<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NANOPHASE TECHNOLOGIES CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 36-3687863
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
453 COMMERCE STREET, BURR RIDGE, ILLINOIS 60521
(Address of Principal Executive Offices including Zip Code)
NANOPHASE TECHNOLOGIES CORPORATION AMENDED AND RESTATED 1992 STOCK OPTION PLAN
(Full Title of the Plan)
ROBERT W. CROSS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NANOPHASE TECHNOLOGIES CORPORATION
453 COMMERCE STREET, BURR RIDGE, ILLINOIS 60521
(630) 323-1200
(Name, Address and Telephone Number of Agent for Service)
WITH A COPY TO:
MATTHEW S. BROWN, ESQ.
LAWRENCE D. LEVIN, ESQ.
KATTEN MUCHIN & ZAVIS
525 WEST MONROE STREET, SUITE 1600
CHICAGO, ILLINOIS 60661
(312) 902-5200
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed maximum Proposed maximum
Title of securities offering price aggregate offering Amount of
to be registered Amount to be registered(1) per share(2) price(2) registration fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share 2,758,032 shares See Footnote 2 below $11,869,539 $3,502
==================================================================================================================================
</TABLE>
(1) Includes an indeterminate number of shares of Nanophase Technologies
Corporation Common Stock ("Common Stock") that may be issuable by reason of
stock splits, stock dividends or similar transactions in accordance with
Rule 416 under the Securities Act of 1933.
(2) The amounts are based upon the exercise of options for 1,508,469 shares
of Common Stock at an average exercise price of $2.536 per share, and the
average of the high and low sales prices of the Common Stock as reported on
the Nasdaq National Market on May 19, 1998, with respect to the exercise of
options for 1,249,563 shares of Common Stock. Such amounts are used solely
for the purpose of calculating the registration fee pursuant to Rules
457(h)(1) and 457(c) under the Securities Act of 1933.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of Form S-8 is currently included in
the prospectus for the Nanophase Technologies Corporation Amended and Restated
1992 Stock Option Plan, as amended (the "Plan"), and is not being filed with or
included in this Form S-8 in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission").
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Commission by Nanophase
Technologies Corporation (the "Company") are incorporated in this Registration
Statement by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
3. The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A filed pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
subsequent amendment or any report filed for the purpose of updating
such description.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 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 hereby have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
A current partner of Katten Muchin & Zavis, which is passing upon the
validity of the Common Stock being offered under the Plan, owns less than 1% of
the outstanding shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of the Company's Certificate of Incorporation provides that
the Company shall indemnify its directors to the full extent permitted by the
General Corporation Law of the State of Delaware and may indemnify its officers
and employees to such extent, except that the Company shall not be obligated to
indemnify any such person (i) with respect to proceedings, claims or actions
initiated or brought voluntarily by any such person and not by way of defense,
or (ii) for any amounts paid in settlement of an action indemnified against by
the Company without the prior written consent of the Company. The Company has
entered into indemnity agreements with each of its directors and its executive
officers. These agreements require the Company, among other things, to
indemnify such individuals against certain liabilities that may arise by reason
of their status or service as directors mor executive officers, to advance
expenses to them as they are incurred, provided that they undertake to repay
the amount advanced if it is ultimately determined by a court that they are not
entitled to indemnification, and to obtain directors' and officers' liability
insurance if available on reasonable terms.
II-1
<PAGE> 4
In addition, Article VII of the Company's Certificate of Incorporation
provides that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for willful or negligent conduct in paying
dividends or repurchasing stock out of other than lawfully available funds or
(iv) for any transaction from which the director derives an improper personal
benefit.
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware which provides for indemnification of directors and officers
in certain circumstances.
The Company maintains a directors' and officers' insurance policy which
entitles the Company to be reimbursed for certain indemnity payments it is
required or permitted to make to its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.1 Certificate of Incorporation of the Company, incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997 (the "1997 10-K").
