Amendment No. 2
Ultra Clean Holdings, Inc.
Delaware | 3674 | 61-1430858 | ||
(State or Other Jurisdiction of
Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
150 Independence Drive
Incorporating Services Inc.
Copies to:
Alan F. Denenberg, Esq.
Davis Polk & Wardwell 1600 El Camino Real Menlo Park, California 94025 (650) 752-2000 |
John A. Fore, Esq.
Michael A. Occhiolini, Esq. Wilson Sonsini Goodrich & Rosati, Professional Corporation 650 Page Mill Road Palo Alto, California (650) 493-9300 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
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, check the following box. o
If this form is filed to register additional
securities for an offering pursuant to Rule 462(b) under
the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same
offering.
o
If this form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering.
o
If this form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering.
o
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum | Proposed Maximum | |||||||
Title of Each Class | Number of Shares to | Offering Price Per | Aggregate Offering | Amount of | ||||
of Securities to be Registered | be Registered(1) | Share(2) | Price(2) | Registration Fee(3) | ||||
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Common Stock, par value $0.001 per share
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10,465,000 | $12.00 | $125,580,000 | $11,961 | ||||
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(1) | Includes shares which the underwriters have the right to purchase to cover over-allotments. |
(2) | Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457 under the Securities Act of 1933. |
(3) | Includes $6,978 previously paid. |
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.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED MARCH 2, 2004
9,100,000 Shares
Ultra Clean Holdings, Inc.
Common Stock
We are selling 7,000,000 shares of common stock and the selling stockholder is selling 2,100,000 shares of common stock.
Prior to the offering, there has been no public market for our common stock. The initial public offering price of our common stock is expected to be between $10.00 and $12.00 per share. We have applied to have our common stock listed for quotation on The Nasdaq National Market under the symbol UCTT.
The underwriters have an option to purchase a maximum of 1,365,000 additional shares from the selling stockholder to cover over-allotments of shares.
Investing in our common stock involves risks. See Risk Factors on page 7.
Underwriting | Proceeds to | |||||||
Discounts and | Proceeds to | Selling | ||||||
Price to Public | Commissions | Ultra Clean | Stockholder | |||||
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Per Share
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$ | $ | $ | $ | ||||
Total
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$ | $ | $ | $ |
Delivery of the shares of common stock will be made on or about , 2004.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Credit Suisse First Boston | JPMorgan |
Banc of America Securities LLC | Piper Jaffray |
The date of this prospectus is , 2004.
We manufacture gas delivery systems in our ISO 9001:2000 certified clean room facilities.
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PROSPECTUS SUMMARY
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1 | |||
THE OFFERING
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4 | |||
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
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5 | |||
RISK FACTORS
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7 | |||
FORWARD-LOOKING STATEMENTS
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18 | |||
USE OF PROCEEDS
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19 | |||
DIVIDEND POLICY
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19 | |||
CAPITALIZATION
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20 | |||
DILUTION
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21 | |||
SELECTED CONSOLIDATED FINANCIAL DATA
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22 | |||
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
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24 | |||
BUSINESS
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38 | |||
MANAGEMENT
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48 | |||
PRINCIPAL AND SELLING STOCKHOLDERS
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55 | |||
CERTAIN RELATIONSHIPS AND RELATED PARTY
TRANSACTIONS
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57 | |||
SHARES ELIGIBLE FOR FUTURE SALE
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60 | |||
DESCRIPTION OF CAPITAL STOCK
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62 | |||
MATERIAL U.S. FEDERAL TAX CONSIDERATIONS FOR
NON-U.S. HOLDERS OF COMMON STOCK
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64 | |||
UNDERWRITING
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66 | |||
NOTICE TO CANADIAN RESIDENTS
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69 | |||
LEGAL MATTERS
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70 | |||
EXPERTS
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70 | |||
WHERE YOU CAN FIND ADDITIONAL INFORMATION
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70 | |||
INDEX TO FINANCIAL STATEMENTS
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F-1 |
You should rely only on the information contained in this document or to which we have referred you. We have not authorized anyone to provide you with information that is different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate as of the date of this document.
Dealer Prospectus Delivery Obligation
Until , 2004 (25 days after the commencement of the offering), all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers obligation to deliver a prospectus when acting as an underwriter and with respect to unsold allotments or subscriptions.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus. This summary may not contain all of the information that may be important to you. You should read this entire prospectus, including the section entitled Risk Factors and our consolidated financial data and related notes, before making an investment decision. References in this prospectus to Ultra Clean, we, us, our and our company refer to Ultra Clean Holdings, Inc. and Ultra Clean Technology Systems and Service, Inc. unless otherwise specified. The Ultra Clean Technology logo is our registered trademark. In addition, this prospectus contains trademarks, service marks and trade names of companies and organizations other than Ultra Clean Holdings, Inc.
Ultra Clean Holdings, Inc.
We are a developer and supplier of critical subsystems for the semiconductor capital equipment industry, focusing on gas delivery systems. We develop, design, prototype, engineer, manufacture and test gas delivery systems that enable the precise delivery of numerous specialty gases used in a majority of the key steps in the semiconductor manufacturing process. Our products control the flow, pressure, sequencing and mixing of specialty gases into and out of the process chambers of semiconductor manufacturing tools. Our customers are primarily original equipment manufacturers, or OEMs, of semiconductor capital equipment. These OEMs outsource the manufacturing of their gas delivery systems in order to improve the efficiency and reduce the costs of their design and manufacturing processes. Our system designs are reconfigurable and can accommodate different components and additional functionality with each new generation of semiconductor devices. We do not sell standard systems but design and develop each product in collaboration with our customers. We had sales of $84.3 million and $77.5 million for the years ended December 31, 2002 and 2003.
Our Solution
We offer our customers:
A complete outsourced solution for gas delivery systems. We provide our OEM customers with a complete outsourced solution for the development, design, prototyping, engineering, manufacturing and testing of advanced gas delivery systems. Our engineers work with our customers to customize and improve the design and performance of their gas delivery systems, in addition to ensuring that our products comply with applicable safety and environmental regulations and industry standards. We also manage supply chain logistics and perform comprehensive testing and qualification of final gas delivery systems to help our customers improve their manufacturing efficiencies, design-to-delivery cycle times, capital utilization and product operating characteristics.
Improved design-to-delivery cycle times. Our strong relationships with our customers and familiarity with their products and requirements help us to reduce design-to-delivery cycle times. We have optimized our supply chain management, coordination of design and manufacturing stages of production, logistics expertise and manufacturing controls to reduce design-to-delivery cycle times, allowing us to rapidly respond to order requests and quickly reconfigure product designs to meet end-users constantly changing requirements.
Component neutral design and manufacturing. We do not manufacture any of the components used in gas delivery systems and are therefore component neutral. This enables us to optimize overall designs for our customers by recommending the best available components on the basis of technology, performance and cost for incorporation into their gas delivery systems. Our component neutral position also enables us to maintain close relationships with a wide range of component suppliers who view us solely as a customer rather than as a competitor.
Component testing capabilities. We have made significant investments in advanced analytic and automated test equipment and utilize our engineering expertise to test key components that we incorporate into our gas delivery systems. With our component testing capabilities, we can perform diagnostic tests,
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Our Strategy
Our objective is to be the leading supplier of advanced gas delivery systems that are critical to the semiconductor manufacturing process. Our strategy is comprised of the following key elements:
Increase our market share at existing customers. We believe that a significant market opportunity exists to grow our business with sales to our existing customers by gaining market share from our competitors and by obtaining new business in different product families as our customers continue to outsource their gas delivery system requirements.
Broaden our customer base by expanding our resources and geographical presence. We plan to continue to attract new customers by promoting both the merits of outsourcing by leading OEMs and our own proven ability to meet the demands of OEMs. As we grow our business, we plan to increase our design, engineering and manufacturing capabilities. We believe significant growth opportunities exist in Europe and Asia.
Drive profitable growth with our flexible cost structure. In response to changes in demand for our products, we undertake cost containment initiatives and benefit from our supply chain efficiencies. We believe that we are well positioned to respond to an upturn in our business without significant new capital investment. In addition, we believe we can quickly and easily add additional manufacturing personnel and test equipment to meet increased demand.
Expand into new product markets using our existing expertise. We are committed to expanding beyond gas delivery systems into new product markets such as liquid delivery systems, catalytic steam generation systems and frame assemblies.
Selectively pursue strategic acquisitions. We plan to accelerate the growth of our business by selectively pursuing strategic acquisitions that will enable us to expand our geographic reach, secure new customers, diversify into complementary product markets and broaden our technological capabilities and product offerings.
Risks Associated With Our Business
Our business is subject to numerous risks, which are highlighted in the section entitled Risk Factors immediately following this prospectus summary, including:
| The semiconductor capital equipment industry is highly cyclical, with recurring periods of over-supply of semiconductor products that have caused customer orders for our products to fluctuate significantly from period to period. | |
| We are dependent on a small number of customers for a significant portion of our sales such that any impairment to our customer relationships would adversely affect our business. If these or other customers do not continue to outsource gas delivery systems for their capital equipment, our revenue would be reduced. | |
| We do not have long-term purchase contracts with any of our customers and, as a result, our sales are difficult to forecast. Any significant reductions, cancellations or delays in customer orders could cause our sales to decline and our operating results suffer. | |
| We are dependent on a number of single source and sole source suppliers for many of the components we use in our products. We do not have long-term commitments from any of our suppliers and the loss of any of our key suppliers could negatively affect our operations. | |
| Our industry is highly competitive and rapidly evolving and we must keep pace with technological changes. | |
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| We are controlled by Francisco Partners, L.P. such that our other stockholders will be unable to affect the outcome of stockholder voting. In addition, for so long as Francisco Partners owns at least 25% of our outstanding common stock, it will be able to nominate a majority of the members of our board of directors. |
Our History
Our business dates back to 1991 when Mitsubishi Corporation founded Ultra Clean Technology Systems and Service, Inc. Our business was operated as a subsidiary of Mitsubishi until November 2002. It was then acquired by Ultra Clean Holdings, Inc., which we refer to as the Ultra Clean acquisition. Ultra Clean Holdings, Inc. is owned by FP-Ultra Clean LLC (95.2%), a wholly-owned subsidiary of Francisco Partners, L.P., and by some of our key employees (4.8%). After completion of this offering, FP-Ultra Clean, LLC will own approximately 44.4% of our outstanding common stock, assuming no exercise of the underwriters over-allotment option. We conduct our operating activities primarily through Ultra Clean Technology Systems and Service, Inc., our wholly-owned subsidiary.
Our principal executive offices are located at 150 Independence Drive, Menlo Park, California 94025 and our telephone number is (650) 323-4100. We maintain a web site at www.uct.com. The information on our web site is not part of this prospectus.
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THE OFFERING
The common stock outstanding immediately after the offering is based on 10,245,395 shares outstanding as of December 31, 2003, and excludes:
| 1,055,250 shares subject to options outstanding as of December 31, 2003, at a weighted average exercise price of $1.00 per share; | |
| 1,812,177 shares reserved for issuance under our Amended and Restated 2003 Stock Incentive Plan; and | |
| 555,343 shares reserved for issuance under our Employee Stock Purchase Plan. | |
Except as otherwise indicated, all information in this prospectus assumes:
| a one for four reverse stock split that was effected on March 2, 2004; | |
| the redemption of $30.6 million aggregate principal amount of our Series A Senior Notes, plus accrued interest, with a portion of the net proceeds of this offering; and | |
| no exercise of the underwriters over-allotment option. | |
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SUMMARY CONSOLIDATED FINANCIAL INFORMATION
The following table presents our summary consolidated financial information. You should read this information together with the Selected Consolidated Financial Information, our consolidated financial statements and related notes and Managements Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this prospectus. Ultra Clean Holdings, Inc. (Ultra Clean) was incorporated in October 2002 for the purpose of acquiring Ultra Clean Technology Systems and Service, Inc. (Predecessor) from Mitsubishi and did not have any significant operations prior to the Ultra Clean acquisition on November 15, 2002. Summary financial data for the periods prior to the Ultra Clean acquisition on November 15, 2002 are derived from the financial statements of Predecessor. The following financial information may not be indicative of our future performance.
Predecessor | ||||||||||||||||||||||||||
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Jan. 1, | Nov. 16, | |||||||||||||||||||||||||
2002 | 2002 | |||||||||||||||||||||||||
Years Ended December 31, | through | through | Year Ended | |||||||||||||||||||||||
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Nov. 15, | Dec. 31, | Dec. 31, | |||||||||||||||||||||||
1999 | 2000 | 2001 | 2002 | 2002 | 2003 | |||||||||||||||||||||
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(amounts in thousands, except per share amounts) | ||||||||||||||||||||||||||
Consolidated Statements of Operations
Data:
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Sales
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$ | 39,574 | $ | 83,001 | $ | 76,486 | $ | 76,338 | $ | 7,916 | $ | 77,520 | ||||||||||||||
Cost of goods sold
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32,878 | 68,242 | 66,129 | 66,986 | 7,972 | 67,313 | ||||||||||||||||||||
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Gross profit (loss)
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6,696 | 14,759 | 10,357 | 9,352 | (56 | ) | 10,207 | |||||||||||||||||||
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Operating expenses
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Research and development
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399 | 518 | 613 | 634 | 99 | 1,155 | ||||||||||||||||||||
Sales and marketing
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1,054 | 1,241 | 1,302 | 1,586 | 332 | 2,276 | ||||||||||||||||||||
General and administrative
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2,600 | 3,746 | 3,127 | 6,626 | 962 | 4,978 | ||||||||||||||||||||
In-process research and development
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Total operating expenses
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4,053 | 5,505 | 5,042 | 8,846 | 2,282 | 8,409 | ||||||||||||||||||||
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Income (loss) from operations
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2,643 | 9,254 | 5,315 | 506 | (2,338 | ) | 1,798 | |||||||||||||||||||
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Other income (expense)
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Interest expense, net
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(708 | ) | (687 | ) | (436 | ) | (170 | ) | (182 | ) | (1,458 | ) | ||||||||||||||
Other income (expense), net
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Total other expense
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(708 | ) | (687 | ) | (440 | ) | (176 | ) | (178 | ) | (1,458 | ) | ||||||||||||||
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Income (loss) before income taxes
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1,935 | 8,567 | 4,875 | 330 | (2,516 | ) | 340 | |||||||||||||||||||
Income tax (provision) benefit
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(172 | ) | 136 | (1,981 | ) | (642 | ) | 667 | (232 | ) | ||||||||||||||||
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Net income (loss)
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$ | 1,763 | $ | 8,703 | $ | 2,894 | $ | (312 | ) | $ | (1,849 | ) | $ | 108 | ||||||||||||
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Net income (loss) per share
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Basic
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$ | 0.48 | $ | 2.36 | $ | 0.79 | $ | (0.08 | ) | $ | (0.21 | ) | $ | 0.01 | ||||||||||||
Diluted
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$ | 0.40 | $ | 1.95 | $ | 0.64 | $ | (0.08 | ) | $ | (0.21 | ) | $ | 0.01 | ||||||||||||
Shares used in computing net income
(loss) per share:
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Basic
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3,680 | 3,680 | 3,680 | 3,680 | 8,668 | 9,976 | ||||||||||||||||||||
Diluted
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4,421 | 4,467 | 4,535 | 3,680 | 8,668 | 10,711 |
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December 31, 2003 | ||||||||
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Actual | As Adjusted | |||||||
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(unaudited) | ||||||||
(amounts in thousands) | ||||||||
Consolidated Balance Sheet Data:
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Cash
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$ | 6,035 | $ | 42,870 | ||||
Working capital
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17,519 | 54,354 | ||||||
Total assets
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50,155 | 86,990 | ||||||
Short- and long-term capital lease and other
obligations
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558 | 558 | ||||||
Debt to related parties
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30,013 | | ||||||
Total stockholders equity
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8,320 | 75,168 |
The preceding table presents a summary of our balance sheet data as of December 31, 2003:
| on an actual basis; and | |
| on an as adjusted basis to give effect to: | |
| the sale by us of 7,000,000 shares of common stock in this offering at an assumed initial public offering price of $11.00 per share, after deducting the underwriting discount and estimated offering expenses payable by us, including a $2.0 million advisory fee payable to Francisco Partners; and | |
| the redemption of $30.6 million aggregate principal amount of our Series A Senior Notes, plus accrued interest, with a portion of the net proceeds of this offering. | |
See note 1 of our consolidated financial statements for an explanation of the determination of the number of shares used in computing per share data.
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RISK FACTORS
You should carefully consider the risks and uncertainties described below before making an investment decision. If any of the events or circumstances described below actually occur, our business, financial condition and results of operations could suffer, the trading price of our common stock could decline and you may lose part or all of your investment.
Risks Related to Our Business
The highly cyclical nature of the semiconductor industry and general economic slowdowns could harm our operating results.
Our business and operating results depend in significant part upon capital expenditures by manufacturers of semiconductors, which in turn depend upon the current and anticipated market demand for semiconductors. Historically, the semiconductor industry has been highly cyclical, with recurring periods of over-supply of semiconductor products that have had a severe negative effect on the demand for capital equipment used to manufacture semiconductors. During these periods, we have experienced significant fluctuations in customer orders for our products. Our sales were $76.5 million in 2001, $84.3 million in 2002 and $77.5 million in 2003. Historically, semiconductor industry slowdowns have had, and future slowdowns may have, a material adverse effect on our operating results.
In addition, the uncertainty regarding the growth rate of economies throughout the world has caused companies to reduce capital investment and may cause further reduction of such investments. These reductions have been particularly severe in the semiconductor capital equipment industry. A potential rebound in the worldwide economy in the near future will not necessarily mean that our business will experience similar effects. Moreover, if the worldwide economy does not rebound in the near future, our business may be further harmed.
Our quarterly revenue and operating results fluctuate significantly from period to period and this may cause volatility in our common stock price.
Our quarterly revenue and operating results have fluctuated significantly in the past and we expect them to continue to fluctuate in the future for a variety of reasons, including:
| demand for and market acceptance of our products as a result of the cyclical nature of the semiconductor industry or otherwise, often resulting in reduced sales during industry downturns and increased sales during periods of industry recovery; | |
| changes in the timing and size of orders by our customers; | |
| cancellations of previously placed orders; | |
| pricing pressure from either our competitors or our customers, resulting in the reduction of our product prices; | |
| disruptions or delays in the manufacturing of our products or in the supply of components or raw materials that we incorporate into or use to manufacture our products, thereby causing us to delay the shipment of our products; | |
| changes in design-to-delivery cycle times; | |
| our inability to quickly reduce our costs in response to decreased demand for our products, as our costs are relatively fixed in the short-term; | |
| changes in our mix of products sold; | |
| write-offs of excess or obsolete inventory; and | |
| announcements by our competitors of new products, services or technological innovations, which may, among other things, render our products less competitive. |
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As a result of the foregoing, we believe that quarter-to-quarter comparisons of our revenue and operating results may not be meaningful, and that these comparisons may not be an accurate indicator of our future performance. Changes in the timing or terms of a small number of transactions could disproportionately affect our operating results in any particular quarter. Moreover, our operating results in one or more future quarters may fail to meet the expectations of securities analysts or investors. If this occurs, we would expect to experience an immediate and significant decline in the trading price of our common stock.
