cost. Gains and losses resulting from sales or disposals, which are not significant in amount, are included in "Other income (expense), net". The cost of repairs, maintenance and replacements which do not significantly improve or extend the life of the respective assets are charged to expense as incurred. Depreciation is provided by the straight-line method over the estimated useful lives of the related assets, generally 33-1/3 years for buildings and 10 years for machinery and equipment. Investments: In June 1998, the Company entered into a joint venture, New Brunswick Scientific Projects Limited, with W.H. Promation Ltd. in the United Kingdom with each party 24 owning 50%. The joint venture specializes in the design and construction of bioprocess systems for the pharmaceutical and biotechnology industries. No monies were invested at inception, however, investments in the joint venture occur based upon the need for operating funds by the joint venture. This investment is accounted for using the equity method. The Company has an investment (representing approximately 14% of the outstanding shares of common stock) in Organica, Inc. of $950,000. Organica manufactures and distributes environmentally friendly products for cleaning, grease removal, and other applications. This investment is accounted for using the cost method and is included in other assets in the Consolidated Balance Sheets. Goodwill: Goodwill, which represents the excess of purchase price over fair value of net assets acquired, is amortized on a straight-line basis over the expected periods to be benefited, generally 25 years. The Company assesses the recoverability of this intangible asset by determining whether the amortization of the goodwill balance over its remaining life can be recovered through undiscounted future operating cash flows of the acquired operation. The amount of goodwill impairment, if any, is measured based on projected discounted future operating cash flows using a discount rate reflecting the Company's average cost of funds. The assessment of the recoverability of goodwill will be impacted if estimated future operating cash flows are not achieved. Research and development: Research and development costs are expensed as incurred. Income taxes: Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. No provision has been made for federal income or withholding taxes which may be payable on the remittance of the undistributed retained earnings of foreign subsidiaries. 25 These earnings have been reinvested to meet future operating requirements and the Company intends to continue such policy for the foreseeable future. Earnings per share: Basic earnings per share is calculated by dividing net income (loss) by the weighted average number of shares outstanding. Diluted earnings (loss) per share is calculated by dividing net income (loss) by the sum of the weighted average number of shares outstanding plus the dilutive effect of stock options which have been issued by the Company. The dilutive effect of stock options was zero for the years ended December 31, 1999 and 1998 and 121,625 shares for the year ended December 31, 1997. 10% stock dividends were distributed on May 14, 1999, May 15, 1998 and 1997, respectively. The weighted average number of shares outstanding for prior periods have been restated to reflect these dividends. Stock option plans: Prior to January 1, 1996, the Company accounted for its stock option plans in accordance with the provisions of Accounting Principles Board (APB) Opinion No. 25, "Accounting for Stock Issued to Employees", and related interpretations. As such, compensation expense would be recorded on the date of grant only if the current market price of the underlying stock exceeded the exercise price. On January 1, 1996, the Company adopted Statement of Financial Accounting Standards (SFAS) No. 123, "Accounting for Stock-Based Compensation", which permits entities to recognize as expense over the vesting period the fair value of all stock-based awards on the date of grant. Alternatively, SFAS No. 123 also allows entities to continue to apply the provisions of APB Opinion No. 25 and provide pro forma net income and pro forma earnings per share disclosures for employee stock option grants made in 1995 and future years as if the fair-value-based method defined in SFAS No. 123 had been applied. The Company has elected to continue to apply the provisions of APB Opinion No. 25 and provide the pro forma disclosure provisions of SFAS No. 123. Treasury stock: Repurchase of the Company's outstanding Common stock is accounted for by treating the stock as if retired. Financial instruments: The carrying values of the Company's financial instruments, principally cash and cash equivalents, accounts receivable and accounts payable, accrued expenses, and long-term debt, at December 31, 1999 approximate their estimated fair values. Fair values were 26 determined through a combination of management estimates and information obtained from independent third parties using latest available market data. Use of estimates: Management of the Company has made a number of estimates and assumptions relating to the reporting of assets and liabilities and revenue and expenses, and the disclosure of contingent assets and liabilities to prepare the financial statements in conformity with generally accepted accounting principles. Actual results could differ from those estimates. Impairment of long-lived assets and long-lived assets to be disposed of: The Company accounts for long-lived assets in accordance with the provisions of SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of". This Statement requires that long-lived assets and certain identifiable intangibles be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell. Pension and other post-retirement plans: On January 1, 1998, the Company adopted SFAS No. 132, "Employers' Disclosures about Pension and Other Post-retirement Benefits". SFAS No. 132 revises employers' disclosures about pension and other post-retirement benefit plans. SFAS No. 132 does not change the method of accounting for such plans. Comprehensive income: On January 1, 1998, the Company adopted SFAS No. 130, "Reporting Comprehensive Income". SFAS No. 130 establishes standards for reporting and presentation of comprehensive income (loss) and its components in a full set of financial statements. Comprehensive income (loss) consists of net income (loss), foreign currency translation adjustment, and pension liability adjustment and is presented in the consolidated statements of comprehensive income (loss). The Statement requires only additional disclosures in the consolidated financial statements; it does not affect the Company's 27 financial position or results of operations. Prior financial statements have been reclassified to conform to the requirements of SFAS No. 130. Segment information: As of December 31, 1998, the Company adopted the provisions of SFAS No. 131, "Disclosures about Segments of an Enterprise and Related Information". This Statement requires the Company to disclose financial information on the basis that is used internally for evaluating segment performance and deciding how to allocate resources to segments. It also establishes standards for related disclosures about products and services, geographic areas and major customers. Reclassifications: Certain reclassifications have been made to the prior year's presentation to conform to the 1999 presentation. 2. Inventories:
1999 1998 --------------- ------- (In thousands) Raw materials and sub-assemblies $ 6,397 $ 7,091 Work-in-process. . . . . . . . . 3,669 3,457 Finished goods . . . . . . . . . 4,931 5,375 --------------- ------- $ 14,997 $15,923 =============== =======
3. Property, plant and equipment, net:
1999 1998 --------------- -------- (In thousands) Land. . . . . . . . . . . . . $ 800 $ 800 Buildings and improvements. . 4,404 4,111 Machinery and equipment . . . 13,195 11,689 --------------- -------- 18,399 16,600 Less accumulated depreciation 11,376 10,978 --------------- -------- $ 7,023 $ 5,622 =============== ========
28 4. Acquisitions: On November 23, 1999, the Company acquired all of the outstanding common stock of DJM Cryo-Research Limited and the net assets of DJM Fabrications (collectively, "DJM Cryo-Research Group"), a United Kingdom Corporation and Partnership under common control, respectively, located in Tollesbury, England (the Acquisition). The purchase price consisted of 3.5 million ($5.5 million) in cash, and 250,000 ($392,500) in term notes payable in annual installments over a five year period beginning in November 2004 with 6% interest payable annually. The source of the cash consideration paid was the Company's line of credit for acquisition purposes provided by First Union National Bank, payable in monthly installments of $52,513 with 8.14% fixed interest. DJM Cryo-Research Group is in the business of designing, developing and manufacturing ultra-low temperature freezers for laboratories. The acquisition has been accounted for by the purchase method and, accordingly, the results of operations of DJM Cryo-Research Group have been included in the Company's consolidated financial statements from November 23, 1999. The excess of the purchase price over the fair value of net identifiable assets acquired of $4,769,000 has been recorded as goodwill and is being amortized on a straight-line basis over 25 years.
