mfamend.htm


     

    
Exhibit
10.1

     

    AMENDED AND RESTATED
EMPLOYMENT AGREEMENT

     

    This
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “Agreement”) is made and
entered into as of December 4, 2009 by and between Microfluidics International
Corporation, a Delaware corporation (the “Company”), and Michael C. Ferrara (“Executive”).

     

    WHEREAS, the Company and
Executive entered into an employment agreement dated November 14, 2007 (the
“Prior Agreement”);
and

     

    WHEREAS, the Company and
Executive desire to amend and restate the terms and conditions of the Prior
Agreement effective January 1, 2010 (the “Effective Date”) as set forth
in the Agreement.

     

    In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that effective as of Effective
Date, the Prior Agreement is hereby amended and restated and superseded and
replaced in its entirety as follows:

     

    1.            
Employment.  The Company shall
continue to employ Executive, and Executive shall continue his employment with
the Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the Effective Date and ending as provided in Section 4
below.  Executive warrants that he is not subject to any agreement or
obligation that would prohibit or restrict his performance under this Employment
Agreement.  Executive shall also serve, at the request of the Company,
as the Chief Executive Officer or in a similar position with the Company’s
subsidiaries.

     

    2.            
Position and
Duties.

     

    (a)          
During the Employment Period (as defined in Section 4(a)), Executive shall serve
as the Chief Executive Officer of the Company, reporting to the Company’s Board
of Directors (the “Board”).  Executive
shall have the duties and responsibilities of such position as well as such
other duties and responsibilities as the Board may from time to time reasonably
direct.  Subject to election in accordance with the Company’s bylaws,
Executive shall also serve a director of the Company.

     

    (b)          
Executive’s principal place of employment will be the Company’s principal
corporate office, currently located at 30 Ossipee Road in Newton,
Massachusetts.  Executive shall travel as necessary for the proper
performance of his duties and responsibilities.  The expense of such
business travel shall be borne by the Company in accordance with Section 3(f)
below.

     

    (c)          
The Company and Executive acknowledge and agree that this employment will
require the full time and energies of Executive.  Notwithstanding the
foregoing, nothing in this Agreement shall preclude Executive from: 
(i) serving on the governing bodies of the companies listed on Exhibit A or other
companies for which he has obtained the prior written approval of the Board,
(ii) engaging in charitable and public service activities, or
(iii) managing Executive’s personal investments, provided that such
activities under clauses (i) and (ii) are disclosed in writing to the Board
in a notice that references this provision and the activities under
clauses (i), (ii) and (iii) do not interfere with Executive’s availability
or ability to perform Executive’s duties or responsibilities
hereunder.

     

    3.            
Compensation: Salary;
Bonuses; Stock Options and Other Benefits.

     

    (a)          
The Company shall pay Executive a base salary of $240,000 per year (the “Base Salary”), payable in
substantially equal installments in accordance with the Company’s customary
payroll practices.  The Base Salary shall be subject to annual review by
the Board.  The Board, in its sole discretion, may increase
Executive’s Base Salary; however, the Board may not decrease Executive’s Base
Salary from its then current level without the prior written consent of
Executive.

     

    (b)          
In addition to the Base Salary provided herein, the Executive shall be entitled
to participate in, and may receive performance bonus payments under, an annual
bonus plan or plans that the Compensation Committee of the Board may establish
from time to time for senior executive officers of the Company, based on
achieving Company and individual annual performance criteria for each calendar
year as specified by the Compensation Committee of the Board. Executive’s
potential performance bonus under any such annual performance bonus plan for
achieving 100% of the mutually agreed upon “KRAs” and/or other targets for that
year shall be no less than fifty (50) percent of Executive’s annual Base
Salary.  Determination of the percentage achievement of Executive’s
“KRAs” and/or other targets is at the sole discretion of the Compensation
Committee.  The performance bonus earned in any calendar year shall be
paid within (30) days after release of the Company’s audited financial
statements for such year.   Except as set forth below in Section
4(e), the payment of any performance bonus shall be conditioned upon Executive
remaining in the Company’s employ through the date on which the performance
bonus is paid.

     

    (c)          
In the event that during the Employment Period (defined below), the Company
grants Executive any options to purchase shares of the Company’s common stock,
any stock awards or any other equity like compensation (“Equity Awards”) under any of
the Company’s equity incentive plans, the Company shall provide, to the extent
permissible under applicable law and the applicable equity incentive plan, that
the Equity Award vesting shall fully accelerate on a Change of Control (as
defined below) and for a post termination exercise period of twenty four (24)
months (or, if shorter, the final expiration date for exercise of the Equity
Award), provided that termination is not due to death, disability or cause, each
as defined in the applicable Equity Award agreement.

     

    (d)          
Except as otherwise expressly provided herein, Executive shall be eligible to
participate in the Company’s employee benefits as they may exist from time to
time, including its health insurance, life insurance, 401k and stock purchase
plans (the “Employee
Benefits”).  
During the Employment Period, Executive’s participation in the Company’s
employee benefit plans shall be subject to the terms, conditions and eligibility
requirements of each plan, provided that the Company may alter, modify, add to,
replace or delete any or all of its employee benefit plans at any time as the
Company in its sole discretion deems appropriate.

     

    (e)           
Executive shall be eligible to earn and use four (4) weeks of paid vacation per
calendar year, accruing at the rate of 1.67 days per month.  The use,
accrual and carry over of vacation time shall be governed by the Company’s
vacation policies in effect from time to time.

     

    (f)          
The Company shall reimburse Executive for all reasonable expenses he incurs in
the course of performing his duties under this Agreement, to the extent
consistent with the policies established by the Company from time to time with
respect to travel and other business expenses and subject to the Company’s
requirements with respect to reporting and documentation of such
expenses.