We rely on a small number of customers for a significant portion of our sales, and any impairment of our relationships with these customers would adversely affect our business.
A relatively small number of OEM customers have historically accounted for a significant portion of our sales, and we expect this trend to continue. Applied Materials, Inc. and Novellus Systems, Inc. together accounted for 91% of our sales in 2001. Applied Materials, Inc., Novellus Systems, Inc. and Lam Research Corporation as a group accounted for 98% of our sales in 2002 and 92% of our sales in 2003. Because of the small number of OEMs in our industry, most of whom are already our customers, it would be difficult to replace lost revenue resulting from the loss of, or the reduction, cancellation or delay in purchase orders by, any one of these customers. Consolidation among our customers may further concentrate our business in a limited number of customers and expose us to increased risks relating to dependence on a small number of customers. In addition, any significant pricing pressure exerted by a key customer could adversely effect our operating results.
We have had to qualify, and are required to maintain our status, as a supplier for each of our customers. This is a lengthy process that involves the inspection and approval by a customer of our engineering, documentation, manufacturing and quality control procedures before that customer will place volume orders. Attempts to lessen the adverse effect of any loss of or reduction in sales to an existing customer through the rapid addition of one or more new customers would be difficult because of these qualification requirements. Consequently, our business, operating results and financial condition would be adversely affected by the loss of, or any reduction in orders by, any of our significant customers.
Because we are subject to order and shipment uncertainties, any significant reductions, cancellations or delays in customer orders could cause our revenue to decline and our operating results to suffer.
Our revenue is difficult to forecast because we generally do not have a material backlog of unfilled orders and because of the short time frame within which we are often required to design, produce and deliver products to our customers. Most of our revenue in any quarter depends on customer orders for our products that we receive and fulfill in the same quarter. We do not have long-term purchase orders or contracts that contain minimum purchase commitments from our customers. Instead, we receive non-binding forecasts of the future volume of orders from our customers. At times, we order and build component inventory in advance of the receipt of actual customer orders. Customers may cancel order forecasts, change production quantities from forecasted volumes or delay production for reasons beyond our control. Furthermore, reductions, cancellations or delays in customer order forecasts occur without penalty to or compensation from the customer. Reductions, cancellations or delays in forecasted orders could cause us to hold inventory for longer than anticipated, which could reduce our gross profit, restrict our ability to fund our operations and cause us to incur unanticipated reductions or delays in revenue. If we do not obtain orders as we anticipate, we could have excess component inventory for a specific product that we would not be able to sell to another customer, likely resulting in inventory write-offs, which could have a material adverse affect on our business, financial condition and operating results. In addition, because many of our costs are fixed in the short-term, we could experience deterioration in our gross profit when our production volumes decline.
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The manufacturing of our products is highly complex, and if we are not able to effectively manage our manufacturing and procurement process, our business and operating results would suffer.
The manufacturing of our products is a highly complex process that involves the integration of multiple components and requires effective management of our supply chain while meeting our customers design-to-delivery cycle time requirements. Through the course of the manufacturing process, our customers may modify design and system configurations in response to changes in their own customers requirements. In order to rapidly respond to these modifications and deliver our products to our customers in a timely manner, we must effectively manage our manufacturing and procurement process. If we fail to effectively manage this process, we risk losing customers and damaging our reputation which could limit our growth and have a material adverse affect on our business, financial condition and operating results.
OEMs may not continue to outsource subsystem manufacturing for their capital equipment which could adversely impact our operating results.
The success of our business depends on OEMs continuing to outsource the manufacturing of gas delivery systems for their semiconductor capital equipment. Most of the largest OEMs have already outsourced a significant portion of their gas delivery systems. If OEMs do not continue to outsource gas delivery systems for their capital equipment, our revenue would be reduced, which could have a material adverse affect on our business, financial condition and operating results. In addition, if we are unable to obtain additional business as OEMs outsource their production of gas delivery systems, our business, financial condition and operating results could be adversely affected.
We may experience a variety of difficulties and incur a variety of costs as a result of acquisitions of companies or technologies, and the anticipated benefits of any such acquisitions may never be realized.
We may make acquisitions of, or significant investments in, complementary companies or technologies, although no acquisitions or investments are currently pending. Any future acquisitions would be accompanied by risks such as:
| difficulties in assimilating the operations and personnel of acquired companies; | |
| difficulties in integrating information systems of acquired companies; | |
| diversion of our managements attention from ongoing business concerns; | |
| our potential inability to maximize our financial and strategic position through the successful incorporation of acquired technology into our products; | |
| additional expense associated with amortization of depreciation of acquired assets; | |
| maintenance of uniform standards, controls, procedures and policies; | |
| impairment of existing relationships with employees, suppliers and customers as a result of the integration of new personnel; | |
| dilution to our stockholders in the event we issue stock as consideration to finance an acquisition; and | |
| increased leverage if we incur debt to finance an acquisition. |
We may not be able to successfully integrate any business, products, technologies or personnel that we might acquire in the future, and our failure to do so could have a material adverse affect on our business, financial condition and operating results.
If we do not keep pace with developments in the semiconductor industry, and with technological innovation generally, our products may not be competitive.
Rapid technological innovation in semiconductor manufacturing processes requires the semiconductor capital equipment industry to anticipate and respond quickly to evolving customer requirements and could
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The timely development of new or enhanced products is a complex and uncertain process which requires that we:
| design innovative and performance-enhancing features that differentiate our products from those of our competitors; | |
| identify emerging technological trends in the semiconductor industry, including new standards for our products; | |
| accurately identify and design new products to meet market needs; | |
| collaborate with OEMs to design and develop products on a timely and cost-effective basis; | |
| successfully manage development production cycles; and | |
| respond effectively to technological changes or product announcements by others. |
The industry in which we participate is highly competitive and rapidly evolving, and if we are unable to compete effectively, our operating results would be harmed.
Our industry is highly competitive and rapidly evolving. Our competitors are primarily companies that design and manufacture gas delivery systems for semiconductor capital equipment. Although we have not faced competition in the past from the largest subsystem and component manufacturers in the semiconductor capital equipment industry, these suppliers could compete with us in the future. Increased competition has in the past resulted, and could in the future result, in price reductions, reduced gross margins or loss of market share, any of which would harm our operating results. We are currently experiencing pricing pressure as we attempt to increase market share with our existing customers. Competitors may introduce new products for the markets currently served by our products. These products may have better performance, lower prices and achieve broader market acceptance than our products. Further, OEMs typically own the design rights to their products and may provide these designs to subsystem manufacturers. If our competitors obtain proprietary rights to these designs such that we are unable to obtain the designs necessary to manufacture products for our OEM customers, our business, financial condition and operating results could be adversely affected.
Our competitors may have greater financial, technical, manufacturing and marketing resources than we do. As a result, they may be able to respond more quickly to new or emerging technologies and changes in customer requirements, devote greater resources to the development, promotion, sale and support of their products, and reduce prices to increase market share. Moreover, there may be merger and acquisition activity among our competitors and potential competitors that may provide our competitors and potential competitors with an advantage over us by enabling them to expand their product offerings and service capabilities to meet a broader range of customer needs. Further, if one of our customers develops or acquires the internal capability to develop and produce gas delivery systems, the loss of that customer could have a material adverse affect on our business, financial condition and operating results. The introduction of new technologies and new market entrants may also increase competitive pressures.
10
We must achieve design wins to retain our existing customers and to obtain new customers.
New semiconductor capital equipment typically has a lifespan of several years, and OEMs frequently specify which systems, subassemblies, components and instruments are to be used in their equipment. Once a specific system, subassembly, component or instrument is incorporated into a piece of semiconductor capital equipment, it will likely continue to be incorporated into that piece of equipment for a period of at least several months before the OEM uses the product of another supplier. Accordingly, it is important that our products are designed into the new semiconductor capital equipment of OEMs, which we refer to as a design win, in order to retain our competitive position with existing customers and to obtain new customers.
We incur technology development and sales expenses with no assurance that our products will ultimately be designed into an OEMs semiconductor capital equipment. Further, developing new customer relationships, as well as increasing our market share at existing customers, requires a substantial investment of our sales, engineering and management resources without any assurance from prospective customers that they will place significant orders. We believe that OEMs often select their suppliers and place orders based on long-term relationships. Accordingly, we may have difficulty achieving design wins from OEMs that are not currently our customers. Our operating results and potential growth could be adversely affected if we fail to achieve design wins with leading OEMs.
We have experienced significant growth in our business in recent periods, and we may not be able to manage our future growth successfully.
Our ability to successfully execute our business plan in a rapidly evolving market requires an effective planning and management process. We have increased, and plan to continue to increase, the scope of our operations. Due to the cyclical nature of the semiconductor industry, however, future growth is difficult to predict. Future expansion efforts could be expensive and may strain our managerial and other resources. To manage future growth effectively, we must maintain and enhance our financial and operating systems and controls and manage expanded operations. The number of people we employ has grown and we expect this number to continue to grow in the near term. As of December 31, 2001 we had 130 employees, as of December 31, 2003 we had 229 employees, and as of February 23, 2004 we had 288 employees. The addition and training of new employees may lead to short-term quality control problems and place increased demands on our management and experienced personnel. If we do not manage growth properly, our business, operating results and financial condition would be adversely affected.
We will incur increased costs as a result of being a public company.
We will face increased legal, accounting, administrative and other costs and expenses as a public company that we did not incur as a private company. The Sarbanes-Oxley Act of 2002, as well as new rules subsequently implemented by the Securities and Exchange Commission, the Public Company Accounting Oversight Board and The Nasdaq National Market, have required changes in the corporate governance practices of public companies. We expect these new rules and regulations to increase our legal and financial compliance costs and to make legal, accounting and administrative activities more time-consuming and costly. For example, as a result of becoming a public company, we plan to add two additional independent directors, create additional committees of our board of directors and adopt policies regarding internal controls and disclosure controls and procedures. We also expect to incur substantially higher costs to obtain directors and officers insurance. We cannot estimate the amount of additional costs we may incur or the timing of such costs.
We may not be able to respond quickly enough to increases in demand for our products.
Demand shifts in the semiconductor industry are rapid and difficult to predict, and we may not be able to respond quickly enough to an increase in demand. Our ability to increase sales of our products depends, in part, upon our ability to:
| mobilize our supply chain in order to maintain component and raw material supply; |
11
| optimize the use of our design, engineering and manufacturing capacity in a timely manner; | |
| deliver our products to our customers in a timely fashion; | |
| expand, if necessary, our manufacturing capacity; and | |
| maintain our product quality as we increase production. |
If we are unable to respond to rapid increases in demand for our products on a timely basis or to manage any corresponding expansion of our manufacturing capacity effectively, our customers could increase their purchases from our competitors, which would adversely affect our business.
Our dependence on our suppliers may prevent us from delivering an acceptable product on a timely basis.
We rely on both single source and sole source suppliers, some of whom are relatively small in size, for many of the components we use in our products. In addition, our customers often specify components made by particular suppliers that we must incorporate into their products. Our suppliers are under no obligation to provide us with components. As a result, the loss of or failure to perform by any of these providers could adversely affect our business and operating results. In addition, the manufacturing of certain components and subassemblies is an extremely complex process. Therefore, if a supplier was unable to provide the volume of components we require on a timely basis and at acceptable prices, we would have to identify and qualify replacements from alternative sources of supply. The process of qualifying new suppliers for these complex components is lengthy and could delay our production and adversely affect our business, operating results and financial condition. We may also experience difficulty in obtaining sufficient supply of components and raw materials in times of significant growth in our business. For example, we have recently experienced shortages in supplies of various components, such as mass flow controllers, valves and regulators, and certain prefabricated parts, such as sheet metal enclosures, used in the manufacture of our products. In addition, one of our competitors manufactures mass flow controllers that may be specified by one or more of our customers. If we are unable to obtain these particular mass flow controllers from our competitor or convince a customer to select alternative mass flow controllers, we may be unable to meet that customers requirements.
The technology labor market is very competitive, and our business will suffer if we are unable to hire and retain key personnel.
Our future success depends in part on the continued service of our key executive officers, as well as our research, engineering, sales, manufacturing and administrative personnel, most of whom are not subject to employment or non-competition agreements. In addition, competition for qualified personnel in the technology industry is intense, and we operate in geographic locations in which labor markets are particularly competitive. Our business is particularly dependent on expertise which only a very limited number of engineers possess. The loss of any of our key employees, including Clarence L. Granger, our Chief Executive Officer, Bruce Wier, our Vice President of Engineering, Deborah Hayward, our Vice President of Sales, and Sowmya Krishnan, our Vice President of Technology, or the failure to attract and retain new qualified employees, would adversely affect our business, operating results and financial condition.
Defects in our products could damage our reputation, decrease market acceptance of our products, cause the unintended release of hazardous materials and result in potentially costly litigation.
A number of factors, including design flaws, material and component failures, contamination in the manufacturing environment, impurities in the materials used and unknown sensitivities to process conditions, such as temperature and humidity, as well as equipment failures, may cause our products to contain undetected errors or defects. Problems with our products may:
| cause delays in product introductions and shipments; | |
| result in increased costs and diversion of development resources; |
12
| cause us to incur increased charges due to unusable inventory; | |
| require design modifications; | |
| decrease market acceptance of, or customer satisfaction with, our products, which could result in decreased sales and product returns; or | |
| result in lower yields for semiconductor manufacturers. |
If any of our products contain defects or have reliability, quality or compatibility problems, our reputation might be damaged and customers might be reluctant to buy our products. We may also face a higher rate of product defects as we increase our production levels. Product defects could result in the loss of, or impair our ability to attract, customers. In addition, we may not find defects or failures in our products until after they are installed in a semiconductor manufacturers fabrication facility. We may have to invest significant capital and other resources to correct these problems. Our current or potential customers also might seek to recover from us any losses resulting from defects or failures in our products. Hazardous materials flow through and are controlled by our products and an unintended release of these materials could result in serious injury or death. Liability claims could require us to spend significant time and money in litigation or pay significant damages.
Our business is largely dependent on the know-how of our employees, and we generally do not have a protected intellectual property position.
Our business is largely dependent upon our design, engineering, manufacturing and testing know-how. We rely on a combination of trade secrets and contractual confidentiality provisions, and to a much lesser extent, patents, copyrights and trademarks, to protect our proprietary rights. Accordingly, our intellectual property position is more vulnerable than it otherwise would be if it were protected by issued patents. If we fail to successfully protect our proprietary rights, our competitive position could suffer, which could harm our operating results. We may be required to spend significant resources to monitor and protect our proprietary rights. In addition, we may not be able to detect infringement of our proprietary rights and may lose our competitive position in the market if any such infringement occurs. In addition, competitors may design around our technology or develop competing technologies and know-how.
Third parties may claim we are infringing their intellectual property which could subject us to litigation or licensing expenses, and we may be prevented from selling our products if any such claims prove successful.
While we are not aware of any claims by third parties that we are infringing their intellectual property rights, we may be subject to such claims in the future. In addition, we may be unaware of intellectual property rights of others that may be applicable to our products. Any litigation regarding patents or other intellectual property could be costly and time-consuming and divert our management and key personnel from our business operations. The complexity of the technology involved in our products and the uncertainty of intellectual property litigation increase these risks. Claims of intellectual property infringement may also require us to enter into costly license agreements. However, we may not be able to obtain licenses on terms acceptable to us, or at all. We also may be subject to significant damages or injunctions against the development and sale of certain of our products if any such claims prove successful.
Our historical financial information may not be representative of our results as a stand-alone entity.
From 1991 through 2002, we operated as a subsidiary of Mitsubishi Corporation. During that period, Mitsubishi provided us with financing. Accordingly, the historical financial information included in this prospectus does not necessarily reflect what our financial position, operating results and cash flows will be in the future or what they would have been had we been a separate, stand-alone entity during the periods in which we were owned by Mitsubishi. Furthermore, as a stand-alone entity, we will need to obtain any required funding from third parties.
13
We may not be able to fund our future capital requirements from our operations, and financing from other sources may not be available on favorable terms or at all.
We made capital expenditures of $0.6 million in 2001, $1.8 million in 2002 and $0.5 million in 2003. The amount of our future capital requirements will depend on many factors, including:
| the cost required to ensure access to adequate manufacturing capacity; | |
| the timing and extent of spending to support product development efforts; | |
| the timing of introductions of new products and enhancements to existing products; | |
| changing manufacturing capabilities to meet new customer requirements; and | |
| market acceptance of our products. |
To the extent that existing cash, together with any cash from operations, are insufficient to fund our future activities, we may need to raise additional funds through public or private equity or debt financing. Future equity financings could be dilutive to holders of our common stock, and debt financings could involve covenants that restrict our business operations. If we cannot raise funds on acceptable terms, if and when needed, we may not be able to develop or enhance our products, take advantage of future opportunities, grow our business or respond to competitive pressures or unanticipated requirements, any of which could adversely affect our business, operating results and financial condition.
If environmental contamination were to occur in one of our manufacturing facilities, we could be subject to substantial liabilities.
We use substances regulated under various federal, state and local environmental laws in our manufacturing facilities. Our failure or inability to comply with existing or future environmental laws could result in significant remediation liabilities, the imposition of fines or the suspension or termination of the production of our products. In addition, we may not be aware of all environmental laws or regulations that could subject us to liability.
If our facilities were to experience catastrophic loss due to natural disasters, our operations would be seriously harmed.
Our facilities could be subject to a catastrophic loss caused by natural disasters, including fires and earthquakes. We have facilities in areas with above average seismic activity, such as our manufacturing and headquarters facilities in Menlo Park, California. If any of our facilities were to experience a catastrophic loss, it could disrupt our operations, delay production and shipments, reduce revenue and result in large expenses to repair or replace the facility. In addition, we have in the past experienced, and may in the future experience, extended power outages at our Menlo Park, California facilities. We do not carry insurance policies which cover potential losses caused by earthquakes or other natural disasters or power loss.
Threatened or actual terrorist attacks may negatively impact our business and cause our stock price to decline.
Future threatened or actual terrorist attacks against United States targets or military or trade disruptions impacting our component suppliers may cause delays or loss of customer orders. More generally, any of these events could cause consumer confidence and spending to decrease or result in increased volatility in United States and worldwide financial markets. These events could also result in further economic recession in the United States or abroad. Any of these occurrences would have an adverse impact on our business, operating results and financial condition.