The acquisition of DJM Cryo-Research Group consisted of the following: Net cash paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,476 Liabilities assumed. . . . . . . . . . . . . . . . . . . . . . . . . 1,576 Fair value of assets acquired. . . . . . . . . . . . . . . . . . . . (2,283) -------- Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,769 ========
The following unaudited pro forma financial information presents the combined results of operations of the Company and DJM Cryo-Research Group as if the acquisition had occurred as of the beginning of 1999 and 1998, after giving effect to certain adjustments, including amortization of goodwill, additional depreciation expense, increased interest expense on debt related to the acquisition and related income tax effects. The pro forma financial information does not necessarily reflect the results of operations that would have occurred had the Company and DJM Cryo-Research Group constituted a single entity during such periods. 29
1999 1998 ----------------------------------------- -------- (In thousands, except per share amounts) (unaudited) Net sales. . . $ 54,384 $46,781 Net loss . . . (1,375) (268) Loss per share $ (0.26) $ (0.05)
In December 1998, the Company acquired the assets of Inceltech, a manufacturer of fermentors and cell culture bioreactors in France, for an immaterial purchase price. The acquisition was accounted for as a purchase and, accordingly, the results of operations of Inceltech (which are immaterial) are included in the Company's results of operations from the date of acquisition. The fair value of the assets acquired approximated the purchase price. The effects of the acquisition and the allocation of the purchase price is immaterial to the consolidated financial statements. 5. Other assets: Since November 1994, the Company has invested $950,000 (less than a twenty-percent interest) in Organica, Inc. (Organica) which was formed in 1993 to develop and commercialize various "environmentally friendly" products produced via fermentation processes. Organica isolates and cultures naturally occurring microorganisms and fungi and blends them with various nutrient sources and carriers to create its products, which are offered as alternatives to various hazardous products. Organica has focused primarily on natural turf products, compost accelerators, hydrocarbon remediation products and non-caustic drain openers. Organica, Inc. is in transition as its Chief Executive Officer has left the company and its executive offices have been consolidated with its Pennsylvania production facility. While the Company continues to believe in the marketability of Organica's products, it is closely monitoring its investment in Organica relative to Organica's operations and financial results during this transition period. 6. Long-term debt and credit agreement: The Company is a party to first and second mortgages on the facility of the Company's Netherlands subsidiary, which bear interest of 5.50% and 5.65%, respectively, per annum. During the terms of the mortgages, the Company is obligated to make monthly payments of interest and quarterly payments of principal. At December 31, 1999, $206,000 and 30 $228,000, respectively, was outstanding under the first and second mortgages and at December 31, 1998, $266,000 was outstanding under the first mortgage. Each mortgage requires 80 equal quarterly payments of principal. The Company had a $5 million secured revolving credit agreement with Summit Bank which was effective through May 31, 1999. On April 16, 1999, the Company terminated the credit agreement with Summit Bank and entered into an agreement (the Bank Agreement) with First Union National Bank for a three year, $31 million secured line of credit. The Bank Agreement provides the Company with a $5 million revolving credit facility for both working capital and for letters of credit, a $1 million revolving line of credit for equipment acquisition purposes, a $15 million credit line for acquisitions and a $10 million foreign exchange facility. There are no compensating balance requirements and any borrowings under the Bank Agreement bear interest at various rates based upon a function of the bank's prime rate or LIBOR at the discretion of the Company. All of the Company's domestic assets, which are not otherwise subject to lien, have been pledged as security for any borrowings under the Bank Agreement. The Bank Agreement contains various business and financial covenants including, among other things, a debt service coverage ratio, a net worth covenant, and a ratio of total liabilities to tangible net worth all of which the Company was in compliance with at December 31, 1999. As of December 31, 1999, $6,745,000 was outstanding under the Bank Agreement. At December 31, 1998 there were no outstanding balances under the Summit Bank facility. In November 1999, the Company issued notes in the amount of 250,000 ($392,500 at the date of acquisition) in connection with the acquisition of DJM Cryo-Research Group. The notes bear interest at 6% which are payable annually and principal is payable in five equal annual installments commencing November 2004. At December 31, 1999 the balance of the notes was $404,000. Aggregate annual maturities of long-term debt are as follows: Aggregate annual maturities of long-term debt are as follows:
Year ending December 31. . . . . . . . Amount - ------------------------------------ --------------- (In thousands) 2000 . . . . . . . . . . . . . . . . . $ 236 2001 . . . . . . . . . . . . . . . . . 251 2002 . . . . . . . . . . . . . . . . . 1,522 2003 . . . . . . . . . . . . . . . . . 291 2004 . . . . . . . . . . . . . . . . . 390 After 2004. . . . . . . . . . . . . . 4,893 ------- $7,583 ======
31 7. Accounts payable and accrued expenses:
1999 1998 --------------- ------- (In thousands) Accounts payable-trade. . . . . . . . . . $ 3,950 $ 3,772 Accrued salaries, wages and payroll taxes 2,647 1,622 Accrued foreign dealer commissions. . . . 324 354 Advance payments from customers . . . . . 462 1,454 Other accrued liabilities . . . . . . . . 1,290 659 --------------- ------- $ 7,861 ======= $ 8,673 ===============
8. Income taxes:
1999 1998 1997 --------------- --------- ------- (In thousands) Income (loss) before income taxes: Domestic . . . . . . . . . . . . $ (2,149) $ (1,014) $ (446) Foreign. . . . . . . . . . . . . 1,446 650 1,567 --------------- --------- ------- $ (703) $ (364) $1,121 =============== ========= ======= Income tax expense (benefit): Federal: Current. . . . . . . . . . . . $ - $ (257) $ - Deferred . . . . . . . . . . . - (104) (37) State-current. . . . . . . . . . - 3 7 Foreign-current. . . . . . . . . 445 150 139 --------------- --------- ------- $ 445 $ (208) $ 109 =============== ========= =======
The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and liabilities at December 31, 1999 and 1998 are as follows: 32
1999 1998 --------------- ------ (In thousands) Deferred tax asset (liability): Accumulated depreciation . . . . . . . . . . . . . . $ (264) $(247) Inventories. . . . . . . . . . . . . . . . . . . . . 320 326 Allowance for doubtful accounts. . . . . . . . . . . 99 58 Accrued expenses . . . . . . . . . . . . . . . . . . 273 231 Other liabilities. . . . . . . . . . . . . . . . . . (180) (116) Alternative minimum tax credit carryforward. . . . . 67 88 Domestic net operating loss carryforward . . . . . . 1,103 588 Domestic capital loss and contribution carryforwards 33 10 --------------- ------ 1,451 938 Less: Valuation allowance . . . . . . . . . . . . . . 1,213 700 --------------- ------ Net deferred tax asset . . . . . . . . . . . . . . . . $ 238 $ 238 =============== ======
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management believes there are significant cost efficiencies to be realized in its operations and is focused on achieving such efficiencies during 2000 and has identified other strategies to realize the deferred tax asset. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. Based upon the level of historical taxable income and projections for future taxable income over the periods which the deferred tax assets are deductible, management believes it is more likely than not the Company will realize the benefits of these deductible differences, net of the existing valuation allowances at December 31, 1999. The amount of the deferred tax asset considered realizable, however, could be reduced in the near term if estimates of future taxable income during the carryforward period are reduced. The net change in the total valuation allowance at December 31, 1999 and 1998 was an increase of $513,000 and an increase of $194,000, respectively. The domestic net operating loss carryforward is available to offset future taxable income, if any, through 2019. 33 The Company's effective income tax rates for 1999, 1998 and 1997 were 63.3%, (57.1)% and 9.7%, respectively. These rates differ from the statutory Federal income tax rates as follows:
Percentage of income (loss) before taxes ----------------------------------------- 1999 1998 1997 ----------------------------------------- ------- ------ Computed "expected" tax expense (benefit). . . . . . . . . . . . . . . . (34.0)% (34.0)% 34.0% Increase (decrease) in taxes resulting from: Rate differential between U.S. and foreign income taxes. . . . . . . . (6.6) - (13.0) Change in valuation allowance allocated to income tax expense . . 98.1 30.5 (10.0) Change in tax accruals related to open tax years. . . . . . . . . . . - (47.8) - Other . . . . . . . . . . . . . . . . 5.8 (5.8) (1.3) ----------------------------------------- ------- ------ 63.3% (57.1)% 9.7% ========================================= ======= ======
9. Pension plans and other liabilities: The Company has a noncontributory defined benefit pension plan covering qualified U.S. salaried employees, including officers. Additionally, the Company made contributions to a union sponsored multi-employer defined benefit plan, in the amount of $131,000, $124,000 and $110,000 in 1999, 1998 and 1997, respectively. 34 The following table sets forth the U.S. defined benefit plan's benefit obligation, fair value of plan assets and funded status at December 31, 1999 and 1998:
1999 1998 --------------- ---------------------------------- (In thousands) CHANGE IN BENEFIT OBLIGATION Benefit obligation at beginning of year . . . . . . . . . $ 5,712 $ 5,159 Actuarial (gain) loss . . . . . . . . . . . . . . . . . . (122) 223 Service cost. . . . . . . . . . . . . . . . . . . . . . . 228 260 Interest cost . . . . . . . . . . . . . . . . . . . . . . 402 376 Benefits paid . . . . . . . . . . . . . . . . . . . . . . (308) (306) --------------- ---------------------------------- Benefit obligation at end of year . . . . . . . . . . . . $ 5,912 $ 5,712 =============== ================================== CHANGE IN PLAN ASSETS Fair value of plan assets at beginning of year. . . . . . $ 5,059 $ 4,635 Actual return on plan assets. . . . . . . . . . . . . . . 1,109 645 Employer contribution . . . . . . . . . . . . . . . . . . 238 132 Benefits paid . . . . . . . . . . . . . . . . . . . . . . (308) (306) Other expenses. . . . . . . . . . . . . . . . . . . . . . (54) (47) --------------- ---------------------------------- Fair value of plan assets at end of year. . . . . . . . . $ 6,044 $ 5,059 =============== ================================== CHANGE IN PREPAID PENSION COST Prepaid benefit cost at beginning of year . . . . . . . . $ 374 $ 502 Net periodic pension cost . . . . . . . . . . . . . . . . (249) (260) Contributions . . . . . . . . . . . . . . . . . . . . . . 238 132 --------------- ---------------------------------- Prepaid benefit cost at end of year . . . . . . . . . . . $ 363 $ 374 =============== ================================== MISCELLANEOUS ITEMS AT END OF YEAR Funded status . . . . . . . . . . . . . . . . . . . . . . $ 132 $ (653) Unrecognized net transition obligation. . . . . . . . . . $ 130 $ 149 Unrecognized prior service cost . . . . . . . . . . . . . $ (27) $ (31) Unrecognized net loss . . . . . . . . . . . . . . . . . . $ 128 $ 908 Prepaid benefit cost before additional liability. . . . . $ 363 $ 374 Additional liability. . . . . . . . . . . . . . . . . . . $ - $ 610 Prepaid (accrued) benefit cost after additional liability $ 363 $ (236) Intangible asset. . . . . . . . . . . . . . . . . . . . . $ - $ 118 1999 1998 1997 --------------- ---------------------------------- ------- COMPONENTS OF NET PERIODIC BENEFIT COST (In thousands except percentages) Service cost. . . . . . . . . . . . . . . . . . . . . . . $ 228 $ 207 $ 224 Interest cost . . . . . . . . . . . . . . . . . . . . . . 402 376 343 Expected return on plan assets. . . . . . . . . . . . . . (426) (385) (305) Transition obligation . . . . . . . . . . . . . . . . . . 19 19 19 Amortization of prior service cost. . . . . . . . . . . . (4) (4) (4) Recognized net actuarial loss . . . . . . . . . . . . . . 30 47 56 --------------- ---------------------------------- ------- Net periodic benefit cost . . . . . . . . . . . . . . . . $ 249 $ 260 $ 333 =============== ================================== ======= WEIGHTED-AVERAGE ASSUMPTIONS AS OF DECEMBER 31 Discount rate . . . . . . . . . . . . . . . . . . . . . . 7.25% 7.25% 7.25% Expected return on plan assets. . . . . . . . . . . . . . 8.50% 7.50% 7.50% Rate of compensation increase . . . . . . . . . . . . . . 4.00% 4.00% 4.00%
