SECURITES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended July 31, 2001
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________to___________
Commission file number 0-15451
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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 No.)
1061 EAST INDIANTOWN ROAD, JUPITER, FL 33477
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(561) 745-1222
--------------------
(Registrant's telephone number, including area code)
--------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter periods that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at August 23, 2001
COMMON STOCK, $.01 PAR VALUE 29,991,000 SHARES
PHOTRONICS, INC.
AND SUBSIDIARIES
INDEX
PAGE
PART I. FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements
Condensed Consolidated Balance Sheet
at July 31, 2001 (unaudited) and
October 31, 2000 3 - 4
Condensed Consolidated Statement of
Operations for the Three and Nine Months
Ended July 31, 2001 (unaudited) and
July 31, 2000 (unaudited) 5
Condensed Consolidated Statement of
Cash Flows for the Nine Months Ended
July 31, 2001 (unaudited) and
July 31, 2000 (unaudited) 6
Notes to Condensed Consolidated
Financial Statements (unaudited) 7 - 10
Item 2. Management's Discussion and Analysis
of Results of Operations and
Financial Condition 10 - 15
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports 15
PART I. FINANCIAL INFORMATION
ITEM I. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
PHOTRONICS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
(IN THOUSANDS)
ASSETS
JULY 31, OCTOBER 31,
2001 2000
----------- -----------
(UNAUDITED)
Current assets:
Cash, cash equivalents
and short term investments $ 24,706 $ 38,182
Accounts receivable (less allowance
for doubtful accounts of $771
in 2001 and $881 in 2000) 63,110 64,019
Inventories 18,028 18,486
Deferred income taxes and
other current assets 24,604 17,906
--------- ---------
Total current assets 130,448 138,593
Property, plant and equipment
(less accumulated depreciation of $269,883
in 2001 and $231,426 in 2000) 347,637 395,281
Intangible assets (less accumulated
amortization of $12,600 in 2001 and
$9,373 in 2000) 50,026 59,277
Investments and other assets 49,310 16,410
--------- ---------
$ 577,421 $ 609,561
========= =========
See accompanying notes to condensed consolidated financial statements.
3
PHOTRONICS, INC. AND SUBISIDARIES
CONDENSED CONSOLIDATED BALANCE SHEET
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
LIABILITIES AND SHAREHOLDERS' EQUITY
JULY 31, OCTOBER 31,
2001 2000
---------- -----------
(UNAUDITED)
Current liabilities:
Current portion of long-term debt $ 52 $ 849
Accounts payable 31,443 37,917
Accrued salaries and wages 6,598 5,264
Other accrued liabilities 14,576 7,539
-------- --------
Total current liabilities 52,669 51,569
Long-term debt 166,839 202,797
Deferred income taxes and other liabilities 38,121 34,089
-------- --------
Total liabilities 257,629 288,455
-------- --------
Minority interest 33,161 27,126
Commitments and contingencies
Shareholders' equity:
Preferred stock, $0.01 par value,
2,000 shares authorized,
none issued and outstanding - -
Common stock, $0.01 par value,
75,000 shares authorized, 29,974 shares
issued and outstanding in 2001 and 29,688
issued and outstanding in 2000 300 297
Additional paid-in capital 141,874 136,445
Retained earnings 161,232 167,246
Accumulated other comprehensive loss (16,775) (9,877)
Deferred compensation on restricted stock - (131)
-------- --------
Total shareholders' equity 286,631 293,980
-------- --------
$577,421 $609,561
======== ========
See accompanying notes to condensed consolidated financial statements.
4
PHOTRONICS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------- ----------------------
JULY 31, JULY 31, JULY 31, JULY 31,
2001 2000 2001 2000
---------- ---------- ---------- ---------
Net sales $ 85,016 $ 85,595 $284,145 $234,540
Costs and expenses:
Cost of sales 60,569 56,676 188,033 158,143
Selling, general and administrative 12,979 11,485 39,590 32,913
Research and development 6,250 5,319 18,236 15,056
Consolidation, restructuring and
related charges - 5,500 38,100 23,000
------- -------- ------- -------
Operating income 5,218 6,615 186 5,428
Other expenses, net (2,080) (1,857) (6,693) (3,241)
------- -------- ------- -------
Income (loss) before income taxes
and minority interest 3,138 4,758 (6,507) 2,187
Provision (benefit) for income taxes 500 1,600 (4,000) 800
------- -------- ------- -------
Income (loss) before minority interest 2,638 3,158 (2,507) 1,387
Minority interest in income of
consolidated subsidiary (861) - (3,505) -
------- ------- -------- -------
Net income (loss) $ 1,777 $ 3,158 $(6,012) $ 1,387
======= ======= ======= =======
Earnings (loss) per share:
Basic $ 0.06 $ 0.11 $ (0.20) $ 0.05
====== ======= ======= ======
Diluted $ 0.06 $ 0.11 $ (0.20) $ 0.05
====== ======= ======= ======
Weighted average number of common
shares outstanding:
Basic 29,972 29,148 29,865 28,466
====== ====== ====== ======
Diluted 29,972 29,148 29,865 28,466
====== ====== ====== ======
See accompanying notes to condensed consolidated financial statements.
5
PHOTRONICS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
NINE MONTHS ENDED
---------------------------------
JULY 31, JULY 31,
2001 2000
----------- -----------
Cash flows from operating activities:
Net income (loss) $(6,012) $ 1,387
Adjustment to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation and amortization 54,779 38,817
Deferred taxes and other (5,312) (5,310)
Consolidation, restructuring and related charges 38,100 17,500
Changes in assets and liabilities:
Accounts receivable 887 (914)
Inventories 476 (583)
Other current assets 820 2,606
Accounts payable and accrued liabilities 5,574 (34,317)
------- -------
Net cash provided by operating activities 89,312 19,186
------- -------
Cash flows from investing activities:
Investment in photomask operations (33,798) (34,782)
Deposits on and purchases of property,
plant and equipment (38,570) (26,918)
Other 4,042 3,584
------- -------
Net cash used in investing activities (68,326) (58,116)
------- -------
Cash flows from financing activities:
Borrowings (repayments) of long term debt (36,664) 41,583
Proceeds from issuance of common stock 5,973 28,856
------- -------
Net cash (used in) provided by financing activities (30,691) 70,439
------- -------
Effect of exchange rate changes on cash flows (3,771) (878)
------- -------
Net increase (decrease) in cash and cash equivalents (13,476) 30,631
Cash and cash equivalents at beginning of period 38,182 23,115
Adjustment related to Align-Rite's net cash flows
from differences in fiscal reporting periods - (3,474)
------- -------
Cash and cash equivalents at end of period $24,706 $50,272
======= =======
Cash paid during the period for:
Interest $ 9,164 $ 7,776
Income taxes $ 239 $ 192
See accompanying notes to condensed consolidated financial statements.
