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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DuPont Photomasks, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 74-2238819
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
131 Old Settlers Boulevard, Round Rock, Texas 78664
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [X]
Securities Act registration statement file number to which this form relates:
__________________________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
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(Title of Class)
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This Amendment No. 1 amends the Registrant's Registration Statement on Form
8-A as filed with the Securities and Exchange Commission on June 11, 1996 (the
"Registration Statement"). This Amendment No. 1 to the Registration Statement
is being filed in order to amend the "Description of Capital Stock" contained in
the Prospectus constituting a part of the registrant's Form S-1 Registration
Statement (Registration No. 333-3386) originally filed with the Securities and
Exchange Commission on June 10, 1996.
Item 1. Description of Capital Stock
Item 1 of the Registration Statement is hereby amended and restated to be
and read in its entirety as follows:
Authorized Capital Stock
Our authorized capital stock consists of 100,000,000 shares of common
stock, par value $0.01 per share, and 5,000,000 shares of preferred stock, par
value $0.01 per share. The rights and preferences of the authorized preferred
stock may be designated from time to time by our board of directors. The
following summary is qualified by reference to our Amended and Restated
Certificate of Incorporation, or our Charter, and our Amended Bylaws, both of
which have been filed as exhibits to this registration statement.
Common Stock
The holders of common stock are entitled to one vote per share on all
matters to be voted upon by stockholders. Subject to preferences that may be
applicable to any outstanding preferred stock, the holders of common stock are
entitled to receive ratably such dividends, if any, as may be declared from time
to time by our Board of Directors out of funds legally available. In the event
of liquidation, dissolution or winding up of our company, the holders of common
stock are entitled to share ratably in all assets remaining after payment of
liabilities, subject to prior distribution rights of preferred stock, if any,
then outstanding. The common stock has no preemptive or conversion rights or
other subscription rights. There are no redemption or sinking fund provisions
applicable to the common stock.
Preferred Stock
Our Board of Directors has the authority to issue preferred stock in one or
more series and to fix the rights, preferences, privileges and restrictions
thereof, including dividend rights, dividend rates, conversion rights, voting
rights, terms of redemption, liquidation preferences and the number of shares
constituting any series or the designation of such series, without further vote
or action by our stockholders.
Certain Anti-Takeover, Limited Liability and Indemnification Provisions
Charter and Bylaw Provisions
Our Charter and Bylaws include provisions that may have the effect of
discouraging, delaying or preventing a change in control of our company or an
unsolicited acquisition proposal that a stockholder might consider favorable,
including a proposal that might result in the payment of a premium over the
market price for the shares held by stockholders. These provisions are
summarized in the following paragraphs.
Classified Board of Directors Removable Only for Cause. Our Charter
divides our Board of Directors into three classes of directors, with each class
serving staggered, three-year terms. In addition, our directors may be removed
from office only for cause by a vote of at least 66-2/3% in voting power of the
then-outstanding shares of our voting stock entitled to vote in the election of
directors, voting together as a single group. The classification of our Board
of Directors means that unless directors are removed for cause, it will require
at least two annual meetings of stockholders for a majority of stockholders to
make a change in control of the Board of Directors, since only a portion of the
directors will be elected at each meeting. A significant effect of a classified
Board of Directors may be to deter hostile takeover attempts because an acquiror
would experience delay in replacing a majority of the directors. However, a
classified Board of Directors also makes it more difficult for stockholders to
effect a change
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in control of the Board of Directors, even if such a change in control is sought
due to dissatisfaction with the performance of our company's directors. During
any period when the holders of any series of preferred stock have the right to
elect additional directors pursuant to our Charter, the then otherwise total
authorized number of directors shall automatically be increased by such
specified number of directors. Whenever the holders of any series of preferred
stock having such right to elect additional directors are divested of such
right, the terms of office of all such additional directors elected by holders
of such stock shall terminate. As a consequence, directors elected by the
holders of our preferred stock would not become part of our classified Board.
Supermajority Voting. Our Charter requires the approval of the holders of
at least 66-2/3% of the then outstanding shares of our common stock for the
stockholders to adopt, amend or repeal: (1) any provision of our Charter
governing the election and removal of directors; (2) any provision of our
Bylaws; (3) any provision of our Charter prohibiting stockholder actions by
written consent; and (4) any provision of our Charter referred to in clauses
(1), (2) and (3).
Authorized But Unissued or Undesignated Capital Stock. Our Charter grants
our Board of Directors broad power to establish the rights, preferences and
privileges of authorized and unissued shares of preferred stock and to issue
such shares in one or more transactions. The issuance of shares of preferred
stock pursuant to the Board's authority described above may have the effect of
delaying, deferring or preventing a change in control of our company and could
decrease the amount of earnings and assets available for distribution to the
holders of our common stock. In addition, the issuance of large blocks of
common stock may have the effect of delaying, deferring or preventing a change
in control of our company. Our Board does not currently intend to seek
stockholder approval prior to any issuance of common or preferred stock, unless
otherwise required by law.
Limitation of Director Liability. Our Charter limits the liability of
directors (in their capacity as directors but not in their capacity as officers)
to our company and our stockholders to the fullest extent permitted by Delaware
law. Specifically, directors will not be personally liable for monetary damages
for breach of his or her fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to our company or our
stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. violations under Section 174 of the Delaware General Corporation Law,
which relates to unlawful payments of dividends or unlawful stock
repurchases or redemptions; or
. for any transaction from which the director derived an improper
personal benefit.
