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Filed with the Securities and Exchange Commission on November 13, 1998
Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN XTAL TECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
Delaware 94-3031310
- ---------------------------------- -----------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
4311 Solar Way
Fremont, CA 94538
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(Address of principal executive offices) (Zip code)
AMERICAN XTAL TECHNOLOGY, INC.
1993 STOCK OPTION PLAN, 1997 STOCK OPTION PLAN,
AND 1998 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Morris S. Young
President and Chief Executive Officer
American Xtal Technology, Inc.
4311 Solar Way
Fremont, CA 94538
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (510) 683-5900.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price aggregate offering Amount of
be registered(1) registered(2) per share(3) price(3) registration fee
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
1993 Stock Option Plan
Common Stock 159,675 $4.6594 $ 743,989.70 $ 206.83
Par Value $0.001 243,969 $9.78125 $ 2,386,321.78 $ 663.40
1997 Stock Option Plan
Common Stock 1,214,025 $5.1334 $ 6,232,075.94 $1,732.52
Par Value $0.001 1,584,413 $9.78125 $15,497,539.66 $4,308.32
1998 Employee Stock
Purchase Plan
Common Stock 250,000 $8.314 $ 2,078,500.00 $ 577.82
Par Value $0.001
TOTALS 3,452,083 $26,938,427.08 $7,488.89
</TABLE>
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1 The securities to be registered include options [and rights] to acquire
Common Stock.
2 Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
3 Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the 1993 Stock Option Plan and the 1997 Stock Option Plan,
the price is computed on the basis of the weighted average exercise price
for grants under the respective plans. As to the remaining shares under the
1993 Stock Option Plan and the 1997 Stock Option Plan, the $9.78125
price is based upon the average of the high and low prices of the Common
Stock on November 11, 1998, as reported on the Nasdaq National Market. The
1998 Employee Stock Purchase Plan establishes a purchase price equal to 85%
of the fair market value of the Company's Common Stock, and, therefore, the
price for shares under this plan is based upon 85% of the average of the
high and low prices of the Common Stock on November 11, 1998, as reported
on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
American Xtal Technology, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's prospectus filed on May 21, 1998, pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities Act")
containing audited consolidated financial statements for the Company's fiscal
year ended December 31, 1997. The prospectus is included in the Company's
Registration Statement on Form S-1 (No. 333-48085, effective May 11, 1998).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the registrant document referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on April 24, 1998, under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or
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rescission. The statute has no effect on a director's duty of loyalty or
liability for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, illegal payment of dividends or stock
redemptions or repurchases, or for any transaction from which the director
derives an improper personal benefit. As permitted by the statute, the Company
has adopted provisions in its Certificate of Incorporation which eliminate to
the fullest extent permissible under Delaware law the personal liability of its
directors to the Company and its stockholders for monetary damages for breach or
alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company has entered into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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:
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(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; and
(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 (1)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent Exchange Act Documents by
reference
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
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 Securities and Exchange
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,
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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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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Fremont, State of California, on November 11,
1998.
American Xtal Technology, Inc.
By: /s/ Guy Atwood
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Guy Atwood, Vice President and
Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of American Xtal Technology, Inc., whose
signatures appear below, hereby constitute and appoint Morris S. Young and Guy
Atwood, and each of them, their true and lawful attorneys and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, or their or his substitutes,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons, in the
capacities indicated, on November 11, 1998.
<TABLE>
<CAPTION>
Signature Title
- ------------------------------ --------------------------------------------
<S> <C>
/s/ Morris S. Young Chairman of the Board and Chief Executive
- ------------------------------ Officer (Principle Executive Officer)
Morris S. Young
/s/ Guy Atwood Vice President and Chief Financial Officer
- ------------------------------ (Principal Financial and Accounting Officer)
Guy Atwood
/s/ Jesse Chen Director
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Jesse Chen
/s/ B.J. Moore Director
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B.J. Moore
Director
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Donald L. Tatzin
Director
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Theodore Young
</TABLE>
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EXHIBIT INDEX
4.1 Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on May 11,
1998 (No. 333-48085)
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on May 11, 1998 (No. 333-48085)
4.3 Agreement and Plan of Merger dated May 15, 1998 between American Xtal
Technology, a California corporation, and American Xtal Technolgy, a
Delaware corporation, is incorporated by reference to Exhibit 2.1 to
the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on May 11, 1998 (No. 333-48085)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: (650) 328-6561 Fax: (650) 327-3699 www.gcwf.com
November 12, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for American Xtal Technology, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 3,452,083 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the Company's 1993 Stock Option Plan, 1997 Stock Option Plan, and 1998 Employee
Stock Purchase Plan (the "Plans").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 3,452,083 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plans are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Plans, will be validly issued, fully paid
and nonassessable. We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement referred to above and the use of our name wherever
it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
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GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of American Xtal Technology, Inc. of our report dated
February 6, 1998, appearing in the American Xtal Technology, Inc.'s Prospectus
dated May 20, 1998.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
November 12, 1998
