<PAGE>
As filed with the Securities and Exchange Commission on February 24, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DUPONT PHOTOMASKS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2238819
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 TEXAS AVENUE
ROUND ROCK, TEXAS 78664
(Address of Principal Executive Offices)
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
(Full title of the plan)
<TABLE>
<S> <C>
J. Michael Hardinger Copy to:
Chairman of the Board and Chief Executive Officer Ronald G. Skloss, Esq.
100 Texas Avenue Brobeck, Phleger & Harrison LLP
Round Rock, Texas 78664 301 Congress Avenue
(512) 310-6559 Suite 1200
(Name, address and telephone number, Austin, Texas 78701
including area code, of agent for service) (512) 477-5495
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Be Amount to be Offering Price Aggregate Offering Registration
Registered Registration (1) per Share(2) Price(2) Fee(2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock, $0.01
par value per share.............. 3,000,000 $52.57 $76,690,869.59 $22,621.88
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities Act"),
this Registration Statement is deemed to include additional shares of
Common Stock which become issuable under the terms of the 1997 Stock Option
and Restricted Stock Plan (the "1997 Plan") to prevent dilution resulting
from any future stock split, stock dividend, recapitalization or similar
transaction effected without the receipt of consideration which results
in an increase in the number of outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act. Accordingly, the
price per share of the Common Stock offered hereunder pursuant to the 1997
Plan is based upon (i) 2,521,847 shares of Common Stock originally reserved
for issuance under the 1997 Plan that are not currently subject to
outstanding options and have not been issued as restricted stock grants
under the 1997 Plan, at a price per share of $39.38, which is based upon
the average of the high and low prices reported for the Common Stock on
the NASDAQ National Market on February 17, 1998; and
<PAGE>
(ii) 478,153 shares of Common Stock reserved for issuance under the 1997
Plan subject to stock options already granted thereunder at a weighted
average exercise price of $52.57 per share. The 3,000,000 shares
reserved for issuance under the 1997 Plan include 1,212,696 shares
previously issuable under the registrant's Stock Performance Plan (the
"Predecessor Plan"), which shares ceased to be available for issuance
under the Predecessor Plan (and were effectively reserved for issuance
under the 1997 Plan) at the time of adoption of the 1997 Plan on June 9,
1997. Pursuant to General Instruction E to Form S-8, the registration fee
has been calculated solely on the basis of the additional 1,787,304 shares
of Common Stock authorized for issuance under the 1997 Plan and not
previously reserved under the Predecessor Plan.
(3) The registration fee applicable to the 1,212,696 shares previously reserved
under the Predecessor Plan was paid in connection with the previous
registration of such shares on Form S-8 (Reg. No. 333-21847).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Information by Reference
The following documents, which DuPont Photomasks, Inc. (the "Registrant")
previously filed with the Securities and Exchange Commission (the "SEC"), are
hereby incorporated and made a part of this Registration Statement by reference:
1. Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997.
2. Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1997.
3. Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended December 31, 1997.
4. The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A (Reg. No. 0-20839), dated June 10,
1996, and filed with the SEC pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act"), in which is described the
terms, rights and provisions applicable to the Registrant's Common
Stock.
All documents filed by Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of 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 hereunder have been sold or which deregisters all such
securities then remaining unsold will be deemed to be incorporated by reference
in this Registration Statement and will be part hereof from the date of filing
of such documents. Any statement contained herein or in any document
incorporated by reference herein that is modified or superseded by a statement
in any document subsequently filed by Registrant will be deemed to be modified
or superseded to the same extent for purposes of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interest of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Officers and Directors
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify any person, including any
officer or director, who is, or is threatened to be made, party to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of such corporation), by reason of the fact that such person was
an officer, director, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation. The indemnity may include expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such officer, director, employee or
agent acted in good faith and in a manner they reasonably believed to be in
or not opposed to the corporation's best interest and, for criminal
proceedings, had no reasonable cause to believe that their conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation. Where an
officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify them against
the expenses which such officer or director actually and reasonably incurred.
