<PAGE>
As filed with the Securities and Exchange Commission on May 5, 1999.
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.)
131 OLD SETTLERS BOULEVARD
ROUND ROCK, TEXAS 78664
(Address of Principal Executive Offices)
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
John M. Lynn Copy to:
Executive Vice President and General Counsel Ronald G. Skloss, Esq.
131 Old Settlers Boulevard Brobeck, Phleger & Harrison LLP
Round Rock, Texas 78664 301 Congress Avenue
(512) 310-6500 Suite 1200
(Name, address and telephone number, Austin, Texas 78701
including area code, of agent for service) (512) 477-5495
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Be Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered(l) per Share(2) Price(2) Fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock,
$0.01 par value per share......... 1,500,000 $43.375 $65,062,500 $18,087.38
</TABLE>
(1) Under Rule 416 of the Securities Act of 1933, this registration statement
is deemed to include additional shares of common stock issuable under the
terms of the 1998 Employee Stock Purchase Plan to prevent dilution
resulting from any future stock split, stock dividend, recapitalization or
similar transaction which occurs 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 under
Rule 457(c) and (h) of the Securities Act of 1933. Accordingly, the price
per share of the common stock offered under the plan is based upon
1,500,000 shares of common stock reserved for issuance under the plan at a
price per share of $43.375, which is the average of the high and low prices
reported for the common stock on the NASDAQ National Market on May 3, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Information by Reference
The following documents, which we previously filed with the Securities and
Exchange Commission, are incorporated and made a part of this registration
statement by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended June 30,
1998.
2. Our Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1998.
3. Our Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 1998.
4. Our Current Reports on Form 8-K dated November 2, 1998 and
February 18, 1999.
5. The description of our common stock contained in our Registration
Statement on Form 8-A (Reg. No. 0-20839), which describes the
terms, rights and provisions applicable to our common stock.
In addition, we incorporate by reference in this registration statement all
documents that we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities have been sold or which deregisters all such securities then
remaining unsold. 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 us 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>
Our Certificate of Incorporation provides that no director will be
personally liable to us or our 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, our Certificate of Incorporation eliminates such liability, except for
liabilities related to breach of duty of loyalty, actions not in good faith and
certain other liabilities.
We have purchased a directors' and officers' liability insurance policy.
Our Bylaws provide for indemnification of our officers and directors to the
fullest extent permitted by the applicable law. In addition, we have entered
into indemnification agreements with each of our 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 our 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
We hereby undertake:
(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, 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.
We hereby undertake that, for purposes of determining any liability under
the Securities Act of 1933, each filing of our annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 which 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
of 1933 may be permitted to directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC 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
us of expenses incurred or paid by a director, officer or controlling person 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, we 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 of whether such indemnification by us is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify that
we have reasonable grounds to believe that we meet all the requirements for
filing on Form S-8 and have duly caused this registration statement to be signed
on our behalf by the undersigned, thereunto duly authorized, in the City of
Round Rock, Texas, on May 5, 1999:
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:
<TABLE>
<CAPTION>
<S> <C>
/s/ J. Michael Hardinger
- --------------------------
J. Michael Hardinger May 5, 1999
Chairman and Chief Executive Officer, Director
(Principal Executive Officer)
/s/ David S. Gino
- --------------------------
David S. Gino May 5, 1999
Executive Vice President-Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ John L. Doyle
- --------------------------
John L. Doyle May 5, 1999
Director
/s/ John W. Himes
- --------------------------
John W. Himes May 5, 1999
Director
/s/ John C. Hodgson
- --------------------------
John C. Hodgson May 5, 1999
Director
/s/ Gary W. Pankonien
- --------------------------
Gary W. Pankonien May 5, 1999
<PAGE>
Director
/s/ John C. Sargent
- --------------------------
John C. Sargent May 5, 1999
Director
/s/ Marshall C. Turner
- --------------------------
Marshall C. Turner May 5, 1999
Director
/s/ Susan A. Vladuchick
- --------------------------
Susan A. Vladuchick May 5, 1999
Director
</TABLE>
<PAGE>
INDEX TO EXHIBITS
An asterisk below indicates an exhibit previously filed with the Securities and
Exchange Commission as an exhibit to our Annual Report on Form 10-K for the
fiscal year ended June 30, 1998, such exhibit being incorporated from the
exhibits to the Form 10-K by reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
<S> <C>
4.1 Instruments defining the Rights of Security holders. (Reference is
made to our Registration Statement on Form 8-A (Reg. No. 0-20839),
together with the exhibits thereto, which are incorporated herein by
reference pursuant to Item 3 hereof.)
*4.2 1998 Employee Stock Purchase Plan [Exhibit 10.16 to the Annual Report
on Form 10-K for the fiscal year ended June 30, 1998]
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of PricewaterhouseCoopers 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)
</TABLE>
<PAGE>
EXHIBIT 5.1
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON, LLP
May 5, 1999
DuPont Photomasks, Inc.
131 Old Settlers Boulevard
Round Rock, Texas 78664
Re: DuPont Photomasks, Inc. - Registration Statement for Offering
1,500,000 Shares of Common Stock
Dear Ladies and Gentlemen:
We have acted as counsel to DuPont Photomasks, Inc., a Delaware
corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
1,500,000 shares of common stock (the "Shares") and related stock purchase
rights under the DuPont Photomasks, Inc. 1998 Employee Stock Purchase Plan (the
"Purchase Plan").
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection the establishment of the Purchase
Plan. Based on such review, we are of the opinion that if, as and when the
Shares are issued and sold (and the consideration therefor received) pursuant to
the provisions of the stock purchase agreements duly authorized under the
Purchase Plan and in accordance with the Registration Statement, such shares
will be duly authorized, legally issued, fully paid and non-assessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Purchase Plan or the Shares.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
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 27, 1998, which appears in
DuPont Photomasks, Inc.'s Annual Report on Form 10-K for the year ended June
30, 1998.
PricewaterhouseCoopers LLP
Austin, Texas
May 5, 1999
