<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 16, 1998
REGISTRATION NO. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
INTEGRATED PROCESS EQUIPMENT CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 77-0296222
(STATE OF OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
911 BERN COURT, SAN JOSE, CALIFORNIA
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, ZIP CODE)
---------------------------
AUGUST 13, 1997 EXECUTIVE EMPLOYMENT AGREEMENT
(FULL TITLE OF THE PLAN)
---------------------------
SANJEEV R. CHITRE
CHAIRMAN OF THE BOARD OF DIRECTORS
INTEGRATED PROCESS EQUIPMENT CORP.
911 BERN COURT
SAN JOSE, CALIFORNIA 95112
(408) 436-2170
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------------------
COPY TO:
NEIL J. WOLFF, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PRICE PER SHARE PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock ($0.01 par value 200,000 (1) $26.875 $5,375,000 $ 1,586
per share)
==================================================================================================================================
</TABLE>
(1) The shares covered by this Registration Statement represent 200,000 shares
of Common Stock underlying options granted to the Company's President and Chief
Executive Officer pursuant to an Executive Employment Agreement dated August 13,
1997, as amended, at an exercise price of $26.875.
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<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information are incorporated by reference
as filed with the Securities and Exchange Commission:
(a) The Company's 1997 Annual Report to Stockholders.
(b) The Company's Form 10-K Annual Report for the fiscal
year ended June 30, 1997.
(c) The Company's Form 10-Q for the quarter ended
September 30, 1997.
(d) The Company's Form 10-Q for the quarter ended
December 31, 1997.
(e) The Company's Form 10-Q for the quarter ended March
31, 1998.
(f) The description of the Company's Common Stock set
forth in the Company's Registration Statement on Form
S-1 (No. 33-44746) which is incorporated by reference
in Item 1 of the Registrant's Registration Statement
on Form 8-A (File No. 0-20470) filed pursuant to
Section 12 of the Exchange Act.
(g) The Company's Forms 8-K filed September 3, 1997,
September 12, 1997, February 5, 1998 and July 10,
1998.
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 which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law generally provides
that a corporation is empowered to indemnify any person who is made a party to
any threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving, at the request of the corporation, in any of such
capacities of another corporation or other enterprise, if such director,
officer, employee or agent acted in good faith and in a manner he 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 his conduct was unlawful. This statute describes in detail the right of
the Registrant to indemnify any such person.
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<PAGE> 4
The Registrant's Certificate of Incorporation eliminates in certain
circumstances the liability of directors of the Registrant for monetary damages
for breach of their fiduciary duty as directors. This provision does not
eliminate the liability of a director (i) for breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions by the
director not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for willful or negligent declaration of an unlawful
dividend, stock purchase or redemption or (iv) for transactions from which the
director derived an improper personal benefit.
The Registrant's Certificate of Incorporation also provides generally
for indemnification of all directors and officers of the Registrant to the
fullest extent permitted by the General Corporation Law of the State of
Delaware. Such right to indemnification shall be deemed to be a contract right
and includes generally the right to be paid by the Registrant the expenses
incurred in defending any proceeding covered by this provision in advance of its
final disposition. Individuals who are entitled to indemnification may bring
suit to seek recovery of amounts due under the foregoing provisions and to
recover the expenses of such suit if successful.
The Registrant has entered into indemnification agreements to such
effect with its officers and directors containing provisions which are in some
respects broader than the specific indemnification provisions contained in the
General Corporation Law of Delaware. The indemnification agreements may require
the Company, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers (other than liabilities arising from willful misconduct
of a culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
The Registrant believes that it is the position of the Commission that
insofar as the foregoing provisions may be invoked to disclaim liability for
damages arising under the Securities Act, such provisions are against public
policy as expressed in the Security Act and are therefore unenforceable.
The Registrant currently maintains an officers' and directors'
liability insurance policy which covers, subject to the exclusions and
limitations of the policy, officers and directors of the Registrant against
certain liabilities which may be incurred by them solely in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Executive Employment Agreement.
4.2 Amendment to Executive Employment Agreement.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.2 Consent of Richard A. Eisner & Company, LLP.
23.3 Consent of Counsel (Contained in Exhibit 5.1 above).
24.1 Power of Attorney (Included on page 6 of this Registration
Statement).
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<PAGE> 5
ITEM 9. UNDERTAKINGS.
