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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PHOTRAN CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Minnesota 41-1697628
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
21875 Grenada Avenue, Lakeville, Minnesota 55044
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(Address of Principal Executive Offices) (Zip Code)
PHOTRAN CORPORATION 1992 STOCK OPTION PLAN
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(Full Title of the Plan)
David E. Stevenson, President
21875 Grenada Avenue
Lakeville, Minnesota 55044
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(Name and Address of Agent for Service)
(612) 469-4880
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(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee(2)
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Common Stock,
no par value 625,000 shares $10.00 $6,250,000 $2,155.17
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(1) Estimated solely for purposes of calculating the registration fee.
The proposed maximum offering price per share is the average of the
high and low prices of the Registrant's common stock as reported by
the Nasdaq National Market on June 28, 1996.
(2) The registration fee has been calculated in accordance with the
provisions of Rule 457(h)(1) under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated herein
by reference:
(a) The Prospectus of the Registrant filed with the Commission on
May 31, 1996 pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Act") (Commission File No. 333-02700C).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since December 31,
1995.
(c) The description of the shares of the Registrant's common stock
contained in Form 10-SB 12G-A filed with the Commission and declared
effective on May 29, 1996 registering such shares under the Exchange Act
(Commission File No. 000-20731), including any amendment or report updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all 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.
ITEM 4. DESCRIPTION OF SECURITIES
No description is required because the Registrant's common stock is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 302A.521 of the Minnesota Business Corporation Act provides that
unless prohibited or limited by a corporation's articles of incorporation or
by-laws, the corporation must indemnify its current and former officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement and which
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were incurred in connection with actions, suits, or proceedings in which such
persons are parties by reason of the fact that they are or were an officer,
director, employee or agent of the corporation if they (i) have not been
indemnified by another organization, (ii) acted in good faith, (iii) received no
improper personal benefit, (iv) in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful and (v) reasonably believed
that the conduct was in the best interests of the corporation. Section 302A.521
also permits a corporation to purchase and maintain insurance on behalf of its
officers, directors, employees and agents against any liability which may be
asserted against, or incurred by, such persons in their capacities as officers,
directors, employees or agents of the corporation, whether or not the
corporation would have been required to indemnify such persons against such
liability under the provisions of such statutory section.
Article VII of the Second Amended and Restated Articles of Incorporation
and Article VI of the Amended and Restated By-Laws of the Registrant provide
that the directors, officers, employees and agents of the Registrant shall have
the rights to indemnification provided by Section 302A.521 of the Minnesota
Business Corporation Act.
The Registrant also maintains directors' and officers' liability insurance
coverage that insures the Registrant and its officers and directors against
damages, judgments, settlements, costs, charges, and expenses incurred by reason
of wrongful acts committed by such persons in their capacities as directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
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4.1 Second Amended and Restated Articles of Incorporation of Photran
Corporation, effective March 2, 1996 (incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form SB-2,
Registration No. 333-02700C (the "Registrant's Registration
Statement")).
4.2 Amended and Restated By-Laws of Photran Corporation, effective
December 23, 1992, as amended, through February 3, 1996 (incorporated
by reference to Exhibit 3.2 to the Registrant's Registration
Statement).
4.3 Warrant for Purchase of Shares of Common Stock, dated November 18,
1992, for the purchase of 1,700 shares, issued to Christopher T.
Vanyo. An identical Warrant For Purchase of Shares of Common Stock was
granted to one other
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individual for the purchase of 1,600 shares (incorporated by reference
to Exhibit 4.3 to the Registrant's Registration Statement).
4.4 Common Stock Purchase Warrant, dated January 5, 1993, for the purchase
of 29,500 shares, issued to R. J. Steichen & Company. Identical
Common Stock Purchase Warrants in the amounts of 149,964 shares,
35,000 shares and 105,254 shares were granted to R. J. Steichen &
Company on February 19, 1993, February 19, 1993, and March 17, 1993,
respectively (incorporated by reference to Exhibit 4.4 to the
Registrant's Registration Statement).