     

    4.            
Term.

     

    (a)          
This Agreement shall be effective as of January 1, 2010 and shall continue
hereafter in full force and effect until December 31, 2011 (the “Initial Employment Period”)
until and unless terminated in accordance with Section 4(b).  After
the Initial Employment Period, this Agreement shall continue in effect for
successive one year periods (each an “Extension Period”), until and
unless terminated in accordance with Section 4(b) or amended by mutual agreement
of the parties.  The Initial Employment Period, together with any
Extension Period, is hereinafter referred to as the “Employment
Period.

     

    (b)           Executive’s
employment hereunder shall terminate:

     

    (i)           upon
Executive’s death or upon the expiration of a continuous period of ninety (90)
days during which Executive is unable to perform his assigned duties due to
physical or mental incapacity (“Permanent
Disability”;

     

    (ii)           by
Company for Cause (as defined in Section 4(g)), immediately upon written notice
to the Executive;

     

    (iii)           by
Company, without Cause, at any time during or at the end of the Employment
Period upon at least thirty (30) days prior written notice to Executive;
or

     

    (iv)           by
Executive (A) without Good Reason (as defined in Section 4(h) at any time during
or at the end of the Employment Period upon at least 30 days prior written
notice to Company; (B) with Good Reason in accordance with the notice provisions
set forth in Section 4(h), and (C) within thirty (30) days of a Change of
Control.

     

    (c)          
In the event the Employment Period is terminated either by Executive for other
than a Good Reason (as defined below) or a Change of Control or by the Company
for Cause (as defined below) or as a result of Executive’s death or Permanent
Disability, then the Company shall have no further obligation to Executive
hereunder other than as set forth in subsection (d) below.

     

    (d)          
In the event of a termination of the Employment Period for any reason, and in
addition to any other payments that may be required pursuant to this Agreement,
the Company will pay Executive or his designated beneficiary, or if no
beneficiary has been designated in writing, to his estate:  (i) any Base
Salary earned but not paid during the final payroll period of his employment
through the date of termination, (ii) pay for any vacation time accrued but not
used through the date of termination, (iii) reimbursement for any unreimbursed
expenses that have been properly incurred or that the Company has become
obligated to pay prior to termination and (iv) in the event of a termination due
to death,  two (2) months of Executive’s Base Salary (as of the
effective date of such termination due to death) payable in monthly
installments.

    


    (e)          
If the Employment Period is terminated by the Company without Cause, by
Executive for Good Reason or upon a Change of Control or by the Company for any
reason within one year of a Change of Control (as defined below), Executive
shall be entitled to receive as severance:  (i) twelve (12) months of his
Base Salary (as of the effective date of any such termination) payable in
monthly installments, (ii) twelve (12) monthly payments of the amount that the
Company would have contributed in continuation of Executive’s medical coverage
if Executive had remained as an employee of the Company, and (iii) if the
termination is effective prior to the end of a calendar year, Executive shall be
entitled to a pro-rated portion of the bonus that would otherwise have been paid
to Executive under this Agreement if Executive had remained employed until
year-end; such pro-rated portion to be calculated by multiplying the amount
determined pursuant to Section 3(b) of this Agreement, as the case may be, by
the fraction obtained by dividing the day of the year upon which the termination
became effective by 365.  The payment of the foregoing severance shall be
contingent in all respects on Executive having theretofore executed (and not
thereafter revoked) the general release of claims in the form attached hereto as
Exhibit B.

     

    (f)           
Except as otherwise set forth above, all of Executive’s rights to employee
benefits or payments from or in respect of the Company after the termination of
the Employment Period shall cease upon such termination.

     

    (g)          
For purposes of this Agreement, “Cause” shall mean:  (i)
the willful failure or refusal by Executive to perform his duties hereunder
(other than any such failure resulting from Executive’s incapacity due to
physical or mental illness); (ii) Executive’s willful material breach of this
Agreement or any material policy of the Company or its subsidiaries applicable
to him that has been disclosed to him; (iii) Executive’s willful engaging in
misconduct, or conduct deemed by the Board to be grossly negligent, with respect
to the performance of his duties that is materially injurious to the Company,
its subsidiaries, employees or customers, monetarily or otherwise, or (iv) any
violation by Executive of Section 5 or 6 hereof; (v) Executive’s conviction of,
or plea of guilty or nolo
contendere, with respect to any felony or any crime involving theft,
dishonesty or fraud, or commission of an act of moral turpitude which results or
is reasonably likely to result in material harm to the Company, its business or
reputation; or (vi) alcohol or substance abuse by Executive; provided that, in
the case of subsections (i), (ii) and (iii) any such failure, breach or
misconduct which, if capable of cure, has not been cured within thirty (30) days
after written notice of such breach is delivered to Executive by the
Board.

     

    (h)          
For purposes of this Agreement, “Good Reason” shall mean the
occurrence of any of the following events:  (i) any material breach of this
Agreement by the Company (or any successor or assignee of the Company), unless
such breach is cured within thirty (30) days after receiving written notice of
the breach from Executive; or (ii) relocate its executive offices more than 50
miles from its current location; provided however that (A) such Good Reason is
not remedied or cured by the Company within thirty (30) days after the Company
receives notice from the Executive of the occurrence of a Good Reason; (B) such
notice of the occurrence of a Good Reason is sent by the Executive no later than
thirty (30) days after the occurrence of such Good Reason; and (C) the Executive
terminates his employment with the Company within ninety (90) days of the
occurrence of such Good Reason.  The foregoing definitions of Good
Reason shall not be applicable, however, if the event constituting Good Reason
occurs:  (i) with Executive’s express prior written consent, or (ii) in
connection with termination of Executive’s employment for Cause or due to his
death or Permanent Disability.

