<PAGE> 1
As filed with the Securities and Exchange Commission on October 7, 1996
Registration Statement No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
FERROFLUIDICS CORPORATION
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 02-0275185
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 SIMON STREET
NASHUA, NEW HAMPSHIRE 03061
(Address of principal executive offices)
FERROFLUIDICS CORPORATION AMENDED AND RESTATED
1995 STOCK OPTION AND INCENTIVE PLAN
FERROFLUIDICS CORPORATION AMENDED AND RESTATED
1995 NON-QUALIFIED STOCK OPTION PLAN
FERROFLUIDICS CORPORATION AMENDED AND RESTATED
1994 RESTRICTED STOCK PLAN
(Full title of the Plan)
-------------------------------
PAUL F. AVERY, JR.
Chairman of the Board and Treasurer
SALVATORE J. VINCIGUERRA
President and Chief Executive Officer
FERROFLUIDICS CORPORATION
40 Simon Street
Nashua, New Hampshire 03061
(Name and address of agent for service)
(603) 883-9800
(Telephone number, including area code, of agent for service)
----------------------------
Copy to:
STUART M. CABLE, ESQ.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109
(617) 570-1000
----------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
==========================================================================================================
<S> <C> <C> <C> <C>
Common Stock(2) 255,550 $ 9.63 $2,460,947 $ 849
15,000 $11.75 $ 176,250 $ 61
5,000 $11.00 $ 55,000 $ 19
115,000 $13.00 $1,495,000 $ 516
30,000 $ 9.38 $ 281,400 $ 97
71,925 $ 9.75 $ 701,269 $ 242
- ----------------------------------------------------------------------------------------------------------
Common Stock 192,737 $ 8.50(3) $1,638,265 $ 565
- ----------------------------------------------------------------------------------------------------------
Common Stock 357,525 $ 8.50(3) $3,038,963 $1,048
==========================================================================================================
<FN>
(1) This Registration Statement also relates to such indeterminate number of additional shares of Common
Stock of the Registrant as may be issuable as a result of a stock dividend, stock split, split-up,
recapitalization or other similar event.
(2) The aggregate offering price and fee are computed based on the exercise price of the options to
purchase shares of Common Stock of Ferrofluidics Corporation, par value $.004 per share (the "Common
Stock"), which have been granted under the Ferrofluidics Corporation 1995 Non-Qualified Stock Option
Plan and the Ferrofluidics Corporation 1995 Stock Option and Incentive Plan in accordance with Rule
457(h) under the Securities Act of 1933, as amended (the "Securities Act").
(3) This estimate is based on the average of the high and low sale prices of the Common Stock as reported
on the Nasdaq National Market on October 1, 1996, pursuant to Rule 457(c) and (h) under the
Securities Act, for purposes of determining the registration fee with respect to the shares of
Common Stock which have been granted under the Ferrofluidics Corporation 1994 Restricted Stock Plan
and the shares of Common Stock which are to be issued under the Ferrofluidics Corporation 1995
Non-Qualified Stock Option Plan and the Ferrofluidics Corporation 1995 Stock Option and Incentive
Plan.
==========================================================================================================
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Ferrofluidics Corporation (the "Company") hereby incorporates by reference
the documents listed in (a) through (c) below, which have previously been filed
with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996, filed with the Commission (Commission File No. 0-10734)
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since June 30, 1996; and
(c) The description of the Company's common stock, par value $.004 per
share, contained in the Company's Registration Statement on Form 8-A,
as amended, filed with the Commission (Commission File No. 2-72394-B)
pursuant to Section 12 of the Exchange Act.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of
the Exchange Act prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Massachusetts corporation. Reference is made to Chapter
156B, Section 13(b)(1 1/2) of the Massachusetts Business Corporation Law (the
"MBCL"), which enables a corporation in its original articles of organization or
an amendment thereto to eliminate or limit the personal liability of a director
for monetary damages for violations of the director's fiduciary duty, except (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Sections
61 and 62 of the MBCL (providing for liability of directors for authorizing
unauthorized distributions and for making loans to directors, officers and
certain shareholders) or (iv) for any transaction from which a director derived
an improper personal benefit.
Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request in
any capacity with respect to any employee benefit plan, to the extent specified
or authorized by the articles of organization, a by-law adopted by the
stockholders or a vote adopted by the holders of a majority of the shares of
stock entitled to vote on the election of directors.
Article 6 of the Company's Restated Articles of Organization, as amended,
provides that, to the fullest extent permissible under the MBCL, a director of
the Company will not be personally liable to the Company or its stockholders for
monetary damages arising out of the director's breach of his or her fiduciary
duty. In addition, Article IV of the By-laws of the Company provides that the
Company shall to the extent legally permissible indemnify each of its directors
and officers against all expenses and liabilities which he has reasonably
incurred in connection with or arising out of any actual or threatened action,
suit or proceeding in which he may be involved by reason of his being or having
been a director or officer of the Company, provided
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no such indemnification shall be made in relation to matters as to which such
director or officer shall be finally adjudged in any such action, suit or
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the Company. In the event that a settlement
or compromise of such action, suit or proceeding is effected, indemnification
may be had but only if the Board of Directors of the Company shall have been
furnished with an opinion of counsel for the Company to the effect that such
settlement or compromise is in the best interest of the Company and that such
director or officer does not appear not to have acted in good faith in the
reasonable belief that his action was in the best interests of the Company, and
if the Board of Directors of the Company shall have adopted a resolution
approving such settlement or compromise. Article IV of the Company's By-laws
further provides that the right of indemnification shall not be exclusive of
other rights to which any director, officer or other corporate personnel may be
entitled to as a matter of law.
The Company has purchased directors' and officers' liability insurance,
which insures against certain losses arising from claims against directors or
officers of the Company by reason of certain acts, including a breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted or any of the foregoing so alleged by any claimant or
any claim against an officer or director of the Company solely by reason of his
being such an officer or director.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Commission has expressed its opinion that such indemnification
is against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibit
-------
4.1 Ferrofluidics Corporation Amended and Restated 1995 Stock Option
and Incentive Plan (incorporated by reference to Exhibit 10.24 of
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996)
4.2 Ferrofluidics Corporation Amended and Restated 1995 Non-Qualified
Stock Option Plan (incorporated by reference to Exhibit 10.25 of
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996)
4.3 Ferrofluidics Corporation Amended and Restated 1994 Restricted
Stock Plan (incorporated by reference to Exhibit 10.6 of the
Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Counsel (included in Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Coopers & Lybrand L.L.P., Independent Auditors
24.1 Powers of Attorney (included in Part II of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
2
<PAGE> 4
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
herein do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the undersigned registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashua, State of New Hampshire, on this 7th day of
October, 1996.
FERROFLUIDICS CORPORATION
By:
-------------------------------------
Salvatore J. Vinciguerra
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Ferrofluidics Corporation hereby severally constitute Paul F.