4.5 Form of Warrant for Purchase of Shares of Common Stock. Identical
Warrants for Purchase of Shares of Common Stock in the amounts of
20,000 shares and 60,000 shares were granted to a total of eleven
individuals on August 8, 1993 and September 23, 1993, respectively
(incorporated by reference to Exhibit 4.5 to the Registrant's
Registration Statement).
4.6 Common Stock Purchase Warrant, dated September 23, 1993, for the
purchase of 48,500 shares, issued to R. J. Steichen & Company. An
identical Common Stock Purchase Warrant in the amount of 11,500 shares
was granted to R. J. Steichen & Company on September 24, 1993
(incorporated by reference to Exhibit 4.6 to the Registrant's
Registration Statement).
4.7 Form of Promissory Note. Identical Notes totaling $600,000 in
principal amount were executed by Photran Corporation in favor of ten
individuals on September 23, 1993 (incorporated by reference to
Exhibit 4.7 to the Registrant's Registration Statement).
4.8 Common Stock Purchase Warrant, dated January 7, 1994, for the purchase
of 140,115 shares, issued to R. J. Steichen & Company. Identical
Common Stock Purchase Warrants in the amounts of 11,730 shares and
365,635 shares were granted to R. J. Steichen & Company on January 31,
1994 and February 18, 1994, respectively (incorporated by reference to
Exhibit 4.8 to the Registrant's Registration Statement).
4.10 Stock Purchase Warrant for 75,000 shares of Common Stock, dated May 1,
1995, granted to Steven King (incorporated by reference to Exhibit
4.10 to the Registrant's Registration Statement).
4.11 Promissory Note, dated May 1, 1995, executed by Photran Corporation in
favor of Steven King (incorporated by reference to Exhibit 4.11 to the
Registrant's Registration Statement).
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4.12 Promissory Note, dated May 26, 1995, executed by Photran Corporation
in favor of Bank of America National Trust and Savings Association,
dated May 26, 1995 (incorporated by reference to Exhibit 4.12 to the
Registrant's Registration Statement).
4.13 Form of Warrant for Purchase of Shares of Common Stock. Identical
Warrants for Purchase of Shares of Common Stock were granted to a
total of 28 individuals on October 15, 1995 to purchase a total of
400,000 shares (incorporated by reference to Exhibit 4.13 to the
Registrant's Registration Statement).
4.14 Form of Secured Promissory Note. Identical Notes were executed by
Photran Corporation in favor of 28 individuals on October 15, 1995 for
a total principal amount of $4,000,000 (incorporated by reference to
Exhibit 4.14 to the Registrant's Registration Statement).
4.15 Agent's Warrant to Purchase 40,000 shares of Common Stock, dated
October 31, 1995, granted to John G. Kinnard and Company, Incorporated
(incorporated by reference to Exhibit 4.15 to the Registrant's
Registration Statement).
5.1* Opinion of Henson & Efron, P.A.
23.1 Consent of Henson & Efron, P.A. (included in Exhibit 5.1).
23.2* Consent of Deloitte & Touche LLP.
25.1* Powers of Attorney.
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* Denotes documents filed herewith.
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING.
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, including
any additional or changed material information with respect to the plan of
distribution;
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(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.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8.
The By-Laws of the Registrant and an existing insurance policy provide for
the indemnification of members of the Board of Directors and Registrant officers
for certain liabilities and costs incurred by them in connection with
performance of their duties, including administration of the Plan.
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.
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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 caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Lakeville, State of Minnesota, on the 28th day of June, 1996.
PHOTRAN CORPORATION
By /s/ David E. Stevenson
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David E. Stevenson
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the 28th day of June, 1996 by the
following persons in the capacities indicated.
By: /s/ David E. Stevenson By: /s/ Paul T. Fink
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David E. Stevenson Paul T. Fink
Chief Executive Officer Chief Financial Officer
and Director and Director
(principal executive officer) (principal financial and accounting
officer)
Kathleen V. Stevenson }
Steven King } All Other Directors*
Robert S. Clarke }
* This Registration Statement has been signed by the undersigned as attorney-
in-fact on behalf of each person so indicated pursuant to a power of attorney
duly executed by each such person.
