AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 4, 1996
==========================================================================
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 06-0854886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1061 EAST INDIANTOWN ROAD
JUPITER, FLORIDA 33477
(ADDRESS, INCLUDING ZIP CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PHOTRONICS, INC.
1996 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
JEFFREY P. MOONAN, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PHOTRONICS, INC.
1061 EAST INDIANTOWN ROAD
JUPITER, FLORIDA 33477
(407) 747-4163
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-------------------
CALCULATION OF REGISTRATION FEE
========================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE(1)
-------------------------------------------------------------------------
Common stock,
par value
$.01 . . . 600,000 shares $22.00 $13,200,000 $4,552
=========================================================================
(1) Calculated in accordance with Rule 457(h) of the General Rules and
Regulations under the Securities Act of 1933.
==========================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1
Plan Information*
ITEM 2
Registrant Information and Employee Plan Annual Information*
--------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to
Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in the Registration
Statement.
1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 31, 1995;
2) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended January 31, 1996;
3) The description of the Common Stock which is contained in the
Registrant's Form 8-A, filed on March 5, 1987 (File #0-15451) under
Section 12(g) of the Securities Exchange Act of 1934, as amended,
including any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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 herein and to be a part hereof from the respective dates of
filing of such documents.
ITEM 4 DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSELS
---------------------------------------
Not applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Connecticut Stock Corporation Act (the "Act") provides for
indemnification of directors, officers, shareholders, employees and agents
of a corporation. Under the Act, a corporation is required 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, 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 entitled to indemnification for
both derivative and nonderivative actions, if a court determines, upon
application, that the director is fairly and reasonably entitled to be
indemnified.
Article Ninth of the Company'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
Company. 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) showed a lack of good faith
and conscious disregard for his duty as that director under circumstances
where the director was aware that his actions created an unjustifiable risk
of serious injury to the Company; (iii) constituted a sustained and
unexcused pattern of inattention that amounted to an abdication of his
duty; or (iv) involved the improper distribution of Company 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.
The Company has purchased directors' and officers' liability insurance
covering certain liabilities incurred by its directors in connection with
the performance of their duties.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
ITEM 8 EXHIBITS
--------
The following Exhibits are filed as part of this Registration Statement:
4(a) The 1996 Stock Option Plan adopted by the Board of Directors of
the Registrant on January 29, 1996 and approved by the
stockholders on March 20, 1996.
5 Opinion of Reid & Priest LLP.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Reid & Priest LLP (included in Exhibit 5).
25 Power of Attorney (see page 6).
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;
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, represents 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 (A)(l)(i) and (A)(l)(ii), above, do
-------- -------
not apply if the Registration Statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in the 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) 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.
(3) 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.
B) The undersigned Registrant hereby undertakes 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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 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 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
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
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 March 29, 1996.
PHOTRONICS, INC.
By: /s/ Constantine S. Macricostas
-----------------------------------
Constantine S. Macricostas
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael J. Yomazzo and Jeffrey P. Moonan,
and each of them, his true and lawful attorneys-in-fact and agents, 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, 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
full 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.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933 , this
registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE DATE
/s/ Constantine S. Macricostas March 29, 1996
----------------------------------------
Constantine S. Macricostas
Chairman of the Board of Directors
Chief Executive Officer
(Principal Executive Officer)
/s/ Michael J. Yomazzo March 29, 1996
----------------------------------------
Michael J. Yomazzo
Director
President
/s/ Robert J. Bollo March 29, 1996
----------------------------------------
Robert J. Bollo
Vice President/Finance
Chief Financial Officer
(Principal Financial/Accounting Officer)
/s/ Masahiro Fujii March 29, 1996
----------------------------------------
Masahiro Fujii
Director
/s/ Walter M. Fiederowicz March 29, 1996
----------------------------------------
Walter M. Fiederowicz
Director
/s/ Joseph A. Fiorita, Jr. March 29, 1996
----------------------------------------
Joseph A. Fiorita, Jr.
Director
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
4(a) The 1996 Stock Option Plan adopted by the
Board of Directors of the Registrant on
January 29, 1996 and approved by the
stockholders on March 20, 1996.
