Photoworks S-8 Registration of securities for employees

As filed with the Securities and Exchange Commission on April 4, 2003         Registration No. 333-            

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

PHOTOWORKS, INC.
(Exact Name of Registrant as Specified in Its Charter)

Washington
(State or Other Jurisdiction
of Incorporation or Organization)

91-0964899
(I.R.S. Employer Identification No.)

                                1260 16th Avenue West, Seattle, Washington                                98119-3401
                                (Address of Principal Executive Offices)                                (Zip Code)

PHOTOWORKS, INC. 1999 STOCK INCENTIVE COMPENSATION PLAN, as amended

(Full Title of the Plan)

Gary R. Christophersen
President and Chief Executive Officer
PhotoWorks, Inc.
1260 16th Avenue West
        Seattle, Washington 98119-3401       
(Name and Address of Agent for Service)

(206) 281-1390
(Telephone Number, Including Area Code, of Agent for Service)

CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered	Amount To Be Registered	Proposed Maximum Offering Price Per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee (2)
common stock, par value $0.01 (1)	500,000 shares	$0.160	$80,000.00	$6.48

(1) Also includes associated "preferred share purchase rights" to purchase shares of common stock which are not currently separable from the shares of common stock and are not currently exercisable. 

(2) The registration fee was calculated in accordance with Rule 457(h)(i) under the Securities Act of 1933, as amended (the "Act") based on the average of the closing bid and asked prices of the Company's common stock on March 31, 2003, as quoted on the OTC Bulletin Board as determined in accordance with Rule 457(c) under the Act.

 PART II

INFORMATION REQUIRED IN THE REGISTRATION

STATEMENT

                The shares being registered herein are additional shares of common stock authorized to be issued under Registrant's 1999 Stock Incentive Compensation Plan, as amended as of July 25, 2000; December 20, 2000; February 6, 2001 and February 5, 2003. 

Item 3.  Incorporation of Documents by Reference.

                The following documents filed by PhotoWorks, Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement:

                (a)                Annual Report on Form 10‑K for the year ended September 28, 2002;

                (b)                Quarterly Report on Form 10-Q for the quarter ended December 28, 2002; and

                (c)                The description of the Registrant's Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on January 27, 1987, as amended by the Registrant's Form 8-A/A filed with the Commission on May 31, 1996 and the description of the preferred share purchase rights contained in Item 1 of the Registrant's Registration Statement on Form 8-A filed with the Commission on December 17, 1999, and any amendments or reports filed for the purpose of updating these descriptions.

                All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 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 part hereof from the date of filing of such documents.

Item 4.  Description of Securities.

                Not Applicable

Item 5.  Interests of Named Experts and Counsel.

                None

Item 6.  Indemnification of Directors and Officers.

                Section 23B.08.320 of the Washington Business Corporations Act (the "WBCA") permits a corporation to limit its directors' liability to the corporation or its shareholders for monetary damages for acts or omissions as a director, except for (a) acts or omissions involving intentional misconduct or a knowing violation of law, (b) certain unlawful distributions or loans in violation of Section 23B.08.310 of the Revised Code of Washington, or (c) transactions whereby the director received an improper personal benefit.  Article XI of the Registrant's Third Amended and Restated Articles of Incorporation contains provisions limiting the liability of Registrant's directors to the Registrant or its shareholders to the fullest extent permitted by Washington law.

                Sections 23B.08.500 through 23B.08.600 of the WBCA authorize a corporation to indemnify its directors, officers, employees and agents against certain liabilities they may incur in such capacities, including liabilities arising under the Securities Act of 1933, as amended (the "Securities Act") provided they acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation.  Article IX of the Registrant's Amended and Restated Bylaws requires the Registrant to indemnify its directors, officers, employees and other agents to the fullest extent permitted by Washington law.

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                The above discussion of the WBCA and the Registrant's Amended and Restated Bylaws and Third Amended and Restated Articles of Incorporation is not intended to be exhaustive and is qualified in its entirety by reference to such statute, the Amended and Restated Bylaws and the Third Amended and Restated Articles of Incorporation, respectively.

Item 7.  Exemption from Registration Claimed.

                Not Applicable

Item 8.  Exhibits.

Exhibit Number	Exhibit
4.1	PhotoWorks, Inc. 1999 Stock Incentive Compensation Plan, as amended as of July 25, 2000 (Incorporated by reference to Exhibit 4.1 to the Registrant's Registration Statement on Form S-8 filed with the Commission on May 24, 2000, File No. 333-37698).
4.2	PhotoWorks, Inc. Amendment No. 1 to 1999 Stock Incentive Compensation Plan  (Incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 filed with the Commission on May 16, 2001, File No. 333-61048).
4.3	PhotoWorks, Inc. Amendment No. 2 to 1999 Stock Incentive Compensation Plan.
5.1	Opinion of Heller Ehrman White & McAuliffe LLP.
23.1	Consent of Heller Ehrman White & McAuliffe LLP (Included in its opinion filed as Exhibit 5.1).
23.2	Consent of Ernst & Young LLP, Independent Auditors.
24	Power of Attorney (Included on the signature page of this Registration Statement).

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, represent a fundamental change in the information set forth in the Registration Statement;

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                                                (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)(1)(i) and (a)(1)(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 Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.

                                (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)                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 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 Securities Act of 1933 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 of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

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Signatures

The Registrant.  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 City of Seattle, State of Washington, on this 2nd day of April, 2003.

	PHOTOWORKS, INC.
By:	/s/ Gary R. Christophersen
	Gary R. Christophersen, President and Chief Executive Officer

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Gary R. Christophersen and Loran Cashmore Bond, or either of them, his true and lawful attorney-in-fact, with the power of substitution and resubstitution, for him in his name, place or stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact and their agents or substitutes, may lawfully do or lawfully cause to be done by virtue hereof. 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

/s/    Gary R. Christophersen         Gary R. Christophersen	President, Chief Executive Officer and Director (Principal Executive Officer)	April 2, 2003
/s/    L. Cashmore Bond Loran Cashmore Bond	Chief Accounting Officer (Principal Financial and Accounting Officer)	April 2, 2003
/s/    Ross Chapin     Ross Chapin	Director	April 2, 2003
/s/    Paul Goodrich Paul Goodrich	Director	April 2, 2003
/s/   Matthew Kursh Matthew Kursh	Director	April 2, 2003
/s/    Douglas A. Swerland Douglas A. Swerland	Director	April 2, 2003
/s/    Douglas Rowan Douglas Rowan	Director	April 3, 2003

EXHIBIT INDEX

Exhibit Number	Exhibit
4.1	PhotoWorks, Inc. 1999 Stock Incentive Compensation Plan, as amended as of July 25, 2000 (Incorporated by reference to Exhibit 4.1 to the Registrant's Registration Statement on Form S-8 filed with the Commission on May 24, 2000, File No. 333-37698).
4.2	PhotoWorks, Inc. Amendment No. 1 to 1999 Stock Incentive Compensation Plan  (Incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 filed with the Commission on May 16, 2001, File No. 333-61048).
4.3	PhotoWorks, Inc. Amendment No. 2 to 1999 Stock Incentive Compensation Plan.
5.1	Opinion of Heller Ehrman White & McAuliffe LLP.
23.1	Consent of Heller Ehrman White & McAuliffe LLP (Included in its opinion filed as Exhibit 5.1).
23.2	Consent of Ernst & Young LLP, Independent Auditors.
24	Power of Attorney (Included on the signature page of this Registration Statement).