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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1997.
REGISTRATION NO. 333-26009
========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
PHOTRONICS, INC.
(Exact name of registrant as specified in its charter)
Connecticut 06-0854886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
Number)
--------------------------
1061 EAST INDIANTOWN ROAD
JUPITER, FLORIDA 33477
(561) 745-1222
(Address, and telephone number,
of Registrant's principal executive offices)
-----------------------
JEFFREY P. MOONAN, ESQ.,
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
1061 EAST INDIANTOWN ROAD
JUPITER, FLORIDA 33477
(561) 745-1222
FAX: (561) 747-1432
(Name, address, including zip code, and telephone number of agent
for service)
-----------------------
Copies to:
STEVEN L. WASSERMAN, ESQ. KEITH F. HIGGINS, ESQ.
REID & PRIEST LLP ROPES & GRAY
40 WEST 57TH STREET ONE INTERNATIONAL PLACE
NEW YORK, NEW YORK 10019 BOSTON, MASSACHUSETTS 02110
(212) 603-2000 (617) 951-7000
FAX: (212) 603-2001 FAX: (617) 951-7050
----------------------
Approximate date of commencement of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, check the following box. [ ]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and
distribution of the securities being registered, other than
underwriting discounts and commissions, are estimated to be:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . $26,136
NASD filing fee . . . . . . . . . . . . . . 9,125
NASD listing fee . . . . . . . . . . . . . 17,500
Rating agency fees . . . . . . . . . . . . 88,750
Legal fees and expenses . . . . . . . . . . 85,000
Accounting fees and expenses . . . . . . . 75,000
Blue Sky fees and expenses (including
fees of counsel) . . . . . . . . . . . . 5,000
Trustee's fees . . . . . . . . . . . . . . 15,000
Printing and engraving fees . . . . . . . . 40,000
Miscellaneous . . . . . . . . . . . . . . . 13,489
--------
Total . . . . . . . . . . . . . . $375,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Connecticut Stock Corporation Act (the "Act") provides
for indemnification of directors, officers, shareholders,
employees and agents of a corporation. Under the Act, a
corporation is required to indemnify a director against judgments
and other expenses of litigation when he is sued by reason of his
being a director in any proceeding brought, other than on behalf
of the corporation, if a director is successful on the merits in
defense, or acted in good faith and in a manner reasonably
believed to be in the best interests of the corporation, or in a
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. In a proceeding brought on behalf of a
corporation (a derivative action), a director is entitled to be
indemnified by the corporation for reasonable expenses of
litigation, if the director is finally adjudged not to have
breached his duty to the corporation. In addition, a director is
entitled to indemnification for both derivative and
non-derivative actions, if a court determines, upon application,
that the director is fairly and reasonably entitled to be
indemnified.
Article Ninth of the Company's Certificate of Incorporation
limits directors' monetary liability for actions or omissions
made in good faith, which are later determined to be a breach of
their duty as directors of the Company. Article Ninth does not
eliminate or limit a director's liability for breaches of
fiduciary duty for actions or omissions which (i) involved a
knowing and culpable violation of law; (ii) enabled a director or
an associate (as defined in the Act) to receive an improper
personal economic gain; (iii) showed a lack of good faith and
conscious disregard for his duty as a director under
circumstances where the director was aware that his actions
created an unjustifiable risk of serious injury to the Company;
(iv) constituted a sustained and unexcused pattern of inattention
that amounted to an abdication of his duty; or (v) involved the
improper distribution of Company assets to its shareholders or an
improper loan to an officer, director or 5% shareholder. Article
Ninth also does not preclude suits for equitable relief, such as
an injunction, nor would it shield directors from liability for
violations of the federal securities laws. Moreover, Article
Ninth does not limit the liability of directors for any act or
omission that occurred prior to the date the Article became
effective and does not limit the potential liability of
officer-directors in their capacity as officers.
The Company has purchased directors' and officers' liability
insurance covering certain liabilities incurred by its directors
in connection with the performance of their duties.
The Underwriting Agreement filed herewith as Exhibit 1.1
contains provisions by which the Underwriters agree to indemnify
the Company, each person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
1934 Act, each director of the Company, and each officer of the
Company who signs this Registration Statement with respect to
information furnished in writing by the Underwriters for use in
the Registration Statement.