5 Opinion of Reid & Priest LLP.
23(a) Consent of Deloitte & Touche LLP.
Exhibit 4(a)
PHOTRONICS, INC.
1996 STOCK OPTION PLAN
1) PURPOSES OF THE PLAN
--------------------
The purposes of this 1996 Stock Option Plan are:
(a) to attract and retain the best available personnel for
positions of substantial responsibility (both as Employees and
as Outside Directors) in respect of the business of
PHOTRONICS, INC., and any current subsidiary or any subsidiary
which PHOTRONICS, INC. may hereafter organize or acquire;
(b) to provide additional incentive to such personnel; and
(c) to promote the success of the business.
2) DEFINITIONS
-----------
As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of PHOTRONICS, INC.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Compensation Committee" shall mean a committee of the Board
composed of at least two (2) members of the Board who may be
"disinterested persons" as defined in Rule 16b-3(c)(2)
promulgated under the Securities Exchange Act of 1934, as
amended (the "Act"), or any successor provision thereto.
(d) "Common Stock" shall mean the Common Stock of the Company.
(e) "Company" shall mean PHOTRONICS, INC.
(f) "Outside Director" shall mean a member of the Company's Board
of Directors who is not also an Employee.
(g) "Disability" shall have the meaning set forth in Section
22(e)(3) of the Code or in any successor provision thereto.
(h) "Employee" shall mean a regular, salaried common law employee
of the Company or any of its subsidiaries.
(i) "Option" shall mean a stock option granted pursuant to the
Plan.
(j) "Option Agreement" shall mean the Stock Option Agreement
entered into between the Company and an Employee or Outside
Director upon the grant of an Option.
(k) "Option Price" shall mean the exercise price determined
pursuant to Section 4 hereof for the Shares to be issued
pursuant to any Option granted under the Plan.
(l) "Optioned Stock" shall mean the stock subject to an Option or
Restricted Stock Award granted pursuant to the Plan.
(m) "Optionee" shall mean an Employee or Outside Director who
receives an Option or Restricted Stock Award.
(n) "Performance Stock Option" means an Option which is subject to
conditions which render it a Performance Stock Option under
applicable law.
(o) "Plan" shall mean this 1996 Stock Option Plan.
(p) "Restricted Stock Award" means a restricted stock award
granted pursuant to the Plan.
(q) "Restricted Stock Award Agreement" means the Restricted Stock
Award Agreement entered into between the Company and an
Employee or Outside Director upon the grant of a Restricted
Stock Award.
(r) "Share" shall mean a share of the Common Stock of the Company
as adjusted in accordance with Section 14 of the Plan.
(s) "10% Shareholder" shall mean an individual who at the time an
Option is granted hereunder owns, within the meaning of
Section 422(b)(6) of the Code, stock possessing more than 10%
of the total combined voting power of all classes of stock of
the Company or of its parent or subsidiary corporations.
3) STOCK SUBJECT TO THE PLAN
-------------------------
Subject to the provisions of Section 14 of the Plan, the
maximum aggregate number of Shares which may be optioned and sold
or which may be issued and not subsequently forfeited pursuant to
Restricted Stock Awards under the Plan, is six hundred thousand
(600,000) Shares of the Common Stock of the Company provided, that
no more than ten percent (10%) of the Shares authorized for
issuance under this Plan may be issued pursuant to Restricted Stock
Awards and no more than fifteen percent (15%) of the Shares
authorized for issuance under this Plan may be issued to any one
person during any one calendar year. Such Shares may be authorized
but unissued or may be treasury shares.
If an Option should expire or become unexerciseable for any
reason without having been exercised in full or any shares issued
pursuant to a Restricted Stock Award are forfeited, the unpurchased
or forfeited Shares which were subject thereto shall, unless the
Plan shall have been terminated, become available for other
Option(s) or Restricted Stock Awards under the Plan.
4) ADMINISTRATION OF THE PLAN
--------------------------
(a) PROCEDURE
The Plan shall be administered by the Board or the
Compensation Committee. Members of the Board who are
either eligible for grants under this Plan or have been
given grants under this Plan may vote on any matters
affecting the administration of the Plan or the grant of
any Options or Restricted Stock Awards pursuant to the
Plan, except that no such member shall act upon the
granting of an Option or Restricted Stock Award to
himself, but any such member may be counted in
determining the existence of a quorum at any meeting of
the Board during which action is taken with respect to
the granting of Options or Restricted Stock Awards to
him.