14
Risks Related to Our Ownership by Francisco Partners
We will be controlled by FP-Ultra Clean, LLC as long as it owns a significant percentage of our common stock, and our other stockholders will be unable to affect the outcome of stockholder voting during such time.
After the completion of this offering, Francisco Partners, through its membership interests in FP-Ultra Clean, LLC, will beneficially own approximately 44.4% of our outstanding common stock, or approximately 36.4% if the underwriters exercise in full their over-allotment option to purchase additional shares. Pursuant to a stockholders agreement, our principal stockholder, FP-Ultra Clean, LLC, which is controlled by Francisco Partners, has the right, to nominate for election a majority of the members of our board of directors for so long as it holds at least 25% of our outstanding common stock.
The stockholders agreement also provides that our board of directors may not take certain significant actions without the approval of FP-Ultra Clean, LLC as long as it owns at least 25% of our outstanding common stock. These actions include:
| mergers, acquisitions or certain sales of assets; | |
| any liquidation, dissolution or bankruptcy; | |
| issuances of securities; | |
| determination of compensation and benefits for our chief executive officer and chief financial officer; | |
| appointment or dismissal of any of the chairman of our board of directors, chief executive officer, chief financial officer or any other executive officer in any similar capacity; | |
| amendments to the stockholders agreement or exercise or waiver of rights under the stockholders agreement; | |
| amendments to our charter or bylaws; | |
| any increase or decrease in the number of directors that comprise our board of directors; | |
| the declaration of dividends or other distributions; | |
| any incurrence or refinancing of indebtedness in excess of $10 million; | |
| approval of our business plan, budget and strategy; and | |
| modification of our long-term business strategy. | |
Such power could have the effect of delaying, deterring or preventing a change of control, business combination or other transaction that might otherwise be beneficial to our stockholders. FP-Ultra Clean, LLC also is not prohibited from selling a controlling interest in us to a third party or a participant in our industry. For additional information regarding our relationship with FP-Ultra Clean, LLC, you should read the section of this prospectus entitled Certain Relationships and Related Party Transactions.
FP-Ultra Clean, LLC and its designees on our board of directors may have interests that conflict with our interests and the interests of our other stockholders.
FP-Ultra Clean, LLC and its designees on our board of directors may have interests that conflict with, or are different from, our own and those of our other stockholders. Francisco Partners, which will be the beneficial holder of 44.4% of our outstanding common stock after completion of this offering, assuming no exercise of the underwriters over-allotment option, through its membership interests in FP-Ultra Clean, LLC, has invested in or acquired other businesses that are involved in the semiconductor industry and may invest in or acquire others in the future. Conflicts of interest between FP-Ultra Clean, LLC and us or our other stockholders may arise. Our amended and restated certificate of incorporation to be effective upon the completion of this offering does not contain any provisions designed to facilitate resolution of actual or
15
Risks Related to the Securities Markets and Ownership of Our Common Stock
Future sales of our common stock by existing stockholders could depress our stock price.
Sales of substantial amounts of our common stock by FP-Ultra Clean, LLC, or the perception that these sales might occur, may depress prevailing market prices of our common stock. All of our outstanding shares are subject to lock-up agreements with the underwriters as described in Underwriting that prohibit the resale of these shares for 180 days from the date of this prospectus, although the underwriters may release all or a portion of the shares subject to lock-up agreements at any time without notice. The shares owned by FP-Ultra Clean, LLC have the benefit of an agreement with us that provides for customary demand and piggyback registration rights. Upon expiration of the 180-day lock-up period, in addition to the shares owned by FP-Ultra Clean, LLC that may be sold under a registration statement, shares underlying exercisable options to purchase our common stock will be available for resale without restriction or further registration under the Securities Act.
Our securities have no prior trading history, and we cannot assure you that our stock price will not decline after the offering.
Prior to this offering, there was no public market for our common stock, and an active public market for our common stock may not develop or be sustained after this offering. The market price of our common stock could be subject to significant fluctuations after this offering. Among the factors that could affect our stock price are:
| quarterly variations in our operating results; | |
| our ability to successfully introduce new products and manage new product transitions; | |
| changes in revenue or earnings estimates or publication of research reports by analysts; | |
| speculation in the press or investment community; | |
| strategic actions by us or our competitors, such as acquisitions or restructurings; | |
| announcements relating to any of our key customers, significant suppliers or the semiconductor manufacturing and capital equipment industry generally; | |
| general market conditions; and | |
| domestic and international economic factors unrelated to our performance. |
The stock markets in general, and the markets for technology stocks in particular, have experienced extreme volatility that has often been unrelated to the operating performance of particular companies. These broad market fluctuations may adversely affect the trading price of our common stock. In particular, we cannot assure you that you will be able to resell your shares at or above the initial public offering price, which will be determined by negotiations between the representatives of the underwriters and us.
16
We have broad discretion in how we use a portion of the net proceeds of this offering, and we may not use these proceeds in a manner desired by our stockholders.
We do not currently have a specific plan with respect to the use of a significant portion of the net proceeds of this offering and have not committed these proceeds to any particular purpose. After deducting the underwriting discount and estimated offering expenses, including a $2.0 million advisory fee payable to Francisco Partners, we expect to use the net proceeds to redeem $29.3 million of our Series A Senior Notes held by FP-Ultra Clean LLC and $1.3 million of our Series A Senior Notes held by some of our key employees, plus accrued interest. We plan to use the balance of the net proceeds of this offering primarily for working capital and general corporate purposes. We may also use a portion of the net proceeds to acquire complementary businesses or technologies, although we have no current agreements or commitments with respect to any specific acquisition. Our management will have broad discretion with respect to the use of the net proceeds and investors will be relying on the judgment of our management regarding the application of these proceeds. Our management could spend these proceeds in ways which our stockholders may not desire or that do not yield a favorable return. You will not have the opportunity, as part of your investment in our common stock, to influence the manner in which the net proceeds of this offering are used.
Provisions of our charter documents could discourage potential acquisition proposals and could delay, deter or prevent a change in control.
In addition to the provisions of our stockholders agreement with FP-Ultra Clean, LLC described above, the provisions of our amended and restated certificate of incorporation and by-laws to be effective on the completion of this offering could deter, delay or prevent a third party from acquiring us, even if doing so would benefit our stockholders. These provisions include:
| a requirement that special meetings of stockholders may be called only by our board of directors, the chairman of our board of directors, our president or our secretary; | |
| advance notice requirements for stockholder proposals and director nominations; and | |
| the authority of our board of directors to issue, without stockholder approval, preferred stock with such terms as our board of directors board may determine. |
You will incur immediate and substantial dilution.
The initial public offering price is substantially higher than the net book value per share of our outstanding common stock. As a result, if you purchase shares in this offering, you will incur immediate and substantial dilution, which would have been $7.55 per share as of December 31, 2003. In addition, as of December 31, 2003 we had options outstanding to acquire 1,055,250 shares of common stock with a weighted average exercise price of $1.00 per share. To the extent these options are exercised, you will incur further dilution. See Dilution for a more complete description of the dilution that you will incur.
17
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements which reflect our current views with respect to future events and financial performance. In this prospectus, we use words such as anticipates, believes, plans, expects, future, intends, may, will, should, estimates, predicts, potential, continue and similar expressions to identify these forward-looking statements. This prospectus also contains forward-looking statements attributed to third parties relating to their estimates regarding the growth of our markets. All forward-looking statements address matters that involve risks and uncertainties. Accordingly, you should not rely on forward-looking statements in this prospectus, as there are or will be important factors that could cause our actual results, as well as those of the markets we serve, levels of activity, performance, achievements and prospects to differ materially from the results predicted or implied by these forward-looking statements. These risks, uncertainties and other factors include, among others, those identified in Risk Factors, Managements Discussion and Analysis of Financial Condition and Results of Operations and elsewhere in this prospectus. We undertake no obligation to publicly update or review any forward-looking statements, whether as a result of new information, future developments or otherwise.
18
USE OF PROCEEDS
We estimate that our net proceeds from this offering, after deducting the underwriting discount and estimated offering expenses, including a $2.0 million advisory fee payable to Francisco Partners, will be approximately $67.8 million, based on an assumed initial public offering price of $11.00 per share. We expect to use the net proceeds to redeem $29.3 million of our Series A Senior Notes held by FP-Ultra Clean, LLC and $1.3 million of our Series A Senior Notes held by some of our key employees, plus accrued interest. Our Series A Senior Notes bear interest at a rate of 5% per annum and mature on November 15, 2009. We intend to use the remainder of the net proceeds for working capital and general corporate purposes. We may also use a portion of the net proceeds to acquire complementary businesses or technologies, although we have no current agreements or commitments with respect to any specific acquisition. We will have discretion in the use of a significant portion of the net proceeds we receive from this offering. Investors will be relying on the judgment of our management regarding the application of those net proceeds. In addition, any investments, capital expenditures, cash acquisitions or other application of our proceeds may not produce the anticipated results. Pending use of these proceeds as discussed above, we intend to invest these funds in short-term, interest-bearing investment-grade obligations. We will not receive any proceeds from the sale of shares by the selling stockholder or any exercise of the underwriters over-allotment option.
DIVIDEND POLICY
We have not paid any cash dividends on our common stock since the Ultra Clean acquisition. We intend to retain any future earnings to fund the development and growth of our business and do not anticipate paying any cash dividends in the foreseeable future. Any determination to pay dividends in the future will be at the discretion of our board of directors and, under the terms of our stockholders agreement, will require the approval of FP-Ultra Clean, LLC for as long as it holds at least 25% of our common stock. In addition, our revolving credit facility prohibits us from paying cash dividends on our common stock.
19
CAPITALIZATION
The following table sets forth our long-term debt and capitalization as of December 31, 2003.
Our capitalization is presented:
| on an actual basis; and | |
| on an as adjusted basis to reflect: |
| the sale by us of 7,000,000 shares of common stock in this offering at an assumed initial public offering price of $11.00 per share; | |
| the application of the net proceeds from the sale of the shares of common stock by us in this offering, after deducting the underwriting discount and estimated offering expenses, including a $2.0 million advisory fee payable to Francisco Partners, to redeem $29.3 million of our Series A Senior Notes held by FP-Ultra Clean, LLC and $1.3 million of our Series A Senior Notes held by some of our key employees, plus accrued interest, as described in Use of Proceeds; and | |
| the one for four reverse stock split that was effected on March 2, 2004. | |
You should read the information set forth below together with the Selected Consolidated Financial Information, our consolidated financial statements and the related notes and Managements Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this prospectus.
December 31, 2003 | |||||||||||
|
|||||||||||
Actual | As Adjusted | ||||||||||
|
|
||||||||||
(unaudited) | |||||||||||
(in thousands, except | |||||||||||
share and per share data) | |||||||||||
Long-term debt:
|
|||||||||||
5% Series A Senior Notes due 2009
|
$ | 30,013 | $ | | |||||||
Stockholders equity:
|
|||||||||||
Preferred stock, par value $0.001 per share,
10,000,000 shares authorized, actual; 10,000,000 shares
authorized, no shares issued and outstanding, as adjusted
|
| | |||||||||
Common stock, par value $0.001 per share,
90,000,000 shares authorized, 10,245,395 shares issued
and outstanding, actual; 90,000,000 shares authorized,
17,245,395 shares issued and outstanding, as adjusted
|
10,377 | 78,187 | |||||||||
Deferred stock-based compensation
|
(316 | ) | (316 | ) | |||||||
Accumulated deficit
|
(1,741 | ) | (2,703 | ) | |||||||
|
|
||||||||||
Total stockholders equity
|
8,320 | 75,168 | |||||||||
|
|
||||||||||
Total capitalization
|
$ | 38,333 | $ | 75,168 | |||||||
|
|
The number of shares of common stock outstanding after this offering excludes 1,055,250 shares subject to options outstanding as of December 31, 2003 at a weighted average exercise price of $1.00 per share, 1,812,177 shares reserved for issuance under our Amended and Restated 2003 Stock Incentive Plan and 555,343 shares reserved for issuance under our Employee Stock Purchase Plan.
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DILUTION
If you invest in our common stock in this offering, your ownership interest will be diluted to the extent of the difference between the amount you pay per share for our common stock in this offering and the net tangible book value per share of our common stock immediately after this offering. Net tangible book value per share is determined by dividing our tangible net worth, which is equal to our total tangible assets less total liabilities, by the aggregate number of shares of common stock outstanding. Our net tangible book value as of December 31, 2003 was a deficit of approximately $7,284,000, or $0.71 per share of common stock. After giving effect to the sale by us of 7,000,000 shares of common stock in this offering at an assumed initial public offering price of $11.00 per share and after deducting the underwriting discount and estimated offering expenses, including a $2.0 million advisory fee payable to Francisco Partners, and the receipt and application of a portion of the net proceeds to repurchase our outstanding Series A Senior Notes as described under Use of Proceeds, our net tangible book value at December 31, 2003 would have been $59,564,000, or $3.45 per share. This represents an immediate increase in net tangible book value to existing stockholders of $4.16 per share and an immediate dilution to new investors of $7.55 per share. The following table illustrates this per share dilution:
Assumed initial public offering price
|
$ | 11.00 | |||||||
Net tangible book value (deficit) per share as of
December 31, 2003
|
$ | (0.71 | ) | ||||||
Increase in net tangible book value per share
attributable to new investors
|
4.16 | ||||||||
|
|||||||||
Adjusted net tangible book value per share after
offering
|
3.45 | ||||||||
|
|||||||||
Dilution in net tangible book value per share to
new investors
|
$ | 7.55 | |||||||
|
Assuming the initial public offering had occurred on December 31, 2003, the following tables set forth, as of December 31, 2003, the number of shares of common stock purchased from us, the total consideration paid and the average price per share paid by existing stockholders and by the new investors, at an assumed initial public offering price of $11.00 per share before deducting the underwriting discount and estimated offering expenses payable by us.
Shares Purchased | Total Consideration | Average | ||||||||||||||||||
|
|
Price Per | ||||||||||||||||||
Number | Percent | Amount | Percent | Share | ||||||||||||||||
|
|
|
|
|
||||||||||||||||
Existing stockholders
|
10,245,395 | 59.4 | % | $ | 10,245,395 | 11.7 | % | $ | 1.00 | |||||||||||
New investors
|
7,000,000 | 40.6 | 77,000,000 | 88.3 | 11.00 | |||||||||||||||
|
|
|
|
|||||||||||||||||
Total
|
17,245,395 | 100 | % | $ | 87,245,395 | 100 | % |
Taking into account the sale by the selling stockholder, the number of shares held by existing stockholders would be 8,145,395, or approximately 47.2% of the total shares of common stock outstanding, and the number of shares held by new investors would be 9,100,000, or approximately 52.8% of the total shares of common stock outstanding. The foregoing table includes 201,393 shares of common stock that were subject to our right of repurchase at December 31, 2003, at a weighted average price of $1.00 per share. The foregoing table assumes no exercise of the underwriters over-allotment option or outstanding stock options after December 31, 2003, no issuance of shares reserved under our Amended and Restated 2003 Stock Incentive Plan and no issuance of shares reserved under our Employee Stock Purchase Plan. At December 31, 2003, 1,055,250 shares of common stock were subject to outstanding options, at a weighted average exercise price of $1.00 per share. To the extent these options are exercised, there will be further dilution to new investors as follows:
Shares Purchased | Total Consideration | Average | ||||||||||||||||||
|
|
Price Per | ||||||||||||||||||
Number | Percent | Amount | Percent | Share | ||||||||||||||||
|
|
|
|
|
||||||||||||||||
Existing stockholders
|
10,245,395 | 56.0 | % | $ | 10,245,395 | 11.6 | % | $ | 1.00 | |||||||||||
Shares subject to options
|
1,055,250 | 5.8 | 1,055,250 | 1.2 | 1.00 | |||||||||||||||
New investors
|
7,000,000 | 38.3 | 77,000,000 | 87.2 | 11.00 | |||||||||||||||
|
|
|
|
|||||||||||||||||
Total
|
18,300,645 | 100 | % | $ | 88,300,645 | 100 | % |
If the underwriters over-allotment option is exercised in full, the number of shares held by existing stockholders would be reduced to 6,780,395, or approximately 39.3% of the total shares of common stock outstanding, and the number of shares held by new investors would be 10,465,000, or approximately 60.7% of the total shares of common stock outstanding.
21
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data should be read together with our consolidated financial statements and related notes and Managements Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this prospectus. This financial data includes the accounts of Ultra Clean Technology Systems and Service, Inc. (Predecessor) for the period from January 1, 2002 through November 15, 2002 and for the years ended December 31, 2001, 2000 and 1999 and the accounts of Ultra Clean Holdings, Inc. (Ultra Clean) for the period from November 16, 2002 through December 31, 2002 and for the year ended December 31, 2003. See note 1 of the consolidated financial statements for a description of the Ultra Clean acquisition. The selected consolidated balance sheet data as of December 31, 2002 and 2003 and the selected consolidated statements of operations data for the year ended December 31, 2003, the periods from January 1, 2002 through November 15, 2002 and November 16, 2002 through December 31, 2002 and the year ended December 31, 2001 have been derived from our audited consolidated financial statements which are included elsewhere in this prospectus. The selected consolidated balance sheet data as of December 31, 1999, 2000 and 2001 and the selected consolidated statements of operations data for the years ended December 31, 1999 and 2000 have been derived from our audited consolidated financial statements not included in this prospectus. Historical results are not necessarily indicative of the results to be expected in the future.
