As filed with the Securities and Exchange Commission on August 14, 1996
February 8, 2011
Registration No. ================================================================================
333-___
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
AMTECH SYSTEMS, INC.
(Exact name
(Exact Name of registrantRegistrant as specifiedSpecified in its charter)
Arizona 86-0411215
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) I.D. Number)
Its Charter)
| Arizona | 86-0411215 |
| (State or Other Jurisdiction of | (I.R.S. Employer |
| Incorporation or Organization) | Identification Number) |
131 South Clark Drive
Tempe, ArizonaAZ 85281
(602)
(480) 967-5146
(Address,
(Address, including zip code,Zip Code, and telephone number,Telephone Number, including area code,Area Code of registrant's principal executive offices)
Jong S. Whang
Registrant's Principal Executive Offices)
Bradley C. Anderson
Chief Financial Officer
Amtech Systems, Inc.
Inc
131 South Clark Drive
Tempe, ArizonaAZ 85281
(602)
(480) 967-5146
(Name, address,
(Name, Address, including zip code,Zip Code and telephone number,Telephone Number, including area code,Area Code, of agent for service)
-------------------------
The Commission is requested to send copies of all
communicationsAgent For Service)
Copy to:
Christopher D. Johnson, Esq.
Ryan J. Kretchmer, Esq.
Squire, Sanders & Dempsey 40 North Central Avenue, (US) LLP
1 East Washington
Suite 2600
2700
Phoenix, ArizonaAZ 85004
(602) 528-4000
_____________________________________________
Approximate date of commencement of proposed sale to the public: As soon as
practicable fromFrom time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. | |
o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. |X|
x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. | |
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. | |
o
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box. | |
o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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 | | Accelerated Filer x | | Non-accelerated Filer o
(Do not check if a smaller reporting company) | | Smaller Reporting Company o |
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be
registered (1) | Amount to be registered
(1)(2) | Proposed maximum
offering price per share
(2)(3) | Proposed maximum
aggregate offering price
(2)(3) | Amount of registration
fee (2)(4) |
| Common Stock, par | | | | |
| value $.01 per share | | | | |
| Preferred Stock | | | | |
| Debt Securities | | | | |
| Warrants | | | | |
| Units | | | | |
| Total: | | | $60,000,000 | $6,966 |
=========================================================================================================================
Proposed Proposed
Maximum Maximum
Aggregate Aggregate
Title| (1) | There are being registered under this registration statement such indeterminate number of Each Classshares of Amountcommon stock and preferred stock; such indeterminate principal amount of debt securities; such indeterminate number of warrants to purchase common stock, preferred stock and/or debt securities; and such indeterminate number of units as may be Price Per Offering Amountsold by the registrant from time to time, which together shall have an aggregate initial offering price not to exceed $60,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount at maturity as shall result in an aggregate initial offering price not to exceed $60,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock, amount of debt securities and warrants as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange; upon exercise of warrants; or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| (2) | In United States dollars or the equivalent thereof in any other currency, currency unit or units or composite currency or currencies. |
|
| (3) | The proposed maximum per unit and aggregate offering prices per class of securities will be Registered Registered(1) Share Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
Common Stock 134,500 (2) $178,550 (3) $100
=========================================================================================================================
determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered under this registration statement and is not specified as to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933, as amended. |
| |
| (4) | Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
(1) This Registration Statement covers (i) up to 94,500 shares of Common Stock
issued or to be issued pursuant to options (the "Options") granted from
time to time pursuant to the Company's 1983 Stock Option Plan (the "Plan"),
which Options are reflected by Incentive Stock Option Agreements (the
"Option Agreements"), and (ii) up to 40,000 shares of Common Stock to be
issued pursuant to Directors Stock Purchase Agreements (the "Directors
Agreements") entered into from time to time between the Company and certain
directors of the Company, granting such Directors rights to purchase shares
of Common Stock (the "Purchase Rights"). This Registration Statement
covers, in addition to the shares of Common Stock being registered hereby,
a presently indeterminate number of additional shares of Common Stock that
may become issuable in certain events upon exercise of the Purchase Rights
and the Options pursuant to adjustments in the number of shares of Common
Stock for which a Purchase Right or Option is exercisable. The foregoing
amounts of shares of Common Stock have been adjusted to reflect a 2-for-1
forward stock split of the Company's outstanding Common Stock effected
March 29, 1996.
(2) The purchase price for such shares of Common Stock range from $0.625 to
$2.60 per share. Such amounts have been adjusted to reflect a 2-for-1
forward stock split of the Company's outstanding Common Stock effected
March 29, 1996.
(3) This amount represents the purchase price to be paid for the shares
pursuant to the Directors Agreements or Option Agreements, as applicable.
================================================================================
The Registrantregistrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this Registration
Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, (the "Securities Act") or until this
Registration Statementthe registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
================================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
| The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED August 14, 1996
Prospectus
AMTECH SYSTEMS, INC.
134,500 Shares of FEBRUARY 8, 2011
PROSPECTUS
Amtech Systems, Inc.
$60,000,000
Common Stock
This Prospectus relates to 94,500 shares of the $.01 par value common stock
(the "Common Stock"), of AMTECH SYSTEMS, INC. ("Amtech" or the "Company") which
Preferred Stock
Debt Securities
Warrants
Units
We may be issued pursuant to options (the "Options") grantedoffer and sell from time to time, pursuantin one or more series or issuances and on terms that we will determine at the time of the offering, any combination of the securities described in this prospectus, up to an aggregate amount of $60,000,000.
We will provide specific terms of any securities that we actually offer for sale in supplements to this prospectus. Any prospectus supplement may also add, update or change information contained in this prospectus. The names of any underwriters, dealers or agents involved in the sale of our securities and their compensation will be described in the applicable prospectus supplement. The net proceeds we expect to receive from such sales will be set forth in such prospectus supplement.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement. You should carefully read this prospectus and the applicable prospectus supplement as well as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities offered hereby. This prospectus also covers common stock or preferred stock issuable upon exercise, conversion or exchange of warrants, rights and/or debt securities.
Our common stock is listed on the NASDAQ Global Market (“NASDAQ”) under the symbol “ASYS” and, on February 4, 2011, the reported last sale price of our common stock was $27.16. We will make application to list any shares of common stock sold by us under this prospectus and any prospectus supplement on NASDAQ. We will provide information in any applicable prospectus supplement regarding any listing of securities other than shares of our common stock on any securities exchange.
Our principal offices are located at 131 South Clark Drive, Tempe, Arizona 85281 and our telephone number is (480) 967-5146.
YOU SHOULD CONSIDER THE RISKS THAT WE HAVE DESCRIBED IN THIS PROSPECTUS AND IN THEACCOMPANYING PROSPECTUS SUPPLEMENT BEFORE YOU INVEST. SEE “RISK FACTORS” ON PAGE 2.
Neither the Securities and Exchange Commission nor any state securities commission hasapproved or disapproved of these securities or passed upon the adequacy or accuracy of thisprospectus. Any representation to the Company's 1983 Stock Option Plancontrary is a criminal offense.
The date of this prospectus is _____________ ___, ______.
TABLE OF CONTENTS
| Page |
| No. |
| ABOUT THIS PROSPECTUS | 1 |
| PROSPECTUS SUMMARY | 1 |
| RISK FACTORS | 2 |
| WHERE YOU CAN FIND MORE INFORMATION | 3 |
| FORWARD-LOOKING STATEMENTS | 3 |
| INCORPORATION OF CERTAIN INFORMATION BY REFERENCE | 3 |
| PROSPECTUS SUPPLEMENTS | 5 |
| USE OF PROCEEDS | 5 |
| SECURITIES WE MAY OFFER | 5 |
| DESCRIPTION OF COMMON AND PREFERRED STOCK | 6 |
| DESCRIPTION OF DEBT SECURITIES | 12 |
| DESCRIPTION OF WARRANTS | 24 |
| DESCRIPTION OF UNITS | 27 |
| LEGAL OWNERSHIP OF SECURITIES | 28 |
| PLAN OF DISTRIBUTION | 32 |
| LEGAL MATTERS | 34 |
| EXPERTS | 34 |
EXHIBITS
| 1.1* | | Form of Underwriting Agreement |
| 4.1 | | Articles of Incorporation, incorporated by reference to Amtech’s Form S-1 Registration Statement No. 2-83934-LA |
| 4.2 | | Articles of Amendment to Articles of Incorporation, dated April 27, 1983, incorporated by reference to Amtech’s Form S-1 Registration Statement No. 2-83934-LA |
| 4.3 | | Articles of Amendment to Articles of Incorporation, dated May 19, 1987, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1987 |
| 4.4 | | Articles of Amendment to Articles of Incorporation, dated May 2, 1988, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1988 |
| 4.5 | | Articles of Amendment to Articles of Incorporation, dated May 28, 1993, incorporated by reference to Amtech’s Form S-1 Registration Statement (File No. 33-77368) |
| 4.6 | | Articles of Amendment to Articles of Incorporation, dated March 14, 1999, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1999 |
| 4.7 | | Certificate of Designations, Preferences and Privileges of the Series A Convertible Preferred Stock, dated April 21, 2005, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2005 |
| 4.8 | | Amended and Restated Bylaws, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2008 |
| 4.9 | | Amended and Restated Rights Agreement as of December 15, 2008, by and between Amtech Systems, Inc. and Computershare Trust Company, N.A., including the form of Certificate of Designation, the form of Rights Certificate and the Summary of Rights attached thereto as Exhibits A, B and C, respectively, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 15, 2008 |
i
TABLE OF CONTENTS
(continued)
| 4.10 | | Form of Subscription Agreement for the Series A Convertible Preferred Stock, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2005 |
| 4.11* | | Specimen Certificate of Preferred Stock |
| 4.12* | | Form of Warrant Agreement and Certificate |
| 4.13* | | Form of Debt Security |
| 4.14 | | Form of Indenture |
| 4.15* | | Form of Unit Agreement and Unit Certificate |
| 5.1 | | Opinion of counsel regarding legality of securities |
| 12.1* | | Statement of Computation of Ratio of Earnings to Fixed Charges |
| 23.1 | | Consent of counsel (included in Exhibit 5.1 hereto) |
| 23.2 | | Consent of Mayer Hoffman McCann P.C. |
| 24.1 | | Power of attorney |
| 25.1* | | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Trustee under the Indenture |
| * | To be filed by amendment to this registration statement or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
ii
ABOUT THIS PROSPECTUS
This prospectus is part of a “shelf” registration statement that we filed with the Securities and Exchange Commission (the "Plan"), which Options are
reflected by Incentive Stock Option Agreements (the "Option Agreements")SEC). This
Prospectus also relates to 40,000 sharesBy using a shelf registration statement, we may offer and sell any combination of Common Stock which may be issued
pursuant to Directors Stock Purchase Agreements (the "Directors Agreements")
entered intothe securities described in this prospectus, in one or more offerings from time to time betweenover the Companynext three years, up to a total dollar amount of $60,000,000. This prospectus provides you with general information. Each time we sell securities under this shelf registration statement, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement also may add, update or change information contained in the prospectus. You should read both this prospectus and the prospectus supplement related to any offering as well as additional information described under the headings “Incorporation By Reference” and 220;Where You Can Find More Information.”
You should rely only on the information that we have provided or incorporated by reference in this prospectus, any prospectus supplement, any free writing prospectus or other written communication we may authorize to be delivered to you. We have not provided, and have not authorized anyone else to provide, you with different or additional information.
This prospectus, any prospectus supplement, any free writing prospectus and any other written communication do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they specifically relate, nor does this prospectus, any prospectus supplement, any free writing prospectus or any other written communication constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus or in the documents incorporated by reference herein, any prospectus supplement, any free writing prospectus or other written communication is accurate as of any d ate other than the date noted therein or, in the case of documents incorporated by reference, the filing date thereof, regardless of its time of delivery, and you should not consider any information in this prospectus or in the documents incorporated by reference herein, any prospectus supplement, any free writing prospectus or other written communication to be investment, legal or tax advice. We encourage you to consult your own counsel, accountant and other advisors for legal, tax, business, financial and related advice regarding an investment in our securities.
For further information about our business and the securities, you should refer to the registration statement and its exhibits. The exhibits to our registration statement contain the full text of certain directorscontracts and other important documents we have summarized in this prospectus. Since these summaries may not contain all the information that you may find important in deciding whether to purchase the securities we may offer, you should review the full text of these documents.
This prospectus does not contain all the information provided in the registration statement we filed with the SEC. For further information about us or our securities offered hereby, you should refer to that registration statement, which you can obtain from the SEC as described below under the caption “Where You Can Find More Information.”
We may sell securities through underwriters or dealers, through agents, directly to purchasers or through a combination of these methods. We and our agents reserve the sole right to accept or reject, in whole or in part, any proposed purchase of securities. The prospectus supplement, which we will provide to you each time we offer securities, will set forth the names of any underwriters, agents or others involved in the sale of securities and any applicable fee, commission or discount arrangements with them. See the information described below under the caption “Plan of Distribution.”
In this prospectus, the terms “we,” “our,” “us,” “Amtech” and the “Company” refer to Amtech Systems, Inc., unless otherwise specified.
PROSPECTUS SUMMARY
The following summary does not contain all of the information that may be important to purchasers of our securities. Prospective purchasers of securities should carefully review the detailed information and financial statements, including the notes thereto, appearing elsewhere in or incorporated by reference into this prospectus.
1
Our Company granting
Amtech was incorporated in Arizona in October 1981, under the name Quartz Engineering & Materials, Inc. We changed to our present name in 1987. We conduct operations through four wholly-owned subsidiaries: Tempress Systems, Inc., a Texas corporation with all of its operations in The Netherlands, acquired in 1994, also referred to herein as Tempress Systems or Tempress®; P.R. Hoffman Machine Products, Inc. (PR Hoffman), an Arizona corporation based in Carlisle, Pennsylvania, acquired in July 1997; Bruce Technologies, Inc. (Bruce Technologies®), a Massachusetts corporation based in Billerica, Massachusetts, acquired in July 2004, or Bruce Technologies; and R2D Automation SAS (R2D), a French corporation located near Montpellier, France, acquired in October 2007.
We are a leading supplier of horizontal diffusion furnace systems used for solar (photovoltaic) cell and semiconductor manufacturing, and are recognized in the markets we serve for our technology and our brands. We operate in two business segments: (i) solar and semiconductor equipment and (ii) polishing supplies. Our solar and semiconductor equipment is sold under the brand names of Tempress Systems and Bruce Technologies, which have customers in both the solar industry and the semiconductor industry. Within the solar industry, we provide diffusion and automation equipment to solar cell manufacturers. Within the semiconductor industry, we provide equipment to manufacturers of analog, power, automotive and microcontroller chips with geometries greater than 0.3 micron, a strategy we believe minimizes direct competition with significantly larger suppl iers of semiconductor equipment. Under the PR Hoffman brand, we believe we are also a leading supplier of insert carriers to manufacturers of silicon wafers, and we provide lapping and polishing consumable products as well as equipment used in various industries.
We have been providing manufacturing solutions to the semiconductor industry for over 30 years and are leveraging our semiconductor technology and industry presence in an effort to capitalize on growth opportunities in the solar industry. Our customers use our furnaces to manufacture solar cells, semiconductors, silicon wafers and microelectromechanical systems (MEMS), which are used in end markets such Directors rightsas solar power, telecommunications, consumer electronics, computers, automotive and hand-held devices. To complement our research and development efforts, we also sell our furnaces to research institutes and universities.
For fiscal 2010, we recognized net revenue of $120.0 million, which included $99.0 million of solar revenue or approximately 83% of our total revenue.
Our Offices
We maintain our principal executive offices at 131 South Clark Drive, Tempe, Arizona 85281. Our telephone number is (480) 967-5146. Our website is located at www.amtechsystems.com. Other than as described in “Where You Can Find More Information” below, the information on, or that can be accessed through, our web site is not incorporated by reference in this prospectus or any prospectus supplement, and you should not consider it to be a part of this prospectus or any prospectus supplement. Our web site address is included as an inactive textual reference only.
RISK FACTORS
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and in our most recent Annual Report on Form 10-K, or any updates in our Quarterly Reports on Form 10-Q, together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, before deciding whether to purchase sharesany of Common Stock (the
"Purchase Rights"). This Registration Statement covers, in additionthe securities being registered pursuant to the sharesregistration statement of Common Stock being registered hereby,which this prospectus is a presently indeterminate number
of additional shares of Common Stock that may become issuable in certain events
upon exercisepart. Each of the Purchase Rightsrisk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the Options pursuantvalue of an investment in our securities, a nd the occurrence of any of these risks might cause you to adjustments in
the numberlose all or a part of shares of Common Stock for which a Purchase Right or Option is
exercisable. The foregoing amounts of shares of Common Stock have been adjusted
to reflect a 2-for-1 forward stock split of the Company's outstanding Common
Stock effected March 29, 1996. The shares of Common Stock underlying the Optionsyour investment.