(b) POWERS OF THE BOARD AND THE COMMITTEE
Subject to the provisions of the Plan, the Board or the
Compensation Committee shall have the authority:
i) to grant to any eligible Employee or Outside
Director an Option or Restricted Stock Award, which
shall be conditioned on the execution by such
Employee or Outside Director of an Option Agreement
or Restricted Stock Award Agreement in the form
approved by the Board or the Committee;
ii) to determine the Option Price for any Shares to be
issued pursuant to an Option granted under the
Plan, whether an Option is to be a Performance
Stock Option and the conditions applicable to such
Options, the conditions applicable to any
Restricted Stock Award, the Employees or Outside
Directors to whom and the time or times at which
Options or Restricted Stock Awards shall be
granted, to determine the exercise or vesting date
of Options and Restricted Stock Awards (provided
that in no event shall more than one-third (1/3) of
the Options or Restricted Stock Awards included in
any one grant be exercisable or vest prior to the
first anniversary of the date of grant and an
additional one-third (1/3) of such Options or
Restricted Stock Awards be exercisable or vest on
each of the second and third anniversaries of the
date of grant except pursuant to the provisions of
Section 16, whether the Option shall be a non-
qualified or an incentive stock option (as defined
in Section 422 of the Code or any successor
provision thereto) and the number of Shares to be
represented by each Option or Restricted Stock
Award, and the term of each Option which in no
event shall be more than ten (10) years from the
date of the grant of the Option (five [5] years in
the case of an incentive stock option granted to a
10% owner);
iii) to interpret the Plan;
iv) to prescribe, amend and rescind rules and
regulations relating to the Plan;
v) to determine the terms and provisions of each
Option granted under the Plan (which need not be
identical) and, with the consent of the holder
thereof, to modify or amend each Option or
Restricted Stock Award; provided, however, that in
no event may the exercise price of an Option be
reduced (except pursuant to Section 14) after it is
issued;
vi) subject to the provisions of sub-section (ii),
above, to accelerate any exercise date of any
Option or Restricted Stock Award except that the
exercise date of any Option or Restricted Stock
Award granted to any director or executive officer
cannot be accelerated without such holder's consent
if such acceleration would result in liability
under Section 16 of the Act, or any successor
provision thereto;
vii) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the
grant of an Option or Restricted Stock Award
previously granted by the Board or the Compensation
Committee; and
viii) to make all other determinations deemed necessary
or advisable for the administration of the Plan.
(c) Effect of Board's or Compensation Committee's Decision
All decisions, determinations and interpretations of the
Board or the Compensation Committee shall be final and
binding on all Optionees and any other holders of any
Options granted under the Plan.
5) ELIGIBILITY
-----------
Options and Restricted Stock Awards under the Plan may be
granted only to such Employees or to such Outside Directors as the
Board or the Compensation Committee shall select. An Employee or
Outside Director who has been granted an Option or Restricted Stock
Award may, if he is otherwise eligible, be granted additional
Options or Restricted Stock Awards. Incentive stock options may be
granted only to an "employee" of the Company, as that term is used
Section 422 of the Code or any successor provision thereto. No
incentive stock option may be granted to a 10% Shareholder unless
the Option Price is at least 110% of the fair market value of such
stock on date of grant and the term of such option does not exceed
five (5) years.
6) TERM OF PLAN
------------
Subject to the provisions of Section 22 hereof, the Plan shall
become effective on adoption by the Board. The Plan shall continue
in effect for a term of ten (10) years unless sooner terminated
under Section 18 hereof.
7) TERM OF OPTION OR RESTRICTED STOCK AWARD
----------------------------------------
Except as provided under Code Section 422(c)(5) with respect
to a 10% Shareholder's incentive stock option and unless of shorter
duration as provided in the terms of an Option or Restricted Stock
Award Agreement, the term of each Option or forfeiture period for
a Restricted Stock Award granted under the Plan shall be determined
by the Board or the Compensation Committee but, in no event, shall
it be for a period in excess of ten (10) years from the date of
grant thereof.
