As filed with the Securities and Exchange Commission on May30, 2012

 

REGISTRATION NO. 333-                        

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

AXCELIS TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

 

 

108 Cherry Hill Drive, Beverly, Massachusetts 01915
(Address of Principal Executive Offices and Zip Code)

 

 

2012 EQUITY INCENTIVE PLAN
(Full title of the plan)

 

LYNNETTE C. FALLON
Axcelis Technologies, Inc.
108 Cherry Hill Drive
Beverly, Massachusetts 01915
(617) 787-4000
(Name, address and telephone number of agent for service)

 

with copies to:

 

MATTHEW C. DALLETT
Edwards Wildman Palmer LLP
111 Huntington Avenue
Boston, Massachusetts 02199-7613
(617) 239-0100

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company in Rule 12b-2 of the Exchange Act.  (Check one):

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered		Amount To Be Registered		Proposed Maximum Offering Price Per Share			Proposed Maximum Aggregate Offering Price			Amount Of Registration Fee
Common stock, $0.001 par value		3,800,000 shares	(1)	$	1.0005	(2)	$	3,801,900.00		$	435.70

(1)          Includes pursuant to Rule 416(a) under the Securities Act, such additional number of shares of Axcelis common stock as may be issued upon a stock split, stock dividend, or similar transaction.

 

(2)          Pursuant to Rules 457(c) and 457(h)(1) under the Securities Act, the proposed maximum offering price per share and the maximum aggregate offering price for the shares have been calculated solely for the purpose of computing the registration fee on the basis of the average of the high and low prices of Axcelis common stock as reported by the Nasdaq Global Select market on May 23, 2012, to be $1.03 and $0.971, respectively.

 

 

PART II      INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.        Incorporation of Documents by Reference

 

The following documents filed by the Registrant with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference into this Registration Statement: (i)  the Registrant’s annual report on Form 10-K for the year ended December 31, 2011, which contains audited financial statements for the fiscal year ended December 31, 2011; (ii) all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended December 31, 2011; and (iii) the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on July 3, 2000.

 

All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement. Each document incorporated by reference into this Registration Statement shall be deemed to be a part of this Registration Statement from the date of filing of such document with the Commission until the information contained therein is superseded or updated by any subsequently filed document which is incorporated by reference into this Registration Statement or by any document which constitutes part of the prospectus relating to the Axcelis Technologies, Inc. 2012 Equity Incentive Plan meeting the requirements of Section 10(a) of the Securities Act.

 

Item 4.        Description of Securities.

 

The class of securities to be offered under this Registration Statement is registered under Section 12 of the Exchange Act.

 

Item 5.        Interests of Named Experts and Counsel.

 

None.

 

Item 6.        Indemnification of Directors and Officers.

 

Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) permits a Delaware corporation, in its certificate of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. Article 10 of the Registrant’s Amended and Restated Certificate of Incorporation provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders in accordance with the foregoing provisions of Section 102(b)(7).

 

Under Section 145 of the DGCL, a Delaware corporation has the power to indemnify directors and officers under certain prescribed circumstances and, subject to certain limitations, against certain costs and expenses, including attorneys’ fees, actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which any of them is a party by reason of being a director or officer of the Registrant if it is determined that the director or the officer acted in accordance with the applicable standard of conduct set forth in such statutory provision. Article 10 of the Registrant’s Restated Certificate of Incorporation provides that any person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or an officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL.

 

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The Registrant’s Bylaws reiterate the indemnification obligations and make provisions for determining when a person is entitled to indemnification and advance of litigation expenses.

 

The Registrant has purchased directors’ and officers’ liability insurance covering certain liabilities which may be incurred by the officers and directors of the Registrant in connection with the performance of their duties. In addition, the Registrant has entered into indemnity agreements with its directors and executive officers that obligate the Registrant to indemnify such directors and executive officers to the fullest extent permitted by the DGCL.

 

Item 7.        Exemption from Registration Claimed.

 

Not Applicable.

 

Item 8.        Exhibits.

