<PAGE>
As filed with the Securities and Exchange Commission on March 21, 1997.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PerSeptive Biosystems, Inc.
(Exact name of registrant as specified in its charter)
Delaware 04-2987616
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 Old Connecticut Path, Framingham, MA 01701
(Address of Principal Executive Offices) (Zip Code)
____________________
1997 Non-Qualified Stock Option Plan
(Full title of the plan)
____________________
Noubar B. Afeyan
Chief Executive Officer
PerSeptive Biosystems, Inc.
500 Old Connecticut Path, Framingham, MA 01701
(Name and address of agent for service)
(508) 383-7700
(Telephone number, including area code, of agent for service)
____________________
Copy to:
Samuel P. Hunt III, Esq.
PerSeptive Biosystems, Inc.
500 Old Connecticut Path, Framingham, MA 01701
(508) 383-7700
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price offering registration
be registered registered per share price fee
- ------------------ -------------- ----------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock 200,000 shares 7.125(1) $1,425,000.00 $431.82
(Par Value $.01)
================================================================================
</TABLE>
(1) Such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h), the offering price per share set
forth for such shares is the exercise price per share at which such options are
exercisable.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will be
sent or given to employees, consultants or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
The documents containing the information specified in this Item 2 will be
sent or given to employees or consultants as specified by Rule 428(b)(1). In
accordance with the rules and regulations of the Commission and the instructions
to Form S-8, such documents are not being filed with the Commission either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by the Registrant (File No. 0-20032) with the
Commission are incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended September 30, 1996
filed with the Commission on January 27, 1997;
(b) Quarterly Report on Form 10-Q for the quarter ended December 31, 1996
filed with the Commission on February 12, 1997; and
(c) The description of the Registrant's Common Stock, $.01 par value per
share, contained in the Registration Statement on Form 8-A filed under the
Exchange Act and declared effective on May 29, 1992, including any amendment or
reports filed for the purpose of updating such description.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant is subject to the provisions of Section 203 of the Delaware
General Corporation Law (the "DGCL"). Section 203 prohibits a publicly held
Delaware corporation from engaging in a "business combination" with an
"interested shareholder" for a period of three years after the date of the
transaction in which the person became an interested shareholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested shareholder. Subject to certain exceptions,
an "interested shareholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock.
The Company's Amended and Restated Certificate of Incorporation (the
"Charter") provides for the division of the Board of Directors into three
classes as nearly equal in size as possible with staggered three year terms.
Any director may be removed without cause only by the vote of at least 75% of
the shares entitled to vote for the election of directors. The classification
of the Board of Directors could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from acquiring,
control of the Company.
The Charter contains certain provisions permitted under the DGCL relating
to the liability of directors. The provisions eliminate a director's liability
for monetary damages for a breach of fiduciary duty, except in certain
circumstances involving wrongful acts, such as the breach of a director's duty
of loyalty or acts or omissions which involve intentional misconduct or a
knowing violation of law. The Charter also contains provisions indemnifying its
directors and officers to the fullest extent permitted by the DGCL. The Company
believes that these provisions will assist the Company in attracting and
retaining qualified individuals to serve as directors. The Company has, in
accordance with the terms of the Charter, also entered into contractual
arrangements with each of its directors providing for indemnification of its
directors under certain circumstances.
The Charter and the Company's By-Laws provide that any action required or
permitted to be taken by the shareholders of the Company may be taken only at a
duly called annual or special meeting of the shareholders, and that special
meetings may be called only by the Chairman of the Board of Directors, Chief
Executive Officer or President of the Company. These provisions could have the
effect of delaying until the next annual shareholders' meeting shareholder
actions which are favored by the holders of a majority of the outstanding voting
securities of the Company. These provisions may also discourage another person
or entity from making a tender offer for the Company's Common Stock, because
such person or entity, even if it acquired a majority of the outstanding voting
securities of the Company, would be able to take action as a shareholder (such
as electing new directors or approving a merger) only at a duly called
shareholders' meeting, and not by written consent.
The Company's By-Laws provide that for nominations for the Board of
Directors or for other business to be properly brought by a shareholder before a
meeting of shareholders, the shareholder must first have given timely notice
thereof in writing to the Secretary of the Company. To be timely, a
shareholder's notice generally must be delivered not less than 60 days nor more
than 90 days prior to an annual meeting. With respect to special meetings,
notice must generally be delivered not more than 90 days prior to such meeting
and not later than the later of 60 days prior to such meeting or 10 days
following the day on which public announcement of such meeting is first made by
the Company. The notice must contain, among other things, certain information
about the shareholder delivering the notice and, as applicable, background
information about each nominee or a description of the proposed business to be
brought before the meeting.
<PAGE>
The Charter empowers the Board of Directors, when considering a tender
offer or merger or acquisition proposal, to take into account factors in
addition to potential economic benefits to shareholders. Such factors may
include (i) comparison of the proposed consideration to be received by
shareholders in relation to the then current market price of the Company's
capital stock, the estimated current value of the Company in a freely negotiated
transaction and the estimated future value of the Company as an independent
entity; (ii) the impact of such a transaction on the employees, suppliers and
customers of the Company and its effect on the communities in which the Company
operates; and (iii) the ability of the Company to fulfill its objectives under
applicable statutes and regulations.
The DGCL provides generally that the affirmative vote of a majority of the
shares entitled to vote on any matter is required to amend a corporation's
certificate of incorporation or by-laws, unless a corporation's certificate of
incorporation or by-laws, as the case may be, requires a greater percentage.
