As filed with the Securities and Exchange Commission on August 14, 1995
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CERPROBE CORPORATION
(Exact name of registrant as specified in its Charter)
DELAWARE 86-0312814
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
------------
600 South Rockford Drive
Tempe, Arizona 85281
(602) 967-7885
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
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C. Zane Close
CerProbe Corporation
600 South Rockford Drive
Tempe, Arizona 85281
(602) 967-7885
(Name, address including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Richard B. Stagg
O'Connor, Cavanagh, Anderson
Westover, Killingsworth & Beshears, P.A.
One East Camelback, Suite 1100
Phoenix, Arizona 85012
Approximate Date of Commencement of Proposed Sale to the Public:
At such time or times after the effective date of this Registration Statement
as the Selling Stockholders shall determine.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares to be Aggregate Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price(1) Fee
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock 228,307 Shares $ 9.75 $ 2,225,993.25 $ 767.58
================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
</TABLE>
Prospectus
CERPROBE CORPORATION
Common Stock
-------------------
This Prospectus, as appropriately amended or supplemented, may be used
from time to time by holders of Common Stock, $.05 par value (the "Common Stock"
or the "Shares"), of CerProbe Corporation (the "Company") who wish to offer and
sell such Shares in transactions in which they and any broker-dealer through
whom such Shares are sold may be deemed to be underwriters within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"), as more fully
described herein. Any commissions paid or concessions allowed to any
broker-dealer, and, if any broker-dealer purchases such Shares as principal, any
profits received on the resale of such Shares, may be deemed to be underwriting
discounts and commissions under the Securities Act. Printing, certain legal,
filing and other similar expenses of this offering will be paid by the Company.
Selling Stockholders will bear all other expenses of this offering, including
brokerage fees, any underwriting discounts or commissions.
The Company's Common Stock is traded on the Nasdaq National Market
under the symbol "CRPB." The last reported sale price of the Company's Common
Stock on the Nasdaq National Market on August 10, 1995 was $9.875.
For information containing certain factors relating to this offering,
see "Risk Factors."
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August 14, 1995.
No dealer, salesperson nor any other person has been authorized to give
any information or to make any representations, other than those contained or
incorporated by reference in this Prospectus, in connection with this offer and,
if given or made, such information or representations must not be relied upon as
having been authorized by the Company or any of the Selling Stockholders. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the Shares by anyone in any jurisdiction in which such offer or solicitation
is not authorized, or in which the person making the offer or solicitation is
not qualified to do so, or to any person to whom it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder 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 is correct as of any date subsequent to the date
hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
and information statements and other information may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: New York Regional Office, Seven World Trade Center, New York,
New York 10048, and Chicago Regional Office, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 upon payment of the prescribed fees. The Common Stock of the Company is
quoted on the Nasdaq National Market. Reports, proxy and information statements
and other information concerning the Company may be inspected at the National
Association of Securities Dealers, Inc. at 1735 K Street, N.W. Washington, D.C.
20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference: (1) the Company's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1994, as amended; (2) the Company's
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1995 and
June 30, 1995, respectively, the Company's Current Report on Form 8-K dated
March 31, 1995, as amended by the Current Report on Form 8-K/A dated April 20,
1995 and by the Current Report on Form 8-K/A2 dated June 1, 1995, the Company's
Current Report on Form 8-K dated April 21, 1995, as amended by the Current
Report on Form 8-K/A dated April 27, 1995; and (3) the Company's Amendment No. 1
to Form S-18 Registration Statement (No. 2 - 85679) filed September 26, 1983
registering the Company's Common Stock under 12(g) of the Exchange Act as it
applies to the description of the Company's Common Stock. All reports and other
documents filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior
to the termination of the offering of the Common Stock registered hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such reports and documents. Any statement
contained in a report or document incorporated or deemed to be incorporated by
reference herein prior to the date hereof shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed report or document, which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon request of such person, a copy of any or all of
the foregoing documents incorporated by reference into this Prospectus (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests for such copies should
be delivered to the Investor Relations Department, 600 South Rockford Drive,
Tempe, Arizona 85281.
