AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 2000
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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CABOT MICROELECTRONICS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-4324765
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
870 NORTH COMMONS DRIVE
AURORA, ILLINOIS 60504
(Address of registrant's principal executive offices)
CABOT MICROELECTRONICS CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
MATTHEW NEVILLE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CABOT MICROELECTRONICS CORPORATION
870 NORTH COMMONS DRIVE
AURORA, ILLINOIS 60504
(630) 375-6631
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT TO MAXIMUM MAXIMUM
BE OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES REGISTERED PRICE PER OFFERING REGISTRATION
TO BE REGISTERED (1) SHARE (2) PRICE (2) FEE
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Common Stock, par value 475,000 $25.25 $11,993,750.00 $3,167.00
$.001 per share (3) shares
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(1) Plus such additional number of shares as may be required in the event
of a stock dividend, stock split, recapitalization or other similar
event in accordance with Rule 416 of the Securities Act of 1933, as
amended (the "Securities Act").
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act.
(3) Includes the Rights associated with the Common Stock.
<PAGE>
PART I
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to 475,000 shares of
common stock of Cabot Microelectronics Corporation, par value $.001 per
share (the "Common Stock"), which may be issued under our Employee Stock
Purchase Plan (the "ESPP").
The documents containing information specified by Part I of this
Registration Statement have been or will be sent or given to participants
in the ESPP as specified in Rule 428(b)(1) promulgated by the Securities
and Exchange Commission (the "SEC") under the Securities Act. Such
document(s) are not required to be filed with the SEC but constitute (along
with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
References to the "Company" shall mean Cabot Microelectronics
Corporation, a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the Nasdaq Stock Market's National Market, 33
Whitehall Street, New York, NY 10004.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents and any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the termination of the offering:
(a) Our prospectus filed with the SEC on April 4, 2000 pursuant to
Rule 424(b) of the Securities Act in connection with the Form
S-1, which includes our audited financial statements for the
fiscal year ended September 30, 1999 and describes the terms of
the Common Stock.
(b) Our Registration Statement of Form 8-A filed with the SEC on
April 3, 2000, which describes the terms of the Common Stock.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Fried, Frank, Harris, Shriver & Jacobson (a partnership including
professional corporations), New York, New York, will pass upon the validity
of the issuance of the shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits and proceedings, whether civil, criminal,
administrative, or investigative (other than an action by or in the right
of the corporation -- a "derivative action"), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of
such action, and the statute requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation. The statute provides that it is not exclusive of
other indemnification that may be granted by a corporation's certificate of
incorporation, bylaws, disinterested director vote, stockholder vote,
agreement, or otherwise.
Our bylaws and our certificate of incorporation require us to
indemnify to the fullest extent authorized by the DGCL any person made or
threatened to be made a party to an action, suit or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact
that he or she is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or
other enterprise.
As permitted by section 102(b)(7) of the DGCL, our certificate of
incorporation eliminates the liability of a director to the corporation or
its stockholders for monetary damages for such breach of fiduciary duty as
a director, except for liabilities arising (a) from any breach of the
director's duty of loyalty to the corporation or its stockholders; (b) from
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (c) under section 174 of the DGCL; or (d)
from any transaction from which the director derived an improper personal
benefit.
We intend to obtain primary and excess insurance policies insuring our
directors and officers and those of our subsidiaries against certain
liabilities they may incur in their capacity as directors and officers.
Under these policies, the insurer, on our behalf, may also pay amounts for
which we have granted indemnification to the directors or officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 to our Registration Statement No. 333-95093 on Form S-1, which
provides for indemnification by our underwriters, their directors and
officers who sign the registration statement and persons who control us,
under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Form of Certificate of Incorporation of the Company
previously filed as Exhibit 3.1 to the Company's
Registration Statement No. 333-95093 on Form S-1,
and incorporated herein by reference
4.2 Form of By-Laws of the Company previously filed as
Exhibit 3.2 to the Company's Registration Statement
No. 333-95093 on Form S-1, and incorporated herein
by reference
4.3 Form of Cabot Microelectronics Corporation Employee
Stock Purchase Plan, previously filed as Exhibit
10.15 to the Company's Registration Statement No.