The Charter and the Company's By-Laws will require the affirmative vote of the
holders of at least 75% of the outstanding voting stock of the Company to amend
or repeal certain of the foregoing provisions including those relating to the
classification of the Board of Directors, the removal of directors and the
prohibition against shareholder action by written consent. Such 75% shareholder
vote would be in addition to any separate class vote that might in the future be
required pursuant to the terms of any Preferred Stock that might be outstanding
at the time any such amendments are submitted to shareholders.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<C> <S>
*4.1 1997 Non-Qualified Stock Option Plan of the Registrant.
*4.2 Form of Non-Qualified Stock Option Agreement under the
1997 Non-Qualified Stock Option Plan of the Registrant to be
used for Non-Officer employees.
*4.3 Form of Non-Qualified Stock Option Agreement under the 1997
Non-Qualified Stock Option Plan to be used for new officers.
*5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
*23.1 Consent of Coopers & Lybrand L.L.P.
*23.2 Consent of Price Waterhouse LLP.
*23.3 Consent of Testa, Hurwitz & Thibeault, LLP (contained in its
opinion as Exhibit 5.1).
</TABLE>
<PAGE>
*24.1 Power of Attorney (contained in the signature page of this
Registration Statement).
________________________
* Filed herewith.
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, 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.
(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 information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the 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.
<PAGE>
(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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, or
otherwise, the Registrant 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 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 of 1933 and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Framingham and the Commonwealth of Massachusetts, on
this 21st day of March, 1997.
PERSEPTIVE BIOSYSTEMS, INC.
By: /s/ Noubar B. Afeyan
-----------------------
Noubar B. Afeyan
Chief Executive Officer
We, the undersigned officers and directors of PerSeptive Biosystems, Inc.
hereby severally constitute and appoint Noubar B. Afeyan, Thomas G. Ruane and
John F. Smith, 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 on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
said Registration Statement, and generally to do all things in our names and on
our behalf in our capacities as officers and directors to enable PerSeptive
Biosystems, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and all amendments
thereto.
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 date indicated.
Signature Capacity Date
- ----------- -------- ----
/s/ Noubar B. Afeyan Chief Executive March 21, 1997
- --------------------- Officer (Principal Executive
Noubar B. Afeyan Officer), Director and Chairman
of the Board of Directors
/s/ John F. Smith President and Director March 21, 1997
- -----------------
John F. Smith
<PAGE>
/s/ Thomas G. Ruane Senior Vice President and Chief March 21, 1997
- ------------------- Financial Officer
Thomas G. Ruane (Principal Financial and
Accounting Officer)
/s/ Edwin M. Kania, Jr. Director March 21, 1997
- -----------------------
Edwin M. Kania, Jr.
/s/ Daniel I.C. Wang Director March 21, 1997
- --------------------
Daniel I.C. Wang
/s/ William F. Pounds Director March 21, 1997
- ---------------------
William F. Pounds
/s/ Bruce J. Ryan Director March 21, 1997
- -----------------
Bruce J. Ryan
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
------- ----------------------
<C> <S>
*4.1 1997 Non-Qualified Stock Option Plan of the Registrant, as
amended on February 8, 1996.
*4.2 Form of Non-Qualified Stock Option Agreement under the 1997
Non-Qualified Stock Option Plan of the Registrant to be used
for Non-Officer employees.
*4.3 Form on Non-Qualified Stock Option Agreement under the 1997 Non-
Qualified Stock Option Plan to be used for new officers.
*5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
*23.1 Consent of Coopers & Lybrand L.L.P.
*23.2 Consent of Price Waterhouse LLP.
*23.3 Consent of Testa,Hurwitz & Thibeault, LLP (contained
in its opinion as Exhibit 5.1).
*24.1 Power of Attorney (contained in the signature
page of this Registration Statement).
</TABLE>
________________________
* Filed herewith.
<PAGE>
EXHIBIT 4.1
-----------
PERSEPTIVE BIOSYSTEMS, INC.
1997 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
1. PURPOSE. This 1997 Non-Qualified Stock Option Plan (the "Plan") is
-------
intended to provide incentives to employees, consultants and certain new
officers of PerSeptive Biosystems, Inc. (the "Company"), and of any present or
future parent or subsidiaries of the Company (collectively, "Related
Corporations") by providing them with opportunities to purchase stock in the
Company pursuant to options ("Non-Qualified Options" or "Options") granted
hereunder which do not qualify as "incentive stock options" ("ISOs") under
Section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code").
The Plan is not intended to provide Option grants to any person who is an
officer or director of the Company or Related Corporations, unless such grant is
an inducement essential to such person's entering into one or more employment
agreements with the Company as a new employee. As used herein, the terms
"parent" and "subsidiary" mean "parent corporation" and "subsidiary
corporation," respectively, as those terms are defined in Section 424 of the
Code.
2. ADMINISTRATION OF THE PLAN.
---------------------------
A. BOARD OR COMMITTEE ADMINISTRATION. The Plan shall be administered
---------------------------------
by the Board of Directors of the Company (the "Board"), or by a committee
appointed by the Board (the "Committee"). Hereinafter, all references in
this Plan to the "Committee" shall mean the Board if no Committee has been
appointed. Subject to ratification of the grant or authorization of each
Option by the Board (if so required by applicable state law), and subject to
the terms of the Plan, the Committee shall have the authority to (i)
determine to whom, from among the class of individuals and entities eligible
under paragraph 3 to receive Options, Options may be granted; (ii) determine
the time or times at which Options shall be granted; (iii) determine the
option price of shares subject to each Option, which price shall not be less
than the minimum price specified in paragraph 6; (iv) determine (subject to
paragraph 7) the time or times when each Option shall become exercisable and
the duration of the exercise period; (v) determine whether restrictions such
as repurchase options are to be imposed on shares subject to Options and the
nature of such restrictions, if any, and (vi) interpret the Plan and
prescribe and rescind rules and regulations relating to it. The Committee
shall take whatever actions it deems necessary, under Section 422 of the Code
and the regulations promulgated thereunder, to ensure that no Option issued
hereunder is treated as an ISO. The interpretation and construction by the
Committee of any provisions of the Plan or of any Option granted under it
shall be final unless otherwise determined by the Board. The Committee may
from time to time adopt such rules and regulations for carrying out the Plan
as it may deem advisable. No member of the Board or the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option granted under it.