The Company
The Company develops, manufactures and markets high performance probing
and interface products for use in the testing of integrated and hybrid
electronic circuits. Probing technology permits manufacturers and other users of
electronic circuitry to test circuits before they are integrated with other
hardware by probing "chips" to determine whether individual circuits are
performing to design specifications. The Company has an extensive North American
customer base that includes high-volume manufacturers and semiconductor users in
the fields of communications, computer, automotive and military/aerospace,
including Motorola, National Semiconductor, IBM and AT&T. Through a wholly owned
subsidiary, CerProbe Europe, Limited, the Company also has established a
manufacturing, repair and sales facility in East Kilbride, Scotland in order to
expand its sales efforts throughout Europe.
The Company has experienced significant growth over recent years, with
revenues increasing more than 25% in each of the past three years as the Company
benefitted from the substantial growth of the semiconductor industry and
increased sales efforts in the United States, Europe and Asia. The Company's
revenues for the fiscal year ended December 31, 1994 were $14,251,485. On April
3, 1995, the Company consummated the acquisition of Fresh Test Technology
Corporation ("Fresh Test"), an enterprise specializing in the design,
manufacture and sale of test and interface products. Total revenues of Fresh
Test for its fiscal year ended March 31, 1995 were approximately $4,945,298.
All of the Company's probe cards utilize either CerCardTM epoxy ring or
ceramic blade technology. The Company estimates that products utilizing these
technologies account for approximately 90% of the world market for integrated
and hybrid circuit probe card products.
The Company's integrated circuit and hybrid circuit probe cards
generally range in price from $500 to $10,000, but may cost more depending upon
the complexity and performance specifications of the probe cards. Most probe
cards are delivered within one to three weeks of the receipt of a customer's
order and appropriate specifications. The Company also manufacturers interface
assemblies, including motherboards, which are used to carry signals from
automatic test equipment to the probe card. Prices for interface assemblies
range in price from $1,000 to $45,000.
The Company's strategic marketing plan is designed to enable it to
enhance its position as a major domestic and international supplier of
custom-designed and manufactured probe card and interface products to leading
users in various high-growth industries. The pursuit of this strategy includes
(i) increasing its share of the probe card market through continued expansion of
CerCardTM product sales both domestically and internationally, and (ii)
developing and improving the Company's products and manufacturing techniques,
improving the speed, efficiency, and performance of its design and manufacturing
services, and enhancing the quality, cost-effectiveness, and value of its
services.
The Company was incorporated in California in 1976 and reincorporated
in Delaware in May 1987. The Company maintains its principal executive offices
at 600 South Rockford Drive, Tempe, Arizona 85281, and its telephone number is
(602) 967-7885. The Company has five manufacturing and sales facilities in the
United States, a sales facility in each of Oregon and Texas, and a manufacturing
and sales facility in East Kilbride, Scotland.
The Offering
Common Stock offered by the
Selling Stockholders............................ 228,307 shares
Common Stock to be outstanding
after this offering............................. 4,069,517 shares(1)
Nasdaq National Market Symbol................... CRPB
Use of Proceeds ................................ The Company will not
receive any proceeds from
this offering.
---------------
(1) Excludes 448,667 shares of Common Stock reserved for issuance upon the
exercise of options which have been granted, 543,834 shares underlying
options that may be granted in the future under the Company's stock option
plans and 595,000 shares that may be issued upon conversion of the
Company's subordinated debentures.
RISK FACTORS
In evaluating the Company and its business, consideration should be given
to the following factors in addition to the other information included in this
Prospectus.
Factors Affecting Operating Results
The Company's operating results are affected by a wide variety of factors
which could adversely impact its net sales and profitability, many of which are
beyond the control of the Company. The factors include the Company's ability to
design and introduce new products on a timely basis, customer demand for the
Company's products, the level of orders that are received and can be delivered
in a quarter, customer order patterns, product performance and reliability,
utilization of manufacturing capacity, the availability and cost of raw
materials, equipment and other supplies, the cyclical nature of both the
semiconductor industry and the markets addressed by the Company's products,
technological changes, competition and competitive pressures on prices, and
economic conditions in the United States and worldwide markets served by the
Company. The Company believes its ability to continue to increase its
manufacturing capacity to meet customer demand and maintain satisfactory
delivery schedules will be an important competitive factor. The Company's
products are used by a wide variety of computer, automotive, communications and
aerospace manufacturers and users. A slowdown in demand for products which
utilize integrated and hybrid circuits as a result of economic or other
conditions in the United States or worldwide markets served by the Company or
other broad-based factors could adversely affect the Company's operating
results.