6
PHOTRONICS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JULY 31, 2001
(UNAUDITED)
NOTE 1 - BASIS OF FINANCIAL STATEMENT PRESENTATION
The accompanying unaudited Condensed Consolidated Financial Statements
have been prepared in accordance with accounting principles generally accepted
in the United States for interim financial information and with the instructions
to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include
all of the information and footnotes required by accounting principles generally
accepted in the United States for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the three and nine months ended July 31, 2001 are not necessarily
indicative of the results that may be expected for the year ending October 31,
2001. Certain amounts in the Condensed Consolidated Financial Statements for
prior periods have been reclassified to conform to the current presentation. For
further information, refer to the consolidated financial statements and
footnotes thereto included in the Company's Annual Report on Form 10-K for the
year ended October 31, 2000.
NOTE 2 - COMPREHENSIVE INCOME (LOSS)
The following table summarizes comprehensive income (loss) for the
three and nine months ended July 31, 2001 and 2000:
THREE MONTHS ENDED NINE MONTHS ENDED
---------------------- ----------------------
JULY 31, JULY 31, JULY 31, JULY 31,
2001 2000 2001 2000
-------- -------- -------- --------
Net income (loss) $ 1,777 $ 3,158 $ (6,012) $ 1,387
Other comprehensive income (loss):
Unrealized gains (losses) on investments 4,112 (11) 2,621 5,466
Foreign currency translation adjustments and other (3,344) (3,855) (9,519) (12,100)
------- ------- -------- --------
768 3,866 (6,898) (6,634)
------- ------- -------- --------
$ 2,545 $ (708) $(12,910) $ (5,247)
======= ======= ======== ========
NOTE 3 - EARNINGS PER SHARE
Earnings per share ("EPS") amounts are calculated in accordance with
the provisions of Statement of Financial Accounting Standards ("SFAS"), SFAS
No. 128. Basic EPS is based on the weighted average number of common shares
outstanding for the period, excluding any dilutive common share equivalents.
Diluted EPS reflects the potential dilution that could occur if securities or
other contracts to issue common stock were exercised or converted.
7
A reconciliation of basic and diluted EPS for the three and nine months
ended July 31, 2001 and 2000, respectively, is as follows (in thousands, except
per share amounts):
NET AVERAGE EARNINGS
INCOME SHARES (LOSS)
(LOSS) OUTSTANDING (b) PER SHARE
------- ----------- ---------
THREE MONTHS
2001:
Basic and diluted (a) $ 1,777 29,972 0.06
======= ====== ====
2000:
Basic and diluted (a) $ 3,158 29,148 0.11
======= ====== ====
NINE MONTHS
2001:
Basic and diluted (a) $(6,012) 29,865 (0.20)
======= ====== ====
2000:
Basic and diluted (a) $ 1,387 28,466 0.05
======= ====== ====
(a) The effect of the conversion of the convertible subordinated notes
and stock options for the three and nine months ended July 31, 2001 and 2000 is
anti-dilutive.
(b) If the assumed conversion of convertible subordinated notes and
exercise of stock options had been dilutive the incremental additional shares
outstanding would have been 4,413 and 4,510 for the three and nine months
ended July 31, 2001, respectively, and 4,701 and 4,833 for the three and nine
months ended July 31, 2000, respectively.
NOTE 4 - CONSOLIDATION, RESTRUCTURING AND RELATED CHARGES
In April 2001, the Company announced a plan ("the consolidation plan")
to consolidate its global photomask manufacturing network in order to increase
capacity utilization and manufacturing efficiencies, as well as to accelerate
the expansion of its world-class technology development. The Company initiated
the consolidation plan as the final phase of its June 2000 merger with
Align-Rite. Total consolidation and related charges associated with this plan of
$38.1 million were recorded in the second quarter of 2001. Of the total charge,
$30.6 million related to the consolidation plan and $7.5 million related to the
impairment of intangible assets.
The significant components of the consolidation plan include the
closing of the former Align-Rite manufacturing facilities in Burbank,
California, Palm Bay, Florida and Heilbronn, Germany within twelve months. The
Company anticipates that the closing of these facilities will maximize capacity
utilization at its remaining facilities. In addition, the Company will be
relocating its Northern California operations to a new, state-of-the-art
manufacturing facility in the Silicon Valley region. As part of the plan, the
Company will reduce its work force by approximately 125 employees.
The consolidation charge of $30.6 million includes: $4.0 million of
cash charges for severance benefits for terminated employees that will be paid
during their entitlement periods, principally during the fourth quarter of
2001; $4.5 million for facilities closings and lease termination costs that
will be expended
8
over the projected lease terms; and non-cash charges of $22.1 million that
approximate the carrying value of fixed assets that are primarily associated
with the consolidation plan based upon their expected disposition.
The charges also included $7.5 million that are related to the
impairment in value of associated intangible assets. It was determined during
the period that such assets no longer had any future economic benefit to the
Company because the anticipated undiscounted cumulative cash flows from these
assets were insufficient to support their carrying value.
NOTE 5 - REVOLVING CREDIT AGREEMENT
On June 12, 2001, the Company's $125 million unsecured revolving credit
facility was amended in order to modify certain financial covenants and
definitions in connection with the consolidation plan. The Company is subject to
compliance with and maintenance of certain financial covenants and ratios set
forth in the credit facility, as amended.
NOTE 6 - DERIVATIVE INSTURMENTS, HEDGING INSTRUMENTS AND HEDGING ACTIVITIES
In June 1998, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities."
The new standard requires companies to record derivatives on the balance sheet
as assets or liabilities, measured at fair value. Gains or losses resulting from
changes in the values of those derivatives are reported in the Statement of
Operations or as Accumulated Other Comprehensive Income (Loss), a separate
component of Shareholders' Equity, depending on the use of the derivatives and
whether they qualify for hedge accounting. In order to qualify for hedge
accounting, the derivative must be highly effective in achieving offsetting
changes in fair value or cash flows of the hedged items during the term of the
hedge. The Company adopted SFAS No. 133, as amended by SFAS No. 138, in the
first quarter of fiscal year 2001.
In fiscal year 2001, the Company entered into forward currency
contracts to purchase Japanese Yen to hedge the fair value of anticipated
transactions to purchase equipment to be settled in Japanese Yen in the next
12 months. Such derivatives have been designated and qualify as cash flow
hedging instruments and are reported at fair value. In general, the types of
risks hedged are those relating to the variability of future cash flows caused
by movements in foreign currency exchange rates. The Company documents its
risk management strategy and hedge effectiveness at the inception of and
during the term of each hedge. The Company has not recognized any net gains or
losses from its forward currency contracts, as these hedges are highly
effective, and the forecasted purchase of equipment will occur within the next
12 months. Therefore, any gains or losses are included in Accumulated Other
Comprehensive Income (Loss). Cash flow hedges of forecasted transactions
resulted in an aggregate debit balance of $775,000 in Accumulated Other
Comprehensive Income (Loss) at July 31, 2001. All forecasted transactions
currently being hedged are expected to occur within the next 12 months.
NOTE 7 - ACCOUNTING PRONOUNCEMENTS
See "Effects of New Accounting Standards" in Item 2 "Management's
Discussion and Analysis of Results of Operations and Financial Condition"
elsewhere in this Form 10-Q.