22
Predecessor | ||||||||||||||||||||||||||
|
||||||||||||||||||||||||||
Jan. 1, 2002 | Nov. 16, | |||||||||||||||||||||||||
Years Ended Dec. 31, | through | 2002 through | Year Ended | |||||||||||||||||||||||
|
Nov. 15, | Dec. 31, | Dec. 31, | |||||||||||||||||||||||
1999 | 2000 | 2001 | 2002 | 2002 | 2003 | |||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
(amounts in thousands, except per share amounts) | ||||||||||||||||||||||||||
|
||||||||||||||||||||||||||
Consolidated Statements of Operations
Data:
|
||||||||||||||||||||||||||
Sales
|
$ | 39,574 | $ | 83,001 | $ | 76,486 | $ | 76,338 | $ | 7,916 | $ | 77,520 | ||||||||||||||
Cost of goods sold
|
32,878 | 68,242 | 66,129 | 66,986 | 7,972 | 67,313 | ||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Gross profit (loss)
|
6,696 | 14,759 | 10,357 | 9,352 | (56 | ) | 10,207 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Operating expenses:
|
||||||||||||||||||||||||||
Research and development
|
399 | 518 | 613 | 634 | 99 | 1,155 | ||||||||||||||||||||
Sales and marketing
|
1,054 | 1,241 | 1,302 | 1,586 | 332 | 2,276 | ||||||||||||||||||||
General and administrative
|
2,600 | 3,746 | 3,127 | 6,626 | 962 | 4,978 | ||||||||||||||||||||
In-process research and development
|
| | | | 889 | | ||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Total operating expenses
|
4,053 | 5,505 | 5,042 | 8,846 | 2,282 | 8,409 | ||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Income (loss) from operations
|
2,643 | 9,254 | 5,315 | 506 | (2,338 | ) | 1,798 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Other income (expense):
|
||||||||||||||||||||||||||
Interest expense, net
|
(708 | ) | (687 | ) | (436 | ) | (170 | ) | (182 | ) | (1,458 | ) | ||||||||||||||
Other income (expense), net
|
| | (4 | ) | (6 | ) | 4 | | ||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Total other expense
|
(708 | ) | (687 | ) | (440 | ) | (176 | ) | (178 | ) | (1,458 | ) | ||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Income (loss) before income taxes
|
1,935 | 8,567 | 4,875 | 330 | (2,516 | ) | 340 | |||||||||||||||||||
Income tax (provision) benefit
|
(172 | ) | 136 | (1,981 | ) | (642 | ) | 667 | (232 | ) | ||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Net income (loss)
|
$ | 1,763 | $ | 8,703 | $ | 2,894 | $ | (312 | ) | $ | (1,849 | ) | $ | 108 | ||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Net income (loss) per share:
|
||||||||||||||||||||||||||
Basic
|
$ | 0.48 | $ | 2.36 | $ | 0.79 | $ | (0.08 | ) | $ | (0.21 | ) | $ | 0.01 | ||||||||||||
Diluted
|
$ | 0.40 | $ | 1.95 | $ | 0.64 | $ | (0.08 | ) | $ | (0.21 | ) | $ | 0.01 | ||||||||||||
Shares used in computing net income (loss) per
share:
|
||||||||||||||||||||||||||
Basic
|
3,680 | 3,680 | 3,680 | 3,680 | 8,668 | 9,976 | ||||||||||||||||||||
Diluted
|
4,421 | 4,467 | 4,535 | 3,680 | 8,668 | 10,711 |
Predecessor | ||||||||||||||||||||
|
||||||||||||||||||||
Dec. 31, | Dec. 31, | |||||||||||||||||||
|
|
|||||||||||||||||||
1999 | 2000 | 2001 | 2002 | 2003 | ||||||||||||||||
|
|
|
|
|
||||||||||||||||
Consolidated Balance Sheet Data:
|
||||||||||||||||||||
Cash
|
$ | 851 | $ | 3,722 | $ | 760 | $ | 6,237 | $ | 6,035 | ||||||||||
Working capital (deficit)
|
(7,705 | ) | (924 | ) | 2,519 | 16,067 | 17,519 | |||||||||||||
Total assets
|
13,296 | 34,918 | 20,652 | 48,836 | 50,155 | |||||||||||||||
Short-and long-term capital lease and other
obligations
|
260 | 344 | 554 | 662 | 558 | |||||||||||||||
Debt to related parties
|
12,500 | 9,800 | 8,400 | 29,812 | 30,013 | |||||||||||||||
Total stockholders equity (deficit)
|
(2,927 | ) | 5,776 | 8,670 | 8,089 | 8,320 |
23
MANAGEMENTS DISCUSSION AND ANALYSIS OF
The following discussion should be read in conjunction with and is qualified in its entirety by reference to our audited financial statements included elsewhere in this prospectus. Except for the historical information contained herein, the discussions in this section contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those discussed below. See Risk Factors and Forward-Looking Statements for a discussion of these risks and uncertainties.
Overview
General |
We are a developer and supplier of critical subsystems for the semiconductor capital equipment industry, focusing on gas delivery systems. Our gas delivery systems enable the precise delivery of specialty gases used in a majority of the key steps in the semiconductor manufacturing process. Our customers are primarily OEMs of semiconductor capital equipment. These OEMs outsource the manufacturing of their gas delivery systems in order to improve the efficiency and reduce the costs of their design and manufacturing processes. We provide our customers with a full range of services for the development, design, prototyping, engineering, manufacturing and testing of gas delivery systems.
Our business dates back to 1991 when Mitsubishi Corporation founded Ultra Clean Technology Systems and Service, Inc. Our business was operated as a subsidiary of Mitsubishi until November 2002. It was then acquired by Ultra Clean Holdings, Inc., which we refer to as the Ultra Clean acquisition. Ultra Clean Holdings, Inc. is owned by FP-Ultra Clean LLC (95.2%), a wholly-owned subsidiary of Francisco Partners, and by members of our management (4.8%). After completion of this offering, FP-Ultra Clean, LLC will beneficially own approximately 44.4% of our outstanding common stock, assuming no exercise of the underwriters over-allotment option. We conduct our operating activities primarily through Ultra Clean Technology Systems and Service, Inc., our wholly-owned subsidiary.
We have entered into a stockholders agreement with FP-Ultra Clean, LLC which provides that our board of directors may not take certain significant actions without the approval of FP-Ultra Clean, LLC as long as it owns at least 25% of our outstanding common stock, including mergers, acquisitions or sales of assets outside the ordinary course of business, the issuance of securities and the incurrence or refinancing of indebtedness in excess of $10 million. See Certain Relationships and Related Party Transactions Relationship with Francisco Partners Stockholders Agreement.
Cyclical Business |
Our business and operating results depend in significant part upon capital expenditures by manufacturers of semiconductors, which in turn depend upon the current and anticipated market demand for semiconductors. Historically, the semiconductor industry has been highly cyclical, with recurring periods of over-supply of semiconductor products that have had a severe negative effect on the demand for capital equipment used to manufacture semiconductors. During these periods, we have experienced significant fluctuations in customer orders for our products. Our sales were $76.5 million in 2001, $84.3 million in 2002 and $77.5 million in 2003. In periods where supply exceeds demand for semiconductor capital equipment, we generally experience significant reductions in customer orders for our products. Sharp decreases in demand for semiconductor capital equipment may lead our customers to cancel order forecasts, change production quantities from forecasted volumes or delay production, which may negatively impact our gross profit, as we may be unable to quickly reduce costs and may be required to hold inventory longer than anticipated. In periods where demand for semiconductor capital equipment exceeds supply, we generally need to quickly increase our production of gas delivery systems, requiring us to order additional inventory, effectively manage our component supply chain, hire additional employees and expand, if necessary, our manufacturing capacity. If we are unable to respond to rapid increases in demand for our products on a timely basis or to manage any corresponding expansion of our
24
Outsourcing Trend |
We generate revenue from the sale of gas delivery systems. The success of our business and our ability to generate future sales depends on OEMs continuing to outsource the manufacturing of gas delivery systems for their semiconductor capital equipment. Most of the largest OEMs have already outsourced a significant portion of their gas delivery systems. If OEMs do not continue to outsource gas delivery systems for their capital equipment, our revenue would be reduced, which could have a material adverse affect on our business, financial condition and operating results. In addition, if we are unable to obtain additional business as OEMs outsource their production of gas delivery systems, our business, financial condition and operating results could be adversely affected.
Customer Concentration |
A relatively small number of OEM customers have historically accounted for a significant portion of our revenue, and we expect this trend to continue. Applied Materials, Inc. and Novellus Systems, Inc. together accounted for 91% of our sales in 2001. Applied Materials, Inc., Novellus Systems, Inc. and Lam Research Corporation as a group accounted for 98% of our sales in 2002 and 92% of our sales in 2003. Because of the small number of OEMs in our industry, most of whom are already our customers, it would be difficult to replace lost revenue resulting from the loss of, or the reduction, cancellation or delay in purchase orders by, any one of these customers. Consolidation among our customers may further concentrate our business in a limited number of customers and expose us to increased risks relating to dependence on a small number of customers. In addition, any significant pricing pressure exerted by a key customer could adversely effect our operating results.
Anticipated Increased General and Administrative Costs |
We will face increased legal, accounting, administrative and other costs and expenses as a public company that we did not incur as a private company. The Sarbanes-Oxley Act of 2002, as well as new rules subsequently implemented by the Securities and Exchange Commission, the Public Company Accounting Oversight Board and The Nasdaq National Market, have required changes in the corporate governance practices of public companies. We expect these new rules and regulations to increase our legal and financial compliance costs and to make legal, accounting and administrative activities more time-consuming and costly. For example, as a result of becoming a public company, we plan to add two additional independent directors, create additional committees of our board of directors and adopt policies regarding internal controls and disclosure controls and procedures. We also expect to incur substantially higher costs to obtain directors and officers insurance. We cannot estimate the amount of additional costs we may incur or the timing of such costs.
Deferred Compensation |
We recorded deferred compensation with respect to the unvested portion of our Series A Senior Notes and common stock granted to some of our key employees in connection with the Ultra Clean acquisition. In addition, we record deferred stock-based compensation resulting from the grant of stock options to employees at exercise prices less than the estimated fair value of the underlying common stock on the grant date. We determined the estimated fair value of our common stock based on several factors, including our historical and projected operating performance. We recorded total deferred compensation of $1.1 million and $0.1 million for the years ended December 31, 2002 and 2003, respectively. We amortized $33,000 and $0.3 million for the years ended December 31, 2002 and 2003, respectively. We expect to record amortization expense associated with this deferred compensation, assuming no forefeiture of awards, of $0.7 million in 2004, $0.1 million in 2005 and $0.1 million in 2006.
25
Basis of Presentation |
Our financial statements include the accounts of the predecessor company, Ultra Clean Technology Service and Systems, Inc. for the year ended December 31, 2001 and for the period from January 1, 2002 to November 15, 2002 and the accounts of the successor company, Ultra Clean Holdings, Inc. and its subsidiary, since inception, including the period from November 16, 2002 through December 31, 2002 and for the year ended December 31, 2003.
In the discussion of our financial statements for the year ended December 31, 2002 in this Managements Discussion and Analysis of Financial Condition and Results of Operations, we refer to the financial statements for 2002 as combined for comparative purposes. These combined financial results for 2002 represent the sum of the financial data for Ultra Clean Technology Systems and Service, Inc. (Predecessor) for the period from January 1, 2002 through November 15, 2002 and the financial data for Ultra Clean Holdings, Inc. (Ultra Clean) for the period from its inception to December 31, 2002. We further refer to the period from our inception through December 31, 2002 as the November 16, 2002 through December 31, 2002 period, because we had no operations in the period from October 28, 2002, our date of incorporation, to November 15, 2002, the closing date of the Ultra Clean acquisition. These combined financial results are for informational purposes only and do not purport to represent what our financial position would have actually been in such periods had the Ultra Clean acquisition occurred prior to November 15, 2002.
Critical Accounting Policies, Significant Judgments and Estimates
Our consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States, which requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses and related disclosure at the date of our financial statements. On an on-going basis, we evaluate our estimates and judgments, including those related to sales, inventories, intangible assets, stock compensation and income taxes. We base our estimates and judgments on historical experience and on various other factors that we believe to be reasonable under the circumstances, the results of which form the basis of our judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates. We consider certain accounting policies related to the Ultra Clean acquisition, revenue recognition, inventory valuation, accounting for income taxes, valuation of intangible assets and goodwill and stock options to employees to be critical policies due to the estimates and judgments involved in each.
Ultra Clean Acquisition |
In connection with the Ultra Clean acquisition, we allocated the purchase price associated with the acquisition to the tangible and intangible assets acquired, liabilities assumed and in-process research and development based on their estimated fair values. We engaged a third-party appraisal firm to assist us in determining the fair values of the assets acquired and the liabilities assumed. Such valuations required us to make significant estimates and assumptions, especially with respect to intangible assets. Estimates associated with the accounting for the Ultra Clean acquisition may change as additional information becomes available regarding the assets acquired and liabilities assumed. In particular, a claim by us for a refund of approximately $470,000 of the purchase price remains unresolved. Any payment of this unresolved amount will reduce recorded goodwill.
The critical estimates we used in allocating the purchase price and valuing certain intangible assets include but were not limited to: future expected cash flows from customer contracts, customer lists, distribution agreements, acquired developed technologies and patents; expected costs to develop in-process research and development into commercially viable products and brand awareness and market position of acquired products and assumptions about the period of time the brand will continue to be used in the combined product portfolio. Our estimates of fair value at the time when they were made are based upon assumptions that we believed to be reasonable, but which are inherently uncertain and unpredictable.
26
Revenue Recognition |
Our revenue is concentrated in a few OEM customers in the semiconductor capital equipment industry in the United States. Our standard arrangement for our customers includes a signed purchase order or contract, no right of return of delivered products and no customer acceptance provisions. Revenue from sales of products is recognized when:
| we enter into a legally binding arrangement with a customer; | |
| we ship the products; | |
| customer payment is deemed fixed or determinable and free of contingencies or significant uncertainties; and | |
| collection is probable. |
Revenue is generally recognized upon shipment of the product. In arrangements which specify title transfer upon delivery, revenue is not recognized until the product is delivered. In addition, if we have not substantially completed a product or fulfilled the terms of the agreement at the time of shipment, revenue recognition is deferred until completion. Determination of criteria in the third and fourth bullet points above is based on our judgment regarding the fixed nature of the amounts charged for the products delivered and the collectability of those amounts.
We assess collectability based on the credit worthiness of the customer and past transaction history. We perform on-going credit evaluations of, and do not require collateral from, our customers. We have not experienced collection losses in the past. A significant change in the liquidity or financial position of any one customer could make it more difficult for us to assess collectability.
Inventory Valuation |
We value our inventories at the lesser of standard cost, determined on a first-in, first-out basis, or market. We assess the valuation of all inventories, including raw materials, work-in-process, finished goods and spare parts on a periodic basis. Obsolete inventory or inventory in excess of our estimated usage is written-down to its estimated market value less costs to sell, if less than its cost. The inventory write-downs are recorded as an inventory valuation allowance established on the basis of obsolete inventory or specific identified inventory in excess of established usage. Inherent in our estimates of market value in determining inventory valuation are estimates related to economic trends, future demand for our products and technological obsolescence of our products. If actual market conditions are less favorable than our projections, additional inventory write-downs may be required. If the inventory value is written down to its net realizable value, and subsequently there is an increased demand for the inventory at a higher value, the increased value of the inventory is not realized until the inventory is sold either as a component of a gas delivery system or as separate inventory. During the year ended December 31, 2002, we charged $0.3 million to cost of goods sold to write down excess and obsolete inventory. During the year ended December 31, 2003, we recorded an immaterial charge for excess and obsolete inventory.
Accounting for Income Taxes |
The determination of our tax provision is subject to judgments and estimates. The carrying value of our net deferred tax assets, which is made up primarily of tax deductions, assumes we will be able to generate sufficient future income to fully realize these deductions. In determining whether the realization of these deferred tax assets may be impaired, we make judgments with respect to whether we are likely to generate sufficient future taxable income to realize these assets. We have not recorded any valuation allowance to impair our tax assets because, based on the available evidence, we believe it is more likely than not that we will be able to utilize all of our deferred tax assets in the future. If we do not generate sufficient future income, the realization of these deferred tax assets may be impaired, resulting in an additional income tax expense.
27
Valuation of Intangible Assets and Goodwill |
We periodically evaluate our intangible assets and goodwill in accordance with Statement of Financial Accounting Standards, or SFAS No. 142, Goodwill and Other Intangible Assets , for indications of impairment whenever events or changes in circumstances indicate that the carrying value may not be recoverable. Intangible assets include goodwill, purchased technology and tradename. Factors we consider important that could trigger an impairment review include significant under-performance relative to historical or projected future operating results, significant changes in the manner of our use of the acquired assets or the strategy for our overall business, or significant negative industry or economic trends. The provisions of SFAS No. 142 also require an annual goodwill impairment test or more frequently if impairment indicators arise. In testing for a potential impairment of goodwill, the provisions of SFAS No. 142 require the application of a fair value based test at the reporting unit level. We operate in one segment and have one reporting unit. Therefore, all goodwill is considered enterprise goodwill and the first step of the impairment test prescribed by SFAS No. 142 requires a comparison of our fair value to our book value. If our estimated fair value is less than the our book value, SFAS No. 142 requires an estimate of the fair value of all identifiable assets and liabilities of the business, in a manner similar to a purchase price allocation for an acquired business. This estimate requires valuations of certain internally generated and unrecognized intangible assets such as in-process research and development and developed technology. Potential goodwill impairment is measured based upon this two-step process. We performed the annual goodwill impairment test as of December 31, 2002 and 2003 and determined that goodwill was not impaired.
Stock Options to Employees |
We have elected to follow the intrinsic value-based method prescribed by Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees , or APB 25, and the related interpretations in accounting for employee stock options rather than adopting the alternative fair value accounting provided under SFAS No. 123, Accounting for Stock Based Compensation . Therefore, we do not record any compensation expense for stock options we grant to our employees where the exercise price equals the fair market value of the stock options on the date of grant and the exercise price, number of shares eligible for issuance under the options and vesting period are fixed. We comply with the disclosure provisions of SFAS No. 123 and SFAS No. 148, which require that we disclose our pro forma net income or loss and net income or loss per common share as if we had expensed the fair value of the options. In calculating such fair values, we use assumptions of estimated option life, dividend policy and interest rates.
28
Results of Operations
The following table sets forth statements of
operations data for the periods indicated as a percentage of
revenue.
Years Ended December 31,
Combined(1)
2001
2002
2003
100.0
%
100.0
%
100.0
%
86.5
%
89.0
%
86.8
%
13.5
%
11.0
%
13.2
%
0.8
%
0.9
%
1.5
%
1.7
%
2.3
%
2.9
%
4.1
%
9.0
%
6.4
%
1.1
%
6.6
%
13.2
%
10.8
%
6.9
%
(2.2
)%
2.4
%
(0.6
)%
(0.4
)%
(1.9
)%
(0.6
)%
(0.4
)%
(1.9
)%
6.4
%
(2.6
)%
0.5
%
(2.6
)%
0.0
%
(0.3
)%
3.8
%
(2.6
)%
0.2
%
(1) | The combined financial results for 2002 represent the sum of the financial data for Ultra Clean Technology Systems and Service, Inc. (Predecessor) for the period from January 1, 2002 through November 15, 2002 and the financial data for Ultra Clean Holdings, Inc. for the period from November 16, 2002 (inception) to December 31, 2002. The combined financial data for 2002 is presented to facilitate comparison with other annual periods. |
Year Ended December 31, 2003 Compared With Year Ended December 31, 2002 |
Sales |
We generate revenue from the sale of gas delivery systems. Sales for the year ended December 31, 2003 decreased 8.1% to $77.5 million from $84.3 million for the year ended December 31, 2002, a decrease of $6.8 million. This decrease in sales was due to the continued downturn in the semiconductor capital equipment industry during the first three quarters of 2003, which resulted in decreased demand for, and therefore reduced sales of, our gas delivery systems.