8) MAXIMUM ALLOTMENT OF OPTIONS
----------------------------
The aggregate fair market value (determined as of the date the
Option is granted) of the Common Stock with respect to which
incentive stock options are exercisable for the first time by any
individual during any calendar year under the Plan and all other
plans of the Company or any parent or subsidiary of the Company
shall not exceed $100,000 or such other amount as is permitted by
the Code.
9) OPTION PRICE
------------
The Option Price for the Shares to be issued pursuant to any
Option shall be as stated in the Option Agreement and shall be not
less than the greater of (a) the fair market value of such Shares
on date of grant of the Option as determined by the Board or the
Compensation Committee (except that with respect to an incentive
stock option issued to a 10% Shareholder, 110% of the fair market
value), or (b) the par value of such Shares. Except pursuant to
Section 14, in no event shall the Option Price for an Option be
reduced after it is issued.
10) EXERCISE OF OPTIONS
-------------------
(a) PROCEDURE FOR EXERCISE
Any Option shall be exercisable on such terms and
conditions as are set forth in the Option Agreement. The
purchase price of the Shares as to which an Option shall
be exercised shall be paid in full at the time of
exercise at the election of the holder of an Option:
i) in cash or currency of the United States of
America;
ii) by tendering to the Company shares of the Company's
Common Stock, then owned by him, having a fair
market value equal to the cash exercise price
applicable to the purchase price of the Shares as
to which an Option is being exercised; or
iii) partly in cash and partly in shares of the
Company's Common Stock valued at fair market value.
Such fair market value shall be determined as of the
close of the business day immediately preceding the day
on which the Option is exercised by the Board or the
Compensation Committee, whose determination shall be
final and conclusive. An Option shall be deemed to be
exercised when:
i) written notice of such exercise has been given to
the Company in accordance with the terms of the
Option Agreement by the person entitled to exercise
the Option;
ii) payment as described above for the Shares with
respect to which the Option is exercised has been
received by the Company; and
iii) such payment is accompanied by any representations
or agreements required by the terms of this Plan or
the Option Agreement.
A holder of an Option shall not have any rights to
dividends or any other rights as a stockholder of the
Company with respect to any shares covered by his Option
until such shares shall have been issued to him as
reflected by the books and records maintained by the
Company's transfer agent relating to stockholders of the
Company.
(b) TERMINATION OF EMPLOYMENT OR DIRECTOR RELATIONSHIP/
DEATH OR DISABILITY OF OPTIONEE
i) If an Optionee shall cease to be an Employee or
Outside Director by reason of discharge or
termination, as applicable, his right to exercise
any non-qualified stock options shall cease thirty
(30) days (except to the extent otherwise provided
in [ii] below) after the date of such discharge or
termination; provided, however, that if his
employment is terminated for cause or without the
consent of the Company, said Option shall terminate
immediately. The Plan shall not confer upon any
Optionee any right with respect to continuation of
employment or consulting, nor shall it interfere in
any way with his right or the Company's right to
terminate such relationship at any time subject to
the provisions of any applicable contract. An
Option may be exercised under this paragraph only
to the extent of the accrued right to exercise at
the time of discharge or termination, as the case
may be, and only to the extent that the Option is
otherwise exercisable pursuant to the initial term
provided for in the Option Agreement covering such
Option.
ii) In the event of the death or disability of an
Optionee, any non-qualified stock options which
were exercisable by the Optionee on the date of his
death or disability shall remain exercisable for a
period of six (6) months by the Optionee, the
Optionee's estate or by a person who acquired the
right to exercise the Option by bequest or
inheritance. An Option may be exercised under this
paragraph only to the extent of the accrued right
to exercise at the time of death or disability, as
the case may be, and only to the extent that the
Option is otherwise exercisable pursuant to its
initial term.
11) NON-TRANSFERABILITY OF OPTIONS AND RESTRICTED STOCK AWARDS
----------------------------------------------------------
The Option and, unless and until the shares subject to a
Restricted Stock Award are no longer subject to forfeiture, shares
subject to a Restricted Stock Award may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent or distribution and an
Option may be exercised during the lifetime of the Optionee only by
the Optionee.
