Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AXCELIS TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-1818596
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
55 CHERRY HILL DRIVE
BEVERLY, MASSACHUSETTS 01915
(Address of principal executive offices)
AXCELIS TECHNOLOGIES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
BRIAN R. BACHMAN
VICE CHAIRMAN AND CHIEF EXECUTIVE OFFICER
AXCELIS TECHNOLOGIES, INC.
55 CHERRY HILL DRIVE
BEVERLY, MASSACHUSETTS 01915
(Name and address of agent for service)
(978) 232-4001
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
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Common Stock, par
value $0.001 per
share (2) 7,500,000 $9.84375 (3) $73,828,125 $19,491
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(1) This Registration Statement also registers additional securities to
be offered or issued upon adjustments or changes made to registered securities
by reason of any stock splits, stock dividends or similar transactions as
permitted by Rule 416(a) and Rule 416(b) under the Securities Act of 1933, as
amended (the "Securities Act"). In addition, pursuant to Rule 416(c) under the
Securities Act, this Registration Statement covers an indeterminate number of
interests to be offered or sold pursuant to the Axcelis Technologies, Inc.
Employee Stock Purchase Plan.
(2) Includes preferred stock purchase rights. Prior to the occurence
of certain events, the preferred stock purchase rights will not be evidenced
separately from the Common Stock.
(3) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(h) under the Securities Act. The fee is calculated on
the basis of the average of the high and low prices for the Registrant's Common
Stock reported on the Nasdaq National Market on November 8, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated by reference into
this Registration Statement: (i) the Registrant's prospectus filed
pursuant to Rule 424(b) under the Act on July 11, 2000, which contains
audited financial statements for the fiscal year ended December 31, 1999;
and (ii) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
on July 3, 2000.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement which indicates
that all securities offered by this Registration Statement have been sold
or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement.
Each document incorporated by reference into this Registration Statement
shall be deemed to be a part of this Registration Statement from the date
of filing of such document with the Commission until the information
contained therein is superseded or updated by any subsequently filed
document which is incorporated by reference into this Registration
Statement or by any document which constitutes part of the prospectus
relating to the Axcelis Technologies, Inc. Employee Stock Purchase Plan
meeting the requirements of Section 10(a) of the Securities Act.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration Statement
is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a Delaware corporation, in its certificate of incorporation, to
limit or eliminate, subject to certain statutory limitations, the
liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty, except for liability (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit. Article 10 of the
Registrant's Restated Certificate of Incorporation provides that no
director of the Registrant shall be personally liable to the Registrant or
its stockholders in accordance with the foregoing provisions of Section
102(b)(7).
Under Section 145 of the DGCL, a Delaware corporation has the power to
indemnify directors and officers under certain prescribed circumstances
and, subject to certain limitations, against certain costs and expenses,
including attorneys' fees, actually and reasonably incurred in connection
with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which any of them is a party by reason
of being a director or officer of the Registrant if it is determined that
the director or the officer acted in accordance with the applicable
standard of conduct set forth in such statutory provision. Article 10 of
the Registrant's Restated Certificate of Incorporation provides that any
person who was or is made a party or is threatened to be made a
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party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that such person is or was a director or an officer of the Registrant
or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
an employee benefit plan, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or
in any capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Registrant to the fullest
extent authorized by the DGCL.
The Registrant has purchased directors' and officers' liability
insurance covering certain liabilities which may be incurred by the
officers and directors of the Registrant in connection with the
performance of their duties. In addition, the Registrant has entered into
indemnity agreements with its directors and executive officers that
obligate the Registrant to indemnify such directors and executive officers
to the fullest extent permitted by the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1/A filed on
June 15, 2000 (File No. 333-36330)).
4.2 Bylaws of the Registrant, as amended (incorporated by
reference to Exhibit 3.2 to Registrant's Registration
Statement on Form S-1/A filed on June 15, 2000 (File No.
333-36330)).
5.1 Opinion of Kirkpatrick & Lockhart LLP regarding the legality
of the shares being registered hereunder (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Kirkpatrick & Lockhart LLP (included in the
Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (filed herewith).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers of sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act 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.
* * *
(h) Insofar as indemnification for liabilities arising under
the Securities Act 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 Commission such indemnification is against public policy
as expressed in the Securities 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
Securities Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beverly, Commonwealth of Massachusetts, on this 8th
day of November, 2000.
AXCELIS TECHNOLOGIES, INC.