2
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and Purchase Rights are hereinafter collectively referred to as the "Offered
Securities." See "SELLING STOCKHOLDERS" and "PLAN OF DISTRIBUTION."
The Common Stock is traded on the Nasdaq SmallCap Market under the symbol
"ASYS." On August 5, 1996, the closing price for the Common Stock was $4.4375
per share.
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS, SEE "RISK FACTORS."
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
AGENCY NOR HAS THE COMMISSION OR ANY SUCH AGENCY PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is _______________,1996.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, filescurrent reports, proxy statements and other information with the SEC under the Securities Exchange Act of 1934, as amended (the Exchange Act). You may access our filings through our website at www.amtechsystems.com, free of charge, as soon as reasonably practical after we electronically file them with or furnish them to the SEC. Other information contained in our website is not incorporated by reference in, and Exchange
Commission (the "Commission"). Such reports, proxy statementsshould not be considered a part of, this prospectus or any accompanying prospectus supplement. You also may read and other
information filed by the Company with the Commission can be inspected and copiedcopy any document we file at the public reference facilities maintained by the CommissionSEC’s Public Reference Room at 450 Fifth100 F Street, N.W.N.E., Room 1024, Washington, D.C. 20549, and20549. Please call the SEC at the following Regional
Offices of the Commission: Northeast Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048; and Midwest Regional Office, 500 W.
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained from1-800-SEC-0330 for further information on the Public Reference SectionRoom. Our SEC filings are also available to the public from the SEC’s website at www.sec.gov. This prospectus is part of the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of prescribed
rates.
The Company hasa registration statement on Form S-3 that we filed with the Securities and Exchange Commission,
Washington, D.C. 20549, a Registration Statement on Form S-3SEC to register the securities offered hereby under the Securities Act with respect to the Common Stock offered hereby.of 1933, as amended (the Securities Act). This Prospectusprospectus does not contain all of the information set forthincluded in the Registration Statement and
theregistration statement, including certain exhibits and schedules. You may obtain the schedules thereto. For further information with respectregistration statement and exhibits to the Company andregistration statement from the Common Stock, reference is made to the Registration
Statement including the exhibits and schedules thereto, copies of which may be
inspectedSEC at the Public Reference Roomaddress listed above or from the SEC’s website – www.sec.gov.
FORWARD-LOOKING STATEMENTS
This prospectus and each prospectus supplement include and incorporate forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,Act. All statements, other than statements of historical facts, included or incorporated in this prospectus or any prospectus supplement regarding our strategy, prospects, plans, objectives, future operations, future revenue and copiesearnings, projected margins and expenses, technological innovations, future products or product development, product development strategies, potential acquisitions or strategic alliances, the success of any part thereof may be obtainedparticular product or marketing programs, the amount of revenue generated as a result of sales to significant customers, financial position, and liquidity and anticipated cash needs and availability are forward-looking statements. The words &# 8220;anticipates,” “believes,” “could,” “confident,” “estimates,” “expects,” “forecasts,” “hopes,” “intends,” “likely,” “may,” “plans,” “possible,” “potential,” “predicts,” “projects,” “should,” “will,” “would” and variations of such words and similar expressions are intended to identify forward-looking statements.
Actual results or events could differ materially from the office offorward-looking statements we make. Among the Securities and
Exchange Commissionfactors that could cause actual results to differ materially are the factors discussed under the “Risk Factors” heading in Washington, D.C. upon the payment of the prescribed fee.
The statements contained in this Prospectus and the contents of any contract or
other document filed as an exhibit are of necessity brief descriptions thereof,
are not necessarily complete and the full text of such statements is qualified
in its entirety by reference to such contract or document.
2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission by the Company
and are hereby incorporated by reference into this Prospectus: (i) the Company'sour Annual Report on Form 10-K for the fiscal year ended September 30, 1995; (ii)2010. We also will include or incorporate by reference in each prospectus supplement important factors that we believe could cause actual results or events to differ materially from the Company's forward-looking statements that we make. Should one or more known or unknown risks or uncertainties materialize, or should underlying assumptions prove inaccurate, actual results could differ materially from past results and those anticipated, estimated, projected or implied by these forward-looking statements. You should consider these factors and the other caut ionary statements made in this prospectus, any prospectus supplement or the documents we incorporate by reference in this prospectus as being applicable to all related forward-looking statements wherever they appear in this prospectus, any prospectus supplement or the documents incorporated by reference. While we may elect to update forward-looking statements wherever they appear in this prospectus, any prospectus supplement or the documents incorporated by reference, we do not assume, and specifically disclaim, any obligation to do so, whether as a result of new information, future events or otherwise. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter.
3
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 prospectus. Information that we file with the SEC in the future and incorporate by reference in this prospectus automatically updates and supersedes previously filed information as applicable.
We incorporate by reference into this prospectus the following documents filed by us with the SEC, other than any portion of any such documents that are not deemed “filed” under 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, 2010
- Quarterly Report on Form 10-Q for the quarter ended December 31,
1995; (iii) the Company's Quarterly2010
- Current Report on Form
10-Q8-K filed with the SEC on November 18, 2010
- Current Report on Form 8-K filed with the SEC on December 23, 2010
- Current Report on Form 8-K filed with the SEC on January 26, 2011
- Current Report on Form 8-K filed with the SEC on February 1, 2011
- The information specifically incorporated by reference into our Annual Report on Form 10-K for the
quarterfiscal year ended March 31, 1996, (iv)September 30, 2010 from our definitive proxy statement on Schedule 14A filed with the SEC on December 21, 2010.
- The description of
the Company's Common Stockour common stock contained in the Company's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12(g)SEC, including any amendments or reports filed for the purpose of updating such description.
We also incorporate by reference into this prospectus 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 (v) the description of the
Company's Redeemable Common Stock Purchase Warrants contained in the Company's
Registration Statement on Form 8-Aapplicable SEC rules) filed with the Commission pursuant to Section
12(g) of the Exchange Act. All other documents and reports filed pursuant toby us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act fromafter the date of the initial registration statement and before effectiveness of the registration statement, and after the date of this Prospectus and priorprospectus.
You may request a copy of these filings, which we shall deliver to the termination of the offering of the Common Stock
shall be deemed to be incorporatedyou, together with all exhibits thereto, at no cost, by reference herein and shall be deemed to be
a part hereof from the date of the filing of such reports and documents.writing or telephoning us as follows:
Amtech Systems, Inc.
Attention: Corporate Secretary
131 South Clark Drive
Tempe, Arizona 85281
(480) 967-5146
Any statement contained in a document incorporated or deemed to bethat is incorporated by reference herein shall be deemed towill be modified or superseded for all purposes of this Prospectus to the extent that a statement contained hereinin this prospectus or any accompanying prospectus supplement, or in any other document that is subsequently filed document which also is or is deemed to bewith the SEC and incorporated by reference, herein modifies or supersedes suchis contrary to that previous statement. Any such statement so modified or superseded shallwill not be deemed a part of this prospectus or any accompanying prospectus supplement, except as so modified or superseded, to constitute a partsuperseded. Since information that we later file with the SEC will update and supersede previously incorporated information, you should look at all of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on written or oral request of such person, a copy
of any or all documents which are incorporated hereinthe SEC filings that we incorporate by reference (not
includingto determine if any of the exhibits to suchstatements in this prospectus or any accompanying prospectus supplement or in any documents unless such exhibits are specificallypreviously incorporated by reference have been modified or superseded.
4
PROSPECTUS SUPPLEMENTS
This prospectus provides you with a general description of the proposed offering of our securities. Each time that we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may add to, update or change information contained in the document which this Prospectus incorporates).
Requestsprospectus and should be directedread as superseding this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the headings “Incorporation of Certain Information by Reference” and “Where You Can Find More Information.”
The prospectus supplement will describe the terms of any offering of securities, including the offering price to the Secretary, Amtech Systems, Inc. 131 South
Clark Drive, Tempe, Arizona 85281, telephone number (602) 967-5146, facsimile
number (602) 968-7363.
3
PROSPECTUS SUMMARY
The following summarypublic in that offering, the purchase price and net proceeds of selected portionsthat offering, and the other specific terms related to that offering of securities. USE OF PROCEEDS
Except as may be otherwise set forth in any prospectus supplement accompanying this Prospectus is qualified
in every respect byprospectus, we will use the more detailed information contained elsewhere herein,
including the financial statements and related notes incorporated by reference
herein. The risksnet proceeds we receive from sales of an investment in the Securitiessecurities offered hereby are
described under RISK FACTORS. Each prospective investor is urged to read this
Prospectus in its entirety.
The Company
Amtech Systems, Inc. is engaged primarily in the manufacture and marketing
of several items of capital equipment, one of which is patented, used by
customers in the manufacture of semiconductors. The Company's Processing/Loading
products are designed to permit its customers to increase the degree of control
over their semiconductor chip manufacturing environment and to reduce exposure
to contaminants by limiting human contact during the process. The Company's
wholly-owned subsidiary, Tempress Systems, Inc., is engaged in the complementary
business of manufacturing and selling horizontal diffusion furnaces for semiconductor fabrication. The Company also has a 45% ownership interest and 50%
voting interest in Seil Semicon, Inc., a South Korean start-up joint venture
that plans to develop and operate a silicon test wafer reclaiming business. In
addition, the Company recently obtained a U.S. patent on technology on which it
expects to base a proposed new photo chemical vapor deposition ("CVD") product
for use in semiconductor manufacturing facilities. The Company has engaged the
University of California, Santa Cruz, to conduct a study to determine the
feasibility of such a product. If the results of the study are favorable, the
Company intends to commence to design, manufacture and market a photo CVD
product. See "THE COMPANY -- CVD Technology."
Until recently, the Company also was engaged in the technical contract
personnel business through a subsidiary, Echelon Service Company ("Echelon") in
Baltimore, Maryland. In December 1995, the Company disposed of the stock of
Echelon in order to allow the Company to focus on its core semiconductor
equipment business.
Written requests for further information should be directed to the
Secretary, Amtech Systems, Inc., 131 South Clark Drive, Tempe, Arizona 85281;
Facsimile Number (602) 968- 7363.
The Offering
Securities Offered: 134,500 shares of Common Stockgeneral corporate purposes, which may be
issued pursuant to options (the "Options")
grantedinclude the repayment of indebtedness outstanding from time to time pursuantand for working capital, capital expenditures, acquisitions and repurchases of our common stock or other securities. Pending these uses, the net proceeds may also be temporarily invested in short-term securities.
SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize the material terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus supplement. If we indicate in the applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized below. We will also include in the prospectus supplement information, when applicable, about material U.S. federal income tax considerations relating to the Company's 1983 Stock Option Plan (the "Plan")securities and pursuant to Directors Stock Purchase
Agreements (the "Directors Agreements")
entered into from time to time between the Company and certain directors ofsecurities exchange, i f any, on which the Company,
pursuant to which such Directors have been
granted rights to purchase shares of Common
Stock (the "Purchase Rights").
4
Common Stock Outstanding: 4,109,668 shares outstanding as of July 19,
1996.
Estimated Proceeds If all of the Options and Purchase
Rights are exercised, the estimated proceeds
to the Companysecurities will be approximately $178,550.
The Company will not receive any of the
proceeds from the subsequent sale of the
Common Stock.
Use of Proceeds Any proceeds received by the Company from time
to time upon exercise of the Options or the
Purchase Rights will be added to the Company's
working capital and will be used for general
corporate purposes. The Company will not
receive any of the proceeds from the
subsequent sale of the Common Stock.
NASDAQ Symbols Common Stock: ASYS
5
THE COMPANY
Amtech Systems, Inc. is engaged primarily in the manufacture and marketing
of several items of capital equipment, one of which is patented, used by
customers in the manufacture of semiconductors. The Company's Processing/Loading
product line (Atmoscan(R), IBAL and load stations) is designed to permit its
customers to increase the degree of control over their semiconductor chip
manufacturing environment and to reduce exposure to contaminants by limiting
human contact during the process. The Company's wholly-owned subsidiary,
Tempress Systems, Inc., is engaged in the complementary business of producing
and selling horizontal diffusion furnaces for semiconductor fabrication. The
Company also has a 45% ownership interest and 50% voting interest in Seil
Semicon, Inc., a South Korean start-up joint venture that plans to develop and
operate a silicon test wafer reclaiming business. In addition, the Company
recently obtained a U.S. patent on technology on which it expects to base a
proposed new photo chemical vapor deposition ("CVD") product for use in
semiconductor manufacturing facilities. The Company has engaged the University
of California, Santa Cruz, to conduct a study to determine the feasibility of
such a product. If the results of the study are favorable, the Company intends
to commence to design, manufacture and market a photo CVD product. See
"SEMICONDUCTOR EQUIPMENT BUSINESS," below.
Until recently, the Company also was engaged in the technical contract
personnel business through a subsidiary, Echelon Service Company ("Echelon") in
Baltimore, Maryland. In December 1995, the Company disposed of the stock of
Echelon in order to allow the Company to focus on its core semiconductor
equipment business. See "RECENT EVENTS -- Sale of Contract Personnel Business,"
below.
SEMICONDUCTOR EQUIPMENT BUSINESS
General
The Company is engaged primarily in the manufacture and marketing of
several items of capital equipment used by customers in the manufacture of
semiconductors. Semiconductors, or semiconductor "chips," are made of silicon
and are part of the circuitry of electronic computers. The manufacture of
semiconductors involves many complex operations during which silicon wafers (the
substrates from which chips are made) are inserted in a diffusion furnace and
subjected to the precise flow of gases under very intense heat. The Company's
Processing/Loading product line is intended to permit customers using horizontal
diffusion furnaces to increase the degree of control over the manufacturing
environment and to reduce exposure to contaminants by reducing the amount of
human contact during the process. Following an industry trend, the size of
individual chips has tended to decrease and the size of the wafers from which
chips are made has tended to increase. As a result, the value of each wafer has
increased because each is the source of an increased number of chips. As the
value of wafers increase, so too does the importance of control over the
manufacturing environment. In addition to the Company's Processing/Loading
product line, through its wholly owned subsidiary, Tempress Systems, Inc., the
Company manufactures and sells horizontal diffusion furnaces.
6
There is also a trend in the industry, related to the trend to smaller
chips, to the use in new semiconductor manufacturing facilities of newer
technology, vertical diffusion furnaces, which are more efficient to use than
older technology horizontal diffusion furnaces in certain manufacturing
processes of smaller chips on larger wafers. Vertical diffusion furnaces are,
however, significantly more expensive to purchase than horizontal diffusion
furnaces. The Company's Processing/Loading product line is useable with
horizontal diffusion furnaces only. The Company's target market consists of
customers who wish to increase the efficiency of their existing semiconductor
manufacturing facilities equipped with horizontal diffusion systems. With the
addition of Tempress' operations, the Company also can provide its customers
with efficient integrated horizontal diffusion furnace systems. The Company's
target market also includes customers who build new facilities but whose
operations do not require the higher priced vertical diffusion furnace systems.
Based on market information obtained through customer and market contacts, the
Company believes that a majority of worldwide semiconductor manufacturing
facilities are equipped with horizontal diffusion furnaces, as compared with
vertical diffusion furnaces. While the Company estimates that in the next
several years the percentage of facilities in the world equipped with each type
of system will become equal, it believes that a significant demand for its
present product line will continue to exist, although there can be no assurance
in that regard. The Company plans to increase its share of the market by
expanding its manufacture and sales of horizontal diffusion furnaces. Tempress
recently acquired a 9,900 square foot facility in Heerde, The Netherlands, for
its European operations. Tempress expects to move its operations into the new
facility in the fall of 1996.
Processing/Loading Equipment
Atmoscan(R)
The Company's "Atmoscan(R)" is a patented controlled environment wafer
processing system for use with horizontal diffusion furnaces. It is comprised of
a fanged quartz tube and several metal parts. When in use, the flanaged tube is
loaded with wafers and inserted into the diffusion furnace under a nitrogen
controlled environment. The technology protected by the Company's Atmoscan(R)
patents is a processing method that includes a cantilever tube that carries
wafers and through which a purging inert gas flows during the loading and
unloading of wafers into and out of the diffusion furnace.
The Company believes that among the major advantages afforded by the
Atmoscan(R) product are increased control of the environment of the wafers
during the gaseous and heating process, thereby increasing yields and decreasing
manufacturing costs, and a decreased need for the cleaning of diffusion furnace
tubes, which ordinarily involves substantial expense and equipment down time.
Additional significant economies in the manufacturing process are also believed
to result.
The Company has manufactured and sold Atmoscan(R) units to major
semiconductor manufacturers in the United States, the Pacific Rim and Europe,
including at various times to International Business Machines, Intel
Corporation, Samsung, Digital Equipment Corp., Motorola, SGS-Thompson and
others. During fiscal 1995, Atmoscan(R) units were sold in a price range of
approximately $26,000 (for simpler models without accessories or ancillary
items) to approximately $70,000 (for more complex models). As discussed
elsewhere, sales of Atmoscan(R)
7
have declined from their peak in 1989, due to an industry trend toward use of
vertical diffusion furnaces.
