As filed with the Securities and Exchange Commission on July 6, 2022
Registration No. 333-
Delaware | | | 41-1941551 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | Emerging growth company | | | ☐ |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on February 4, 2022; |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended 2022 from our definitive proxy statement on Schedule 14A, filed with the SEC on March 17, 2022; |
• | our Quarterly Report on Form 10-Q for the fiscal quarters ended April 2, 2022, filed with the SEC on April 26, 2022; |
• | our Current Reports on Form 8-K, filed with the SEC on January 19, 2022, January 31, 2022, April 4, 2022 (with respect to Item 8.01 only), April 6, 2022, April 8, 2022, April 15, 2022, April 27, 2022, June 16, 2022, June 17, 2022 and July 6, 2022; and |
• | the description of our common stock contained in Exhibit 4.1 to our Annual Report, filed with the SEC on February 7, 2020, and any amendment or report filed for the purpose of updating such description. |
• | the information set forth under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” of CMC’s Annual Report on Form 10-K for the fiscal year ended September 30, 2021, filed with the SEC on November 12, 2021; and |
• | the information set forth under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” of CMC’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed with the SEC on May 5, 2022. |
• | Weakening of global and/or regional economic conditions, generally or specifically in the semiconductor industry, which could decrease the demand for Entegris’ and CMC’s products and solutions; |
• | Entegris’ and CMC’s ability to meet rapid demand shifts; |
• | Entegris’ and CMC’s ability to continue technological innovation and introduce new products to meet customers’ rapidly changing requirements; |
• | Entegris’ and CMC’s ability to protect and enforce intellectual property rights; |
• | Operational, political and legal risks of Entegris’ and CMC’s international operations; |
• | The increasing complexity of certain manufacturing processes; |
• | Raw material shortages, supply and labor constraints and price increases; |
• | Changes in government regulations of the countries in which Entegris and CMC operate; |
• | The imposition of tariffs, export controls and other trade laws and restrictions and changes in foreign and national security policy, especially as they relate to China and as they may arise with respect to recent developments regarding Russia and Ukraine; |
• | The fluctuation of currency exchange rates; |
• | Fluctuations in the market price of our stock; |
• | The level of, and obligations associated with, our indebtedness, including the notes, and the risks related to holding the notes; |
• | The impact of public health crises, such as pandemics (including coronavirus (COVID-19)) and epidemics and any related company or government policies and actions to protect the health and safety of individuals or government policies or actions to maintain the functioning of national or global economies and markets; and |
• | The other risk factors and additional information described in this prospectus under the caption “Risk Factors,” as well as our filings with the SEC, including under the heading “Risk Factors” in Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 4, 2022, our Quarterly Report on Form 10-Q for the fiscal quarter ended April 2, 2022, filed on April 26, 2022, CMC’s Annual Report on Form 10-K for the fiscal year ended September 30, 2021, filed on November 12, 2021, CMC’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed on May 5, 2022 and in our other subsequent periodic filings. |
• | combining the companies’ operations and corporate functions; |
• | combining the businesses of Entegris and CMC and meeting our capital requirements following the Merger in a manner that permits us to achieve any cost savings or revenue synergies anticipated to result from the Merger, the failure of which would result in the anticipated benefits of the Merger not being realized in the time frame currently anticipated or at all; |
• | integrating personnel from the two companies; |
• | integrating the companies’ technologies; |
• | integrating and unifying the offerings and services available to customers; |
• | identifying and eliminating redundant and underperforming functions and assets; |
• | harmonizing the companies’ operating practices, employee development and compensation programs, internal controls and other policies, procedures and processes; |
• | maintaining existing agreements with customers, distributors, providers and vendors and avoiding delays in entering into new agreements with prospective customers, distributors, providers and vendors; |
• | addressing possible differences in business backgrounds, corporate cultures and management philosophies; |
• | consolidating the companies’ administrative and information technology infrastructure; |
• | coordinating distribution and marketing efforts; |
• | managing the movement of certain positions to different locations; and |
• | coordinating geographically dispersed organizations. |
• | increasing our vulnerability to changing economic, regulatory and industry conditions; |
• | limiting our ability to compete and our flexibility in planning for, or reacting to, changes in our business and the industry; |
• | limiting our ability to pay dividends to our stockholders; |
• | limiting our ability to borrow additional funds; and |
• | increasing our interest expense and requiring us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing funds available for working capital, capital expenditures, acquisitions, share repurchases, dividends and other purposes. |
• | the number of directors that constitutes the whole board of directors will be fixed exclusively by one or more resolutions adopted by the board of directors, and may not be less than three; |
