As filed with the Securities and Exchange Commission on November 29, 2001
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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NANOPHASE TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-3687863
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1319 Marquette Drive
Romeoville, Illinois 60446
(Address of Principal Executive Offices) (Zip Code)
NANOPHASE TECHNOLOGIES CORPORATION EQUITY COMPENSATION PLAN
(Full title of the plan)
JOSEPH E. CROSS, CHIEF EXECUTIVE OFFICER
NANOPHASE TECHNOLOGIES CORPORATION
1319 Marquette Drive
Romeoville, Illinois 60446
(Name and address of agent for service)
(630) 771-6708
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of each Proposed maximum Proposed maximum
class of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share(2) price(2) registration fee
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Common Stock ($.01 par
value) 900,000 $6.28 $5,652,000 $1,413.00
======================================================================================================================
(1) Pursuant to Rule 416(a) and 416(c), the number of shares being
registered shall include (a) an indeterminate number of shares of
common stock or common stock which may become issuable as a result of
stock splits, stock dividends, or similar transactions in accordance
with the anti-dilution provisions of the Equity Compensation Plan
and (b) such indeterminate amount of interests in the plan that are
deemed to be separate securities under the Security Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low
prices reported on the Nasdaq Stock Market for the Registrant's Common
Stock on November 28, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Nanophase Technologies Corporation
Equity Compensation Plan (the "Plan") as specified by Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference
The following documents previously filed by Nanophase Technologies
Corporation (the "Company") with the Commission are incorporated by reference in
this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 2000 (File No. 0-22333);
(b) all other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since the end of the fiscal year covered by the Company's Annual
Report described in (a) above;
(c) the description of the Company's Common Stock contained in the
Company's registration statement on Form S-1/A filed with the
Commission on November 26, 1997 (file no. 333-36937), including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 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 into this Registration Statement
and shall be a part hereof from the date of filing of such documents. Any
statement contained herein, or in a document all or part of which is
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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description Of Securities
Not Applicable.
Item 5. Interests Of Named Experts And Counsel
Not Applicable.
Item 6. Indemnification Of Officers And Directors
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 or 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.
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 or 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
Exhibit No. Description
----------- -----------
4.1 Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 of the Company's 10-K for the year
ended December 31, 1997).
4.2 Bylaws of the Company, as amended and restated (incorporated by
reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the year ended December 31, 1997).
4.3 2001 Nanophase Technologies Corporation Equity Compensation Plan
5 Opinion of Wildman, Harrold, Allen & Dixon
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Wildman, Harrold, Allen & Dixon (included in Exhibit
5)
24 Power of Attorney (included in the signature page of the
Registration Statement)
Item 9. Undertakings
a. The Company hereby undertakes to file, during any period in which
offers or sales are being made, a post-effective amendment to this
registration statement 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.
b. The Company hereby undertakes 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. The Company hereby undertakes 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.
d. The Company hereby undertakes that, for purposes 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.
e. 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 Delaware Corporation Law, the
Certificate of Incorporation of the Company and the By-Laws of the
Company, the Company has been advised that in the opinion of the
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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 City of Chicago, State of Illinois, on November 28, 2001.
NANOPHASE TECHNOLOGIES CORPORATION
By /s/ JOSEPH E. CROSS
---------------------------
Joesph E. Cross
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Joseph E. Cross and Jess
Jankowski, or either of them, as his attorney-in-fact and agents, with full
power of substitution for him and in his name, place and stead, in any and all
capacities (including without limitation, as Director and/or principal Executive
Officer, principal Financial Officer, principal Accounting Officer or any other
officer of the Company), to sign and execute this Registration Statement on Form
S-8 and any amendment or amendments, including post-effective amendments
thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agents full
power and authority to do and perform any and all acts and things requisite and
necessary to be done, and hereby ratifying and confirming all that said
attorney-in-fact and agent may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on November 28, 2001.
Signature Title
By: /s/ JOSEPH E. CROSS President, Chief Executive Officer
------------------------ (Principal Executive Officer) and a Director
Joseph E. Cross
By: /s/ JESS JANKOWSKI Acting Chief Financial Officer, Corporate
------------------------ Controller, Treasurer and Secretary
Jess Jankowski (Principal Financial and Accounting Officer)
By: /s/ DONALD S. PERKINS Chairman of the Board and Director
------------------------
Donald S. Perkins
By: /s/ JAMES HENDERSON Director
------------------------
James Henderson
By: /s/ JERRY PEARLMAN Director
------------------------
Jerry Pearlman
By: /s/ JAMES A. MCCLUNG Director
------------------------
James A. McClung
By: /s/ RICHARD W. SIEGEL Director
------------------------
Richard W. Siegel
EXHIBIT INDEX
Exhibit No. Description
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4.1 Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 of the Company's 10-K for the year ended
December 31, 1997).
4.2 Bylaws of the Company, as amended and restated (incorporated by
reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the year ended December 31, 1997).
4.3 2001 Nanophase Technologies Corporation Equity Compensation Plan
5 Opinion of Wildman, Harrold, Allen & Dixon
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Wildman, Harrold, Allen & Dixon (included in Exhibit 5)
24 Power of Attorney (included in the signature page of the
Registration Statement)