Securities Registration: Employee Benefit Plan (s-8)
August 06 2014 - 2:30PM
Edgar (US Regulatory)
As filed with the
Securities and Exchange Commission on August 6, 2014
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
________
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES
ACT OF 1933
PHOTRONICS, INC.
(Exact name of registrant as
specified in its charter)
CONNECTICUT
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06-0854886
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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15 Secor Road
Brookfield, CT 06804
(Address
of Principal Executive Offices)
Photronics, Inc. Employee
Stock Purchase Plan (as last amended on March 28, 2012)
Photronics, Inc.
2007 Long Term Equity Incentive Plan (as last amended on April 11, 2014)
(Full title of the plans)
Richelle E. Burr
Vice President, General Counsel
and Secretary
PHOTRONICS, INC.
15 Secor Road
Brookfield, CT 06804
(Name and address of agent for service)
(203) 775-9000
(Telephone number, including area
code, of agent for service)
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer, and smaller reporting company
in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
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Accelerated filer x
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a
smaller reporting company)
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1
CALCULATION OF REGISTRATION
FEE
Title of Securities to be
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Amount to be
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Proposed maximum
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Proposed maximum
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Amount
of
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Registered
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registered
(1)
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offering price per
share
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aggregate offering
price
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registration fee
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(4)
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(4)
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Common Stock, Par Value
$.01
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(2007 Long Term Equity
Incentive
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3,000,000 (2)
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$8.00
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$24,000,000
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$3,091.20
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Plan as last amended on
April 11,
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2014)
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Common Stock, Par Value
$.01
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(Employee Stock Purchase
Plan as
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300,000 (3)
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$8.00
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$2,400,000
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$309.12
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last
amended on March 28, 2012)
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Total
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3,300,000
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$8.00
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$26,400,000
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$3,400.32
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(1)
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Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described
herein.
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(2)
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Represents
3,000,000 shares of Common Stock, $0.01 par value, of Photronics, Inc.
(the Company) to be offered pursuant to the Companys 2007 Long Term
Equity Incentive Plan, as last amended on April 11, 2014.
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(3)
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Represents
300,000 shares of Common Stock, $0.01 par value, of Photronics, Inc. (the
Company) to be offered pursuant to the Companys Employee Stock Purchase
Plan, as last amended on March 28, 2012 (the Plan).
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(4)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457 (c) and (h) under the Securities Act of 1933, as amended
(the Securities Act). The Proposed Maximum Offering Price is based on
the average of the high and low sale prices of the Common Stock of the
Company as reported on the NASDAQ Stock Market on July 31,
2014.
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2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1.
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Plan Information.*
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Item 2.
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Registrant Information and Employee Plan
Annual Information.*
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____________________
*
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Information required by Part I to
be contained in the Section 10(a) prospectus is omitted from this
Registration Statement in accordance
with Rule 428 under the Securities Act and the Note to Part I of
Form
S-8.
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3
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of
Documents by Reference.
The following information filed by Photronics, Inc. (the Registrant or
Photronics) with the Securities and Exchange Commission (the Commission) is
incorporated herein by reference:
(a)
The Registrants annual report on Form 10-K for the fiscal year ended
November 3, 2013 (filed on January 3, 2014), including those sections
incorporated therein by reference to the Registrants Definitive Proxy Statement
on Schedule 14A filed on March 3, 2014 ;
(b) The Registrants quarterly reports on Form 10-Q for the fiscal
quarters ended February 2, 2014 (filed on March 6, 2014) and May 4, 2014 (filed
on June 6, 2014).
(c) The Registrants current reports on Form 8-K filed April 9, 2014 and
April 22, 2014.
(d) The description of the Registrant's common stock included in its
Registration Statement on Form S-3, filed on June 25, 2009.
In addition, all documents filed by the Registrant with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the Exchange Act) after the date of this Registration Statement and
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 into this
Registration Statement and to be a part hereof from the date of filing of such
documents with the Commission. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of
Securities.