Dependence on New Products and Technologies
The Company operates in fast changing industries. Technological advances,
the introduction of new products, and new design and manufacturing techniques
could adversely effect the Company's operations unless the Company is able to
adapt to the resulting changing conditions. The Company's future operating
results will depend to a significant extent on its ability to continue to
develop and introduce new products on a timely basis which compete effectively
on the basis of price and performance and which address customer requirements.
The success of new products depends on various factors, including proper new
product selection, timely completion and introduction of new product designs and
development of support tools and collateral literature that make complex new
products easy for engineers to understand. There can be no assurance that any
new products will receive or maintain substantial market acceptance. If the
Company were unable to design, develop and introduce competitive products on a
timely basis, its future operating results would be adversely affected.
Manufacturing Yields and Capacity
The design and manufacture of probe cards and interface products are highly
complex processes that are sensitive to a wide variety of factors, including the
level of contaminants in the manufacturing environment, impurities in the
materials used, and the performance of the design and production personnel and
equipment. As is typical in the industry, the Company from time to time has
experienced lower than anticipated manufacturing yields and lengthening of
delivery schedules. During the past two fiscal years, the Company has increased
its manufacturing productivity, achieved higher manufacturing yields, and
reduced design and manufacturing errors, all of which have been positive factors
in its operating results. In addition, the Company has instituted procedures to
assure its ability to meet delivery schedules to satisfy increased business. The
Company's operating results could be adversely affected it if were unable to
maintain high levels of productivity or to maintain satisfactory delivery
schedules.
Competition
The Company competes with several well established domestic corporations in
the integrated circuit probe card market, including Wentworth Laboratories,
Inc., Probe Technology and Micro-Probe, Incorporated. Such competitors
manufacture and market epoxy ring probe cards, which comprise approximately 80%
of the domestic market, and metal blade probe cards, which comprise
approximately 10% of the domestic market. The Company estimates that ceramic
blade probe cards represent approximately 10% of the total domestic market. The
Company anticipates that its CerCardTM product will continue to capture an
increasing portion of the market currently using epoxy ring probe cards. To the
Company's knowledge, ceramic blade probe cards currently are produced by the
Company and to a limited extent by Wentworth Laboratories, Inc. and Accuprobe,
Inc. It is expected that competition will increase in the future as integrated
circuitry and probing technology become more sophisticated. The Company competes
primarily on the basis of product performance, service, delivery time and price.
In the area of interface circuitry, the Company believes that competition
will be on the basis of performance specifications, service and price. The
Company believes, however, that the increasing number of interfaces built in by
manufacturers of automatic testing equipment will limit future growth in that
market.
International Trade and Currency Exchange
The Company believes that approximately 10% of the Company's net sales in
the six month period ended June 30, 1995 were to international customers. The
foreign manufacture and sale of products and the purchase of raw materials and
equipment from foreign suppliers may be adversely affected by political and
economic conditions abroad. Protectionists trade legislation in either the
United States or foreign countries, such as a change in the current tariff
structures, export compliance laws or other trade policies, could adversely
affect the Company's ability to manufacture or sell products in foreign markets
and purchase materials or equipment from foreign suppliers. In countries in
which the Company conducts business in local currency, currency exchange
fluctuations could adversely affect the Company's net sales or costs. In
addition, the laws of certain foreign countries do not protect the Company's
intellectual property rights to the same extent as the laws of the United
States.
A portion of the Company's foreign transactions are denominated in
currencies other than the U.S. dollar. Such transactions expose the Company to
exchange rate fluctuations for the period of time from inception of the
transaction until it is settled. Although the Company has not incurred any
material exchange gains or losses, there can be no assurance that fluctuations
in the currency exchange rates in the future will not have an adverse impact on
the Company's operations.
The Semiconductor Industry; Capital Requirements
The semiconductor industry in general has been characterized by
cyclicality. The industry has experienced significant economic downturns at
various times, characterized by diminished product demand, accelerated erosion
of average selling prices and production over-capacity. The Company has sought
to reduce its exposure to industry cyclicality by selling products to a
geographically diverse base of customers across a broad range of market
applications. However, the Company may experience substantial period-to-period
fluctuations in future operating results due to general industry conditions or
events occurring in the general economy. Currently, the Company is experiencing
a period of increased demand and production capacity constraints. There is no
assurance that the Company will continue to experience increased demand.