<PAGE>
The Certificate of Incorporation of the Registrant provides that no
director of the Registrant will be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is
not permitted under the DGCL as currently in effect or as the same may
hereafter be amended. Pursuant to Section 102(b)(7) of the DGCL, the
Certificate of Incorporation of the Registrant eliminates such liability,
except for liabilities related to breach of duty of loyalty, actions not in
good faith and certain other liabilities.
The Registrant has purchased a directors' and officers' liability
insurance policy. The Bylaws of the Registrant provide for indemnification
of the officers and directors of the Company to the fullest extent permitted
by the applicable law. In addition, the Company has entered into
indemnification agreements with each of its directors, pursuant to which they
are entitled to advances for the costs of defending actions against them in
addition to that provided by the indemnification provisions in the
Certificate of Incorporation or the Company's officers' and directors'
insurance policy.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
The exhibits listed in the accompanying index to exhibits are filed or
incorporated as a part of this Registration Statement.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are made, a
post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Securities Act"), 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrants annual report pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 SEC 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 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
<PAGE>
appropriate jurisdiction the question of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Round Rock, Texas, on February 24, 1998:
DUPONT PHOTOMASKS, INC.
By: /s/ J. Michael Hardinger
-----------------------------------
J. Michael Hardinger, Chairman
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints J. Michael Hardinger and David
S. Gino, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(both pre-effective and post effective) to this Registration Statement, and
to file the same with all exhibits, thereto, and all documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact and agents, 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 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 either
of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof. This Power of Attorney may be signed in
multiple counterparts.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated:
/s/ J. Michael Hardinger February 24, 1998
- ------------------------------
J. Michael Hardinger
Chairman and Chief Executive Officer, Director
(Principal Executive Officer)
/s/ Preston M. Adcox February 24, 1998
- ------------------------------
Preston M. Adcox
President and Chief Operating Officer
/s/ David S. Gino February 24, 1998
- ------------------------------
David S. Gino
Executive Vice President-Finance and Chief Financial
Officer (Principal Financial and Accounting Officer)
/s/ John L. Doyle February 24, 1998
- ------------------------------
John L. Doyle
Director
/s/ John W. Himes February 24, 1998
- ------------------------------
John W. Himes
Director
<PAGE>
/s/ John C. Hodgson February 24, 1998
- ------------------------------
John C. Hodgson
Director
/s/ Peter G. Kehoe February 24, 1998
- ------------------------------
Peter G. Kehoe
Director
/s/ Gary W. Pankonien February 24, 1998
- ------------------------------
Gary W. Pankonien
Director
/s/ John C. Sargent February 24, 1998
- ------------------------------
John C. Sargent
Director
/s/ Marshall C. Tumer February 24, 1998
- ------------------------------
Marshall C. Tumer
Director
/s/ Susan A. Vladuchick February 24, 1998
- ------------------------------
Susan A. Vladuchick
Director
<PAGE>
INDEX TO EXHIBITS
An asterisk below indicates an exhibit previously filed with the Securities
and Exchange Commission as an exhibit to Registrant's Annual Report on Form
10-K for the fiscal year ended June 30, 1997, such exhibit being incorporated
from the exhibits to the Form 10-K by reference.
Exhibit
Number Description of Exhibit
4.1 Instruments defining the Rights of Security holders. (Reference is
made to Registrant's Registration Statement on Form 8-A (Reg.
No. 0-20839), dated June 10, 1996, together with the exhibits thereto,
which are incorporated herein by reference pursuant to Item 3.4
hereof.)
*4.2 1997 Stock Option and Restricted Stock Plan [Exhibit 10.15 to the
Annual Report on Form 10-K for the fiscal year ended June 30, 1997]
4.3 Form of Non-Qualified Stock Option Agreement for use under the 1997
Stock Option and Restricted Stock Plan
4.4 Form of Incentive Stock Option Agreement for use under the
1997 Stock Option and Restricted Stock Plan
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Brobeck, Phleger & Harrison LLP [included in the
firm's opinion filed as Exhibit 5.1]
24.1 Power of Attorney (see signature page of this Registration Statement)
<PAGE>
EXHIBIT 4.3
DUPONT PHOTOMASKS, INC.