12) RESTRICTED STOCK AWARD
----------------------
The Shares subject to a Restricted Stock Award shall be issued
in the name of the recipient as soon as reasonably practicable
after the date of grant of the Restricted Stock Award (and after
the recipient has executed a Restricted Stock Award Agreement and
any other documents which the Board or the Compensation Committee,
in its absolute discretion, may require) without the requirement
for payment of any cash consideration by such recipient, but shall
be held by the Company until all risk of forfeiture shall have
lapsed. Any certificate representing such Shares may bear such
restrictive legend, if any, as the Board or the Compensation
Committee may determine. Shares issued pursuant to Restricted
Stock Awards shall be subject to such restrictions, terms and
conditions as the Board or the Compensation Committee may
establish, which may include, without limitation, the achievement
of specific goals, and shall vest at such time or times as the
Board or the Compensation Committee shall determine. The Board or
the Compensation Committee may, in their sole discretion, make such
adjustments to the goals applicable to a Restricted Stock Award as
they deem necessary or advisable due to changes in criteria used
for the specific goals or other factors which they deem
appropriate.
Upon issuance of the Shares subject to a Restricted Stock
Award, the recipient shall, subject to Section ll, have all the
rights of a stockholder with respect to such Shares, including the
right to vote such Shares, but all dividends and other
distributions paid or made with respect to such Shares shall be
held by the Company subject to the restrictions, terms and
conditions of the Restricted Stock Award.
As promptly as practicable after the shares of Common Stock
subject to a Restricted Stock Award, cease to be subject to
forfeiture, the certificate representing such Shares, or a new
certificate without any inapplicable restrictive legend if the
original certificate bore a restrictive legend, shall be delivered
to the recipient or, in the event of the death of a recipient prior
to delivery, to his personal representative.
In the event of the termination of employment of a recipient
of a Restricted Stock Award with the consent of the Company or due
to death, disability or normal retirement, the Board or the
Compensation Committee may, in its sole discretion, deem that the
restrictions, terms and conditions of the Restricted Stock Award
have been met for all or part of the Shares subject thereto,
subject to such further terms and conditions, if any, as the Board
or the Compensation Committee may determine.
13) FORFEITURE OF OPTIONS AND REPAYMENT
OF MARKET VALUE OF OPTIONS OR AWARDS
------------------------------------
If, at any time within one (1) year after an Optionee ceases
to be an Employee or Outside Director, such Optionee engages in any
activity in competition with any activity of the Company, or
inimical, contrary or harmful to the interests of the Company,
including, but not limited to:
(a) conduct related to such Optionee's employment for which either
criminal or civil penalties against the Optionee may be
sought;
(b) violation of Company policies, including, without limitation,
the Company's insider trading policy;
(c) accepting employment with or serving as a consultant, advisor
or in any other capacity to an employer that is in competition
with or acting against the interests of the Company, including
employing or recruiting any present, former or future employee
of the Company;
(d) disclosing or mis-using any confidential information or
material concerning the Company; or,
(e) participating in a hostile takeover attempt, then:
i) Options and Restricted Stock Awards shall terminate
effective the date on which such Optionee enters into
such activity, unless terminated sooner by operation of
another term or condition of this Plan;
ii) the aggregate difference between the exercise price of
Options exercised within one (1) year of the date (the
"Termination Date") Optionee ceased to be an Employee or
Outside Consultant and the closing market value of the
Shares covered by such Options; and
iii) the aggregate of the closing market value for all Shares
subject to Restricted Stock Awards as to which forfeiture
provision expired within one (1) year prior to the
Termination Date shall be paid by the Optionee to the
Company.
By accepting any Option or Restricted Stock Award, each
Optionee consents to a deduction from any amounts the Company owes
such Optionee from time to time (including amounts owed as wages or
other compensation, fringe benefits or vacation pay, as well as any
other amounts owed by the Company), to the extent of the amounts
the Optionee owes the Company under the foregoing paragraph.