The probing and interface industry is also capital intensive. In order to
remain competitive, the Company must continue to make significant investments in
capital equipment, for both production and research and development. As a result
of the increase in fixed costs and operating expenses related to these capital
expenditures, the Company's operating results may be adversely affected if net
sales do not increase sufficiently to offset the increased costs. The Company
may from time to time seek additional equity or debt financing to provide for
the capital expenditures required to maintain or expand the Company's
fabrication facilities and capital equipment. The timing and amount of any such
capital requirements cannot be predicted at this time and will depend on a
number of factors, including demand for the Company's products, product mix,
changes in industry conditions and competitive factors. There can be no
assurance that any such financing will be available on acceptable terms, and any
additional equity financing could result in additional dilution to existing
investors.
Patents, Licenses and Intellectual Property Claims
The Company's success depends in part on its ability to obtain patents,
licenses and other intellectual property rights covering its products and
manufacturing processes. To that end, the Company has acquired certain patents
and patent licenses and intends to continue to seek patents on its inventions
and manufacturing processes. The process of seeking patent protection can be
long and expensive, and there can be no assurance that patents will be issued
from currently pending or future applications or that the Company's existing
patents or any new patents that are issued will be of sufficient scope or
strength to provide meaningful protection or any commercial advantage to the
Company. The Company may be subject to or may initiate interference proceedings
in the U.S. Patent and Trademark Office, which can demand significant financial
and management resources.
Environmental Regulation
The Company is subject to a variety of federal, state or local governmental
regulations related to the use, storage, discharge and disposal of toxic,
volatile or otherwise hazardous chemicals used in its manufacturing process.
Although the Company believes that its activities conform to presently
applicable environmental regulations, the failure to comply with present or
future regulations could result in fines being imposed on the Company,
suspension of production or a cessation of operations. Such regulations could
require the Company to acquire costly equipment or to incur other significant
expenses to comply with environmental regulations. Any failure by the Company to
control the use of, or adequately restrict the discharge of, hazardous
substances could subject it to future liabilities.
Dependence on Management and Other Key Personnel
The Company's success depends upon the retention of certain key personnel
and the recruitment and retention of additional key personnel. The loss of
existing key personnel or the failure to recruit and retain necessary additional
personnel would adversely affect the Company's business prospects. There can be
no assurance that the Company will be able to retain its current personnel or
attract and retain necessary additional personnel. Future growth will further
increase the demand on the Company's resources and require the addition of new
personnel and the development of additional expertise by existing personnel. The
failure of the Company to attract and retain personnel with the requisite
expertise or to develop internally such expertise could adversely affect the
prospects for the Company's success. The Company entered into employment
agreements with certain executive officers in 1990 that are each subject to
automatic renewal for terms of one year and has entered into employment
agreements for specified terms with other executive officers as they have joined
the Company.
Control by Current Stockholders
The directors, executive officers, and their affiliates currently own
beneficially approximately 34.3% of the outstanding shares of Common Stock.
Accordingly, these persons, if they act as a group, likely will be able to
continue to elect all of the Company's directors and determine the outcome of
matters requiring approval by the stockholders of the Company.
Possible Volatility of Stock Prices
The market price of the Company's Common Stock has increased since the
Company's initial public offering in July 1983. The period was marked by
generally rising stock prices, favorable industry conditions, and improving
operating results by the Company. The trading price of the Company's Common
Stock in the future could be subject to wide fluctuations in response to
quarterly variations in operating results of the Company and others in its
industry, actual or anticipated announcements concerning the Company or its
competitors, changes in analysts' estimates of the Company's financial
performance, general conditions in the semiconductor industry, general economic
and financial conditions, and other events or factors. In addition, the stock
market has experienced extreme price and volume fluctuations which have affected
the market prices for many companies involved in high technology manufacturing
and related industries and which often have been unrelated to the operating
performance of such companies. These broad market fluctuations and other factors
may adversely affect the market price of the Company's Common Stock.
Shares Eligible for Future Sale
Sales of substantial amounts of Common Stock of the Company in the public
market following this offering could adversely affect prevailing market prices.