Gross Profit |
Cost of goods sold consists primarily of purchased materials, labor and overhead, including depreciation, associated with the design and manufacture of products sold. Gross profit for the year ended December 31, 2003 increased 9.7% to $10.2 million from $9.3 million for the year ended December 31, 2002, an increase of $0.9 million. Gross profit as a percentage of sales increased to 13.2% for the year ended December 31, 2003 compared to 11.0% for the year ended December 31, 2002. The increase in gross profit for the year ended December 31, 2003 was primarily attributable to sharply higher sales of gas
29
Research and Development Expense |
Research and development expense consists primarily of activities related to new component testing and evaluation, test equipment, design and implementation, new product design and testing and other product development activities. Research and development expense for the year ended December 31, 2003 increased 71.4% to $1.2 million from $0.7 million for the year ended December 31, 2002, an increase of $0.5 million. Research and development expense as a percentage of sales increased to 1.5% for the year ended December 31, 2003 compared to 0.9% for the year ended December 31, 2002. This increase in research and development expense was primarily attributable to the development of additional test fixtures for a wider range of products and to additional design activity required by two of our major customers.
Sales and Marketing Expense |
Sales and marketing expense consists primarily of salaries and commissions paid to our sales and service employees and salaries paid to our engineers who work with our sales and service employees to help determine the components and configuration requirements for new products. Sales and marketing expense for the year ended December 31, 2003 increased 21.1% to $2.3 million from $1.9 million for the year ended December 31, 2002, an increase of $0.4 million. Sales and marketing expense as a percentage of sales increased to 2.9% for the year ended December 31, 2003 compared to 2.3% for the year ended December 31, 2002. This increase in sales and marketing expense was primarily attributable to our expansion into new product lines at one of our major customers.
General and Administrative Expense |
General and administrative expense consists primarily of salaries and overhead of our administrative staff. General and administrative expense for the year ended December 31, 2003 decreased 34.2% to $5.0 million from $7.6 million for the year ended December 31, 2002, a decrease of $2.6 million. General and administrative expense as a percentage of sales decreased to 6.4% for the year ended December 31, 2003 compared to 9.0% for the year ended December 31, 2002. We experienced higher general and administrative expense in 2002, primarily due to costs of $4.6 million associated with the Ultra Clean acquisition. General and administrative expense for the year ended December 31, 2003 included $1.1 million in professional fees paid to third party financial advisors for services they performed for us, approximately $0.2 million in bonus accrual associated with our management bonus and profit sharing plans and approximately $0.3 million associated with deferred compensation amortization resulting from restricted stock and employee debt which originated at the time of the Ultra Clean acquisition. We expect our general and administrative expense to increase in 2004 as we incur additional expenses as a public company.
In-Process Research and Development Expense |
In-process research and development expense for the year ended December 31, 2002 was $0.9 million, resulting from one project related to the development of technology and a related product that simplified the generation of steam for use in the semiconductor manufacturing process the catalytic steam generator. Our development efforts were completed in December 2003. Actual costs incurred to complete this project were not significantly different from the initial estimate. Value ascribed to the project was based on the cost method and represented the cost of personnel, material, equipment and finance charges that would have been incurred to replicate the project to its development stage at the date of acquisition. We had no in process research and development expenses for the year ended December 31, 2003.
30
Interest Expense |
Interest expense for the year ended December 31, 2003 increased to $1.5 million from $0.4 million for the year ended December 31, 2002, an increase of $1.1 million. This increase in interest expense was attributable to interest payable on our Series A Senior Notes held by FP-Ultra Clean, LLC and some of our key employees which were issued in the fourth quarter of 2002 in connection with the Ultra Clean acquisition.
Provision for Income Taxes |
Provision for income taxes for the year ended December 31, 2003 was $0.2 million compared to $0.03 million income tax benefit for the year ended December 31, 2002. This increase in provision for income taxes was primarily attributable to the increase in taxable income for the year ended December 31, 2003. For the year ended December 31, 2003, the state tax rate was higher than the statutory rate due the mix of taxable income and losses in Texas combined with a consolidated net income approximating break even.
Year Ended December 31, 2002 Compared With Year Ended December 31, 2001 |
In the discussion of our financial statements for the year ended December 31, 2002 in this Managements Discussion and Analysis of Financial Condition and Results of Operations, we refer to financial statements for 2002 as combined for comparative purposes. These combined financial results for 2002 represent the sum of the financial data for Ultra Clean Technology Systems and Service, Inc. (Predecessor) for the period from January 1, 2002 through November 15, 2002 and the financial data for Ultra Clean Holdings, Inc. (Ultra Clean) for the period from its inception to December 31, 2002. We further refer to the period from our inception through December 31, 2002 as the November 16, 2002 through December 31, 2002 period, because we had no operations in the period from October 28, 2002, our date of incorporation, to November 15, 2002, the closing date of the Ultra Clean acquisition. These combined financial results are for informational purposes only and do not purport to represent what our financial position would have actually been in such periods had the Ultra Clean acquisition occurred prior to November 15, 2002.
Sales |
Sales for the year ended December 31, 2002 increased 10.2% to $84.3 million from $76.5 million for the year ended December 31, 2001, an increase of $7.8 million. This increase in sales was primarily attributable to the addition of a significant new customer. Sales to our other significant customers for the year ended December 31, 2002 decreased due to the downturn in the semiconductor capital equipment industry, which resulted in decreased demand for, and therefore reduced sales of, our gas delivery systems.
Gross Profit |
Gross profit for the year ended December 31, 2002 decreased 10.6% to $9.3 million from $10.4 million for the year ended December 31, 2001, a decrease of $1.1 million. Gross profit as a percentage of sales decreased to 11.0% for the year ended December 31, 2002 compared to 13.5% for the year ended December 31, 2001. This decrease in gross profit was primarily attributable to a sharp decrease in sales in the fourth quarter of 2002 resulting in a lower absorption of our fixed costs. We also recorded $0.3 million in charges for excess and obsolete inventory for the year ended December 31, 2002, compared to $0.02 million for the year ended December 31, 2001. In addition, we opened a new manufacturing facility in Tualatin, Oregon in October 2002 which increased manufacturing expenses in the fourth quarter of 2002 and did not generate significant sales. We also recorded a charge of $0.1 million to step up inventory associated with the Ultra Clean acquisition.
31
Research and Development Expense |
Research and development expense for the year ended December 31, 2002 increased 16.7% to $0.7 million from $0.6 million for the year ended December 31, 2001, an increase of $0.1 million. Research and development expense as a percentage of sales increased to 0.9% for the year ended December 31, 2002 compared to 0.8% for year ended December 31, 2001.
Sales and Marketing Expense |
Sales and marketing expense for the year ended December 31, 2002 increased 46.2% to $1.9 million from $1.3 million for the year ended December 31, 2001, an increase of $0.6 million. Sales and marketing expense as a percentage of sales increased to 2.3% for the year ended December 31, 2002 compared to 1.7% for the year ended December 31, 2001. This increase in sales and marketing expense was primarily attributable to an increase in commissions paid to our sales force as a result of sales made to a significant new customer during 2002. In addition, we increased the size of our sales force during 2002 in order to increase our sales efforts with our significant customers.
General and Administrative Expense |
General and administrative expense for the year ended December 31, 2002 increased 145.2% to $7.6 million from $3.1 million for the year ended December 31, 2001, an increase of $4.5 million. General and administrative expense as a percentage of sales increased to 9.0% for the year ended December 31, 2002 compared to 4.1% for the year ended December 31, 2001. This increase in general and administrative expense was primarily attributable to the buyout of stock options of $2.5 million from, and one-time bonus payments of $0.7 million to, some of our key employees in connection with the Ultra Clean acquisition and a $1.3 million charge related to the expiration of unexercised stock options held by a former executive officer at the time of the Ultra Clean acquisition.
In-Process Research and Development Expense |
In-process research and development expense for the year ended December 31, 2002 was $0.9 million for purchased in-process research and development that had not yet reached technological feasibility and had no alternative future use.
Interest Expense |
Interest expense for the year ended December 31, 2002 decreased to $0.4 million from $0.5 million for the year ended December 31, 2001, a decrease of $0.1 million. This decrease in interest expense was primarily attributable to our lower average short-term borrowing balance during 2002.
Provision for Income Taxes |
Provision for income taxes for the year ended December 31, 2002 was negligible compared to an expense of $2.0 million for the year ended December 31, 2001. This decrease in provision for income taxes was attributable to the decrease in taxable income for the year ended December 31, 2002.
32
Unaudited Quarterly Financial Results
The following tables set forth statement of
operations data for the periods indicated in dollars and as a
percentage of sales. The information for each of these periods
is unaudited and has been prepared on the same basis as our
audited consolidated financial statements included elsewhere in
this prospectus and includes all adjustments, consisting only of
normal recurring adjustments, that we consider necessary for a
fair presentation of our unaudited operations data for the
periods presented. Historical results are not necessarily
indicative of the results to be expected in the future.
Predecessor
Oct. 1,
Nov. 16
Quarter Ended
2002
2002
Quarter Ended
through
through
Mar.
Jun.
Sept.
Nov. 15,
Dec. 31,
Mar.
Jun.
Sept.
Dec.
31, 2002
30, 2002
30, 2002
2002
2002
31, 2003
30, 2003
30, 2003
31, 2003
(In thousands)
$
13,262
$
27,440
$
26,916
$
8,720
$
7,916
$
17,626
$
17,410
$
16,726
$
25,758
12,067
23,469
22,993
8,457
7,972
16,245
14,768
14,605
21,695
1,195
3,971
3,923
263
(56
)
1,381
2,642
2,121
4,063
135
187
202
110
99
259
268
290
338
273
488
619
206
332
471
553
595
657
611
812
856
4,346
962
821
2,051
802
1,304
889
1,019
1,487
1,677
4,662
2,282
1,551
2,872
1,687
2,299
176
2,484
2,246
(4,399
)
(2,338
)
(171
)
(230
)
434
1,765
(50
)
(43
)
(53
)
(24
)
(182
)
(403
)
(333
)
(371
)
(351
)
(6
)
4
(2
)
(3
)
(4
)
9
(50
)
(43
)
(53
)
(30
)
(178
)
(405
)
(336
)
(375
)
(342
)
126
2,441
2,193
(4,429
)
(2,516
)
(576
)
(566
)
59
1,423
(35
)
(1,103
)
(910
)
1,406
667
132
411
(38
)
(737
)
$
91
$
1,338
$
1,283
$
(3,023
)
$
(1,849
)
$
(444
)
$
(155
)
$
21
$
686
33
Predecessor
Quarter Ended
Nov.
Quarter Ended
Oct. 1,
16,
Mar.
Jun.
Sept.
through
through
Mar.
Jun.
Sept.
Dec.
31,
30,
30,
Nov. 15,
Dec. 31,
31,
30,
30,
31,
2002
2002
2002
2002
2002
2003
2003
2003
2003
100.0
%
100.0
%
100.0
%
100.0
%
100.0
%
100.0
%
100.0
%
100.0
%
100.0
%
91.0
%
85.5
%
85.4
%
97.0
%
100.7
%
92.2
%
84.8
%
87.3
%
84.2
%
9.0
%
14.5
%
14.6
%
3.0
%
(0.7
)%
7.8
%
15.2
%
12.7
%
15.8
%
1.0
%
0.7
%
0.8
%
1.3
%
1.3
%
1.5
%
1.5
%
1.7
%
1.3
%
2.1
%
1.8
%
2.3
%
2.4
%
4.2
%
2.7
%
3.2
%
3.6
%
2.6
%
4.6
%
3.0
%
3.2
%
49.8
%
12.2
%
4.7
%
11.8
%
4.8
%
5.1
%
11.2
%
7.7
%
5.4
%
6.2
%
53.5
%
28.8
%
8.8
%
16.5
%
10.1
%
8.9
%
1.3
%
9.1
%
8.3
%
(50.4
)%
(29.5
)%
(1.0
)%
(1.3
)%
2.6
%
6.9
%
(0.4
)%
(0.2
)%
(0.2
)%
(0.3
)%
(2.3
)%
(2.3
)%
(1.9
)%
(2.2
)%
(1.4
)%
0.0
%
0.0
%
0.0
%
(0.1
)%
0.1
%
(0.0
)%
(0.0
)%
(0.0
)%
0.0
%
(0.4
)%
(0.2
)%
(0.2
)%
(0.4
)%
(2.2
)%
(2.3
)%
(1.9
)%
(2.2
)%
(1.3
)%
1.0
%
8.9
%
8.1
%
(50.8
)%
(31.8
)%
(3.3
)%
(3.3
)%
0.4
%
5.5
%
(0.3
)%
(4.0
)%
(3.4
)%
16.1
%
8.4
%
0.7
%
2.4
%
(0.2
)%
(2.9
)%
0.7
%
4.9
%
4.8
%
(34.7
)%
(23.4
)%
(2.5
)%
(0.9
)%
0.1
%
2.7
%
Our sales sharply increased during the fourth quarter of 2003, as compared to each of the first three quarters of 2003, as a result of significant growth in the semiconductor industry. In order to support this increased demand, we recently added a significant number of manufacturing personnel and additional test equipment. The addition and training of new employees may lead to short-term quality control problems and place increased demands on our management and experienced personnel. We have also recently experienced shortages in supplies of various components, such as mass flow controllers, valves and regulators, and certain prefabricated parts, such as sheet metal enclosures, used in the manufacture of our products. At the same time, we are experiencing pricing pressure on our products as we attempt to increase market share with our existing customers.
Liquidity and Capital Resources
Historically, we have required capital principally to fund our working capital needs, satisfy our debt obligations, maintain our equipment and purchase new capital equipment. We anticipate that our operating cash flow, together with the net proceeds of this offering and available borrowings under our revolving credit facility, will be sufficient to meet our working capital requirements, capital lease obligations, expansion plans and technology development projects for at least the next twelve months. The adequacy of these resources to meet our liquidity needs beyond that period will depend on our growth, the cyclical expansion or contraction of the semiconductor capital equipment industry and capital expenditures required to meet possible increased demand for our products. Prior to the Ultra Clean acquisition, we relied on capital contributions and borrowings from Mitsubishi to fund our liquidity needs. As of December 31,
34
For the year ended December 31, 2003, we generated cash from operating activities of $0.4 million, primarily attributable to generating net income from operations and carrying a higher level of payables compared with the year ended December 31, 2002. These increases were offset by funding an increase in accounts receivable and inventories. For the year ended December 31, 2002, we generated cash from operating activities of $2.7 million, primarily attributable to increases in accounts payable and other liabilities and from lower inventory requirements associated with the downturn in the semiconductor capital equipment industry which resulted in a decreased demand for our gas delivery systems. For the year ended December 31, 2001, we had a net use of $0.6 million in cash from operating activities.
For the year ended December 31, 2003, we used net cash from investing activities of $0.5 million, primarily for the purchase of computer hardware and an engineering software application. For the year ended December 31, 2002, we used net cash from investing activities of $26.3 million in connection with the Ultra Clean acquisition and $1.7 million to construct and equip a new manufacturing facility in Tualatin, Oregon. For the year ended December 31, 2001, we used net cash from investing activities of $0.6 million, primarily to construct and equip a new manufacturing facility in Austin, Texas.
For the year ended December 31, 2003, we used cash in financing activities of $0.1 million for principal payments on our capital lease obligations. For the year ended December 31, 2002, cash provided by financing activities was $31.0 million, primarily from the issuance of our Series A Senior Notes and common stock in connection with the Ultra Clean acquisition. Of these proceeds, $9.0 million was used to repay borrowings from Mitsubishi under a revolving credit facility. For the year ended December 31, 2001, we used cash in financing activities of $1.7 million, primarily for repayment of borrowings from Mitsubishi.
Revolving Credit Facility |
In June 2003, our wholly-owned subsidiary, Ultra Clean Technology Systems and Service, Inc., entered into a revolving credit facility with Union Bank of California providing for borrowings of up to $10.0 million based upon a defined borrowing base. The proceeds of the revolving credit facility may only be used for working capital purposes. Ultra Clean Technology Systems and Service, Inc. has never utilized this revolving credit facility. We have unconditionally guaranteed all obligations under this facility. These obligations are secured by substantially all of our and their respective assets. Borrowings under the revolving credit facility bear interest, at our option, at a rate equal to 2% per annum plus LIBOR or at 0.25% per annum plus the reference rate established from time to time by the lender. Under the terms of the credit facility agreement, we are subject to customary covenants related to our business and financial condition. We will be in default under the revolving credit facility if FP-Ultra Clean, LLC ceases to hold, directly or indirectly, at least 50% of our voting interests. Upon completion of this offering, FP-Ultra Clean LLC will no longer hold at least 50% of our voting interests. Accordingly, we are negotiating with the lender to amend the credit facility. If we are unable to negotiate an amendment, we will have to terminate the credit facility. The loss of this credit facility, however, will not have an adverse effect on our liquidity.
Capital Expenditures
We spent $0.5 million in capital expenditures for the year ended December 31, 2003, $1.8 million for the year ended December 31, 2002 and $0.6 million for the year ended December 31, 2001. We do not anticipate significant requirements for additional capital expenditures in the next twelve months but our requirements are subject to change depending upon industry conditions.
35
Contractual Obligations and Contingent
Liabilities and Commitments
Other than operating leases for certain equipment
and real estate, we have no significant off-balance sheet
transactions, unconditional purchase obligations or similar
instruments and, other than with respect to the revolving credit
facility described above, are not a guarantor of any other
entities debt or other financial obligations. The
following table presents a summary of our future minimum lease
payments:
Capital
Operating
Year Ending December 31:
Leases
Leases*
(in thousands)
123
773
92
362
55
293
31
133
$
301
$
1,561
* | Operating lease expense reflects the fact that (1) the lease for our headquarters facility in Menlo Park, California expires on July 31, 2004 and (2) the lease for our manufacturing facility in Austin, Texas expires on August 1, 2005. We expect to be able to renew our Menlo Park lease prior to its expiration under more favorable terms. We have an option to renew the lease on our Austin facility for an additional five years, which we expect to exercise. Operating lease expense set forth in the above table will increase upon renewal of these two leases. |
At December 31, 2003, $30.0 million aggregate principal amount of our Series A Senior Notes were outstanding and an additional $0.6 million Series A Senior Notes were subject to vesting in the future. We expect to repurchase all of the vested and unvested Series A Senior Notes with a portion of the net proceeds of this offering. See Use of Proceeds and Management Restricted Securities Purchase Agreements. As of December 31, 2003, no amount was drawn on our revolving credit facility.
At December 31, 2003, we had commitments to purchase inventory totaling $13,416,000.
