As filed with the Securities and Exchange Commission on February 11, 2003
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 86-0411215
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
131 South Clark Drive, Tempe, Arizona 85281
(Address of Principal Executive offices) (Zip Code)
1998 Stock Option Plan
(Full title of the plan)
Robert T. Hass
Amtech Systems, Inc.
131 South Clark Drive
Tempe, Arizona 85281
(Name and address of agent for service)
(480) 967-5146
(Telephone number, including area code, of agent for service)
With copy to:
Gregory R. Hall, Esq.
Squire, Sanders & Dempsey L.L.P.
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
(602) 528-4000
Page 1 of 8
Exhibit Index on Page 8
CALCULATION OF REGISTRATION FEE
========================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
----------------------------------------------------------------------------------------
Common Stock, $.01 par value 200,000(1) $3.02(2) $604,000(1) $55.57
========================================================================================
(1) This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to adjustments deemed necessary or
equitable by the Board of Directors of the Registrant upon stock splits,
stock dividends, or other similar changes in capitalization, as provided in
the 1998 Stock Option Plan.
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933, on
the basis of the average of the high and low prices for shares of Common
Stock on February 6, 2003, as reported on the Nasdaq SmallCap Market.
This Registration Statement also relates to the Form S-8 Registration Statement
No. 333-46086, the contents of which are incorporated herein by reference
pursuant to General Instruction E to Form S-8. Under such Registration Statement
the Registrant registered 50,000 shares of common stock for issuance under the
Amtech Systems, Inc. 1998 Stock Option Plan.
This Registration Statement shall become effective automatically upon the date
of filing in accordance with Section 8(a) of the Securities Act of 1933, as
amended.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to employees in accordance with Form S-8 and Securities Act
Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Registration Statement and shall be deemed a part hereof:
(a) the Annual Report of Amtech Systems, Inc. ("Amtech") on Form 10-K for
the fiscal year ended September 30, 2002, as amended by Form 10-K/A filed on
February 11, 2003;
(b) all reports filed by Amtech with the Securities and Exchange Commission
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") subsequent to September 30, 2002; and
(c) the description of Amtech's common stock contained in Amtech's
registration statement filed pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by Amtech pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment to this Registration Statement 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 in this Registration Statement and to be a part hereof from the date
of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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
3
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4 1998 Stock Option Plan (as amended March 29, 2002)
5 Form of opinion rendered by Squire, Sanders & Dempsey L.L.P
(including consent)
23.1 Consent of KPMG LLP
23.2 Consent of Counsel (see Exhibit 5)
24 Powers of Attorney
4
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 Notwithstanding the foregoing, any
increase or decrease in 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 percent 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) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 the
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
5
(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 of 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 this 11th day of
February, 2003.
AMTECH SYSTEMS, INC.,
an Arizona corporation
By /s/ Jong S. Whang
-------------------------------------
Jong S. Whang, President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Chairman of the Board, February 11, 2003
/s/ Jong S. Whang President and Chief Executive
----------------------- Officer (Chief Executive
Jong S. Whang Officer)
/s/ Robert T. Hass Vice President-Finance, February 11, 2003
----------------------- Chief Financial Officer,
Robert T. Hass Secretary and Treasurer
(Chief Financial & Accounting
Officer) and Director
/s/ * Director February 11, 2003
-----------------------
Alvin Katz
/s/ * Director February 11, 2003
-----------------------
Bruce R. Thaw
*/s/ Robert T. Hass Director February 11, 2003
-----------------------
Robert T. Hass
Attorney-in-Fact
7
EXHIBIT INDEX
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
------ ----------- ----------------
4 1998 Stock Option Plan (as amended March 29, 2002) *
5 Form of opinion rendered by Squire, Sanders
& Dempsey L.L.P (including consent) *
23.1 Consent of KPMG LLP *
23.2 Consent of Counsel See Exhibit 5
24 Powers of Attorney See Signature Page
----------
* Filed herewith.
8