35 The 1998 minimum additional pension liability is a non-cash item which is offset by a direct reduction to shareholders' equity of $492,000. In 1999 there was no minimum additional pension liability. The Company has a defined contribution plan for its U.S. employees, with a specified matching Company contribution. The expense to the Company in 1999, 1998 and 1997 was $163,000, $160,000 and $130,000, respectively. International pension expense in 1999, 1998 and 1997 was not material. Foreign plans generally are insured or otherwise fully funded. In October 1999, the Company and its President agreed that the President would be leaving the Company to pursue other business interests. In accordance with an existing employment contract the Company will make severance payments over three years in the amount of $200,000 per year. The Company has accrued the present value of the future payments and will recognize interest expense over the three-year term. 10. Shareholders' equity: The 1998 and 1997 data for the stock options and rights plans described below have been restated to reflect the 10% stock dividend which was distributed on May 14, 1999. The 1991 Non-Qualified Stock Option Plan (the 1991 Plan) for officers and key employees of the Company provides for the granting of options to purchase up to 801,020 shares of the Company's Common stock. Options are exercisable in five equal installments commencing one year after date of grant. Options expire up to 10 years from the date of grant. The exercise price per share of each option may not be less than the fair market value on the date of grant. 36 Shares under option related to the 1991 Plan at December 31 are as follows:
1999 1998 1997 ----------------- ----------------- ----------------- Weighted-Average Weighted-Average Weighted-Average Shares Exercise Price Shares Exercise Price Shares Exercise Price -------- ----------------- --------- ----------------- -------- ----------------- Outstanding, Beginning of Year . . . . 483,825 $ 6.02 395,626 $ 5.59 247,358 $ 3.82 Granted . . . - - 235,400 5.30 152,460 8.40 Exercised . . (8,160) 4.04 (137,795) 3.67 - - Cancelled . . - - (9,406) 4.56 (4,192) 3.67 -------- --------- -------- Outstanding, end of year. 475,665 $ 6.05 483,825 $ 6.02 395,626 $ 5.59 ======== ========= ========
At December 31, 1999, options were exercisable as follows:
Exercise Shares Price - ------ --------- 16,769 $ 5.01 78,538 3.85 4,840. 8.26 7,260. 12.40 12,100 16.53 33,784 4.96 2,200. 9.09 1,100. 11.36 1,100. 13.64 2,200. 5.11 40,480 4.72
At December 31, 1999, 153,739 options were available for future grant. The weighted-average remaining contractual life for the options outstanding at December 31, 1999 was 2.8 years. In 1999, the Company adopted a stock option plan for nonemployee directors (the 1999 Plan) which replaced a plan adopted in 1989 which expired in 1999. The 1999 Plan provides for the granting of options to purchase up to 100,000 shares of the Company's Common stock. No options may be granted under the 1999 Plan after March 17, 2009. Options generally may be exercised over five years in cumulative installments of 20% per year and expire up to ten years after grant. The exercise price per share of each option may 37 not be less than eighty-five percent (85%) of the fair market value on the date of grant. No options were outstanding under the 1999 Plan at December 31, 1999. In 1989, the Company adopted a stock option plan for nonemployee directors which expired on April 30, 1999. The plan provided for the granting of options to purchase up to 370,755 shares of the Company's Common stock. Options generally may be exercised over five years in cumulative installments of 20% per year and expire up to ten years after grant. The exercise price per share of each option could not be less than eighty-five percent (85%) of the fair market value on the date of grant. Shares under option related to the 1989 nonemployee director plan at December 31, are as follows:
1999 1998 1997 ----------------- ----------------- ----------------- Weighted-Average Weighted-Average Weighted-Average Shares Exercise Price Shares Exercise Price Shares Exercise Price -------- ----------------- -------- ----------------- -------- ----------------- Outstanding, Beginning of Year . . . . 304,483 $ 5.11 244,196 $ 5.20 96,764 $ 4.60 Granted . . . 33,000 4.55 66,000 4.72 148,829 5.58 Exercised . . (52,759) 4.79 (5,713) 4.48 (1,397) 4.83 -------- -------- -------- Outstanding, end of year. 284,724 $ 5.12 304,483 $ 5.11 244,196 $ 5.20 ======== ======== ========
At December 31, 1999 options were exercisable as follows:
Exercise Shares Price - ------ --------- 30,634 $ 4.52 19,965 5.03 54,450 5.79 22,000 4.72 19,250 4.55
The weighted-average remaining contractual life for the options outstanding at December 31, 1999 was 3.7 years. In 1998, the Company adopted the 1998 stock option plan for 10% Shareholder-Directors. At December 31, 1999, 11,000 options were exercisable at $5.23 per share and 22,000 options were exercisable at $4.55 per share. At December 31, 1999, 11,000 options were 38 available for future grant. The weighted-average remaining contractual life for the options outstanding at December 31, 1999 was 5.1 years. Shares under option related to the 1998 stock option plan for 10% Shareholder-Directors at December 31, are as follows:
1999 1998 ----------------- ----------------- Weighted-Average Weighted-Average Shares Exercise Price Shares Exercise Price ------ ----------------- ------ ----------------- Outstanding, beginning of year . . . . 55,000 $ 5.23 - $ - Granted . . . 44,000 4.55 55,000 5.23 ------ ------ Outstanding, end of year. 99,000 $ 4.92 55,000 $ 5.23 ====== ======
In the aggregate related to the aforementioned stock option plans, there were 264,739 additional shares available for grant at December 31, 1999. The per share weighted-average fair value of stock options granted during 1999 and 1998 was $4.55 and $5.23, respectively, on the date of grant using the Black Scholes option-pricing model with the following weighted-average assumptions: 1999 - no expected dividend yield, risk-free interest rate of 5.52%, volatility factor of 61.6%, and an expected life of 5.2 years; 1998 - no expected dividend yield, risk-free interest rate of 4.59%, volatility factor of 52.4%, and an expected life of 5.1 years. In 1987, the Company adopted an Employee Stock Purchase Plan. Under the Stock Purchase Plan, employees may purchase shares of the Company's Common stock at 85% of fair market value on specified dates. The Company has reserved 279,510 shares of its authorized shares of Common stock for this purpose. During 1999, 1998 and 1997, 21,790, 14,813 and 13,997 Common shares, respectively, were issued under the plan. The Company applies APB Opinion No. 25 in accounting for its Plans and, accordingly, no compensation cost has been recognized for its stock options in the financial statements with the exception of $35,000 in 1997 relating to the discount from fair market value of options issued under the stock option plan for nonemployee directors. Had the Company determined compensation cost based on the fair value at the grant date for its stock options under SFAS No. 123, the Company's 1999, 1998 and 1997 net income (loss) and earnings (loss) per share would have been reduced to the proforma amounts as follows: 39
1999 1998 1997 -------- ------ ------ Net income (loss) (in thousands): As reported . . . . . . . . . . $(1,148) $(156) $1,012 Proforma. . . . . . . . . . . . (1,531) (374) 902 Basic income (loss) per share: As reported . . . . . . . . . . $ (.22) $(.03) $ .20 Proforma. . . . . . . . . . . . (.29) (.07) .18 Diluted income (loss) per share: As reported . . . . . . . . . . $ (.22) $(.03) $ .19 Proforma. . . . . . . . . . . . (.29) (.07) .17
Pro forma net income (loss) reflects only options granted since 1995. Therefore, the full impact of calculating compensation cost for stock options under SFAS No. 123 is not reflected in the pro forma net income (loss) amounts presented above because compensation cost is reflected over the options' vesting periods of 5 and 10 years and compensation cost for options granted prior to January 1, 1995 is not considered. In October 1989, the Company declared a dividend of one Common share purchase right on each share of Common stock outstanding which expired in October 1999. On October 15, 1999, the Company declared a dividend of one Common share purchase right (the Rights) on each share of Common stock outstanding. The Rights entitle the holder to purchase one share of Common stock at $25.00 (the Purchase Price) per share. Upon the occurrence of certain events related to non-negotiated attempts to acquire control of the Company, the Rights: (i) will entitle holders to purchase at the Purchase Price that number of shares of Common stock having an aggregate fair market value of two times the Purchase Price; (ii) will become exchangeable at the Company's election at an exchange ratio of one share of Common stock per right; and (iii) will become tradable separately from the Common stock. Further, if the Company is a party to a merger or business combination transaction, the Rights will entitle the holders to purchase at the Purchase Price, shares of Common stock of the surviving company having a fair market value of two times the Purchase Price. In 1989, the Company adopted an Employee Stock Ownership Plan and Declaration of Trust (ESOP). The ESOP provides for the annual contribution by the Company of cash, Company stock or other property to a trust for the benefit of eligible employees. The amount of the Company's annual contribution to the ESOP is within the discretion of the Board of Directors but must be of sufficient amount to repay indebtedness incurred by the ESOP trust, if any, for the purpose of acquiring the Company's stock. The Company made contributions to the ESOP of $2,500, $1,900 and $4,235 during 1999, 1998 and 1997, respectively. 40 Shareholders' Equity includes non-interest bearing notes receivable, resulting from the exercise of stock options, from the former President and Chief Executive Officer of the Company aggregating $165,000 (repaid in February 2000), from the Vice President, Finance in the amount of $51,250, and from other key employees in the amount of $116,000. Imputed interest on these loans amounted to $22,418 in 1999 and $8,244 in 1998. 11. Segment information: As discussed in Note 1, the Company has adopted the provisions of SFAS No. 131, "Disclosures about Segments of an Enterprise and Related Information". Management of the Company has evaluated the way the business is organized internally for operating decisions and has determined that the Company is comprised of two operating segments. The first operating segment is laboratory research equipment. This segment consists of the manufacture and marketing of equipment used in the pharmaceutical, medical, biotechnology, chemical and environmental research fields throughout the world. The second operating segment is DGI BioTechnologies. This segment is involved in the development of a novel technology that facilitates the discovery of new drugs. 41 Summarized segment information for the years ended December 31, 1999, 1998 and 1997 are as follows (in thousands, except percentages):
Laboratory Research DGI Total Equipment BioTechnologies Segments ------------ ----------------- ---------- 1999 - ---------------------------------- Net sales from external customers. $ 52,463 $ 1,785 $ 54,248 Earnings (loss) from operations. . 845 (1,413) (568) Percentage of sales. . . . . . . . 96.7% 3.3% 100% Total assets (1) . . . . . . . . . 45,321 705 46,026 Capital expenditures . . . . . . . 1,435 - 1,435 Depreciation (1) . . . . . . . . . 1,072 - 1,072 1998 - ---------------------------------- Net sales from external customers. $ 46,495 $ - $ 46,495 Earnings (loss) from operations. . 1,805 (2,196) (391) Percentage of sales. . . . . . . . 100% - 100% Total assets (1) . . . . . . . . . 39,205 118 39,323 Capital expenditures . . . . . . . 1,280 - 1,280 Depreciation (1) . . . . . . . . . 1,178 - 1,178 1997 - ---------------------------------- Net sales from external customers. $ 45,596 $ - $ 45,596 Earnings (loss) from operations. . 2,975 (1,923) 1,052 Percentage of sales. . . . . . . . 100% - 100% Total assets (1) . . . . . . . . . 38,090 - 38,090 Capital expenditures . . . . . . . 733 - 733 Depreciation (1) . . . . . . . . . 931 - 931 (1) Fixed assets and depreciation related to the DGI BioTechnolgoies segment are not allocated to the segment as the assets are owned directly by New Brunswick Scientific Co., Inc., however, rental expense is charged to the DGI BioTechnologies segment in lieu of depreciation expense.