Recently Adopted Accounting Standards
In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities . SFAS No. 146 supersedes previous accounting guidance, principally Emerging Issues Task Force, or EITF Issue No. 94-3. The provisions of SFAS No. 146 are applicable for restructuring activities initiated after December 28, 2002. SFAS No. 146 requires that a liability for costs associated with an exit or disposal activity be recognized when the liability is incurred. Under EITF Issue No. 94-3, a liability for an exit cost was recognized at the date of the commitment to an exit plan. SFAS No. 146 also establishes that the liability should initially be measured and recorded at fair value. The adoption of SFAS No. 146 on January 1, 2003 did not have a material effect on our consolidated financial statements.
In November 2002, the FASB issued FASB Interpretation, or FIN, No. 45, Guarantors Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others . This interpretation specifies the disclosures to be made by a guarantor in its interim and annual financial statements concerning its obligations under certain guarantees that it has issued. FIN No. 45 also requires a guarantor to recognize a liability, at the inception of the guarantee, for the fair value of obligations it has undertaken in issuing the guarantee. The disclosure requirements of FIN No. 45 are effective for interim and annual periods ending after December 15, 2002. The initial recognition and initial measurement requirements of FIN No. 45 are effective for guarantees issued or modified after December 31, 2002. The adoption of these provisions did not have a material effect on our consolidated financial statements.
In December 2002, the EITF reached a consensus on EITF No. 00-21, Revenue Arrangements with Multiple Deliverables . EITF Issue No. 00-21 addresses certain aspects of the accounting by a vendor for arrangements under which it will perform multiple revenue-generating activities, including when and how an arrangement involving multiple deliverables should be divided into separate units of accounting. The
36
In January 2003, the FASB issued FIN 46, Consolidation of Variable Interest Entities and a revised interpretation of FIN 46 (FIN 46R) in December 2003 (collectively FIN 46). These address consolidation of variable interest entities. FIN 46 provides guidance for determining when a primary beneficiary should consolidate a variable interest entity or equivalent structure that functions to support the activities of the primary beneficiary. The provisions of FIN 46 are effective immediately for all variable interest entities created after January 31, 2003. For variable interest entities created prior to February 1, 2003, the provisions of FIN 46 are effective for our first quarter of fiscal 2004. We do not expect the adoption of FIN 46 to have a material effect on our consolidated financial statements.
In May 2003, the FASB issued SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity . SFAS No. 150 establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. The adoption of SFAS No. 150 did not have a material effect on our consolidated financial statements.
In December 2003, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 104, Revenue Recognition . SAB 104 updates portions of existing interpretative guidance in order to make this guidance consistent with current authoritative accounting and auditing guidance and SEC rules and regulations. The adoption of SAB 104 did not have a material effect on our consolidated financial statements.
Qualitative and Quantitative Disclosure About Market Risk
Market risk represents the risk of changes in value of a financial instrument caused by fluctuations in interest rates. After the application of the net proceeds from this offering, we will have no indebtedness for borrowed money and therefore our exposure to market risk related to interest rates is limited. If and when we do enter into future borrowing arrangements or borrow under our existing revolving credit facility, we may seek to manage exposure to interest rate changes by using a mix of debt maturities and variable- and fixed-rate debt, together with interest rate swaps where appropriate, to fix or lower our borrowing costs. We do not make material sales or have material purchase obligations outside of the United States and therefore do not generally have exposure to foreign currency exchange risks.
37
BUSINESS
Overview
We are a developer and supplier of critical subsystems for the semiconductor capital equipment industry, focusing on gas delivery systems. Our gas delivery systems enable the precise delivery of specialty gases used in a majority of the key steps in the semiconductor manufacturing process. Our customers are primarily OEMs of semiconductor capital equipment. These OEMs outsource the manufacturing of their gas delivery systems in order to improve the efficiency and reduce the costs of their design and manufacturing processes. We provide our customers with a full range of services for the development, design, prototyping, engineering, manufacturing and testing of gas delivery systems. We use our engineering and manufacturing expertise, component neutral platform, supply chain management and comprehensive test capabilities to offer our customers high quality products at reduced design-to-delivery cycle times. For the year ended December 31, 2003, our three largest customers by revenue were Applied Materials, Inc., Novellus Systems, Inc. and Lam Research Corporation.
Industry Background
The manufacture of semiconductors is a highly complex process. Bare silicon wafers undergo a series of chemical, mechanical and physical process steps resulting in the formation of hundreds or thousands of integrated circuits on a single wafer. During the manufacturing process, a wafer may cycle through each process step up to 30 times before manufacturing is complete and each integrated circuit is fully formed.
Semiconductor manufacturers must frequently add new capital equipment in order to reduce manufacturing costs, add manufacturing capacity and accommodate more technologically advanced manufacturing processes for next generation semiconductor devices. For example, semiconductor manufacturers are increasingly transitioning fabrication machinery from 200mm to 300mm wafer size in order to increase the number of semiconductor devices produced on a single wafer. In addition, the introduction of new materials and advances in the manufacturing process, including smaller line width technologies, have enabled semiconductor manufacturers to significantly increase the functionality and thereby the complexity of semiconductor devices. New manufacturing techniques require absolute precision in the control of the recipes used in the semiconductor manufacturing process. The flow of gases and liquids into and out of the process chambers must be carefully monitored and controlled to ensure proper timing and duration of gas and chemical reactions within the chambers. Minor deviations from the prescribed process recipe or the introduction of contaminants in the process chambers can result in device defects and manufacturing yield loss.
In order to achieve the required levels of precision and purity in the manufacture of semiconductor devices, gases are delivered to process chambers by delivery systems which have been integrated into a process tool. Gas delivery systems permit contamination-free handling and delivery of dangerous gases and chemicals at highly accurate flow rates, pressures and timing regimens and are used in a majority of the key semiconductor manufacturing process steps.
A typical gas delivery system consists of one or more gas lines, comprised of several filters, mass flow controllers, regulators, pressure transducers and valves, associated interconnect tubing and an integrated electronic and/or pneumatic control system. Gas delivery systems are highly specific and are tailored to each individual step in the semiconductor manufacturing process as well as to the specific requirements of OEMs and end-users. Gas delivery systems are one of the most technologically complex subsystems incorporated into each process tool and represent a significant portion of the overall cost of each tool.
The semiconductor capital equipment industry is highly cyclical. VLSI Research estimates that worldwide sales for semiconductor manufacturing equipment totaled $60.3 billion in 2000 and declined to $29.8 billion in 2002. VLSI estimates that this industry will grow 121% between 2002 and 2005 and will experience a cyclical downturn commencing in 2006.
38
Historically, semiconductor capital equipment manufacturers have either manufactured the components and subsystems for their equipment internally or have relied on a number of small suppliers to provide these products.
Today, however, OEMs are increasingly outsourcing the development, design, prototyping, engineering, manufacturing, assembly and testing of components and systems to subsystem suppliers in order to:
| reduce their investments in inventory, property, plant and equipment in the face of cyclical demands for their products; | |
| reduce design-to-delivery cycle times; | |
| take advantage of subsystem suppliers ability to quickly modify and reconfigure product designs; | |
| take advantage of subsystem suppliers inventory management capabilities and purchasing power; and | |
| focus on their core competencies in light of increasing research and development requirements and industry-wide pricing pressure. |
Because gas delivery systems are among the most technologically complex subsystems, we believe that OEMs need to establish strong partner relationships with companies that possess the engineering expertise, design capabilities, quality control, financial stability and highly flexible manufacturing operations required to satisfy the cyclical and constantly changing demands of semiconductor manufacturers.
Our Solution
We are a leading developer and supplier of critical subsystems for the semiconductor capital equipment industry, focusing on gas delivery systems. Our products enable our OEM customers to improve the efficiency and reduce the costs of their design and manufacturing processes.
We offer our customers:
A complete outsourced solution for gas delivery systems. We provide our OEM customers with a complete outsourced solution for the development, design, prototyping, engineering, manufacturing and testing of advanced gas delivery systems, one of the most critical and technologically complex elements of our customers products. Our engineers work with our customers to improve the design and performance of their gas delivery systems while reducing the system size and overall cost. We combine our highly specialized engineering capabilities and regulatory compliance expertise to produce high performance products that are customized to meet the needs of each of our customers and their respective end-users and to comply with applicable safety and environmental regulations and industry standards. In addition, we use our advanced analytical and automated equipment to perform comprehensive testing and qualification of final gas delivery systems. We provide our customers with a consolidated report of the key components utilized as well as the range of performance features for each gas delivery system we manufacture. We also manage the supply chain logistics required to manufacture gas delivery systems. This reduces the overall number of suppliers and inventory levels that our customers would otherwise have to manage. Furthermore, we believe we are often able to negotiate reduced component prices due to our large volume orders. As a result, we are able to help our customers improve their manufacturing efficiencies, design-to-delivery cycle times, capital utilization and product operating characteristics. | |
Improved design-to-delivery cycle times. Our strong relationships with our customers and familiarity with their products and requirements help us to reduce design-to-delivery cycle times for gas delivery systems. Our design teams are highly integrated with the design teams of our customers and in many instances are physically located at the OEM sites. In addition, we have optimized our supply chain management, coordination of design and manufacturing stages of production, logistics expertise and manufacturing controls and can rapidly respond to order requests. This decreases the design-to-delivery cycle times for our customers and reduces the amount of inventory we must carry, |
39
thereby lowering our manufacturing costs. In addition, we are able to quickly modify and reconfigure product designs in order to meet end-users constantly changing requirements as they adjust their manufacturing processes to optimize manufacturing yields and reduce equipment down-time. | |
Component neutral design and manufacturing. A typical gas delivery system consists of one or more gas lines, comprised of several filters, mass flow controllers, regulators, pressure transducers and valves, associated interconnect tubing and an integrated electronic and/or pneumatic control system. We do not manufacture any of the components ourselves and are therefore component neutral. This enables us to work with our customers to select the best available components for incorporation into their gas delivery systems. Our component neutral position allows us to recommend components on the basis of technology, performance and cost and to optimize our overall designs based on these criteria. It also enables us to maintain close relationships with a wide range of component suppliers who view us solely as a customer rather than as a competitor. | |
Component testing capabilities. In addition to our system testing capabilities, we utilize our engineering expertise to test key components, including mass flow controllers, regulators, pressure transducers and valves, that we incorporate into our gas delivery systems. We have made significant investments in advanced analytic and automated equipment to test and qualify key components. With our component testing capabilities we can perform diagnostic tests, design verification and failure analysis for both our customers and suppliers. Because we are component neutral, we can objectively test and assess a wide range of components. We believe that our component testing capabilities provide us with insight into future technological trends and provide our customers with an important value-added service. |
Our Strategy
Our objective is to be the leading supplier of advanced gas delivery systems that are critical to the semiconductor manufacturing process. We plan to use our development, design, prototyping, engineering, manufacturing and testing expertise and efficiency to allow us to continue to foster strong relationships with our existing customers and penetrate more of their product lines, while concurrently engaging in joint-development projects with new customers. We believe that these efforts will allow us to grow our market share of gas delivery systems and expand into other markets.
Our strategy is comprised of the following key elements:
Increase our market share at existing customers. We believe that a significant market opportunity exists to grow our business with sales to our existing customers by both gaining market share from our competitors and obtaining new business in different product families as our customers continue to outsource their gas delivery system requirements. We believe that our continued focus on our technology development, design, engineering, manufacturing and testing expertise and efficiency, our design-to-delivery cycle times and ability to rapidly respond to non-forecasted demands from our customers will allow us to gain market share from our competitors and attract additional business from existing customers. In addition, we are expanding our manufacturing capacity to meet increased customer demand. | |
Broaden our customer base by expanding our resources and geographical presence. We plan to continue to grow our business and attract new customers by promoting both the merits of outsourcing by leading OEMs and our own proven ability to meet the demands of OEMs. We plan to expand our geographic footprint in regions that put us in close proximity with both the manufacturing locations of new product families at existing customers as well as with new or potential customers. In addition, we believe significant growth opportunities exist in Europe and Asia. We are currently evaluating the likely cost and most suitable location to build a manufacturing facility in a low cost region, most likely in Asia. As we grow our business, we plan to increase our sales and support resources, as well as design, engineering and manufacturing capabilities. |
40
Drive profitable growth with our flexible cost structure. In response to cyclical changes in the demand for semiconductor capital equipment, we undertake cost containment initiatives and benefit from our supply chain efficiencies. We recently completed the expansion of our manufacturing capacity to meet increased customer demand and believe that we are well positioned to respond to an upturn in our business with our current manufacturing capacity. In addition, we recently added a significant number of manufacturing personnel and additional test equipment to meet increased demand. Historically, we have been able to train assembly technicians in two weeks and weld technicians in four weeks. Generally, new test equipment takes less than twelve weeks to design and build. | |
Expand into new product markets using our existing expertise. We are committed to expanding beyond gas delivery systems into new product markets such as liquid delivery systems, catalytic steam generation systems and frame assembly design. We believe the following attributes will allow us to enter new markets: |
| our understanding of the semiconductor manufacturing process; | |
| our expertise in efficient technology development, design, engineering, manufacturing and testing; | |
| our supply chain management expertise; and | |
| our strong relationships with existing customers. |
Selectively pursue strategic acquisitions. We may choose to accelerate the growth of our business by selectively pursuing strategic acquisitions. We will consider strategic opportunistic acquisitions that will enable us to expand our geographic reach, secure new customers, diversify into complementary product markets and broaden our technological capabilities and product offerings. |
Products
We develop, design, prototype, engineer, manufacture and test gas delivery systems that enable the precise delivery of numerous specialty gases used in a majority of the key steps in the semiconductor manufacturing process, including deposition, etch, chemical mechanical planarization (a process used to polish off high spots on wafers or films deposited on wafers), cleaning and annealing. Our products control the flow, pressure, sequencing and mixing of specialty gases into and out of the process chambers of semiconductor manufacturing tools.
A typical gas delivery system consists of one or more gas lines, comprised of several filters, mass flow controllers, regulators, pressure transducers and valves, associated interconnect tubing and an integrated electronic and/or pneumatic control system. These systems are mounted on a pallet and are typically enclosed in a sheet metal encasing.
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The following diagram depicts a typical gas delivery system configuration:
| Filters prevent particle matter from entering the process chambers. | |
| Mass flow controllers are devices that control the amount of gas flowing into the process chambers. | |
| Regulators regulate gas pressure (usually by means of a pre-loaded spring) in order to maintain a constant level of downstream pressure. | |
| Pressure transducers are pressure sensors that display and transmit an analog signal of gas pressure. | |
| Valves provide positive shut-off for the gas stream, either by pneumatic control or manual operation. |
Our gas delivery systems minimize surface area and regions in the flow stream where contaminants may otherwise collect and stagnate. Our system designs are reconfigurable and can accommodate different components and additional functionality with each new generation of semiconductor devices. Our gas delivery systems are also capable of being upgraded to accommodate changes to existing processes within the lifecycle of a process tool.
Our gas delivery system designs are developed in collaboration with our customers and are customized to meet the needs of the specific OEM. We do not sell standard systems. Our customers either specify the particular brands of components they want incorporated into a particular system or rely on our design expertise to help them select the appropriate components for their particular system. Our component neutral position allows us to recommend components to our customers on the basis of technology, performance and cost and to optimize our overall designs based on these criteria.
In addition, we have developed a catalytic steam generator, or CSGS, which we intend to offer as a stand alone product or as an add-on feature to our gas delivery systems. Several semiconductor manufacturing process steps utilize steam to accelerate growth rates or removal rates on wafers. Our CSGS produces ultra high purity steam that is suitable for various manufacturing process steps. Our CSGS can produce steam in a wide range of concentrations to meet various process requirements in both 200 mm and 300 mm wafer applications. Our CSGS features a modular design that is scalable and can be
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Design, Engineering and Manufacturing
We are able to produce reliable, cost-effective systems as a result of our proven design and engineering, manufacturing and testing expertise and attention to quality.
Design and engineering. We provide our customers with design, configuration and engineering services for their gas delivery systems. As of February 23, 2004, we had a 47-person engineering department, consisting of mechanical engineers, drafters and configuration analysts. We have engineers working on-site at several of our customers facilities.
We work with our customers to develop new product designs and help them to clarify and define their process tool requirements. Our component neutral position allows us to recommend components on the basis of technology, performance and cost and to optimize our overall designs based on these criteria. Our product designs address our customers needs in a reliable, cost-effective and highly customized manner. Our engineers work to quickly identify the appropriate components for a particular design and release the order for these components early in the development process so that material procurement can occur prior to the end of the development cycle. Our engineering design department also provides configuration services in which they define and release to our manufacturing facilities and to the customer a documentation package for each specific system. Additionally, our design expertise helps to ensure that new product designs will comply with applicable safety and environmental regulations and industry standards.
As semiconductor manufacturers continuously adjust and modify their manufacturing processes to optimize manufacturing yields and reduce equipment down-time, our customers are required to make modifications to their process tools. We partner with our customers to rapidly develop optimal design, manufacturing and production solutions and implement appropriate modifications to gas delivery systems to meet end-users requirements. Our engineers are trained on our significant customers computer aided design systems in order to facilitate quick turnaround times.
Manufacturing. Our manufacturing capabilities consist of precision machining, welding and assembly services. The breadth of our capabilities enables us to rapidly develop manufacturing specifications, provide precise and repeatable manufacturing and perform final assembly of complex integrated gas delivery systems. We manufacture components that adhere to strict design tolerances and specifications. We operate clean room manufacturing facilities in Menlo Park, California, Austin, Texas, and Tualatin, Oregon. We selected these manufacturing locations to permit us to be near our key customers and to allow us to interact with these customers on a regular basis. Each of our manufacturing facilities is ISO 9001:2000 certified and has been qualified by our customers with respect to the products we build for them. We generally implement new product and process technologies in our Menlo Park facility before migrating these technologies to our other facilities. In January 2004, we completed the expansion of our clean room manufacturing facility in Austin, Texas in order to accommodate possible growth in demand.
Our manufacturing process is highly flexible, enabling our customers to make alterations to their final requirements throughout the design, engineering and manufacturing process. This results in decreased design-to-delivery cycle times for our customers. We use product data management software to automate documentation changes driven by the engineering design and redesign processes to manage customer requests. This software works directly with our manufacturing resource planning system to streamline the procurement, inventory management and manufacturing processes.
Supply-chain management. We use a wide range of component parts and materials in the production of our gas delivery systems, including filters, mass flow controllers, regulators, pressure transducers and valves. We obtain components and other materials from a large number or sources, including single source and sole source suppliers. We use consignment material and just-in-time stocking programs to better manage our component inventories in response to changing customer requirements. These approaches
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Testing. In order to ensure reliability, key components, such as mass flow controllers, valves, regulators and pressure transducers, are qualified prior to being integrated into our systems. These key components are generally tested to verify conformance with industry standards and specifications. Mass flow controllers are tested using a primary calibration test standard prior to installation in a gas delivery system. During the manufacturing process, all functions of the system are tested to assure that the lines are secure and properly connected, components operate correctly and pneumatic logic is correct as designed and built. This testing process also serves as a secondary test on the calibration of the mass flow controllers. Prior to shipping, each gas delivery system is thoroughly tested and verified to a zero particle level. Test data is made available to customers. In addition, every system shipped from our manufacturing facilities is digitally photographed, providing a permanent inspection record of the product. We use these photographs to assist us in answering customers questions about configuration or revision status while equipment is in the field and unavailable for direct inspection.