The Company has designed and sells an open cantilever paddle system as an
alternative to the closed processing method of the Atmoscan(R). The per unit
price is approximately $13,000-$18,000, depending upon the customer's
specifications.
IBAL
"IBAL" is an acronym for "Individual Boats with Automated Loading." Boats
are quartz trays that hold silicon wafers while they are being processed in
diffusion furnaces. IBAL is a device, including software, which automatically
places boats into Atmoscan(R) tubes or on open cantilever paddle systems before
they are inserted in the diffusion furnace and automatically removes the trays
after completion of the process. The Company has sold units of the IBAL for
approximately $20,000 to $25,000 each, not including the price of the
Atmoscan(R) or open cantilever paddle system. Use of the IBAL products reduces
human handling and, therefore, reduces exposure of wafers to contaminants during
the loading and unloading of the process tubes.
The IBAL Butler is a robotics device which further automates the loading of
wafers into the diffusion furnace by automatically transferring wafer carriers
onto the IBAL for loading into the Atmoscan(R) for the appropriate furnace tube.
The unit price for the IBAL Butler is approximately $40,000.
The IBAL Queue provides a convenient staging area for the operator to place
boats on a load station and automates the loading of those boats onto the IBAL
Butler. IBAL Queue was first developed and offered for sale in the fourth
quarter of 1993 and the first unit was shipped during the second quarter of
fiscal 1994. The unit price for the IBAL Queue is $27,000.
Load Stations
The products described above are offered and sometimes sold as a complete
system, mounted on a device called a "load station," which also includes an
ultra-clean environment for wafer loading by filtering and controlling the flow
of air. The Company began shipping load stations in fiscal 1992. The price for
the load station alone (in addition to the price for the component systems
described above) is approximately $60,000, depending upon the complexity of a
customer's requirements. Depending on configuration, which varies from order to
order, complete load stations with loaders and IBAL automation have been sold at
prices between $150,000 and $320,000.
Diffusion Furnaces
Through its wholly owned subsidiary, Tempress Systems, Inc., the Company
produces and sells horizontal diffusion furnaces with the Tempress(R) trademark
under the Amtech/Tempress name. These furnaces utilize existing industry
technology for sale to customers who do not require the advanced automation of,
or cannot incur the major expense of acquiring, vertical diffusion furnaces.
While the major advantage of vertical diffusion
8
furnaces is their susceptibility to increased automation, which decreases the
degree of human intervention in the manufacturing process, the use of horizontal
diffusion furnaces, with less automation, is more economical for larger size
chips and multi-model semiconductor manufacturing. While overall market demand
for horizontal diffusion furnaces is declining, the Company believes that a
niche market will persist. The price range of automated diffusion furnace
systems is approximately $100,000 to $680,000, depending on the customer's
requirements.
The Company has transitioned from being a distributor of horizontal
diffusion furnaces substantially assembled by suppliers to being a manufacturer.
The Company continues to acquire the frames and covers for furnaces from
subcontractors. This transition has resulted in an increase in both the number
and variety of products offered by the Company and is part of a plan to expand
its sales, marketing and manufacturing capabilities. The Company has expended
substantial sums to acquire assets and to fund the start-up and operation of the
horizontal diffusion furnace business. The Company acquired certain assets
previously owned by a bankrupt company, Tempress B.V., located in The
Netherlands. That business involved the development, manufacture and sale of a
number of different products, including a horizontal diffusion furnace. The
Company also acquired from the bankrupt estate the right to use the trade name
"Tempress" in connection with such furnaces. The right to use the tradename
"Tempress" is also held by three subsidiaries of the former Tempress B.V. in
connection with the sale of other Tempress products and services unrelated to
the horizontal diffusion furnace. The Company has hired a number of former
Tempress technical and sales personnel to design, manufacture andlisted. We may sell its own
furnace products under the "Tempress" name. The Company believes that the causes
of the Tempress bankruptcy were related to the fact that Tempress was
undercapitalized and that large expenditures were incurred in the development of
other products, and was not related to the quality or reputation of the Tempress
products. Accordingly, the Company believes that a diffusion furnace product
designed by former Tempress product engineers and sold under the "Tempress" name
will be accepted by the Company's targeted market.
There is, of course, no assurance of success in the Company's efforts to
design and market horizontal diffusion furnace products. If the Company's
efforts do not succeed, the Company may suffer significant losses. The Company's
ability to carry out its plan is subject to risk, arising in part from the
cyclical nature of the business. There is a further risk that, as is estimated
by at least one market research firm, the installation of new vertical diffusion
furnaces will increase at a faster rate than is estimated by the Company. In
that case, the demand for and sales of the Company's horizontal diffusion
furnaces may be below the Company's estimates, its revenue and possible earnings
may not increase as expected and the period of losses for The Netherlands
operation may extend for a period longer than the start-up phase.
CVD Technology
The Company has patented a certain invention which it believes may be of
significant importance to the semiconductor manufacturing industry. It is now
having a research study conducted to determine the feasibility of developing
semiconductor manufacturing equipment using this patented invention. The
invention relates to an improvement to the photo-assisted
9
CVD process used in the manufacture of certain semiconductors. The improvement
uses ultraviolet light to activate the deposition reactions rather than thermal
heat or plasma, which are presently the common means in commercial CVD
processing. This photo-assisted CVD process is separate and distinct from the
diffusion process in which the Company's existing products are used and its use
is not limited to horizontal diffusion furnace facilities as are the Company's
existing products.
A photo-assisted CVD process is potentially attractive for the manufacture
of semiconductors because it allows a less severe processing environment. First,
the photo-assisted CVD processes occur at lower temperatures and the lower
temperature reduces the risk of defects in the deposited materials. In this
process, ultraviolet or UV light is used as the energy source to effect the
deposition of chemicals on the wafers. The photo-assisted CVD processes also
avoid radiation damage which can occur with currently prevalent processes.
Furthermore, photo-assisted CVD processes based on the Company's patented method
are more readily adaptable to the use of larger wafers (the silicon substrates
from which semiconductor chips are made) than other CVD processes now in use.
The trend in the industry is to the use of larger size wafers and smaller size
chips.
The Company has not determined whether a commercially feasible product can
be developed from this technology. The Company has entered into a Research
Agreement with the Regents of the University of California ("University")
whereunder a feasibility study is being undertaken by the University under the
direction of Roger W. Anderson, Ph.D. It is anticipated that, if the results of
the University study are favorable, the Company will design and develop
specifications for an initial photo-assisted CVD device. The initial device is
expected to have one "chamber,"containing a number of light pipes and a pedestal
(called a susceptor) to hold wafers and would be sold to academic and industry
research facilities. If use by such facilities results in acceptance of the
technology by the industry, the Company will attempt to develop a fully
automatic multi-chamber, multi-wafer product for mass production of
semiconductors. The automation (or robotic) components of the product are
expected to be procured from other manufacturers.
The Company's current plans for the proposed new photo CVD product are
conceptual only. Detailed planning is expected to be done if, as and when the
University study demonstrates the product's commercial feasibility. The
development of first a research laboratory product and then an industrial
product is expected to take a period of approximately two to three years.
The total cost of the photo-assisted CVD product development effort is
expected to be approximately $3,200,000, expended in stages over a two to three
year period. All of the Company's plans and estimates are subject to significant
uncertainties.
Wafer Reclaiming Venture
In November 1995, the Company entered into a joint venture agreement
pursuant to which it acquired a 45% ownership interest and a 50% voting interest
in Seil Semicon, Inc. Seil Semicon, Inc., which is in the preliminary start-up
phase intends to develop and operate a silicon test wafer reclaiming business.
The Company agreed to invest $500,000 in the venture,
10
$425,000 of which has been paid and up to $75,000 of which may be called at the
time Seil Semicon obtains $3 million in third party financing. Seil Semicon has
acquired real property for construction of the reclamation facility. The
ultimate success of the venture depends on a number of factors, including
securing adequate financing, of which there can be no assurances.
Sales & Marketing
The Company markets its products by participation in trade shows, by direct
customer contact by the Company's sales personnel (the President and two
salesmen in the United States and two sales and marketing personnel located in
The Netherlands) and through independent sales representatives and distributors.
The Company is dependent on its President, J.S. Whang, for continuing
relationships with key customers. There are presently eight independent sales
representatives, each covering a specified geographical area on an exclusive
basis. The areas now covered by representatives are the State of Florida, the
New England area, Northern Europe, Central Europe (including Germany), France,
India, Italy, Korea, Taiwan, and the People's Republic of China. Representatives
are paid a commission as specified from time to time, in the Company's commission
schedule, which at present is higher for complete units and lower for spare
parts and accessories.
During fiscal 1995, two customers accounted for 28% and 11% respectively,
of equipment sales. No other customers accounted for 10%one or more offerings, any one or more of the following: - common stock, including the associated rights;
- preferred stock;
- debt securities;
- warrants to purchase common stock, preferred stock and/or debt securities;
- units consisting of common stock, preferred stock, debt securities and/or warrants in any combination; or
- any combination of the foregoing securities.
In this segment's sales.
Semiconductor equipment sales generally fluctuateprospectus, we refer to the common stock (including the associated rights), preferred stock, debt securities, warrants and units collectively as “securities.” The total dollar amount of all securities that we may issue under this prospectus will not exceed $60,000,000.
If we issue debt securities at a discount from their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities issued under this prospectus, we will treat the initial offering price of the debt securities as the total original principal amount of the debt securities.
5
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF COMMON AND PREFERRED STOCK
This section describes the general terms of our common stock and preferred stock. A prospectus supplement may provide information that is different from this prospectus. If the information in a prospectus supplement with respect to our common stock or preferred stock being offered differs from this prospectus, you should rely on the information in the prospectus supplement. A copy of our articles of incorporation, as amended, and certificate of designation, has been incorporated by reference from our filings with the level of capital
spending in the semiconductor industry. The semiconductor business is cyclical.
Competition
The Company is not aware of any significant product which directly competes
with the Atmoscan(R), however, there are several processing systems and various
configurations of existing manufacturing products which provide advantages
similar to those that the Company believes the Atmoscan(R) provides to
semiconductor manufacturers. Notwithstanding the industry trendSEC as an exhibit to the use of
vertical diffusion furnaces (with which Atmoscan(R) is not useable),registration statement.
Common Stock
Our common stock and the Company
believes that a number of customers are and will continue to be willing to buy
Atmoscan(R) units for use with horizontal diffusion furnaces because the
Atmoscan(R) provides better results in terms of more uniform wafer temperature
and dispersion of heated gases in the semiconductor manufacturing process, less
exposure of semiconductor wafers to contaminants, and other technical advantages
which afford to its users a higher yield and, therefore, a lower per item cost
in the manufacture of semiconductors. The Company believes that there are
several products in the market which perform the same functions as the IBAL
automation products, IBAL Atmoscan(R), IBAL Butler and IBAL Queue, but they are
more complex and more expensive. The IBAL products are intended for customers
who do not require the more complex systems. Load stations are sold to customers
that are upgrading their existing facilities with other productsrights of the Company.
These load stations provide a cleaner environment to those they replace and can
reduce the down-time for the upgrade as these load stations were specifically
designed to accept the Company's products without further modification. Products
competitive with the Company's load station are sold by several well-established
firms, larger than the Company. The Company believes, however, that there is a
niche market for its load stations because
11
Atmoscan(R) and IBAL are included as components. The cantilever system is
designed for easy assembly and disassembly to minimize down-time during
maintenance. The Company currently sells its horizontal diffusion furnaces to
customers who purchase them in small quantities and that it will maintain a
competitive position through its policyholders of providing competitive prices and
product support services designed for the customer's specific requirements.
Employees
The Company presently employs 44 people (including the corporate officers
and four contract employees) in its semiconductor equipment business; 16 in
manufacturing, 14 in engineering, seven in administration, and seven in sales
positions. Of these, 27 are employed at the Company's offices and plant in
Tempe, Arizona, and 17 at Tempress' facility in The Netherlands.
FINANCIAL INFORMATION ABOUT FOREIGN AND DOMESTIC OPERATIONS
AND EXPORT SALES
The following table shows the amounts of revenue attributable to the
Company's foreign sales for the past three fiscal years (the United States
equipment sales being included in the table for comparison purposes). All
foreign sales were associated with the Company's semiconductor equipment
business and none were to affiliates.
1995 1994 1993
---------------------------- ----------------------------- ------------------------------
United States (1) $2,462,852 (36%) $2,472,176 (51%) $2,003,064 (49%)
Far East (2) 3,483,419 (51%) 1,136,432 (26%) 1,798,670 (44%)
Europe (3) 493,786 (7%) 222,376 (5%) 286,152 (7%)
India 424,011 (6%) 500,095 (12%) - (0%)
--------- ----- --------- ------ --------- ------
Total $6,864,068 (100%) $4,331,079 (100%) $4,087,886 (100%)
- ----------
(1) Includes sales in Canada, which are not material.
(2) Includes Korea, Singapore, Taiwan, Japan and the People's Republic of China.
(3) Includes sales in Israel, which are not material.
12
RISK FACTORS
Any investment in the securities offered hereby will involve a high degree
of risk. Prospective investors should carefully consider the following risk
factors before making an investment decision.
1. New Horizontal Diffusion Furnace Product. The Company has invested
approximately $1.6 million in cash in the acquisition of assets currently used
by Tempress in the manufacture and sale of horizontal diffusion furnaces and to
fund the start-up losses and operation of that business. Those assets include
certain items purchased from another company which had previously acquired the
entire business of a bankrupt company, Tempress B.V., located in The
Netherlands. The Company recently acquired a facility in The Netherlands for
Tempress' operations. The Company also acquired from the bankrupt estate the
right to use the trade name "Tempress" in connection with such furnaces. The
Company has also hired a number of former Tempress technical and sales personnel
with a view to designing, manufacturing and selling its own furnace products
under the "Tempress" name. The Company believes that the causes of the Tempress
bankruptcy were related to the fact that Tempress was undercapitalized and that
large expenditures were incurred in the development of other products and
unrelated to the quality and customer acceptance of the Tempress horizontal
diffusion furnace. The Company further believes that employing certain former
Tempress personnel and using that trade name will facilitate the Company's
efforts to sell its furnace products. While the expenses associated with this
new expansion are expected to result in an initial period of operating losses
for the Company, such losses are expected to be recovered during subsequent
periods if the expansion is successful. There is of course no assurance of
success in this effort and if the Company's efforts do not succeed, the Company
may suffer the permanent loss of approximately $1,600,000. There is a further
risk that, as is estimated by at least one market research firm, the
installation of new vertical diffusion furnaces will increase at a faster rate
than is estimated by the Company. In that case, the demand for and sales of the
Company's horizontal diffusion furnaces may be below the Company's estimates,
its revenue and possible earnings may not increase as expected and the period of
losses for The Netherlands operation may extend beyond the start up phase. See
"THE COMPANY" and RISK FACTOR NO. 5, below.
2. Proposed New Photo CVD Product. A substantial portion of the Company's
cash has been and will continue to be applied to the development of a proposed
new photo-assisted CVD product based on patented technology which has not yet
been shown to be functionally or economically feasible. On March 2, 1994, the
Company entered into an agreement with the University of California, Santa Cruz
("University"), whereunder the University is conducting certain research with a
view to determining the feasibility of a successful development effort. Although
the Company plans to terminate the research and development at any time if it
does not appear to be commercially feasible, termination would result in the
incurrence of substantial losses. The Company's management estimates that it
will need to expend approximately $3.2 million to develop marketable models of a
photo-assisted CVD product. However, actual expenditures may materially exceed
the Company's present estimates because of unexpected technical engineering or
manufacturing requirements, general price increases, etc. The estimated
expenditures for the development of the proposed new product do not include any
provision for
13
the expansion of facilities for the manufacture of such new product. Since
operating revenues are unlikely to result in sufficient cash flow to provide
such additional funds, the source of such funds may be additional capital
investment which, if available when required, would dilute the ownership
percentage of shareholders of the Company.
3. Adequacy of Financing. Additional financing is expected to be required
for the implementation of the Company's plans for expansion. There is no
assurance that any additional financing will be available if and when required,
or, even if available, that it would not materially dilute the ownership
percentage of the then existing shareholders.
4. Assumptions. The Company's plans for the financing and development of
its proposed business expansion are based on the experience, market information
and judgment of Management and upon certain assumptions. Management's
assumptions include in particular, the Company's ability to obtain the share of
the horizontal diffusion furnace market formerly held by Tempress, the success
of its expanded sales and marketing force, the feasibility of its proposed new
photo-assisted CVD product, the development of a market for the new product, the
sufficiency of funds available for its development and marketing and, if those
assumptions prove to be invalid, the availability of other opportunities for
expansion. Management also assumes that sales for the Company's existing
products will continue at current levels for approximately three years. There is
no assurance that the Company's plans will be realized or that any of the
assumptions made will prove to be correct. Even if the assumptions underlying
its plans prove to be correct, there can be no assurance that the Company will
not incur substantial operating losses in attaining its goals. See "THE
COMPANY."