ITEM 16. EXHIBITS.
1.1 - Proposed form of Underwriting Agreement.(2)
4.1 - Form of Indenture.(2)
4.2 - Form of Convertible Subordinated Note.(2)
4.3 - Form of Stock Certificate.(1)
5.1 - Opinion of Reid & Priest LLP.
12.1 - Statement re Computation of Ratio of Earnings to
Fixed Charges.(2)
23.1 - Consent of Deloitte & Touche LLP.(2)
23.2 - Consent of Reid & Priest LLP (Included in
Exhibit 5.1).
24.1 - Power of Attorney.(2)
25.1 - T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The Chase
Manhattan Bank.(2)
------------------
(1) Filed as an exhibit to the Company's Registration Statement
on Form S-1, File Number 33-11694, which was declared
effective by the Commission on March 10, 1987, and
incorporated herein by reference.
(2) Previously filed.
ITEM 17. UNDERTAKINGS.
(a) 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 foregoing provisions, 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 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 Act and will be governed by the final adjudication of such
issue.
(b) The undersigned Registrant hereby undertakes:
(1) That for purposes of determining any liability
under the Securities Act of 1933, the information omitted
from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared
effective.
(2) That for the purpose of determining any liability
under the Securities Act of 1933, each post-effective
amendment that contains a form of Prospectus 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) 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 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.
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-3 and has duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Brookfield, State of Connecticut,
on the 20th day of May 1997.
PHOTRONICS, INC.
By /s/ Jeffrey P. Moonan
--------------------------------
Jeffrey P. Moonan
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ * Chairman of the May 20, 1997
----------------------------- Board of
Constantine S. Macriostas Directors,
Chief Executive
Officer and
Director
(Principal
Executive
Officer)
/s/ * President and May 20, 1997
--------------------------- Director
Michael J. Yomazzo
/s/ * Vice May 20, 1997
---------------------------- President/Finance
Robert J. Bollo Chief Financial
Officer
(Principal
Financial and
Accounting
Officer)
/s/ * Director May 20, 1997
----------------------------
Walter M. Fiederowicz
/s/ * Director May 20, 1997
----------------------------
Joseph A. Fiorita, Jr.
/s/ * Director May 20, 1997
---------------------------
Yukio Tagawa
*By: /s/ Jeffrey P. Moonan May 20, 1997
------------------------
Jeffrey P. Moonan
as Attorney-In-Fact
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------- -------
1.1 - Proposed form of Underwriting Agreement(2)
4.1 - Form of Indenture(2)
4.2 - Form of Convertible Subordinated Note(2)
4.3 - Form of Stock Certificate(1)
5.1 - Opinion of Reid & Priest LLP
12.1 - Statement Regarding Computation of
Ratio of Earnings to Fixed Charges(2)
23.1 - Consent of Deloitte & Touche LLP(2)
23.2 - Consent of Reid & Priest LLP
(Included in Exhibit 5.1)
24.1 - Power of Attorney(2)
25.1 - T-1 Statement of Eligibility
and Qualification under the Trust
Indenture Act of 1939 of
The Chase Manhattan Bank(2)
---------------------------
(1) Filed as an exhibit to the Company's Registration Statement
on Form S-1, File Number 33-11694, which was declared
effective by the Commission on March 10, 1987, and
incorporated herein by reference.
(2) Previously filed.
Exhibit 5.1
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2001
(212) 603-2000
New York, New York
May 20, 1997
Photronics, Inc.
1061 East Indiantown Road, Suite 318
Jupiter, Florida 33473
Re: Photronics, Inc.
Registration Statement on Form S-3
-----------------------------------
Dear Sirs:
We have acted as counsel for Photronics, Inc., a
Connecticut corporation (the "Company"), in connection with
the preparation and filing of a Registration Statement on
Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), with
respect to the proposed offer and sale of (i) the Company's
Convertible Subordinated Notes due 2004 in the aggregate
principal amount of $86,250,000 (the "Notes"), including an
additional $11,250,000 aggregate principal amount of Notes
that are the subject of an over-allotment option granted to
the several underwriters (the "Underwriters"), and (ii)
shares of the Company's common stock, par value $.01 per
share (the "Common Stock"), issuable upon conversion of the
Notes (the "Conversion Shares").