By: /s/ Kevin M. Bisson
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Kevin M. Bisson
Vice President and Controller
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date(s) indicated:
SIGNATURE CAPACITY DATE
--------- -------- ----
*
- -------------------------- Vice Chairman and Chief November 8, 2000
Brian R. Bachman Executive Officer
(Principal Executive Officer)
*
- -------------------------- President, Chief Operating November 8, 2000
Mary G. Puma Officer and Director
*
- -------------------------- Executive Vice President and November 8, 2000
Cornelius F. Moses, III Chief Financial Officer
(Principal Financial and
Accounting Officer)
*
- -------------------------- Chairman of the Board November 8, 2000
Stephen R. Hardis
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SIGNATURE CAPACITY DATE
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*
- -------------------------- Director November 8, 2000
Alexander M. Cutler
- -------------------------- Director
Ned C. Lautenbach
*
- -------------------------- Director November 8, 2000
Philip S. Paul
*
- -------------------------- Director November 8, 2000
Naoki Takahashi
*
- -------------------------- Director November 8, 2000
Gary L. Tooker
*By: /s/ Kevin M. Bisson, Attorney-in-Fact
-------------------------------------
Kevin M. Bisson
Vice President and Controller
Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator of the Axcelis Technologies, Inc. Employee Stock Purchase Plan has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Beverly, Commonwealth of
Massachusetts, on November 8, 2000.
AXCELIS TECHNOLOGIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Kevin M. Bisson
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Kevin M. Bisson
Vice President and Controller
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1/A filed on
June 15, 2000 (File No. 333-36330)).
4.2 Bylaws of the Registrant, as amended (incorporated by
reference to Exhibit 3.2 to Registrant's Registration
Statement on Form S-1/A filed on June 15, 2000 (File No.
333-36330)).
5.1 Opinion of Kirkpatrick & Lockhart LLP regarding the legality
of the shares being registered hereunder (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Kirkpatrick & Lockhart LLP (included in the
Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (filed herewith).
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Exhibit 5.1
November 8, 2000
Axcelis Technologies, Inc.
55 Cherry Hill Drive
Beverly, Massachusetts 01915
Ladies and Gentlemen:
We are counsel to Axcelis Technologies, Inc. (the "Company") and we
have acted as counsel for the Company in connection with the preparation of the
Registration Statement on Form S-8 to be filed by the Company with the
Securities and Exchange Commission for the registration under the Securities Act
of 1933, as amended, of 7,500,000 shares of the Company's common stock, par
value $0.001 per share (the "Shares"), which are to be issued from time to time
to certain employees of the Company and its affiliates in connection with the
Axcelis Technologies, Inc. Employee Stock Purchase Plan (the "Plan").
We have examined the originals, certified copies or copies otherwise
identified to our satisfaction as being true copies of the Plan and such other
documents as we have deemed necessary or appropriate for purposes of this
opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly and validly authorized and reserved for issuance, and that the Shares, when
issued under the terms of the Plan, will be legally and validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Kirkpatrick & Lockhart LLP
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Axcelis Technologies, Inc. Employee Stock Purchase Plan,
of our report dated May 3, 2000, except for Note 19, as to which the date is
June 14, 2000, with respect to the combined financial statements of Axcelis
Technologies, Inc. included in its Prospectus filed on July 11, 2000, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusett
October 31, 2000
POWER OF ATTORNEY
We, the undersigned directors and officers of Axcelis Technologies, Inc.,
do hereby constitute and appoint Brian R. Bachman, Mary G. Puma and Kevin M.
Bisson, or any of them, our true and lawful attorneys and agents, to do any and
all acts and things in our name and on our behalf in our capacities as directors
and officers and to execute any and all instruments for us and in our names in
the capacities indicated below, which said attorneys and agents, or any of them,
may deem necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the registration
of securities to be issued under the Axcelis Technologies, Inc. Employee Stock
Purchase Plan and under the Axcelis Technologies, Inc. 2000 Stock Plan,
including specifically, but without limitation, power and authority to sign for
us or any of us in our names in the capacities indicated below, any and all
registration statements and amendments (including post-effective amendments)
thereto, and we do hereby ratify and confirm all that said attorneys and agents,
or any of them, shall do or cause to be done by virtue hereof.
This power of attorney shall not apply to any registration statement or
amendment filed after July 31, 2001.
IN WITNESS WHEREOF, this Power of Attorney has been signed as of the 15th
day of October, 2000.
SIGNATURE CAPACITY DATE
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/s/ Brian R. Bachman
- -------------------------- Vice Chairman and Chief October 15, 2000
Brian R. Bachman Executive Officer
(Principal Executive Officer)
/s/ Mary G. Puma
- -------------------------- President, Chief Operating October 15, 2000
Mary G. Puma Officer and Director
/s/ Cornelius F. Moses, III
- --------------------------- Executive Vice President and October 15, 2000
Cornelius F. Moses, III Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Stephen R. Hardis
- -------------------------- Chairman of the Board October 15, 2000
Stephen R. Hardis
/s/ Alexander M. Cutler
- -------------------------- Director October 15, 2000
Alexander M. Cutler
- -------------------------- Director
Ned C. Lautenbach
/s/ Philip S. Paul
- -------------------------- Director October 15, 2000
Philip S. Paul
/s/ Naoki Takahashi
- -------------------------- Director October 15, 2000
Naoki Takahashi
/s/ Gary L. Tooker
- -------------------------- Director October 15, 2000
Gary L. Tooker