<PAGE>
B. COMMITTEE ACTIONS. The Committee may select one of its members as
-----------------
its chairman, and shall hold meetings at such time and places as it may
determine. A majority of the Committee shall constitute a quorum and acts by
a majority of the members of the Committee, or acts reduced to or approved in
writing by a majority of the members of the Committee (if consistent with
applicable state law), shall constitute the valid acts of the Committee.
From time to time the Board may increase the size of the Committee and
appoint additional members thereof, remove members (with or without cause)
and appoint new members in substitution therefor, fill vacancies however
caused, or remove all members of the Committee and thereafter directly
administer the Plan.
3. ELIGIBLE EMPLOYEES AND OTHERS. Non-Qualified Options may be granted to:
-----------------------------
(a) any employee or consultant of the Company or any Related Corporation who has
not been an officer of the Company prior to the date of such grant; or (b) any
new officer of the Company, if such grant is an inducement essential to the
individuals entering into one or more employment agreements with the Company as
a new employee. No Options may be granted to any other person under the Plan.
The Committee may take into consideration a recipient's individual circumstances
in determining whether to grant an Option. The granting of any Option to any
individual or entity shall neither entitle such grantee to, nor disqualify such
grantee from, participation in any other grant of Options.
4. STOCK. The stock subject to Options shall be authorized but unissued
-----
shares of Common Stock of the Company, par value $ .01 per share (the "Common
Stock"), or shares of Common Stock reacquired by the Company in any manner. The
aggregate number of shares which may be issued pursuant to the Plan is 200,000,
subject to adjustment as provided in paragraph 13. If any Option granted under
the Plan shall expire or terminate for any reason without having been exercised
in full or shall cease for any reason to be exercisable in whole or in part or
shall be repurchased by the Company, the unissued shares of Common Stock subject
to such Option shall again be available for grants of Options under the Plan.
For purposes of the foregoing sentence, shares withheld from the Option exercise
to pay the exercise price and/or tax consequences of the exercise shall be
deemed to have been issued.
5. GRANTING OF OPTIONS. Options may be granted under the Plan at any time
-------------------
on or after March 5, 1997 and prior to March 5, 2007. The date of grant of an
Option under the Plan will be the date specified by the Committee at the time it
grants the Option; provided, however, that such date shall not be prior to the
date on which the Committee acts to approve the grant.
6. MINIMUM OPTION PRICE. The exercise price per share specified in the
--------------------
agreement relating to each Option granted under the Plan (the "Agreement"), may
be less than the fair market value of the Common Stock of the Company on the
date of grant, but shall in no event be less than the minimum legal
consideration required therefor under the laws of Delaware or the laws of any
jurisdiction in which the Company or its successors in interest may be
organized.
7. OPTION DURATION. Subject to earlier termination as provided in
---------------
paragraphs 9 and 10 or as specified in the Agreement relating to such Option,
each Option shall expire on the date specified by the Committee, but not more
than ten years and one day from the date of grant.
-2-
<PAGE>
8. EXERCISE OF OPTION. Subject to the provisions of paragraphs 9 through
------------------
12, each Option granted under the Plan shall be exercisable as follows:
A. VESTING. The Option shall either be fully exercisable on the date
-------
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. FULL VESTING OF INSTALLMENTS. Once an installment becomes
----------------------------
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. PARTIAL EXERCISE. Each Option or installment may be exercised at
----------------
any time or from time to time, in whole or in part, for up to the total
number of shares with respect to which it is then exercisable.
D. ACCELERATION OF VESTING. The Committee shall have the right to
-----------------------
accelerate the date that any installment of any Option becomes exercisable.
9. TERMINATION OF BUSINESS RELATIONSHIP. Each Option may provide that it
------------------------------------
shall terminate before its stated expiration date, upon terms specified by the
Committee, if the optionee ceases to be an employee or consultant of the
Company, of any Related Corporation, or of the Company and all Related
Corporations (any such relationship hereinafter referred to as a "Business
Relationship with the Company"). Nothing in the Plan or any Option granted
hereunder shall be deemed to give any optionee the right to continue his or her
Business Relationship with the Company for any period of time.
10. DEATH; DISABILITY.
-----------------
A. DEATH. Unless otherwise specified by the Committee, if an
-----
optionee's Business Relationship with the Company terminates by reason of
death, his or her Option may be exercised, to the extent of the number of
shares with respect to which such optionee could have exercised it on the
date of such optionee's death, by such optionee's estate, personal
representative or beneficiary who has acquired the Option by will or by the
laws of descent and distribution, at any time prior to the earlier of the
specified expiration date of the Option or 180 days from the date of death.
B. DISABILITY. Unless otherwise specified by the Committee, if an
----------
optionee's Business Relationship with the Company terminates by reason of
such optionee's disability, such optionee shall have the right to exercise
his or her Option, to the extent of the number of shares with respect to
which such optionee could otherwise have exercised it on the date his or her
Business Relationship with the Company terminated, at any time prior to the
earlier of the specified expiration date of the Option or 180 days from the
date of the termination of the optionee's Business Relationship with the
Company. For the purposes of the Plan, the term "disability" shall mean
"permanent and total disability" as defined in Section 22(e)(3) of the Code
or any successor statute.
-3-
<PAGE>
11. ASSIGNABILITY. No Option shall be assignable or transferable by the
-------------
optionee except by will or by the laws of descent and distribution, and during
the lifetime of the optionee each Option shall be exercisable only by the
optionee.
12. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
-------------------------------
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may specify that any Option
shall be subject to the restrictions set forth herein or, consistent with
paragraphs 7, 9 and 10 to such other or additional termination and cancellation
provisions as the Committee may determine. The Committee may from time to time
confer authority and responsibility on one or more of its own members and/or one
or more officers of the Company to execute and deliver such instruments. The
proper officers of the Company are authorized and directed to take any and all
action necessary or advisable from time to time to carry out the terms of such
instruments.
13. ADJUSTMENTS. Upon the occurrence of any of the following events, an
-----------
optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
A. STOCK DIVIDENDS AND STOCK SPLITS. If the shares of Common Stock
--------------------------------
shall be subdivided or combined into a greater or smaller number of shares or
if the Company shall issue any shares of Common Stock as a stock dividend on
its outstanding Common Stock, the number of shares of Common Stock
deliverable upon the exercise of Options shall be appropriately increased or
decreased proportionately, and appropriate adjustments shall be made in the
purchase price per share to reflect such subdivision, combination or stock
dividend.
B. CONSOLIDATIONS OR MERGERS. If the Company is to be consolidated with
-------------------------
or acquired by another entity in a merger or other reorganization in which
the holders of the outstanding voting stock of the Company immediately
preceding the consummation of such event, shall, immediately following such
event, hold, as a group, less than a majority of the voting securities of the
surviving or successor entity, or in the event of a sale of all or
substantially all of the Company's assets or otherwise (each, an
"Acquisition"), the Committee or the board of directors of any entity
assuming the obligations of the Company hereunder (the "Successor Board"),
shall, as to outstanding Options, either (i) make appropriate provision for
the continuation of such Options by substituting on an equitable basis for
the shares then subject to such Options the consideration payable with
respect to the outstanding shares of Common Stock in connection with the
Acquisition; or (ii) upon written notice to the optionees, provide that all
Options must be exercised, to the extent then exercisable or to be
exercisable as a result of the Acquisition, within a specified number of days
of the date of such notice, at the end of which period the Options shall
terminate; or
-4-
<PAGE>
(iii) terminate all Options in exchange for a cash payment equal to the
excess of the fair market value of the shares subject to such Options (to the
extent then exercisable or to be exercisable as a result of the Acquisition)
over the exercise price thereof.
C. RECAPITALIZATION OR REORGANIZATION. In the event of a
----------------------------------
recapitalization or reorganization of the Company (other than a transaction
described in subparagraph B above) pursuant to which securities of the
Company or of another corporation are issued with respect to the outstanding
shares of Common Stock, an optionee upon exercising an Option shall be
entitled to receive for the purchase price paid upon such exercise the
securities such optionee would have received if such optionee had exercised
his or her Option prior to such recapitalization or reorganization.
D. DISSOLUTION OR LIQUIDATION. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at such
other time and subject to such other conditions as shall be determined by the
Committee.
E. ISSUANCES OF SECURITIES. Except as expressly provided herein, no
-----------------------
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
F. FRACTIONAL SHARES. No fractional shares shall be issued under the
-----------------
Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
G. ADJUSTMENTS. Upon the happening of any of the events described in
-----------
subparagraphs A, B or C above, the class and aggregate number of shares set
forth in paragraph 4 hereof that are subject to Options which previously have
been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such subparagraphs.
The Committee or the Successor Board shall determine the specific adjustments
to be made under this paragraph 13 and, subject to paragraph 2, its
determination shall be conclusive.
14. MEANS OF EXERCISING OPTIONS. An Option (or any part or installment
---------------------------
thereof) shall be exercised by giving written notice to the Company at its
principal office address. Such notice shall identify the Option being exercised
and specify the number of shares as to which such Option is being exercised,
accompanied by full payment of the purchase price therefor either (a) in United
States dollars in cash or by check, (b) at the discretion of the Committee,
through delivery or withholding from the Option exercise of shares of Common
Stock having a fair market value equal as of the date of the exercise to the
cash exercise price of the Option, (c) at the discretion of the Committee, by
delivery of the optionee's personal recourse note bearing interest payable not
less than annually at no less than 100% of the lowest applicable Federal rate,
as defined in Section 1274(d) of the Code, (d) at the discretion of the
Committee and consistent with applicable law, through the delivery of an
assignment to the Company of a sufficient
-5-
<PAGE>
amount of the proceeds from the sale of the Common Stock acquired upon exercise
of the Option and an authorization to the broker or selling agent to pay that
amount to the Company, which sale shall be at the participant's direction at the
time of exercise, or (e) at the discretion of the Committee, by any combination
of (a), (b), (c) and (d) above. Notwithstanding the foregoing, no employee may
pay any part of the exercise price hereof by delivering shares of Common Stock
to the Company unless such Common Stock has been owned by such employee free of
any substantial risk of forfeiture for at least six months. The holder of an
Option shall not have the rights of a shareholder with respect to the shares
covered by such Option until the date of issuance of a stock certificate to such
holder for such shares. Except as expressly provided above in paragraph 13 with
respect to changes in capitalization and stock dividends, no adjustment shall be
made for dividends or similar rights for which the record date is before the
date such stock certificate is issued.
15. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board on March
--------------------------
5, 1997. The Plan shall expire at the end of the day on March 5, 2007 (except as
to Options outstanding on that date). The Board may terminate or amend the Plan
in any respect at any time. Except as otherwise provided in this paragraph 15,
in no event may action of the Board alter or impair the rights of an optionee,
without his or her consent, under any Option previously granted to such
optionee.
16. APPLICATION OF FUNDS. The proceeds received by the Company from the sale
--------------------
of shares pursuant to Options granted under the Plan shall be used for general
corporate purposes.
17. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the grant or exercise of an
--------------------------------------
Option or the vesting or transfer of restricted stock or securities acquired
upon the exercise of an Option hereunder, the Company may withhold or require
the optionee to pay additional withholding taxes in respect of amounts that
constitute compensation includible in gross income. The Committee in its
discretion may condition the grant or exercise of an Option or the vesting or
transferability of restricted stock or securities acquired by exercising an
Option, on the optionee's making satisfactory arrangement for such payment of
such additional withholding taxes. Such arrangement may include payment by the
optionee in cash or by check of the amount of the withholding taxes or, at the
discretion of the Committee, by the optionee's delivery of previously held
shares of Common Stock or the withholding from the shares of Common Stock
otherwise deliverable upon exercise of a Option shares having an aggregate fair
market value equal to the amount of such withholding taxes.
18. DETERMINATION OF FAIR MARKET VALUE OF COMMON STOCK. Whenever, under the
--------------------------------------------------
terms of any option agreement or in administering the Plan, it is necessary or
desirable to determine the fair market value of the Company's Common Stock, the
Committee shall make such determination in accordance with this Section. "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
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
-6-
<PAGE>
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 Plan, "fair market value" shall be deemed to be the fair value
of the Common Stock as determined by the Committee 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.
19. GOVERNMENTAL REGULATION. The Company's obligation to sell and deliver
-----------------------
shares of the Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares. Government regulations may impose reporting or other
obligations on the Company with respect to the Plan. For example, the Company
may be required to file tax information returns reporting the income received by
optionees in connection with the Plan.
20. GOVERNING LAW. The validity and construction of the Plan and the
-------------
instruments evidencing Options shall be governed by the laws of the State of
Delaware, or the laws of any jurisdiction in which the Company or its successors
in interest may be organized.
-7-
<PAGE>
EXHIBIT 4.2
PERSEPTIVE BIOSYSTEMS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
PerSeptive Biosystems, Inc., a Delaware corporation (the "Company"),
hereby grants, as of the ___ day of _______, 19__, to __________ (the
"Optionee"), an option to purchase a maximum of _____ shares of its Common
Stock, $.01 par value, at the price of $_____ per share, on the following terms
and conditions:
1. GRANT UNDER 1997 NON-QUALIFIED STOCK OPTION PLAN. This option is
------------------------------------------------
granted pursuant to and is governed by the Company's 1997 Non-Qualified Stock
Option Plan (the "Plan") and, unless the context otherwise requires, terms used
herein shall have the same meaning as in the Plan. Determinations made in
connection with this option pursuant to the Plan shall be governed by the Plan
as it exists on this date.
2. GRANT AS NON-QUALIFIED STOCK OPTION; OTHER OPTIONS. This option
--------------------------------------------------
is intended to be treated for federal income tax purposes as a non-qualified
stock option. This option is in addition to any other options heretofore or
hereafter granted to the Optionee by the Company, but a duplicate original of
this instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the
----------------------------------------------------
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee or consultant (such service is described herein as
maintaining or being involved in a "Business Relationship with the Company") on
the following dates, the Optionee may exercise this option for the number of
shares of Common Stock set opposite the applicable date at any time on or after
such date:
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ___ (___) years from the date this option is
granted. All of the foregoing rights are subject to Articles 4 and 5, as
appropriate, if the Optionee ceases to maintain a Business Relationship with the
Company, dies or becomes disabled while involved in a Business Relationship with
the Company.
<PAGE>
4. TERMINATION OF THE BUSINESS RELATIONSHIP. If the Optionee's
----------------------------------------
Business Relationship with the Company is terminated, other than by reason of
death or disability as defined in Article 5 or for misconduct as defined in
Article 16, no further installments of this option shall become exercisable and
this option shall terminate after the passage of ninety (90) days from the date
the Business Relationship is terminated, but in no event later than the
scheduled expiration date. In such a case, the Optionee's only rights hereunder
shall be those which are properly exercised before the termination of this
option.
5. DEATH; DISABILITY. If the Optionee's Business Relationship is
-----------------
terminated by reason of death, this option may be exercised, to the extent of
the number of shares with respect to which the Optionee could have exercised it
on the date of his death, by his estate, personal representative or beneficiary
to whom this option has been assigned pursuant to Article 10, at any time within
180 days after the date of death, but no later than the scheduled expiration
date. If the Optionee's Business Relationship is terminated by reason of his
disability (as defined in the Plan), this option may be exercised, to the extent
of the number of shares with respect to which the Optionee could have exercised
it on the date of the termination of the Business Relationship, at any time
within 180 days after such termination, but not later than the scheduled
expiration date. At the expiration of such 180-day period or the scheduled
expiration date, whichever is the earlier, this option shall terminate and the
only rights hereunder shall be those as to which the option was properly
exercised before such termination.
6. PARTIAL EXERCISE. Exercise of this option up to the extent above
----------------
stated may be made in part at any time and from time to time within the above
limits, except that this option may not be exercised for a fraction of a share
unless such exercise is with respect to the final installment of stock subject
to this option and a fractional share (or cash in lieu thereof) must be issued
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE. The option price is payable in United States
----------------
dollars and may be paid either:
(a) in cash or by check, or any combination of the foregoing, equal in
amount to the option price; or (b) in the discretion of the Compensation
Committee, in cash, by check, by delivery of shares of the Company's Common
Stock having a fair market value (as determined by the Compensation Committee)
equal as of the date of exercise to the option price, or by any combination of
the foregoing, equal in amount to the option price; or (c) in the discretion of
the Compensation Committee, in cash, by check, by delivery of shares of the
Company's Common Stock having an aggregate fair market value (as determined by
the Compensation Committee) equal as of the date of exercise to the option
price; or (d) by delivery of the Optionee's personal recourse note bearing
interest payable not less than annually at no less than 100% of the lowest
applicable Federal rate, as defined in Section 1274(d) of the Code, or by any
combination of the foregoing, equal in amount to the option price.