Management believes that the Company's future profitability and
long term growth will depend on the continued introduction of new products which
embody either newly developed technology or improvements of existing products.
There is no assurance of any short term or long term success in any development
or acquisition effort or in penetrating any market. Since its present product
line consists of equipment suitable only for semiconductor manufacturing
facilities using horizontal furnace technology, the most significant market for
the Company's existing products is most likely to be limited to existing
horizontal furnace facilities or new facilities which, because of cost
considerations, are likely to continue to buy new horizontal furnaces.
5. Demand for Horizontal Diffusion Furnace Equipment. Demand for the
Company's existing products, which are used in conjunction with horizontal
diffusion furnaces, has declined in recent years because of a trend to competing
newer vertical diffusion furnace technology in the industry. Based on
Management's market information, the Company expects the market for such
products to remain relatively stable for a period of approximately three years,
although there is no assurance in that regard. Rather than expecting to increase
sales as the result of a growing market, therefore, the Company expects to
achieve that result by increasing its share of an existing market. Realization
of that expectation will depend on the success of its plan to expand its sales
and marketing force and its product line. Such expansion is expected to result
in more complete sales coverage in Europe and in the ability of the Company to
offer a more complete product mix, which will result in an increase in sales and
revenue. Among the uncertainties affecting the Company's plan is the reaction of
other capital equipment manufacturers competing for greater shares of the same
market.
14
6. Cyclical Nature of the Semiconductor Manufacturing Industry. The
semiconductor industry in which the Company sells its products is highly
cyclical and has historically experienced periodic downturns, which often have
had a severe effect on the demand for semiconductor manufacturing equipment.
Prior semiconductor industry downturns have resulted in significant reductions
in the Company's net sales, gross margin and net income. Moreover, this business
will continue to be dependent on the capital expenditures of semiconductor
manufacturers, which in turn will be largely dependent on the current and
anticipated market demand for integrated circuits and products utilizing
integrated circuits. Semiconductor manufacturers are currently experiencing a
significant decrease in order bookings. In addition, the prices for
semiconductors have declined dramatically, squeezing manufacturers' margins.
These factors may affect semiconductor manufacturers' decisions to purchase
capital equipment such as the Company's products. Further price declines due to
increased supply of semiconductors may have a material adverse effect on the
Company's business and results of operations.
7. Dependence on Certain Foreign Markets; Risks Associated with Foreign
Operations. During its most recent fiscal year, ended on September 30, 1995, 64%
of the Company's equipment sales were made to foreign customers in the Far East
(51%), Europe (7%) and in India (6%). Foreign sales are expected to increase
significantly as the result of the Company's proposed expansion of its
horizontal diffusion business in Europe. While the Company's business has not
been adversely affected in the past by its foreign business, there is a risk
that it may be adversely affected in the future. Such risk includes possible
losses on account of currency exchange rate fluctuations, possible future
prohibitions against repatriation of earnings, or proceeds from disposition of
investments, and from possible social and military instability in the case of
India, South Korea and possibly elsewhere.
The Company's wholly owned subsidiary, Tempress Systems, Inc.,
conducts its operations in The Netherlands. As a result, such operationsour common stock are subject to the taxation policies, employmentapplicable provisions of Arizona law, our articles of incorporation, our by-laws, as amended, and labor laws, transportation
regulations, importthe rights of the holders of our preferred stock, if any. Certain provisions of Arizona law and export regulationsour articles of incorporation and tariffs, foreign exchange
restrictions, international monetary fluctuations,by-laws are described under the heading “Certain Provisions of Arizona Law and other political, economicthe Company’s Articles of Incorporation and legal policiesBylaws” below. As of December 31, 2010, under our articles of incorporation, we had the authority to issue 100,000,000 shares of common stock, par value $.01 per share, of which 9,408,815shares of our common stock were outstanding as of that nation,date. As of December 31, 2010, we had outstanding (i) stock options to purchase 612,290 shares of our common stock, of which 205,068 shares of common stock were issuable upon exercise of vested stock options as of that date and (ii) 126,892 undelivered shares of restricted common stock.
Voting Rights. Each outstanding share of our common stock is entitled to one vote per share of record on all matters submitted to a vote of shareholders and to vote together as a single class for the European Economic Unionelection of directors and in respect of other corporate matters. At a meeting of shareholders at which a quorum is present, all questions other than the other
European nationscontested election of directors shall be decided by determining if the votes cast by shareholders favoring the action exceed the votes casts by shareholders opposing the action, without regard to abstentions, unless the matter i s one upon which a different vote is required by express provision of Arizona law, the NASDAQ or our articles of incorporation or by-laws. Directors, in which it conducts business. Consequently, the Company may
encounter unforseen or unfamiliar difficulties in conducting its European
operations. Changes in such laws and regulations may have a material adverse
effect on the Company's operations.
8. Competition. The semiconductor equipment industry is competitive and the
Company is relatively small in size and resources in comparison with its
competitors. There is risk that larger, better financed competitorscontested election, will develop
and market more advanced products than those now proposedbe elected by the Company or that
competitors with greater financial resources may decrease prices thereby putting
the Company under financial pressure.
9. Dependence on President. The company is now dependent for its management
and important business relationships on the active participation of Mr. Jong S.
Whang, its President. The loss of his services would materially and adversely
affect the businessa plurality of the Company and its future prospects. There is presently
insurance on the life of Mr. Whang for the benefitvotes of the Company, in the amountshares present at a meeting. Holders of $1,000,000 (which may be increased to $2,000,000), but there is no assurance
that such amount will be sufficient to cover the costshares of 15
finding and hiring a suitable replacement for Mr. Whang. It may not be feasible
for any successor to maintain the same relationships.
10. Joint Venture. In November 1995, the Company entered into a joint
venture agreement pursuant to which it acquired a 45% ownership interest and a
50%common stock have cumulative voting interest in Seil Semicon, Inc. Seil Semicon, Inc., which is in the
preliminary start-up phase intends to develop and operate a silicon test wafer
reclaiming business. The Company agreed to invest $550,000 in the venture,
$425,000 of which has been paid and $125,000 of which will be due at the time
Seil Semicon obtains $3 million in third party financing. Seil Semicon has
acquired real property for construction of the reclamation facility. The
ultimate success of the venture depends on a number of factors, including
securing adequate financing, of which there can be no assurances. If the venture
is unable to obtain third party financing, or experiences delays in obtaining
third party financing, the Company may be required to invest additional funds in
the venture, terminate the venture or attempt to divest its interest in the
venture, any of which could result in significant losses to the Company. There
can be no assurance that the venture ever becomes operational or profitable.
11. Possible Disputes. The Company has entered into a research agreement
with the University whereunder a feasibility study is to be undertaken by the
University to develop a prototype model of a product embodying the Company's
patented photo-assisted CVD technology. The University claims rights in certain
pre-existing intellectual property related to certain photo-assisted CVD designs
and processes. While it is understood that the Company's patented technology is
to be the primary focus of the study, it is recognized that inventions based on
the University's own claims may result from the study. If so, the Company will
have a period of 90 days after disclosure to it by the University of such an
invention in which to elect to obtain an exclusive, royalty-bearing license to
make, use and sell any such invention first actually reduced to practice in the
performance of the study. If the Company elects to obtain such a license, it
will have 120 days to negotiate the terms of a license agreement. It is possible
that the Company and the University may fail to agree on the terms of a license
agreement within that 120-day period. If the company fails to enter into a
license agreement, the Company will no longer have any rights with respect to such inventions. Furthermore, the royalty rateelection of directors. Dividends. Holders of our common stock are entitled to receive dividends or other distributions when, as and if declared by our board of directors. The right of our board of directors to declare dividends, however, is subject to any rights of the holders of other classes of our capital stock and the availability of sufficient funds under Arizona law to pay dividends.
Preemptive Rights. Other than as described under the heading “Stockholders’ Rights Plan” below, the holders of our common stock do not have preemptive rights to purchase or subscribe for any license agreementof our capital stock or other securities.
Redemption. The shares of our common stock are not subject to redemption by operation of a sinking fund or otherwise.
Liquidation Rights. In the event of any liquidation, dissolution or winding up of the Company, subject to the rights, if any, of the holders of other classes of our capital stock, the holders of shares of our common stock are entitled to receive any of our assets available for distribution to our shareholders ratably in proportion to the number of shares held by them.
Listing. Our common stock is to
be between .5% and 2% dependinglisted on the relative contributionNASDAQ under the symbol “ASYS.”
Transfer Agent and Registrar. The transfer agent and registrar for our common stock is Computershare Trust Company, 350 Indiana Street, Suite 800, Golden, Colorado 80401.
6
Preferred Stock
A certificate of the partiesdesignation or amendment to the developmentour articles of any such invention. Disputes could arise between the parties
as to such contributions or to the time when the invention was first reduced to
practice, which disputes may cause delays in negotiatingincorporation will specify the terms of a license
agreementthe preferred stock being offered, and could result in litigation.
12. Product Protectionwill be filed or incorporated by reference as an exhibit to the registration statement before the preferred stock is issued. The following description of our preferred stock, and Infringement. The Company has been issued a
number of patents covering some of its products. The issuance of those patents
do not, however, provide assurance that any of them will protect the Company's
products from infringement or otherwise enhance their value. Furthermore, while
the Company does not believe that its products infringe on the proprietary
rights of any other parties, there can be no assurance that the Company will, in
the future, have all the patents or other proprietary rights necessary for the
conduct of its business; or that other parties will not assert infringement
claims against the Company.
16
13. Possible Loss of NASDAQ Eligibility. While the Company's Common Stock
is now included on the Nasdaq SmallCap Market ("Nasdaq"), their continued
inclusion will depend on the Company's ability to meet certain eligibility
requirements established for the Nasdaq SmallCap System. Loss of Nasdaq
eligibility could result if the Company sustains material operating losses or if
the market pricedescription of the securities falls below certain specified levels (below
$1.00 per sharepreferred stock in the case of the Common Stock). If any of the Company's
securities are ineligible for trading on the Nasdaq system, such securitiesa prospectus supplement, may not be complete and is subject to, a rule under the Securities Exchange Act of 1934 that imposes
additional sales practice requirements on broker-dealers who sell such
securitiesand qualified in its entirety by reference to, persons other than established customers and accredited investors
(generally institutions with assets in excess of $5,000,000 or individuals with
a net worth in excess of $1,000,000 or annual income exceeding $200,000 or
$300,000 jointly with their spouse). For transactions covered by the rule, the
broker-dealer must make a special suitability determination for the purchaser
and receive the purchaser's written consent to the transaction prior to the
sale. The rule may adversely affect the ability of broker-dealers to sell the
Company's securities, and consequently may limit the public market forArizona law and the trading priceactual terms and provisions contained in our articles of incorporation and bylaws, each as amended from time to time. As of December 31, 2010, under our articles of incorporation, we had the securities.
14. No Dividends. The Company has never paid cash dividends on its Common
Stock and has no plansauthority to do so in the foreseeable future. The Company intends
to retain earnings, if any, for business use.
15. Authorization of Preferred Stock. The Company's Articles of
Incorporation authorizes the issuance of up toissue 100,000,000 shares of preferred stock, with such rights and preferences as maywhich are issuable in series on terms to be determined by our board of directors. Accordingly, our board of directors is authorized, without action by the shareholders, to issue preferred stock from time to time with such dividend, liquidation, conversion, voting and other rights and restrictions as it may determine. As of December 31, 2010, our board of directors had designated 540,000 shares as Series A Convertible Preferred Stock (the "Series A Preferred Stock"), but no shares of the Series A Preferred Stock were outstanding. No Series A Preferred Stock w ill be issued in connection with this registration statement, rather new series of preferred stock with different rights from the Series A Preferred Stock may be issued.
The terms of any particular series of preferred stock will be described in the prospectus supplement relating to that particular series of preferred stock, including, where applicable:
- the title and stated value of the preferred stock;
- the number of shares of preferred stock to be issued and the offering price of the preferred stock;
- any dividend rights;
- any dividend rates, periods, or payment dates, or methods of calculation of dividends applicable to the preferred stock;
- the date from which distributions on the preferred stock shall accumulate, if applicable;
- the terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the conversion price (or manner of calculation thereof);
- any right to convert the preferred stock into a different type of security;
- any rights and preferences upon our liquidation or winding up of our affairs;
- any terms of redemption;
- the procedures for any auction and remarketing, if any, for the preferred stock;
- the provisions for a sinking fund, if any, for the preferred stock;
- any listing of the preferred stock on any securities exchange;
- a discussion of federal income tax considerations applicable to the preferred stock;
- the relative ranking and preferences of the preferred stock as to distribution rights (including whether any liquidation preference as to the preferred stock will be treated as a liability for purposes of determining the availability of assets for distributions to holders of stock ranking junior to the shares of preferred stock as to distribution rights);
7
- any limitations on issuance of any series of preferred stock ranking senior to or on a parity with the series of preferred stock being offered as to distribution rights and rights upon the liquidation, dissolution or winding up or our affairs; and
- any other specific terms, preferences, rights, limitations, or restrictions of the preferred stock.
Registrar and Transfer Agent. The registrar and transfer agent for our preferred stock will be set forth in the applicable prospectus supplement.
Certain Provisions of Arizona Law and The Company’s Articles of Incorporation and By-Laws
Certain provisions of our articles of incorporation and by-laws, as amended, and Arizona law could make our acquisition by a third party, a change in our incumbent management or a similar change in control more difficult, including:
- an acquisition of us by means of a tender or exchange offer;
- an acquisition of us by means of a proxy contest or otherwise; or
- the
Boardremoval of Directors. Accordingly,a majority or all of our incumbent officers and directors.
These provisions, which are summarized below, are likely to discourage certain types of coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that these provisions help to protect our potential ability to negotiate with the Boardproponent of Directors may,an unfriendly or unsolicited proposal to acquire or restructure us, and that this benefit outweighs the potential disadvantages of discouraging such a proposal because our ability to negotiate with the proponent could result in an improvement of the terms of the proposal. The existence of these provisions which are described below could limit the price that investors might otherwise pay in the future for our securities. This description is intended as a summary only and is qualified in its entirety by reference to our articles of incorporation and by-laws, as well as Arizona law.
Articles of Incorporation, By-laws and Arizona Law
Authorized But Unissued Capital Stock. We have shares of common stock and preferred stock available for future issuance without shareholder approval, subject to any limitations imposed by the listing standards of the NASDAQ. We may utilize these additional shares for a variety of corporate purposes, including for future public offerings to raise additional capital or facilitate corporate acquisitions or for payment as a dividend on our capital stock. The existence of unissued and unreserved common stock and preferred stock may enable our board of directors to issue shares to persons friendly to current management or to issue preferred stock with dividend, liquidation,
conversion, votingterms that could have the effect of making it more difficult for a third party to acquire, or other rights whichcould discourage a third party from seeking to acquire, a controlling interest in the Company by means of a merger, tender offer, proxy contest or otherwise. In addition, if we issue preferred stock, the issuance could adversely affect the voting power
or otherlikelihood that such holders will receive dividend payments and payments upon liquidation.
8
Blank Check Preferred Stock. Our board of directors, without shareholder approval, has the authority under our articles of incorporation, as amended, to issue preferred stock with rights superior to the rights of the holders of the Company's Common Stock. In addition, the
issuance of suchcommon stock. As a result, preferred stock may havecould be issued quickly and easily, could impair the effectrights of rendering more difficultholders of common stock and could be issued with terms calculated to delay or discouraging an acquisition of the company or changesprevent a change in control or make removal of the
Company. Although the Company does not currently intend to issue any sharesmanagement more difficult.
Number of its preferred stock there can be no assuranceDirectors; Removal; Filling Vacancies. Our articles of incorporation, as amended, provide that the Company will not do so innumber of directors shall be fixed by the future.
16. Technological Change. Semiconductor manufacturing equipment and
processes are subjectby-laws, as amended, which our board of directors can amend without shareholder approval. Our by-laws default to rapid technological change. The Company believes that
its future success will depend in part upon its ability to continue to enhance
its existing products and their process capabilities and to develop and
manufacture new products with improved process capabilities that enable
semiconductor manufacturers to fabricate semiconductors more efficiently. New
product introductions could contribute to quarterly fluctuations in operating
results as orders for new products commence and orders for existing products
decline. Failure to introduce new products successfully in a timely manner could
result in loss of competitive position and reduced sales of existing products.
Furthermore, the inability to produce such products or any failure to achieve
market acceptance could have a material adverse effect on the Company's business
and results of operations.
