<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1996
REGISTRATION NO. 333 -
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
under the
SECURITIES ACT OF 1933
-----------------------------------
MICROFLUIDICS INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 04-2790322
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
30 OSSIPEE ROAD
NEWTON, MASSACHUSETTS 02164-9101
(617) 969-5452
(Address of Principal Executive Offices)
MICROFLUIDICS INTERNATIONAL CORPORATION
1989 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full titles of the plans)
MICHAEL A. LENTO, PRESIDENT AND TREASURER
MICROFLUIDICS INTERNATIONAL CORPORATION
30 OSSIPEE ROAD
NEWTON, MASSACHUSETTS 02164-9101
(617) 969-5452
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
-----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
Proposed Proposed
maximum maximum
Title of Amount to be offering price aggregate Amount of
securities to be registered registered/(1)/ per share/(2)/ offering price/(2)/ registration fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 25,000 $2.00 $ 50,000 $ 15.15
235,000 $1.3438 $315,793 $ 95.69
------- -------
260,000 $110.84
======================================================================================================
</TABLE>
(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of the aggregate number of shares which may
be sold upon the exercise of options which have been granted and/or may
hereafter be granted under the Microfluidics International Corporation 1989
Non-Employee Director Stock Option Plan (the "Plan"). The maximum number of
shares which may be sold upon the exercise of such options granted under the
Plan is subject to adjustment in accordance with certain anti-dilution and
other provisions of said Plan. Accordingly, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"), this Registration
Statement covers, in addition to the number of shares stated above, an
indeterminate number of shares which may be subject to grant or otherwise
issuable after the operation of any such anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: (i) in the case of the 25,000 shares of Common
Stock which may be purchased upon exercise of outstanding options, the fee
is calculated on the basis of the price at which the options may be
exercised; and (ii) in the case of the 235,000 shares of Common Stock for
which options have not yet been granted and the option price of which is
therefore unknown, the fee is calculated on the basis of the average of the
high and low sale prices per share of the Common Stock on the National
Market System of the National Association of Securities Dealers Automated
Quotation System (NASDAQ) as of a date within 5 business days prior to
filing this Registration Statement (October 18, 1996).
================================================================================
<PAGE>
EXPLANATORY NOTE
----------------
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock pursuant to the Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
--------------------------------------------------------
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A (File No. 0-11625) filed under the
Securities Exchange Act of 1934, including any amendment or report filed
for the purpose of updating such description.
All reports and other documents filed by the Company after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be part hereof from the
date of filing of such reports and documents.
Item 4. Description of Securities.
----------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
-----------------------------------------------
The validity of the issuance of the shares of Common Stock
registered under this Registration Statement has been passed upon for the
Company by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston,
Massachusetts. Members of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. and certain members of their families and trusts for their benefit
own an aggregate of approximately 40,000 shares of Common Stock of the
Company.
Item 6. Indemnification of Directors and Officers.
--------------------------------------------------
Incorporated herein by reference to the Company's Registration
Statement on Form S-1, File No. 2-85290.
Item 7. Exemption from Registration Claimed.
--------------------------------------------
Not Applicable.
Item 8. Exhibits.
-----------------
(4.1) Restated Certificate of Incorporation (filed as Exhibit 3(a)
to the Company's Registration Statement on Form S-1, File No.
2-85290, and incorporated herein by reference).
(4.2) Restated By-Laws (filed as Exhibit 3(b) to the Company's
Registration Statement on Form S-1, as amended, File No. 2-
85290, and incorporated herein by reference).
II-1
<PAGE>
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. as to the legality of shares being registered.
(10.1) The Company's 1989 Non-Employee Director Stock Option Plan.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of Coopers & Lybrand L.L.P.
(24) Power of Attorney to file future amendments (set forth on
the signature page 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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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.
II-2
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the Company 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 Newton, Commonwealth of
Massachusetts on October 22, 1996.
