As filed with the Securities and Exchange
Commission on August 6, 2010
Registration No.
333-______
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMTECH SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its
Charter)
Arizona |
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86-0411215 |
(State or Other Jurisdiction
of |
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(I.R.S. Employer |
Incorporation or Organization) |
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Identification Number) |
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131 South Clark Drive Tempe, Arizona
85281 (Address of
Principal Executive Offices, Including Zip Code)
2007 Employee Stock Incentive
Plan (Full Title
of the Plan)
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Bradley C. Anderson |
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Copy to: |
Chief Financial Officer |
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Christopher D. Johnson,
Esq. |
Amtech Systems, Inc. |
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Scott I. Gruber,
Esq. |
131 South Clark Drive |
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Squire, Sanders & Dempsey
L.L.P. |
Tempe, Arizona 85281 |
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1 E. Washington Street, Suite
2700 |
(480) 967-5146 |
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Phoenix, Arizona
85004 |
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(602)
528-4000 |
(Name, Address and Telephone Number, including Area Code, of
Agent For Service)
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Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company. See the definitions of
"large accelerated filer," "accelerated filer" and "smaller reporting company"
in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer o |
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Accelerated Filer o |
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Non-accelerated Filer o |
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Smaller Reporting Company þ |
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(Do not check
if a smaller reporting company) |
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CALCULATION OF REGISTRATION
FEE
Title of securities to be
registered |
Amount to be registered
(1)(2) |
Proposed maximum offering
price per share (3) |
Proposed maximum aggregate
offering price (3) |
Amount of registration
fee |
Common Stock, par value $.01 per share |
900,000 shares |
$10.105 |
$9,094,500 |
$648.44 |
____________________
(1) |
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Pursuant to
Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement also covers an indeterminate number of
additional shares of common stock of the registrant that become issuable
as a result of any stock split, stock dividend, recapitalization or other
similar transaction that results in an increase in the number of
outstanding shares of common stock of the registrant. This registration
statement shall cover such additional shares. In addition, pursuant to
Rule 416(c) under the Securities Act, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant
to registrant’s 2007 Employee Stock Incentive Plan, as amended (the
“Plan”).
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(2) |
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Pursuant to
General Instruction E to Form S-8, a filing fee is only being paid with
respect to the registration of additional securities for the Plan. This
registration statement on Form S-8 relates to 900,000 additional shares of
common stock, par value $.01, of the registrant, issuable pursuant to the
Plan. A registration statement on Form S-8 covering 500,000 shares (before
stock splits and stock dividends) was previously filed with respect to the
Plan (registration no. 333-145454 filed August 15,
2007).
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(3) |
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Estimated
pursuant to Rule 457(h) under the Securities Act solely for the purpose of
calculating the registration fee. The proposed maximum offering price is
based upon the average of the high and low prices of the common stock as
reported on the NASDAQ Global Select Market on August 3,
2010.
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EXPLANATORY NOTE
INCORPORATION BY REFERENCE: Pursuant to
General Instruction E to Form S-8, the contents of registration statement no.
333-145454 is incorporated herein by this reference.
REGISTRATION OF ADDITIONAL SHARES: This
registration statement on Form S-8 is filed by the registrant to register
900,000 additional shares of common stock, par value $.01 per share, of the
registrant, which may be issued pursuant to an amendment to the Plan authorized
by the shareholders of the registrant on March 11, 2010.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by
Reference.
In this registration statement, the terms
“we,” “our,” “us,” “Amtech,” the “registrant” and the “Corporation” refer to
Amtech System, Inc. The SEC allows us to incorporate by reference the
information we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The information that we
incorporate by reference is considered to be part of this registration
statement. Information that we file with the SEC in the future and incorporate
by reference in this registration statement automatically updates and supersedes
previously filed information as applicable.
We incorporate by reference into this
registration statement the following documents filed by us with the SEC, other
than any portion of any such documents that are not deemed “filed” under the
Securities Exchange Act of 1934 (the “Exchange Act”) in accordance with the
Exchange Act and applicable SEC rules:
- Annual Report on Form 10-K for the
fiscal year ended September 30, 2009.
- Quarterly Report on Form 10-Q for
the fiscal quarter ended December 31, 2009.
- Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 2010.
- Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 2010.
- The information specifically
incorporated by reference into our Annual Report on Form 10-K for the fiscal
year ended September 30, 2009 from our definitive proxy statement on Schedule
14A filed with the SEC on January 28, 2010.
- The description of our common
stock contained in our registration statement filed pursuant to Section 12 of
the Exchange Act; and
- All other reports filed that we
have filed with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act
subsequent to September 30, 2009.
We also incorporate by reference into this
registration statement all documents (other than any portions of any such
documents that are not deemed “filed” under the Exchange Act in accordance with
the Exchange Act and applicable SEC rules) filed by us under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of
this registration statement and before the filing of a post-effective amendment
to this registration statement which indicates all securities offered hereunder
have been sold or that deregisters all securities then remaining unsold.
You may request a copy of these filings, which
we shall deliver to you, together with all exhibits thereto, at no cost, by
writing or telephoning us as follows:
Amtech Systems,
Inc.
Attention: Robert T. Hass
131 South Clark Drive
Tempe, Arizona
85281
(480) 967-5146
3
Any statement contained in a document that is
incorporated by reference will be modified or superseded for all purposes to the
extent that a statement contained in this registration statement, or in any
other document that is subsequently filed with the SEC and incorporated by
reference, modifies or is contrary to that previous statement. Any statement so
modified or superseded will not be deemed a part of this registration statement,
except as so modified or superseded. Since information that we later file with
the SEC will update and supersede previously incorporated information, you
should look at all of the SEC filings that we incorporate by reference to
determine if any of the statements in this registration statement or in any
documents previously incorporated by reference have been modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and
Counsel.