12. Operations by geographic areas: The Company sells its equipment to pharmaceutical companies, agricultural and chemical companies, other industrial customers engaged in biotechnology, and to medical schools, universities, research institutes, hospitals, private laboratories and laboratories of Federal, State and Municipal government departments and agencies in the United States and abroad. 42 While only a small percentage of the Company's sales are made directly to United States government departments and agencies, its domestic business is significantly affected by government expenditures and grants for research to educational research institutions and to industry. The Company regularly evaluates credit granted to customers and generally requires progress payments for the purchase of custom bioprocess equipment which is typically sold under contract. The number of these larger systems sold in any reporting period may materially affect the sales and profitability of the Company. The following table sets forth the Company's operations by geographic area for 1999, 1998 and 1997. The information shown under the caption "Europe" represents the operations of the Company's wholly owned foreign subsidiaries (in thousands): Transfers and eliminations United between geo- Conso- States Europe raphic areas idated ---------- --------- ---------------- ------- Net sales: 1999 $41,439 $19,174 $6,365 $54,248 1998 36,848 14,375 4,728 46,495 1997 34,270 15,586 4,260 45,596 Income (loss) from operations: 1999 $(2,100) $ 1,532 $ (568) 1998 (1,036) 645 (391) 1997 (490) 1,542 1,052 Identifiable assets: 1999 $29,210 $16,816 $46,026 1998 30,177 9,146 39,323 1997 28,909 9,181 38,090 Total sales by geographic area include both sales to unaffiliated customers and transfers between geographic areas. Such transfers are accounted for at prices comparable to normal unaffiliated customer sales. One customer based in the United States accounted for approximately 10.6%, 11.6% and 12.0%, respectively, of consolidated net sales during the years ended December 31, 1999, 1998 and 1997. Income from operations from the United States has been significantly affected by the research and development costs of DGI BioTechnologies, the Company's drug-lead discovery operation (Note 11). During 1999, 1998 and 1997, net sales from domestic operations to foreign customers were $8,480,000, $7,104,000 and $9,442,000, respectively. Export sales from the United States 43 are made to many countries and areas of the world including the Far East, the Middle East, Canada, South America, India and Australia. 13. Commitments and contingencies: The Company is obligated under the terms of various operating leases. Rental expense under such leases for 1999, 1998 and 1997 was $786,000, $581,000 and $616,000, respectively. As of December 31, 1999, estimated future minimum annual rental commitments under noncancelable leases expiring through 2014 are as follows (in thousands):
2000. . . . . . . . . . . . . . $ 852 2001. . . . . . . . . . . . . . 739 2002. . . . . . . . . . . . . . 572 2003. . . . . . . . . . . . . . 509 2004. . . . . . . . . . . . . . 390 2,793 After 2004 Total minimum payments required $5,855* ======= * Minimum payments have not been reduced by minimum sublease rentals of $273,000 due in future years under noncancelable subleases.
From time to time, the Company is involved in litigation in the normal course of business, which management believes, after consultation with counsel, the ultimate disposition of which will not have a material adverse effect on the Company's consolidated results of operations or financial position. The Company enters into forward foreign exchange contracts to hedge certain firm and anticipated sales commitments, net of offsetting purchases, denominated in certain foreign currencies. The purpose of such foreign currency hedging activities is to protect the Company from the risk that the eventual cash flows resulting from the sale of products to certain foreign customers (net of purchases from applicable foreign suppliers) will be adversely affected by fluctuations in exchange rates. At December 31, 1999 and 1998, the Company had $1,600,000 and $5,001,000, respectively, of forward exchange contracts outstanding, primarily to exchange various European currencies for U.S. dollars. Substantially, all contracts mature within a period of 13 months. In addition, during 1999 the Company entered into forward exchange contracts to hedge the foreign denominated loan related to the acquisition of the DJM Cryo-Research Group. At December 31, 1999, the Company had $5,495,000 of forward exchange contracts outstanding to exchange Pounds Sterling for U.S. dollars. These contracts mature in a manner consistent with the repayment of the loan for the DJM Cryo-Research Group acquisition. 44 Gains and losses on forward exchange contracts in connection with firm commitments that are designated and effective as hedges of such transactions are deferred and recognized in income in the same period as the hedged transactions. At December 31, 1999, less than $57,000 of unrecognized net gains were deferred on such contracts. Gains and losses on forward exchange contracts in connection with anticipated transactions are marked to market monthly with the resulting gain or loss recognized immediately in the consolidated statement of operations. ITEM 9. DISAGREEMENT ON ACCOUNTING AND FINANCIAL DISCLOSURE -------------------------------------------------------- None. 45 PART III -------- The information required by Part III is contained in the Registrant's proxy statement which will be filed pursuant to Regulation 14A or an information statement pursuant to Regulation 14C of the General Rules and Regulations under the Securities Exchange Act of 1934 not later than 120 days after the close of the fiscal year ended December 31, 1999. The information is incorporated herein by reference. PART IV ------- ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K ------------------------------------------------------------------ (a) The following documents are filed as a part of this report: 1. Financial statements and supplementary data included in Part II of this report: New Brunswick Scientific Co., Inc. and Subsidiaries, consolidated financial statements: Consolidated Balance Sheets as of December 31, 1999 and 1998 Consolidated Statements of Operations for the years ended December 31, 1999, 1998 and 1997 Consolidated Statements of Shareholders' Equity for the years ended December 31, 1999, 1998 and 1997 Consolidated Statements of Cash Flows for the years ended December 31, 1999, 1998 and 1997 Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 1999, 1998 and 1997 Notes to Consolidated Financial Statements 2. Financial statement schedules included in part IV of this report: Schedule II Schedules other than those listed above have been omitted because they are not applicable or the required information is shown in the financial statements or notes thereto. 3. Exhibits: The Exhibits index is on Page 48. 46 Schedule II NEW BRUNSWICK SCIENTIFIC CO., INC. AND SUBSIDIARIES SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997 (In thousands) Additions ---------
Charged to Balance Balance Costs and Charged to At End Beginning (Credited) Other of of Period Expenses Accounts Deductions Period ----------- ----------- ----------- ---------- ------ Allowance deducted from asset to which it applies: Allowance for doubtful accounts: Year ended December 31, 1999 235 104 - - 339 Year ended December 31, 1998 284 (14) - 35 (a) 235 Year ended December 31, 1997 224 60 - - 284 Notes: (a) Uncollected receivables written off.
