-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DWq9fejE80bKMXqjUmPSuSZA7Aq/XFpdzQcGsDqJVxMV4lLKeol8eb+6qweCLZ9f s3uylC1n+WPfFCsR+Y3CLg== 0000950135-96-004286.txt : 19961008 0000950135-96-004286.hdr.sgml : 19961008 ACCESSION NUMBER: 0000950135-96-004286 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19961007 EFFECTIVENESS DATE: 19961007 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: FERROFLUIDICS CORP CENTRAL INDEX KEY: 0000353286 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPONENTS, NEC [3679] IRS NUMBER: 020275185 STATE OF INCORPORATION: MA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-13587 FILM NUMBER: 96640093 BUSINESS ADDRESS: STREET 1: 40 SIMON STREET CITY: NASHUA STATE: NH ZIP: 03061 BUSINESS PHONE: 6038839800 MAIL ADDRESS: STREET 1: 40 SIMON STREET CITY: NASHUA STATE: NH ZIP: 03061 S-8 1 FERROFLUIDICS CORPORATION FORM S-8 1 As filed with the Securities and Exchange Commission on October 7, 1996 Registration Statement No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- FERROFLUIDICS CORPORATION (Exact name of Registrant as specified in its charter) MASSACHUSETTS 02-0275185 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 40 SIMON STREET NASHUA, NEW HAMPSHIRE 03061 (Address of principal executive offices) FERROFLUIDICS CORPORATION AMENDED AND RESTATED 1995 STOCK OPTION AND INCENTIVE PLAN FERROFLUIDICS CORPORATION AMENDED AND RESTATED 1995 NON-QUALIFIED STOCK OPTION PLAN FERROFLUIDICS CORPORATION AMENDED AND RESTATED 1994 RESTRICTED STOCK PLAN (Full title of the Plan) ------------------------------- PAUL F. AVERY, JR. Chairman of the Board and Treasurer SALVATORE J. VINCIGUERRA President and Chief Executive Officer FERROFLUIDICS CORPORATION 40 Simon Street Nashua, New Hampshire 03061 (Name and address of agent for service) (603) 883-9800 (Telephone number, including area code, of agent for service) ---------------------------- Copy to: STUART M. CABLE, ESQ. GOODWIN, PROCTER & HOAR LLP Exchange Place 53 State Street Boston, Massachusetts 02109 (617) 570-1000 ---------------------------- CALCULATION OF REGISTRATION FEE ==========================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee ========================================================================================================== Common Stock(2) 255,550 $ 9.63 $2,460,947 $ 849 15,000 $11.75 $ 176,250 $ 61 5,000 $11.00 $ 55,000 $ 19 115,000 $13.00 $1,495,000 $ 516 30,000 $ 9.38 $ 281,400 $ 97 71,925 $ 9.75 $ 701,269 $ 242 - ---------------------------------------------------------------------------------------------------------- Common Stock 192,737 $ 8.50(3) $1,638,265 $ 565 - ---------------------------------------------------------------------------------------------------------- Common Stock 357,525 $ 8.50(3) $3,038,963 $1,048 ========================================================================================================== (1) This Registration Statement also relates to such indeterminate number of additional shares of Common Stock of the Registrant as may be issuable as a result of a stock dividend, stock split, split-up, recapitalization or other similar event. (2) The aggregate offering price and fee are computed based on the exercise price of the options to purchase shares of Common Stock of Ferrofluidics Corporation, par value $.004 per share (the "Common Stock"), which have been granted under the Ferrofluidics Corporation 1995 Non-Qualified Stock Option Plan and the Ferrofluidics Corporation 1995 Stock Option and Incentive Plan in accordance with Rule 457(h) under the Securities Act of 1933, as amended (the "Securities Act"). (3) This estimate is based on the average of the high and low sale prices of the Common Stock as reported on the Nasdaq National Market on October 1, 1996, pursuant to Rule 457(c) and (h) under the Securities Act, for purposes of determining the registration fee with respect to the shares of Common Stock which have been granted under the Ferrofluidics Corporation 1994 Restricted Stock Plan and the shares of Common Stock which are to be issued under the Ferrofluidics Corporation 1995 Non-Qualified Stock Option Plan and the Ferrofluidics Corporation 1995 Stock Option and Incentive Plan. ==========================================================================================================
2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. Ferrofluidics Corporation (the "Company") hereby incorporates by reference the documents listed in (a) through (c) below, which have previously been filed with the Securities and Exchange Commission (the "Commission"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996, filed with the Commission (Commission File No. 0-10734) pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since June 30, 1996; and (c) The description of the Company's common stock, par value $.004 per share, contained in the Company's Registration Statement on Form 8-A, as amended, filed with the Commission (Commission File No. 2-72394-B) pursuant to Section 12 of the Exchange Act. In addition, all documents subsequently filed with the Commission by the Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein or in any subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company is a Massachusetts corporation. Reference is made to Chapter 156B, Section 13(b)(1 1/2) of the Massachusetts Business Corporation Law (the "MBCL"), which enables a corporation in its original articles of organization or an amendment thereto to