 

The following exhibits are filed herewith or incorporated by reference as part of this Registration Statement:

 

Exhibit No.			Description
4.1			Amended and Restated Certificate of Incorporation of the Registrant, as adopted May 6, 2009. Incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed with the Commission on May 11, 2009.
4.2			Bylaws of the Registrant, as amended as of August 8, 2007. Incorporated by reference to Exhibit 3.2 of the Registrant’s Form 10-Q for the quarter ended June 30, 2007, filed with the Commission on August 9, 2007.
5.1			Opinion of Edwards Wildman Palmer LLP regarding the legality of the shares being registered hereunder (filed herewith).
23.1			Consent of Ernst & Young LLP (filed herewith).
23.2			Consent of Edwards Wildman Palmer LLP (included in the Opinion filed as Exhibit 5.1).
99			2012 Equity Incentive Plan (filed herewith)

 

Item 9.        Undertakings.

 

(a)  The undersigned Registrant hereby undertakes:

 

(1) To file, during any period in which offers of sales are being made, a post-effective amendment to this Registration Statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement  (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

 

Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

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(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

* * *

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act 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 Beverly, Commonwealth of Massachusetts, on May 29, 2012.

 

	AXCELIS TECHNOLOGIES, INC.
	By:	/s/ MARY G. PUMA
Dated: May 29, 2012		Mary G. Puma, Chief Executive Officer

 

POWER OF ATTORNEY

 

We the undersigned officers and directors of Axcelis Technologies, Inc., hereby severally constitute and appoint Mary G. Puma, Jay Zager and Lynnette C. Fallon, and each of them singly, our true and lawful attorneys-in-fact, with full power to them in any and all capacities, to sign any and all amendments to this registration statement on Form S-8 (including any post-effective amendments thereto) for the registration of 3,800,000 shares, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, with respect to the registration of shares under the Axcelis Technologies, Inc. 2012 Equity Incentive Plan, hereby ratifying and confirming all that each of said attorneys-in-fact 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.

 

Signature		Title		Date
/s/ MARY G. PUMA		Director and Principal Executive Officer		May 29, 2012
Mary G. Puma
/s/ JAY ZAGER		Principal Accounting and Financial Officer		May 29, 2012
Jay Zager
/s/ EDWARD H. BRAUN		Director		May 29, 2012
Edward H. Braun
/s/ R. JOHN FLETCHER		Director		May 29, 2012
R. John Fletcher
/s/ STEPHEN R. HARDIS		Director		May 29, 2012
Stephen R. Hardis
/s/ WILLIAM C. JENNINGS		Director		May 29, 2012
William C. Jennings
/s/ JOSEPH P. KEITHLEY		Director		May 29, 2012
Joseph P. Keithley
/s/ PATRICK H. NETTLES		Director		May 29, 2012
Patrick H. Nettles

 

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/s/ H. BRIAN THOMPSON		Director		May 29, 2012
H. Brian Thompson

 

EXHIBIT INDEX

 

Exhibit No.			Description
4	.1*		Amended and Restated Certificate of Incorporation of the Registrant, as adopted May 6, 2009. Incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed with the Commission on May 11, 2009.
4	.2*		Bylaws of the Registrant, as amended as of August 8, 2007. Incorporated by reference to Exhibit 3.2 of the Registrant’s Form 10-Q for the quarter ended June 30, 2007, filed with the Commission on August 9, 2007.
5	.1		Opinion of Edwards Wildman Palmer LLP regarding the legality of the shares being registered hereunder (filed herewith).
23	.1		Consent of Ernst & Young LLP (filed herewith).
23	.2		Consent of Edwards Wildman Palmer LLP (included in the Opinion filed as Exhibit 5.1).
99			2012 Equity Incentive Plan (filed herewith)

 

* Indicates exhibit previously filed with the Securities and Exchange Commission and incorporated herein by reference. Exhibits filed with Forms 10-Q or 8-K of Axcelis Technologies, Inc.were filed under Commission File No. 000-30941.

 

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