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
NON-QUALIFIED STOCK OPTION
AGREEMENT
This document sets forth the Non-qualified Stock Option Terms And
Conditions (hereinafter "T&Cs") effective as of July 28, 1997, by and between
DUPONT PHOTOMASKS, INC., a Company organized under the laws of Delaware (the
"Company"), and ________________ an individual (the "Grantee");
BACKGROUND
The Company's Board of Directors and stockholders have approved the
Company's 1997 Stock Option and Restricted Stock Plan (the "Plan"), which
provides for the grant of options to purchase the common stock, par value $.01,
of the Company ("Common Stock") (a) to provide greater incentive for employees
of the Company who are or will be primarily responsible for the growth and
success of the business to exert their best efforts on behalf of the Company,
and (b) to further the identity of interests of such employees with those of
the Company stockholders generally by encouraging them to acquire stock
ownership in the Company.
The Board of Directors or its committee has selected the Grantee to
participate in the Plan and has granted the stock option described in these
T&Cs to the Grantee pursuant to the following terms and conditions:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in the Plan
and hereinafter, the Company hereby grants to the Grantee a nonqualified option
(the "Option") to purchase all or any part of an aggregate number of _______
shares of Common Stock (such shares, as increased or decreased in accordance
with Section 7 hereof, being referred to hereinafter as the "Option Shares") at
an exercise price of $______ per share (hereinafter the "Exercise Price").
2. OPTION EXERCISE PERIOD. The Option shall be first vested and exercisable as
to twenty-five percent (25%) of the Option Shares on _________, and shall
become vested and exercisable as to an additional twenty-five percent (25%) of
the Option Shares upon the expiration of each additional year thereafter until
___________, at which time the Option shall be vested and exercisable in full.
The Option shall expire and terminate as to any Option Shares not purchased by
the Grantee on or before ______________ (the "Expiration Date"), subject to
earlier termination as set forth herein.
3. METHOD OF EXERCISING THE OPTION. The Company has retained a Plan
Administrator to administer the Plan. The Option shall be exercised by the
Grantee delivering to the Plan Administrator such authorization to Plan
Administrator as required to process a cash or
<PAGE>
cashless exercise. The minimum number of options you may exercise at any one
time is twenty (20) shares.
4. TRANSFERABILITY. The Option shall not be transferable or assignable, in
whole or in part, except as otherwise provided in these T&Cs. The Option shall
be exercisable (i) only by the Grantee during his lifetime, or (ii) in the
event of his death, by his heirs, representatives, distributees, or legatees in
accordance with his will or the laws of descent and distribution.
5. TAX WITHHOLDING. Any provision of these T&Cs to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that are required by laws or
regulations of any governmental authority, (federal, state or local, domestic
or foreign) to withhold taxes in connection with any of the Options subject
hereto.
6. NO RIGHTS AS STOCKHOLDER. The Grantee shall not have any rights as a
stockholder with respect to any of the Option Shares until the date of issuance
by the Company to the Grantee of a stock certificate representing such Option
Shares. Except as otherwise provided in Section 9 hereof, the Grantee shall not
be entitled to any dividends, cash or otherwise, or any adjustment of the
Option Shares for such dividends, if the record date therefor is prior to the
date of issuance of such stock certificate. Upon valid exercise of the Option
by the Grantee, the Company agrees to cause a valid stock certificate for the
number of Option Shares then purchased to be issued and delivered to the
Grantee within five (5) business days thereafter.
7. CORPORATE PROCEEDINGS OF THE COMPANY.
(a) The existence of the Option shall not affect in any way the right or
power of the Company or its officers, directors and shareholders, as the case
may be, to (i) make or authorize any adjustments, recapitalizations,
reorganizations or other changes in the capital structure or business of the
Company, (ii) participate in any merger or consolidation of the Company, (iii)
issue any Common Stock, bonds, debentures, preferred or prior preference stock
or any other securities affecting the Common Stock or the rights of holders
thereof, (iv) dissolve or liquidate the Company, (v) sell or transfer all or
any part of the assets or business of the Company, or (vi) perform any other
corporate act or proceedings, whether of a similar character or otherwise.