Not applicable.
Item 6. Indemnification of Directors and
Officers.
Section 10-851 of Arizona’s Revised Statutes
enables a corporation to eliminate or limit personal liability
of members of its board of directors for violations of their fiduciary duty of
care. However, Arizona law does not permit the elimination of a director's or
officer's liability: (i) in connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation;
and (ii) in connection with any other proceeding charging improper financial
benefit to the director, whether or not involving action in the director's
official capacity, in which the director was adjudged liable on the basis that
financial benefit was improperly received by the director. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling Amtech pursuant to the
foregoing provision, Amtech has been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in such Act and is
therefore unenforceable.
Pursuant to Amtech’s Articles of
Incorporation, it shall indemnify any and all of its existing and former
directors, officers, employees, and agents against all expenses incurred by them
and each of them, including, but not limited to legal fees, judgments,
penalties, and amounts paid in settlement or compromise, which may arise or be
incurred, rendered, or levied in any legal action brought or threatened against
any of them for or on account of any action or omission alleged to have been
committed while acting within the scope of employment as director, officer,
employee or agent of the corporation, whether or not any action is or has been
filed against them and whether or not any settlement or compromise is approved
by a court, indemnification shall be made by the corporation whether the legal
action brought or threatened is by or in the right of the corporation or by any
other person.
Whenever any existing or former director,
officer, employee, or agent shall report to the President of the corporation or
the chairman of the Board of Directors that he or she has incurred or may incur
expenses, including, but not limited to, legal fees, judgments, penalties, and
amounts paid in settlement or compromise in a legal action brought or threatened
against him or her for or on account of any action or omission alleged to have
been committed by him or her while acting within the scope of his or her
employment as a director, officer, employee or agent of the corporation, the
Board of Directors shall, at its next regular or at a special meeting held
within a reasonable time thereafter, determine in good faith, whether in regard
to the matter involved in the action or contemplated action, such person acted,
failed to act, or refused to act willfully or with gross negligence or with
fraudulent or criminal intent. If the Board of Directors determines, in good
faith, that such person did not act, fail to act, or refuse to act willfully or
with gross negligence or with fraudulent or criminal intent, in regard to the
matter involved in the action or contemplated action, such person acted, failed
to act, or refused to act willfully or with gross negligence or with fraudulent
criminal intent, indemnification shall be mandatory and shall be automatically
extended as specified herein; provided, that the corporation shall have the
right to refuse indemnification in any instance in which the person to whom
indemnification would otherwise have been applicable shall have unreasonably
refused to permit the corporation, at its own expense and through counsel of its
own choosing, to defend him or her in the action.
4
Amtech has purchased insurance on behalf of
its directors and officers against certain liabilities that may be asserted
against, or incurred by, such persons in their capacities as directors or
officers of Amtech, or that may arise out of their status as directors or
officers of the registrants, including liabilities under the federal and state
securities laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit |
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No. |
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Description |
4.3 |
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2007 Employee Stock Incentive Plan, as
amended* |
5.1 |
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Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality
of shares** |
23.1 |
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Consent of Squire, Sanders & Dempsey
L.L.P. (included in Exhibit 5.1 hereto) |
23.2 |
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Consent of Mayer Hoffman McCann, P.C. ** |
24 |
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Powers of attorney
** |
____________________
* |
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Incorporated
herein by reference to Amtech’s current report on Form 8-K, filed with the
SEC on March 17, 2010
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** |
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Filed
herewith |
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;
(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. Notwithstanding the foregoing, any increase or decrease
in the volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the SEC by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the registration
statement.
5
(2) 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.
(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, each filing of the registrant'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.
(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 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.
6
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 duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tempe, State of Arizona, on August 6,
2010.
Amtech Systems,
Inc.
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By: |
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/s/ Bradley C.
Anderson |
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Bradley C. Anderson |
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Vice President and Chief Financial
Officer |
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 date indicated.
Signature |
Title |
Date |
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Chief Executive
Officer and |
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* |
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Director (Principal
Executive |
August 6, 2010 |
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Jong S. Whang |
Officer) |
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Vice President --
Finance, Chief |
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Financial Officer,
Treasurer and |
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* |
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Secretary (Principal Financial |
August 6, 2010 |
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Bradley C. Anderson |
Officer) |
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* |
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Chief Accounting Officer (Principal |
August 6, 2010 |
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Robert T. Hass |
Accounting Officer) |
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* |
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Director |
August 6, 2010 |
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Michael Garnreiter |
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* |
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Director |
August 6, 2010 |
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Alfred W. Giese |
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* |
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Director |
August 6, 2010 |
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Egbert Jan Geert Goudena |
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* |
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Director |
August 6, 2010 |
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Jeong Mo Hwang |
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* |
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Director |
August 6, 2010 |
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Robert F. King |
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* By: |
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/s/ Bradley C.
Anderson |
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Bradley C. Anderson, Attorney-In-Fact
** |
____________________
** By authority of the power of
attorney filed as Exhibit 24 hereto.
EXHIBIT INDEX
Exhibit |
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No. |
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Description |
4.3 |
|
2007 Employee Stock Incentive Plan, as
amended* |
5.1 |
|
Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality
of shares** |
23.1 |
|
Consent of Squire, Sanders & Dempsey
L.L.P. (included in Exhibit 5.1 hereto) |
23.2 |
|
Consent of Mayer Hoffman McCann, P.C. ** |
24 |
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Powers of attorney
** |
____________________
* |
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Incorporated
herein by reference to Amtech’s current report on Form 8-K, filed with the
SEC on March 17, 2010
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** |
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Filed
herewith |