17. Litigation and Contract Disputes. From time to time, the Company is a
party to litigation and disputes incidental to its business and commercial
transactions generally. The Company currently is not engaged in litigation, but
a certain semiconductor manufacturer has
17
threatened to assert a breach of contract claim against the Company. The Company
does not believe it breached any obligations to such party and, if a claim is
filed, the Company intends to assert defenses against such claim.
USE OF PROCEEDS
Assuming that all of the Options and all of the Purchase Rights are
exercised, the net proceeds to the Company are estimated to be approximately
$178,550. The proceeds will be allocated to the Company's working capital for
Company operations. The Company will not receive any of the proceeds from the
subsequent sale of the Common Stock.
18
SELLING SHAREHOLDERS
The following table provides certain informationArizona law with respect to the Common
Stockremoval of directors. Arizona law provides that directors may be removed with or without cause where the votes cast by shareholders opposing the action would not be sufficient to elect the director under cumulative voting. A vote to remove one or more directors must be taken at a shar eholder’s meeting at which a quorum is present where one of the purposes of the meeting is to remove one or more directors. A director cannot be removed by written consent of shareholders unless written consents are obtained from the holders of all the outstanding shares entitled to vote on the removal of the director. Our by-laws provide that vacancies on our board of directors may be filled by a majority vote of the remaining directors, though not less than a quorum. Arizona law also provides that shareholders may fill any vacancy on our board of directors. Shareholder Meetings and Action. Our by-laws, as amended, provide that shareholders can only call a special meeting with the approval of holders of not less than fifty percent (50%) of all votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. Our by-laws also provide that the business of special meetings of shareholders shall be confined to the purposes stated in the notice of the meeting. These provisions may discourage another person or entity from making a tender offer, unless it acquired a majority of our outstanding voting sto ck, because the person or entity could only take action at a duly called shareholders’ meeting relating to the business specified in the notice of meeting and not by written consent. Arizona law provides that shareholders may act outside of a meeting if one or more written consents describing the action taken are signed by the holders of outstanding shares having one hundred percent (100%) of the votes entitled to be cast at a meeting at which all shares entitled to vote on the action were present and voted.
Anti-Takeover Effects of Various Provisions of Arizona Law
Arizona Revised Statutes (“ARS”) Sections 10-2701 et seq. were adopted by the Arizona legislature in an attempt to prevent corporate “greenmail” and restrict the ability of a potential suitor to acquire domestic corporations. These statutes generally apply to business combinations or control share acquisitions of “issuing public corporations,” which defined term includes Amtech. The provisions summarized below could discourage, deter, delay or impede a tender offer or other attempt to acquire control of Amtech.
Arizona Business Combination Statute. The Arizona business combination statute would limit our ability to engage in Business Combinations with Interested Shareholders (each as defined below).
“Business Combination” means any (A) merger or consolidation of Amtech or any subsidiary of Amtech with an Interested Shareholder, (B) exchange of shares of the Amtech’s common stock or any subsidiary for shares of an Interested Shareholder, or (C) sale, lease, transfer or other disposition to or with an Interested Shareholder of 10% or more of the consolidated assets of Amtech.
“Interested Shareholder” means any person other than Amtech or a subsidiary of Amtech that is either (A) a direct or indirect beneficial owner of 10% or more of the voting power of the outstanding common stock of Amtech or (B) an affiliate of Amtech who at any time during the three years immediately before the date in question was the beneficial owner of 10% or more of the voting power of the then outstanding common stock of Amtech.
“Share Acquisition Date” means the date that a person first becomes an Interested Shareholder of Amtech.
9
Business Combinations Within Three Years After Share Acquisition Date. For three years after an Interested Shareholder’s Share Acquisition Date, Amtech may not directly or indirectly engage in any Business Combination with an Interested Shareholder or any affiliate of an Interested Shareholder unless, before the Interested Shareholder’s Share Acquisition Date, a committee of disinterested directors approved either:
- the Business Combination; or
- the acquisition of common stock made by the Interested Shareholder on the Interested Shareholder’s Share Acquisition Date.
Business Combinations More Than Three Years After Share Acquisition Date. If a committee of disinterested directors has not approved the Business Combination or the acquisition of common stock as provided above, Amtech may not directly or indirectly engage in any Business Combination with an Interested Shareholder or any affiliate of an Interested Shareholder unless:
- the Business Combination is consummated no earlier than three years after the Interested Shareholder’s Share Acquisition Date, and before the Share Acquisition Date, Amtech’s Board of Directors approved either
- the Business Combination; or
- the acquisition of common stock made by the Interested Shareholder on the Share Acquisition Date;
- the Business Combination is approved no earlier than three years after the Interested Shareholder’s Share Acquisition Date by the affirmative vote of a majority of the outstanding voting shares of the common stock of Amtech (excluding shares of common stock beneficially owned by
each Sellingthe Interested Shareholder or any affiliate thereof); or
- the Business Combination is consummated no earlier than three years after the Interested Shareholder’s Share Acquisition Date and meets certain specified conditions designed to ensure against discriminatory pricing.
Arizona Control Share Acquisition Statute. The Arizona control share acquisition statute would limit the voting rights of a person who acquires shares of Amtech under certain circumstances in a control share acquisition (as defined below).
Control Share Acquisition means an acquisition, directly or indirectly (in one or more transactions within 120 days or pursuant to a plan), by a person of beneficial ownership of shares of common stock of Amtech that would, but for the limitations in the control share acquisition statute, entitle the acquiring person to exercise a new range of voting power within the following specified ranges: (A) at least 20% but less than 33-1/3%, (B) at least 33-1/3% but less than or equal to 50% and (C) over 50%.
Within ten days after a Control Share Acquisition, the acquiring person must deliver to the corporation an information statement specifying, among other things, the range of voting power in the election of directors that, but for the limitations in the statute, the acquiring person believes would result from the Control Share Acquisition. At the time of delivery of the information statement, the acquiring person may request that a special meeting of shareholders be called to consider the voting rights of “excess” shares (referred to below).
To the extent that shares of common stock of Amtech acquired in a Control Share Acquisition exceed the threshold of voting power of any of the next specified range of voting power, such “excess” shares will have the same voting rights as other shares of July 19, 1996. Except
as set forth below, nonecommon stock for election of directors but will not have the right to vote on other matters unless approved by a shareholder resolution at an annual or special meeting. Such resolution must be approved by the affirmative vote of a majority of the outstanding voting shares of common stock (excluding shares owned by the acquiring person, its affiliates or any officer or director of Amtech).
The status of voting rights of “excess” shares is not required to be presented for consideration at any meeting of shareholders unless, at the time of delivery of the information statement referred to above, the acquiring person has entered into a definitive financing agreement for any financing of the acquisition not to be provided by monies of the acquiring person.
10
If an acquiring person fails to deliver the required information statement within ten days after a Control Share Acquisition or if the Companies’ shareholders have voted not to accord voting rights to an acquiring person’s “excess” shares referred to above, then Amtech may call for the redemption of such Selling Shareholders has had“excess” shares at the fair market value of those shares at the time the call for redemption is given.
Stockholder Rights’ Plan
On December 15, 2008, we entered into an Amended and Restated Rights Agreement (the “Restated Rights Agreement”) with Computershare Trust Company, N.A., as Rights Agent, which amended and restated the terms governing the previously authorized shareholder rights (each a material
relationship with the Company other than as a result of ownership“Right”) to purchase fractional shares of the securitiesCompany’s Series A Participating Preferred Stock currently attached to each of the outstanding Common Shares of the Company. The Offered Securities may be offeredAs amended, each Right entitles the registered holder to purchase from time to
time by the Selling Shareholders named below or their nominees, and this
Prospectus may be required to be delivered by persons who may be deemed to be
underwriters in connection with the offer or sale of such securities. Because
(i) the Selling Shareholders may offer all or some of the Offered Securities
held by them pursuant to offerings contemplated by this Prospectus, (ii) the
Offered Securities are not necessarily being underwritten on a firm commitment
basis, and (iii) the Selling Shareholders may purchase additional shares of
Common Stock or Common Stock equivalents from time to time, the Company cannot
accurately estimate the amount of shares of Common Stock to be held by the
Selling Shareholders after completion of the offerings contemplated by this
Prospectus. The following table assumes that each Selling Shareholder will sell
all Offered Securities, which may not be the case.
The Company has agreed to register such securities under the Securities Act
and to pay all expenses in connection therewith (other than brokerage
commissions and fees and expenses of counsel). Such securities have been
included in the Registration Statement of which this Prospectus is a part. This
Prospectus may be used from time to time by the Company to issue the shares of
Common Stock covered herein upon the exercise of Options or the exercise of the
Purchase Rights.
19
- ----------------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock Shares of Common Stock
Beneficially Owned Prior to Owned Following the
the Offering(1)(3) Shares Offering(1)(2)(3)
--------------------------------------- Offered --------------------------------------
Selling Stockholder Number Percent Herein Number Percent
- ----------------------------------------------------------------------------------------------------------------------------------
Dr. Aime Avniel 10,000 (6) * 10,000 (7)(8) 0 0%
8552 E. Via Del Palacio
Scottsdale, Arizona 85258
- ----------------------------------------------------------------------------------------------------------------------------------
Donald F. Johnston (4) 11,250 (9) * 10,000 (10)(11) 1,250 (8) *
13615 N. Robertson Drive
Sun City West, Arizona 85375
- ----------------------------------------------------------------------------------------------------------------------------------
Alvin Katz (4) 130,000 (12) 3.16% 10,000 (11)(13) 120,000 (8) 2.92%
301 N. Birch Road
Boca Raton, FL 33304
- ----------------------------------------------------------------------------------------------------------------------------------
Bruce R. Thaw (4) 51,000 (14) 1.24% 10,000 (11)(15) 41,000 (8) 1.0%
45 Banfi Plaza
Farmingdale, New York 11735
- ----------------------------------------------------------------------------------------------------------------------------------
J.S. Whang (4) 138,976 (16) 3.37% 15,000 (17) 123,976 (8) 3.02%
131 South Clark Drive
Tempe, AZ 85281
- ----------------------------------------------------------------------------------------------------------------------------------
Robert T. Hass (4) 13,500 (18) * 10,000(8)(19) 5,500 (8) *
131 South Clark Drive
Tempe, AZ 85281
- ----------------------------------------------------------------------------------------------------------------------------------
Eugene R. Hartman 10,000 (20) * 10,000(8)(21) 0 0%
1607 Waltham Court
Lutherville, MD 21093
- ----------------------------------------------------------------------------------------------------------------------------------
Carol Bernhardt (5) 4,500 (22) * 4,500(8)(23) 0 0%
131 South Clark Drive
Tempe, AZ 85281
- ----------------------------------------------------------------------------------------------------------------------------------
Katherine Burgess (5) 5,000 (24) * 5,000(8)(25) 0 0%
131 South Clark Drive
Tempe, AZ 85281
- ----------------------------------------------------------------------------------------------------------------------------------
Jihyo Rhieu (5) 0 0% 50,000(8)(26) 0 0%
131 South Clark Drive
Tempe, AZ 85281
- ----------------------------------------------------------------------------------------------------------------------------------
All Selling Shareholders as a 374,226 (26) 8.92% 134,500 291,726(28) 7.07%
Group
- ----------------------------------------------------------------------------------------------------------------------------------
* Represents less than 1%.
(1) Assumes all of the Options and Purchase Rights are exercised and
no additional shares are acquired.
(2) Assumes all of the shares offered are sold by the Selling
Stockholders.
(3) The percentages shown include the shares of Common Stock actually
owned as of July 19, 1996, and the shares of Common Stock with
respect to which the person had the right to acquire beneficial
ownership within 60 days of such date pursuant to options. All
shares of Common Stock that the identified person had the right to
acquire within 60 days of July 19, 1996, upon the exercise of
options, are deemed to be
20
outstanding when computing the percentage of the securities owned
by such person, but are not deemed to be outstanding when
computing the percentage of the securities owned by any other
person.
(4) Mr. Whang is the Company's President, CEO and a director. Mr. Hass
is the Vice President-Finance, Chief Financial Officer, Treasurer,
Secretary, and a director. Messrs. Johnston, Katz and Thaw are
presently directors.
(5) Currently an employee of the Company.
(6) Includes 10,000 shares issuable upon presently exercisable
Purchase Rights.
(7) Pursuant to a Directors Stock Purchase Agreement dated May 13,
1993, Dr. Avniel has the right to purchase up to 10,000 shares of
Common Stock at a purchase price of $1.06 per share. Dr. Avniel's
purchase rights were to expire on June 30, 1995, however, the
Board of Directors of the Company extended the Agreement until 30
days after the effective dateone one-thousandth of a registration statement
registering the shares subject to the Agreement.
(8) The sharesshare of Common Stock to be issued have been adjusted to
reflect (i) a 2-for-1 reverse stock split of the Company's Common
Stock effected June 3, 1993, and (ii) a 2-for-1 forward stock
split of the Company's Common Stock effected March 29, 1996
(9) Includes 10,000 shares issuable upon presently exercisable
Purchase Rights.
(10) Pursuant to a Directors Stock Purchase Agreement dated April 19,
1994, Mr. Johnston has the right to purchase up to 10,000 shares
of Common Stock at a purchase price of $1.75 per share.
(11) The shares of Common Stock to be issued have been adjusted to
reflect a 2-for-1 forward stock split of the Company's Common
Stock effected March 29, 1996
(12) Includes 10,000 shares issuable upon presently exercisable
Purchase Rights.
(13) Pursuant to a Directors Stock Purchase Agreement dated May 1,
1995, Mr. Katz has the right to purchase up to 10,000 shares of
Common Stock at a purchase price of $2.235 per share.
(14) Includes 10,000 shares issuable upon presently exercisable
Purchase Rights, and warrants to purchase 9,000 shares of Common
StockSeries A Preferred at an exercise price of $2.25 per share.
(15)$51.60 (the “Exercise Price”), subject to adjustment. The plan is currently set to expire on December 14, 2018. Limitation of Liability and Indemnification
Pursuant to a Directors Stock Purchase Agreement dated May 1,
1995, Mr. Thaw has the right to purchase up to 10,000 shares of
Common Stock at a purchase price of $2.235 per share.
(16) Includes (i) 9,488 shares held jointly with Mr. Whang's spouse and
(ii) the 15,000 shares issuable upon the exercise of the presently
exercisable Options.
(17) Represents shares underlying Options granted pursuant to an
Incentive Stock Option Agreement dated May 11, 1983, pursuant to
which Mr. Whang has the right to purchase up to 15,000 shares of
Common Stock at an option exercise price of $1.76 per share.
(18) Includes 8,000 shares issuable upon presently exercisable Options.
(19) Represents shares underlying options granted pursuant to an
Incentive Stock Option Agreement dated October 14, 1992, pursuant
to which Mr. Hass has the right to purchase up to 10,000 shares of
Common Stock at an option exercise price of $0.625 per share.
(20) Includes 10,000 shares issuable upon presently exercisable
Options.
(21) Represents shares underlying Options granted pursuant to an
Incentive Stock Option Agreement dated February 19, 1991, pursuant
to which Mr. Hartman has the right to purchase up to 10,000 shares
of Common Stock at an option exercise price of $1.125 per share.
21
(22) Includes 4,500 shares issuable upon presently exercisable Options.
(23) Represents shares underlying Options granted pursuant to Incentive
Stock Option Agreements dated August 17, 1988 and January 17,
1991, pursuant to which Ms. Bernhardt has the right to purchase up
to 4,000 and up to 500 shares of Common Stock at option exercise
prices of $1.00 and $2.60 per share, respectively.
(24) Includes 5,000 shares issuable upon presently exercisable Options.
(25) Represents shares underlying options granted pursuant to an
Incentive Stock Option Agreement dated December 21, 1991, pursuant
to which Ms. Burgess has the right to purchase up to 5,000 shares
of Common Stock at an option exercise price of $1.00 per share.
(26) Represents shares underlying Options granted pursuant to an
Incentive Stock Option Agreement dated June 28, 1991, pursuant to
which Mr. Rhieu has the right to purchase up to 50,000 shares of
Common Stock at an option exercise price of $1.03 per share.
(27) Includes 42,500 shares issuable upon exercise of presently
exercisable Options, 40,000 shares of issuable upon exercise of
presently exercisable Purchase Rights, and 9,000 shares issuable
upon exercise of presently exercisable warrants.
22
DETERMINATION OF OFFERING PRICE
The offering price of the Common Stock subject to this Prospectus has been
contractually established as follows: The Options are exercisable at prices
ranging from $0.625 to $2.60 per share, depending upon the terms of the Option
Agreement between the Optionee and the Company, such exercise price determined
as the fair market value on the date of grant of each Option. The Directors
Purchase Rights are exercisable at prices ranging from $1.06 to $2.235 per
share, depending upon the terms of the Directors Agreement between the Director
and the Company, such purchase price determined as the fair market value on the
date of grant of each Purchase Right. This Prospectus may be used from time to
time by the Company to issue the shares of Common Stock covered herein upon the
exercise of Options or the exercise of the Purchase Rights.