Not applicable; the class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of
Named Experts and Counsel.
Except as described in Exhibit 5.1, none.
Item 6. Indemnification
of Directors and Officers.
Under applicable Connecticut law, the Registrant shall provide for
indemnification of its directors, officers, employees and agents. Applicable
Connecticut law requires the Registrant 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, and in all other cases that his conduct was at least not
opposed to 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. In
addition, Article IX of the Registrants By-laws provides that the Registrant
shall indemnify and reimburse shareholders, directors, officers, employees and
agents as required by Section 33-320a of the Stock Corporation Act of the State
of Connecticut. Finally, the Registrant maintains director and officer liability
insurance which provides insurance for the Registrant's directors and officers
in connection with claims brought against them in their capacity as such with
the Registrant.
4
Article Ninth of the Registrant'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 Registrant. 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 Section 33-840 of the Connecticut
Business Corporation 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 Registrant; (iv) constituted a
sustained and unexcused pattern of inattention that amounted to an abdication of
his duty; or (v) involved the improper distribution of Registrant 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.
Item 7. Exemption from
Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement are set forth below in
the Exhibits Index.
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933 (the Securities Act);
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(ii)
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To reflect in the
prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration Statement (or the
most recent post-effective amendment thereto); and
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(iii)
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To include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
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provided
,
however
, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
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(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered that remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial
bona
fide
offering thereof.
C. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling person of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
6
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-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Brookfield,
State of Connecticut, on the 6
th
day of August, 2014.
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PHOTRONICS,
INC.
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By /s/ Richelle E. Burr
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Richelle E. Burr
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Vice President, General Counsel
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and Secretary
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that
each person whose signature appears below constitutes and appoints Richelle E.
Burr and Sean T. Smith, and each of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to act, without
the other, for him and in his name, place and stead, in any and all capacities,
to sign any or all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
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
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Title
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Date
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Chairman of the Board of
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August 6, 2014
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/s/ Constantine S. Macricostas
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Directors and Chief Executive Officer
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Constantine S. Macricostas
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(Principal Executive Officer)
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Senior Vice President and
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August 6, 2014
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/s/ Sean T. Smith
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Chief Financial Officer
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Sean T. Smith
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(Principal Financial and
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Accounting Officer)
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/s/ Walter M. Fiederowicz
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Director
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August 6, 2014
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Walter M. Fiederowicz
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/s/ Joseph A. Fiorita, Jr.
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Director
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August 6, 2014
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Joseph A. Fiorita, Jr.
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/s/ George Macricostas
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Director
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August 6, 2014
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George Macricostas
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/s/ Mitchell G. Tyson
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Director
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August 6, 2014
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Mitchell G. Tyson
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/s/ Liang-Choo Hsia
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Director
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August 6, 2014
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Liang-Choo Hsia
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7
EXHIBITS INDEX
Exhibit No.
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Description
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3.1
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Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Registrants Annual Report on Form 10-K
for the fiscal year ended November 3, 2013 (Commission File Number
000-15451).
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3.2
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By-laws of the Registrant, (incorporated by
reference to Exhibit 3.2 to the Registrants Registration Statement on
Form S-1, File Number 33-11694, which was declared effective by the
Commission on March 10, 1987).
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4.1
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Photronics, Inc. Employee Stock Purchase Plan
(as last amended on March 28, 2012).
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4.2
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Photronics, Inc. 2007 Long Term Equity
Incentive Plan (as last amended on April 11, 2014).
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5.1
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Opinion of Richelle E. Burr, Esq.
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23.1
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Consent of Deloitte & Touche
LLP.
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23.2
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Consent of Richelle E. Burr,
Esq.
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(contained in Exhibit 5.1).
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24.1
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Power of Attorney (contained on the Signature
Page of this Registration Statement).
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9
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