    


    (i)           
For purposes of this Agreement, “Change in Control” of the
Company shall be deemed to have occurred if, during the Employment Period: 
(i) any person (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than a
trustee or other fiduciary holding securities of the Company under an employee
benefit plan of the Company, becomes the beneficial owner (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of securities
of the Company representing more than fifty (50) percent of total voting power
represented by the Company’s then outstanding voting securities; provided
however, that with respect to Global Strategic Partners, LLC, a Delaware limited
liability company, and its Affiliates (as defined in the Exchange Act), such
number shall be sixty (60) percent on a fully diluted basis, as shall be
determined without regard to the provisions of paragraph (d) of Rule 13d-3
promulgated under the Exchange Act; (ii) the consummation of a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or (iii) the sale or
disposition by the Company of all or substantially all of the Company’s assets
or any transaction having a similar effect.

     

    (j)           
In the event of any dispute regarding the existence of Executive’s Permanent
Disability hereunder, the matter will be resolved by a physician qualified to
practice medicine in the Boston metropolitan area who is on the staff of a
university hospital and has no prior relationship with Executive, which
physician shall be jointly selected by each of Executive (or his nominee) and
the Board of Directors of the Company.  For this purpose, Executive will
submit to all appropriate medical examinations.

     

    (k)           Notwithstanding
anything to the contrary set forth in this Section 4, in the event that the
Executive is determined to be a “key employee” as defined by
Section 416(i) of the Internal Revenue Code of 1986, as amended (the “Code”) (without regard to
paragraph 5), to the extent necessary to comply with Section 409A of the Code
and the Treasury Regulations thereunder, any payments or distributions due the
Executive under this Agreement as a result of or following any separation from
service shall not be made before the date which is 6 months after the date of
separation from service (or if earlier, the date of death of the
Executive).  All payments that would have been made to the Executive
during such six (6) month period shall be made in a lump sum on the date six (6)
months and two days after the Executive’s date of separation from service and
all remaining payments (if any) shall commence on the next regular payroll date
in the seventh (7th) month following the Executive’s date of separation from
Service.  Notwithstanding anything to the contrary contained in this
Agreement, Executive’s termination of employment shall occur only upon his
“separation from service” within the meaning of Treasury Regulations Section
1.409A-1(h).  For all purposes of Section 409A of the Code and the
related Treasury Regulations, the Executive’s entitlement to severance pay
pursuant to this Agreement shall be treated as an entitlement to a series of
separate payments.  All payments and benefits provided under this
Agreement are intended to either comply with or be exempt from Section 409A of
the Code and the terms hereof shall be administered and construed accordingly,
provided that nothing in this Agreement shall constitute an agreement not to
withhold any sums required under Section 409A or to assume any liability for
withholdings necessary under Section 409A.

     

    5.            
Confidential
Information. 
Executive acknowledges that the information, observations and data
obtained by him while employed by the Company concerning the business or affairs
of the Company (“Confidential Information”) are the property of the
Company.  Therefore, Executive agrees that he shall not disclose to any
unauthorized person or use for his own account any Confidential Information
without the prior written consent of a majority of the Board of the Company,
unless and to the extent required by law, rule or regulation or pursuant to any
administrative or court order.  The term “Confidential Information” shall
not include:  (i) information which is generally available to the public or
those in the Company’s industry as of the date of execution of this Agreement or
which later becomes generally available to the public or those in the Company’s
industry other than as a result of Executive’s prohibited disclosure; (ii)
information which comes to Executive from a bona fide third party source so long
as such source was not, to Executive’s knowledge, prohibited from providing such
information to Executive by any contractual, legal, fiduciary or other
obligation; and (iii) information which was known to Executive before such
information was obtained from the Company.  The foregoing provision shall
not be deemed to supersede or limit any other agreement between Executive and
the Company relating to confidential information of the Company, but shall be
deemed to be in addition to the provisions thereof.  To the extent there
arises any irreconcilable conflict between this Agreement and any such other
agreement, the provisions of the other agreement shall control.

      

    6.            
Non-Compete;
Non-Solicitation.

     

    (a)          
Executive acknowledges that in the course of his employment with the Company he
will become familiar with the Company’s trade secrets and with other
Confidential Information concerning the Company and that his services will be of
special, unique and extraordinary value to the Company.  Therefore,
Executive agrees that:  (i) during the Employment Period and for a period
of twelve (12) months thereafter (the “Noncompete Period”), he shall
not, directly or indirectly:  (i) engage in any Competitive Business (as
defined below); (ii) render any services to any Competitive Business; or (iii)
acquire a financial interest in any Competitive Business.  For purposes of
this Agreement, the phrase “engage in” shall include any direct or indirect
ownership or profit participation interest in such enterprise, whether as an
owner, stockholder, member, partner, joint venturer of or otherwise, and shall
include any direct or indirect participation in such enterprise as an employee,
consultant, director, officer, licensor of technology or otherwise.  “Competitive Business” means a
business that is engaged, itself or through an affiliate, in the production,
sale, provision or distribution of products or services, or research or
development intended to create products or services, competitive with the
Company’s:

     

    (i)           
high-shear processing equipment used to: (A) produce sub-micron and nanoscale
liquid and solid particles in emulsions and dispersions for the biotech,
pharmaceutical, chemical/coatings, personal care/cosmetics and food industries,
and (B) perform cell disruption (lysis), or (C) create liposomal encapsulation
of a variety of products;

     

    (ii)          
chemical reactor equipment for: (A) the continuous production of nanoscale
products through chemical reaction, or (B) crystallization processes to produce
drug and other nanosuspensions for the pharmaceutical and biotechnology
industries; or

     

    (iii)         
future products, equipment or services developed;

     

    as such
products, equipment or services exist or are contemplated during Executive’s
employment hereunder.