(a) 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 to include any material
information with respect to the plan of distribution
not previously disclosed in the registration
statement or any material change to such information
in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933 (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
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 (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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Registrant pursuant to the Delaware General Corporation Law, the Certificate
of Incorporation or the Bylaws of Registrant, Indemnification Agreements entered
into between Registrant and its officers and directors, or otherwise, 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 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
hereunder, 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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<PAGE> 6
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on this 16th day of July
1998.
INTEGRATED PROCESS EQUIPMENT CORP.
By: /s/ JOHN S. HODGSON
-----------------------------------------------------
John S. Hodgson
Vice President, Treasurer and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Roger D. McDaniel and John S. Hodgson
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorney-in-fact, or his substitute or substitutes, may 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.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ SANJEEV R. CHITRE Chairman of the Board of Directors July 16, 1998
- ------------------------------------
Sanjeev R. Chitre
/s/ ROGER D. McDANIEL President, Chief Executive Officer and Director July 16, 1998
- ------------------------------------
Roger D. McDaniel (Principal Executive Officer)
/s/ JOHN S. HODGSON Vice President, Chief Financial Officer July 16, 1998
- ------------------------------------
John S. Hodgson (Principal Financial and Accounting Officer),
Treasurer and Secretary
/s/ HAROLD C. BALDAUF Director July 16, 1998
- ------------------------------------
Harold C. Baldauf
/s/ WILLIAM J. FRESCHI Director July 16, 1998
- ------------------------------------
William J. Freschi
/s/ KENNETH LEVY Director July 16, 1998
- ------------------------------------
Kenneth Levy
</TABLE>
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<PAGE> 7
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
4.1 Executive Employment Agreement.
4.2 Amendment to Executive Employment Agreement.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.2 Consent of Richard A. Eisner & Company, LLP.
23.3 Consent of Counsel (Contained in Exhibit 5.1 above).
24.1 Power of Attorney (Included on page 6 of this Registration
Statement).
<PAGE> 1
EXHIBIT 4.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is effective as of August 13, 1997 ("Effective Date")
between Integrated Process Equipment Corp. ("Company") and Roger D. McDaniel
("Executive").
1. Position, Duties and Start Date. Company hires Executive and
Executive accepts employment as Company's President and Chief Executive Officer.
Executive shall devote his full time and best efforts to these positions.
Executive shall comply with the policies of the Company and the direction of the
Company's Board of Directors ("Board"). Exhibit A specifies the separate
responsibilities of Executive and the Board's Chairman. To the extent requested
by the Board, Executive will serve as a Company Director without additional
compensation (other than continued vesting of Executive's existing 30,000 share
option granted in connection with his Board membership). Executive's full-time
employment will begin September 1, 1997 ("Start Date"). From the Effective Date
to the Start Date Executive will serve as a consultant to Company without
additional compensation.
2. Compensation.
(a) Company will pay Executive a monthly base salary of $33,333.33,
less applicable withholding, payable in accordance with Company's standard
payroll policy. At least annually the Board will consider increases in the
annual salary rate in light of Executive's individual performance, Company
performance and other relevant factors determined by the Board.
(b) Company will pay Executive a bonus payment of up to 100% of the
Executive's then base salary ("Bonus"), less applicable withholding, on a fiscal
year basis with the first year being prorated at 10/12ths. The Bonus payable at
the end of each fiscal year shall be determined by accomplishment of the Company
objectives, as agreed to by the Board's Compensation Committee prior to or as
soon as practical after the beginning of the year. The Board Compensation
Committee's reasonable determination as to whether an objective has been
accomplished will be final and binding. If the Executive is not employed by the
Company at the end of the fiscal year, the Board of Director's Compensation
Committee shall decide if any of the bonus will be paid based on the policies of
the Committee.
(c) Company or designee will purchase Executive's primary residence
for $670,000; the Company will reimburse Executive for $100,000 in reasonable
costs (including moving, temporary housing, losses on sale of club memberships,
etc.) of relocating to Phoenix, Arizona; Executive will relocate as soon as
practicable.
(d) Executive will be entitled to 4 weeks vacation per year, company
car, health and standard executive perks.
3. Equity Compensation. Company shall grant Executive the following
equity compensation under Company's 1997 Executive Stock Option Plan ("Plan").
(a) Company shall issue to Executive 50,000 shares of Company Common
Stock ("Shares") without consideration by Executive. The Shares shall vest at
the rate of 1667 shares, pre-tax, at the end of each full month after the
Effective Date (with the first 1667 shares to vest on September 30, 1997).