eliminate or limit the personal liability of a director for monetary damages for violations of the director's fiduciary duty, except (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Sections 61 and 62 of the MBCL (providing for liability of directors for authorizing unauthorized distributions and for making loans to directors, officers and certain shareholders) or (iv) for any transaction from which a director derived an improper personal benefit. Reference also is made to Chapter 156B, Section 67 of the MBCL, which provides that a corporation may indemnify directors, officers, employees and other agents and persons who serve at its request as directors, officers, employees or other agents of another organization or who serve at its request in any capacity with respect to any employee benefit plan, to the extent specified or authorized by the articles of organization, a by-law adopted by the stockholders or a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors. Article 6 of the Company's Restated Articles of Organization, as amended, provides that, to the fullest extent permissible under the MBCL, a director of the Company will not be personally liable to the Company or its stockholders for monetary damages arising out of the director's breach of his or her fiduciary duty. In addition, Article IV of the By-laws of the Company provides that the Company shall to the extent legally permissible indemnify each of its directors and officers against all expenses and liabilities which he has reasonably incurred in connection with or arising out of any actual or threatened action, suit or proceeding in which he may be involved by reason of his being or having been a director or officer of the Company, provided 3 no such indemnification shall be made in relation to matters as to which such director or officer shall be finally adjudged in any such action, suit or proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the Company. In the event that a settlement or compromise of such action, suit or proceeding is effected, indemnification may be had but only if the Board of Directors of the Company shall have been furnished with an opinion of counsel for the Company to the effect that such settlement or compromise is in the best interest of the Company and that such director or officer does not appear not to have acted in good faith in the reasonable belief that his action was in the best interests of the Company, and if the Board of Directors of the Company shall have adopted a resolution approving such settlement or compromise. Article IV of the Company's By-laws further provides that the right of indemnification shall not be exclusive of other rights to which any director, officer or other corporate personnel may be entitled to as a matter of law. The Company has purchased directors' and officers' liability insurance, which insures against certain losses arising from claims against directors or officers of the Company by reason of certain acts, including a breach of duty, neglect, error, misstatement, misleading statement, omission or other act done or wrongfully attempted or any of the foregoing so alleged by any claimant or any claim against an officer or director of the Company solely by reason of his being such an officer or director. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Commission has expressed its opinion that such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following is a complete list of exhibits filed or incorporated by reference as part of this Registration Statement. Exhibit ------- 4.1 Ferrofluidics Corporation Amended and Restated 1995 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.24 of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996) 4.2 Ferrofluidics Corporation Amended and Restated 1995 Non-Qualified Stock Option Plan (incorporated by reference to Exhibit 10.25 of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996) 4.3 Ferrofluidics Corporation Amended and Restated 1994 Restricted Stock Plan (incorporated by reference to Exhibit 10.6 of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996) 5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered 23.1 Consent of Counsel (included in Exhibit 5.1 hereto) 23.2 Consent of Ernst & Young LLP, Independent Auditors 23.3 Consent of Coopers & Lybrand L.L.P., Independent Auditors 24.1 Powers of Attorney (included in Part II of this Registration Statement) ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and 2 4 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the undersigned registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Nashua, State of New Hampshire, on this 7th day of October, 1996. FERROFLUIDICS CORPORATION By: ------------------------------------- Salvatore J. Vinciguerra President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and directors of Ferrofluidics Corporation hereby severally constitute Paul F. Avery, Jr. and Salvatore J. Vinciguerra and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement filed herewith and any and all amendments to said Registration Statement (or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and generally to do all such things in our names and in our capacities as officers and directors to enable Ferrofluidics Corporation to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be singed by our said attorneys, or any of them, to said Registration Statement and any all amendments thereto. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