Quality control. Our quality management system allows us to access real-time corrective action reports, nonconformance reports, customer complaints and controlled documentation. In addition, our senior management conducts quarterly reviews of our quality control system to evaluate effectiveness. Our customers also complete quarterly surveys which allow us to measure satisfaction.
As a result of our commitment to, and strict compliance with, quality standards, we have received several service and quality awards from key customers for our performance and quality business processes. We were awarded the Novellus Outstanding Services Award in 2001 and 2002, the Novellus Outstanding Quality Award in 2002 and 2003 and the Lam Research Supplier Excellence Award in 2003. In addition, our products and manufacturing processes are designed to comply with applicable safety and environmental regulations and industry standards.
Customers
We sell our products to manufacturers of capital equipment for the production of semiconductor devices. The semiconductor capital equipment industry is highly concentrated and we are therefore highly dependent upon a small number of customers.
The following table sets forth the percentages of
our total net sales to our three largest customers in each
period presented.
Year Ended
December 31,
2001
2002
2003
51
%
46
%
47
%
40
%
26
%
24
%
26
%
21
%
91
%
98
%
92
%
We have successfully qualified as a supplier with each of our customers. This lengthy qualification process involves the inspection and audit of our facilities and evaluation by our customers of our engineering, documentation, manufacturing and quality control processes and procedures before that customer places orders for our products. Our customers will generally only place orders with suppliers who have met and continue to meet their qualification criteria.
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Sales and Support
We sell our products through our direct sales force which, as of February 23, 2004, consisted of a total of 18 sales directors, account managers and sales support staff. Our sales directors are responsible for establishing sales strategy and setting the objectives for specific customer accounts. Each account manager is dedicated to a specific customer account and is responsible for the day-to-day management of that customer. Account managers work closely with customers and in many cases provide on-site support. Account managers often attend customers internal meetings related to production, engineering design and quality to ensure that customer expectations are interpreted and communicated properly to our operations group. Account managers also work with our customers to identify and meet their cost and design-to-delivery cycle time objectives.
We have dedicated account managers responsible for new business development for gas delivery system products and related technologies. Our new business development account managers initiate and develop long-term, multi-level relationships with customer accounts and work closely with customers on new business opportunities throughout the design-to-delivery cycle.
Our sales force includes technical sales support for order placement, spare parts quotes and production status updates. We have a technical sales associate located at each of our manufacturing facilities. In addition, we have developed a service and support infrastructure to provide our customers with service and support 24 hours a day, seven days a week. Our dedicated field service engineers provide customer support through the performance of on-site installation, servicing and repair of our gas delivery systems.
Technology Development
We engage in ongoing technology development efforts in order to remain a technology leader for gas delivery systems. We have a technology development group which, as of December 31, 2003, consisted of three persons, two of whom hold doctoral degrees. In addition, our design engineering and new product engineering groups support our technology development activities.
Our technology development group works closely with our customers to identify and anticipate changes and trends in next generation semiconductor manufacturing equipment and, in particular, gas delivery systems. Our technology development group is involved in customer technology partnership programs that focus on process application requirements for gas delivery systems. These development efforts are designed to meet specific customer requirements in the areas of gas delivery system design, materials, component selection and functionality. Our technology development group also works directly with our suppliers to help them identify new component technologies and make necessary changes in, and enhancements to, the components that we integrate into our products. Our analytic and testing capabilities enable us to evaluate multiple supplier component technologies and provide customers with a wide range of appropriate component and design choices for their gas delivery systems. Our analytic and testing capabilities also enable us to predict technological changes and the requirements in component features for next generation gas delivery systems.
Through our technology development efforts, we are developing additional features to improve the performance and functionality of our gas delivery systems. Recently, we have also developed a proprietary catalytic steam generator product which we intend to offer as a stand alone product or as an additional feature to our gas delivery systems.
Our self-funded technology development and new product engineering expenses were approximately $613,000, $733,000 (excluding our write-off of $889,000 of purchased in-process research and development) and $1,155,000 for 2001, 2002 and 2003. We perform our technology development activities principally at our facilities in Menlo Park, California.
Intellectual Property
Our success depends in part on our ability to maintain and protect our proprietary technology and to conduct our business without infringing the proprietary rights of others. Our business is largely dependent
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We routinely require our employees, suppliers and potential business partners to enter into confidentiality and non-disclosure agreements before we disclose to them any sensitive or proprietary information regarding our products, technology or business plans. We require employees to assign to us proprietary information, inventions and other intellectual property they create, modify or improve.
We may be required to spend significant resources to monitor and protect our intellectual property rights. We may not be able to detect infringement of our proprietary rights and may lose our competitive position in the market if any such infringement occurs. In addition, competitors may design around our technology or develop competing technologies and know-how.
In addition, third parties may claim that we are infringing their intellectual property rights, and although we do not know of any infringement by our products of the valid intellectual property rights of third parties, we may be unaware of intellectual property rights of others that may cover some of our products. Any litigation regarding patents or other intellectual property rights could be costly and time-consuming and divert our management and key personnel from our business operations. The complexity of the technology involved and the uncertainty of intellectual property litigation increase these risks. Claims of intellectual property infringement might also require us to obtain licenses, which we may not be able to obtain on terms acceptable to us, or at all. We also may be subject to significant damages or injunctions against development and sale of certain of our products if any infringement claims against us prove successful.
Competition
Our industry is highly fragmented, and we have numerous competitors. Our principal competitors are Celerity Group, Inc., Integrated Flow Systems, Matheson Tri-Gas, Inc. and Wolfe Engineering, Inc. When we compete for new business at OEMs, we face competition from other suppliers of gas delivery systems as well as the OEMs internal manufacturing group. Although we have not faced competition in the past from the largest subsystem and component manufacturers in the semiconductor capital equipment industry, these suppliers could compete with us in the future. In addition, OEMs that have elected to outsource their gas delivery systems could elect in the future to develop and manufacture these subsystems internally, leading to further competition. We expect to face new competitors as we enter new markets. Some of our competitors have substantially greater financial, technical, manufacturing and marketing resources than we do. We expect our competitors to continue to improve the performance of their current products and to introduce new products or new technologies that could adversely affect sales of our current and future products. In addition, the limited number of potential customers in our industry further intensifies competition. We anticipate that increased competitive pressures will cause intensified price-based competition and we may have to reduce the prices of our products. The primary competitive factors in our industry are price, technology, quality, design-to-delivery cycle time, reliability in meeting product demand, service and historical customer relationships.
Employees
As of February 23, 3004, we had 288 employees, of which 78 were temporary employees. Of our total employees, 47 were in engineering, 3 in technology development, 18 in sales and support, 111 in direct manufacturing, 90 in indirect manufacturing and 19 in executive and administrative functions. None of our employees are represented by a labor union and we have not experienced any work stoppages.
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Facilities
Our headquarters are located in Menlo Park, California, where we lease approximately 32,000 square feet of commercial space under a term lease that expires on July 31, 2004. We expect to be able to renew this lease prior to its expiration on more favorable terms. We use this space for our principal administrative, sales and support, engineering and technology development facilities and for manufacturing purposes. Approximately 6,500 square feet at our Menlo Park facility is a clean room manufacturing facility. We also have manufacturing facilities in Austin, Texas, and Tualatin, Oregon. In Austin, we lease approximately 12,000 square feet of manufacturing space under a lease term that expires on August 1, 2005, subject to renewal for up to five years at our option. Approximately 3,500 square feet in Austin is a clean room manufacturing facility. In Tualatin, we lease approximately 15,000 square feet of manufacturing space under a term lease that expires on October 15, 2007, subject to renewal for up to five years at our option. Approximately 4,000 square feet in Tualatin is a clean room manufacturing facility.
Governmental Regulation and Environmental Matters
Our operations are subject to federal, state and local regulatory requirements and foreign laws, relating to environmental, waste management and health and safety matters, including measures relating to the release, use, storage, treatment, transportation, discharge, disposal and remediation of contaminants, hazardous substances and wastes, as well as practices and procedures applicable to the construction and operation of our facilities. Our past or future operations may result in exposure to injury or claims of injury by employees or the public which may result in material costs and liabilities to us. Although some risk of costs and liabilities related to these matters is inherent in our business, we believe that our business is operated in substantial compliance with applicable regulations. However, new, modified or more stringent requirements or enforcement policies could be adopted, which could adversely affect us.
Legal Proceedings
We are not currently a party to any material legal proceedings.
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MANAGEMENT
Executive Officers and Directors
Set forth below is information concerning our
executive officers and directors as of December 31, 2003:
Name
Age
Position
55
President, Chief Executive Officer, Chief
Operating Officer and Director
49
Chief Financial Officer
55
Vice President of Engineering
42
Vice President of Sales
35
Vice President of Technology and Chief Technology
Officer
34
Director
32
Director
53
Director
Clarence L. Granger, has served as our Chief Executive Officer since November 2002, as our President and Chief Operating Officer since March 1999 and as a director since May 2002. Mr. Granger served as our Executive Vice President and Chief Operating Officer from January 1998 to March 1999 and as our Executive Vice President of Operations from April 1996 to January 1998. Prior to joining Ultra Clean in April 1996, he served as Vice President of Media Operations for Seagate Technology from 1994 to 1996. Prior to that, Mr. Granger worked for HMT Technology as Chief Executive Officer from 1993 to 1994, as Chief Operating Officer from 1991 to 1993 and as President from 1989 to 1994. Prior to that, Mr. Granger worked for Xidex as Vice President and General Manager, Thin Film Disk Division, from 1988 to 1989, as Vice President, Santa Clara Oxide Disk Operations, from 1987 to 1988, as Vice President, U.S. Tape Operations, from 1986 to 1987 and as Director of Engineering from 1983 to 1986. Mr. Granger holds a master of science degree in industrial engineering from Stanford University and a bachelor of science degree in industrial engineering from the University of California at Berkeley.
Kevin L. Griffin has served as our Chief Financial Officer since February 2000. Mr. Griffin served as our controller from May 1992 to February 2000. Prior to joining Ultra Clean in May 1992, Mr. Griffin served as Manager of Accounting and Finance at Mitsubishi International Corporation from 1989 to 1991. Prior to that, Mr. Griffin was employed by Rudolf & Sletten as a project accountant from 1987 to 1988. Mr. Griffin holds a bachelor of arts degree in economics and history from the University of California at Santa Barbara.
Bruce Wier has served as our Vice President of Engineering since February 2000. Mr. Wier served as our Director of Design Engineering from July 1997 to February 2000. Prior to joining Ultra Clean in July 1997, Mr. Wier was the Engineering Manager for the Oxide Etch Business Unit at Lam Research from April 1993 to June 1997. Prior to that, Mr. Wier was the Senior Project Engineering Manager at Genus from May 1990 to April 1993, the Mechanical Engineering Manager at Varian Associates from November 1985 to May 1990, and the Principal Engineer/ Project Manager at Eaton Corporation from February 1981 to November 1985. Mr. Wier is also on the board of directors of, and is the Chief Financial Officer for, Acorn Travel, a travel company formed by his wife in 1999. Mr. Wier holds a bachelor of science degree cum laude in mechanical engineering from Syracuse University.
Deborah Hayward has served as our Vice President of Sales since October 2002. Ms. Hayward served as our Senior Sales Director from May 2001 to October 2002, as Sales Director from February 1998 to May 2001 and as a major account manager from October 1995 to February 1998. Prior to joining Ultra Clean in 1995, she was a customer service manager and account manager at Brooks Instruments from 1985 to 1995.
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Sowmya Krishnan, Ph.D., has served as our Vice President of Technology since January 2004 and as our Chief Technology Officer since February 2001. Dr. Krishnan served as our Director of Technology Development from January 1998 to January 2001, as Manager of Technology Development from January 1995 to December 1997 and as manager of a joint evaluation program between Ultra Clean and VLSI Technology from February 1994 to December 1994. Dr. Krishnan holds a master of science degree in chemical engineering and a doctorate degree in chemical engineering from Clarkson University.
Dipanjan Deb has served as a director of Ultra Clean since November 2002. Mr. Deb is a founder of Francisco Partners and has been a partner since its formation in August 1999. Prior to joining Francisco Partners, Mr. Deb was a principal with Texas Pacific Group from 1998 to 1999. Earlier in his career, Mr. Deb was director of semiconductor banking at Robertson Stephens & Company and a management consultant at McKinsey & Company. Mr. Deb is also on the board of directors of AMIS Holdings, Inc., GlobespanVirata, Inc., Legerity, Inc. and NPTest Holding Corporation. Mr. Deb holds a bachelor of science degree in electrical engineering and computer science from the University of California, Berkeley, where he was a Regents Scholar, and masters in business administration from the Stanford University Graduate School of Business.
David T. ibnAle has served as a director of Ultra Clean since November 2002. Mr. ibnAle is a Principal of Francisco Partners and has been an investment professional with Francisco Partners since December 1999, when he joined as a Vice President. Prior to joining Francisco Partners, Mr. ibnAle was an Associate with Summit Partners from 1996 to 1998. Prior to that he worked in the Corporate Finance Department of Morgan Stanley & Co. from 1994 to 1996. Mr. ibnAle also worked in the Fixed Income Division of Goldman Sachs & Co. Mr. ibnAle holds an A.B. in public policy and an A.M. in international development policy from Stanford University and a masters in business administration from the Stanford University Graduate School of Business.
Thomas M. Rohrs
has
served as a director of Ultra Clean since January 2003.
Mr. Rohrs has been Vice President, Strategic Development,
of Applied Global Services since October 2003. Prior to that, he
was a senior advisor to Applied Materials, Inc. from May 2002 to
September 2003 and Senior Vice President, Global Operations, at
Applied Materials, Inc. from November 1997 to April 2002. Prior
to that he was Vice President, Worldwide Operations, for Silicon
Graphics from 1992 to 1997 and Senior Vice President,
Manufacturing and Customer Service, at MIPS Computer Systems
from 1989 to 1992. Prior to 1989, Mr. Rohrs was employed by
Hewlett Packard in a number of managerial positions.
Mr. Rohrs is on the board of directors of Magma Design
Automation, Inc., Ion Systems, Inc. and nthOrbit, Inc.
Mr. Rohrs has a bachelor of science in mechanical
engineering from the University of Notre Dame and a masters in
business administration from Harvard Business School. He serves
on the Engineering Advisory Council for the University of Notre
Dame.
Board Structure and Compensation
Pursuant to a stockholders agreement, our
principal stockholder, FP-Ultra Clean, LLC, which is controlled
by Francisco Partners, has the right to nominate for election a
majority of the members of our board of directors as long as it
holds at least 25% of our outstanding common stock. However, as
FP-Ultra Clean, LLCs ownership interest in us decreases,
its right to nominate directors will be reduced as follows:
Percent of nominees for election
Percentage stock ownership
to our board of directors
50%
25%
20%
10%
0%
Our board of directors currently consists of four directors. All of our directors will stand for election at each annual meeting of stockholders. Non-employee directors will be paid an annual fee in an amount
49
Our board of directors has the following committees:
Audit Committee. The audit committee of our board of directors reviews our financial statements and accounting practices and makes recommendations to our board of directors regarding the selection of independent auditors. In addition, any transaction in which one of our directors has a conflict of interest must be disclosed to our board of directors and reviewed by the audit committee. Under our corporate governance guidelines, if a director has a conflict of interest, the director must disclose the interest to the audit committee and our board of directors and must recuse himself or herself from participation in the discussion and must not vote on the matter. In addition, the audit committee is authorized to retain special legal, accounting or other advisors in order to seek advice or information with respect to all matters under consideration, including potential conflicts of interest. Our audit committee consists of Messrs. Deb, ibnAle and Rohrs. | |
Compensation Committee. The compensation committee of our board of directors makes recommendations to our board of directors concerning salaries and incentive compensation for our officers and employees and administers our employee benefit plans. Our compensation committee consists of Messrs. Deb, ibnAle and Rohrs. | |
Nominating and Corporate Governance Committee. The nominating and corporate governance committee of our board of directors identifies and recommends nominees to our board of directors, oversees and sets compensation for our directors and oversees compliance with our corporate governance guidelines. Our nominating and corporate governance committee consists of Messrs. Deb, ibnAle and Rohrs. | |
Under Exchange Act and Nasdaq rules, each of our board committees must have at least one independent member as of the date of this offering, a majority of independent members within 90 days of the date of this offering and all independent members within one year of the date of this offering. As a result of these new rules, we will be required to change the composition of each of our board committees over time to satisfy these requirements.
Compensation Committee Interlocks and Insider Participation
No member of the compensation committee will serve as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of our board of directors or compensation committee. Additional information concerning transactions between us and entities affiliated with members of the compensation committee is included in this prospectus under the caption Certain Relationships and Related Party Transactions.
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Executive Compensation
The following table sets forth compensation
information for 2003 for our executive officers.
Summary Compensation Table
Stock Option Grants in 2003
The following table sets forth information
concerning grants of options to acquire shares of our common
stock granted to our executive officers for the year ended
December 31, 2003. All options listed in the table become
vested and exercisable over a four year period from the grant
date, with the first 25% vesting on the first anniversary of the
grant date and 1/48 of the shares vesting monthly
thereafter. The options were granted at an exercise price equal
to the fair market value of our common stock on the grant date,
as determined by our board of directors.
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Aggregate Option Exercises in 2003 and
Year-End Option Values
The following table sets forth information
regarding unexercised options held as of December 31, 2003
by each of our executive officers. None of our executive
officers exercised any stock options in the year ended
December 31, 2003.
Employment Agreements
We entered into an employment agreement with
Clarence L. Granger dated November 15, 2002, as amended on
March 2, 2004, pursuant to which he agreed to serve as our
President and Chief Executive Officer through March 2006. His
employment agreement provides for a base salary of $300,000. He
received a signing bonus, of which approximately $74,000 was
paid in cash, $88,000 was paid in cash but used to purchase our
common stock, and $265,000 was placed in a deferred compensation
arrangement payable after seven years (or earlier in the
discretion of our board of directors). Under this deferred
compensation arrangement, we have agreed to pay interest of 2.7%
per annum on the deferred amount, payable on June 30 and
December 31 of each year. Under his employment agreement,
Mr. Granger is eligible to receive a bonus of up to
$150,000, subject to the satisfaction of certain performance
goals as may be set by our board of directors. In the event that
Mr. Granger is terminated by us without cause at any time
or Mr. Granger resigns within six months after a change of
control with good reason, he is entitled to continue to receive
the amount of his base salary for 12 months (offset by any
income earned by him during such 12 months) and
12 months accelerated vesting of his options.