Notwithstanding the foregoing, the Optionee may not pay any part of the option
price hereof by delivering shares of the Company's Common
-2-
<PAGE>
Stock to the Company unless such Common Stock has been owned by the Optionee
free of any substantial risk of forfeiture for at least six months.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this option, the
------------------------------------
Optionee agrees that a purchase of shares under this option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with that Act.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of this
---------------------------
Agreement, this option may be exercised by written notice to the Company, at the
principal executive office of the Company, or to such transfer agent as the
Company shall designate. Such notice shall state the election to exercise this
option and the number of shares in respect of which it is being exercised and
shall be signed by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which this option shall have been so exercised
shall be registered in the name of the person or persons so exercising this
option (or, if this option shall be exercised by the Optionee and if the
Optionee shall so request in the notice exercising this option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this option. In the event this option
shall be exercised, pursuant to Article 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this option. All shares that shall
be purchased upon the exercise of this option as provided herein shall be fully
paid and non-assessable.
10. OPTION NOT TRANSFERABLE. This option is not transferable or assignable
-----------------------
except by will or by the laws of descent an distribution. During the Optionee's
lifetime only the Optionee can exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
--------------------------------
option imposes no obligation on the Optionee to exercise it.
12. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. The Company and any
-----------------------------------------------
Related Corporation (as defined in the Plan) are not by the Plan or this option
obligated to continue to maintain a Business Relationship with the Optionee.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
---------------------------------------
rights as a stockholder with respect to shares subject to this Agreement until a
stock certificate therefor has been issued to the Optionee and is fully paid
for. Except as is expressly provided in the Plan with respect to certain
changes in the capitalization of the Company, no adjustment shall be made
-3-
<PAGE>
for dividends or similar rights for which the record date is prior to the date
such stock certificate is issued.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains provisions
----------------------------------------
covering the treatment of options in a number of contingencies such as stock
splits and mergers. Provisions in the Plan for adjustment with respect to stock
subject to options and the related provisions with respect to successors to the
business of the Company are hereby made applicable hereunder and are
incorporated herein by reference. In general, you should not assume that
options necessarily would survive the acquisition of the Company. In
particular, without affecting the generality of the foregoing, it is understood
that for the purposes of Articles 3 through 5 hereof, both inclusive,
maintenance of a Business Relationship by the Company includes maintenance of a
Business Relationship by a Related Corporation as defined in the Plan.
15. WITHHOLDING TAXES. If the Company or any Related Corporation in its
-----------------
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, the vesting or transfer of the shares acquired
on the exercise of this option, or the making of a distribution or other payment
with respect to the shares, the Optionee hereby agrees that the Company or any
Related Corporation may withhold from the Optionee's remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
16. NO EXERCISE OF OPTION IF BUSINESS RELATIONSHIP TERMINATED FOR MISCONDUCT.
------------------------------------------------------------------------
If the Business Relationship of the Optionee is terminated for "Misconduct",
this option shall terminate on the date of such termination of the Business
Relationship and shall thereupon not be exercisable to any extent whatsoever.
"Misconduct" is conduct, as determined by the Board of Directors, involving one
or more of the following: (i) the substantial and continuing failure of the
Optionee to render services to the Company in accordance with the terms or
requirements of the Business Relationship; (ii) a determination by two-thirds of
the members of the Board of Directors that the Optionee has inadequately
performed the requirements of its Business Relationship; (iii) disloyalty, gross
negligence, dishonesty or breach of fiduciary duty to the Company; (iv) the
commission of an act of embezzlement, fraud, disloyalty, dishonesty or
deliberate disregard of the rules or policies of the Company which results in
loss, damage or injury to the Company, whether directly or indirectly; (v) the
unauthorized disclosure of any trade secret or confidential information of the
Company; or (vi) the commission of an act which constitutes unfair competition
with the Company or which induces any customer of the Company to break a
contract with the Company. In making such determination, the Board of Directors
shall act fairly and in utmost good faith and shall give the Optionee an
opportunity to appear and to be heard at a hearing before the Board of Directors
or any Committee and present evidence on his or her behalf. For the purposes of
this Article 16, termination of the Business Relationship
-4-
<PAGE>
shall be deemed to occur when the Optionee receives notice that its business
relationship is terminated.
17. ACCELERATION AND VESTING OF OPTION FOR BUSINESS COMBINATIONS. If the
------------------------------------------------------------
Company is to be consolidated with or acquired by another entity in a merger,
sale of all or substantially all of the Company's assets or otherwise (an
"Acquisition"), then this option shall, immediately prior to the consummation of
such Acquisition, become fully vested and immediately exercisable by the
Optionee.
18. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement the
--------------------------------------
Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Company's 1997 Non-Qualified Stock Option Plan.
19. GOVERNING LAW. This Agreement shall be governed by and interpreted in
-------------
accordance with the internal laws of the State of Delaware.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-5-
<PAGE>
IN WITNESS WHEREOF the Company and the Optionee have caused this instrument
to be executed, and the Optionee whose signature appears below acknowledges
receipt of a copy of the Plan and acceptance of an original copy of this
Agreement.
OPTIONEE PERSEPTIVE BIOSYSTEMS, INC.