4.2 By-laws of the Company, incorporated by reference to Exhibit 3.2 to
the 1997 10-K.
4.3 The Nanophase Technologies Amended and Restated 1992 Stock Option
Plan, as amended (the "Plan"), incorporated by reference to Exhibit
10.1 to the Company's Registration Statement on Form S-1 (File No.
333-36937) (the "IPO Registration Statement").
4.4 Specimen stock certificate representing Common Stock, incorporated
by reference to Exhibit 4.1 to the IPO Registration Statement.
4.5 Form of Option Agreement under the Plan.
5 Opinion of Katten Muchin & Zavis as to the legality of the shares of
Common Stock being offered under the Plan.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Katten Muchin & Zavis (contained in their opinion filed
as Exhibit 5).
24 Power of Attorney (included on the signature page of this
Registration Statement).
II-2
<PAGE> 5
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) 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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually, or in
the aggregate, represent a fundamental change in the information
set forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under 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.
(c) 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.
2. The Company hereby undertakes that, for the purpose of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Burr Ridge, State of Illinois, on this 22nd day of
May, 1998.
NANOPHASE TECHNOLOGIES CORPORATION
By: /s/ ROBERT W. CROSS
-------------------------------------
Robert W. Cross
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert W. Cross and Dennis J. Nowak and, each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
to sign on his behalf, individually and in each capacity stated below, all
amendments and post-effective amendments to this Registration Statement on Form
S-8 and to file the same, with all exhibits thereto and any other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, granting unto each such attorney-in-fact and agent 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 such person might or could do in person, hereby ratifying and
confirming each act that said attorney-in-fact and agent may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 22, 1998.
SIGNATURE TITLE
- -------------------------- -----------------------------------------------
/s/ ROBERT W. CROSS President, Chief Executive Officer (Principal
- -------------------------- Executive Officer) and a Director
Robert W. Cross
/s/ DENNIS J. NOWAK Vice President--Finance and Administration,
- -------------------------- Chief Financial Officer, Treasurer and Secretary
Dennis J. Nowak (Principal Financial and Accounting Officer)
/s/ LEONARD A. BATTERSON
- --------------------------
Leonard A. Batterson Chairman of the Board and Director
/s/ STEVEN LAZARUS
- --------------------------
Steven Lazarus Director
/s/ DONALD S. PERKINS
- --------------------------
Donald S. Perkins Director
/s/ RICHARD W. SIEGEL
- --------------------------
Richard W. Siegel Director
/s/ ROBERT W. SHAW, JR.
- --------------------------
Robert W. Shaw, Jr. Director
II-4
<PAGE> 7
EXHIBIT INDEX
Exhibit
Number Description
- ------ ----------------------------------------------------------------------
4.5 Form of Option Agreement under the Plan.
5 Opinion of Katten Muchin & Zavis as to the legality of the shares of
Common Stock being offered under the Plan.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Katten Muchin & Zavis (contained in their opinion filed as
Exhibit 5).
24 Power of Attorney (included on the signature page of this Registration
Statement).
<PAGE> 1
EXHIBIT 4.5
NANOPHASE TECHNOLOGIES CORPORATION
FORM OF STOCK OPTION AGREEMENT
THIS AGREEMENT is executed on the ____ day of ____________, 199__, and is
effective as of _____________, 199___, between NANOPHASE TECHNOLOGIES
CORPORATION, a Delaware corporation ("Company"), and __________________
("Grantee"), who resides at ____________________________________________.
Grantee is an employee of the Company. By granting this option, Company
desires to carry out the purposes of the NANOPHASE TECHNOLOGIES CORPORATION
STOCK OPTION PLAN effective January 13, 1992, as amended from time to time
("Plan"), a copy of which has been furnished Grantee.
Company and Grantee agree as follows:
1. Effective ___________, 199__ (the "Grant Date"), Company grants to
Grantee an option to purchase [[__________]] shares (the "Shares") of the
Company's common stock, no par value, at a price of [[$_______]] per share,
subject to all of the terms and conditions of the Plan and amendments thereto
and of this Agreement.