The Notes will be issued under the Indenture (the
"Indenture") between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), substantially in the form
filed as Exhibit 4.1 to the Registration Statement. The
Conversion Shares will be issuable upon conversion of the
Notes.
We have examined originals or copies, certified
or otherwise identified to our satisfaction, of the
Certificate of Incorporation and By-laws of the Company,
each as amended, and the Indenture and the underwriting
agreement (the "Underwriting Agreement") among the Company
and the representatives of the several Underwriters in the
form filed as Exhibit 1.1 to the Registration Statement and
such other documents, corporate records, certificates of
public officials and instruments as we have considered
necessary or advisable for the purpose of this opinion. We
have assumed the authenticity of all documents submitted to
us as originals and the conformity to original documents of
all documents submitted to us as copies. We have not
independently verified such information and assumptions.
We are not members of the Bar of any jurisdiction
other than the State of New York, and we express no opinion
as to the law of any jurisdiction other than the laws of
the State of New York. Insofar as our opinion concerns
Connecticut law, we have relied upon the opinion of Pepe &
Hazard, which is attached hereto, and our opinion is
subject to such qualifications and assumptions set forth in
such opinion, which are incorporated herein.
Subject to the foregoing, and based on such
examination and review, we are of the opinion that:
1. The Company is a corporation incorporated
and existing in good standing under the laws of the State
of Connecticut.
2. The Notes, having been duly authorized by
the Company, and when executed by the Company and
authenticated by the Trustee in accordance with the terms
of the Indenture, and issued in accordance with the terms
of the Indenture and the Underwriting Agreement, will be
validly issued and will constitute valid and binding
obligations of the Company.
3. The Conversion Shares issuable upon
conversion of the Notes have been duly authorized and
reserved for issuance, and, when issued in accordance with
the terms and provisions of the Notes and of the Indenture,
will be validly issued, fully paid and non-assessable
shares of Common Stock of the Company.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the
reference to us contained under the heading "Legal Matters"
in the Prospectus which forms part of the Registration
Statement. In giving the foregoing consent, we do not
thereby admit that we belong to the category of persons
whose consent is required under Section 7 of the Act, or
the rules and regulations promulgated by the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Reid & Priest LLP
Reid & Priest LLP
PEPE & HAZARD LLP
Goodwin Square
Hartford, Connecticut 06103-4302
Telephone 860 522-5175
Fax 860 522-2796
May 20, 1997
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
RE: PUBLIC OFFERING OF CONVERTIBLE NOTES
AGGREGATING $86,250,000 BY PHOTRONICS, INC.
-------------------------------------------
Gentlemen:
We have acted as special Connecticut counsel to
Photronics, Inc., a Connecticut corporation (the "Company") in
connection with the Company's public offering (the "Offer") of
convertible subordinated notes due 2004 in the aggregate
principal amount of $86,250,000 (the "Notes"), including
$11,250,000 aggregate principal amount of Notes that are the
subject of an over-allotment option granted to the several
underwriters (the "Underwriters"), and shares of the Company's
common stock $.01 par value per share (the "Common Stock"),
issuable upon conversion of the Notes (the "Conversion Shares").
The Offer is to be made pursuant to the terms contained in the
Prospectus (the "Prospectus") and in the Registration Statement
on Form S-3 (the "Registration Statement") which was filed under
the Securities Act of 1933 and of which the Prospectus forms a
part. The Notes will be issued under an indenture (the
"Indenture") between the Company and the Chase Manhattan Bank, as
trustee (the "Trustee"), substantially in the form filed as
Exhibit 4.1 to the Registration Statement. The Notes and the
shares of Common Stock into which they are convertible are
referred to herein as the "Securities."