PLAN OF DISTRIBUTION
The Company will cause the issuance of the shares of Common Stock to
Directors or the Optionees upon proper exercise of the Purchase Rights or the
Options, as the case may be. The Common Stock issuable on exercise of the
Purchase Price or Options, when issued, will be included in the outstanding
shares of the Company quoted on the Nasdaq SmallCap Market.
The Company will pay the expenses incident to the registration of the
securities offered hereby. The Company will not pay any expenses incident to the
offering and sale of the Common Stock by the holders thereof.
Transfer Agent and Warrant Agent
The Transfer Agent for the Common Stock and the Redeemable Warrants is
American Securities Transfer, Incorporated, of 938 Quail Street, Suite 101,
Lakewood, Colorado 80202-1817.
23
RECENT EVENTS
Sale of Contract Personnel Business. In October 1995, the Board of
Directors of the Company determined to dispose of the contract personnel
business in order to allow the Company to focus on its core semiconductor
equipment business. On December 29, 1995, Amtech entered into an Agreement and
Plan of Reorganization and Corporate Separation with Eugene R. Hartman, a Vice
President and director of Amtech and the President of Echelon (the "Agreement"),
to split-off the contract personnel business operated by Amtech through Echelon.
On January 29, 1996, the parties closed the split-off transaction (the
"Split-Off") effective as of December 31, 1995. The Company transferred all of
the stock of Echelon held by it to Mr. Hartman in exchange for 98,016 shares of
Amtech Common Stock held by Mr. Hartman. The total consideration for the Echelon
stock was valued at approximately $800,000. A cash dividend in the amount of
$393,368 was distributed by Echelon to Amtech prior to the Spilt-Off in order to
equalize values. Pursuant to the Agreement, Mr. Hartman acquired all of the
assets and assumed all of the liabilities of Echelon.
Prior to entering into the Echelon Agreement with Mr. Hartman, the Company
sought and negotiated offers from third parties. However, in the opinion of the
Board, the best offer was tendered by Mr. Hartman. The transaction was conducted
at arms' length, and management does not believe that a better deal could have
been made with unrelated third parties.
As of January 26, 1996, Mr. Hartman resigned as an officer of Amtech and as
of February 29, 1996, Mr. Hartman ceased to be a director of the Company upon
election of his successor at the Company's annual meeting of shareholders.
Industry Slowdown. Semiconductor manufacturers currently are experiencing a
significant decrease in order bookings. In addition, the prices for
semiconductors have declined dramatically, squeezing manufacturers' margins.
These factors may affect semiconductor manufacturers' decisions to purchase
capital equipment such as the Company's products. Further price declines due to
increased supply of semiconductors may have a material adverse effect on the
Company's business and results of operations.
Increased Backlog. During recent periods, the Company has been experiencing
a significantly greater order backlog than prior periods. The increase in the
backlog is due in substantial part to a substantial multi-year order, expanded
product line and customers' requested delays in deliveries from that scheduled
in the original purchase orders. Also, the Company has experienced long
lead-times in purchasing certain components from suppliers of quartz parts,
which has and is resulting in the Company taking up to six months to deliver
equipment that contains such quartz parts.
EXPERTS
The financial statements of the Company as of September 30, 1995, and for
each of the three years in the period ended September 30, 1995, incorporated by
reference herein and in the registration statement, have been audited by Arthur
Andersen LLP, independent public
24
accountants, as indicated in the reports with respect thereto, in reliance upon
the authority of said firm as experts in giving said reports.
LEGAL MATTERS
The legality of the securities offered hereby has been passed upon for the
Company by Squire, Sanders & Dempsey, Phoenix, Arizona.
25
======================================== ======================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS OR ANY
RELATED PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED. NEITHER THIS
PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS AND RELATED
PROSPECTUS SUPPLEMENT OR AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO
BUY SUCH SECURITIES IN ANY CIRCUMSTANCES
IN WHICH SUCH OFFER OR SOLICITATION IS AMTECH SYSTEMS, INC.
UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY RELATED PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER 134,500 Shares of Common Stock
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ___________
ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
-------------------- ---------------------------
PROSPECTUS
TABLE OF CONTENTS ---------------------------
Page
----
Available Information..................2
Incorporation of Certain Documents
by Reference.........................3
Prospectus Summary ....................4
The Company............................6
Risk Factors..........................13
Use of Proceeds.......................18
Selling Shareholders..................19
Determination of Offering Price.......23
Plan of Distribution..................23
Recent Events.........................24
Experts...............................24
Legal Matters.........................25
======================================== =====================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are as
follows:
SEC registration fee.......................................................$100
Legal fees and disbursements.............................................$5,000
Accounting fees and disbursements........................................$1,000
Blue Sky fees and expenses...............................................$2,500
Miscellaneous............................................................$2,500
-------
Total...................................................................$11,100
=======
The foregoing expenses will be borne by the Company.
Item 15. Indemnification of Directors and Officers.
The right of the shareholders to sue any director for misconduct in
conducting the affairs of the Company is limited by Article 14 of the Company'sAmtech’s Articles of Incorporation, and Arizona statutory law to actions for damages
resulting from a breach of a director's fiduciary duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of the law, the unlawful payment of dividends or stock repurchases or
transactions in which a director receives an improper personal benefit. Ordinary
negligence is not a ground for such a suit.
The Company also has the right, pursuant to Article 11 of the Company's
Articles of Incorporation, toit shall indemnify any present orand all of its existing and former director or
officer of the Company fordirectors, 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 connection withsettlement or compromise, which may arise or be incurred, rendered, or levied in any legal action brought or threatened against such personany 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 Company, 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 Company whether the legal action brought or threatened is by or in the courseright of the Company or by any other person. Whenever any existing or former director, officer, employee, or agent shall report to the President of the Company 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 person's duties, ifCompany, the person actedBoard 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 Company shall have the right to refuse indemnification in a mannerany instance in which the person reasonably believed to bewhom indemnification would otherwise have been applicable shall have unreasonably refused to permit the Company, at its own expense and through counsel of its own choosing, to defend him or her in the action. 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 opposed toinvolving action in the best
interests ofdirector’s official capacity, in which the Company, and with respect to criminal actions, had no
reasonable cause to believedirector was adjudged liable on the person's conductbasis that financial benefit was unlawful, provided that
such indemnification is made pursuant to then existing provisions of Arizona
statutory law atimprop erly received by the time of any such indemnification. The statute does not
limit the liability of directors or officers for monetary damages under the
Federal securities laws.
director.
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 Company, the
Companyforegoing provision, Amtech has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securitiessuch Act and is therefore unenforceable.
11
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of the debt securities we may offer under this prospectus and one or more prospectus supplements. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a prospectus supplement. The following description of debt securities will apply to the debt securities offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of debt securities may specify different or additional terms.
We may issue “senior,” “senior subordinated,” or “subordinated” debt securities. “Senior securities” will be direct obligations of ours and will rank equally and ratably in right of payment with other indebtedness of ours that is not subordinated. “Senior subordinated securities” will be subordinated in right of payment to the prior payment in full of senior indebtedness, as defined in the applicable prospectus supplement, and may rank equally and ratably with the senior subordinated notes and any other senior subordinated indebtedness. “Subordinated securities” will be subordinated in right of payment to senior subordinated securities.
We need not issue all debt securities of one series at the same time. Unless we provide otherwise, we may reopen a series, without the consent of the holders of such series, for issuances of additional securities of that series.
We will issue the senior debt securities and senior subordinated debt securities under a senior indenture, which we will enter into with the trustee to be named in the senior indenture, and we will issue the subordinated debt securities under a subordinated indenture, which we will enter into with the trustee to be named in the subordinated indenture. We use the term “indenture” or “indentures” to refer to both the senior indenture and the subordinated indenture. Each indenture will be subject to and governed by the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act, and we may supplement the indenture from time to time. Any trustee under any indenture may resi gn or be removed with respect to one or more series of debt securities, and we may appoint a successor trustee to act with respect to that series. We have filed a form of indenture as an exhibit to this registration statement, of which this prospectus forms a part. The terms of the senior indenture and subordinated indenture will be substantially similar, except that the subordinated indenture will include provisions pertaining to the subordination of the subordinated debt securities and senior subordinated debt securities to the senior debt securities and any other of our senior securities. The following statements relating to the debt securities and the indenture are summaries only, are subject to change and are qualified in their entirety to the detailed provisions of the indenture, any supplemental indenture and the discussion contained in any prospectus supplements.
General
The debt securities will be our direct obligations. We may issue debt securities from time to time and in one or more series as our board of directors may establish by resolution or as we may establish in one or more supplemental indentures. The particular terms of each series of debt securities will be described in a prospectus supplement relating to the series. We may issue debt securities with terms different from those of debt securities that we previously issued.
We may issue debt securities from time to time and in one or more series with the same or various maturities, at par, at a premium or at a discount. We will set forth in a prospectus supplement, relating to any series of debt securities being offered, the initial offering price and the following terms of the debt securities:
- the title of the debt securities;
- the series designation and whether they are senior securities, senior subordinated securities or subordinated securities;
- the aggregate principal amount of the debt securities and any limit on the aggregate amount of the series of debt securities;
12
- the price or prices (expressed as a percentage of the aggregate principal amount) at which we will issue the debt securities and, if other than the principal amount of the debt securities, the portion of the principal amount of the debt securities payable upon the maturity of the debt securities;
- the date or dates on which we will pay the principal on the debt securities;
- the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
- the place where principal, interest and any additional amounts will be payable and where the debt securities can be surrendered for transfer, exchange or conversion;
- the terms, if any, by which holders of the debt securities may convert or exchange the debt securities for our common stock, preferred stock or any other security or property;
- if convertible, the initial conversion price, the conversion period and any other terms governing such conversion;
- any subordination provisions or limitations relating to the debt securities;
- any sinking fund requirements;
- any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities;
- the dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
- the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
- the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
- whether we will issue the debt securities in certificated or book-entry form;
- whether the debt securities will be in registered or bearer form and, if in registered form, the denominations if other than in even multiples of $1,000 and, if in bearer form, the denominations and terms and conditions relating thereto;
- the designation of the currency, currencies or currency units in which payment of principal of, premium, and interest on the debt securities will be made;
- if payments of principal of, and interest and any additional amounts on, the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
13
- the manner in which the amounts of payment of principal of, and interest and any additional amounts on, the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index;
- any applicability of the defeasance provisions described in this prospectus or any prospectus supplement;
- whether and under what circumstances, if any, we will pay additional amounts on any debt securities in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities instead of making this payment;
- any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
- any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
- if the debt securities are to be issued upon the exercise of debt warrants, the time, manner and place for them to be authenticated and delivered;
- any securities exchange on which we will list the debt securities;
- any restrictions on transfer, sale or other assignment;
- any provisions relating to any security provided for the debt securities;
- any other terms of the debt securities, which may modify or delete any provision of the indenture as it applies to that series; and
- any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities.
We may issue debt securities that are exchangeable for or convertible into shares of our common stock or other securities or property. The terms, if any, on which the debt securities may be exchanged for or converted into shares of our common stock or other securities or property will be set forth in the applicable prospectus supplement. Such terms may include provisions for conversion, either mandatory, at the option of the holder, or at our option, in which case the number of shares of common stock or other securities or property to be received by the holders of debt securities would be calculated as of a time and in the manner stated in the prospectus supplement.
We may issue debt securities at less than the principal amount payable upon maturity. We refer to these securities as “original issue discount securities.” If material or applicable, we will describe in the applicable prospectus supplement special U.S. federal income tax, accounting and other considerations applicable to original issue discount securities.
14
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of, and interest and any additional amounts on, any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Except as may be set forth in any prospectus supplement relating to the debt securities, an indenture will not contain any other provisions that would limit our ability to incur indebtedness or that would afford holders of the debt securities protection in the event of a highly leveraged or similar transaction involving us or in the event of a change in control. You should review carefully the applicable prospectus supplement for information with respect to events of default and any covenants applicable to the debt securities being offered.
Payments and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of, and interest and any additional amounts on, the debt securities of a particular series at the office of the paying agents designated by us, except that, unless we otherwise indicate in the applicable prospectus supplement, we may make interest payments by check, which we will mail to the holder, or by wire transfer to certain holders. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series.
Form, Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, New York, New York, known as DTC, as depositary, or a nominee of the depositary (as a “book-entry debt security”), or a certificate issued in definitive registered form (as a “certificated debt security”), as described in the applicable prospectus supplement. Except as described under “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities
You may transfer or exchange certificated debt securities at the trustee’s office or paying agencies in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the principal of, and interest and any additional amounts on, certificated debt securities only by surrendering the old certificate representing those certificated debt securities and either we or the trustee will reissue the old certificate to the new holder, or we or the trustee will issue a new certificate to the new holder.
15
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the depositary, and registered in the name of the depositary or a nominee of the depositary. Ownership of beneficial interests in book-entry debt securities will be limited to persons that have accounts with the depositary for the related global debt security, whom we refer to as participants, or persons that may hold interests through participants.
Except as described in this prospectus or any applicable prospectus supplement, beneficial owners of book-entry debt securities will not be entitled to have securities registered in their names, will not receive or be entitled to receive physical delivery of a certificate in definitive form representing securities and will not be considered the owners or holders of those securities under the indenture. Accordingly, to exercise any rights of a holder under the indenture, each person beneficially owning book-entry debt securities must rely on the procedures of the depositary for the related global debt security and, if that person is not a participant, on the procedures of the participant through which that person owns its interest.
We understand, however, that under existing industry practice, the depositary will authorize the persons on whose behalf it holds a global debt security to exercise certain rights of holders of debt securities, and the indenture provides that we, the trustee and our respective agents will treat as the holder of a debt security the persons specified in a written statement of the depositary with respect to that global debt security for purposes of obtaining any consents or directions required to be given by holders of the debt securities pursuant to the indenture.
We will make payments of principal of, and interest and any additional amounts on, book-entry debt securities to the depositary or its nominee, as the case may be, as the registered holder of the related global debt security. We, the trustee and any other agent of ours or agent of the trustee will not have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Any certificated debt securities issued in exchange for a global debt security will be registered in such name or names as the depositary shall instruct the trustee. We expect that such instructions will be based upon directions received by the depositary from participants with respect to ownership of book-entry debt securities relating to such global debt security.
For additional discussion of book entry and certificated securities, see the section entitled “Legal Ownership of Securities” included in this prospectus. We have obtained the foregoing information in this section and the “Legal Ownership of Securities” section concerning the depositary and the depositary’s book-entry system from sources we believe to be reliable. We take no responsibility for the depositary’s performance of its obligations under the rules and regulations governing its operations.
No Protection in the Event of a Change in Control
Unless we provide otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control).
Covenants
Unless we provide otherwise in the applicable prospectus supplement, the debt securities will not contain any restrictive covenants, including covenants restricting us or any of our subsidiaries from incurring, issuing, assuming or guaranteeing any indebtedness secured by a lien on any of our or our subsidiaries’ property or capital stock or restricting us or any of our subsidiaries from entering into any sale and leaseback transactions.
16
Merger, Consolidation, and Sale of Assets
Unless we provide otherwise in the applicable prospectus supplement, we may not merge with or into or consolidate with, or convey, transfer or lease all or substantially all of our properties and assets to, any person (a “successor person”), and we may not permit any person to merge into, or convey, transfer, or lease its properties and assets substantially as an entirety to us, unless the following applies:
- either (a) Amtech Systems, Inc. is the surviving entity or (b) the successor person is a corporation, partnership, trust or other entity organized and validly existing under the laws of any United States domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture;
- immediately after giving effect to the transaction, no event of default, and no event that, after notice or lapse of time, or both, would become an event of default, shall have occurred and be continuing under the indenture; and
- certain other conditions that may be set forth in the applicable prospectus supplement are met.
This covenant would not apply to any recapitalization transaction, a change in control of us or a transaction in which we incur a large amount of additional debt unless the transactions or change in control included a merger, consolidation, or transfer or lease of substantially all of our assets. Except as may be described in the applicable prospectus supplement, there are no covenants or other provisions in the indenture providing for a “put” right or increased interest or that would otherwise afford holders of debt securities additional protection in the event of a recapitalization transaction, a change in control of us or a transaction in which we incur a large amount of additional debt .
Events of Default Under the Indenture
Unless we provide otherwise in the applicable prospectus supplement, an “event of default” will mean, with respect to any series of debt securities, any of the following:
- default in the payment of any interest upon any debt security of that series when it becomes due and payable and continuance of that default for a period of 30 days (unless the entire amount of such payment is deposited by us with the trustee or with a paying agent before the expiration of the 30-day period);
- default in the payment of principal of, or premium, if any, on any debt security of that series when due and payable either at maturity, redemption or otherwise;
- default in the deposit of any sinking fund payment, when and as due in respect of any debt security of that series;
- default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series) or in the debt security, which default continues uncured for a period of 90 days after we receive written notice from the trustee or we and the trustee receive written notice from the holders of not less than a majority in principal amount of the outstanding debt securities of that series as provided in the indenture;
- we, pursuant to or within the meaning of any applicable bankruptcy law, commence a voluntary case, consent to the entry of an order for relief against us in an involuntary case, consent to the appointment of a custodian for all or substantially all of our property, make a general assignment for the benefit of our creditors or admit in writing our inability generally to pay our debts as they become due; or, similarly, a court enters an order or decree under any applicable bankruptcy law that provides for relief against us in an involuntary case, appoints a custodian for all or substantially all of our properties or orders our liquidation (and the order remains in effect for 90 days); and
- any other event of default provided with respect to debt securities of that series that is included in any supplemental indenture or is described in the applicable prospectus supplement accompanying this prospectus.