Upon completion of this offering, 21,000 restricted shares as that term is
defined under Rule 144 (the "Restricted Shares") held by non-affiliates will be
eligible for sale in the public market without restriction pursuant to Rule
144(k) under the Securities Act of 1933, as amended (the "Act"), and 1,055,333
Restricted Shares will be eligible for sale in the public market subject to
compliance with the volume limitations and other requirements of Rule 144 under
the Act. The Company has registered for offer and sale up to 492,501 shares of
Common Stock that are reserved for issuance pursuant to the Company's stock
option plans. Holders of debentures may convert and those shares contain some
registration rights. The Company also has the authority to issue additional
shares of Common Stock and shares of one or more series of Preferred Stock. The
issuance of such shares could result in the dilution of the voting power of the
shares of Common Stock purchased in this offering and could have a dilutive
effect on earnings per share.
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to
beneficial ownership of the Common Stock as of July 25, 1995 and as adjusted to
reflect the sale of the shares offered hereby by each Selling Stockholder.
<TABLE>
<CAPTION>
Amount
Beneficially Amount
Owned Number Beneficially
Prior to of Shares Owned After
Name of Beneficial Owner(1) Offering(2) Percent to be Sold the Offering Percent
--------------------------- ---------------------- ---------- ------------ -------
<S> <C> <C> <C> <C> <C>
William A. Fresh(3) 482,297 11.9 140,000 342,297 8.4
Dan Higgins 122,479 3.0 50,000 72,479 1.8
Robert Bench 73,736 1.8 30,000 43,736 1.1
Robert Nespodzany 5,317 * 2,127 3,190 *
Grady Brown 2,659 * 1,064 1,595 *
Stephen Fresh 2,659 * 1,064 1,595 *
James Godfrey 2,659 * 1,064 1,595 *
Stephanie Johnson 2,659 * 1,064 1,595 *
David W. Bean 2,127 * 851 1,276 *
Mark Celentano 1,595 * 595 1,000 *
Kip Meacham 1,196 * 478 718 *
----------------------------------
* Less than one percent.
(1) Each of such persons was employed or associated with Fresh Test prior to
its acquisition by the Company. See "The Company." Mr. Fresh was
appointed to the Company's Board of Directors on April 7, 1995. Messrs.
Higgins, Bench, Brown and Fresh and Ms. Johnson are currently employed by
the Company.
(2) Except as indicated, and subject to community property laws when
applicable, the persons named in the table above have sole voting and
investment power with respect to all shares of Common Stock shown as
beneficially owned by them.
(3) Includes 212,700 shares held by WAF Investment Company, a company 100%
owned by Mr. Fresh and his wife, and 108,477 shares held by Orem Tek
Development Corp., a company 100% owned by Mr. Fresh.
</TABLE>
In connection with this offering, the Company has entered into a letter
agreement with the Selling Stockholders under which the Company will (i) bear
all expenses (other than commissions, which will be borne by the Selling
Stockholders pro rata upon completion of this offering) incurred in connection
with the registration of Common Stock offered and sold by such Selling
Stockholders and (ii) indemnify such Selling Stockholders from and against
claims to which the Selling Stockholders may become subject under the Act or
other federal or state law insofar as such claims arise out of material
misstatements or omissions in this Prospectus or the Registration Statement of
which this Prospectus is a part, except to the extent any such claim arises out
of or is based on any untrue statement or omission derived from information
furnished to the Company by such Selling Stockholders. The Selling Stockholders
also have agreed to waive their right to include their shares in any
registration statement filed by the Company pursuant to the provisions of a
registration agreement between the Company and each of the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 10,000,000 shares of
Common Stock, par value $0.05 per share (the "Common Stock") and 10,000,000
shares of Preferred Stock, par value $0.05 per share (the "Preferred Stock"). At
July 25, 1995, there were outstanding 4,069,517 shares of Common Stock held by
approximately 1,153 holders of record. No shares of Preferred Stock are
outstanding. All of the currently outstanding shares of Common Stock are validly
issued, fully paid and non-assessable.
The holders of Common Stock are entitled to one vote for each share on all
matters submitted to a vote of stockholders, except that holders of Common Stock
will have cumulative voting rights with respect to election of directors.