47 EXHIBIT INDEX ------------- (3a) Restated Certificate of Incorporation, as amended is incorporated herein by reference from Exhibit (4) to the Registrant's Registration Statement on Form S-8 on file with the commission (No. 33-15606), and with respect to two amendments to said Restated Certificate of Incorporation, to Exhibit (4b) of Registrant's Registration Statement on Form S-8 (No. 33-16024). (3b)* By-Laws of the Company as amended and restated as of February 22, 2000. (3c) Rights Agreement dated as of October 31, 1999 between New Brunswick Scientific Co., Inc. and American Stock Transfer & Trust Company, as Rights Agent, which includes the Form of Right Certificate as Exhibit A and the Summary of Terms of the Rights Agreement as Exhibit B is incorporated herein by reference to Registrant's Current Report on Form 8-K filed on October 29, 1999. (3d) Amendment to the Restated Certificate of Incorporation of the Company is incorporated herein by reference to Item 2 of Registrant's Proxy Statement filed with the Commission on or about April 13, 1999. (4) See the provisions relating to capital structure in the Restated Certificate of Incorporation, amendment thereto, incorporated herein by reference from the Exhibits to the Registration Statements identified in Exhibit (3) above. (10-2) Pension Plan is incorporated herein by reference from Registrant's Form 10-K for the year ended December 31, 1985. (10-3) The New Brunswick Scientific Co., Inc., 1989 Stock Option Plan for Nonemployee Directors is incorporated herein by reference to Exhibit "A" appended to the Company's Proxy Statement filed with the Commission on or about April 22, 1989. (10-5) Employment Agreement with David Freedman is incorporated herein by reference to Exhibit (10-5) of the Registrant's Report on Form 10-K for the year ended December 31, 1998. (10-6) Employment Agreement with Ezra Weisman is incorporated herein by reference to Exhibit 10-6 of Registrant's Report on Form 10-K for the year ended December 31, 1993. (10-7) Nonqualified stock option agreement with Ezra Weisman is incorporated herein by reference to Exhibit (10-7) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1990. 48 (10-8) Termination Agreement with David Freedman is incorporated herein by reference to Exhibit (10-8) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1990. (10-9) Termination Agreement with Samuel Eichenbaum is incorporated herein by reference to Exhibit (10-9) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1991. (10-10) Termination Agreement with Ezra Weisman is incorporated herein by reference to Exhibit (10-10) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1990. (10-11) Termination Agreement with Sigmund Freedman is incorporated herein by reference to Exhibit (10-11) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1990. (10-12) 1991 Nonqualified Stock Option Plan is incorporated herein by reference to Exhibit (10-12) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1991. (10-13) Indemnification Agreements in substantially the same form as with all the Directors and Officers of the Company is incorporated herein by reference to Schedule A to Exhibit (10-13) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1991. (10-16) Nonqualified stock option agreement with Ezra Weisman is incorporated herein by reference to the Registrant's Report on Form 10-K for the year ended December 31, 1993. (10-18) Research and Licensing Agreement between DGI BioTechnologies LLC. and Novo Nordisk A/S dated May 28, 1999 is incorporated herein by reference to Exhibit (10-18) of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1999. (10-19) Credit Agreement between New Brunswick Scientific Co., Inc. and First Union National Bank dated April 1, 1999 is incorporated herein by reference to Exhibit (10-19) of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1999. (10-20) Financial Statements and Proforma financial information related to the Company's acquisition of the outstanding Common stock of DJM Cryo-Research Limited and the net assets of DJM Fabrications, collectively (DJM) are incorporated herein by reference to Registrant's Current Report on Form 8-K/A filed on February 4, 2000. (10-21) Purchase Agreement and Cross Option Agreement related to the acquisition of DJM are incorporated herein by reference to the exhibits contained in Registrant's Current Report on Form 8-K filed on December 8, 1999. 49 (10-22) Settlement Agreement and General Release between New Brunswick Scientific Co., Inc. and Ezra Weisman is incorporated herein by reference to Registrant's Current Report on Form 8-K filed on February 2, 2000. (10-23)* Indemnification Agreements with Kenneth Freedman and Peter Schkeeper. (13) Annual Report to Shareholders, to be filed within 120 days of the end of the fiscal year ended December 31, 1999, is incorporated herein by reference. (22) Subsidiaries of the Company appear on Page 51 (24a)* Consent of KPMG LLP. * Filed herewith. 50 EXHIBIT 22 ---------- SUBSIDIARIES OF THE COMPANY --------------------------- Percentage of Name and Place of Incorporation Ownership - ------------------------------------------------- ------------------ New Brunswick Scientific (U.K.) Limited Incorporated in the United Kingdom 100% New Brunswick Scientific B.V. Incorporated in The Netherlands 100% New Brunswick Scientific N.V. Incorporated in Belgium 100% New Brunswick Scientific GmbH Incorporated in Germany 100% New Brunswick Scientific of Delaware, Inc. Incorporated in the State of Delaware 100% New Brunswick Scientific International, Inc. Incorporated in the State of Delaware 100% NBS Sales Co., Limited Incorporated in Jamaica 100% New Brunswick Scientific West Inc. Incorporated in the State of California 100% New Brunswick Scientific S.a.r.l. Incorporated in France 100% NBS ULT Limited Incorporated in the United Kingdom 100% NBS Cryo-Research Limited Incorporated in the United Kingdom 100% 51 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. NEW BRUNSWICK SCIENTIFIC CO., INC. Dated: March 17, 2000 By: /s/ David Freedman -------------------- David Freedman Chairman of the Board (Principal Executive Officer) and Director Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated. Dated: March 17, 2000 By: /s/ Adele Lavender -------------------- Adele Lavender Corporate Secretary Dated: March 17, 2000 By: /s/ Sigmund Freedman ---------------------- Sigmund Freedman Treasurer and Director Dated: March 17, 2000 By: /s/ Samuel Eichenbaum ----------------------- Samuel Eichenbaum Vice President, Finance 52 Dated: March 17, 2000 By: /s/ Kenneth Freedman ---------------------- Kenneth Freedman Director Dated: March 17, 2000 By: /s/ Ernest Gross ------------------ Ernest Gross Director Dated: March 17, 2000 By: /s/ Kiyoshi Masuda -------------------- Kiyoshi Masuda Director Dated: March 17, 2000 By: /s/ Dr. David Pramer ----------------------- Dr. David Pramer Director Dated: March 17, 2000 By: /s/ Peter Schkeeper --------------------- Peter Schkeeper Director Dated: March 17, 2000 By: /s/ Martin Siegel ------------------- Martin Siegel Director 53 EX-3 2 EX-3B NEW BRUNSWICK SCIENTIFIC CO., INC. BY-LAWS (AS AMENDED AND RESTATED ON FEBRUARY 22, 2000) ARTICLE I OFFICES Section 1. The registered office of the corporation shall be at 44 Talmadge Road, Edison, New Jersey. Section 2. The corporation may have such other offices either within or without the state as the Board of Directors may designate or as the business of the corporation may require from time to time. Section 3. ARTICLE II SEAL Section 1. The corporate seal shall have inscribed thereon the name of the corporation, the year of its creation and the words "Corporate Seal, New Jersey". Section 2. ARTICLE III SHAREHOLDERS' MEETING Section 1. Meeting Location. All meetings of the shareholders ----------------- shall be held at the corporation's registered office, or at such other place or places either within or without the State of New Jersey as may from time to time be selected by the Board of Directors. Section 2. Annual Meeting. The annual meeting of shareholders --------------- shall be held on the fourth Tuesday of May in each year if not a 1egal holiday, and if a legal holiday, then on the next full business day following at 10:00 o'clock A.M. when they shall elect, by a plurality vote, persons to serve on the Board of Directors, and transact such other business as may properly be brought before the meeting. Section 3. If the annual meeting for election of directors in not held on the day designated therefor, the directors shall cause the meeting to be held as soon thereafter as convenient. 1 Section 4. Special Meetings. Special meetings of the shareholders ---------------- may be called by the Chairman of the Board or the Board of Directors. Section 5. Notice of Shareholders' Meetings. Written notice of ---------------------------------- the time, place and purpose or purposes of every meeting of shareholders shall be given not less 10 days than nor more than sixty days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at the meeting, unless a greater period of notice is required by statute in a particular case. Section 6. When a meeting is adjourned to another time or place, it shall not be necessary to give notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken and at the adjourned meeting only such business is transacted as might have been transacted at the original meeting. However, if after the adjournment, the Board fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date. Section 7. SECTION 5. Waiver of Notice. Notice of a meeting need not ---------------- be given to any shareholder who signs a waiver of such notice, in person or by proxy, whether before or after the meeting. The attendance of any shareholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Section 8. Whenever shareholders are authorized to take any action after the lapse of a prescribed period of time, the action may be taken without such lapse if such requirement is waived in writing, in person or by proxy, whether before or after the meeting, taking of such action by every shareholder entitled to vote thereon and at the date of the taking at such action. Section 9. SECTION 6. Fixing Record Date. For the purposes of -------------------- determin-ing the shareholders entitled to notice of, or to vote, at any meeting of shareholders or any adjournment thereof, or for the purpose of determining shareholders entitled to receive payment of any dividend or allotment of any right, or for the purpose of any other action, the Board may fix in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than sixty 2 nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be the close of business on the day next preceding the day on which notice in given, or, if no notice is given, the day next preceding the day on which the meeting is held, and the record date for determining shareholders for any other purpose shall be at the close of business on the date on which the resolution of the board relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders, has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board fixes a new record date under this section for the adjourned meeting. SECTION 7. Voting List. The officer or agent having charge of the stock ------------ transfer books for shares of the corporation shall make and certify a complete list of shareholders entitled to vote at a shareholders' meeting or any adjournment thereof. Such list shall be arranged a1phabetically within each class and series, with the address of, and the number of shares held by each shareholder; be produced at the time and place of the meeting; be subject to the inspection of any shareholder during the whole time of the meeting; and be prima facie evidence as to who are the shareholders entitled to examine such list or to vote at any meeting. If the requirements of this Section have not been complied with, the meeting shall, on the demand of any shareholder in person or by proxy, be adjourned until the requirements are complied with. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting prior to the making of any such demand. SECTION 8. Quorum. Unless otherwise provided in the Certificate of ------ Incorporation or by statute, the holders of shares entitled to cast a majority of the votes at a meeting shall constitute a quorum at such meeting. The shareholders present in person or by proxy at a duly organized 3 meeting may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Less than a quorum may adjourn the meeting. Whenever the holders of any class or series of shares are entitled to vote separately on a specified item of business, the provisions of this section shall apply to determining the presence of a quorum of such class or series for the transaction of such specified item of business. SECTION 9. Voting. Each holder of shares with voting rights shall be ------ entitled to one vote for each such share registered in his name, except as otherwise provided in the Certificate of Incorporation. Whenever any action, other than the election of directors, is to be taken by vote of the shareholders, it shall be authorized by a majority of the votes cast at a meeting of shareholders by the holders of shares entitled to vote thereof, unless a greater plurality is required by statute or by the Certificate of Incorporation. Every shareholder entitled to vote at a meeting of shareholders may authorize another person or persons to act for him by proxy. Every proxy shall be executed in writing by the shareholder or his agent. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein, but in no event shall a proxy be valid after three years from the date of execution. Unless it is coupled with an interest, a proxy shall be revocable at will. A proxy shall not be revoked by the death or incapacity of the shareholder, but such proxy shall continue in force until revoked by the personal representative or guardian of the shareholder. The presence at any meeting of any shareholder who has given a proxy shall not revoke such proxy unless the shareholder shall file written notice of such revocation with the secretary of the meeting prior to the voting of such proxy. SECTION 10. Election of Directors. At each election of directors every ----------------------- shareholder entitled to vote at such election shall have the right to vote the number of shares owned by him for as many persons as there are directors to be elected and for whose election he has a right to vote. Directors shall be elected by a plurality of the votes cast at the election, except as otherwise provided by the Certificate of Incorporation. 4 Elections of directors need not be by ballot unless a shareholder demands election by ballot at the election and before the voting begins. SECTION 11. Inspectors of Election. The Board may, in advance of any ----------------------- shareholder meeting, appoint one or more inspec-tors to act at the meeting or any adjournment thereof. If inspectors are not so appointed or shall fail to qualify, the person presiding at the meeting may, and on the request of any shareholder entitled to vote thereat, shall make such appointment. Each inspector, before entering upon the discharge of his duties shall take and sign an oath faithfully to execute the duties of inspector at the meeting with strict impartiality and according to the best of his ability. No person shall be elected a director at a meeting at which he has served as an inspector. ARTICLE IV - DIRECTORS SECTION 1. The business of this corporation shall be conducted by its Board of Directors, which shall consist of not less then three nor more than 10 directors, and the exact number of directors shall be determined from time to time by resolution adopted by affirmative vote of a majority of the entire Board of Directors. The directors shall be divided into three classes designated Class I, Class II, and Class III. Each class shall consist as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. At each annual meeting of shareholders, successors to the class of directors whose term expires at that annual meeting shall be elected for a three--year term. It the number of directors is changed, any increase and decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. Any vacancy on the Board of Directors that results from an increase in the number 5 of directors may be filled by a majority of the Board of Directors then in office, although less than a quorum, or by a sole remaining director. Any directors elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor. SECTION 2. Regular Meetings. Regular meetings of the Board shall be held ---------------- without notice immediately after the Annual Meeting of Shareholders at the registered office of the corporation, or at such other time and place as shall be determined by the Board. SECTION 3. Quorum. A majority of the entire Board, or of any committee ------ thereof, as then constituted, shall constitute a quorum for the transaction of business, and the act of the majority present at a meeting at which a quorum is present shall be the act of the Board or of the committee. SECTION 4. Action Without Meeting. Any action required or permitted to be ---------------------- taken pursuant to authorization voted at a meeting of the Board or any committee thereof, may be taken without a meeting if, prior or subsequent to such action, all members of the Board or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the Board or committee. SECTION 5. Special Meetings. Special meetings of the Board may be called ---------------- by the Chairman of the Board, or the majority of the Board on three days' notice to each director, personally, by mail, facsimile transmission, e-mail or other reasonable method. SECTION 6. Waiver of Notice. Notice of any meeting need not be given to ----------------- any director who signs a waiver of notice, whether before or after the meeting. The attendance of any director at a meeting without protesting prior to the conclusion of the meeting the lack of notice of such meeting shall constitute a waiver of notice by him. Neither the business to be transacted at, nor the purposes of, any meeting of the Board need be specified in the notice or waiver of notice of such meeting. Notice of an adjourned meeting need not be given it the period of adjournment does not exceed ten days in any one adjournment. 6 SECTION 7. Powers of Directors. The Board of Directors shall manage the -------------------- business of the corporation. In addition to the powers and authorities expressly conferred upon them by these Bylaws, the Board may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by these By-Laws directed or required to be exercised or done by the shareholders. SECTION 8. Compensation of Directors. The Board, by the affirmative vote ------------------------- of a majority of directors in office and irrespective of any personal interest of any of them, shall have authority to establish reasonable compensation of directors for services to the corporation as directors, officers, or otherwise. SECTION 9. Committees of the Board of Directors. ----------------------------------------- A. The Board of Directors, by resolution adopted by a majority of the entire Board, shall appoint from among its members the following committees: 1. An Executive Committee, which shall be comprised of at least three members of the Board of Directors, one of whom shall be the Chairman of the Board. The Executive Committee shall be the decision-making body of the Board of Directors during the period between the meetings of the Board of Directors. Board approval of the actions of the Executive Committee shall not be required. 2. A Nominating Committee, which shall be comprised of at least three members of the Board of Directors. The Committee shall evaluate prospective candidates for election to the Board of Directors and recommend nominees for consideration at the annual meeting. 3. An Audit Committee, which shall be comprised of at least three members of the Board of Directors. The Committee shall meet with management and independent auditors on matters pertaining to the corporation's financial statements and internal accounting controls. 7 4. A Compensation Committee, which shall be comprised of at least three members of the Board of Directors. The Committee shall review the corporation's policies concerning employment, compensation and deferred compensation including pension benefits and stock option plans, and recommend modifications to such policies. B. If deemed advisable, the Board of Directors, by resolution adopted by a majority of the entire Board, may appoint from among its members additional committees, with the members and the purpose of each such committee to be established by resolution of the Board. C. Each of the committees established under subparagraphs A and B shall have and may exercise all of the authority of the Board, to the extent granted to each such committee, except that no such committee shall: 1. make, alter or repeal any By-Law of the corporation; 2. elect or appoint any director, or remove any officer or director; 3. submit to shareholders any action that requires shareholders' approval; or 4. amend or repeal any resolution theretofore adopted by the Board. D. Action taken at a meeting of any committee established under subparagraphs A and B shall be reported to the Board at its next meeting following such committee meeting; except that, when the meeting of the Board is held within two days after the committee meeting, such report shall, if not made at the first meeting, be made to the Board at its second meeting following such committee meeting. 8 SECTION 10. Conduct of Meetings. Any meeting of the Board or of any --------------------- committee may include participation by any director or committee member not physically present who is able to participate in a meaningful way in all or any part of the meeting through the use of means of communication to the fullest extent authorized by New Jersey corporation law. ARTICLE V - OFFICERS SECTION 1. The officers of the corporation shall consist of a Chairman of the Board, a President, a Secretary, a Treasurer, and, if desired, a Vice Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, and such other officers as may be required. They shall be annually chosen by the Board of Directors and shall hold office for one year and until their successors are chosen and quality. The Board may also choose such employees and agents as it shall deem necessary, who shall hold their offices for such terms and shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board. Any two or more offices may be held by the same person but no officer shall execute, acknowledge, or verify any instrument in more than one capacity if such instrument is required by law or by these By-Laws to be executed, acknowledged, or verified by two or more officers. SECTION 2. Salaries. The salaries of all officers, employees and agents -------- of the corporation shall be fixed by the Board of Directors, SECTION 3. Removal. Any officer elected or appointed by the Board of ------- Directors may be removed by the Board with or without cause. An officer elected by the shareholders may be removed, with or without cause, only by vote of the shareholders but his authority to act as an officer may be suspended by the Board for Cause. SECTION 4. Chairman of the Board. The Chairman of the Board shall preside --------------------- at all meetings of the shareholders and of the directors. The Chairman of the Board shall lead the Board of Directors in managing the business of the corporation including devising strategies for profitable growth., The Chairman of the Board shall chair the executive committee and shall serve as an Ex -- Officio member of all other committees established by the Board. - 9 SECTION 5. The President. The President shall manage the affairs of the -------------- corporation in accordance with the law, the corporate By-Laws and the policies and procedures established by the Board, to optimize growth, profitability and shareholders' equity of the corporation. The President shall report to the Board via the Chairman of the Board. SECTION 6. Secretary. The secretary shall keep full minutes of --------- all meetings of the shareholders and directors; he shall be an