- ------------------------------ By:
Signature of Optionee ------------------------------
Title:
- ------------------------------ ---------------------------
Print Name of Optionee
-6-
<PAGE>
EXHIBIT 4.3
PERSEPTIVE BIOSYSTEMS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT FOR NEW OFFICERS
-----------------------------------------------------
PerSeptive Biosystems, Inc., a Delaware corporation (the "Company"),
hereby grants, as of the 5th day of March, 1997, to Don Schoeny (the
"Optionee"), an option to purchase a maximum of 200,000 shares of its Common
Stock, $.01 par value, at the price of $7.125 per share, on the following terms
and conditions:
1. GRANT UNDER 1997 NON-QUALIFIED STOCK OPTION PLAN. This option is
------------------------------------------------
granted pursuant to and is governed by the Company's 1997 Non-Qualified Stock
Option Plan (the "Plan") and, unless the context otherwise requires, terms used
herein shall have the same meaning as in the Plan. This option is being granted
to the Optionee as an inducement essential to the Optionee's entering into an
employment agreement with the Company as a new employee. Determinations made in
connection with this option pursuant to the Plan shall be governed by the Plan
as it exists on this date.
2. GRANT AS NON-QUALIFIED STOCK OPTION; OTHER OPTIONS. This option
--------------------------------------------------
is intended to be treated for federal income tax purposes as a non-qualified
stock option. This option is in addition to any other options heretofore or
hereafter granted to the Optionee by the Company, but a duplicate original of
this instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the
----------------------------------------------------
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee or consultant (such service is described herein as
maintaining or being involved in a "Business Relationship with the Company") on
the following dates, the Optionee may exercise this option for the number of
shares of Common Stock set opposite the applicable date at any time on or after
such date:
Prior to March 5, 1998 0 shares
On or after March 5, 1998 50,000 shares
but prior to June 5, 1998
On June 5, 1998 and at the An additional 12,500 shares
end of each three (3) month (6.25% per quarter)
period thereafter
<PAGE>
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ten (10) years from the date this option is granted.
All of the foregoing rights are subject to Articles 4 and 5, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company, dies
or becomes disabled while involved in a Business Relationship with the Company.
4. TERMINATION OF THE BUSINESS RELATIONSHIP. If the Optionee's
----------------------------------------
Business Relationship with the Company is terminated, other than by reason of
death or disability as defined in Article 5 or for misconduct as defined in
Article 16, no further installments of this option shall become exercisable and
this option shall terminate after the passage of ninety (90) days from the date
the Business Relationship is terminated, but in no event later than the
scheduled expiration date. In such a case, the Optionee's only rights hereunder
shall be those which are properly exercised before the termination of this
option.
5. DEATH; DISABILITY. If the Optionee's Business Relationship is
-----------------
terminated by reason of death, this option may be exercised, to the extent of
the number of shares with respect to which the Optionee could have exercised it
on the date of his death, by his estate, personal representative or beneficiary
to whom this option has been assigned pursuant to Article 10, at any time within
180 days after the date of death, but no later than the scheduled expiration
date. If the Optionee's Business Relationship is terminated by reason of his
disability (as defined in the Plan), this option may be exercised, to the extent
of the number of shares with respect to which the Optionee could have exercised
it on the date of the termination of the Business Relationship, at any time
within 180 days after such termination, but not later than the scheduled
expiration date. At the expiration of such 180-day period or the scheduled
expiration date, whichever is the earlier, this option shall terminate and the
only rights hereunder shall be those as to which the option was properly
exercised before such termination.
6. PARTIAL EXERCISE. Exercise of this option up to the extent above
----------------
stated may be made in part at any time and from time to time within the above
limits, except that this option may not be exercised for a fraction of a share
unless such exercise is with respect to the final installment of stock subject
to this option and a fractional share (or cash in lieu thereof) must be issued
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE. The option price is payable in United States
----------------
dollars and may be paid either:
(a) in cash or by check, or any combination of the foregoing, equal in
amount to the option price; or (b) in the discretion of the Compensation
Committee, in cash, by check, by delivery of shares of the Company's Common
Stock having a fair market value (as determined by the Compensation Committee)
equal as of the date of exercise to the option price, or by any combination of
the foregoing, equal in amount to the option price; or (c) in the discretion of
the
-2-
<PAGE>
Compensation Committee, in cash, by check, by delivery of shares of the
Company's Common Stock having an aggregate fair market value (as determined by
the Compensation Committee) equal as of the date of exercise to the option
price; or (d) by delivery of the Optionee's personal recourse note bearing
interest payable not less than annually at no less than 100% of the lowest
applicable Federal rate, as defined in Section 1274(d) of the Code, or by any
combination of the foregoing, equal in amount to the option price.
Notwithstanding the foregoing, the Optionee may not pay any part of the option
price hereof by delivering shares of the Company's Common Stock to the Company
unless such Common Stock has been owned by the Optionee free of any substantial
risk of forfeiture for at least six months.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this option, the
------------------------------------
Optionee agrees that a purchase of shares under this option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with that Act.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of this
---------------------------
Agreement, this option may be exercised by written notice to the Company, at the
principal executive office of the Company, or to such transfer agent as the
Company shall designate. Such notice shall state the election to exercise this
option and the number of shares in respect of which it is being exercised and
shall be signed by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which this option shall have been so exercised
shall be registered in the name of the person or persons so exercising this
option (or, if this option shall be exercised by the Optionee and if the
Optionee shall so request in the notice exercising this option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this option. In the event this option
shall be exercised, pursuant to Article 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this option. All shares that shall
be purchased upon the exercise of this option as provided herein shall be fully
paid and non-assessable.
10. OPTION NOT TRANSFERABLE. This option is not transferable or assignable
-----------------------
except by will or by the laws of descent an distribution. During the Optionee's
lifetime only the Optionee can exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
--------------------------------
option imposes no obligation on the Optionee to exercise it.