(b) If the Company merges into or with or consolidates with (such events
collectively referred herein as a "Merger") any corporation or corporations and
is not the surviving corporation, or the Company becomes a wholly-owned
subsidiary of any corporation, then the surviving or parent corporation may
assume the Option or substitute a new option of the surviving or parent
corporation for the Option; provided, however, that the excess of the aggregate
fair market value of the securities subject to the Option immediately after
such assumption, or the new option immediately after such substitution, over
the aggregate Exercise Price of such shares must be, based upon a good faith
determination by the Board of Directors of the Company, not less than the
excess of the aggregate fair market value of the
<PAGE>
Common Stock subject to the Option immediately before such substitution or
assumption over the aggregate Exercise Price of such Common Stock.
(c) In the event that the surviving or parent corporation does not utilize
the provisions of (b) above, or in the event of a dissolution or liquidation of
the Company, the Company shall cause written notice of such Merger or
dissolution or liquidation (and the material terms and conditions thereof) to
be delivered to the Grantee at least ten (10) days prior to the proposed
effective date (the "Effective Date") of such event. The Grantee shall be
entitled to exercise the Option until the Effective Date. To the extent that
the Merger or liquidation is consummated after the Effective Date, the Option
shall terminate and the Company shall have no further obligations of any type
hereunder. The provisions of this paragraph shall not apply to any merger or
reorganization, the principal purpose of which is to change the jurisdiction of
the domicile of the Company.
(d) If, while the Option is outstanding, the Company shall effect a
subdivision or consolidation of the shares of Common Stock or other capital
readjustment, the payment of a common stock dividend, or other increase or
reduction of the number of shares of Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (i) in the
event of an increase in the number of shares of Common Stock outstanding, the
number of Option Shares shall be proportionately increased, and the per share
Exercise Price shall be proportionately reduced, and (ii) in the event of a
reduction in the number of shares of Common Stock outstanding, the number of
Option Shares shall be proportionately reduced, and the per share Exercise
Price shall be proportionately increased. No fractional share of Common Stock
shall be issued upon any such exercise and the Exercise Price shall be
appropriately reduced on account of any fractional share not issued.
(e) The issuance by the Company of shares of stock of any class of
securities convertible into shares of stock of any class, including Common
Stock, for cash, property, labor or services rendered, either upon direct sale
or upon the exercise of rights, options, or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number of Option Shares or the
Exercise Price.
8. REGISTRATION RIGHTS. The Grantee shall have no registration rights with
respect to the Option Shares.
9. TERMINATION.
(a) If the Grantee for any reason whatsoever, ceases to be employed by the
Company or a plan company, the Grantee will forfeit all rights to and under the
unvested portion of the Option. (This forfeiture shall not occur in the case
of death, retirement by separation from service from the Company or a plan
company at age 62 or greater with five (5) years service, or termination by the
Company or a plan company due to divestiture or lack of work.)
<PAGE>
(b) In the event that the Grantee dies, retires or is terminated, whichever
shall first occur, and such death occurs more than six (6) months after the
date of these T&Cs or such retirement or termination occurs more than one (1)
year after the date of these T&Cs, and prior to such time the Grantee was
employed at all times from the date of this Agreement until the date of such
death, retirement or termination, the Option will become immediately
exercisable in full. The Option may be exercised by Grantee or a legatee or
legatees of the Grantee under the Grantee's will, or by the Grantee's personal
representatives or distributees, at any time within three (3) years after the
date of death, retirement or termination, or the Expiration Date, whichever is
earlier, and if not so exercised, the Option shall thereupon terminate.
Nothing in (a) or (b) shall extend the time for exercising the Option
granted pursuant to these T&Cs beyond the Expiration Date.