EX-OFFICIO Secretary of the Board of Directors; he shall attend all sessions of the Board, shall act an clerk thereof, and record all votes and the minutes or all proceedings in a book to be kept for that purpose; and shall perform like duties for the standing committees when required. He shall give or cause to be given, notices of all meetings of the shareholders of the corporation and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the Chairman of the Board, under whose supervision he shall be. SECTION 7. Treasurer. The Treasurer shall deposit all moneys and other --------- valuable effects in the name and to the credit of the corporation, in such depositories as may be designated by the Board or Directors. He shall disburse the funds of the corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Chairman of the Board, President, and Directors, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer. SECTION 8. Vice President, Finance. The Vice President, Finance is the ------------------------- Chief Financial Officer and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall render to the Chairman of the Board, President, and Direc-tors, at the regular or any special meetings of the Board, an account of the financial condition of the corporation, and shall submit a full financial report at the annual meeting of the shareholders. SECTION 9. Additional officers may be appointed by the Board, including Vice Chairman of the Board, Chief Executive Officer, one or more Vice Presidents, and such other officers as 10 may be required. They shall have the responsibility and authority defined in their position descriptions adopted by the Board's resolution in creating such positions. ARTICLE VI - VACANCIES, RESIGNATION, REMOVAL SECTION 1. Director. Subject to further provision in the Certificate of -------- Incorporation, any directorship not filled at the annual meeting and any vacancy, however caused, occurring on the Board may be filled by the affirmative vote of a majority of the remaining directors even though less than a quorum of the Board, or by a sole remaining director. A director so elected by the Board shall hold office until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualify. SECTION 2. Officers. Any vacancy occurring among the officers, however -------- caused, may be filled by the Board of Directors. SECTION 3. Resignations. Any director or other officer may resign by ------------ written notice to the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall have been specified in the notice of resignation. SECTION 4. Removal. So long as the Certificate of Incorpora-tion so ------- provides, the Board of Directors shall have the power to remove directors for cause and to suspend directors pending a final determination that cause exists for removal. ARTICLE VII- SHARE CERTIFICATES SECTION 1. Form. The share certificates of the corporation shall be ---- numbered and registered in the transfer records of the corporation as they are issued. They shall bear the corporate seal, or a facsimile thereof, and be signed by the Chairman of the Board and the Secretary. SECTION 2. Transfers. All transfers of the shares of the corporation --------- shall be made upon the books of the corporation by the holder of the shares in person, or by his legal representative. Share certificates shall be surrendered, properly endorsed and canceled at the time of transfer. 11 SECTION 3. Lost Certificates. In the event that a share certificate shall ----------------- be lost, destroyed or mutilated, a new certificate may be issued therefor upon such terms and indemnity to the corporation as the Board of Directors may prescribe. ARTICLE VIII - BOOKS AND ACCOUNTS' SECTION 1. The corporation shall keep books and records of account and minutes of the proceedings of the shareholders, Board of Directors and executive committee, if any. Such books, records and minutes may be kept outside this State. The corporation shall keep at its registered office, or at the office of a transfer agent in this State, a record or records containing the names and addresses of all shareholders, the number, class and series of shares held by each and the dates when they respectively became the owners of record thereof, except that in the case of shares listed on a national securities exchange, the records of the holders of such shares may be kept at the office of a transfer agent within or without this State. SECTION 2. Inspection. Any person who shall have been a shareholder of ---------- record of the corporation for at least six months immediately preceding his demand, or any person holding, or so authorized in writing by the holders of, at least five percent of the outstanding shares of any class, upon at least five days' written demand shall have the right for any proper purpose to examine in person or by agent or attorney, during usual business hours, the minutes of the proceedings of the shareholders and record of shareholders, and to make extracts therefrom, at the places where the same are kept. ARTICLE LX - MISCELLANEOUS PROVISIONS SECTION 1. Monetary Disbursements. All checks or demands for money and ----------------------- notes of the corporation shall be signed by such officer or officers as the Board of Directors may from time to time designate. SECTION 2. Fiscal Year. The fiscal year of the Corporation shall begin on ----------- the date selected from time to time by the Board of Directors. 12 SECTION 3. Dividends. The Board of Directors may declare and pay --------- dividends upon the outstanding shares of the corporation from time to time and to such extent as they deem advisable, in the manner and upon the terms and conditions provided by statute and the Certificate of Incorporation. SECTION 4. Reserve. Before payment of any dividend there may be set aside ------- such sum or sums as the directors, from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interests of the corporation, and the directors may abolish any such reserve in the manner in which it was created. SECTION 5. Giving Notice. Whenever written notice is required to be given ------------- to any person, it may be given to such person either personally or by sending a copy thereof through the mail. If notice is given by mail, the notice shall be deemed to be given when deposited in the mail addressed to the person to whom it is directed at his last address as it appears on the records of the corporation, with postage prepaid thereon, or in the event no address is available, the notice shall be deemed to have been given when addressed to general delivery in the area where the person is suspected of residing or when the company has made any other reasonable attempt to give notice to such person. Such notice shall specify the place, day and hour of the meeting, and in the case of a shareholders' meeting, the general nature of the business to be transacted. In computing the period of time for the giving of any notice required or permitted by statute, or by the Certificate of Incorporation or these By-Laws or any resolution of directors of shareholders, the day on which the notice is given shall be excluded, and the day on which the matter noticed is to occur shall be included. ARTICLE X - INDEMNIFICATION SECTION 1. The corporation shall indemnify to the full extent permitted by law any person made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, 13 administrative or investigative), by reason of the fact that he is or was a director, officer or employee of the corporation or serves or served any other enterprise at the request of the corporation. ARTICLE X1 - LOANS TO OFFICERS, DIRECTORS OR EMPLOYEES SECTION 1. The corporation may lend money to, or guarantee any obligation of, or otherwise assist, any officer or other employee of the corporation or of any subsidiary, whenever, in the judgment of the directors, such loan, guarantee or assistance, may reasonably be expected to benefit the corporation; provided, however, that the corporation shall not lend money to, guarantee any obligation of, or otherwise assist, any officer or other employee who is also a director, of the corporation unless such loan, guarantee or assistance is authorized by a majority of the entire board. The loan, guarantee or other assistance may be made with or without interest, and may be unsecured, or secured in such manner as the Board shall approve including, without limitation, a pledge of shares of the corporation, and may be made upon such other terms and conditions as the board may determine. ARTICLE XII - AMENDMENTS SECTION L. The Board of Directors shall have the power to make, alter and repeal these By-Laws, but By-Laws made by the Board may be altered or repealed, and new By-Laws may be made, by the shareholders. 14 EX-10.23 3 5 INDEMNIFICATION AGREEMENT ------------------------- AGREEMENT dated August 10,1999, between NEW BRUNSWICK SCIENTIFIC CO., INC., a New Jersey corporation (the "Corporation") and Kenneth Freedman (the "Director"). WHEREAS, the Director is a member of the board of directors of the Corporation and an officer of the Corporation; and WHEREAS, proceedings based upon the Director's performance of his duties may be brought from time to time against or involving him; and WHEREAS, the Corporation recognizes that the threat of such proceedings might inhibit the Director in his performance of his duties and/or cause the Director to cease serving as a director of the Corporation; and WHEREAS, to reduce any such inhibition, the Corporation wishes to indemnify the Director against liabilities he may incur as a result of certain proceedings, as well as expenses he may incur in his defense in such proceedings; and WHEREAS, in certain proceedings involving claims relating to the Employee Retirement Income Security Act of 1974, as amended, Federal law may apply to limit the permissible scope of indemnification; and NOW, THEREFORE, the parties hereto, for valuable consideration, incident to the Director's service to, and to induce the continued service of the Director to the Corporation, agree as follows: 1 ARTICLE I --------- DEFINITIONS ----------- 1.1 Proceeding. "Proceeding" shall mean any pending, threatened or ---------- completed civil, criminal, administrative or arbitrative action, suit or proceeding, any appeal from any such action, suit or proceeding, and any inquiry or investigation which could lead to any such action, suit or proceeding. 1.2 Expenses. "Expenses" shall mean reasonable costs, disbursements -------- and counsel fees. 1.3 Liabilities. "Liabilities" shall mean amounts paid or incurred in ----------- satisfaction or settlements, judgments, fines and penalties. 1.4 Derivative Suit. "Derivative Suit" shall mean a Proceeding against --------------- the Director brought by or in the right of the Corporation, which involves the Director by reason of his being or having been a director, officer or agent of the Corporation or a subsidiary thereof. 1.5 Breach Of The Director's Duty of Loyalty. "Breach Of The ---------------------------------------------- Director's Duty Of Loyalty" shall mean an act or omission which that person knows or believes to be contrary to the best interests of the Corporation or its Shareholders in connection with a matter in which he has a material conflict of interest. 1.6 ERISA Suit. "ERISA Suit" shall mean a proceeding against the ----------- Director brought by or on behalf of a participant(s) or beneficiary of any employee welfare or pension benefit plan by reason of his being or having been a Trustee or fiduciary of such plan, or by reason of his actions with respect to the plan which he has taken in his capacity as a Director. ARTICLE II ---------- INDEMNIFICATION --------------- 2.1 Personal Liability. The Director shall not be personally liable to ------------------ the Corporation or its stockholders for damages for breach of any duty owed to the Corporation or its stockholders unless such breach of duty is based upon an act or omission (a) in Breach Of The 2 Director's Duty Of Loyalty to the Corporation or its stockholders; (b) not in good faith or involving a knowing violation of law; or (c) resulting in receipt by the Director of an improper personal benefit. 