(b) Company shall grant Executive a stock option exercisable for up
to 50,000 shares of Common Stock ("Base Option"). The exercise price per share
for the Base Option shall be the per share fair market value of the Common Stock
on the Effective Date. The Base Option shall be fully vested and exercisable
upon grant. The Base Option shall be treated as an incentive stock option to the
extent permitted under the Internal Revenue Code and related regulations.
(c) Company shall grant Executive a stock option exercisable for up
to 400,000 shares of Common Stock ("Second Option"). The exercise price per
share for the Second Option shall be the per share fair market value of the
Common Stock on the Effective Date. The Second Option shall become exercisable
on each anniversary of the Start Date
<PAGE> 2
as to 25% of the number of shares initially subject to the Second Option,
provided in each case that Executive's employment with Company has not
terminated before such date.
(d) Company shall grant Executive a stock option exercisable for up
to 200,000 shares of Common Stock ("Performance Option"). The exercise price per
share for the Performance Option shall be the per share fair market value of the
Common Stock on the Effective Date. The Performance Option shall become
exercisable as to 50,000 shares on each of the first four anniversaries of the
Start Date if the incentive goals established by the Board have been met,
provided in each case that the Executive's employment with the Company has not
terminated prior to such date. The incentive goals for subsequent fiscal years
shall be specified by the Compensation Committee of the Board prior to the
beginning of each fiscal year. The Board's reasonable determination as to
whether an objective has been accomplished will be final and binding.
(e) The vesting of the Shares and the Second Option shall accelerate
by 12 months upon the closing of an Acquisition (as defined below), or as to
such greater amount as is necessary for Executive in total to receive vesting in
shares and options as to no less than 500,000 shares on such date, including
full vesting of the remainder of the 50,000 shares. For purposes of the
Agreement, an "Acquisition" shall mean (i) a merger, reorganization or sale of
substantially all of the assets of the Company if the holders of a majority of
the voting securities of the Company immediately before such transaction
(counting each share of Class A Common Stock as a single share and ignoring the
additional votes of such shares) do not constitute the holders of a majority of
the voting securities of the surviving corporation immediately after such
transaction or (ii) the acquisition of more than 50% of the Company's voting
equity securities by a single person or entity.
(f) Executive's option to purchase 30,000 shares of Common Stock
granted prior to the Effective Date shall remain in effect and shall be subject
to the terms and conditions of the option agreement under which it was granted.
4. Company Policies. Executive has reviewed and will comply with
Company's personnel policies, including signing Company's standard Proprietary
Information Agreement.
5. Term and Termination.
(a) The term of this Agreement shall continue until terminated by
either party in accordance with this Section 6.
(b) Company may terminate this Agreement at any time for Cause (as
defined below) without any severance obligation of the Company. "Cause" means
(i) willful or habitual neglect of Executive's obligations under this Agreement,
(ii) misuse of corporate funds, (iii) any other act of gross misconduct. A third
party arbitrator selected by mutual consent will make a final and binding
decision on any issue covered by this clause.
(c) Company may terminate this Agreement at any time without Cause,
provided that Company shall pay Executive as a severance payment a monthly
amount equal to his then current monthly base salary (less applicable
withholding) for a period of 12 months following the date of termination. In
addition, upon such termination, the vesting of the Shares and the Second Option
shall accelerate by 12 months from the vesting at the date of such termination.
The severance payments described in this Section 6(c) and the acceleration of
the vesting of the Shares and the Second Option shall discharge all of the
Company's obligations to the Executive.
(d) This Agreement may be terminated by the Executive at any time
upon 60 days written notice, in which case the Company shall have no severance
obligation to the Executive.
(e) This Agreement shall not constitute an agreement to employ
Executive for a specified term.
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<PAGE> 3
6. General.
(a) This Agreement shall be binding upon the legal representatives,
distributees, successors and assigns of the parties hereto.
(b) This Agreement and the exhibits hereto contain the entire
agreement of the parties, and may not be changed orally, but only by a writing
signed by the party against whom enforcement of such change is sought.
(c) If any provision of this Agreement is held invalid, illegal or
unenforceable, such provisions shall be deemed deleted and such deletion shall
not affect the validity of other provisions of this Agreement.
(d) This Agreement shall be governed by and construed according to
the laws of the State of California. The federal and state courts of the state
of California shall have exclusive jurisdiction to adjudicate any dispute rising
out of this Agreement.
INTEGRATED PROCESS EQUIPMENT CORP.:
By:___________________________
Title:________________________
EXECUTIVE:
________________________________
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<PAGE> 4
EXHIBIT A
Separate Responsibilities of Executive and Board Chairman
(To be determined)
-4-
<PAGE> 5
EXHIBIT B
Bonus Objectives for September 1, 1997 through August 31, 1998
(To be determined)
-5-
<PAGE> 6
EXHIBIT C
Performance Option Goals for Fiscal 1998
(To be determined)
-6-
<PAGE> 1
EXHIBIT 4.2
Integrated Process Equipment Corp.