MICROFLUIDICS INTERNATIONAL
CORPORATION
By /s/ MICHAEL A. LENTO
----------------------------------
Michael A. Lento
President and Treasurer
Each person whose signature appears below constitutes and appoints
Michael A. Lento and Irwin J. Gruverman, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them, for him and in his name, place and stead,
and in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of
Microfluidics International Corporation, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in or
about the premises, as full to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ IRWIN J. GRUVERMAN Chief Executive Officer, October 22, 1996
------------------------- Chairman of the Board of
Irwin J. Gruverman Directors and Secretary
(principal executive officer)
/s/ MICHAEL A. LENTO President and Treasurer October 22, 1996
------------------------- (principal financial officer
Michael A. Lento and principal accounting
officer)
</TABLE>
II-4
<PAGE>
/s/ ROBERT L. BOGOMOLNY Director October 22, 1996
------------------------
Robert L. Bogomolny
/s/ MARSHALL S. STERMAN Director October 22, 1996
-------------------------
Marshall S. Sterman
/s/ MICHAEL K. HOOKER Director October 22, 1996
-------------------------
Michael K. Hooker
/s/ JAMES N. LITTLE Director October 22, 1996
-------------------------
James N. Little
II-5
<PAGE>
MICROFLUIDICS INTERNATIONAL CORPORATION
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page No.
- ------ ----------- ----------
<S> <C> <C>
(4.1) Restated Certificate of Incorporation
(filed as Exhibit 3(a) to the
Company's Registration Statement on
Form S-1, File No. 2-85290 and
incorporated herein by reference).
(4.2) Restated By-Laws (filed as Exhibit
3(b) to the Company's Registration
Statement on Form S-1, as amended,
File No. 2-85290, and incorporated
herein by reference).
(5) Opinion of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C. as to the
legality of shares being registered.
(10.1) The Company's 1989 Non-Employee Director
Stock Option Plan.
(23.1) Consent of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C. (included in
opinion of counsel filed as Exhibit 5).
(23.2) Consent of Coopers & Lybrand L.L.P.
(24) Power of Attorney to file future
amendments (set forth on the signature
page of this Registration Statement).
</TABLE>
II-6
<PAGE>
[LETTERHEAD OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. APPEARS HERE]
October 22, 1996
Microfluidics International Corporation
30 Ossipee Road
Newton, Massachusetts 02164-9101
Ladies and Gentlemen:
We have acted as counsel to Microfluidics International Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of a Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to which the
Company is registering the issuance of a total of two hundred sixty thousand
(260,000) shares (the "Shares") of its common stock, $.01 par value per
share, (the "Common Stock") under the Securities Act of 1933, as amended.
This opinion is being rendered in connection with the filing of the
Registration Statement. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Registration
Statement.
In connection with this opinion, we have examined the Company's
Restated Certificate of Incorporation and Restated By-Laws, both as
currently in effect; such other records of the corporate proceedings of the
Company and certificates of the Company's officers as we have deemed
relevant; and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly and validly authorized by the Company and (ii) the Shares,
when sold, will have been duly and validly issued, fully paid and non-
assessable shares of the Company.
Our opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no opinion with respect to the laws of any other
jurisdiction. No opinion is expressed herein with respect to the
qualification of the Shares under the securities or blue sky laws of any
state or any foreign jurisdiction.
<PAGE>
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Microfluidics International Corporation
October 22, 1996
Page 2
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
<PAGE>
(As Amended June 11, 1996)
MICROFLUIDICS INTERNATIONAL CORPORATION
1989 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. This plan to be known as the 1989 Non-Employee Director
Stock Option Plan (the "1989 Plan") is intended to promote the interests of
Microfluidics International Corporation (the "Company") by providing an
inducement to obtain and retain the services of qualified persons who are
neither employees nor officers of the Company to serve as members of the Board
of Directors and to demonstrate the Company's appreciation for their service
upon the Company's Board of Directors (the "Board").
The 1989 Plan is intended to accomplish these goals by enabling
the Company to grant non-qualified stock options ("Options") to eligible
participants. Recipients of such Options are hereafter referred to individually
as an "Optionee" and collectively as "Optionees".
2. Options to be Granted. Under the 1989 Plan, Options are granted
that give an Optionee the right for a specified time period to purchase a
specified number of shares of common stock, par value $.01 per share, of the
Company (the "Common Stock").
3. Available Shares. The total number of shares of Common Stock for
which Options may be granted shall not exceed five hundred thousand (500,000)
shares, subject to adjustment in accordance with Section 15 hereof. Shares
-------
subject to the 1989 Plan are authorized but unissued shares or shares that were
once issued and subsequently reacquired by the Company. If any Options granted
under this 1989 Plan are surrendered before exercise or lapse without exercise,
in whole or in part, the shares reserved therefor revert to the Option pool and
continue to be available for grant under the 1989 Plan.
4. Administration. The 1989 Plan shall be administered by the Board.
The Board shall, subject to the provisions of the 1989 Plan, have the power to
construe the 1989 Plan, to determine all questions hereunder, and to adopt and
amend such rules and regulations for the administration of the 1989 Plan as it
may deem desirable.