10. PLAN INCORPORATED. The Grantee accepts the Option granted herein subject
to all the provisions of the Plan, which are incorporated herein.
11. EMPLOYMENT RELATIONSHIP. The rights and obligations arising under these
T&Cs are not intended to and do not affect the employment relationship that
otherwise exists between the Company and the Grantee, whether such employment
relationship is at will or defined by an employment contract. Moreover, these
T&Cs are not intended to and do not amend any existing employment contract
between the Company and the Grantee; to the extent there is a conflict between
these T&Cs and such an employment contract, the employment contract shall
govern and take priority.
12. TRANSFERABILITY; BINDING EFFECT. The Option shall be transferable only as
set forth in Section 4. Subject to the foregoing, all covenants, terms,
agreements and conditions of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the Company and the Grantee and their
respective successors and assigns.
13. APPLICABLE LAW. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THESE
T&Cs SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
14. ENTIRE AGREEMENT. These T&Cs embody the entire agreement and understanding
between the Company and the Grantee relating to the subject matter hereof.
David S. Gino
Executive Vice President
Chief Financial Officer
<PAGE>
EXHIBIT 4.4
DUPONT PHOTOMASKS, INC.
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
INCENTIVE STOCK OPTION
AGREEMENT
This Agreement is made effective as of the 28th day of July, 1997 (the "Grant
Date") by DuPont Photomasks, Inc., a Delaware corporation (the "Company"), for
the benefit of ___________________ (the "Grantee").
To carry out the purposes of the DuPont Photomasks, Inc. 1997 Stock Option and
Restricted Stock Plan (the "Plan"), the Board of Directors or the Committee has
selected the Grantee to participate in the Plan and has granted to the Grantee,
in consideration of the mutual agreements herein, the stock options described
in this Agreement pursuant to the following terms and conditions:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in the Plan
and hereinafter, the Company hereby grants to the Grantee the right and option
(the "Option") to purchase all or any part of an aggregate number of _______
shares of Common Stock (such shares, as increased or decreased in accordance
with Section 8 of the Plan, being referred to hereinafter as the "Option
Shares") at an exercise price of $________ per share (hereinafter the "Exercise
Price"). It is intended that the Option qualify as an "incentive stock option"
("ISO") within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). The Company does not guarantee or warrant the tax
treatment of the Option or the Option Shares, and recommends that Grantee
consult with his own tax advisor.
2. EXERCISE OF OPTION.
(a) The Option shall be first vested and exercisable as to twenty-five
percent (25%) of the Option Shares one (1) year after the Grant Date, and shall
become vested and exercisable as to an additional twenty-five percent (25%) of
the Option Shares upon the expiration of each additional year thereafter until
the fourth anniversary of the Grant Date, at which time the Option shall be
vested and exercisable in full.
(b) Subject to the earlier expiration of the Option as herein provided and
subject to the terms and conditions contained herein, the Option may be
exercised by written notice (which complies in all respects with the provisions
of this Agreement) to the Company at its principal executive office addressed
to the attention of the Secretary of the Company, identifying the purchase,
such exercise to be effective at the time of receipt of such written notice at
the Company's principal executive office during normal business hours. The
notice shall not be considered to be properly given unless accompanied by all
documentation deemed appropriate by the Committee to reflect exercise of the
Option, including compliance with all applicable laws, rules and regulations.
<PAGE>
(c) The vesting and exercisability of the Option shall be subject to
acceleration on the terms and conditions stated in the Plan. Notwithstanding
anything herein to the contrary, however, in no event shall the Option, or any
part thereof, be exercisable after the tenth anniversary of the Grant Date (the
"Expiration Date").
(d) Except as provided herein, the Option may not be exercised at any time
unless the Grantee shall have been in the continuous employ of the Company, or
a parent or a subsidiary of the Company, from the Grant Date to the date of the
exercise of the Option.