9
NOTE 8 - SUBSEQUENT EVENT
On August 21, 2001, the Company increased its equity investment in PKL
Co., Ltd. (PKL), a Korean photomask manufacturer, to approximately 51%. The
Company previously had an investment of approximately 35% in PKL after acquiring
300,000 shares of that Korean company in a tender offer in July 2001. Pursuant
to an agreement with certain shareholders of PKL, the Company may acquire an
additional 1,000,000 shares, or approximately 32% of PKL.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS
OF OPERATIONS AND FINANCIAL CONDITION
OVERVIEW
On June 7, 2000, Photronics, Inc. ("Photronics" or the "Company"),
completed its merger with Align-Rite International, Inc. ("Align-Rite"), an
independent publicly traded manufacturer of photomasks in the United States and
Europe. The transaction was accounted for as a pooling-of-interests. The
Condensed Consolidated Financial Statements, the accompanying notes and this
management discussion and analysis have been restated to reflect the Company's
financial results of operations and cash flows as if Align-Rite was a
consolidated wholly-owned subsidiary of the Company for all periods presented.
During fiscal year 2000, the Company acquired a majority share of
Precision Semiconductor Mask Corporation (PSMC), a photomask manufacturer based
in Taiwan, for approximately $63.4 million. The acquisition was accounted for as
a purchase. The operating results of PSMC have been included in the Condensed
Consolidated Statement of Operations since June 20, 2000.
In April 2001, the Company announced a plan ("the consolidation plan")
to consolidate its global photomask manufacturing network in order to increase
capacity utilization and manufacturing efficiencies, as well as to accelerate
the expansion of its world-class technology development. The Company initiated
the consolidation plan as the final phase of its June 2000 merger with
Align-Rite. Total consolidation and related charges associated with this plan of
$38.1 million were recorded in the second quarter of 2001. Of the total charge,
$30.6 million related to the consolidation plan and $7.5 million related to the
impairment of intangible assets.
The significant components of the consolidation plan include the
closing of the former Align-Rite manufacturing facilities in Burbank,
California, Palm Bay, Florida and Heilbronn, Germany within twelve months. The
Company anticipates that the closing of these facilities will maximize capacity
utilization at its remaining facilities. In addition, the Company will be
relocating its Northern California operations to a new, state-of-the-art
manufacturing facility in the Silicon Valley region. As part of the plan, the
Company will reduce its work force by approximately 125 employees.
The consolidation charge of $30.6 million includes: $4.0 million of
cash charges for severance benefits for terminated employees that will be paid
over their entitlement periods, principally during the fourth quarter of 2001;
$4.5 million for facilities closings and lease termination costs that will be
expended over the projected lease terms; and non-cash charges of $22.1 million
that approximate the carrying value of fixed assets that are primarily
associated with the consolidation plan based upon their expected disposition.
10
The charges also included $7.5 million that are related to the
impairment in value of associated intangible assets. It was determined during
the period that such assets no longer had any future economic benefit to the
Company because the anticipated undiscounted cumulative cash flows from these
assets were insufficient to support their carrying value.
During March 2000, the Company implemented a plan to consolidate its
mature products group in order to increase capacity utilization, manufacturing
efficiencies and customer service activities worldwide. Total restructuring and
related charges associated with this plan of $17.5 million were recorded in the
second quarter of fiscal 2000. Of the total charge, $9.1 million related to
restructuring and $8.4 million related to the impairment of intangible assets.
MATERIAL CHANGES IN RESULTS OF OPERATIONS
THREE AND NINE MONTHS ENDED JULY 31, 2001 VERSUS JULY 31, 2000
The following tables represent selected financial information,
expressed as a percentage of net sales, and pro forma earnings per diluted
share, respectively:
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------- -------------------------
JULY 31, JULY 31, JULY 31, JULY 31,
2001 2000 2001 2000
--------- -------- -------- --------
Net sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 71.2 66.2 66.2 67.4
------- ------- ------- -------
Gross margin 28.8 33.8 33.8 32.6
Selling, general and
administrative expenses 15.3 13.4 13.9 14.0
Research and development
expenses 7.4 6.2 6.4 6.4
------- ------- ------- -------
Operating income before
consolidation, restructuring
and related charges 6.1% 14.2% 13.5% 12.1%
======= ======= ======= =======
Pro forma earnings (loss) per diluted share:
Net income, excluding consolidation,
restructuring and related
charges $ 0.06 $ 0.24 $ 0.67 $ 0.57
======= ======= ======= =======
Net sales for the three months ended July 31, 2001 decreased 0.7% to
$85.0 million as compared to $85.6 for the comparable prior year period. The
decrease was primarily related to the rapid cyclical downturn in the
semiconductor industry primarily in the United States. The decrease, however,
was partially mitigated by the inclusion of the Company's new Taiwan operation
in 2001. Net sales for the nine months ended July 31, 2001 increased 21.1% to
$284.1 million as compared to $234.5 million for the comparable prior year
period. The increase in 2001 is primarily related to the inclusion of Taiwan,
increases in unit volumes, market share, and higher average selling prices
resulting from an improved mix of high-end technology products. International
operations accounted for 40.0% and 37.1% of sales for the three and nine months
ended July 31, 2001, respectively, compared to 33.0% and 28.5% in the
corresponding prior year periods.
11
Gross margins for the three months ended July 31, 2001 decreased to
28.8% from 33.8% for the comparable prior year period primarily as a result of
lower absorption of higher fixed costs associated with the downturn in the
semiconductor industry. Gross margins for nine months ended July 31, 2001
increased to 33.8% compared to 32.6% for the corresponding prior year period.
The gross margin increase was attributable to higher utilization of our fixed
equipment cost base, primarily during the first six months of 2001, as well as
a greater mix of higher margin products.
Selling, general and administrative expenses increased 13.0% to $13.0
million and 20.3% to $39.6 million for the three and nine months ended July 31,
2001, respectively, compared with $11.5 million and $32.9 million for the same
periods in the prior fiscal year. As a percentage of net sales, selling, general
and administrative expenses were 15.3% and 13.9% in the three and nine month
periods ended July 31, 2001, respectively, compared with 13.4% and 14.0% for the
same periods in the prior fiscal year. The higher expenses for the three and
nine months ended July 31, 2001 were principally due to costs associated with
the Company's expansion, both domestically and internationally, including costs
incurred in Taiwan, and growth of the Company's information technology
infrastructure.
Research and development expenses increased 17.5% to $6.3 million and
21.1% to $18.2 million for the three and nine months ended July 31, 2001,
respectively, compared with $5.3 million and $15.1 million for the same periods
in the prior fiscal year. As a percentage of net sales, research and development
expenses were 7.4% and 6.4%, respectively, compared with 6.2% and 6.4% for the
same periods in the prior fiscal year. This increase in costs reflects the
continuing development efforts of advanced, sub-wavelength reticle solutions,
primarily in the United States and Taiwan, and in Next Generation Lithography
(NGL) applications.
Net other expenses of $2.1 million and $6.7 million for the three and
nine months ended July 31, 2001, respectively, increased $0.2 million and $3.5
million, respectively, as a result of higher interest costs, principally
resulting from borrowings in connection with the Company's investments in Asia.