By: /s/ David E. Stevenson
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David E. Stevenson
Attorney-In-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE
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4.1 Second Amended and Restated Articles of Incorporation of
Photran Corporation, effective March 2, 1996 (incorporated
by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form SB-2, Registration No. 333-02700C (the
"Registrant's Registration Statement")).
4.2 Amended and Restated By-Laws of Photran Corporation,
effective December 23, 1992, as amended, through February 3,
1996 (incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement).
4.3 Warrant for Purchase of Shares of Common Stock, dated
November 18, 1992, for the purchase of 1,700 shares, issued
to Christopher T. Vanyo. An identical Warrant For Purchase
of Shares of Common Stock was granted to one other
individual for the purchase of 1,600 shares (incorporated by
reference to Exhibit 4.3 to the Registrant's Registration
Statement).
4.4 Common Stock Purchase Warrant, dated January 5, 1993, for
the purchase of 29,500 shares, issued to R. J. Steichen &
Company. Identical Common Stock Purchase Warrants in the
amounts of 149,964 shares, 35,000 shares and 105,254 shares
were granted to R. J. Steichen & Company on February 19,
1993, February 19, 1993, and March 17, 1993, respectively
(incorporated by reference to Exhibit 4.4 to the
Registrant's Registration Statement).
4.5 Form of Warrant for Purchase of Shares of Common Stock.
Identical Warrants for Purchase of Shares of Common Stock in
the amounts of 20,000 shares and 60,000 shares were granted
to a total of eleven individuals on August 8, 1993 and
September 23, 1993, respectively (incorporated by reference
to Exhibit 4.5 to the Registrant's Registration Statement).
4.6 Common Stock Purchase Warrant, dated September 23, 1993, for
the purchase of 48,500 shares, issued to R. J. Steichen &
Company. An identical Common Stock Purchase Warrant in the
amount of 11,500 shares was granted to R. J. Steichen &
Company on September 24, 1993 (incorporated by reference to
Exhibit 4.6 to the Registrant's Registration Statement).
4.7 Form of Promissory Note. Identical Notes totaling $600,000
in principal amount were executed by Photran Corporation in
favor of ten individuals on September 23, 1993 (incorporated
by reference to Exhibit 4.7 to the Registrant's Registration
Statement).
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PAGE
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4.8 Common Stock Purchase Warrant, dated January 7, 1994, for
the purchase of 140,115 shares, issued to R. J. Steichen &
Company. Identical Common Stock Purchase Warrants in the
amounts of 11,730 shares and 365,635 shares were granted to
R. J. Steichen & Company on January 31, 1994 and February
18, 1994, respectively (incorporated by reference to Exhibit
4.8 to the Registrant's Registration Statement).
4.10 Stock Purchase Warrant for 75,000 shares of Common Stock,
dated May 1, 1995, granted to Steven King (incorporated by
reference to Exhibit 4.10 to the Registrant's Registration
Statement).
4.11 Promissory Note, dated May 1, 1995, executed by Photran
Corporation in favor of Steven King (incorporated by
reference to Exhibit 4.11 to the Registrant's Registration
Statement).
4.12 Promissory Note, dated May 26, 1995, executed by Photran
Corporation in favor of Bank of America National Trust and
Savings Association, dated May 26, 1995 (incorporated by
reference to Exhibit 4.12 to the Registrant's Registration
Statement).
4.13 Form of Warrant for Purchase of Shares of Common Stock.
Identical Warrants for Purchase of Shares of Common Stock
were granted to a total of 28 individuals on October 15,
1995 to purchase a total of 400,000 shares (incorporated by
reference to Exhibit 4.13 to the Registrant's Registration
Statement).
4.14 Form of Secured Promissory Note. Identical Notes were
executed by Photran Corporation in favor of 28 individuals
on October 15, 1995 for a total principal amount of
$4,000,000 (incorporated by reference to Exhibit 4.14 to the
Registrant's Registration Statement).