(e) This Agreement has been entered into with the intention that the total
fair market value (determined as of the date of grant) of stock with respect to
which ISO's (whether granted under this Agreement or under any other agreement
or plan of the Company or any of its subsidiaries) are first exercisable by
Grantee in any one calendar year shall not exceed $100,000. In the event that
the Grantee's total ISO's exceed the $100,000 limit in any year (whether due to
acceleration of exercisability, miscalculation or error) the amount of ISO's
that exceed such limit shall be treated as non-qualified stock options. The
ISO's granted earliest (whether under this Agreement or any other agreement)
shall be applied first to the $100,000 limit. In the event that only a portion
of the options granted at the same time can be applied to the $100,000 limit,
the Company shall issue separate share certificate(s) for such number of shares
as does not exceed the $100,000 limit, and shall designate such shares as ISO
stock in its share transfer records.
3. PAYMENT OF EXERCISE PRICE. Upon exercise of the Option, the full Exercise
Price for the Option Shares with respect to which the Option is being exercised
shall be payable to the Company (i) in cash or by check payable and acceptable
to the Company, (ii) by tendering to the Company shares of Common Stock owned
by the Grantee, for at least six (6) months, having an aggregate Market Value
Per Share as of the date of exercise and tender that is not greater than the
Exercise Price for the shares with respect to which the Option is being
exercised and by paying any remaining amount of the Exercise Price as provided
above, or (iii) subject to the approval of the Committee, by the Grantee
delivering to the Company a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company cash or
a check payable and acceptable to the Company to pay the option exercise price,
provided that the Grantee and the broker shall comply with such procedures and
enter into such agreements of indemnity and other agreements as the Committee
shall prescribe as a condition of such payment procedure. In lieu of (ii)
above, the Committee may, upon confirming that the Grantee owns the number of
additional shares being tendered, authorize the issuance of a new certificate
for the number of shares being acquired pursuant to the exercise of the Option
less the number of shares being tendered upon the exercise and return to the
Grantee (or not require surrender of) the certificate for the shares being
tendered upon the exercise. Payment instructions will be received subject to
collection.
4. NON-TRANSFERABILITY. The Option shall not be transferable or assignable by
the Grantee, in whole or in part, except as otherwise provided in this
Agreement or in the Plan. Except as otherwise provided herein or in the Plan,
the Option shall be exercisable (i) only by the
<PAGE>
Grantee during his or her lifetime, or (ii) in the event of his or her death,
by his or her heirs, representatives, distributes, or legatees in accordance
with his or her will or the laws of descent and distribution (but only to the
extent that the Option would be exercisable by the Grantee under Section 2
above).
5. TAX WITHHOLDING. Any provision of this Agreement to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign to withhold in connection with any of the Options subject hereto.
6. NO RIGHTS AS STOCKHOLDER. The Grantee shall not have any rights as a
stockholder with respect to any of the Option Shares until the date of issuance
by the Company to the Grantee of a stock certificate representing such Option
Shares. Except as otherwise provided herein or in the Plan, the Grantee shall
not be entitled to any dividends, cash or otherwise, or any adjustment of the
Option Shares for such dividends, if the record date therefor is prior to the
date of issuance of such stock certificate. Upon valid exercise of the Option
by the Grantee, the Company agrees to cause a valid stock certificate for the
number of Option Shares then purchased to be issued and delivered to the
Grantee within five (5) business days thereafter.
7. TERMINATION.
(a) If the Grantee's employment with the Company is terminated for reasons
other than (i) permanent disability within the meaning of Section 22(e)(3) of
the Code or (ii) death, the Option shall be exercisable, subject to the
Expiration Date, only during the period of three (3) months following such
termination and only to the extent the Option was exercisable on the
termination date; provided, however, that the Option will immediately terminate
if the Grantee is terminated for cause.
(b) If the Grantee's employment with the Company is terminated due to
permanent disability, the Grantee shall have the right to exercise the Option,
to the extent the Option was exercisable on the termination date, through the
Expiration Date; provided, however, that the Option must be exercised during
the period of 12 months following such termination in order to qualify as an
incentive stock option under the Code. Whether any termination of employment
is due to retirement or permanent disability, and whether an authorized leave
of absence or absence on military or government service or for other reasons
shall constitute a termination of employment, for the purposes of the Plan
shall be determined by the Committee.
