-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GcSZVrJqf2fXNdt/lWbv7qtnLhmZGNL4h9uCBN/o3P540CAguwj1impwi0uF1+Ai pjdnu2zbAG8t8Fxm2vJdsw== 0000950137-98-002265.txt : 19980525 0000950137-98-002265.hdr.sgml : 19980525 ACCESSION NUMBER: 0000950137-98-002265 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980522 EFFECTIVENESS DATE: 19980522 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NANOPHASE TECHNOLOGIES CORPORATION CENTRAL INDEX KEY: 0000883107 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS PRIMARY METAL PRODUCTS [3390] IRS NUMBER: 363687863 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-53445 FILM NUMBER: 98630787 BUSINESS ADDRESS: STREET 1: 453 COMMERCE ST CITY: BURR RIDGE STATE: IL ZIP: 60521 BUSINESS PHONE: 6303231200 MAIL ADDRESS: STREET 1: 453 COMMERCE STREET CITY: BURR RIDGE STATE: IL ZIP: 60521 S-8 1 FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 1998 REGISTRATION NO. 333- ================================================================================ 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
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 - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share 2,758,032 shares See Footnote 2 below $11,869,539 $3,502 ==================================================================================================================================
(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. ================================================================================ 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 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 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 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 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 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). EX-4.5 2 FORM OF OPTION AGREEMENT 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:
YEARS AFTER GRANT DATE PERCENTAGE EXERCISABLE ---------------------- ---------------------- _________, 199__ 20% _________, 199__ 40% _________, 199__ 60% _________, 199__ 80% _________, 199__ 100%
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 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. 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: ______________________________ 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. EX-5 3 LEGALITY OF SECURITIES 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 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 EX-23.1 4 CONSENT OF INDEPENDENT AUDITORS 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 -----END PRIVACY-ENHANCED MESSAGE-----