<PAGE>
As filed with the Securities and Exchange Commission on June 5, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHOTON DYNAMICS, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-3007502
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1504 McCarthy Boulevard
San Jose, California 95035
(Address of Principal Executive Office Including Zip Code)
PHOTON DYNAMICS, INC.
1987 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
(Full titles of the plans)
Howard M. Bailey
Chief Financial Officer
Photon Dynamics, Inc.
1504 McCarthy Boulevard
San Jose, California 95035
(Name and address of agent for service)
(408) 433-3922
(Telephone number, including area code, of agent for service)
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share (1) price (1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,118,821 $9.75 $10,908,505 $3,762
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933.
Page 1 of 9 Pages.
Exhibit Index Located at Page 8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
There are hereby incorporated by reference in this Registration Statement
the following documents and information previously filed with the Securities and
Exchange Commission (the "Commission"):
1. The Registrant's Prospectus, dated November 15, 1995, and filed with
the Commission on November 17, 1995 pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"); and
2. The description of the Registrant's Common Stock to be offered
hereby which is contained in its Registration Statement on Form 8-A filed with
the Commission on November 14, 1995, as amended thereafter.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement, and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Except as superseded or modified herein, any statement contained in any
document incorporated by reference herein or deemed to be 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 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 document.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
The indemnification and liabiliy of the Company's directors and officers
will be governed by California law.
Section 317 of the California Corporations Code authorizes a corporation
to indemnify its directors, officers, employees or other agents in terms
sufficiently broad to permit indemnification (including reimbursement for
expenses incurred) under certain circumstances for liabilities arising under the
II-1
<PAGE>
Securities Act of 1933, as amended (the "Securities Act"). The Company's
Amended and Restated Articles of Incorporation (Exhibit 4.1 hereto), and Bylaws,
as amended (Exhibit 4.2 hereto), provide for indemnification of its directors
and officers to the maximum extent permitted by the California Corporations
Code. In addition, the Company has entered into Indemnification Agreements with
its directors and officers. The Underwriting Agreement provides for
indemnification by the Underwriters of the Registrant and its officers and
directors for certain liabilities arising under the Act or otherwise. The First
Amended and Restated Investor Rights Agreement entered into by the Company and
certain holders (the "Holders") of its Common and Preferred Stock, provides for
cross-indemnification of the Holders and of the Company, its officers and
directors for certain liabilities arising under the Securities Act or otherwise.
The registrant intends to obtain prior to the effective date of the
Registration Statement a policy of directors' and officers' liability insurance
that insures the Company's directors and officers against the cost of defense,
settlement or payment of a judgment under certain circumstances.
Item 7. Exemption From Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
Exhibit No. Description
=========== ===========
4.1 Articles of Incorporation of the Registrant (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on Form SB-2
(Commission File No. 33-98232-LA).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registration Statement).
5.1 Opinion of Morrison & Foerster.
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors (see page II-6).
24.1 Powers of Attorney (see pages II-4 and II-5).
Item 9. Undertakings.
-------------
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-2
<PAGE>
(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,
represent 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;
Provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in 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) 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.
(3) 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.
(4) 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 that is
incorporated by reference in this Registration Statement 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.
(5) That, 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Photon Dynamics, Inc. 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 City of San Jose, California, on
June 5, 1996.
PHOTON DYNAMICS, INC.
By /s/ Howard M. Bailey
---------------------------------
Howard M. Bailey
Chief Executive Officer
POWER OF ATTORNEY
-----------------
Each person whose signature appears below constitutes and appoints Howard
M. Bailey and Francois J. Henley, and each of them, as his attorneys-in-fact,
each with the power of substitution, for him in any and all capacities, to sign
any amendment to this Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, 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 or any of them, or their or his 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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ----------------------------- --------------------------------- -------------
<S> <C> <C>
/s/ Howard M. Bailey
- ----------------------------- Chief Executive Officer June 4, 1996
Howard M. Bailey (Principal Executive Officer)
/s/ Howard M. Bailey
- ----------------------------- Chief Financial Officer and June 4, 1996
Howard M. Bailey Secretary
(Principal Financial Officer)
/s/ Francois J. Henley
- ----------------------------- Chief Technology Officer and June 4, 1996
Francois J. Henley Director
/s/ E. Floyd Kvamme
- ----------------------------- Chairman of the Board May 31, 1996
E. Floyd Kvamme
/s/ Barry L. Cox
- ----------------------------- Director June 4, 1996
Barry L. Cox
/s/ Michael J. Kim
- ----------------------------- Director June 3, 1996
Michael J. Kim
/s/ Steven M. Krausz
- ----------------------------- Director May 31, 1996
Steven M. Krausz
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ----------------------------- -------------------------------- -------------
<S> <C> <C>
/s/ Malcolm Thompson
- ----------------------------- Director May 31, 1996
Malcolm Thompson
</TABLE>
II-5
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Photon Dynamics, Inc. 1987 Stock Option Plan and 1995
Stock Option Plan of our report dated October 11, 1995, except as to Reverse
Stock Split under Note 1 as to which the date is November 13, 1995, with respect
to the consolidated financial statements of Photon Dynamics, Inc., for the years
ended September 30, 1995 and 1994, included in the Company's Registration
Statement (Form SB-2 No. 33-98232-LA), filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
San Jose, California
June 5, 1996
II-6
<PAGE>
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Document Numbered Page
====== ======== =============
<S> <C> <C>
4.1 Articles of Incorporation of the Registrant (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on Form SB-2
(Commission File No. 33-98232-LA) which became effective on
November 15, 1995 (the "Registration Statement")).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registration Statement).
5.1 Opinion of Morrison & Foerster.
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants (see pg. II-6).
24.1 Powers of Attorney (see pages II-3 and II-4).
</TABLE>
II-7
<PAGE>
EXHIBIT 5.1
June 5, 1996
Photon Dynamics, Inc.
1504 McCarthy Boulevard
San Jose, California 95035
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Photon Dynamics, Inc., a California corporation (the "Company"), with the
Securities and Exchange Commission on June 5, 1996 (the "Registration
Statement"), relating to the registration under the Securities Act of 1933, as
amended, of 1,118,821 shares of the Company's Common Stock (the "Shares"). The
Shares are reserved for issuance under the Company's 1987 Stock Option Plan and
1995 Stock Option Plan. As counsel to the Company, we have examined the
proceedings taken by the Company in connection with the registration of the
Shares.
It is our opinion that the Shares, when issued and sold in the manner
described in the Registration Statement and the related Prospectus, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us in the
Registration Statement and any amendments thereto.
Very truly yours,
Morrison & Foerster LLP