Subject to preferences that may be applicable to any then outstanding Preferred
Stock, the holders of Common Stock will be entitled to receive such dividends,
if any, as may be declared by the Board of Directors from time to time out of
legally available funds. Upon liquidation, dissolution or winding up of the
Company, the holders of Common Stock will be entitled to share ratably in all
assets of the Company that are legally available for distribution, after payment
of all debts and other liabilities and subject to the prior rights of holders of
any Preferred Stock then outstanding. The holders of Common Stock have no
preemptive, subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of Common Stock will be subject to the
rights of the holders of shares of any series of Preferred Stock that the
Company may issue in the future.
PLAN OF DISTRIBUTION
The Common Stock offered hereby may be sold by the Selling Stockholders
from time to time in transactions in the open market, in negotiated
transactions, or a combination of such methods of sale, at fixed prices (that
may be changed), at market prices prevailing at the time of sale, at prices
related to prevailing prices at the time of sale, at prices related to
prevailing market prices, or at negotiated prices. The Selling Stockholder may
effect such transaction by selling the Shares offered hereby to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of the Shares for whom such broker-dealers may act as agents or to
whom they sell as principals, or both (which compensation may be in excess of
customary commissions).
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless the Shares have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirements is available or complied with.
The Selling Stockholders and any broker-dealers, agents or underwriters
that participate with the Selling Stockholders in the distribution of the Shares
may be deemed to be underwriters within the meaning of the Act, and any
commissions received by them and any profit on the resale of the Shares
purchased by them may be deemed underwriting commissions or discounts under the
Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Shares may not simultaneously engage in
market making activities with respect to the Common Stock of the Company for a
period of two business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, the Selling Stockholders will be
subject to the applicable provisions of the Exchange Act and the rules and
regulations thereunder, including, without limitation, Rules 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sale of shares of the
Company's Common Stock by the Selling Stockholders.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-KSB, as amended, for the year ended
December 31, 1994 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which includes an explanatory paragraph
describing a change in accounting principle, and which is incorporated herein by
reference, and has been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by O'Connor, Cavanagh, Anderson, Westover, Killingsworth &
Beshears, a professional association, Phoenix, Arizona.
ADDITIONAL INFORMATION
The Company has filed with the Commission a Registration Statement under
the Securities Act with respect to the Shares offered hereby. This Prospectus
omits certain information contained in the Registration Statement and the
exhibits and schedules thereto, and reference is made to the Registration
Statement and the exhibits and schedules thereto for further information with
respect to the Company and the Common Stock offered hereby. Statements contained
herein concerning the provisions of any documents are not necessarily complete,
and in each instance reference is made to the copy of such document filed as an
exhibit to the Registration Statement. Each such statement is qualified in its
entirety by such reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses to be
borne by the Company in connection with the offering described in the
Registration Statement. All of the amounts in the following table (except the
SEC registration fee) are estimated.
Amount
----------
SEC Registration Fee .............................................. $ 767.58
Legal Fees and Expenses............................................ 6,000.00
Accounting Fees and Expenses....................................... 11,500.00
Miscellaneous Expenses............................................. 500.00
----------
Total $18,767.58
==========
Item 15. Indemnification of Directors and Officers
The Company's Certificate of Incorporation requires the Company to
indemnify its directors, officers, employees and agents to the fullest extent
permitted by the Delaware General Corporation Law. The Company's Certificate
also eliminates the personal liability of the directors of the Company to the
Company or its stockholders for monetary damages for breach of their duty of
care except to the extent that such exemption from liability or limitation
thereof is not permitted under the General Corporation Law. The Delaware General
Corporation Law prohibits a corporation from eliminating or limiting the
liability of a director (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 that involve intentional misconduct or a knowing violation of law;
(iii) for liability under Section 174 of the Delaware General Corporation Law
(relating to certain unlawful dividends, stock purchases or stock redemptions);
or (iv) for any transaction from which the director derived any improper
personal benefit.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit No.
-----------
Description of Exhibit
----------------------
4(a) Specimen Stock Certificate filed as Exhibit 4(c) to the Company's
Form S-18 Registration Statement (No.2-85679) and incorporated herein
by reference.
4(b) Specimen Convertible Subordinated Debenture filed as Exhibit 4(b) to
the Company's Form 10-K for the year ended December 31, 1990 and
incorporated herein by reference.