5. Option Agreement. Each Option granted under the provisions of
this 1989 Plan shall be evidenced by an Option Agreement, in such form as may be
approved by the Board, which Agreement shall be duly executed and delivered on
behalf of the Company and by the Optionee to whom such Option is granted. The
Agreement shall contain such terms, provisions, and conditions not inconsistent
with the 1989 Plan as may be determined by the Board.
<PAGE>
6. Eligibility and Limitations. Options may be granted pursuant to
the 1989 Plan only to non-employee members of the Board who are not officers of
the Company (each, a "Non-Employee Director").
7. Automatic Grant of Options. On January 23, 1989, each Non-
Employee Director shall be automatically granted on such date without further
action by the Board an Option to purchase twenty-five thousand (25,000) shares
of the Company's Common Stock. On January 2 (or, if such date shall fall on a
Saturday, Sunday or holiday when banks in Boston, Massachusetts are not open for
business, the first business day thereafter) of each year thereafter each Non-
Employee Director shall be automatically granted on such date without further
action by the Board an Option to purchase seven thousand five hundred (7,500)
shares of the Company's Common Stock. Each Non-Employee Director who is first
appointed to the Board by the Board shall be automatically granted, on the date
of such appointment without further action by the Board an Option to purchase
twenty-five thousand (25,000) shares of the Company's Common Stock, and shall be
automatically granted an Option in each year thereafter in accordance with the
preceding sentence.
8. Validity of the 1989 Plan and Options Granted Hereunder.
Anything in the 1989 Plan to the contrary notwithstanding, the effectiveness of
the 1989 Plan and of the grant of Options hereunder are in all respects subject
to, and the 1989 Plan and all Options granted under it shall be of no force and
effect unless and until, and no Option granted hereunder shall in any way vest
or become exercisable in any respect unless and until the occurrence of both
(i) approval of the 1989 Plan by the affirmative vote of the holders of a
majority of the Company's shares present in person or by proxy and entitled to
vote at a meeting of shareholders at which the 1989 Plan is presented for
approval and (ii) receipt by the Company of the written concurrence of the Staff
of the Securities and Exchange Commission with the opinions as set forth in a
no-action letter, related to Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and such other matters and in
form and substance satisfactory to counsel for the Company. In the event that
such approval as aforesaid has not been received on or before December 19, 1989,
or in the event that such concurrence has not been received on or before
July 31, 1989, then in either such event the 1989 Plan and any Options granted
hereunder shall be null and void, and upon the occurrence of both such approval
and concurrence as aforesaid, the 1989 Plan shall become effective as of the
date of the Board's approval of the 1989 Plan and all such Options granted
thereunder shall become effective as of the date of their grant.
9. Option Price. The purchase price of the stock covered by an
Option granted pursuant to the 1989 Plan shall be one hundred percent (100%) of
the fair market value of such shares on the day the Option is granted. The
Option price will be subject to adjustment in accordance with the provisions of
Section 15 hereof.
- -------
If at the time an Option is granted under the 1989 Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and
-2-
<PAGE>
low prices of the Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is then traded on a
national securities exchange; or (ii) the last reported sale price (on that
date) of the Common Stock on the Nasdaq National Market, if the Common Stock is
not then traded on a national securities exchange; or (iii) the closing bid
price (or average of bid prices) last quoted (on that date) by an established
quotation service for over-the-counter securities, if the Common Stock is not
reported on the Nasdaq National Market. However, if the Common Stock is not
publicly traded at the time an Option is granted under the 1989 Plan, "fair
market value" shall be deemed to be the fair value of the Common Stock as
determined by the Board after taking into consideration all factors which it
deems appropriate, including, without limitation, recent sale and offer prices
of the Common Stock in private transactions negotiated at arm's length.
10. Option Duration. Except as provided in Section 13, Options
-------
granted under the 1989 Plan shall expire on a date which is five (5) years after
the date of grant of such Options. The 1989 Plan shall terminate when all
Options granted hereunder have expired or been exercised, but no earlier than
December 19, 1998.