Signature Title Date - --------- ----- ---- President and Chief Executive October 7, 1996 - ------------------------------- Officer (Principal Executive Salvatore J. Vinciguerra Officer) - ------------------------------- Chairman of the Board and October 7, 1996 Paul F. Avery, Jr. Treasurer - ------------------------------- Vice President and Chief October 7, 1996 William B. Ford Financial Officer (Principal Financial Officer) - ------------------------------- Controller (Principal October 7, 1996 Stephen P. Morin Accounting Officer) - ------------------------------- Director October 7, 1996 Stephen B. Hazard - ------------------------------- Director October 7, 1996 Dennis R. Stone - ------------------------------- Director October 7, 1996 Howard F. Nichols - ------------------------------- Director October 7, 1996 Robert P. Rittereiser - ------------------------------- Director October 7, 1996 Dean Kamen
6 EXHIBIT INDEX Exhibit No. Description Page* ----------- ----------- ---- 4.1 Ferrofluidics Corporation Amended and Restated 1995 -- Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.24 of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996) 4.2 Ferrofluidics Corporation Amended and Restated 1995 -- Non-Qualified Stock Option Plan (incorporated by reference to Exhibit 10.25 of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996) 4.3 Ferrofluidics Corporation Amended and Restated 1994 -- Restricted Stock Plan (incorporated by reference to Exhibit 10.6 of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996) 5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered 23.1 Consent of Counsel (included in Exhibit 5.1 hereto) -- 23.2 Consent of Ernst & Young LLP, Independent Auditors 23.3 Consent of Coopers & Lybrand L.L.P., Independent Auditors 24.1 Powers of Attorney (included in Part II of this -- Registration Statement) - ------------------------ * Refers to sequentially numbered copy. EX-5.1 2 OPINION OF GOODWIN, PROCTER & HOAR LLP 1 EXHIBIT 5.1 October 7, 1996 Ferrofluidics Corporation 40 Simon Street Nashua, New Hampshire 03061 Ladies and Gentlemen: This opinion is furnished in connection with the filing of a registration statement on Form S-8 (the "Registration Statement"), pursuant to the Securities Act of 1933, as amended (the "Securities Act"), relating to 1,042,737 shares of common stock, par value $.004 per share (the "Shares"), of Ferrofluidics Corporation, a Massachusetts corporation (the "Company"). In connection with rendering this opinion, we have examined the Restated Articles of Organization, as amended from time to time and the Amended and Restated By-laws of the Company; such records of the corporate proceedings of the Company as we deemed material; the Registration Statement; such certificates, receipts, records and documents of the Company as we considered necessary for the purposes of this opinion; the Ferrofluidics Corporation Amended and Restated 1994 Restricted Stock Plan (the "Restricted Plan"); the Ferrofluidics Corporation Amended and Restated 1995 Non-Qualified Stock Option Plan (the "Non-Qualified Plan"); and the Ferrofluidics Corporation Amended and Restated 1995 Stock Option and Incentive Plan (the "Incentive Plan" and together with the Restricted Plan and the Non-Qualified Plan, the "Plans"). We are attorneys admitted to practice in the Commonwealth of Massachusetts. We express no opinion concerning the laws of any jurisdictions other than the laws of the United States of America, the Commonwealth of Massachusetts and the General Corporation Law of the State of Delaware. Based upon the foregoing, we are of the opinion that when the Shares have been issued and paid for in accordance with the terms of the Plans, the Shares will be legally issued, fully paid and nonassessable shares of common stock, par value $.004 per share, of the Company. The foregoing assumes that all requisite steps will be taken to comply with the requirements of the Securities Act and applicable requirements of state laws regulating the offer and sale of securities. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ GOODWIN, PROCTER & HOAR LLP GOODWIN, PROCTER & HOAR LLP EX-23.2 3 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1995 Stock Option and Incentive Plan, the 1995 Non-Qualified Stock Option Plan and the 1994 Restricted Stock Plan of Ferrofluidics Corporation of our report dated September 3, 1996, with respect to the consolidated financial statements and schedule of Ferrofluidics Corporation for the year ended June 30, 1996, included in its Annual Report (Form 10-K) for the year ended June 30, 1996, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Manchester, New Hampshire October 1, 1996 EX-23.3 4 CONSENT OF COOPERS & LYBRAND, L.L.P. 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference, in the Registration Statement of Ferrofluidics Corporation on Form S-8 pertaining to its 1995 Stock Option and Incentive Plan, 1995 Non-Qualified Stock Option Plan and 1994 Restricted Stock Option Plan, of our report dated August 31, 1995, on our audits of the consolidated financial statements and financial statement schedule of Ferrofluidics Corporation as of June 30, 1995 and for the years ended June 30, 1995 and June 30, 1994, which report is included in the Annual Report of Ferrofluidics Corporation on Form 10-K for the year ended June 30, 1996. /s/ Coopers & Lybrand L.L.P. Boston, Massachusetts October 4, 1996 -----END PRIVACY-ENHANCED MESSAGE-----