     

    Without
limiting the generality of the foregoing, and solely for purposes of providing
examples, certain of the companies that the parties agree would constitute
Competitive Businesses are listed in Exhibit C attached
hereto.  Nothing herein shall prohibit Executive from being a passive owner
of not more than three percent (3%) of the outstanding stock of any class of an
entity which is publicly traded, so long as Executive has no active
participation in any aspect of the business of such entity.

     

    (b)          
During the Noncompete Period, Executive shall not directly or indirectly through
another entity:  (i) induce or attempt to induce any employee of the
Company to leave the employ of the Company, or in any way interfere with the
relationship between the Company, on the one hand, and any employee thereof, on
the other hand; (ii) hire any person who is or at any time was an employee of
the Company earlier than six (6) months after such individual’s employment
relationship with the Company has ended; or (iii) induce or attempt to induce
any customer, supplier, licensee or other business relation of the Company to
cease doing business with the Company, or in any way interfere with the
relationship between any such customer, supplier, licensee or business relation,
on the one hand, and the Company, on the other hand.  Clauses (i) and (iii)
of the preceding sentence shall not apply to any general advertising or
solicitation.

    


    (c)          
If, at the time of enforcement of this Section a court shall hold that the
duration, scope or area restrictions stated herein are unreasonable under
circumstances then existing, the parties agree that the maximum duration, scope
or area reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law.

     

    (d)          
In the event of the breach or a threatened breach by Executive of any of the
provisions of this Section, the Company, in addition and supplementary to other
rights and remedies existing in its favor, may apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce or prevent any violations of the provisions
thereof (without posting a bond or other security).

     

    7.            
Executive
and Company Representations.  Executive hereby
represents and warrants to the Company that:  (i) the execution, delivery
and performance of this Agreement by Executive does not and will not conflict
with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which
he is bound, and (ii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms.  The Company hereby represents
and warrants to Executive that:  (i) the execution, delivery and
performance of this Agreement by the Company does not and will not conflict
with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Company is a party or by
which it is bound and (ii) upon the execution and delivery of this Agreement by
Executive, this Agreement shall be the valid and binding obligation of the
Company, enforceable in accordance with its terms.

     

    8.            
Ownership
of Intellectual Property.  Executive hereby
assigns, and agrees to take any further actions both during and after the
Employment Period as the Company may deem necessary or appropriate to cause all
right, title and interest in, any and all intellectual property developed by (or
with the assistance of) Executive during the Employment Period.  Without
limiting the generality of the foregoing, it is specifically agreed
that:

     

    (a)          
if Executive contributes to any patentable invention arising out of or in the
course of Executive’s employment hereunder, any such patentable invention shall
be the exclusive property of the Company, which shall have the exclusive right
to file patent applications for the benefit of the Company.  Executive
hereby agrees to irrevocably assign to the Company any rights Executive may have
as an inventor in respect of such invention and to co-operate with the Company
and provide all necessary assistance in the filing and prosecution of such
patent applications;

     

    (b)          
all copyrights and similar rights in all works created by Executive in the
course of his employment hereunder shall be the exclusive property of the
Company from the inception of the creation thereof; and

     

    (c)          
Executive has previously executed the Company’s Invention Assignment and
Proprietary Information Agreement in the form of Exhibit D to this
Agreement.  To the extent there arises any irreconcilable conflict between
this Agreement and any such other agreement, the provisions of this Agreement
shall control.

     

    Executive
hereby waives all moral rights, rights of paternity, or any other rights
implicit to the creation of any and all such intellectual property.

     

    9.            
Survival.  Sections 4, 5, 6 and 8
through 17 shall survive and continue in full force in accordance with their
terms notwithstanding any termination of the Employment Period.

     

    10.         
Notices.  All notices, requests,
demands and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to be delivered and receive
five business days after having been deposited in the United States mail and
enclosed in a registered or certified post-paid envelope; one business day after
having been sent by reputable overnight courier; when personally delivered or
sent by facsimile communications equipment of the sending party on a business
day, or if not on a business day on the next succeeding business day thereafter;
and in each case addressed to the respective party at the address set forth
below or to such other changed addresses as the party may have fixed by notice
as provided herein:

     

    Notices to
Executive:

     

    Michael
C. Ferrara

    2
Clarendon Street, #410

    Boston,
MA  02116

     

    Notices to the
Company:

     

    Microfluidics
International Corporation

    30
Ossipee Road

    Newton,
MA 02464

    Attention: 
Chairman of the Board of Directors

     

    With a
copy to:

    


    Posternak
Blankstein & Lund LLP

    The
Prudential Tower, 33rd
Floor

    800
Boylston Street

    Boston,
MA 02199

    Attention: 
Donald H. Siegel, P.C.

     

    11.         
Severability.  Whenever possible,
each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained
herein.

    


    12.         
Complete
Agreement.   Effective
as of January 1, 2010, this Agreement amends and restates in its entirety the
Prior Employment Agreement. This Agreement, those
documents expressly referred to herein and other documents of even date herewith
embody the complete agreement and understanding among the parties and supersede
and preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.

     

    13.         
Counterparts.  This Agreement may be
executed in separate counterparts, including via facsimile, each of which is
deemed to be an original and all of which taken together constitute one and the
same agreement.