Whether or not the Company elects to make any set-off in whole or
in part, if the company does not recover by means of set-off the
full amount the Optionee owes it, calculated as set forth above,
each Optionee agrees to pay immediately the unpaid balance to the
Company. Optionees may be released from their obligations under
this Section above only by the Board of Directors or the
Compensation Committee.
14) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
------------------------------------------
In the event there is any change in the Common Stock through
the declaration of stock dividends, or through a recapitalization
resulting in a stock split, or combination or exchange of Shares,
or reorganization, or otherwise, the Board or the Compensation
Committee shall appropriately adjust the number or class of Shares
covered by any Option or Restricted Stock Award, as well as the
price to be paid therefor; and, in the event of any such change in
the outstanding Common Stock, the aggregate number and class of
Shares available under the Plan shall be appropriately adjusted.
No fractional Shares of the Common Stock shall be issuable on
account of any action aforesaid, and the aggregate number of Shares
then covered by the Option or Restricted Stock Award when changed
as a result of such action shall be reduced to the largest number
of whole Shares resulting from such action unless the Board or the
Compensation Committee, in its discretion, shall determine to issue
scrip certificates in respect of any fractional Shares, which scrip
certificates shall be in a form and have such terms and conditions
as the Board or the Compensation Committee in its discretion shall
prescribe.
15) MERGER, CONSOLIDATION, ETC.
---------------------------
In the event that any consolidation of the Company with, or
merger of the Company into, any other corporation (other than a
consolidation or merger in which the Company is the continuing
corporation) or any sale or transfer of all or substantially all of
the assets of the Company is contemplated, the Board may provide
that any Optionee shall be given the opportunity to exercise any
and all Options which such Optionee then holds prior to such
consolidation, merger or sale of assets and, notwithstanding any
provisions of this Plan or of an Option Agreement to the contrary,
the exercisability of such Option shall be accelerated as
appropriate to allow for such exercise and the Board may terminate
each outstanding Option as of a date to be fixed by the Board or
Compensation Committee, which shall not be earlier than five (5)
days after the date such Options become exercisable.
16) WITHHOLDING TAX
---------------
The Company may make such provisions (including accepting
Shares as payment or reducing the number of Shares to be issued) as
it may deem appropriate for the withholding of any taxes which the
Company determines it is required to withhold in connection with
the grant or exercise of any Option or Restricted Stock Award or
the disposition of any Common Stock acquired pursuant to the
exercise of an Option or Restricted Stock Award. If an Optionee
who exercises all or part of an Option subsequently disposes of
Common Stock in a "disqualifying disposition" described under Code
Section 422(c)(2), such Optionee shall so notify the Company,
forward such information as is thereby requested by the Company
and, if so requested by the Company, pay to the Company such dollar
amounts as are necessary to satisfy the Company's tax withholding
obligations resulting from such disposition.
17) TIME OF GRANTING OPTIONS
------------------------
The date of grant of an Option or Restricted Stock Award under
the Plan shall for all purposes be the date on which the Board or
Compensation Committee makes the determination granting such Option
or Restricted Stock Award. Notice of the determination shall be
given to the Optionee within a reasonable time after the date of
such grant.
18) AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
(a) AMENDMENT
The Board, without approval of the shareholders, may
amend the Plan from time to time in such respects as the
Board may deem advisable except that the Board may not,
except with approval of the shareholders, amend the
eligibility requirements of this Plan or increase the
number of shares subject to this Plan except as permitted
by Section 14.
(b) TERMINATION
The Board, without approval of the shareholders, may at
any time terminate the Plan.
(c) EFFECT OF AMENDMENT OR TERMINATION
Any such amendment or termination of the Plan shall not
affect Options or Restricted Stock Awards already
granted, and such Options or Restricted Stock Awards
shall remain in full force and effect as if this Plan had
not been amended or terminated and shall be deemed to
incorporate the terms of this Plan as it existed on the
dates the Options or Restricted Stock Awards were
granted.
19) CONDITIONS UPON ISSUANCE OF SHARES
----------------------------------
Shares shall not be issued with respect to an Option or
Restricted Stock Award granted under the Plan unless the exercise
of such Option or termination of the forfeiture period for such
Restricted Stock Award and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as
amended, the Act, the rules and regulations promulgated thereunder,
the requirements of any stock exchange upon which the Shares may
then be listed, and applicable state securities laws, and shall be
further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant
at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to
sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is necessary or desirable under
any of the aforementioned relevant provisions of law.