Minority interest for the three and nine months ended July 31, 2001 was
$0.9 million and $3.5 million, respectively, and reflects the minority interest
in earnings of the Company's subsidiary in Taiwan.
Net income (loss) for the three and nine months ended July 31, 2001,
decreased to $1.8 million and ($6.0) million, respectively, or $0.06 and ($0.20)
per diluted share. These amounts compare to $3.2 million, or $0.11 per diluted
share, and $1.4 million, or $0.05 per diluted share, for the corresponding prior
year periods. Fiscal year 2001 includes the effect of the consolidation and
related charges amounting to $26.1 million after tax, or $0.75 per diluted
share. Fiscal year 2000 includes the effect of the restructuring and related
charges amounting to $14.8 million after tax, or $0.52 per diluted share.
LIQUIDITY AND CAPITAL RESOURCES
The Company's working capital at July 31, 2001 was $77.8 million
compared to $87.0 million at October 31, 2000. The decrease in working capital
was due primarily to lower cash balances resulting from repayments of
borrowings under the Company's unsecured revolving credit line. Cash and cash
equivalents at July 31, 2001 were $24.7 million compared to $38.2 million at
October 31, 2000. Cash
12
provided by operating activities for the nine months ended July 31, 2001
amounted to $89.3 million compared to $19.2 million in the corresponding prior
year period. This increase is primarily attributable to higher income in 2001
before depreciation, amortization and restructuring charges and the net change
in working capital principally due to the timing of progress payments for
capital equipment coming due during the respective periods.
Cash used in investing activities of $68.3 million for the nine months
ended July 31, 2001, consisted principally of capital equipment purchases and
additional investments in photomask operations in Asia.
Cash used in financing activities of $30.7 million for the ninth months
ended July 31, 2001, included net repayments of borrowings of $36.7 million,
partially offset by $6.0 million of proceeds from the exercise of employee stock
options.
On June 12, 2001, the Company's $125 million unsecured revolving credit
facility was amended in order to modify certain financial covenants and
definitions in connection with the consolidation plan. The Company is subject to
compliance with and maintenance of certain financial covenants and ratios set
forth in the credit facility, as amended. The Company had $41.6 million of
outstanding borrowings and $83.4 million available under the revolving credit
facility at July 31, 2001.
In June 1998, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities."
The new standard requires companies to record derivatives on the balance sheet
as assets or liabilities, measured at fair value. Gains or losses resulting from
changes in the values of those derivatives are reported in the Statement of
Operations or as Accumulated Other Comprehensive Income (Loss), a separate
component of Shareholders' Equity, depending on the use of the derivatives and
whether they qualify for hedge accounting. In order to qualify for hedge
accounting, the derivative must be highly effective in achieving offsetting
changes in fair value or cash flows of the hedged items during the term of the
hedge. The Company adopted SFAS No. 133, as amended by SFAS No. 138, in the
first quarter of fiscal year 2001.
In fiscal year 2001, the Company entered into forward currency
contracts to purchase Japanese Yen to hedge the fair value of anticipated
transactions to purchase equipment to be settled in Japanese Yen in the next
12 months. Such derivatives have been designated and qualify as cash flow
hedging instruments and are reported at fair value. In general, the types of
risks hedged are those relating to the variability of future cash flows caused
by movements in foreign currency exchange rates. The Company documents its
risk management strategy and hedge effectiveness at the inception of and
during the term of each hedge. The Company has not recognized any net gains or
losses from its forward currency contracts, as these hedges are highly
effective, and the forecasted purchase of equipment will occur within the next
12 months. Therefore, any gains or losses are included in Accumulated Other
Comprehensive Income (Loss). Cash flow hedges of forecasted transactions
resulted in an aggregate debit balance of $775,000 in Accumulated Other
Comprehensive Income (Loss) at July 31, 2001. All forecasted transactions
currently being hedged are expected to occur within the next 12 months.
13
Photronics' commitments represent investments in additional
manufacturing capacity as well as advanced equipment for the production of
high-end, more complex photomasks. At July 31, 2001, Photronics had
commitments outstanding for capital expenditures of approximately $90 million.
Additional commitments for capital requirements are expected to be incurred
during fiscal 2001. Photronics will continue to use its working capital and
bank lines of credit to finance its capital expenditures. Photronics believes
that its currently available resources, together with its capacity for
substantial growth and its access to other debt and equity financing sources,
are sufficient to satisfy its currently planned capital expenditures, as well
as its anticipated working capital requirements for the foreseeable future.
EFFECT OF NEW ACCOUNTING STANDARDS
In December 1999, the Securities and Exchange Commission (the "SEC")
issued Staff Accounting Bulletin ("SAB") No. 101, "Revenue Recognition in
Financial Statements." SAB No. 101, as amended, is required to be adopted by
the Company no later than the fourth quarter of fiscal 2001. The Company's
adoption of SAB No. 101 is not expected to have a material impact on the
Company's consolidated financial position or results of operations.
The Financial Accounting Standards Board has issued SFAS No. 141,
"Business Combinations" and SFAS No. 142 "Goodwill and other Intangible Assets."
SFAS No. 141 requires that the purchase method of accounting be used for all
business combinations initiated after June 30, 2001 and that the use of the
pooling-of-interests method is no longer allowed. SFAS No. 142 requires that,
upon adoption, amortization of goodwill will cease and, instead, the carrying
value of goodwill will be evaluated for impairment on an annual basis.
Identifiable intangible assets will continue to be amortized over their useful
lives and reviewed for impairment in accordance with SFAS No. 121, "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
Of." SFAS No. 142 is effective for fiscal years beginning after December 15,
2001; however, the Company may elect early adoption of the Statement on November
1, 2001, the beginning of its 2002 fiscal year. The Company is evaluating the
impact of the adoption of these standards and has not yet determined the effect
of adoption on its consolidated financial position and results of operations.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company, in the normal course of doing business, is exposed to
the risks associated with foreign currency exchange rates and changes in
interest rates.
FOREIGN CURRENCY EXCHANGE RATE RISK
The Company conducts business in several major international
currencies through its worldwide operations, and as a result, is subject to
changes in foreign exchange rates of the various currencies. Changes in
exchange rates can positively or negatively affect the Company's sales, gross
margins and retained earnings. The Company attempts to minimize currency
exposure risk by producing its products in the same country or region in which
the products are sold and thereby generating revenues and incurring expenses
in the same currency and by managing its working capital; there can be no
assurance that this approach will be successful, especially in the event of a
significant and sudden decline in the value of any of the international
currencies in the Company's worldwide operations. The Company does not engage
in purchasing forward exchange contracts for speculative purposes.
14
INTEREST RATE RISK
The majority of the Company's borrowings are in the form of its
convertible subordinated notes, which bear interest at the fixed rate of 6%,
its unsecured revolving credit facility, which currently bears interest
between 5% and 8% and secured notes payable which bear interest between 6% and
8%. The Company does not expect changes in interest rates to have a material
effect on income or cash flows in the near term, although there can be no
assurances that interest rates will not significantly change.