In preparing this opinion we have examined originals
or copies, certified or otherwise identified to our satisfaction,
of such of the Company's corporate records, and other instruments
as we have deemed necessary or appropriate for the purposes of
rendering this opinion, including: (a) the Company's Certificate
of Incorporation (the "Certificate") and all amendments to the
Certificate; (b) the Company's by-laws, as amended; (c) the minutes
of meetings or written consents of the Company's Board of Directors
(the "Board"), including the minutes of the Board meeting held on
January 13, 1997 and the resolutions adopted therein; (d) the draft
underwriting agreement among the Company, Goldman, Sachs & Co.,
Robertson, Stephens & Company, and Smith Barney Inc. in the
form filed as Exhibit 1.1 to the Registration Statement (the
"Underwriting Agreement"); (e) the Registration Statement; (f) the
Indenture; and (g) the Form of Securities contained in the
Indenture (the Underwriting Agreement, the Indenture, the
Prospectus, the Registration Statement and the Form of Securities
are hereinafter referred to as the "Offering Documents"). Terms
used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Offering Documents.
In connection with this opinion, we have relied upon
originals or copies, certified or otherwise identified to our
satisfaction, of such documents, certificates of public
officials, corporate records and instruments as were provided to
us. As to any question of fact material to our opinion, we have
relied without independent verification upon the representations
of the Company made in the Offering Documents, and to the extent
such factual matters are stated herein, such statements are not
our professional opinion but merely a recitation of such factual
matters derived from the above described sources. In preparing
this opinion we have assumed the legal capacity of natural
persons, the authenticity of all documents submitted to us as
originals, the validity of all applicable statutes, ordinances,
rules and regulations, and the proper indexing and accuracy of
all public records and documents. In addition, in making our
examination of documents executed by parties other than the
Company, we have assumed that such other parties have the power
to enter into and perform all obligations thereunder and have
also assumed the due authorization by all requisite action and
due execution and delivery by such other parties of such
documents and the validity and binding effect thereof with
respect to such parties. We have also assumed that the Notes
will each be issued for the consideration duly approved by
the Company's Pricing Committee.
We are members of the Bar of the State of Connecticut
and we express no opinion as to the laws of any jurisdiction
other than the laws of the State of Connecticut as applied by
courts located in Connecticut. No opinion is given herein as to
the choice of law or internal substantive rules which any
tribunal may apply to the transactions referred to herein. This
opinion is a confidential communication to you in connection with
the Offering and may not, without our written consent, be relied
upon or furnished to any other person, except as provided herein.
We understand that all of the foregoing assumptions,
limitations and qualifications are acceptable to you.
Based upon, and subject to, the foregoing and the
further assumptions and qualifications discussed below, it is our
opinion that:
1. The Company is a corporation duly incorporated
under the laws of the State of Connecticut, and, based solely on
the Certificate of Existence issued by the Secretary of the State
of Connecticut on May 12, 1997, is validly existing and in good
standing under the laws of the State of Connecticut.
2. The execution and delivery of the Indenture and
the Underwriting Agreement and the execution, delivery and
issuance of the Notes have been duly authorized by the Company.
The Company has the corporate power and authority to enter into
and consummate the transactions contemplated by the Indenture and
the Underwriting Agreement and to issue the Notes.
3. The Conversion Shares issuable upon conversion of
the Notes have been duly and validly authorized and reserved for
issuance, and, when issued and delivered upon conversion of one
or more of the Notes, in accordance with the terms and provisions
of the Notes and the Indenture, will be duly and validly issued,
fully paid and non-assessable shares of the Common Stock of the
Company.
This opinion speaks only as the date hereof, and we
disclaim any obligation to advise you of any change in this
opinion after the date hereof. Any change in the applicable
laws, rules or regulations or in the information or assumptions
on which we rely, or any inaccuracy of such information or
assumptions could affect the validity of this opinion. We
express no opinion herein as to any matters other than the
matters expressly set forth herein. We understand that you will
be relying upon this opinion to enable you to opine with respect
to the validity of the Securities included in the Offer, and that
your opinion will be included as an exhibit to the Registration
Statement, and that this opinion will be referred to therein and
annexed as an exhibit thereto. We hereby consent to such
reliance.
Very truly yours,
PEPE & HAZARD LLP
/s/ James C. Schulwolf
---------------------------
James C. Schulwolf, Partner