-3-
<PAGE>
12. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. The Company and any
-----------------------------------------------
Related Corporation (as defined in the Plan) are not by the Plan or this option
obligated to continue to maintain a Business Relationship with the Optionee.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
---------------------------------------
rights as a stockholder with respect to shares subject to this Agreement until a
stock certificate therefor has been issued to the Optionee and is fully paid
for. Except as is expressly provided in the Plan with respect to certain
changes in the capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to the date such
stock certificate is issued.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains provisions
----------------------------------------
covering the treatment of options in a number of contingencies such as stock
splits and mergers. Provisions in the Plan for adjustment with respect to stock
subject to options and the related provisions with respect to successors to the
business of the Company are hereby made applicable hereunder and are
incorporated herein by reference. In general, you should not assume that
options necessarily would survive the acquisition of the Company. In
particular, without affecting the generality of the foregoing, it is understood
that for the purposes of Articles 3 through 5 hereof, both inclusive,
maintenance of a Business Relationship by the Company includes maintenance of a
Business Relationship by a Related Corporation as defined in the Plan.
15. WITHHOLDING TAXES. If the Company or any Related Corporation in its
-----------------
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, the vesting or transfer of the shares acquired
on the exercise of this option, or the making of a distribution or other payment
with respect to the shares, the Optionee hereby agrees that the Company or any
Related Corporation may withhold from the Optionee's remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
16. NO EXERCISE OF OPTION IF BUSINESS RELATIONSHIP TERMINATED FOR MISCONDUCT.
------------------------------------------------------------------------
If the Business Relationship of the Optionee is terminated for "Misconduct",
this option shall terminate on the date of such termination of the Business
Relationship and shall thereupon not be exercisable to any extent whatsoever.
"Misconduct" is conduct, as determined by the Board of Directors, involving one
or more of the following: (i) the substantial and continuing failure of the
Optionee to render services to the Company in accordance with the terms or
requirements of the Business Relationship; (ii) a determination by two-thirds of
the members of the Board of Directors that the Optionee has inadequately
performed the requirements of its Business Relationship; (iii) disloyalty, gross
negligence, dishonesty or breach of fiduciary duty to the Company; (iv) the
commission of an act of embezzlement, fraud, disloyalty, dishonesty or
deliberate disregard of the rules or policies of the Company which results in
loss, damage or
-4-
<PAGE>
injury to the Company, whether directly or indirectly; (v) the unauthorized
disclosure of any trade secret or confidential information of the Company; or
(vi) the commission of an act which constitutes unfair competition with the
Company or which induces any customer of the Company to break a contract with
the Company. In making such determination, the Board of Directors shall act
fairly and in utmost good faith and shall give the Optionee an opportunity to
appear and to be heard at a hearing before the Board of Directors or any
Committee and present evidence on his or her behalf. For the purposes of this
Article 16, termination of the Business Relationship shall be deemed to occur
when the Optionee receives notice that its business relationship is terminated.
17. ACCELERATION AND VESTING OF OPTION FOR BUSINESS COMBINATIONS. If the
------------------------------------------------------------
Company is to be consolidated with or acquired by another entity in a merger,
sale of all or substantially all of the Company's assets or otherwise (an
"Acquisition"), then this option shall, immediately prior to the consummation of
such Acquisition, become fully vested and immediately exercisable by the
Optionee.
18. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement the
--------------------------------------
Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Company's 1997 Non-Qualified Stock Option Plan.
19. GOVERNING LAW. This Agreement shall be governed by and interpreted in
-------------
accordance with the internal laws of the State of Delaware.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-5-
<PAGE>
IN WITNESS WHEREOF the Company and the Optionee have caused this instrument
to be executed, and the Optionee whose signature appears below acknowledges
receipt of a copy of the Plan and acceptance of an original copy of this
Agreement.
OPTIONEE PERSEPTIVE BIOSYSTEMS, INC.
- ------------------------------ By:
Signature of Optionee ------------------------------
- ------------------------------ Title:
Print Name of Optionee ---------------------------
-6-
<PAGE>
EXHIBIT 5.1
March 21, 1997
PerSeptive Biosystems, Inc.
500 Old Connecticut Path
Framingham, MA 01701
Re: Registration Statement on Form S-8
Relating to the 1997 Non-Qualified Stock Option
Plan of PerSeptive Biosystems, Inc.,
as amended (hereinafter the "Plan")
Ladies and Gentlemen:
Reference is made to the above-captioned Registration Statement on Form S-8
(the "Registration Statement") filed by PerSeptive Biosystems, Inc. (the
"Company") on March 21, 1997 with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to an aggregate of 200,000
shares of Common Stock, $.01 par value per share, of the Company issuable
pursuant to the Plan (the "Shares").
We have examined such documents, certificates, records and matters of law
that we have deemed necessary or appropriate for the purpose of this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and sold in accordance with the Plan, will be
validly issued, fully paid and nonassessable.
We hereby consent to filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
EXHIBIT 23.1
------------
Consent of Independent Accountants
To the Directors and Stockholders of PerSeptive Biosystems, Inc.:
We consent to the incorporation by reference in the Registration Statement
of PerSeptive Biosystems, Inc. on Form S-8, related to the Company's 1997 Non-
Qualified Stock Option Plan, of our reports dated November 20,1996, on our
audits of the consolidated financial statements and financial statement schedule
of PerSeptive Biosystems, Inc. as of September 30, 1996 and 1995, and for the
two years ended September 30, 1996 and 1995.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
March 21, 1997
<PAGE>
EXHIBIT 23.2
------------
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 28, 1994, except for Note 13,
as to which the date is August 11, 1995, appearing on page F-3 of PerSeptive
Biosystem's Annual Report on Form 10-K for the year ended September 30, 1996. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page S-2 of such Annual Report on
Form 10-K.
PRICE WATERHOUSE LLP
Boston, Massachusetts
March 21, 1997