FORWARD LOOKING INFORMATION
Certain statements in this report are considered "forward looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. All forward looking statements involve risks and uncertainties. For a
description of the factors that could cause the actual results of the Company to
be materially different from those projected, please review the Company's SEC
reports that detail these risks and uncertainties and the section captioned
"Forward Looking Information" contained in the Company's Annual Report on Form
10-K for the year ended October 31, 2000. Any forward looking statements should
be considered in light of these factors.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See Exhibits Index.
(b) Reports on Form 8-K
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PHOTRONICS, INC.
Registrant
By: /s/ ROBERT J. BOLLO
--------------------
Robert J. Bollo
Senior Vice President
Chief Financial Officer
(Duly Authorized Officer and
Principal Financial Officer)
Date: September 13, 2001
15
EXHIBITS INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10 Put/Call Option Agreement dated August 21,
2001, by and among Photronics, Inc., Photo
(L) Limited, Mask (L) Limited, Lakeway (L)
Limited and March (L) Limited, The HSBC
Private Equity Fund 2 Limited, The HSBC
Private Equity Fund, L.P., Taiwan Mask Corp.
and Blue Water Ventures International Ltd.
16
PUT/CALL OPTION AGREEMENT
THIS PUT/CALL OPTION AGREEMENT (the "Agreement") is made as of August 21,
2001 (the "Effective Date"), by and among PHOTRONICS, INC., a company organized
under the laws of the State of Connecticut ("Purchaser"), PHOTO (L) LIMITED
("Photo"), MASK (L) LIMITED ("Mask"), LAKEWAY (L) LIMITED ("Lakeway") and MARCH
(L) LIMITED ("March") (Photo, Mask, Lakeway and March are collectively referred
to herein as the "Sellers," and individually as a "Seller"), The HSBC Private
Equity Fund 2 Limited ("HPEF2"), The HSBC Private Equity Fund, L.P. ("HPEF"),
Taiwan Mask Corp ("TMC") and Blue Water Ventures International Ltd. ("BWVI")
(HPEF2, HPEF, TMC and BWVI are collectively referred to herein as the "Parent
Entities," and individually as the "Parent Entity").
RECITALS
A. The Sellers are selling to Purchaser a certain number of shares
they own in PKL, a company organized under the laws of the Republic of Korea
(the "Company"), pursuant to that certain Stock Purchase Agreement dated as of
the date hereof by and among Purchaser, Sellers and Parent Entities (the
"Stock Purchase Agreement"); and
B. As a condition to entering into the Stock Purchase Agreement and
subject to and in accordance with all of the terms and conditions of this
Agreement, Purchaser wishes to grant to Sellers a put right to sell shares of
common stock of the Company owned by Sellers to Purchaser (the "Option
Shares") and Sellers wish to grant to Purchaser a call right to require each
Seller to sell to Purchaser the Option Shares.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the parties hereto agree as follows:
1. PUT OPTION.
1.1 GRANT OF PUT OPTION. Purchaser hereby grants to each Seller
the right (the "Put Option") to require, at any time or from time to time
during the period commencing six (6) months after the Effective Date and
expiring on the Put Expiration Date (defined below) (such period being the
"Put Option Exercise Period"), Purchaser to purchase up to the number of the
Option Shares held by such Seller listed next to its name in Schedule 1
attached hereto in consideration for a purchase price for each Option Share
equal in amount to that number which is one and forty-one hundredths (1.41)
times the closing price of the Purchaser's common stock on the NASDAQ National
Market (or such other principal trading market for the Purchaser's common
stock) on the date of exercise of such Put Option (the "Put Purchase Price"),
which shall be payable in cash, or such other consideration as the parties may
agree at such time, PROVIDED THAT, each Seller must exercise the Put Option at
any one time for at least the lesser of (i) twenty percent (20%) of the Option
Shares listed next to its name in Schedule I and (ii) the remaining number of
Option Shares then held by such Seller, and SUBJECT ALWAYS to applicable laws.
1
1.2 PUT EXPIRATION DATE. The Put Option will expire on the
fourth (4th) anniversary of the Effective Date (the "Put Expiration Date").
1.3 MANNER OF EXERCISING PUT OPTION.
(a) The Put Option shall be exercisable by each Seller by
delivery of an executed Put Option Notice (in the form attached hereto as
EXHIBIT A) to the Purchaser during the Put Option Exercise Period.
(b) Upon proper exercise of the Put Option, within ten
(10) business days of receipt of such notice, Purchaser shall deliver to such
Seller the Put Purchase Price for each Option Share listed in the Put Option
Notice and Seller shall transfer the applicable number of Option Shares listed
in the Put Option Notice to Purchaser by delivery of the certificate or
certificates representing such Option Shares duly endorsed for transfer or
accompanied by a stock power. Such Seller and Purchaser shall cooperate to
take all actions reasonably necessary or appropriate to effect the transfer to
Purchaser of the applicable number of Option Shares and to consummate the
other transactions contemplated by this Agreement or the Put Option Notice.
1.4 CONSIDERATION FOR THE PUT OPTION. In consideration of the
grant of the Put Option to the Sellers by Purchaser, the Sellers have granted
to Purchaser the Call Option under Section 2 below.
1.5 TRANSFER OF PUT OPTION. Each Seller's rights and obligations
under the Put Option are not assignable or transferable by such Seller without
the prior written consent of Purchaser which consent shall not be unreasonably
withheld and PROVIDED THAT such transfer shall be made in accordance with all
applicable laws and that such transferee agrees in writing to be bound by the
terms of this Agreement and any other agreement which the parties enter into
in connection with this Agreement. Purchaser's rights and obligations under
the Put Option are not assignable or transferable by Purchaser without the
prior written consent of Sellers holding a majority of the Option Shares which
consent shall not be unreasonably withheld, EXCEPT THAT Purchaser may assign
and transfer any or all of Purchaser's rights and obligations under the Put
Option in connection with a transaction in which Section 3(b) hereof applies
without any consent from the Sellers.
2. CALL OPTION
2.1 GRANT OF CALL OPTION. Subject to the terms and conditions
herein set forth, each Seller hereby grants Purchaser the right (the "Call
Option") to require, at any time or from to time to time during the period
commencing on the second (2nd) anniversary of the Effective Date and expiring
on the Call Expiration Date (defined below) (such period being the "Call
Option Exercise Period"), such Seller to sell to Purchaser up to the number of
Option Shares equal to the lesser of (i) the number of Option Shares listed
next to such Seller's name in Schedule I and (ii) the number of Option Shares
held by the Sellers on the date of exercise of the Call Option in
consideration for a purchase price for each Option Share equal in amount to
that number which is one and forty-one hundredths (1.41) times the closing
price of the Purchaser's common stock on the NASDAQ National Market (or such
other principal trading market for the Purchaser's common stock) on the date
of exercise of such Call Option (the "Call Purchase
2
Price"), which shall be payable in cash, or such other consideration as the
parties may agree at such time; PROVIDED THAT the Purchaser may exercise the
Call Option only if the closing price of Purchaser's common stock listed on
the NASDAQ National Market shall have been at least forty-five dollars
($45.00) for any thirty (30) consecutive business days occurring after the
second (2nd) anniversary of the date of this Agreement and immediately prior
to the exercise of the Call Option; and PROVIDED FURTHER THAT the Purchaser
must exercise the Call Option at any one time for at least the lesser of, in
aggregate, (i) fifty thousand (50,000) Option Shares and (ii) the remaining
number of Option Shares then held by each Seller or transferees of the
Sellers; and PROVIDED FURTHER THAT, to the extent exercised by the Purchaser,
the Call Option must be exercised concurrently, on a pro rata basis (in
proportion to the total number of Option Shares subject to the Call Option
held by each Seller or transferee(s) of the Sellers on the date of exercise of
the Call Option), against Option Shares held by all Sellers or transferee(s)
of the Sellers.