2. Subject to the provisions of the Plan and this Agreement, these options
may be exercised as follows:
<TABLE>
<CAPTION>
YEARS AFTER GRANT DATE PERCENTAGE EXERCISABLE
---------------------- ----------------------
<S> <C>
_________, 199__ 20%
_________, 199__ 40%
_________, 199__ 60%
_________, 199__ 80%
_________, 199__ 100%
</TABLE>
provided, however, that each exercise shall be for not fewer than the lesser of
1000 Shares or the number of Shares subject to this Agreement for which the
stock option is then exercisable. Notwithstanding the foregoing provisions of
this Section but subject to the Plan and all other provisions of this
Agreement, however, all options granted hereunder shall be immediately
exercisable upon the occurrence of any of the following events prior to the
expiration or other termination of the option: (i) sale (other than a sale by
the Company) of securities entitled to more than 80% of the voting power of the
Company in a single transaction or a related series of transactions; (ii) sale
of substantially all of the assets of the Company; or (iii) approval by the
stockholders of the Company of a reorganization, merger or consolidation of the
Company, as a result of which the persons who were the stockholders of the
Company immediately prior to such reorganization, merger or consolidation do
not own securities immediately after the reorganization, merger or
consolidation entitled to more than 80% of the voting power of the reorganized,
merged or consolidated
<PAGE> 2
company. Voting power, as used in the preceding sentence, shall refer to those
securities entitled to vote generally in the election of directors, and
securities of the Company not entitled to vote but which are convertible into,
or exercisable for, securities of the Company entitled to vote generally in the
election of directors shall be counted as if converted or exercised, and each
unit of voting securities shall be counted in proportion to the number of votes
such unit is entitled to cast [UPDATED LANGUAGE WILL CONFORM WITH DEFINITION OF
SALE IN PLAN].
[[INSERT PERFORMANCE MILESTONES, VESTING ACCELERATION PROVISIONS IF
APPLICABLE.]]
3. If the applicable taxes are not required to be withheld at the time of
exercise or issuance, Grantee agrees to pay to the Company the amount of any
such taxes, including Federal and state, thereafter required to be withheld or
collected in respect of the issuance of these Shares or exercise of these
options as is determined by Company's legal or tax counsel.
4. No obligation of Company as to Grantee's continued provision of
services or length of Grantee's provision of services to Company shall be
implied by the terms of this Agreement.
5. This grant shall terminate ten (10) years from the Grant Date, subject
to earlier termination as provided in the Plan.
6. The number and class of Shares covered by this Agreement and the stock
option price shall be appropriately adjusted as determined by the Board of
Directors of the Company to reflect any stock dividend, stock split-up, share
combinations, recapitalization, merger, consolidation, separation,
reorganization, liquidation or the like, of or by the Company.
7. Grantee agrees to enter into a Shareholder Agreement in the form
attached hereto as Appendix A prior to and as a condition of his or her
purchasing any Shares pursuant to this Agreement [NO LONGER APPLICABLE BECAUSE
COMPANY IS NOW A PUBLIC COMPANY].
8. This option is non-transferable other than by will or the laws of
descent and distribution, and is exercisable, during the optionee's lifetime,
only by him or her. This option shall inure to the benefit of and be binding
upon the Company's successors and assigns.
<PAGE> 3
IN WITNESS WHEREOF, Company has caused this Agreement to be executed by
its duly authorized officers, and the Grantee has hereunto set his or her hand
and seal, as of the day and year first above written.
COMPANY: NANOPHASE TECHNOLOGIES CORPORATION
By: _________________________________
___________________, President
GRANTEE: ______________________________
<PAGE> 4
NOTICE OF INTENTION TO EXERCISE STOCK OPTIONS
The undersigned grantee of a Nanophase Technologies Corporation Stock
Option Agreement dated ____________, 199__, to purchase _________ shares of
Nanophase Technologies Corporation common stock hereby gives notice of his or
her intention to exercise the Stock Option (or a portion thereof) and elects to
purchase ____________ shares of Nanophase Technologies Corporation common
stock.
