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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 23, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
(Address, including zip code of
registrant's principal executive offices)
PHOTRONICS, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
JEFFREY P. MOONAN, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PHOTRONICS, INC.
1061 EAST INDIANTOWN ROAD
JUPITER, FLORIDA 33477
(407) 747-4163
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE(1)
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Common
stock,
par value
$.01 . . 1,000,000 shares $31.75 $31,750,000 $9,366.25
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(1) Calculated in accordance with Rule 457(h) of the General
Rules and Regulations under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1
Plan Information*
ITEM 2
Registrant Information and Employee Plan Annual Information*
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* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
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The following documents filed by the Registrant with the
Securities and Exchange Commission are incorporated by reference
in the Registration Statement.
1) The Registrant's Annual Report on Form 10-K for the
fiscal year ended November 2, 1997;
2) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended February 1, 1998;
3) The description of the Common Stock which is contained in
the Registrant's Form 8-A, filed on March 5, 1987 (File
#0-15451) under Section 12(g) of the Securities Exchange
Act of 1934, as amended, including any amendments or
reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be
a part hereof from the respective dates of filing of such
documents.
ITEM 4 DESCRIPTION OF SECURITIES
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Not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSELS
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Not applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
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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 entitled to indemnification for
both derivative and nonderivative 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) showed a lack of good
II-1
faith and conscious disregard for his duty as that director under
circumstances where the director was aware that his actions
created an unjustifiable risk of serious injury to the Company;
(iii) constituted a sustained and unexcused pattern of
inattention that amounted to an abdication of his duty; or (iv)
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.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
ITEM 8 EXHIBITS
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The following Exhibits are filed as part of this Registration
Statement:
4(a) The 1998 Stock Option Plan adopted by the Board of
Directors of the Registrant on January 20, 1998 and
approved by the stockholders on March 18, 1998.
(Incorporated by reference to Appendix A to
Registrant's Proxy Statement dated February 12, 1998
filed with the Securities and Exchange Commission as
definitive Proxy Statement pursuant to Rule 14a-101 on
February 11, 1998 (SEC File No. 000-15451)).
5 Opinion of Reid & Priest LLP.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Reid & Priest LLP (included in Exhibit 5).
25 Power of Attorney (see page II-4).
ITEM 9 UNDERTAKINGS
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A) The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represents a fundamental change in the information set
forth in the Registration Statement;
iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
II-2
provided, however, that paragraphs (A)(l)(i) and (A)(l)(ii),
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above, do not apply if the Registration Statement is on Form
S-3 or Form S-8, and the information required to be included
in a post-effective amendment by those paragraphs is
contained in the periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) 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.
(3) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
B) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
C) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the 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.
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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 dates indicated.
SIGNATURE DATE
/s/ Constantine S. Macricostas April 22, 1998
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Constantine S. Macricostas
Chairman of the Board of Directors
/s/ Michael J. Yomazzo April 22, 1998
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Michael J. Yomazzo
Director
President and Chief Executive Officer
(Principal Executive Officer)
/s/ Robert J. Bollo April 22, 1998
---------------------------------
Robert J. Bollo
Vice President/Finance
Chief Financial Officer
(Principal Financial/Accounting Officer)
/s/ Yukio Tagawa April 22, 1998
---------------------------------
Yukio Tagawa
Director
/s/ Walter M. Fiederowicz April 22, 1998
---------------------------------
Walter M. Fiederowicz
Director
/s/ Joseph A. Fiorita, Jr. April 22, 1998
---------------------------------
Joseph A. Fiorita, Jr.
Director
II-5
EXHIBIT INDEX
Exhibit Description
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4(a) The 1998 Stock Option Plan adopted by the Board of
Directors of the Registrant on January 20, 1998 and
approved by the stockholders on March 18, 1998.
(Incorporated by reference to Appendix A to
Registrant's Proxy Statement dated February 12, 1998
filed with the Securities and Exchange Commission as
definitive Proxy Statement pursuant to Rule 14a-101 on
February 11, 1998 (SEC File No. 000-1545)).
5 Opinion of Reid & Priest LLP.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Reid & Priest LLP (included in Exhibit 5).
25 Power of Attorney (see page 6).
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019
New York, New York
April 22, 1998
Photronics, Inc.
1061 East Indiantown Road
Jupiter, Florida 33477
Re: Registration Statement on Form S-8
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Gentlemen:
We have acted as counsel to Photronics, Inc., a
Connecticut corporation (the "Registrant"), in connection
with the preparation and filing with the Securities and
Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement"), with
respect to the registration under the Securities Act of
1933, as amended (the "Act"), of 1,000,000 shares of the
Registrant's common stock, $.01 par value per share (the
"Shares"), issuable upon the exercise of options (the
"Options") granted or to be granted pursuant to the
Company's 1998 Stock Option Plan (the "Plan").
For purposes of this opinion we have examined the
Registration Statement, the Certificate of Incorporation
and the By-Laws of the Registrant, the Plan and such other
documents, records, agreements, proceedings and legal
matters as we have deemed necessary to examine. With
respect to any documents, records or agreements
(collectively, the "Documents") that we have examined, we
have assumed the genuineness of all signatures on, and the
authenticity of, all Documents submitted to us as
originals, and the conformity to the originals of all
Documents submitted to us as certified or photostatic
copies.
Based upon the foregoing and subject to the
qualifications stated herein we are of the opinion that:
1. The Registrant is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Connecticut.
2. The Shares included in the Registration
Statement that are to be issued upon the exercise of the
Options granted or to be granted pursuant to the Plan will
be duly authorized and validly issued, and fully paid and
non-assessable when the Options shall have been properly
exercised and the exercise price shall have been paid for
the Shares in accordance with the terms of the Plan.
We are members of the Bar of the State of New
York and do not hold ourselves out as experts concerning,
or qualified to render opinions with respect to, any laws
other than the laws of the State of New York and the
federal laws of the United States of America. Insofar as
our opinion concerns Connecticut law, we have relied upon
the opinion of Jeffrey P. Moonan, Senior Vice President and
General Counsel of the Registrant.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5 to the Registration
Statement. In giving the foregoing consent, we do not
thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Reid & Priest LLP
INDEPENDENT AUDITORS' CONSENT
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We consent to the incorporation by reference in this
Registration Statement of Photronics, Inc. on Form S-8 of our
report dated December 8, 1997 appearing in the Annual Report on
Form 10-K of Photronics, Inc. for the year ended November 2,
1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Hartford, Connecticut
April 22, 1998