Avery, Jr. and Salvatore J. Vinciguerra and each of them singly, our true and
lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all amendments to said Registration
Statement (or any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933),
and generally to do all such things in our names and in our capacities as
officers and directors to enable Ferrofluidics Corporation to comply with the
provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be singed by our said attorneys, or any of them, to said Registration
Statement and any all amendments thereto.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
President and Chief Executive October 7, 1996
- ------------------------------- Officer (Principal Executive
Salvatore J. Vinciguerra Officer)
- ------------------------------- Chairman of the Board and October 7, 1996
Paul F. Avery, Jr. Treasurer
- ------------------------------- Vice President and Chief October 7, 1996
William B. Ford Financial Officer (Principal
Financial Officer)
- ------------------------------- Controller (Principal October 7, 1996
Stephen P. Morin Accounting Officer)
- ------------------------------- Director October 7, 1996
Stephen B. Hazard
- ------------------------------- Director October 7, 1996
Dennis R. Stone
- ------------------------------- Director October 7, 1996
Howard F. Nichols
- ------------------------------- Director October 7, 1996
Robert P. Rittereiser
- ------------------------------- Director October 7, 1996
Dean Kamen
</TABLE>
<PAGE> 6
EXHIBIT INDEX
Exhibit No. Description Page*
----------- ----------- ----
4.1 Ferrofluidics Corporation Amended and Restated 1995 --
Stock Option and Incentive Plan (incorporated by
reference to Exhibit 10.24 of the Company's Annual
Report on Form 10-K for the fiscal year ended
June 30, 1996)
4.2 Ferrofluidics Corporation Amended and Restated 1995 --
Non-Qualified Stock Option Plan (incorporated by
reference to Exhibit 10.25 of the Company's Annual
Report on Form 10-K for the fiscal year ended
June 30, 1996)
4.3 Ferrofluidics Corporation Amended and Restated 1994 --
Restricted Stock Plan (incorporated by reference to
Exhibit 10.6 of the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1996)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered
23.1 Consent of Counsel (included in Exhibit 5.1 hereto) --
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Coopers & Lybrand L.L.P., Independent
Auditors
24.1 Powers of Attorney (included in Part II of this --
Registration Statement)
- ------------------------
* Refers to sequentially numbered copy.
<PAGE> 1
EXHIBIT 5.1
October 7, 1996
Ferrofluidics Corporation
40 Simon Street
Nashua, New Hampshire 03061
Ladies and Gentlemen:
This opinion is furnished in connection with the filing of a
registration statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), relating to
1,042,737 shares of common stock, par value $.004 per share (the "Shares"), of
Ferrofluidics Corporation, a Massachusetts corporation (the "Company").
In connection with rendering this opinion, we have examined the
Restated Articles of Organization, as amended from time to time and the Amended
and Restated By-laws of the Company; such records of the corporate proceedings
of the Company as we deemed material; the Registration Statement; such
certificates, receipts, records and documents of the Company as we considered
necessary for the purposes of this opinion; the Ferrofluidics Corporation
Amended and Restated 1994 Restricted Stock Plan (the "Restricted Plan"); the
Ferrofluidics Corporation Amended and Restated 1995 Non-Qualified Stock Option
Plan (the "Non-Qualified Plan"); and the Ferrofluidics Corporation Amended and
Restated 1995 Stock Option and Incentive Plan (the "Incentive Plan" and
together with the Restricted Plan and the Non-Qualified Plan, the "Plans").
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, the Commonwealth of
Massachusetts and the General Corporation Law of the State of Delaware.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Plans, the
Shares will be legally issued, fully paid and nonassessable shares of common
stock, par value $.004 per share, of the Company.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1995 Stock Option and Incentive Plan, the 1995
Non-Qualified Stock Option Plan and the 1994 Restricted Stock Plan of
Ferrofluidics Corporation of our report dated September 3, 1996, with respect
to the consolidated financial statements and schedule of Ferrofluidics
Corporation for the year ended June 30, 1996, included in its Annual Report
(Form 10-K) for the year ended June 30, 1996, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Manchester, New Hampshire
October 1, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference, in the Registration Statement of
Ferrofluidics Corporation on Form S-8 pertaining to its 1995 Stock Option and
Incentive Plan, 1995 Non-Qualified Stock Option Plan and 1994 Restricted Stock
Option Plan, of our report dated August 31, 1995, on our audits of the
consolidated financial statements and financial statement schedule of
Ferrofluidics Corporation as of June 30, 1995 and for the years ended June 30,
1995 and June 30, 1994, which report is included in the Annual Report of
Ferrofluidics Corporation on Form 10-K for the year ended June 30, 1996.
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
October 4, 1996