2.2 Expenses. Unless otherwise expressly prohibited by law, the -------- Corporation shall indemnify the Director against his Expenses and all Liabilities in connection with any Proceeding involving the Director, including a proceeding by or in the right of the Corporation, unless such breach of duty is based upon an act or omission (a) in Breach Of The Director's Duty Of Loyalty to the Corporation or its stockholders; (b) not in good faith or involving a knowing violation of law; or (c) resulting in receipt by the Director of an improper personal benefit. 2.3 Advancement of Expenses. The Corporation shall advance or pay ------------------------- those Expenses incurred by the Director in a Proceeding as and when incurred, provided, however, that the Director shall, as a condition to receipt of such ------ ------- advances, undertake to repay all amounts advanced if it shall finally be adjudicated that the breach of duty by the Director was based on an act or omission (a) in Breach Of The Director's Duty Of Loyalty to the Corporation or its stockholders; (b) not in good faith or involving a knowing violation of the law; or (c) resulting in receipt of an improper personal benefit. ARTICLE III ----------- INDEMNIFICATION FOR ERISA SUITS ------------------------------- 3.1 Indemnification. The Corporation shall, to the extent --------------- indemnification is not available to the Director under Article II of this Agreement, indemnify the Director against any and all Liabilities and Expenses which he may incur in connection with any ERISA Suit, if: (a) he acted in good faith, and (b) in a manner which did not constitute a breach of fiduciary obligations as defined by the Employee Retirement Income Security Act, 29 U.S.C. 1101-1114. 3 3.2 No Presumption. The termination of any proceeding in connection --------------- with any ERISA Suit by judgment, order or settlement should not of itself create a presumption that the Director did not meet the applicable standards of conduct set forth in subparagraphs (a) and (b) above. 3.3 Determination. Any determination concerning whether the Director ------------- met the standards of conduct set forth in subparagraphs 3.1(a) and (b) above shall be made: (a) by the Board of Directors of the Corporation or a committee thereof acting by a majority vote of a quorum consisting of directors who were not parties to or otherwise involved in the proceeding; or (b) by the Shareholders, if provided by the Certificate of Incorporation, the by-laws of the Corporation, or a resolution of either the Board of Directors or the Shareholders of the Corporation; or (c) by independent legal counsel in a written opinion, if a quorum of the Board of Directors cannot be obtained, or if a quorum of the Board of Directors or a committee thereof by a majority vote of the disinterested directors so directs. Such counsel shall be designated by the Board of Directors. ARTICLE IV ---------- MISCELLANEOUS ------------- 4.1 Agreement Effective Despite Service Prior to Effective Date and ------------------------------------------------------------------- After Termination of Director. This Agreement shall be effective without regard -------------------------- to the service of the Director as a Director of the Corporation prior to the date hereof and this Agreement shall remain effective notwithstanding the removal, resignation, death or other termination of the Director from any position with the Corporation. 4.2 Binding Effect Upon Successors of Corporation. This Agreement -------------------------------------------------- shall bind the Corporation, its successors and assigns. 4 4.3 Insurance. The Corporation, at its sole discretion, may purchase --------- and maintain insurance on behalf of the Director. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC. ______________________ By:_______________________________________ ________________________________________ 5 5 INDEMNIFICATION AGREEMENT ------------------------- AGREEMENT dated August 10,1999, between NEW BRUNSWICK SCIENTIFIC CO., INC., a New Jersey corporation (the "Corporation") and Peter Schkeeper (the "Director"). WHEREAS, the Director is a member of the board of directors of the Corporation and an officer of the Corporation; and WHEREAS, proceedings based upon the Director's performance of his duties may be brought from time to time against or involving him; and WHEREAS, the Corporation recognizes that the threat of such proceedings might inhibit the Director in his performance of his duties and/or cause the Director to cease serving as a director of the Corporation; and WHEREAS, to reduce any such inhibition, the Corporation wishes to indemnify the Director against liabilities he may incur as a result of certain proceedings, as well as expenses he may incur in his defense in such proceedings; and WHEREAS, in certain proceedings involving claims relating to the Employee Retirement Income Security Act of 1974, as amended, Federal law may apply to limit the permissible scope of indemnification; and NOW, THEREFORE, the parties hereto, for valuable consideration, incident to the Director's service to, and to induce the continued service of the Director to the Corporation, agree as follows: 1 ARTICLE I --------- DEFINITIONS ----------- 1.1 Proceeding. "Proceeding" shall mean any pending, threatened or ---------- completed civil, criminal, administrative or arbitrative action, suit or proceeding, any appeal from any such action, suit or proceeding, and any inquiry or investigation which could lead to any such action, suit or proceeding. 1.2 Expenses. "Expenses" shall mean reasonable costs, disbursements -------- and counsel fees. 1.3 Liabilities. "Liabilities" shall mean amounts paid or incurred in ----------- satisfaction or settlements, judgments, fines and penalties. 1.4 Derivative Suit. "Derivative Suit" shall mean a Proceeding against --------------- the Director brought by or in the right of the Corporation, which involves the Director by reason of his being or having been a director, officer or agent of the Corporation or a subsidiary thereof. 1.5 Breach Of The Director's Duty of Loyalty. "Breach Of The ---------------------------------------------- Director's Duty Of Loyalty" shall mean an act or omission which that person knows or believes to be contrary to the best interests of the Corporation or its Shareholders in connection with a matter in which he has a material conflict of interest. 1.6 ERISA Suit. "ERISA Suit" shall mean a proceeding against the ----------- Director brought by or on behalf of a participant(s) or beneficiary of any employee welfare or pension benefit plan by reason of his being or having been a Trustee or fiduciary of such plan, or by reason of his actions with respect to the plan which he has taken in his capacity as a Director. ARTICLE II ---------- INDEMNIFICATION --------------- 2.1 Personal Liability. The Director shall not be personally liable to ------------------ the Corporation or its stockholders for damages for breach of any duty owed to the Corporation or its stockholders unless such breach of duty is based upon an act or omission (a) in Breach Of The 2 Director's Duty Of Loyalty to the Corporation or its stockholders; (b) not in good faith or involving a knowing violation of law; or (c) resulting in receipt by the Director of an improper personal benefit. 2.2 Expenses. Unless otherwise expressly prohibited by law, the -------- Corporation shall indemnify the Director against his Expenses and all Liabilities in connection with any Proceeding involving the Director, including a proceeding by or in the right of the Corporation, unless such breach of duty is based upon an act or omission (a) in Breach Of The Director's Duty Of Loyalty to the Corporation or its stockholders; (b) not in good faith or involving a knowing violation of law; or (c) resulting in receipt by the Director of an improper personal benefit. 2.3 Advancement of Expenses. The Corporation shall advance or pay ------------------------- those Expenses incurred by the Director in a Proceeding as and when incurred, provided, however, that the Director shall, as a condition to receipt of such ------ ------- advances, undertake to repay all amounts advanced if it shall finally be adjudicated that the breach of duty by the Director was based on an act or omission (a) in Breach Of The Director's Duty Of Loyalty to the Corporation or its stockholders; (b) not in good faith or involving a knowing violation of the law; or (c) resulting in receipt of an improper personal benefit. ARTICLE III ----------- INDEMNIFICATION FOR ERISA SUITS ------------------------------- 3.1 Indemnification. The Corporation shall, to the extent --------------- indemnification is not available to the Director under Article II of this Agreement, indemnify the Director against any and all Liabilities and Expenses which he may incur in connection with any ERISA Suit, if: (a) he acted in good faith, and (b) in a manner which did not constitute a breach of fiduciary obligations as defined by the Employee Retirement Income Security Act, 29 U.S.C. 1101-1114. 3 3.2 No Presumption. The termination of any proceeding in connection --------------- with any ERISA Suit by judgment, order or settlement should not of itself create a presumption that the Director did not meet the applicable standards of conduct set forth in subparagraphs (a) and (b) above. 3.3 Determination. Any determination concerning whether the Director ------------- met the standards of conduct set forth in subparagraphs 3.1(a) and (b) above shall be made: (a) by the Board of Directors of the Corporation or a committee thereof acting by a majority vote of a quorum consisting of directors who were not parties to or otherwise involved in the proceeding; or (b) by the Shareholders, if provided by the Certificate of Incorporation, the by-laws of the Corporation, or a resolution of either the Board of Directors or the Shareholders of the Corporation; or (c) by independent legal counsel in a written opinion, if a quorum of the Board of Directors cannot be obtained, or if a quorum of the Board of Directors or a committee thereof by a majority vote of the disinterested directors so directs. Such counsel shall be designated by the Board of Directors. ARTICLE IV ---------- MISCELLANEOUS ------------- 4.1 Agreement Effective Despite Service Prior to Effective Date and ------------------------------------------------------------------- After Termination of Director. This Agreement shall be effective without regard -------------------------- to the service of the Director as a Director of the Corporation prior to the date hereof and this Agreement shall remain effective notwithstanding the removal, resignation, death or other termination of the Director from any position with the Corporation. 4.2 Binding Effect Upon Successors of Corporation. This Agreement -------------------------------------------------- shall bind the Corporation, its successors and assigns. 4 4.3 Insurance. The Corporation, at its sole discretion, may purchase --------- and maintain insurance on behalf of the Director. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC. ______________________ By:_______________________________________ ________________________________________ 5 EX-24 4 EX-24A Independent Auditors' Consent The Board of Directors New Brunswick Scientific Co., Inc. We consent to incorporation by reference in the registration statements (No. 33-70452, No. 333-06029 and No. 33016024) on Form S-8 of New Brunswick Scientific Co., Inc. of our report dated February 11, 2000, relating to the consolidated balance sheets of New Brunswick Scientific Co., Inc. and subsidiaries as of December 31, 1999 and 1998, and the related consolidated statements of operations, shareholders' equity, cash flows, and comprehensive income for each of the years in the three year period ended December 31, 1999, and related schedule, which report appears in the December 31, 1999 annual report on form 10-K of New Brunswick Scientific Co., Inc. KPMG LLP Short Hills, New Jersey March 29, 2000 EX-27 5
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