     

    14.         
Successors
and Assigns. 
This Agreement is intended to bind and inure to the benefit of and be
enforceable by Executive, the Company and their respective heirs, successors and
assigns, except that Executive may not assign his rights or delegate his
obligations hereunder without the prior written consent of the
Company.   The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) of all or
substantially all of the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place.

     

    15.         
Dispute
Resolution; Attorneys’ Fees and Costs.  The Company and
Executive agree that, except for those disputes for which equitable remedies are
appropriate, all disputes arising in connection with the subject matter of this
Agreement shall be submitted solely and exclusively to final and binding
arbitration pursuant to the prevailing National Rules for the Resolution of
Commercial Disputes of the American Arbitration Association (“AAA”), to be
decided by a single, neutral arbitrator appointed in accordance with the AAA’s
rules.  Such arbitration shall proceed in Boston, Massachusetts, and the
Demand for Arbitration shall only be filed with the AAA after the initiating
party provides the other party(s) with at least thirty (30) days’ advance notice
of the contemplated demand.  Judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction.  The
initiating party shall advance the arbitration filing fee, and all other AAA
administrative fees shall be shared equally by the parties to such a dispute,
subject to apportionment by the arbitrator in the award.  Each party shall
be solely responsible for its own costs and attorneys’ fees, subject to
apportionment by the arbitrator in the award.  If any action seeking
equitable remedies is instituted by either party, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs and disbursements in addition to
any other relief to which that party may be entitled.

      

    16.         
Choice of
Law.  This
Agreement will be governed by the internal law, and not the laws of conflicts
that would give effect to the laws of another jurisdiction, of the Commonwealth
of Massachusetts.

     

    17.         
Amendment
and Waiver.   The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Executive, and no course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect the
validity, binding effect or enforceability of this Agreement.

     

    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.

     

    
      	 
      	
              Microfluidics
      International Corporation

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      George Uveges

            
	 
      	 
      	
              Director

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              Michael
      C. Ferrara

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              /s/
      Michael C. Ferrara

            


    

    


     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
               

            


    

     

    Exhibit
A

     

     

    LIST
OF COMPANIES FOR WHICH EXECUTIVE CURRENTLY SERVES

     

    ON
THE GOVERNING BODY

     

     

     

     

    Board of
Advisors, Villanova School of Engineering

    


     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
               

            


    

    
      	
               
      

            	
              Exhibit
      B

            


    

     

     

    FORM
OF RELEASE AGREEMENT

     

                   
1.             Release. 
Michael C. Ferrara (“Executive”), on his
own behalf, on behalf of any entities he controls and on behalf of his
descendants, dependents, heirs, executors, administrators, assigns and
successors, and each of them, hereby acknowledges full and complete satisfaction
of and releases and discharges and covenants not to sue Microfluidics
International Corporation (the “Company”), its
divisions, subsidiaries, parents, majority unit holders or affiliated companies,
past and present, and each of them, as well as its and their assignees and
successors (individually and collectively, “Company Releasees”),
from and with respect to any and all claims, agreements, obligations, demands
and causes of action, known or unknown, suspected or unsuspected, arising out of
or in any way connected with Executive’s employment, the termination thereof, or
any other relationship with or interest in the Company, including without
limiting the generality of the foregoing, any claim for severance pay, profit
sharing, bonus or similar benefit, pension, retirement, life insurance, health
or medical insurance or any other fringe benefit, or disability, or any other
claims, agreements, obligations, demands and causes of action, known or unknown,
suspected or unsuspected, resulting from or arising out of any act or omission
by or on the part of Company Releasees committed or omitted prior to the date of
this Agreement, including, without limiting the generality of the foregoing, any
claim under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Family and Medical Leave Act, The Massachusetts Fair
Employment Practices Act, M.G.L 151B or any other federal, state or local law,
regulation or ordinance; provided, however, that the
foregoing release does not apply to Executive’s right to enforce any obligation
of the Company to Executive pursuant to Section 4 of the Amended and Restated
Employment Agreement dated as of December    , 2009 by and
between the Company and Executive (the “Employment Agreement”) or any
outstanding Equity Award (as defined in the Employment Agreement) that remains
exercisable in accordance with its terms or to file a charge of discrimination
with the U.S. Equal Opportunity Commission (“EEOC”) or with any state or local
anti-discrimination agency or to participate in an investigation conducted by
the EEOC or any such agency.  Executive has agreed to waive his right to
any damages or other recovery resulting from any administrative, arbitration, or
court proceeding, including any action brought by the EEOC or any other state or
local agency on his behalf or on behalf of a class of which he may be considered
a member, with respect to Executive’s employment with and/or termination of
employment from the Company and if Executive is awarded any money damages,
Executive hereby assigns to the Company Executive’s right and interest to such
money damages.  Notwithstanding the foregoing, this paragraph does not
limit Executive’s right to challenge the validity of the Release Agreement in a
legal proceeding under the Older Workers’ Benefit Protection Act, 29 U.S.C. §
626(f) with respect to claims under the Age Discrimination in Employment
Act.  This paragraph also is not intended to and shall not limit the
right of a court to determine, in its discretion, that the Company is entitled
to restitution, recoupment, or setoff of any payments made to Executive and/or
Executive’s counsel by the Company should the Release Agreement be found to be
invalid as to the release of claims under the Age Discrimination in Employment
Act.