• | vacancies on our board of directors, including those resulting from an increase in the number of directors, will be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the board of directors, and not by the stockholders; |
• | a director may be removed, with or without cause, by the holders of a majority of the then-outstanding shares of capital stock entitled to vote, except to the extent a different vote is required by law; |
• | a stockholder’s notice of the stockholder’s intent to bring business before an annual meeting or to nominate a person for election to the board of directors must be received by us within strict guidelines, which may make it more difficult for stockholders to nominate candidates for director or bring items before stockholder meetings; |
• | our certificate of incorporation provides that stockholders may not take any action by written consent in lieu of a meeting; |
• | our certificate of incorporation provides that special meetings of stockholders may be called by only our Chairman of the Board of Directors, by our Chief Executive Officer (or if there is no Chief Executive Officer, our President) or by our Board of Directors pursuant to a resolution adopted by the affirmative vote of a majority of the total number of directors then in office, and the business of any special meeting is limited to matters relating to the purposes stated in the notice of meeting; |
• | our certificate of incorporation provides that our by-laws may be altered, amended or repealed by our stockholders only by the affirmative vote of the holders of at least 75% of the then-outstanding shares of capital stock entitled to vote; |
• | the affirmative vote of the holders of at least 75% of the then-outstanding shares of capital stock entitled to vote is required to amend or repeal the three preceding provisions of our certificate of incorporation relating to stockholder action by written consent, the call of special meetings and changes to our by-laws, or to adopt any provision inconsistent with the purpose or intent of those provisions; |
• | the affirmative vote of the holders of at least 75% of the then-outstanding shares of capital stock entitled to vote is required for our stockholders to alter, amend or repeal any provision of our by-laws or to adopt new by-laws; and |
• | our certificate of incorporation and by-laws do not provide for cumulative voting in the election of directors. |
Item 14. | Other Expenses of Issuance and Distribution. |
Securities and Exchange Commission Registration Fee | | | $3,115.37 |
Accounting Fees and Expenses | | | $30,000 |
Legal Fees and Expenses | | | $50,000 |
Printing Fees | | | $10,000 |
Transfer Agent’s Fees and Expenses | | | $20,000 |
Miscellaneous | | | $20,000 |
Total | | | $133,115.37 |
Item 15. | Indemnification of Directors and Officers. |
Item 16. | List of Exhibits. |
Exhibit No. | | | Description of Exhibits |
| | Agreement and Plan of Merger, dated as of December 14, 2021, by and among Entegris, Inc., CMC Materials, Inc. and Yosemite Merger Sub, Inc. (incorporated by reference to Exhibit 2.1 to the registrant’s Current Report on Form 8-K filed on December 16, 2021). | |
| | Amended and Restated Certificate of Incorporation of Entegris, Inc., as amended (incorporated by reference to Exhibit 3.1 to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011). | |
| | Amended and Restated By-Laws (incorporated by reference to Exhibit 3 to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008). | |
| | Form of certificate representing shares of Common Stock, $.01 par value per share (incorporated by reference to Exhibit 4.1 to Form S-4 Registration Statement of the registrant and Eagle DE, Inc. (No. 333-124719)). | |
| | Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. | |
| | CMC Materials, Inc. 2021 Omnibus Incentive Plan.* | |
| | Cabot Microelectronics Corporation 2012 Omnibus Incentive Plan.* | |
| | Consent of KPMG, Independent Registered Public Accounting Firm. | |
| | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. | |
| | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | |
| | Powers of Attorney (included on signature pages hereto). | |
| | Filing Fee Table. |
* | A “management contract or compensatory plan.” |
Item 17. | Undertakings. |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(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) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement; and |
(ii) | 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 this 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 shall 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 this registration statement or made in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is part of this registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in this registration statement or prospectus that was part of this 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. |
| | ENTEGRIS, INC. | ||||
| | | | |||
| | By: | | | /s/ Bertrand Loy | |
| | Name: | | | Bertrand Loy | |
| | Title: | | | President, Chief Executive, Officer and Director (Principal executive officer) |
Signature | | | Title |
/s/ Bertrand Loy | | | |
Bertrand Loy | | | President, Chief Executive, Officer and Director (Principal executive officer) |
/s/ Gregory B. Graves | | | |
Gregory B. Graves | | | Executive Vice President, Chief Financial Officer and Treasurer (Principal financial officer) |
/s/ Michael D. Sauer | | | |
Michael D. Sauer | | | Vice President, Controller and Chief Accounting Officer (Principal accounting officer) |
/s/ Paul L.H. Olson | | | |
Paul L.H. Olson | | | Director, Chairman of the Board |
/s/ Michael A. Bradley | | | |
Michael A. Bradley | | | Director |
/s/ Rodney Clark | | | |
Rodney Clark | | | Director |
/s/ James F. Gentilcore | | | |
James F. Gentilcore | | | Director |
/s/ Yvette Kanouff | | | |
Yvette Kanouff | | | Director |
/s/ James P. Lederer | | | |
James P. Lederer | | | Director |
/s/ Azita Saleki-Gerhardt | | ||
Azita Saleki-Gerhardt | | | Director |
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