5 Opinion of Consent of O'Connor, Cavanagh, Anderson, Westover,
Killingsworth & Beshears, P.A.
23.1 Consent of O'Connor, Cavanagh, Anderson, Westover, Killingsworth &
Beshears, P.A. (to be included in its Opinion filed as Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney of Directors and Executive Officers (included on
the Signature Page of this Registration Statement).
Item 17. Undertakings
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: (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 clause (i)
and (ii) above do not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-effective amendment
by those clauses is contained in periodic reports filled 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.
(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.
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 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.
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 of 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.
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 is 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tempe, State of Arizona, on the 10th day of August,
1995.
CERPROBE CORPORATION
By: /s/ C. Zane Close
--------------------
C. Zane Close
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally, C. Zane Close and
Robert K. Bench, and each of them, as his true and lawful attorney-in-fact and
agents, 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 Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
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
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying, and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ C. Zane Close President, Chief Executive Officer and August 10, 1995
--------------------
C. Zane Close Director (Principal Executive Officer)
/s/ Robert K. Bench Chief Financial Officer (Principal August 10, 1995
---------------------
Robert K. Bench Financial and Accounting Officer)
/s/ Ross J. Mangano Chairman of the Board August 10, 1995
---------------------
Ross J. Mangano
/s/ Kenneth W. Miller Director August 10, 1995
---------------------
Kenneth W. Miller
/s/ Donald F. Walter Director August 10, 1995
---------------------
Donald F. Walter
/s/ William A. Fresh Director August 10, 1995
---------------------
William A. Fresh
August 10, 1995
CerProbe Corporation
600 South Rockford Drive
Tempe, Arizona 85281
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
As legal counsel to CerProbe Corporation, a Delaware
corporation (the "Company"), and the Selling Stockholders, as defined in the
Registration Statement (as defined below), we have assisted in the preparation
of the Company's Registration Statement on Form S- 3 to be filed on August 14,
1995 with the Securities and Exchange Commission (the "Registration Statement"),
in connection with the registration under the Securities Act of 1933, as
amended, of the shares of common stock, par value $.05 per share, of the Company
covered by the Registration Statement (the "Shares"). The facts, as we
understand them, are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined
originals, certified copies, or copies otherwise identified to our satisfaction
as being true copies, only of the following:
A. The Certificate of Incorporation of the Company, as
filed with the Secretary of State of the State of Delaware on March 23, 1987;
B. The Bylaws of the Company, as amended through the
date hereof;
C. The Registration Statement; and
D. The Resolutions of the Board of Directors of the
Company dated August 1, 1995 relating to the approval of the filing of the
Registration Statement and the transactions in connection therewith.
Subject to the assumptions that (i) the documents and
signatures examined by us are genuine and authentic and (ii) the persons
executing the documents examined by us have the legal capacity to execute such
documents, and subject to the further limitations and qualifications set forth
below, it is our opinion that, when (a) the Registration Statement as then
amended shall have been declared effective by the Commission, and (b) the Shares
have been duly sold by the Selling Shareholders as described in the Registration
Statement, the Shares will be validly issued, fully paid and nonassessable.
We have assumed, with respect to the Shares that are to be
sold by the Selling Stockholders, the payment by the Selling Stockholders (or
the prior holders thereof) of the full and sufficient consideration due from
them to the Company for such Shares.
Please be advised that we are members of the State Bar of
Arizona, and our opinion is limited to the legality of matters under the laws of
the State of Arizona and the General Corporation Laws of the State of Delaware.
Further, our opinion is based solely upon existing laws, rules and regulations,
and we undertake no obligation to advise you of any changes that may be brought
to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in
the Registration Statement, inclusion of this Opinion as an exhibit to the
Registration Statement, and to the filing of this Opinion with any other
appropriate governmental agency.
Very truly yours,
/s/ O'Connor, Cavanagh, Anderson,
Westover, Killingsworth & Beshears, P.A.
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
CerProbe Corporation on Form S-3 of our report dated February 3, 1995, which
expresses an unqualified opinion and includes an explanatory paragraph
describing a change in accounting principle, appearing in the Annual Report on
Form 10-KSB, as amended, of CerProbe Corporation for the year ended December 31,
1994 and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
August 10, 1995