     

    2.           [Deemed
included if California law ever becomes applicable] Waiver of Civil Code
Section 1542.  This Agreement is intended to be effective as a
general release of and bar to each and every claim, agreement, obligation,
demand and cause of action hereinabove specified (collectively, the “Claims”). 
Accordingly, Executive hereby expressly waives any rights and benefits conferred
by Section 1542 of the California Civil Code as to the Claims.  Section
1542 of the California Civil Code provides:

     

    “A
GENERAL RELEASE DOES NOT EXTEND TO A CLAIM WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”

     

    Executive
acknowledges that he later may discover claims, demands, causes of action or
facts in addition to or different from those which Executive now knows or
believes to exist with respect to the subject matter of this Agreement and
which, if known or suspected at the time of executing this Agreement, may have
materially affected its terms.  Nevertheless, Executive hereby waives, as
to the Claims, any claims, demands, and causes of action that might arise as a
result of such different or additional claims, demands, causes of action or
facts.

     

    3.           Additional Release by
Executive.  In addition to the release set forth in Section 1 above
and subject to the actions excluded from that Section 1, Executive, on his own
behalf and behalf of his descendants, dependents, heirs, executors,
administrators, assigns and successors, and each of them, hereby acknowledges
full and complete satisfaction of and releases and discharges and covenants not
to sue any director, officer, shareholder, partner, representative, attorney,
agent or employee, past or present, of any Company Releasee (individually and
collectively, “Individual
Releasees”), from and with respect to any and all claims, agreements,
obligations, demands and causes of action (collectively, “Known Claims”),
arising out of or in any way connected with Executive’s employment or any other
relationship with or interest in the Company.  Executive represents and
agrees that he has no knowledge of any facts or circumstances that may
reasonably constitute or lead to any such Known Claim.

     

    4.           ADEA Waiver. 
Executive expressly acknowledges and agrees that by entering into this
Agreement, he is waiving any and all rights or claims that he may have arising
under the Age Discrimination in Employment Act of 1967, as amended, which have
arisen on or before the date of execution of this Agreement.  Executive
further expressly acknowledges and agrees that:

     

    
      	
              a.  

            	
              In
      return for this Agreement, he will receive consideration beyond that which
      he was already entitled to receive before entering into this
      Agreement;

            


    

    
      	
              b.  

            	
              He
      is hereby advised in writing by this Agreement to consult with an attorney
      before signing this Agreement;

            


    

    
      	
              c.  

            	
              He
      was given a copy of this Agreement on
      [                  ,
      20     ] and informed that he had twenty-one (21)
      days within which to consider the Agreement;
and

            


    

    
      	
              d.  

            	
              He
      was informed that he has seven (7) days following the date of execution of
      the Agreement in which to revoke the
Agreement.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    5. No Transferred
Claims.  Each party hereto represents and warrants to the other that
he or it, as applicable, has not heretofore assigned or transferred to any
person not a party to this Agreement any released matter or any part or portion
thereof.

     

    The
undersigned has read and understand the consequences of this Agreement and
voluntarily signs it.  The undersigned declares under penalty of perjury
under the laws of the Commonwealth of Massachusetts that the foregoing is true
and correct.

     

    EXECUTED
this
                       
day of
                             
20    .

     

     

    
      	 
      	
              “Executive”

            
	 
      	 
      
	 
      	 
      
	 
      	
              Michael
      C. Ferrara

            


    

    



    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
               
      

            	
              Exhibit
      C

            


    

     

     

    EXAMPLES
OF COMPANIES THAT ARE CURRENTLY CONSIDERED “COMPETITIVE BUSINESSES”

     

    
      	
              COMPANY

            	 
      	
              TRADE
      NAME(S)

            	 
      	
              TYPE
      / EQUIPMENT

            	 
      	
              ADDRESS

            
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              INVENSYS
      plc (formerly APV Group plc acquired 1997)

            	 
      	
              500
      Research Dr., Wilmington, MA 01887

            
	
              APV
      Gaulin

            	 
      	
              Manton
      Gaulin

            	 
      	
              homogenizer

            	 
      	 
      
	
              APV
      Crepaco

            	 
      	 
      	 
      	 
      	 
      	 
      
	
              APV
      Rannie

            	 
      	 
      	 
      	
              homogenizer

            	 
      	 
      
	
              APV
      Union Homogenizer

            	 
      	 
      	 
      	
              homogenizer

            	 
      	 
      
	
              APV
      Chemical Machinery, Inc.

               (formerly
      Baker Perkins)

            	 
      	 
      	 
      	 
      	 
      	 
      
	
              Applied
      Science Karasawa Lab & Co

            	 
      	
              Ultimaizer
      —See Ultimaizer below

            	 
      	
              high
      pressure fluid jet shear/cavitation

            	 
      	
              3-27,
      Minami-Nakano,Ohmiyashi, Saitama 33O JAPAN

            
	
              Avestin,
      Inc.

            	 
      	
              EmulsiFlex
      C5,

              C50,
      C55, C160,

              EmulsiFlex-C1000
      production, LiposoFast

            	 
      	
              cell
      disruptors, homogenizers/emulsifiers

            	 
      	
              76
      Frank St, Ottawa, Ontario, K2P OX2 CANADA

            
	
              Bayer
      AG

            	 
      	
              High
      Pressure Homogenizer

            	 
      	
              Liposomal
      encapsulator for pharmaceuticals

            	 
      	
              Germany

            
	
              BEEI (Best Emulsifying
      Equipment International)

            	 
      	
              Nano
      DeBEE,

              Micro
      DeBEE,

              Mini
      DeBEE,

              DeBEE
      2000 Pilot, DeBEE 2000P

              Production
      Homogenizers

            	 
      	
              high
      pressure fluid jet shear/cavitation

            	 
      	
              Ramat
      Gavriel, Migdal Haemek, 10550 ISRAEL

            
	