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No event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of default with respect to any other series of debt securities. An event of default may also be an event of default under our bank credit agreements or other debt securities in existence from time to time and under certain guaranties by us of any subsidiary indebtedness. In addition, certain events of default or an acceleration under the indenture may also be an event of default under some of our other indebtedness outstanding from time to time.
Unless we provide otherwise in the applicable prospectus supplement, if an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing (other than certain events of our bankruptcy, insolvency or reorganization), then the trustee or the holders of not less than a majority in principal amount of the outstanding debt securities of that series may, by written notice to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and accrued and unpaid inter est, if any, of all debt securities of that series. In the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, of all outstanding debt securities will become and be immediately due and payable without any declaration or other act by the trustee or any holder of outstanding debt securities.
At any time after an acceleration with respect to debt securities of a series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of not less than a majority in principal amount of the outstanding debt securities of that series may cancel the acceleration and annul its consequences if the rescission would not conflict with any judgment or decree and if all existing events of default with respect to that series have been cured or waived except nonpayment of principal (or such lesser amount) or interest that has become due solely because of the acceleration.
The indenture also provides that the holders of not less than a majority in principal amount of the outstanding debt securities of any series may waive any past default with respect to that series and its consequences, except a default involving the following:
- our failure to pay the principal of, and interest and any additional amounts on, any debt security; or
- a covenant or provision contained in the indenture that cannot be modified or amended without the consent of the holders of each outstanding debt security affected by the default.
The trustee is generally required to give notice to the holders of debt securities of each affected series within 90 days of a default actually known to a responsible officer of the trustee unless the default has been cured or waived. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any default or event of default (except in payment on any debt securities of that series) with respect to debt securities of that series if it in good faith determines that withholding notice is in the interest of the holders of those debt securities.
Unless we provide otherwise in the applicable prospectus supplement, the indenture will provide that the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any holder of any such outstanding debt securities unless the trustee receives indemnity satisfactory to it against any loss, liability or expense. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with resp ect to the debt securities of that series. The trustee may, however, refuse to follow any direction that conflicts with the indenture or any law or which may be unduly prejudicial to the holders of the debt securities of the applicable series not joining in the direction.
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Unless we provide otherwise in the applicable prospectus supplement, no holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
- that holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that series; and
- the holders of at least 25% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the trustee to institute such proceeding as trustee, and the trustee shall not have received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
Notwithstanding the foregoing, except as provided in the subordination provisions, if any, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and any interest or additional amounts on, that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a certificate as to compliance with the indenture, or, in the event of noncompliance, specify the noncompliance and the nature and status of the noncompliance.
Modification of Indenture and Waiver
Except as specified below, modifications and amendments to the indenture require the approval of not less than a majority in principal amount of our outstanding debt securities.
Changes Requiring the Unanimous Approval
We and the trustee may not make any modification or amendment to the indenture without the consent of the holder of each affected debt security then outstanding if that amendment will have any of the following results:
- reduce the rate of or extend the time for payment of interest, including default interest, on any debt security;
- reduce the principal of or any additional amounts on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
- reduce the principal amount of discount securities payable upon acceleration of maturity;
- waive a default in the payment of the principal of, and interest or any additional amounts on, any debt security, except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from that acceleration;
- make the principal of, or interest or any additional amounts on, any debt security payable in currency other than that stated in the debt security;
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- change the place of payment on a debt security;
- change the currency or currencies of payment of the principal of, and any premium, make-whole payment, interest or additional amounts on, any debt security;
- impair the right to initiate suit for the enforcement of any payment on or with respect to any debt security;
- reduce the percentage of holders of debt securities whose consent is needed to modify or amend an indenture, to waive compliance with certain provisions of an indenture or to waive certain defaults;
- reduce the percentage of the holders of outstanding debt securities of any series necessary to modify or amend the indenture, to waive compliance with provisions of the indenture or defaults and their consequences under the indenture or to reduce the quorum or voting requirements contained in the indenture;
- make any change that adversely affects the right to convert or exchange any debt security other than as permitted by the indenture or decrease the conversion or exchange rate or increase the conversion or exchange price of any such debt security;
- waive a redemption payment with respect to any debt security; or
- make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, and interest and any additional amount on, those debt securities, the right of holders to institute suit for the enforcement of any payment or the right of holders to waive past defaults.
Changes Not Requiring Approval of Debt Holders
We and the trustee may modify or amend an indenture, without the consent of any holder of debt securities, for any of the following purposes:
- to evidence the succession of another person to us as obligor under the indenture;
- to add to our existing covenants additional covenants for the benefit of the holders of all or any series of debt securities, or to surrender any right or power conferred upon us in the indenture;
- to add events of default for the benefit of the holders of all or any series of debt securities;
- to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize the terms of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that this action will not adversely affect the interests of the holders of the debt securities of any series in any material respect;
- to add, change or eliminate any provisions of the indenture, provided that any addition, change or elimination (a) shall neither (i) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any debt security with respect to such provision, or (b) shall become effective only when there are no outstanding debt securities;
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- to establish additional series of debt securities;
- to secure previously unsecured debt securities;
- to establish the form or terms of debt securities of any series, including the provisions and procedures, if applicable, for the conversion or exchange of the debt securities into our common stock, preferred stock or other securities or property;
- to evidence and provide for the acceptance or appointment of a successor trustee or facilitate the administration of the trusts under the indenture by more than one trustee;
- to make any provision with respect to the conversion or exchange of rights of holders pursuant to the requirements of the indenture;
- to cure any ambiguity, defect or inconsistency in the indenture, provided that the action does not adversely affect the interests of holders of debt securities of any series issued under the indenture;
- to close the indenture with respect to the authentication and delivery of additional series of debt securities or to qualify, or maintain qualification of, the indenture under the Trust Indenture Act; or
- to supplement any of the provisions of the indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt securities, provided that the action shall not adversely affect the interests of the holders of the debt securities of any series in any material respect.
A vote by holders of debt securities will not be required for clarifications and certain other changes that would not adversely affect holders of the debt securities.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
Unless the terms of the applicable series of debt securities provide otherwise, we may be discharged from any and all obligations in respect of the debt securities of any series (except for certain obligations to register the transfer or exchange of debt securities of the series; to replace stolen, lost or mutilated debt securities of the series; and to maintain paying agencies and certain provisions relating to the treatment of funds held by paying agents). We will be so discharged upon the deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, foreign government obligations (as described at the end of this section), that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient to pay and discharge each installment of principal, interest and any additional amounts on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of such payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that holders of the debt securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
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Defeasance of Certain Covenants
Unless the terms of the applicable series of debt securities provide otherwise, upon compliance with certain conditions, we may omit to comply with the restrictive covenants contained in the indenture, as well as any additional covenants contained in the applicable prospectus supplement.
The conditions include, among others, the following:
- depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, foreign government obligations, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay principal, interest and any additional amounts on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
- delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax in the same amount and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
Covenant Defeasance and Events of Default
If we exercise our option, as described above, not to comply with certain covenants of the indenture with respect to any series of debt securities, and the debt securities of that series are declared due and payable because of the occurrence of any event of default, the amount of money and/or U.S. government obligations or foreign government obligations on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from the event of default. However, we will remain liable for those payments.
“Foreign government obligations” means, with respect to debt securities of any series that are denominated in a currency other than United States dollars:
- direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged, which are not callable or redeemable at the option of the issuer thereof; or
- obligations of a person controlled or supervised by or acting as an agency or instrumentality of that government, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by that government, which are not callable or redeemable at the option of the issuer thereof.
Subordination
We will set forth in the applicable prospectus supplement the terms and conditions, if any, upon which any series of senior subordinated securities or subordinated securities is subordinated to debt securities of another series or to other indebtedness of ours. The terms will include a description of the following:
- the indebtedness ranking senior to the debt securities being offered;
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- any restrictions on payments to the holders of the debt securities being offered while a default with respect to the senior indebtedness is continuing;
- any restrictions on payments to the holders of the debt securities being offered following an event of default; and
- provisions requiring holders of the debt securities being offered to remit some payments to holders of senior indebtedness.
Conversion and Exchange Rights
The terms on which debt securities of any series may be convertible into or exchangeable for our common stock, preferred stock, or other securities or property of the Company will be described in the applicable prospectus supplement. These terms will include the following:
- the conversion or exchange price, or the manner of calculating the price;
- the exchange or conversion period;
- whether the conversion or exchange is mandatory, or voluntary at the option of the holder, or at our option;
- any restrictions on conversion or exchange in the event of redemption of the debt securities and any restrictions on conversion or exchange; and
- the means of calculating the number of shares of our common stock, preferred stock or other securities or property of Amtech Systems, Inc. to be received by the holders of debt securities.
The conversion or exchange price of any debt securities of any series that are convertible into our common stock or preferred stock may be adjusted for any stock dividends, stock splits, reclassification, combinations or similar transactions, as set forth in the applicable prospectus supplement.
Redemption of Debt Securities
The debt securities may be subject to optional or mandatory redemption on terms and conditions described in the applicable prospectus supplement. Subject to such terms, we may opt at any time to partially or entirely redeem the debt securities.
If less than all the debt securities of any series are to be redeemed or purchased in an offer to purchase at any time, the trustee will select the debt securities of that series to be redeemed or purchased as follows: (1) if the securities of such series are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the debt securities of that series are listed; or (2) if the debt securities of that series are not listed on a national securities exchange, on a pro rata basis, by lot or by such other method as the trustee deems fair and appropriate.
Except as otherwise provided as to any particular series of debt securities, at least 30 days but not more than 60 days before a redemption date, we or the trustee will mail a notice of redemption to each holder whose debt securities are to be redeemed. From and after notice has been given as provided in the applicable indenture, if funds for the redemption of any debt securities called for redemption shall have been made available on the redemption date, the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and the only right of the holders of the debt securities will be to receive payment of the redemption price.
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Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the state of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase common stock (which we refer to as common stock warrants), preferred stock (which we refer to as preferred stock warrants) or debt securities (which we refer to as debt security warrants). Any of these warrants may be issued independently or together with any other securities offered by this prospectus and may be attached to or separate from those securities.
While the terms we have summarized below will generally apply to any future warrants we may offer under this prospectus, we will describe the particular terms of any warrants that we may offer in more detail in the applicable prospectus supplement. The terms of any warrants we offer under a prospectus supplement may differ from the terms we describe below.
We may issue the warrants under a warrant agreement, which we will enter into with a warrant agent to be selected by us. Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the re lated warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
We will incorporate by reference into the registration statement of which this prospectus is a part the form of warrant agreement, including a form of warrant certificate, that describes the terms of the series of warrants we are offering before the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement applicable to a particular series of warrants. We urge you to read the applicable prospectus supplements related to the warrants that we sell under this prospectus, as well as the complete warrant agreements that cont ain the terms of the warrants.
We will set forth in the applicable prospectus supplement the terms of the warrants in respect of which this prospectus is being delivered, including, when applicable, the following:
- the title of the warrants;
- the aggregate number of the warrants;
- the price or prices at which the warrants will be issued;
- the designation, number and terms of the securities purchasable upon exercise of the warrants;
- the designation and terms of the other securities, if any, with which the warrants are issued and the number of warrants issued with each such security;
- the date, if any, on and after which the warrants and the related underlying securities will be separately transferable;
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- the price at which each underlying security purchasable upon exercise of the warrants may be purchased;
- the date on which the right to exercise the warrants will commence and the date on which such right will expire;
- the minimum amount of the warrants that may be exercised at any one time;
- any information with respect to book-entry procedures;
- the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
- any other terms of the warrants, including terms, procedures and limitations relating to the transferability, exchange and exercise of such warrants;
- the terms of any rights to redeem or call, or accelerate the expiration of, the warrants;
- the date on which the right to exercise the warrants begins and the date on which that right expires;
- the U.S. federal income tax consequences of holding or exercising the warrants; and
- any other specific terms, preferences, rights or limitations of, or restrictions on, the warrants.
Unless specified in an applicable prospectus supplement, common stock warrants, preferred stock warrants, or debt security warrants will be in registered form only.
A holder of warrant certificates may exchange them for new certificates of different denominations, present them for registration of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any common stock warrants, preferred stock warrants or debt security warrants are exercised, holders of the warrants will not have any rights of holders of the underlying common stock, preferred stock or debt securities, except to the extent set forth under the heading “Warrant Adjustments” below.
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash shares of common stock, preferred stock or debt securities at the applicable exercise price set forth in, or determined as described in, the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Warrants may be exercised by delivering to the corporation trust office of the warrant agent or any other officer indicated in the applicable prospectus supplement (a) the warrant certificate properly completed and duly executed and (b) payment of the amount due upon exercise. As soon as practicable following exercise, we will forward the shares of common stock, preferred stock or debt securities, as applicable. If less than all of the warrants represented by a warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or a part of the exercise price for the warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent of the holders of the applicable warrants to cure ambiguities in the warrant agreement, to cure or correct a defective provision in the warrant agreement or to provide for other matters under the warrant agreement that we and the warrant agent deem necessary or desirable, so long as, in each case, such amendments or supplements do not materially adversely affect the interests of the holders of the warrants.
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Warrant Adjustments
Unless the applicable prospectus supplement states otherwise, the exercise price of, and the number of securities covered by, a common stock warrant, preferred stock warrant or debt security warrant will be adjusted proportionately if we subdivide or combine our common stock or preferred stock, as applicable. In addition, unless the prospectus supplement states otherwise, if we, without payment:
- issue capital stock or other securities convertible into or exchangeable for common stock or preferred stock, or any rights to subscribe for, purchase or otherwise acquire any of the foregoing, as a dividend or distribution to holders of our common stock or preferred stock;
- pay any cash to holders of our common stock or preferred stock other than a cash dividend paid out of our current or retained earnings or other than in accordance with the terms of the preferred stock;
- issue any evidence of our indebtedness or rights to subscribe for or purchase our indebtedness to holders of our common stock or preferred stock; or
- issue common stock or preferred stock or additional stock or other securities or property to holders of our common stock or preferred stock by way of a spin-off, split-up, reclassification, combination of shares or similar corporate rearrangement,
then the holders of common stock warrants, preferred stock warrants and debt security warrants, as applicable, will be entitled to receive upon exercise of the warrants, in addition to the securities otherwise receivable upon exercise of the warrants and without paying any additional consideration, the amount of stock and other securities and property such holders would have been entitled to receive had they held the common stock, preferred stock or debt securities, as applicable, issuable under the warrants on the dates on which holders of those securities received or became entitled to receive such additional stock and other securities and property.
Except as stated above, the exercise price and number of securities covered by a common stock warrant, preferred stock warrant and debt security warrant, and the amounts of other securities or property to be received, if any, upon exercise of those warrants, will not be adjusted or provided for if we issue those securities or any securities convertible into or exchangeable for those securities, or securities carrying the right to purchase those securities or securities convertible into or exchangeable for those securities.
Holders of common stock warrants, preferred stock warrants and debt security warrants may have additional rights under the following circumstances:
- certain reclassifications, capital reorganizations or changes of the common stock or preferred stock, as applicable;
- certain share exchanges, mergers or similar transactions involving us and which result in changes of the common stock or preferred stock, as applicable; or
- certain sales or dispositions to another entity of all or substantially all of our property and assets.
If one of the above transactions occurs and holders of our common stock, preferred stock or debt securities are entitled to receive stock, securities or other property with respect to or in exchange for their securities, the holders of the common stock warrants, preferred stock warrants and debt security warrants then outstanding, as applicable, will be entitled to receive upon exercise of their warrants the kind and amount of shares of stock and other securities or property that they would have received upon the applicable transaction if they had exercised their warrants immediately before the transaction.
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DESCRIPTION OF UNITS
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may offer under this prospectus. Units may be offered independently or together with common stock, preferred stock, debt securities and warrants offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will generally apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series of units that we may offer in more detail in the applicable prospectus supplement. The terms of any units of fered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference into the registration statement of which this prospectus is a part the form of unit agreement, including a form of unit certificate, if any, that describes the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material provisions of the units and the unit agreements are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
General
We may issue units consisting of common stock, preferred stock, debt securities and/or warrants in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including the following:
- the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
- any provisions of the governing unit agreement that differ from those described below; and
- any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Common Stock,” “Description of Preferred Stock,” “Description of Debt Securities,” and “Description of Warrants,” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
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Title
We, the unit agent and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purposes and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary, or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in se curities issued in book-entry form or in street name will be indirect holders.