2.2 CALL EXPIRATION DATE. The Call Option will expire on the
fourth (4th) anniversary of the Effective Date (the "Call Expiration Date").
2.3 MANNER OF EXERCISING CALL OPTION.
(a) The Call Option shall be exercisable by Purchaser by
delivery of an executed Call Option Notice (in the form attached hereto as
EXHIBIT B) to all of the Sellers during the Call Option Exercise Period.
(b) Upon proper exercise of the Call Option, within ten
(10) business days of receipt of such notice and upon receipt by Purchaser
from each Seller the representations and warranties set forth in the Call
Option Notice, each Seller shall transfer the applicable number of Option
Shares listed in the Call Option Notice to Purchaser by delivery of the
certificate or certificates representing such Option Shares duly endorsed for
transfer or accompanied by a stock power, and Purchaser shall deliver to such
Seller the Call Purchase Price for each Option Share listed in the Call Option
Notice. Such Seller and Purchaser shall cooperate to take all actions
reasonably necessary or appropriate to effect the transfer to Purchaser of the
applicable number of Option Shares and to consummate the other transactions
contemplated by this Agreement or the Call Option Notice.
2.4 CONSIDERATION FOR THE CALL OPTION. In consideration of the
grant of the Call Option to Purchaser by the Sellers, Purchaser has granted
to the Sellers the Put Option under Section 1 above.
2.5 TRANSFER OF CALL OPTION. Each Seller's rights and
obligations under the Call Option are not assignable or transferable by such
Seller without the prior written consent of Purchaser which consent shall not
be unreasonably withheld and PROVIDED THAT such transfer is made in accordance
with all applicable laws and that such transferee agrees in writing to be
bound by the terms of this Agreement and any other agreement which the parties
enter into in connection with this Agreement; PROVIDED, HOWEVER, that the
Sellers may sell, transfer or otherwise dispose of any Option Shares free and
clear of any rights or obligations under this Agreement without the prior
written consent of the Purchaser and without the transferee agreeing to be
bound by the terms of this Agreement or any other agreement which the parties
enter into in connection with this Agreement. Purchaser's rights and
obligations under the Call Option are
3
not assignable or transferable by Purchaser without the prior written consent
of Sellers holding a majority of the Option Shares which consent shall not be
unreasonably withheld, EXCEPT THAT Purchaser may assign and transfer any or
all of Purchaser's rights and obligations under the Call Option in connection
with a transaction in which Section 3(b) hereof applies without any consent
from the Sellers.
3. ADJUSTMENT OF NUMBER OF SHARES; SUBSTITUTE SHARES.
(a) If between the date of this Agreement and the date of expiration
of the Put Option or the Call Option, as the case may be, the outstanding
shares of common stock of the Purchaser or the outstanding shares of common
stock of the Company shall have been changed into a different number of shares
or a different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares
or other similar change in capital structure, the Put Purchase Price or the
Call Purchase Price shall be correspondingly adjusted to the extent
appropriate to reflect equitably such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares.
(b) REORGANIZATION EVENT. In case of any Reorganization Event (as
defined below), if the Put Option has not been exercised in full by all
Sellers by the effective date of such transaction, the Purchaser shall, as a
condition precedent to the consummation of the transaction constituting, or
announced as, such Reorganization Event, cause effective provisions to be made
so that the Sellers shall have the right immediately thereafter, by exercising
the Put Option, to receive whatever property that was receivable upon such
Reorganization Event had the Sellers exercised the Put Option immediately
prior to such Reorganization Event. Any such provision shall include provision
for adjustments in respect of such property that shall be as nearly equivalent
as may be practicable to the adjustments provided for in Section 3(a). The
foregoing provisions of this Section 3(b) shall similarly apply to successive
Reorganization Events. "Reorganization Event" means (i) any capital
reorganization or reclassification of the Purchaser's common stock (other than
as a result of a subdivision, combination or stock dividend for which
adjustment is provided in Section 3(a) hereof), or (ii) any consolidation of
the Purchaser with, or merger of the Purchaser with or into, another person
(including any individual, partnership, joint venture, corporation, trust or
group thereof) (other than a consolidation or merger in which the Purchaser is
the continuing corporation or which does not result in a reclassification or
change of the outstanding Purchaser's common stock or for which adjustment is
provided in Section 3(a) hereof) or any sale, lease, transfer or conveyance of
all or substantially all of the property and assets of the Purchaser.
(c) CHANGE OF CONTROL. Notwithstanding anything to the contrary in
Section 1.1 of this Agreement, if a Change in Control (as defined below) of
the Purchaser occurs prior to the date six (6) months after the Effective
Date, the Put Option Exercise Period shall commence upon the occurrence of
such Change in Control. A "CHANGE IN CONTROL" of the Purchaser shall be deemed
to have occurred when:
(i) After the date hereof, any person or entity is or becomes the
beneficial owner, directly or indirectly, of securities of the Purchaser
representing twenty percent (20%) or more of the combined voting power of
the Purchaser's then outstanding securities; or
4
(ii) The individuals who, on the date of this Agreement, constitute
the Board of Directors of Purchaser cease for any reason to constitute a
majority of the number of directors then serving; or
(iii) There is consummated a merger or consolidation of the
Purchaser or any direct or indirect subsidiary of the Purchaser with any
other corporation, other than a merger or consolidation that would result
in the voting securities of the Purchaser outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity or any parent thereof) at least fifty percent (50%) of the combined
voting power of the securities of the Purchaser or such surviving entity
or any parent thereof outstanding immediately after such merger or
consolidation; or
(iv) The shareholders of the Purchaser approve a plan of complete
liquidation or dissolution of the Purchaser or there is consummated an
agreement for the sale or disposition by the Purchaser of all or
substantially all of the Purchaser's assets, other than a sale or
disposition by the Purchaser of all or substantially all of the
Purchaser's assets to an entity, at least fifty percent (50%) of the
combined voting power of the voting securities of which are owned by
shareholders of the Purchaser in substantially the same proportions as
their ownership of the Purchaser immediately prior to such sale.
4. COVENANTS.
4.1 SELLERS' COVENANT.
(a) After HPEF2 and HPEF and their affiliates cease to own at
least 200,000 shares of the Company in the aggregate, HPEF2 and HPEF shall use
their reasonable best efforts to cause any person designated to the Board of
Directors of the Company by HPEF2 or HPEF or their affiliates to resign from
the Board of Directors of the Company as promptly as practicable.