              Branson
      Ultrasonics

            	 
      	 
      	 
      	
              homogenizers/emulsifiers,
      cell disruptors

            	 
      	
              Eagle
      Road, Danbury, CT 06813

            
	
              Bran
      & Luebbe GmbH (SPX)

            	 
      	
              Meganizer,
      Pentax

            	 
      	
              high-pressure
      homogenizer, Multi-Frequency Fluid Mixers

            	 
      	
              Werkstrasse
      4 D22844

              Norderstedt,
      Germany

            
	
              Braun
      Instrument

            	 
      	
              Braunsonic

            	 
      	
              ultrasonic
      homogenizer/cell disruptor

            	 
      	
              875
      Stanton Road, Burlingame CA 94010

            
	
              Brinkman
      Instruments

            	 
      	
              Kinematica
      Polytron

            	 
      	
              homogenizer
      emulsifier, disperser and mixer

            	 
      	
              One
      Cantiague Rd, Westbury, NY 11590

            
	
              Chemineer,
      Inc.

            	 
      	
              Greerco

            	 
      	
              portable
      impeller mixers, homogenizers,colloid mills

            	 
      	
              P.O.
      BOX 1123, Dayton, OH 45401

            
	
              Constant
      Systems Ltd.

            	 
      	
              Cell
      Disruptor

            	 
      	
              high
      pressure jet impingement

            	 
      	
              Unit
      11, Low March,Daventry Northamptonshire

              NN11
      4SD, U.K. - Tel: 44 1327 314146

            
	
              EKATO
      SYSTEMS GmbH

            	 
      	
              NANOmix

            	 
      	
              high
      pressure pump homogenizer

            	 
      	
              Käppelemattweg
      2, 79650 Schopfheim, Germany

            


    

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


     

    
      	
              FES
      International, Inc.

            	 
      	
              HP-50,
      HP-300, HP-700, HP-1400

            	 
      	
              high
      pressure pump homogenizer

            	 
      	
              2120
      Auto Centre Drive, Glendora, CA 91740

            
	
              Fisher

            	 
      	
              Touch
      Mixer

            	 
      	 
      	 
      	 
      
	
              Five
      Star Technologies

            	 
      	
              Caviflo,
      Cavimax & Cavipro

            	 
      	
              mid-to-ultra
      high shear mixers/homogenizers

            	 
      	
              21200
      Aerospace Pkwy, Cleveland, OH 44142

            
	
              Glen
      Creston

            	 
      	
              Dyno
      Mill, Ecm, Emulsiflex

            	 
      	
              jet
      bead mill (fluidized), high pressure homogenizer

            	 
      	
              16
      Dalston Gardens; Stanmore, Middlesex, HA7 1BU, UK

            
	
              Glen
      Mills, Inc.

            	 
      	
              Dyno-Mill,
      Polytron, Megatron, Sonicator French Press, Micromincer,Tissue
      Tearor

            	 
      	
              bead
      & hammer mills, rotor stator homogenizers, ultrasonic
      dispersing/homogenizing

            	 
      	
              395
      Allwood Road, Clifton, NJ 07012

            
	
              Ilshin
      Autoclave ISA

            	 
      	
              NanoDisperser

            	 
      	
              High
      pressure disperser, emulsifier, liposomal encapsulator & cell
      disruptor

            	 
      	
              1688-15
      Shinii-Dong, Daeduck-Gu, Taejon, Korea 306-230

            
	
              Kinematica
      AG

            	 
      	
              Polytron
      & Megatron

            	 
      	 
      	 
      	
              Lucerne,
      Switzerland

            
	
              Koruma
      (ROMACO)

            	 
      	
              Disho
      Inline

            	 
      	
              homogenizer,
      rotor stator mixer

            	 
      	
              Germany

            
	
              Krupp
      AG

            	 
      	
              Krupp
      Industrie Technik

            	 
      	
              colloid
      mill

            	 
      	
              Germany

            
	
              Misonix,
      Inc.

            	 
      	
              MICROSON

            	 
      	
              ultrasonic
      cell disruptor

            	 
      	
              1938
      New Highway, Farmingdale, NY 11735

            
	
              Nanomizaa,
      KK

            	 
      	
              NANOMIZER

            	 
      	
              Hi-pressure,
      homogenizer, emulsifier, disperser

            	 
      	
              (Sayama
      Trading Co.) JAPAN

            
	
              Niro-Soavi
      S.P.A. (owner GEA Group

              Group
      Aktiengesellschaft) www.geagroup.com/en/

            	 
      	
              Panda,
      Pony, Panther, Soavi High Pressure Homogenizer

            	 
      	
              Low
      and high pressure homogenizers

            	 
      	
              1600
      County Rd. Ft., Hudson, WI 54106

              GEA
      - Bochum, Germany

            
	
              NanoJet
      - Haskel International

            	 
      	
              LAB
      8H & LAB 30P, LAB 15H & LAB 30H

            	 
      	
              homogenizer
      (M* knockoff)

            	 
      	
              Dortmund,
      Germany

            
	
              Omni
      International

            	 
      	 
      	 
      	
              homogenizers
      & emulsifiers

            	 
      	
              6530
      Commerce Ct, Warrenton, VA 20187

            
	
              Parr
      Instruments Co.

            	 
      	 
      	 
      	
              decompression
      bomb-cell disruptor

            	 
      	
              211
      53rd Street, Moline, IL 61265-9984

            
	
              SLM/Aminco

            	 
      	 
      	 
      	
              french
      press / cell disruptor

            	 
      	 
      
	
              Sonic
      Corp.