See also the section entitled “Description of Debt Securities — Form, Transfer, and Exchange” above for additional discussion of book entry and certificated form of ownership as such forms of ownership impact the rights and obligations of purchasers of debt securities to be issued under this prospectus.
Book-Entry Holders
We may issue securities in whole or in part in book-entry form, as we will specify in the applicable prospectus supplement. Book-entry form means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers. Upon the issuance of a global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ acc ounts with the respective principal amounts of the book-entry securities represented by the global security beneficially owned by such participants. The accounts to be credited will be designated by any dealers, underwriters or agents participating in the distribution of the book-entry securities. Ownership of book-entry securities will be shown on, and the transfer of the ownership interests will be effected only through, records maintained by the depositary for the related global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants). The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may impair the ability to own, transfer or pledge beneficial interests in book-entry securities.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, not holders, of the securities.
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Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he she, or it maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to determine the following:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders’ consent, if ever required;
- whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
- how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
- if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms. Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the deposi tary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
We may at any time and in our sole discretion determine not to have any of the book-entry securities of any series represented by one or more global securities and, in that event, we will issue certificated securities in exchange for the global securities of that series.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
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If securities are issued only in the form of a global security, an investor should be aware of the following:
- an investor cannot cause the securities to be registered in his, her or its name, and cannot obtain non-global certificates for his, her or its interest in the securities, except in the special situations we describe below;
- an investor will be an indirect holder and must look to his, her or its own bank or broker for payments on the securities and protection of his, her or its legal rights relating to the securities, as we describe above;
- an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
- an investor may not be able to pledge his, her or its interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
- the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security;
- we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way;
- the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
- financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
- if the depositary notifies us that it is unwilling, unable or no longer qualified under the Exchange Act to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
- if we notify any applicable trustee that we wish to terminate that global security; or
- if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
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The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular types and series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus from time to time in one or more of the following ways:
- to or through underwriters or dealers;
- directly to one or more purchasers;
- through agents; or
- through a combination of any of those methods of sale.
The prospectus supplement with respect to the offered securities will describe the terms of the offering, including the following:
- the name or names of any underwriters or agents;
- any public offering price;
- the proceeds from such sale;
- any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
- any over-allotment options under which underwriters may purchase additional securities from us;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchanges on which the securities may be listed.
We may distribute the securities from time to time in one or more of the following ways:
- at a fixed public offering price or prices, which may be changed;
- at prices relating to prevailing market prices at the time of sale;
- at varying prices determined at the time of sale; or
- at negotiated prices.
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Unless otherwise indicated in the applicable prospectus supplement, if we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price, or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. Unless otherwise indicated in a prospectus supplement, the underwriters will be obligated to purchase all the securities o f the series offered if they purchase any of the securities of that series. We may change from time to time any initial public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement naming the underwriter the nature of any such relationship. We may designate agents who agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell securities on a continuing basis. We may also sell securities directly to one or more purchasers without using underwriters or agents.
Underwriters, dealers or agents may receive compensation in the form of discounts, concessions or commissions from us or from purchasers of the securities as their agents in connection with the sale of the securities. These underwriters, dealers or agents may be considered to be underwriters under the Securities Act. As a result, discounts, commissions or profits on resale received by underwriters, dealers or agents may be treated as underwriting discounts and commissions. Each prospectus supplement will identify any underwriter, dealer or agent and describe any compensation received by them from us. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our common stock, which is listed on the NASDAQ. We may elect to list any other class or series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assuran ce as to the liquidity of the trading market for any of the securities.
In connection with any offering, the underwriters may engage in stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
- Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
- Over-allotment involves sales by the underwriters of shares of our common stock in excess of the number of shares the underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares of our common stock over-allotted by the underwriters is not greater than the number of shares that they may purchase in the over-allotment option. In a naked short position, the number of shares of our common stock involved is greater than the number of shares in the over-allotment option. The underwriters may close out any covered short position by either exercising their over-allotment option or purchasing shares of our common stock in the open market.
- Syndicate covering transactions involve purchases of our common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares of our common stock available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option so that if there is a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the shares of our common stock in the open market after the pricing of any offerin g that could adversely affect investors who purchase in that offering.
- Penalty bids permit the representatives of the underwriters to reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
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These stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on the NASDAQ or otherwise and, if commenced, may be discontinued at any time.
Underwriters, dealers and agents may be entitled under agreements entered into with us to indemnification against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments they may be required to make in respect of these liabilities thereof. Underwriters, dealers, agents and their affiliates may be customers of, may engage in transactions with or perform services for us in the ordinary course of business for which they receive compensation.
Trading Markets and Listing Of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our common stock, which is listed on The Nasdaq Global Select Market. We may elect to list any other class or series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the s ecurities.
Blue Sky Restrictions on Resale
After you purchase our securities under this registration statement, you will need to comply with state securities laws, also known as “Blue Sky laws,” with regard to secondary sales in certain states in the United States. All states offer a variety of exemptions from registration for secondary sales. Many states, for example, have an exemption for secondary trading of certain securities registered under Section 12(b) of the Securities Exchange Act of 1934. Your broker will be able to advise you about which states exempt our securities from registration for secondary s ales.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon by Squire, Sanders & Dempsey (US) LLP. Certain legal matters may be passed upon for any agents or underwriters by counsel for such agents or underwriters identified in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Amtech Systems, Inc. incorporated in this prospectus by reference to our Annual Report on Form 10-K for the years ended September 30, 2010 have been so incorporated in reliance on the reports of Mayer Hoffman McCann P.C., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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==================================================================================
Amtech Systems, Inc.
$60,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
[__________], 2010
==================================================================================
This prospectus only provides you with a general description of the securities that we may offer. Each time we sell securities, we will provide a prospectus supplement that contains specific information about the terms of those securities. You should read both this prospectus and any prospectus supplement with the additional information described under the Sections entitled, “Incorporation by Reference” and “Where You Can Find More Information.”
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated fees and expenses, other than underwriting discounts and other fees and expenses associated with offerings of particular securities, in connection with the issuance and distribution of the securities being registered. All of the amounts shown are estimates, except for the SEC registration fee:
| Description | | Amount to be Paid ($) |
| SEC Registration Fee | | 6,966 |
| Accountants’ Fees and Expenses | | 10,000(1) |
| Legal Fees and Expenses | | 25,000(1) |
| Printing and Engraving Expenses | | (2) |
| Transfer Agent Fees and Expenses | | (2) |
| Miscellaneous Fees | | (2) |
| Total | | (2) |
| (1) | | These fees include only the costs of filing this Registration Statement. Additional fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated at this time. In accordance with Rule 430B, additional information regarding estimated fees and expenses will be provided at the time information as to an offering is included in a prospectus supplement. |
| | |
| (2) | | These fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated at this time. In accordance with Rule 430B, additional information regarding estimated fees and expenses will be provided at the time information as to an offering is included in a prospectus supplement. |
Item 15. 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 Company, 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 Company whether the legal action brought or threatened is by or in the right of the Company or by any other person. Whenever any existing or former director, officer, employee, or agent shall report to the President of the Company 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 Company, 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 Company 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 Company, at its own expense and through counsel of its own choosing, to defend him or her in the action.
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 wa s improperly received by the director.
We have also obtained director’s and officer’s liability insurance.
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 16. Exhibits.
Method
Exhibit No. | Description |
| 1.1* | Form of Filing
----------- ----------- ---------
3.1 Underwriting Agreement |
| 4.1 | Articles of Incorporation, A
3.2 incorporated by reference to Amtech’s Form S-1 Registration Statement No. 2-83934-LA |
| 4.2 | Articles of Amendment to Articles of Incorporation, dated A
April 27, 1983, 3.3 incorporated by reference to Amtech’s Form S-1 Registration Statement No. 2-83934-LA |
| 4.3 | Articles of Amendment to Articles of Incorporation, dated B
May 19, 1987, 3.4 incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1987 |
| 4.4 | Articles of Amendment to Articles of Incorporation, dated C
May 2, 1988, 3.5 incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1988 |
| 4.5 | Articles of Amendment to Articles of Incorporation, dated G
May 28, 1993, 3.6 incorporated by reference to Amtech’s Form S-1 Registration Statement (File No. 33-77368) |
| 4.6 | Articles of Amendment to Articles of Incorporation, dated March 14, 1999, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1999 |
| 4.7 | Certificate of Designations, Preferences and Privileges of the Series A Convertible Preferred Stock, dated April 21, 2005, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2005 |
| 4.8 | Amended and Restated Bylaws, D
5 Opinion of legal counsel *
10.1 incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2008 |
| 4.9 | Amended and Restated 1995 Stock Option Plan H
10.2 1995 Stock Bonus Plan H
10.3 Non-Employee Directors Stock Option Plan I
10.4 Employment Agreement with Robert T. Hass, dated May F
19, 1992
10.5 Registration Rights Agreement with J.S. Whang, dated G
January 24, 1994
10.6 J.S. Whang Stock Option Agreement A
10.7 Employment Agreement with J.S. Whang, dated October G
1, 1994
10.8 Research Agreement with The Regentsas of the University E
of California dated March 1, 1994, together with
amendments thereto dated March 1, 1994, March 30,
1994, March 7, 1995, June 26, 1995, October 16, 1995,
November 29, 1995,December 15, 2008, by and December 4, 1995.
10.9 Amendment to Research Agreement with the Regents of *
the University of California dated July 8, 1996.
10.10 Contract of Sale (Real Property) dated June 21, 1996 *
between TempressAmtech Systems, Inc. and Orgelmakerij Gedr.
Rell B.V.
10.11 Computershare Trust Company, N.A., including the form of Certificate of Designation, the form of Rights Certificate and the Summary of Rights attached thereto as Exhibits A, B and C, respectively, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 15, 2008 |
| 4.10 | Form of Directors Stock Purchase Agreement *
|
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10.12 Form of Incentive Stock OptionSubscription Agreement for the 1983 *
IncentiveSeries A Convertible Preferred Stock, Option Plan
21 incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2005| 4.11* | Specimen Certificate of Preferred Stock |
| 4.12* | Form of Warrant Agreement and Certificate |
| 4.13* | Form of Debt Security |
| 4.14 | Form of Indenture |
| 4.15* | Form of Unit Agreement and Unit Certificate |
| 5.1 | Opinion of counsel regarding legality of securities |
| 12.1* | Statement of Computation of Ratio of Earnings to Fixed Charges |
| 23.1 | Consent of accountants *
22 Subsidiariescounsel (included in Exhibit 5.1 hereto) |
| 23.2 | Consent of Mayer Hoffman McCann P.C. |
| 24.1 | Power of attorney |
| 25.1* | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Registrant E
24 PowersTrustee under the Indenture |
* To be filed by amendment to this registration statement or by a report filed under the Securities Exchange Act of Attorney See Signature
Page
1934, as amended, and incorporated herein by reference. |
- ----------
* Filed herewith.
A Incorporated by reference to the Company's Form S-18 Registration Statement
No. 2-83934-LA
B Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1987
C Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1988
D Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1991
E Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1995
F Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1993
G Incorporated by reference to the Company's Form S-1 Registration Statement
No. 33-77368
H Incorporated by reference to Company's Form S-8 Registration Statement
relating to the Amended and Restated 1995 Stock Option Plan and the 1995
Stock Bonus Plan filed with the Securities and Exchange Commission on
August 8, 1996
I Incorporated by reference to Company's Form S-8 Registration Statement
relating to the Non-Employee Directors Stock Option Plan filed with the
Securities and Exchange Commission on August 8, 1996
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Item 17. 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;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 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 pursu ant 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;
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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,
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(ii)(iii) of this section do not apply if the registration statement is on Form S-3 or Form S-8,F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date s hall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify a ny statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(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.
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(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.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Amtech Systems,
Inc.the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this to Registration
Statement on Form S-3registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Citycity of Tempe, and State of Arizona, on August 13, 1996.
AMTECH SYSTEMS, INC.
an Arizona corporation
By /s/ Jong S. Whang
-----------------------------
Jong S. Whang
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JONG S. WHANG and ROBERT T. HASS, and each of them, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Form S-3
Registration Statement and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or each of them, may lawfully do or cause to be
done by virtue hereof.
February 8, 2011.
| Amtech Systems, Inc. |
|
| By: | /s/ Bradley C. Anderson | |
| Bradley C. Anderson |
| Vice President - Finance and Chief Financial Officer |
Pursuant to the requirements of the Securities Exchange Act of 1934,1933, this report on Form S-3 Registration Statementregistration statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the dated
indicated:
date indicated.
| Signature | Title | Date
- --------- ----- ----
/s/ |
| * | | Chairman and Chief Executive Officer (principal executive officer) | February 8, 2011 |
Jong S. Whang Chairman | |
| /s/ Bradley C. Anderson | | Vice President - Finance and Chief Financial Officer (principal financial officer) | February 8, 2011 |
| Bradley C. Anderson | |
| * | | Chief Accounting Officer (principal accounting officer) | February 8, 2011 |
| Robert T. Haas | |
| * | | Director | February 8, 2011 |
| Michael Garnreiter | |
| * | | Director | February 8, 2011 |
| Robert F. King | |
| * | | Director | February 8, 2011 |
| Egbert Jan Gert Goudena | |
| * | | Director | February 8, 2011 |
| Alfred W. Giese | |
| * | | Director | February 8, 2011 |
| Dr. Jeong Mo Hwang | |
* Bradley C. Anderson, the undersigned attorney-in-fact, by signing his name hereto, does hereby sign and execute this registration statement on behalf of the above indicated directors of the registrant (constituting all of the directors) pursuant to a Power of Attorney filed with this registration statement as Exhibit 24.1.
| Amtech Systems, Inc. |
|
|
| February 8, 2011 | By: | /s/ Bradley C. Anderson |
| | | Bradley C. Anderson |
| | | Vice President - Finance and Chief Financial Officer |
II-7
Exhibits.
| Exhibit | Description |
| 1.1* | Form of Underwriting Agreement |
| 4.1 | Articles of Incorporation, incorporated by reference to Amtech’s Form S-1 Registration Statement No. 2-83934-LA |
| 4.2 | Articles of Amendment to Articles of Incorporation, dated April 27, 1983, incorporated by reference to Amtech’s Form S-1 Registration Statement No. 2-83934-LA |
| 4.3 | Articles of Amendment to Articles of Incorporation, dated May 19, 1987, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1987 |
| 4.4 | Articles of Amendment to Articles of Incorporation, dated May 2, 1988, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1988 |
| 4.5 | Articles of Amendment to Articles of Incorporation, dated May 28, 1993, incorporated by reference to Amtech’s Form S-1 Registration Statement (File No. 33-77368) |
| 4.6 | Articles of Amendment to Articles of Incorporation, dated March 14, 1999, incorporated by reference to Amtech’s Annual Report on Form 10-K for the year ended September 30, 1999 |
| 4.7 | Certificate of Designations, Preferences and Privileges of the Board, August 13, 1996
- ------------------------------ President (Chief Executive Officer)
Jong S. Whang
/s/ Robert T. Hass Vice President-Finance August 13, 1996
- ------------------------------ (Chief Financial & Accounting
Robert T. Hass Officer); Director
/s/ Donald F. Johnston Director August 13, 1996
- ------------------------------
Donald F. Johnston
/s/ Alvin Katz Director August 13, 1996
- ------------------------------
Alvin Katz
/s/ Bruce R. Thaw Director August 13, 1996
- ------------------------------
Bruce R. Thaw
S-1
Series A Convertible Preferred Stock, dated April 21, 2005, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2005 |
| 4.8 | Amended and Restated Bylaws, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 8, 2008 |
| 4.9 | Amended and Restated Rights Agreement as of December 15, 2008, by and between Amtech Systems, Inc. and Computershare Trust Company, N.A., including the form of Certificate of Designation, the form of Rights Certificate and the Summary of Rights attached thereto as Exhibits A, B and C, respectively, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 15, 2008 |
| 4.10 | Form of Subscription Agreement for the Series A Convertible Preferred Stock, incorporated by reference to Amtech’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2005 |
| 4.11* | Specimen Certificate of Preferred Stock |
| 4.12* | Form of Warrant Agreement and Certificate |
| 4.13* | Form of Debt Security |
| 4.14 | Form of Indenture |
| 4.15* | Form of Unit Agreement and Unit Certificate |
| 5.1 | Opinion of counsel regarding legality of securities |
| 12.1* | Statement of Computation of Ratio of Earnings to Fixed Charges |
| 23.1 | Consent of counsel (included in Exhibit 5.1 hereto) |
| 23.2 | Consent of Mayer Hoffman McCann P.C. |
| 24.1 | Power of attorney |
| 25.1* | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Trustee under the Indenture |
| * To be filed by amendment to this registration statement or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