These provisions in our Charter may have the effect of reducing the likelihood
of derivative litigation against our company's directors and may discourage or
deter stockholders or management from bringing a lawsuit against our company's
directors for breach of their duty of care, even though such an action, if
successful, might otherwise have benefited our company and its stockholders.
Such provisions do not limit or affect a stockholder's ability to seek and
obtain relief under the Federal securities laws.
No Stockholder Action by Written Consent. Our Charter provides that any
action required or permitted to be taken at any annual or special meeting of
stockholders may be taken only at a duly called annual or special meeting of
stockholders and may not be effected by any written consent of stockholders in
lieu of a meeting of stockholders. This prevents stockholders from initiating or
effecting any action by written consent, thereby limiting the ability of
stockholders to take actions opposed by our Board.
Special Meetings of Stockholders. Our Bylaws provide that special meetings
of stockholders may be called only by the Board.
Stockholder Meeting Protocol. Our Bylaws allow our Board of Directors to
adopt rules, regulations and procedures for the conduct of the meeting of
stockholders, including: (1) the establishment of an agenda or order of
business for the meeting; (2) rules and procedures for maintaining order at the
meeting and the safety of those present; (3) limitations on attendance at or
participation in the meeting to stockholders of record of the corporation
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or their duly authorized and constituted proxies; (4) restrictions on entry
after the time fixed for the commencement of the meeting; and (5) limitations on
the time allotted to questions or comments by participants. Such stockholder
meeting protocol could have the effect of deterring a hostile takeover of our
company by restricting the nomination and election of candidates to our Board of
Directors.
Advance Notice Requirements. Our Bylaws establish advance notice
requirements with regard to all stockholder proposals, including: (1)
nominations of persons for election to the Board of Directors and the submission
of business to be considered by the stockholders may be made only at the annual
meeting and only by or at the direction of the Board of Directors or by any
stockholder of record; (2) for nominations or other business to be properly
brought before an annual meeting, timely notice must be given so that such
notice is delivered to the company at least 90 days, but no more than 120 days,
prior to such meeting; (3) any notice of nomination shall set forth the person
proposed for election to the Board of Directors; (4) any notice of business
shall set forth a brief description of the business to be brought before the
meeting, the text of the proposal and the beneficial owner, if any, on whose
behalf the proposal is made; and (5) except as otherwise provided by law, the
chairman of the meeting shall have the power to determine whether a nomination
or any business proposed to be brought before a meeting was made in accordance
with these procedures. The advance notice requirements, by prescribing the
types of business that could be presented to stockholders during annual
meetings, could discourage takeover bids initiated by hostile tender offer,
proxy contest or the removal of the existing Board of Directors and management.
Indemnification Arrangements. Our Bylaws provide that current and former
directors and executive officers shall be indemnified against expenses
(including attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding arising out
of their status as such, to the fullest extent permitted by Delaware law. In
addition, the company has agreed to indemnify each director to the fullest
extent permitted by the Delaware law pursuant to an indemnification agreement
from and against any and all expenses, losses, claims, damages and liabilities
incurred by such director for or as a result of actions taken or not taken while
such director or officer was acting in his or her capacity as a director,
officer, employee or agent of the company. In addition, the company maintains
directors' and officers' liability insurance which insures against liabilities
that directors and officers of the company may incur in such capacities.
Delaware Anti-Takeover Statute. Our Charter contains a provision expressly
electing not to be governed by the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a publicly held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. For purposes of Section
203, a "business combination" includes a merger, asset sale, or other
transaction resulting in a financial benefit to the interested stockholder, and
an "interested stockholder" is a person who, together with affiliates and
associates, owns or, within three years previously, did own 15% or more of the
corporation's voting stock. Because of such election, Section 203 will not
apply to our company.
Item 2. Exhibits.
Exhibit
Number Description of Exhibits
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1. Specimen of Security to be registered hereunder (the Specimen
Certificate for Common Stock filed as 4.1 to Registration
Statement No. 333-3386 is incorporated herein by reference)
3(i) Amended and Restated Certificate of Incorporation of DuPont
Photomasks, Inc.
3(ii) Certificate of Amendment of the Amended and Restated Certificate
of Incorporation of DuPont Photomasks, Inc.
3(iii) Amended Bylaws of DuPont Photomasks, Inc.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
Date: June 23, 2000 DUPONT PHOTOMASKS, INC.
By: /s/ John M. Lynn
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John M. Lynn,
Executive Vice President, General
Counsel and Secretary
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Exhibit Index
Exhibit
Number Description of Exhibits
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1. Specimen of Security to be registered hereunder (the Specimen
Certificate for Common Stock filed as 4.1 to Registration
Statement No. 333-3386 is incorporated herein by reference)
3(i) Amended and Restated Certificate of Incorporation of DuPont
Photomasks, Inc.
3(ii) Certificate of Amendment of the Amended and Restated Certificate
of Incorporation of DuPont Photomasks, Inc.
3(iii) Amended Bylaws of DuPont Photomasks, Inc.
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