4.15 Agent's Warrant to Purchase 40,000 shares of Common Stock,
dated October 31, 1995, granted to John G. Kinnard and
Company, Incorporated (incorporated by reference to Exhibit
4.15 to the Registrant's Registration Statement).
5.1* Opinion of Henson & Efron, P.A......................................10
23.1 Consent of Henson & Efron, P.A. (included in Exhibit 5.1)
23.2* Consent of Deloitte & Touche LLP....................................11
25.1* Powers of Attorney..................................................12
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* Denotes documents filed herewith.
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EXHIBIT 5.1
OPINION OF HENSON & EFRON, P.A.
June 28, 1996
Photran Corporation
21875 Grenada Avenue
Lakeville, Minnesota 55044
Re: Registration Statement on Form S-8
Our File No. P405/30241
Ladies and Gentlemen:
We have served as counsel for Photran Corporation (the "Company") in
connection with the registration on Form S-8 of shares of the common stock of
the Company, no par value, to be issued under the Photran Corporation 1992 Stock
Option Plan (the "Plan"). We have examined such documents and have reviewed
such matters of law as we have deemed necessary for the purposes of rendering
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of Minnesota.
2. The shares of common stock of the Company issuable pursuant to the
Plan will, when issued in accordance with the terms of the Plan, be legally and
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-8.
Very truly yours,
HENSON & EFRON, P.A.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Photran Corporation on Form S-8 of our report (which expresses an
unqualified opinion and includes an explanatory paragraph concerning Photran
Corporation's ability to continue as a going concern) dated March 15, 1996
appearing in Amendment No. 3 on Form 10-SB (Commission File No. 333-02700C)
which is incorporated by reference in the Registration Statement of Photran
Corporation on Form 10SB 12G-A.
DELOITTE & TOUCHE LLP
Minneapolis, Minnesota
June 28, 1996
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EXHIBIT 25.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of Photran
Corporation, a Minnesota corporation, hereby constitutes and appoints David E.
Stevenson and Paul T. Fink, and each of them, his/her attorneys-in-fact, with
full power of substitution, for the purpose of signing on his/her behalf as a
director of Photran Corporation the Registration Statement on Form S-8 or other
applicable forms relating to the issuance of 625,000 common shares under the
Photran Corporation 1992 Stock Incentive Plan, and all amendments (including
post-effective amendments) thereto, to be filed with the Securities and Exchange
Commission within the next sixty days, and to file the same, with all exhibits
thereto and other supporting documents, with the Commission, granting unto such
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 24th day of June, 1996.
/s/ Kathleen Stevenson
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Kathleen Stevenson
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EXHIBIT 25.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of Photran
Corporation, a Minnesota corporation, hereby constitutes and appoints David E.
Stevenson and Paul T. Fink, and each of them, his/her attorneys-in-fact, with
full power of substitution, for the purpose of signing on his/her behalf as a
director of Photran Corporation the Registration Statement on Form S-8 or other
applicable forms relating to the issuance of 625,000 common shares under the
Photran Corporation 1992 Stock Incentive Plan, and all amendments (including
post-effective amendments) thereto, to be filed with the Securities and Exchange
Commission within the next sixty days, and to file the same, with all exhibits
thereto and other supporting documents, with the Commission, granting unto such
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 24th day of June, 1996.
/s/ Steven King
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Steven King
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EXHIBIT 25.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of Photran
Corporation, a Minnesota corporation, hereby constitutes and appoints David E.
Stevenson and Paul T. Fink, and each of them, his/her attorneys-in-fact, with
full power of substitution, for the purpose of signing on his/her behalf as a
director of Photran Corporation the Registration Statement on Form S-8 or other
applicable forms relating to the issuance of 625,000 common shares under the
Photran Corporation 1992 Stock Incentive Plan, and all amendments (including
post-effective amendments) thereto, to be filed with the Securities and Exchange
Commission within the next sixty days, and to file the same, with all exhibits
thereto and other supporting documents, with the Commission, granting unto such
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 24th day of June, 1996.
/s/ Robert S. Clarke
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Robert S. Clarke
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