            	 
      	
              SONOLATOR

            	 
      	
              ultrasonic
      cell disruptor

            	 
      	
              One
      Research Dr., Stratford, CT 06497

            
	
              Sonics
      & Materials Inc.

            	 
      	
              VIBRA
      CELL

            	 
      	
              ultrasonic
      cell disruptor

            	 
      	
              Kenosha
      Ave, Danbury, CT

            
	
              Stansted
      Fluid Power Ltd.

            	 
      	
              nm-GEN,
      AO, TC,

            	 
      	 
      	 
      	
              70
      Bentfield Rd., Stansted, Essex, U.K.

            
	
              Ultimaizer — Sugino
      Machine Ltd (Itochu Sanki Corporation) (formerly Karasawa
      Labs)

            	 
      	
              ULTIMAIZER

            	 
      	
              hi-pressure,
      homogenizer, emulsifier, disperser

            	 
      	
              JAPAN
      & 1380 Hamilton Pkwy Itasca,IL 60143
U.S.A

            


    

    



    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


     

    
      	
               
      

            	
              Exhibit
      D

            


    

     

     

    FORM
OF INVENTION ASSIGNMENT AND PROPRIETARY

     

    INFORMATION
AGREEMENT

     

     

     

    [
See Attached ]

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


     

    INVENTION
ASSIGNMENT AND PROPRIETARY

    INFORMATION
AGREEMENT

     

    In
consideration of employment by Microfluidics International Corporation and/or
its subsidiary, Microfluidics Corporation (collectively the “Company”), and the
compensation received therefore, I agree that:

     

    1.            
I hereby assign to the Company my rights and all interests in inventions,
improvements and discoveries, original works of authorship, formulas, processes,
computer programs, and trade secrets (the “Inventions”) made, conceived or first
reduced to practice or created by me, either alone or jointly with others,
during my period of employment by the Company, whether or not in the ordinary
course of my employment. This applies to inventions and discoveries which relate
to the current business of the Company, or business which the Company may
reasonably be expected to enter.

     

    2.            
I will promptly disclose in confidence the Inventions to the appropriate Company
designee and will assist the Company in any reasonable manner to protect and
implement these for its benefit.  On request, I will participate in the
patent process or other activities to carry out the purpose of this Agreement,
without further consideration, but at the expense of the Company. If such
actions are required after termination of my employment I will be entitled to a
fair and reasonable per diem fee plus expense reimbursement, if incurred at the
request of the Company.

     

    3.            
I agree that all Inventions that: (a) are developed using equipment, supplies,
facilities or trade secrets of the Company, or (b) result from work performed
for the Company, or (c) related to the Company’s business or anticipated
research and development, will be the sole and exclusive property of and are
hereby assigned to the Company.

     

    4.            
Without prior written consent of the Company, I will not, during my employment
by the Company, engage in any employment or activity for others, in any business
in which the Company is or may reasonably be expected to be active.

     

    5.            
During my employment by the Company, or thereafter at any time, I will not
disclose to others or use for my benefit trade secrets or confidential
information of the Company (as defined below) and that of its clients or other
business relationships, except as necessary in the ordinary course of performing
my duties with co-workers or as otherwise permitted by the Company’s Board of
Directors in writing.  For the purposes of this Agreement the Company’s
confidential information shall be deemed to include but not be limited to: 
(i) trade secrets, know-how, designs, technical information, techniques,
processes, functioning, diagrams, schematics, timing, measurements, tolerances,
quantification of physical forces exerted, materials and methods of construction
relating to or embodied within the Microfluidizer device and, in particular,
within its interaction chambers and auxiliary processing modules, (ii) the
identity of the Company’s customers, suppliers and vendors, non-public financial
information including  price lists, budgets, financial plans and
projections (the “Confidential Information”).

     

    6.            
I will not use or disclose in the course of my employment for the Company any
trade secrets or Confidential Information belonging to others.

     

    7.            
Upon termination or resignation, I shall turn over to the Company all written
and visual materials, and computer data storage diskettes and/or other storage
media pertaining to my work and other pertinent Confidential Information or
other equipment, parts, or information of the Company.

     

    8.            
I agree that in the event of my breach of this Agreement the Company’s available
damages and remedies at law would be inadequate and, accordingly, the Company
shall have the right to obtain temporary and/or permanent injunctive relief or
its equivalent under domestic or foreign law against me to prevent the
unauthorized use or disclosure of any Confidential Information as well as all
other remedies that may be available to the Company.  I further agree that
all legal and equitable rights, remedies and damages available to the Company
shall be considered cumulative and the use or choice of a particular remedy,
damage or relief shall not preclude the Company’s further exercise of other
rights, remedies and damages.

     

    9.            
This Agreement shall be governed by and construed under the laws of the
Commonwealth of Massachusetts without regard to its internal conflicts of laws
provisions.  I hereby consent to the jurisdiction of the courts of the
Commonwealth of Massachusetts or such other jurisdiction as the Company may find
more convenient or effective for the prosecution of any action
hereunder.

     

    10.          
This Agreement represents the entire agreement between the parties relating to
the subject matter hereof and supersedes any previous understanding or
agreement.

     

    11.          
I agree that the provisions of this Agreement are severable.  If any
provision hereof shall be declared to be invalid or unenforceable for any
reason, such unenforceability shall not affect the enforceability of the
remaining provisions of the Agreement, and such provision shall be reformed and
construed to the extent permitted by law so that the remainder is valid and
enforceable.

     

                   
Signed as a sealed instrument this
           day of
                      ,
200   .

     

    EMPLOYEE

     

    ____________________________________________

     

     

    ____________________________________________

    Printed
Name

     

    ____________________________________________

    Witness