As filed with the Securities and
Exchange Commission on May 24, 2000 Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHOTOWORKS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Washington
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(State or Other Jurisdiction
of Incorporation or Organization)
91-0964899
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(I.R.S. Employer Identification No.)
1260 16th Avenue West, Seattle, Washington 98119-3401
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(Address of Principal Executive Offices) (Zip Code)
PHOTOWORKS, INC. 1999 STOCK INCENTIVE COMPENSATION PLAN
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(Full Title of the Plan)
Gary R. Christophersen
President and Chief Executive Officer
PhotoWorks, Inc.
1260 16th Avenue West
Seattle, Washington 98119-3401
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(Name and Address of Agent for Service)
(206) 281-1390
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(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
- ------------------------- ----------------------- ----------------------- ---------------------- -----------------------
Proposed
Title of Proposed Maximum Maximum Amount of
Securities Amount To Be Offering Price Aggregate Registration
To Be Registered Registered Per Share Offering Price Fee (2)
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common stock, 800,000
par value $0.01 (1) shares $3,375 $2,700,000 $712
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(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 price of the
outstanding shares of common stock as of May 19, 2000, as determined in
accordance with Rule 457(c) under the Act.
Page 1 of 6 pages
Exhibit Index is located on page 6.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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 25,
1999 as amended by Form 10-K/A filed on January 14, 2000;
(b) Quarterly Report on Form 10-Q for the quarter ended March 25,
2000;
(c) Current Report on Form 8-K dated February 16, 2000;
(d) Quarterly Report on Form 10-Q for the quarter ended December
25, 1999;
(e) Current Report on Form 8-K dated December 17, 1999; and
(f) 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.
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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.
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
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4.1 PhotoWorks, Inc. 1999 Stock Incentive Compensation Plan.
4.2 Form of PhotoWorks, Inc. 1999 Stock Incentive Compensation
Plan NonQualified Stock Option Agreement.
4.3 Rights Agreement dated December 16, 1999 between the
Registrant ChaseMellon Shareholder Services L.L.C., as
Rights Agent (Incorporated by reference to Exhibit 4.1 to
the Current Report on Form 8-K filed with the Commission on
December 17, 1999).
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 19 day of
May, 2000.
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.
Signature Title Date
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/s/ Gary R. Christophersen President, Chief Executive Officer and May 19, 2000
Gary R. Christophersen Director (Principal Executive Officer)
/s/ L. Cashmore Bond Chief Financial Officer (Principal Financial May 19, 2000
Loran Cashmore Bond and Accounting Officer)
/s/ Ross Chapin Director May 19, 2000
Ross Chapin
/s/ Paul Goodrich Director May 19, 2000
Paul Goodrich
/s/ Matthew Kursh Director May 19, 2000
Matthew Kursh
______________________ Director May 19, 2000
Douglas A. Swerland
/s/ Craig E. Tall Director May 19, 2000
Craig E. Tall
/s/ Peter H. Van Oppen Director May 19, 2000
Peter H. van Oppen
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EXHIBIT INDEX
Exhibit Number Exhibit
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4.1 PhotoWorks, Inc. 1999 Stock Incentive Compensation Plan
4.2 Form of PhotoWorks, Inc. 1999 Stock Incentive Compensation
Plan NonQualified Stock Option Agreement
4.3 Rights Agreement dated December 16, 1999 between the
Registrant ChaseMellon Shareholder Services L.L.C., as Rights
Agent (Incorporated by reference to Exhibit 4.1 to the
Current Report on Form 8-K filed with the Commission on
December 17, 1999)
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)
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