333-95093 on Form S-1, and incorporated herein by
reference
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2* Consent of PricewaterhouseCoopers LLP (independent
public accountants)
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* Filed herewith.
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (i) and (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 with or
furnished to the SEC by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(b) 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.
(c) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 6 of
this Registration Statement, or otherwise, the Company has been advised
that in the opinion of the SEC 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company 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.
<PAGE>
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 Aurora, State of Illinois, on
April 7, 2000.
CABOT MICROELECTRONICS CORPORATION
/s/ Matthew Neville
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By: Matthew Neville
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Cabot Microelectronics
Corporation, a Delaware corporation, do hereby constitute and appoint
Matthew Neville and William C. McCarthy, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and
all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act and any rules or regulations or requirements of the
Commission in connection with this Registration Statement. Without limiting
the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any
and all instruments or documents filed as part of or in conjunction with
this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms that all said attorneys and
agents, or any one of them, shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in several counterparts.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Kennett F. Burnes Chairman of the Board April 7, 2000
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Kennett F. Burnes
/s/ Matthew Neville President and Chief Executive April 7, 2000
- ---------------------- Officer, Director (Principal
Matthew Neville Executive Officer)
/s/ William C. McCarthy Vice President, Chief Financial April 7, 2000
- ---------------------- Officer and Treasurer (Principal
William C. McCarthy Financial and Accounting Officer)
/s/ Samuel W. Bodman Director April 7, 2000
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Samuel W. Bodman
/s/ William P. Noglows Director April 7, 2000
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William P. Noglows
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Form of Certificate of Incorporation of the Company
previously filed as Exhibit 3.1 to the Company's
Registration Statement No. 333-95093 on Form S-1,
and incorporated herein by reference
4.2 Form of By-Laws of the Company previously filed as
Exhibit 3.2 to the Company's Registration Statement
No. 333-95093 on Form S-1, and incorporated herein
by reference
4.3 Form of Cabot Microelectronics Corporation Employee
Stock Purchase Plan, previously filed as Exhibit
10.15 to the Company's Registration Statement No.
333-95093 on Form S-1, and incorporated herein by
reference
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2* Consent of PricewaterhouseCoopers LLP (independent
public accountants)
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* Filed herewith.
EXHIBIT 5.1
[Letterhead of Fried, Frank, Harris, Shriver & Jacobson
(a partnership including professional corporations)]
April 7, 2000
Cabot Microelectronics Corporation
870 North Commons Drive
Aurora, Illinois 60504
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
Cabot Microelectronics Corporation (the "Company") is filing with
the Securities and Exchange Commission a Registration Statement on Form S-8
(the "Registration Statement") with respect to an aggregate of 475,000
shares (the "Shares") of common stock, par value $.001 per share, of the
Company, issuable pursuant to the Cabot Microelectronics Corporation
Employee Stock Purchase Plan (the "Plan").
All assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company, as we have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, we have assumed the
legal capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of original and certified documents and
the conformity to original or certified copies of all copies submitted to
us as conformed or reproduction copies. As to various questions of fact
relevant to the opinions expressed herein, we have relied upon, and assume
the accuracy of, representations and warranties contained in documents and
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the documents with their covenants and agreements
contained therein. We also have assumed that any future changes to the
terms and conditions of the Plan will be duly authorized by the Company and
will comply with all applicable laws.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that
the Shares, when issued and paid for (with the consideration received by
the Company being not less than the par value thereof) in accordance with
the provisions of the Plan and the applicable option agreements thereunder,
will be duly authorized, validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, as currently in effect, the
provisions of the Delaware Constitution applicable to corporations and the
reported judicial decisions interpreting those laws.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving such consent, we do not hereby admit
that we are in the category of such persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 5, 1999 relating to the
financial statements of Cabot Microelectronics Corporation, a division
of Cabot Corporation, for the year ended September 30, 1999 which appears
in the Registration Statement on Form S-1 of Cabot Microelectronics
Corporation dated April 4, 2000.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
April 7, 2000