11. Exercise of Option. Subject to the terms and conditions of the
1989 Plan and the Option Agreement, each Option granted hereunder shall, to the
extent then exercisable, be exercisable in whole or in part by giving written
notice to the Company by mail or in person addressed to Michael A. Lento,
President and Treasurer, Microfluidics International Corporation, 30 Ossipee
Road, Newton, Massachusetts 02164-9101, stating the number of shares with
respect to which the Option is being exercised, accompanied by payment in full
by any lawful method for such shares; provided, however, that there shall be no
-------- -------
such exercise at any one time as to fewer than one hundred (100) shares or all
of the remaining shares then purchasable by the person or persons exercising the
Option, if fewer than one hundred (100) shares. Upon notification from the
Company, the Company's transfer agent shall, on behalf of the Company, prepare a
certificate or certificates representing such shares acquired pursuant to
exercise of the Option, shall register the Optionee as the owner of such shares
on the books of the Company and shall cause the fully executed certificate(s)
representing such shares to be delivered to the Optionee as soon as practicable
after payment in full of the Option price. The holder of an Option shall not
have any rights of a shareholder with respect to the shares covered by the
Option, except to the extent that one or more certificates for such shares shall
be delivered to him upon the due exercise of the Option.
-3-
<PAGE>
12. Vesting and Non-Transferability of Options.
(a) Vesting. Options granted under the 1989 Plan shall vest in
the Optionee and thus become exercisable, in accordance with the following
schedule:
Cumulative number of shares
for which Option is exercisable Date of vesting
- ------------------------------- ---------------
25% of total Option shares six months and one day after the date
of grant of the Option
50% of total Option shares first year anniversary of the date of
grant of the Option
75% of total Option shares second year anniversary of the date of
grant of the Option
100% of total Option shares third year anniversary of the date of
grant of the Option
The number of shares as to which the Option may be exercised shall be
cumulative, so that once the Option shall become exercisable as to any shares it
shall continue to be exercisable as to said shares, until expiration or
termination of the Option as provided in the 1989 Plan. Notwithstanding the
foregoing, an Option shall be exercisable in full upon the occurrence of a
Change of Control, as defined in Section 14, provided that such Change of
-------
Control does not occur within six months of the date of grant of an Option.
(b) Legend on Certificates. The certificates representing shares
issued upon exercise of an Option shall carry such appropriate legend, and such
written instructions shall be given to the Company's transfer agent, as may be
deemed necessary or advisable by counsel to the Company in order to comply with
the requirements of the Securities Act of 1933, as amended (the "1933 Act") or
any state securities laws.
(c) Assignability. No Option granted pursuant to the 1989 Plan
shall be assignable or transferable by the grantee except by will or the laws of
descent and distribution, and during the lifetime of the grantee each Option
shall be exercisable only by him.
13. Termination of Options.
(a) In the event an Optionee ceases to be a member of the Board
for any reason other than death or disability any then unexercised Options
granted to such Optionee shall, to the extent not then exercisable, immediately
terminate and become void, and any portion of an Option which is then
exercisable but has not been exercised at the time the
-4-
<PAGE>
Optionee so ceases to be a member of the Board may be exercised, to the extent
it is then exercisable, by the Optionee within a period of ten (10) days
following such time the Optionee so ceases to be a member of the Board, but in
no event later than the expiration date of the Option.
Notwithstanding the foregoing provisions, any exercisable but
unexercised Options which were granted during the period ending six months
immediately prior to the date on which an Optionee so ceases to be a member of
the Board shall immediately terminate and become void.
(b) In the event that an Optionee ceases to be a member of the
Board by reason of his or her disability any Option granted to such Optionee may
be exercised, to the extent of the number of shares with respect to which an
Optionee could have exercised it on the date of such disability, during the
period ending six months after the date the Optionee so ceases to be a member of
the Board, but in no event later than the expiration date of the Option.
(c) In the event that an Optionee ceases to be a member of the
Board by reason of his or her death, any Option granted to such Optionee may be
exercised by the Optionee's personal representative, heir or legatee to the
extent of the number of shares with respect to which such Optionee could have
exercised the Option on the date of his or her death during the period ending
one year after the date the Optionee so ceases to be a member of the Board,
which one-year period shall prevail regardless of the stated expiration date of
the Option.