(c) If the Grantee shall die while entitled to exercise the Option, the
Grantee's estate, personal representative or beneficiary, as the case may be,
shall have the right to exercise the Option, to the extent the Option was
exercisable on the date of the Grantee's death, through the Expiration Date;
provided, however, that the Option must be exercised during the period of 12
months following the date of the Grantee's death in order to qualify as an
incentive stock option under the Code.
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(d) Except as provided otherwise provided in this Section 7, to the extent
the Option is not exercisable on the termination of employment, the Option, or
applicable portion thereof, shall be terminated and forfeited in full.
8. DISPOSITION OF STOCK AFTER EXERCISE. The Grantee may experience adverse tax
consequences if any Option Shares are disposed of within two (2) years after
the Grant Date or within one (1) year after the date of exercise of the Option.
SHOULD GRANTEE DISPOSE OF ANY OPTION SHARES PRIOR TO THE EXPIRATION OF SUCH
HOLDING PERIOD, GRANTEE AGREES TO NOTIFY COMPANY OF SUCH DISPOSITION SO THAT
THE COMPANY MAY COMPLY WITH ANY REPORTING REQUIREMENTS AND TAKE ADVANTAGE OF
ANY TAX DEDUCTIONS SUCH ACCELERATED ACTION MAY TRIGGER.
9. PLAN INCORPORATED. The Option granted herein is subject to all the
provisions of the Plan, which are incorporated herein. In the event of
conflict between this Agreement and the Plan, the terms of the Plan shall
control. All undefined capitalized terms used herein shall have the meaning
assigned to them in the Plan.
10. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, the Grantee shall
be considered to be in the employment of the Company as long as the Grantee
remains an employee of either the Company, a parent or subsidiary corporation
(as defined in Section 424 of the Code) of the Company, or a corporation or a
parent or subsidiary of such corporation assuming or substituting a new
agreement for this Agreement. Any question as to whether and when there has
been a termination of such employment, for purposes of this Agreement, and the
cause of such termination, for purposes of this Agreement, shall be determined
by the Board, and its determination shall be final. Nothing herein shall give
the Grantee any right to continued employment or affect in any manner the right
of the Company or any subsidiary or parent corporation to terminate the
employment of the Grantee.
11. NOTICES. All notices, demands and other communications to the Company
required or permitted hereunder, shall be deemed to have been properly given or
delivered when delivered personally or sent by certified or registered mail,
return receipt requested with all postage fully prepaid, addressed to Company
as follows:
Office of General Counsel and Secretary
100 Texas Avenue
Round Rock, Texas 78664
12. TRANSFERABILITY; BINDING EFFECT. The Option shall be transferable only as
set forth herein or in the Plan. Subject to the foregoing, all covenants,
terms, agreements and conditions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the Company and the Grantee and their
respective successors and assigns.
13. APPLICABLE LAW. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the Company and the Grantee relating to the subject
matter hereof.
15. CAPTIONS. The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
David S. Gino
Executive Vice President
Chief Financial Officer
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EXHIBIT 5.1
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON, LLP
February 24, 1998
DuPont Photomasks, Inc.
100 Texas Avenue
Round Rock, Texas 78664
Re: DuPont Photomasks, Inc. --
Registration Statement for Offering of
3,000,000 Shares of Common Stock
--------------------------------
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of 3,000,000 shares of Common
Stock of DuPont Photomasks, Inc. (the "Company") authorized for issuance
under the Company's 1997 Stock Option and Restricted Stock Plan (the "Plan").
We advise you that, in our opinion, when such shares have been issued and
sold pursuant to the applicable provisions of the Plan and in accordance with
the Registration Statement, such shares will be validly issued, fully paid
and non-assessable shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 29, 1997, which appears
in the Annual Report on Form 10-K of DuPont Photomasks, Inc. for the
year ended June 30, 1997.
PRICE WATERHOUSE LLP
Austin, Texas
February 24, 1998