(b) After TMC and BWVI and their affiliates cease to own at
least 200,000 shares of the Company in the aggregate, TMC and BWVI shall use
their reasonable best efforts to cause any person designated to the Board of
Directors of the Company by TMC or BWVI or their affiliates to resign from the
Board of Directors of the Company as promptly as practicable.
4.2. PURCHASER'S COVENANTS. (a) During the Put Option Exercise
Period, Purchaser agrees that it will use its reasonable best efforts to cause
the Company to refrain from issuing new shares of common stock for a purchase
price that is lower than the higher of (i) Korean Won twenty eight thousand
(KRW 28,000) or (ii) the average closing price of the Company's shares on the
Korea Securities Dealers Association Stock Market for the previous thirty (30)
days prior to the date of the approval of such new issuance by the Board of
Directors of the Company, PROVIDED THAT, Purchaser shall be relieved from this
covenant if in the opinion of counsel to Purchaser in such instance the
compliance with this covenant may or is likely to conflict with or result in
violation or breach of any obligations under any applicable laws and
regulations.
(b) Purchaser shall use its best efforts to take, or cause to be
taken, all appropriate
5
action and do, or cause to be done, all things necessary, proper or advisable
to perform its obligations under this Agreement, the Call Option Notice or Put
Option Notice, including, but not limited to, obtaining any third party
consents, prior to the delivery of a Call Option Notice or as soon as
practicable upon receipt of a Put Option Notice.
4.3. MUTUAL COVENANTS. (a) For so long as HPEF2 and HPEF and
their affiliates own at least 200,000 shares of the Company in the aggregate,
(i) Purchaser shall take all actions necessary to cause one person designated
by HPEF2 and HPEF to be appointed to the Board of Directors of the Company,
PROVIDED THAT, Purchaser shall be relieved from this covenant to the extent
necessary in order to ensure that its nominees constitute a majority of the
Board of Directors of the Company and (ii) HPEF2 and HPEF shall take all
actions necessary to vote for the Purchaser's nominees to the Board of
Directors of the Company which would represent a majority of such Board of
Directors.
(b) For so long as TMC and BWVI and their affiliates own at least
200,000 shares of the Company in the aggregate, (i) Purchaser shall take all
actions necessary to cause one person designated by TMC and BWVI to be appointed
to the Board of Directors of the Company, PROVIDED THAT, Purchaser shall be
relieved from this covenant to the extent necessary in order to ensure that its
nominees constitute a majority of the Board of Directors of the Company and (ii)
TMC and BWVI shall take all actions necessary to vote for the Purchaser's
nominees to the Board of Directors of the Company which would represent a
majority of such Board of Directors.
5. SELLER INDEMNIFICATION.
5.1 Each Seller agrees, severally and not jointly, to indemnify,
defend and hold harmless Purchaser (and its directors, officers, employees,
affiliates, agents, representatives, successors and assigns) from and against
any and all losses, liabilities, damages, demands, actions, claims, judgments
or causes of action, costs or expenses (including, without limitation,
interest, penalties and reasonable attorneys' fees) (a "Loss") based upon,
arising out of or otherwise in respect of any inaccuracy in or any breach of
any representation, warranty, covenant or agreement of such Seller made in
this Agreement, the Put Option Notice or Call Option Notice. The
representations and warranties set forth in this Agreement shall survive the
date hereof for a period of two (2) years and the representations and
warranties set forth in the Put Option Notice or Call Option Notice shall
survive the date of payment of the Put Purchase Price or Call Purchase Price,
as the case may be, to the Seller in connection with the exercise of the
respective Put Option or Call Option for a period of two (2) years.
5.2 Notwithstanding anything to the contrary contained in this
Agreement, (i) the maximum aggregate amount of indemnifiable Losses which may
be recovered from any Seller based upon, arising out of or otherwise in
respect of any inaccuracy in or breach of any representation or warranty of
such Seller made in this Agreement, the Put Option Notice or Call Option
Notice shall be the amount equal to 100% of the Put Purchase Price or Call
Purchase Price to which such Seller is entitled in connection with the
exercise of the respective Put Option or Call Option, and (ii) no
indemnification payment by the Sellers with respect to any indemnifiable Loss
otherwise payable pursuant to Section 5.1 shall be payable until such time as
all of such indemnifiable Losses shall aggregate to more than $50,000, after
which time all
6
Losses indemnifiable pursuant to this Section 5.1, including such $50,000,
shall be payable.
6. MISCELLANEOUS.
6.1 AMENDMENT. This Agreement may be amended only by a writing
signed by the Sellers holding a majority of the total number of the Option
Shares and Purchaser. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Seller and Purchaser.
6.2 ENTIRE AGREEMENT; CONTROLLING DOCUMENT. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence
and understandings between the parties with respect to the subject matter
hereof, whether oral or in writing.
6.3 COSTS OF ENFORCEMENT. If any party to this Agreement seeks
to enforce its rights under this Agreement by legal proceedings or otherwise,
the non-prevailing party shall pay all costs and expenses incurred by the
prevailing party, including, without limitation, all reasonable attorneys'
fees.
6.4 GOVERNING LAW, CONSENT TO JURISDICTION. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts entered into by New York residents and to be
performed wholly in the State of New York.
6.5 TAXATION. Purchaser makes no representations regarding the
tax treatment of these payments by any foreign, federal, state or local tax
authority. The Seller shall be solely responsible to pay any and all
applicable Korean securities transaction tax, stamp tax, withholding tax,
capital gains tax, and any and all tax payments imposed or levied in
connection with this Agreement or the transactions contemplated hereunder;
PROVIDED, HOWEVER, that the Purchaser shall be solely responsible to pay, if
any, all deemed acquisition taxes imposed in connection with this Agreement or
the transactions contemplated hereunder.
6.6 NOTICES. All notices, requests, demands, consents,
instructions or other communications to or upon any party hereto under this
Agreement shall be made pursuant to the Stock Purchase Agreement.
6.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.8 SEVERABILITY. If any provision of this Agreement shall be
determined to be invalid or unenforceable, the remainder shall be valid and
enforceable to the maximum extent possible so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any
manner materially adverse to any party.
6.9 HEADINGS. The section headings used in this Agreement are
intended principally for convenience and shall not by themselves, determine
the rights and obligations of the parties to this Agreement.
7
6.10 DELAY AND WAIVER. No delay on the part of either party in
exercising any right under this Agreement shall operate as a waiver of such
right. The waiver by either party of any term or condition of this Agreement
shall not be construed as a waiver of a subsequent breach or failure of the
same term or condition or a waiver of any other term or condition contained in
this Agreement.
6.11 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and shall be binding upon the
respective heirs, successors, administrators, executors and permitted assigns
of the parties hereto.
6.12 RECITALS AND EXHIBITS. The Recitals above and all Exhibits
attached hereto hereby are incorporated in and made an integral part of this
Agreement.
[Signatures on next page]
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement the day and
year first above written.