AMENDMENT TO PERFORMANCE OPTION
December 4, 1997
Roger McDaniel
c/o Integrated Process Equipment Corp.
4717 East Hilton Avenue
Phoenix, AZ 85034
Dear Roger:
This letter amends the August 13, 1997 Executive Employment Agreement
as follows:
Your "Performance Option" exercisable for up to 200,000 shares of
Common Stock shall become exercisable as to 50,000 shares on each of the first
four anniversaries of the Start Date, provided in each case that your employment
with the Company has not terminated prior to such date. Performance-based
vesting will not apply to the option.
In exchange, you agree to reduce the amount of your annual actual cash
bonus by the difference between the 50,000 shares actually vested and the number
of shares which would have vested in that fiscal year if you had continued to
hold a performance-based option. The number of shares which would have vested in
a particular fiscal year shall be determined based on the same criteria as are
used to determine the amount of your cash bonus. The amount by which your actual
cash bonus will be reduced will equal the incremental number of shares which
vested due to this change to time-based vesting, multiplied by the difference
between the fair market value of the Common Stock at the end of the fiscal year
and your option exercise price.
Exhibit A illustrates several different applications of this
measurement system.
If the above calculation results in a reduction larger than the amount
of the cash bonus you earned in a particular fiscal year, the maximum reduction
will be the amount of the bonus (that is, in no event will you be required to
pay funds to the Company from your base salary). In addition, these calculations
are not intended to result in any additional cash payment to you beyond the cash
bonus which you earn.
As with the amount of your cash compensation, these calculations will
be finally determined by the Company's Board of Directors, acting reasonably.
All other provisions of your Employment Agreement and the related
options continue unchanged.
Please sign below to indicate that you agree to the foregoing.
Sincerely yours,
INTEGRATED PROCESS EQUIPMENT CORP.
By:______________________________________
John S. Hodgson, Chief Financial Officer
_________________________________
Roger McDaniel
Dated:___________________________
<PAGE> 1
EXHIBIT 5.1
July 16, 1998
Integrated Process Equipment Corp.
911 Bern Court
San Jose, California 95112
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Integrated Process Equipment Corp., a
Delaware corporation (the "Registrant" or "you"), with the Securities and
Exchange Commission on or about July 16, 1998, in connection with the
registration under the Securities Act of 1933, as amended, of 200,000 shares of
Common Stock, $.01 par value (the "Shares"), underlying options to purchase
Common Stock granted to Roger D. McDaniel ("McDaniel") under Section 3(d) of the
Executive Employment Agreement (the" Agreement") between McDaniel and Registrant
dated August 20, 1997. As your legal counsel in connection with this
transaction, we have reviewed the proceedings taken by you in connection with
the issuance and sale of the Shares pursuant to the Agreement.
It is our opinion that, when issued and sold in the manner described
and pursuant to the agreement which accompanies the grant, the options to
purchase 200,000 shares of Common Stock and the underlying 200,000 shares Common
Stock to be issued upon exercise will be legally and validly issued, fully-paid
and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
------------------------------------
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Integrated Process Equipment Corp.
We consent to incorporation by reference in the Registration Statement on Form
S-8 pertaining to the grant of options to purchase 200,000 shares of Common
Stock granted to the Company's President and Chief Executive Officer of
Integrated Process Equipment Corp. of our report dated August 1, 1997, relating
to the consolidated balance sheets of Integrated Process Equipment Corp. and
subsidiaries as of June 30, 1997 and 1996, and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for the
years then ended, which report appears in the June 30, 1997 Annual Report on
Form 10-K of Integrated Process Equipment Corp.
KPMG PEAT MARWICK LLP
/s/ KPMG Peat Marwick LLP
-------------------------
Phoenix, Arizona
July 13, 1998
<PAGE> 1
Exhibit 23.2
CONSENT OF RICHARD A. EISNER & COMPANY, LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Integrated Process Equipment Corp. (the "Company") of
our report dated August 18, 1995, on our audit of the consolidated statements
of operations, changes in stockholders' equity and cash flows of the Company for
the year ended June 30, 1995, which report is included in the Company's 1997
Annual Report on Form 10-K.
/s/ Richard A. Eisner & Company, LLP
------------------------------------
New York, New York
July 14, 1998