20) RESERVATION OF SHARES
---------------------
During the terms of this Plan, the Company will at all times
reserve and keep available a number of Shares sufficient to satisfy
the requirements of the Plan.
Inability of the Company to obtain from any regulatory body
having jurisdiction such authority as is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any
Shares hereunder shall relieve the Company of any liability in
respect of the non-issuance or sale of such Shares as to which such
requisite authority shall not have been obtained.
21) GOVERNING LAW
-------------
The Plan and the rights of all persons hereunder shall be
governed by the laws of the State of Connecticut, without regard to
principles of conflict of laws.
22) MISCELLANEOUS
-------------
Participation under the Plan shall not affect eligibility for
any profit-sharing, bonus, insurance, pension, or other extra
compensation plan which the Company or any subsidiary may at any
time adopt for employees, except to the extent that any law or
regulation governing any such plan so provides. By acceptance of
a grant of an Option or Restricted Stock Award under the Plan, each
employee shall be deemed to agree that any income realized upon the
receipt or exercise thereof or upon the disposition of the shares
received pursuant thereto is special incentive compensation and
will not be taken into account as "wages", "salary" or
"compensation" in determining the amount of any payment under any
pension, retirement, incentive, profit-sharing, employee stock
purchase or deferred compensation plan of the Company or any
subsidiary.
23) SHAREHOLDER'S APPROVAL
----------------------
The Plan shall be subject to approval by the affirmative vote
of the holders of a majority of the shares of Common Stock present
and voting at a duly held shareholders' meeting within twelve (12)
months before or after adoption of the Plan by the Board and any
Option or Restricted Stock Award, granted hereunder prior to such
approval shall be conditioned thereon.
Exhibit 5
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019
Telephone 212 603-2000
Fax 212 603-2001
New York, New York
April 3, 1996
Photronics, Inc.
1061 East Indiantown Road
Jupiter, Florida 33477
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as counsel to Photronics, Inc., a
Connecticut corporation (the "Registrant"), in connection
with the preparation and filing with the Securities and
Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement"), with
respect to the registration under the Securities Act of
1933, as amended (the "Act"), of 600,000 shares of the
Registrant's common stock, $.01 par value per share (the
"Shares"), issuable upon the exercise of options (the
"Options") granted or to be granted pursuant to the
Company's 1996 Stock Option Plan (the "Plan").
For purposes of this opinion we have examined the
Registration Statement and the Prospectus, the Certificate
of Incorporation and the By-Laws of the Registrant, the
Plan and such other documents, records, agreements,
proceedings and legal matters as we have deemed necessary
to examine. With respect to any documents, records or
agreements (collectively, the "Documents") that we have
examined, we have assumed the genuineness of all signatures
on, and the authenticity of, all Documents submitted to us
as originals, and the conformity to the originals of all
Documents submitted to us as certified or photostatic
copies.
Based upon the foregoing and subject to the
qualifications stated herein we are of the opinion that:
1. The Registrant is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Connecticut.
2. The Shares included in the Registration
Statement that are to be issued upon the exercise of the
Options granted or to be granted pursuant to the Plan will
be duly authorized and validly issued, and fully paid and
non-assessable when the Options shall have been properly
exercised and the exercise price shall have been paid for
the Shares in accordance with the terms of the Plan.
We are members of the Bar of the State of New
York and do not hold ourselves out as experts concerning,
or qualified to render opinions with respect to, any laws
other than the laws of the State of New York and the
federal laws of the United States of America. Insofar as
our opinion concerns Connecticut law, we have relied upon
the opinion of Jeffrey P. Moonan, Senior Vice President and
General Counsel of the Registrant.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5 to the Registration
Statement. In giving the foregoing consent, we do not
thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Reid & Priest LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We consent to the incorporation by reference in this
Registration Statement of Photronics, Inc. on Form S-8 of our
report dated December 12, 1995 appearing in the Annual Report on
Form 10-K of Photronics, Inc. for the year ended October 31,
1995.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
April 4, 1996