14. Change of Control. A "Change in Control" shall be deemed to have
occurred if:
(a) any "person" as such term is used in Section 13(d) and 14(d)
of the 1934 Act (other than (i) the Company, (ii) any subsidiary of the Company,
(iii) any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or of any subsidiary of the Company, or (iv) any
company owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company),
becomes the "beneficial owner" (as defined in Section 13(d) of the 1934 Act),
together with all Affiliates and Associates (as such terms are used in Rule 12b-
2 of the General Rules and Regulations under the 1934 Act) of such person,
directly or indirectly, of securities of the Company representing thirty-five
percent (35%) or more of the combined voting power of the Company's then
outstanding securities; provided, however, that in determining such percentage
-------- -------
of beneficial ownership, any shares beneficially owned by individuals, trusts
and/or other entities who partially or wholly comprise such a "person" and who
were, as of January 1, 1989, in the aggregate, the beneficial owners of twenty
percent (20%) or more of the shares of the Common Stock then outstanding shall
not be counted; or
-5-
<PAGE>
(b) the shareholders of the Company approve a merger or
consolidation of the Company with any other company, other than (1) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any subsidiary of the Company, at least sixty-five percent (65%) of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation or (2) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (with the exception given and the
method of determining "beneficial ownership" used in clause (a) of this
definition) acquires more than fifty percent (50%) of the combined voting power
of the Company's then outstanding securities; or
(c) during any period of two consecutive years (not including any
period prior to the effectiveness of the 1989 Plan), individuals who at the
beginning of such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (a), (b) or (d) of this
definition) whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved cease for any reason to constitute at least a majority thereof; or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
15. Adjustments Upon Changes in Capitalization and Other Matters.
In the event that the outstanding shares of the Common Stock of
the Company are changed into or exchanged for a different number or kind of
shares or other securities of the Company or of another corporation by reason of
any reorganization, merger, consolidation, recapitalization or reclassification,
or in the event of a stock split, combination of shares or dividends payable in
capital stock, automatic adjustment shall be made in the number and kind of
shares as to which outstanding Options or portions thereof then unexercised
shall be exercisable and in the available shares set forth in Section 3 hereof,
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to the end that the proportionate interest of the Option holder shall be
maintained as before the occurrence of such event. Such adjustment in
outstanding Options shall be made without change in the total price applicable
to the unexercised portion of Options and with a corresponding adjustment in the
Option price per share.
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<PAGE>
If an Option hereunder shall be assumed, or a new Option substituted
therefor, as a result of the sale of the Company, whether by a corporate merger,
consolidation or sale of property or stock, where Section 14 does not apply,
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then membership on the Board of Directors of such assuming or substituting
corporation or by a parent corporation or a subsidiary thereof shall be
considered for purposes of an Option to be membership on the Board.
16. Restrictions on Issuance of Shares. Notwithstanding the
provisions of Sections 7 and 11 hereof, the Company shall have no obligation to
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deliver any certificate or certificates upon exercise of an Option until the
following conditions shall be satisfied:
(i) the shares with respect to which the Option has been exercised
are at the time of the issue of such shares effectively registered under
applicable Federal and state securities laws as now in force or hereafter
amended; or
(ii) counsel for the Company shall have given an opinion that such
shares are exempt from registration under Federal and state securities laws as
now in force or hereafter amended;
and the Company has complied with all applicable laws and regulations, including
without limitation all regulations required by any stock exchange upon which the
Company's outstanding Common Stock is then listed.
The Company shall use its best efforts to bring about compliance with
the above conditions within a reasonable time, except that the Company shall be
under no obligation to cause a registration statement or a post-effective
amendment to any registration statement to be prepared at its expense solely for
the purpose of covering the issue of shares in respect of which any Option may
be exercised.
17. Representation of Optionee. If requested by the Company, the
Optionee shall deliver to the Company written warranties and representations
upon exercise of the Option that are necessary to show compliance with Federal
and state securities laws including warranties and representations to the effect
that a purchase of shares under the Option is made for investment and not with a
view to their distribution (as that term is used in the 1933 Act).
18. Termination and Amendment of 1989 Plan. The Board may at any time
terminate the 1989 Plan or make such modification or amendment thereof as it
deems advisable, provided, however, that the Board may not, without approval
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within twelve months thereafter by the affirmative vote of the holders of a
majority of the shares of the Company present in person or by proxy and entitled
to vote at a meeting, modify or amend the 1989 Plan in a manner which would
require shareholder approval pursuant to the provisions of Rule 16b-3 (or any
successor or amended rule) of the Securities and Exchange Commission promulgated
under the 1934 Act provided further that the provisions of this Plan specified
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in Rule 16b-3(c)(2)(ii)(A) may not be amended more than once every six months,
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<PAGE>
other than to comply with changes in the Internal Revenue Code, the Employee
Retirements Income Security Act or the rules thereunder. Termination or any
modification or amendment of the 1989 Plan shall not, without consent of an
Optionee, affect his rights under an Option previously granted to him.
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<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Microfluidics International Corporation on Form S-8 of our report dated February
23, 1996, on our audits of the consolidated financial statements of
Microfluidics International Corporation as of December 31, 1995 and 1994, and
for each of the three years in the period ended December 31, 1995, which report
is included in Microfluidics International Corporation Annual Report on Form
10-K for the year ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
October 21, 1996