PURCHASER
PHOTRONICS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SELLERS
For and on behalf of:
PHOTO (L) LIMITED
By:
---------------------------------------
Name:
-------------------------------------
Title: As attorney in fact
For and on behalf of:
MASK (L) LIMITED
By:
---------------------------------------
Name:
-------------------------------------
Title: As attorney in fact
LAKEWAY (L) LIMITED
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
MARCH (L) LIMITED
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
9
PARENT ENTITIES
For and on behalf of:
THE HSBC PRIVATE EQUITY FUND
2 LIMITED
By:
---------------------------------------
Name:
-------------------------------------
Title: As attorney in fact
For and on behalf of:
THE HSBC PRIVATE EQUITY FUND, L.P.
By:
---------------------------------------
Name:
-------------------------------------
Title: As attorney in fact
TAIWAN MASK CORP.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BLUE WATERS VENTURES
INTERNATIONAL, LTD.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
10
SCHEDULE I
------------------------------------------------------------------
SELLER NUMBER OF OPTION SHARES HELD
------------------------------------------------------------------
Photo (L) Limited 208,257
------------------------------------------------------------------
Mask (L) Limited 419,886
------------------------------------------------------------------
Lakeway (L)
Limited 309,881
------------------------------------------------------------------
March (L) Limited 61,976
------------------------------------------------------------------
TOTAL 1,000,000
------------------------------------------------------------------
EXHIBIT A
---------
PUT OPTION NOTICE
(To be signed only upon exercise of Put Option)
To: Purchaser:
_______________ (the "Seller"), pursuant to the Put/Call Option Agreement
dated as of August 21, 2001 ("Agreement") between the Seller and Purchaser
("Purchaser"), hereby irrevocably elects to exercise a right represented by the
Put Option (as defined in the Agreement) to sell to the Purchaser
_______________ shares of Common Stock of PKL Limited (the "Option Shares") in
exchange for $__________ payable in cash, or such other consideration as the
parties may agree. The undersigned hereby covenants to cause such shares to be
transferred to Purchaser by delivery of the certificate or certificates
representing such Option Shares duly endorsed for transfer or accompanied by a
stock power, and that all other actions be taken as are reasonably necessary to
transfer title to such other property subject to the Put Option.
In addition, the Seller represents and warrants as follows:
1. OWNERSHIP OF THE SHARES; NO SHAREHOLDER OR VOTING AGREEMENT. The Seller
is the owner, beneficially and of record, of all the Option Shares and, on the
date hereof and on the date of payment of the Put Purchase Price for the Option
Shares, the Option Shares are and will be free and clear of all liens,
mortgages, deeds of trust, charges, contracts, encumbrances, security or other
agreements, shareholders agreements, commitments, rights, equities, options,
warrants, claims, charges, registered or unregistered pledges, rights of any
third party or any other restrictions (collectively and individually each as
"Encumbrance"). The Seller has the full right, power, legal capacity and
authority to enter into and perform its obligations under this Notice, including
the transfer of the Option Shares to Purchaser, and to take any action necessary
or appropriate to effect the transactions referred to in or contemplated by this
Notice without the consent of any other person, entity or governmental
authority. The Seller has not entered into, nor are the Option Shares subject
to, any shareholders agreement, voting agreement, or any agreement which gives
another person any right to purchase the Option Shares from the Seller.
2. REQUIRED CONSENTS. Other than the notification to the relevant foreign
exchange bank for the transfer of the Option Shares to Purchaser in accordance
with the provisions of the Foreign Investment Promotion Act ("FIPA") of the
Republic of Korea and a post-closing notification of the transfer of the Option
Shares to relevant Korean securities authorities, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority, or any other person or entity, is required to be made
or obtained by the Seller in connection with the sale of the Option Shares. The
Seller is not a party to or bound by any mortgage, lien, deed of trust, lease,
agreement, instrument, order, legend, condition, judgment or decree which
requires the consent of another to such sale or prohibits or requires the
consent of another to, or makes unduly burdensome, such sale.
1
The representatives and warranties set forth in this Notice shall survive
the payment of the Put Purchase Price to the Seller in connection with the
exercise of the Put Option pursuant to this Notice for a period of two (2)
years.
Dated:
---------------------------
SELLER'S NAME
By:
---------------------------------
Name:
Title:
2
EXHIBIT B
CALL OPTION NOTICE
(To be signed only upon exercise of Call Option)
To: [NAME OF SELLER]
Purchaser ("Purchaser"), pursuant to the Put/Call Option Agreement dated
as of August 21, 2001 ("Agreement") between Purchaser and the above named party
(the "Seller"), hereby irrevocably elects to exercise the right represented by
the Call Option (as defined in the Agreement) to purchase under that Call Option
_______________ shares of Common Stock of PKL Limited (the "Option Shares") and
herewith agrees to pay $____________ payable in cash, or such other
consideration as the parties may agree. The undersigned hereby requests that
such shares be transferred to Purchaser by delivery of the certificate or
certificates representing such Option Shares duly endorsed for transfer or
accompanied by a stock power, and that all other actions be taken as are
reasonably necessary to transfer title to such other property subject to the
Call Option.
Please also make the representations and warranties set forth below and
return a signed copy of this Call Option Notice to us within three (3) business
days of receipt of this Notice.
Dated:
---------------------------
Purchaser
By:
---------------------------------
Name:
Title:
The undersigned Seller hereby represents and warrants as follows:
1. OWNERSHIP OF THE SHARES; NO SHAREHOLDER OR VOTING AGREEMENT. The
Seller is the owner, beneficially and of record, of all the Option Shares and,
on the date hereof and on the date of payment of the Call Purchase Price for
the Option Shares, the Option Shares are and will be free and clear of all
liens, mortgages, deeds of trust, charges, contracts, encumbrances, security
or other agreements, shareholders agreements, commitments, rights, equities,
options, warrants, claims, charges, registered or unregistered pledges, rights
of any third party or any other restrictions (collectively and individually
each as "Encumbrance"). The Seller has the full right, power, legal capacity
and authority to enter into and perform its obligations under this Notice,
including the transfer of the Option Shares to Purchaser, and to take any
action necessary or appropriate to effect the transactions referred to in or
contemplated by this Notice without the consent of any other person, entity or
governmental authority. The Seller has not entered into,
1
nor are the Option Shares subject to, any shareholders agreement, voting
agreement, or any agreement which gives another person any right to purchase
the Option Shares from the Seller.
2. REQUIRED CONSENTS. Other than the notification to the relevant foreign
exchange bank for the transfer of the Option Shares to Purchaser in accordance
with the provisions of the Foreign Investment Promotion Act ("FIPA") of the
Republic of Korea and a post-closing notification of the transfer of the Option
Shares to relevant Korean securities authorities, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority, or any other person or entity, is required to be made
or obtained by the Seller in connection with the sale of the Option Shares. The
Seller is not a party to or bound by any mortgage, lien, deed of trust, lease,
agreement, instrument, order, legend, condition, judgment or decree which
requires the consent of another to such sale or prohibits or requires the
consent of another to, or makes unduly burdensome, such sale.
The representatives and warranties set forth in this Notice shall survive
the payment of the Call Purchase Price to the Seller in connection with the
exercise of the Call Option pursuant to this Notice for a period of two (2)
years.
Dated:
---------------------------
SELLER'S NAME
By:
---------------------------------
Name:
Title:
2