Shares should be issued in the name of the undersigned and should be sent
to the undersigned at:
___________________________________
___________________________________
___________________________________
Dated this ___ day of ______________, 19__.
Social Security Number: _______________________
_______________________________
INSTRUCTIONS: The exercise of these Stock Options is effective on the date the
Company has received all of (1) this Notice of Intention to Exercise Stock
Options, and (2) payment in full in cash of the exercise price for all shares
being purchased pursuant to this Notice, and (3) two copies of the Stock
Purchase Agreement attached to the Stock Option Agreement under which this
Notice is given, both signed by the grantee.
<PAGE> 1
EXHIBIT 5
[LETTERHEAD OF KATTEN MUCHIN & ZAVIS]
(312) 902-5200
May 22, 1998
Nanophase Technologies Corporation
453 Commerce Street
Burr Ridge, Illinois 60521
Ladies and Gentlemen:
We have acted as counsel for Nanophase Technologies Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing of a Registration Statement on Form S-8 (the "Registration Statement")
for the registration for sale under the Securities Act of 1933, as amended (the
"Act"), of 2,758,032 shares of the Company's common stock, $.01 par value per
share (the "Common Stock"), which may be issued pursuant to the Nanophase
Technologies Corporation Amended and Restated 1992 Stock Option Plan, as
amended (the "Plan"). This opinion is being furnished in accordance with the
requirements of Item 605(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined and relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
the following:
1. The Registration Statement;
2. The Certificate of Incorporation of the Company;
3. The By-Laws of the Company;
4. Records of proceedings and actions of the Board of Directors of
the Company relating to the adoption and amendment of the Plan;
5. Written consents of the stockholders of the Company relating to
the adoption and amendment of the Plan;
6. The Plan;
7. The form of Option Agreement under the Plan (the "Option
Agreement");
8. Certificates of public officials, officers, representatives and
agents of the Company, and we have assumed that all of the
representations contained therein are accurate and complete; and
<PAGE> 2
Nanophase Technologies Corporation
May 22, 1998
Page 2
9. Such other instruments, documents, statements and records of
the Company and others as we have deemed relevant and necessary
to examine and rely upon for the purpose of this opinion.
In connection with this opinion, we have assumed the legal capacity of all
natural persons, accuracy and completeness of all documents and records that we
have reviewed, the genuineness of all signatures, the authenticity of the
documents submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed or
reproduced copies.
Based upon and subject to the foregoing, we are of the opinion that the
2,758,032 shares of Common Stock issuable under the Plan, when issued and
delivered by the Company in accordance with the terms of the Plan and the
applicable Option Agreements, will be validly issued, fully paid and
nonassessable securities of the Company.
Our opinion expressed above is limited to the General Corporation Law of
the State of Delaware, and we do not express any opinion herein concerning any
other laws. In addition, we express no opinion herein concerning any statutes,
ordinances, administrative decisions, rules or regulations of any county, town,
municipality or special political subdivision (whether created or enabled
through legislative action at the federal, state or regional level). This
opinion is given as of the date hereof and we assume no obligation to advise
you of changes that may hereafter be brought to our attention. In connection
therewith, we hereby consent to the use of this opinion for filing as Exhibit 5
to the Registration Statement.
Very truly yours,
/s/ Katten Muchin & Zavis
KATTEN MUCHIN & ZAVIS
<PAGE> 1
Exhibit 23.1
CONSENT OF ERNST & YOUNG, LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Nanophase Technologies Corporation Amended and
Restated 1992 Stock Option Plan of our report dated January 23, 1998, with
respect to the financial statements and schedule of Nanophase Technologies
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
Chicago, Illinois /s/ ERNST & YOUNG LLP
May 22, 1998