Mr. Granger also entered into a non-compete agreement with
us which expires on November 15, 2004. During the third
quarter of 2003, Mr. Granger agreed to a voluntary
reduction in his base salary as a result of our decreased sales
stemming from the continued downturn in the semiconductor
capital equipment industry.
We entered into an employment agreement with
Kevin L. Griffin dated November 15, 2002, as amended on
March 2, 2004, pursuant to which he agreed to serve as our
Chief Financial Officer. His employment agreement provides for a
base salary of $150,000. He received a signing bonus of
$314,000. Under his employment agreement, Mr. Griffin is
eligible to receive a bonus of up to $95,000, subject to the
satisfaction of certain performance goals as may be set by our
board of directors. In the event that Mr. Griffin is
terminated by us without cause, he is entitled to continue to
receive the amount of his base salary for 12 months (offset
by any income earned by him during such 12 months).
Mr. Griffin also entered into a non-compete agreement with
us which expires on November 15, 2004. During the third
quarter of 2003, Mr. Griffin agreed to a voluntary
reduction in his base salary as a result of our decreased sales
stemming from the continued downturn in the semiconductor
capital equipment industry.
52
Restricted Securities Purchase
Agreements
In connection with the Ultra Clean acquisition,
we entered into Restricted Securities Purchase Agreements, each
dated as of November 26, 2002, with some of our key
employees, including Messrs. Granger, Griffin and Wier and
Dr. Krishnan. Pursuant to these agreements, we issued and
sold an aggregate of 178,975 shares of our common stock at
a purchase price of $1.00 per share and $536,900 aggregate
principal amount of our Series A Senior Notes to these key
employees. We also granted an aggregate of 268,525 shares
of our common shares and $805,500 aggregate principal amount of
our Series A Senior Notes to these same key employees,
which we refer to as bonus securities. The bonus securities vest
at a rate of 25% annually over a four year period, subject
to continued employment, and become fully vested upon a change
in control. A change in control will be deemed to
have occurred upon the consummation of a merger or consolidation
of us with or into any other entity, the sale or disposition of
all or substantially all of our assets or any acquisition by any
person or persons of the beneficial ownership of more than 50%
of the voting power of our equity securities in a single
transaction or series of related transactions;
provided
that an underwritten public offering of our securities shall not
be considered a change in control. The first 25% of the bonus
securities vested in November 2003. We expect to repurchase all
of the vested and unvested Series A Senior Notes with a
portion of the net proceeds of this offering. See Use of
Proceeds. Unvested shares of our common stock will
continue to vest pursuant to the terms of the Restricted
Securities Purchase Agreements.
In addition, on February 20, 2003, we
entered into a second Restricted Securities Purchase Agreement
with Mr. Granger pursuant to which we issued and sold to
him an aggregate of 47,645 shares of our common stock at a
purchase price of $1.00 per share, for a total purchase price of
$47,645.
The following table sets forth the purchase by
and grant of notes and common stock to some of our key employees:
Benefit Plans
Our Amended and Restated 2003 Stock Incentive
Plan provides for the grant of stock options and other
stock-based awards, such as restricted stock or restricted stock
units. Employees, consultants and non-employee members of our
board of directors of us or any of our subsidiaries are eligible
to receive awards under the plan.
As of December 31, 2003, there were
outstanding options to purchase 1,055,250 shares of common
stock under the plan. Upon completion of this offering, stock
awards under the plan may consist of a maximum of
1,812,177 shares of common stock, subject to adjustment in
the event of certain corporate events such as stock splits. The
number of shares reserved for issuance under our Amended and
Restated Stock Incentive Plan will increase automatically on
January 1 of each year beginning in 2005 through 2014 by an
amount equal to the lesser of (i) 2.0% of our then
outstanding shares, (ii) 370,228 shares and
(iii) a lesser number of shares approved by our board of
directors.
Our board of directors or a committee appointed
by our board of directors administers the plan. Subject to the
provisions of the plan, our board of directors or the committee,
as applicable, has the authority to, among other things, make
rules and regulations appropriate for the administration of the
plan
53
Unless otherwise provided in the optionees
option agreement, if the optionees employment is
terminated other than due to death or disability or for cause,
then the optionee has three months from the date of termination
to exercise any options that are vested and exercisable on the
date of termination. If the optionees termination of
employment is due to the optionees death or disability,
all vested and exercisable stock options on the date of
termination will remain exercisable for 12 months following
the date of termination. If the optionees employment is
terminated for cause, any outstanding options, whether vested or
unvested, will terminate immediately. Regardless of the reason
for termination (including death or disability), in no event may
any option be exercised following its expiration.
Subject to certain conditions and stockholder
approval as necessary, our board of directors may amend, alter
or terminate the plan at any time, but no amendment may impair
the rights of any optionee with respect to any outstanding
option without that optionees consent. Unless terminated
earlier by our board of directors, the plan will terminate in
2014.
Our Employee Stock Purchase Plan is intended to
qualify as an employee stock purchase plan under
Section 423 of the Internal Revenue Code. The stock
purchase plan is designed to enable eligible employees to
purchase shares of our common stock at a discount on a periodic
basis (expected to be every six months) through payroll
deductions. We have reserved 555,343 shares of our common
stock for issuance under our stock purchase plan.
Our employees generally will be eligible to
participate in the stock purchase plan if they are employed by
us or by a subsidiary of ours that we designate. Our employees
are not eligible to participate in the stock purchase plan if
they are 5% stockholders or would become 5% stockholders as a
result of their participation in the stock purchase plan. An
employees participation in the stock purchase plan will
end automatically upon termination of employment for any reason.
We sponsor a defined contribution plan intended
to qualify under Section 401 of the Internal Revenue Code,
or a 401(k) plan. Eligible employees may make pre-tax
contributions to the plan of a percentage of their eligible
compensation, subject to certain limits. We match between 50%
and 100% of employee contributions (up to 6% of the
employees annual eligible compensation), depending on the
years of service of the employee.
54
Annual Compensation
Other
Annual
All Other
Name And Principal Position
Salary
Bonus
Compensation
Compensation (1)
$
233,076
$
34,454
$
10,937
President and Chief Executive Officer
179,663
17,498
665
Chief Financial Officer
180,838
13,707
9,404
Vice President of Engineering
110,298
70,415
(2)
2,956
Vice President of Sales
123,654
6,124
3,700
Vice President of Technology and Chief Technology
Officer
(1)
Amounts shown under All Other
Compensation reflect our contributions to our 401(k) plan
on behalf of our executive officers. In addition, the amounts
shown for Mr. Granger, Mr. Griffin and Mr. Wier
also include $2,197, $665 and $1,266, respectively, for life
insurance premiums.
(2)
This amount reflects commissions paid to
Ms. Hayward.
Individual Grants
Potential Realizable Value at
Number of
Percentage of
Assumed Annual Rates of
Securities
Total Options
Stock Price Appreciation for
Underlying
Granted to
Option Term(1)
Options
Employees in
Exercise Price
Name
Granted
2003
($/Share)
Expiration Date
5%
10%
385,000
36.08
%
$
1.00
2/20/2013
$
6,185,000
$
9,601,000
125,000
11.72
1.00
2/20/2013
2,008,000
3,117,000
88,750
8.32
1.00
2/20/2013
1,426,000
2,213,000
46,250
4.33
1.00
2/20/2013
743,000
1,153,000
16,250
1.52
1.00
7/28/2013
267,000
423,000
31,250
2.93
1.00
2/20/2013
502,000
779,000
(1)
This represents hypothetical gains that would
exist for the options at the end of their respective terms based
on assumed annualized rates of compound stock price appreciation
from the date of this prospectus of 5% and 10% based on an
assumed initial public offering price of $11.00 per share. The
disclosure of 5% and 10% assumed rates is required by the rules
of the Securities and Exchange Commission and does not represent
our estimate or projection of future common stock prices or
stock price growth.
Table of Contents
Number of Securities
Value of Unexercised
Underlying Unexercised Options
In-The-Money Options at
at December 31, 2003
December 31, 2003(1)
Name
Exercisable
Unexercisable
Exercisable
Unexercisable
385,000
$
3,850,000
125,000
1,250,000
88,750
887,500
62,500
625,000
31,250
312,500
(1)
The value of unexercised in-the-money options is
based on an assumed initial public offering price of $11.00 per
share, minus the exercise price of the option, multiplied by the
number of shares issued upon the exercise of the option.
Employment Agreement with Clarence L.
Granger
Employment Agreement with Kevin L.
Griffin
Table of Contents
Name
Purchased Shares
Purchased Notes
Bonus Shares
Bonus Notes
153,845
$
318,600
159,300
$
477,900
30,325
91,000
45,500
136,500
21,225
63,700
31,850
95,600
7,575
22,700
11,375
34,100
13,650
40,900
20,500
61,400
226,620
$
536,900
268,525
$
805,500
Amended and Restated 2003 Stock Incentive
Plan
Table of Contents
Employee Stock Purchase Plan
401(k) Plan
Table of Contents
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth information with respect to the beneficial ownership of our common stock outstanding as of December 31, 2003 and on an as adjusted basis to reflect the sale of shares in this offering for:
| each person or group known by us to beneficially own more than 5% of our common stock; | |
| each of our directors and executive officers; | |
| all of our directors and executive officers as a group; and | |
| the selling stockholder, FP-Ultra Clean, LLC, that is offering shares in the over-allotment option granted to the underwriters. |
In accordance with the rules of the Securities and Exchange Commission, beneficial ownership includes voting or investment power with respect to securities and includes the shares issuable pursuant to stock options that are exercisable within 60 days of December 31, 2003. Shares issuable pursuant to stock options are deemed outstanding for computing the ownership percentage of the person holding such options but are not outstanding for computing the ownership percentage of any other person. The number of shares of common stock outstanding after this offering reflects the sale by us of 7,000,000 shares of common stock in this offering. The percentage of beneficial ownership for the following table is based on 10,245,395 shares of common stock outstanding as of December 31, 2003.
Unless otherwise indicated, the address of each of the named entities or individuals is c/o Ultra Clean Holdings, Inc., 150 Independence Drive, Menlo Park, California 94025. To our knowledge, except as indicated in the footnotes to this table and pursuant to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all shares of common stock.
Shares Beneficially | Shares Beneficially | ||||||||||||||||||||||||||||
Owned After the | Owned After the | ||||||||||||||||||||||||||||
Shares Beneficially | Offering Without | Offering With | |||||||||||||||||||||||||||
Owned Before the | Exercise of Over- | Number of | Exercise of Over- | ||||||||||||||||||||||||||
Offering | Allotment Option | Shares Offered | Allotment Option | ||||||||||||||||||||||||||
Name and Address of |
|
|
in Over- |
|
|||||||||||||||||||||||||
Beneficial Owner | Number | Percent | Number | Percent | Allotment | Number | Percent | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||||
Greater than 5% Stockholders:
|
|||||||||||||||||||||||||||||
FP-Ultra Clean, LLC(1)
|
9,750,250 | 95.2 | % | 7,650,250 | 44.4 | % | 1,365,000 | 6,285,250 | 36.4 | % | |||||||||||||||||||
c/o Francisco Partners, L.P. | |||||||||||||||||||||||||||||
2882 Sand Hill Road, Suite 280 | |||||||||||||||||||||||||||||
Menlo Park, CA 94025 | |||||||||||||||||||||||||||||
Francisco Partners, L.P.(2)
|
9,750,250 | 95.2 | % | 7,650,250 | 44.4 | % | 1,365,000 | 6,285,250 | 36.4 | % | |||||||||||||||||||
c/o Francisco Partners, L.P. | |||||||||||||||||||||||||||||
2882 Sand Hill Road, Suite 280 | |||||||||||||||||||||||||||||
Menlo Park, CA 94025 | |||||||||||||||||||||||||||||
Executive Officers and Directors:
|
|||||||||||||||||||||||||||||
Clarence L. Granger(3)
|
409,395 | 4.0 | % | 409,395 | 2.4 | % | 0 | 409,395 | 2.4 | % | |||||||||||||||||||
Kevin L. Griffin(4)
|
107,075 | 1.0 | % | 107,075 | * | 0 | 107,075 | * | |||||||||||||||||||||
Bruce Wier(5)
|
75,275 | * | 75,275 | * | 0 | 75,275 | * | ||||||||||||||||||||||
Deborah Hayward(6)
|
11,563 | * | 11,563 | * | 0 | 11,563 | * | ||||||||||||||||||||||
Sowmya Krishnan(7)
|
26,756 | * | 26,756 | * | 0 | 26,756 | * |
55
Shares Beneficially | Shares Beneficially | |||||||||||||||||||||||||||
Owned After the | Owned After the | |||||||||||||||||||||||||||
Shares Beneficially | Offering Without | Offering With | ||||||||||||||||||||||||||
Owned Before the | Exercise of Over- | Number of | Exercise of Over- | |||||||||||||||||||||||||
Offering | Allotment Option | Shares Offered | Allotment Option | |||||||||||||||||||||||||
Name and Address of |
|
|
in Over- |
|
||||||||||||||||||||||||
Beneficial Owner | Number | Percent | Number | Percent | Allotment | Number | Percent | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Dipanjan Deb(8)
|
9,750,250 | 95.2 | % | 7,650,250 | 44.4 | % | 2,100,000 | 6,285,250 | 36.4 | % | ||||||||||||||||||
David T. ibnAle(9)
|
9,750,250 | 95.2 | % | 7,650,250 | 44.4 | % | 2,100,000 | 6,285,250 | 36.4 | % | ||||||||||||||||||
Thomas M. Rohrs(10)
|
16,250 | * | 16,250 | * | 0 | 16,250 | * | |||||||||||||||||||||
All executive officers and directors as a group
(8 persons)(11)
|
10,396,564 | 99.8 | % | 8,296,564 | 48.1 | % | 2,100,000 | 6,931,564 | 40.2 | % |
* | Less than 1% of the outstanding shares of common stock. |
(1) | All of the membership interests of FP-Ultra Clean, LLC are beneficially owned by Francisco Partners, L.P. Voting and investment power belongs to a group of managing directors of Francisco Partners, L.P. Francisco Partners, L.P.s managing directors include Dipanjan Deb, David Stanton, Benjamin Ball, Neil Garfinkel, David Golob, Sanford Robertson, Gerald Morgan and Keith Geeslin. The voting and investment power belongs to a group and not to any individual managing director. Each of these managing directors disclaims beneficial ownership of the securities held by Francisco Partners, L.P., except with respect to his pecuniary interest in Francisco Partners, L.P. |
(2) | Francisco Partners, L.P.s managing directors include Dipanjan Deb, David Stanton, Benjamin Ball, Neil Garfinkel, David Golob, Sanford Robertson, Gerald Morgan and Keith Geeslin. |
(3) | Includes 119,475 unvested shares granted in connection with the Ultra Clean acquisition and options to purchase 96,250 shares of common stock exercisable within 60 days of December 31, 2003. See Management Restricted Securities Purchase Agreements. |
(4) | Includes 34,125 unvested shares granted in connection with the Ultra Clean acquisition and options to purchase 31,250 shares of common stock exercisable within 60 days of December 31, 2003. See Management Restricted Securities Purchase Agreements. |
(5) | Includes 23,897 unvested shares granted in connection with the Ultra Clean acquisition and options to purchase 22,187 shares of common stock exercisable within 60 days of December 31, 2003. See Management Restricted Securities Purchase Agreements. |
(6) | Includes options to purchase 11,562 shares of common stock exercisable within 60 days of December 31, 2003. |
(7) | Includes 8,526 unvested shares granted in connection with the Ultra Clean acquisition and options to purchase 7,812 shares of common stock exercisable within 60 days of December 30, 2003. See Management Restricted Securities Purchase Agreements. |
(8) | Includes 9,750,250 shares beneficially owned by Francisco Partners, L.P. Mr. Deb is a managing director of Francisco Partners, L.P. and disclaims beneficial ownership of the shares held by Francisco Partners, L.P., except with respect to his pecuniary interest in Francisco Partners, L.P. |
(9) | Includes 9,750,250 shares beneficially owned by Francisco Partners, L.P. Mr. ibnAle is a principal of Francisco Partners, L.P. and disclaims beneficial ownership of the shares held by Francisco Partners, L.P., except with respect to his pecuniary interest in Francisco Partners, L.P. |
(10) | Includes options to purchase 16,250 shares of common stock exercisable within 60 days of December 31, 2003. |
(11) | Includes 9,750,250 shares beneficially owned by Francisco Partners, L.P., 186,023 unvested shares granted in connection with the Ultra Clean acquisition and options to purchase 169,062 shares of common stock exercisable within 60 days of December 31, 2003. |
56
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Relationship with Francisco Partners
On November 15, 2002, Ultra Clean Holdings, Inc., which is owned by FP-Ultra Clean, LLC (95.2%) and by some of our key employees (4.8%), acquired Ultra Clean Technology Systems and Service, Inc. After completion of this offering, FP-Ultra Clean, LLC will own approximately 44.4% of our outstanding common stock, assuming no exercise of the underwriters over-allotment option. Two of our directors, Messrs. Deb and ibnAle, are employees of Francisco Partners. Set forth below is a brief description of the existing relationships and agreements between us and Francisco Partners.
5% Series A Senior Notes due 2009 |
In connection with the Ultra Clean acquisition, we issued and sold to FP-Ultra Clean, LLC, in a series of transactions from November 15, 2002 through December 2, 2002, an aggregate of $29,250,000 of our Series A Senior Notes. The notes bear interest at a rate of 5% per annum which is payable in cash, semi-annually, on June 15 and December 15 and can be repaid, in whole or in part, without penalty. We expect to repurchase these notes with a portion of the net proceeds of this offering. See Use of Proceeds.
Advisory Fees |
In connection with the Ultra Clean acquisition, we paid an advisory fee of $2.0 million to Francisco Partners Management, LLC, an affiliate of Francisco Partners, L.P. In addition, we have agreed to pay Francisco Partners Management, LLC a one-time fee of $2.0 million for advisory services performed during the period leading up to our initial public offering. We are not required to pay any additional advisory services or other similar fees to Francisco Partners or any of its affiliates.
Stockholders Agreement |
We and FP-Ultra Clean, LLC have entered into a stockholders agreement. The stockholders agreement covers matters of corporate governance, restrictions on transfer of our securities and information rights.
Corporate Governance. The stockholders agreement provides that FP-Ultra Clean, LLC has the right to nominate for election members of our board of directors as set forth under Management Board Structure and Compensation.
The stockholders agreement also provides that our board of directors may not take certain significant actions without the approval of FP-Ultra Clean, LLC as long as it owns at least 25% of our outstanding common stock. These actions include:
| mergers, acquisitions or certain sales of assets; | |
| any liquidation, dissolution or bankruptcy; | |
| issuances of securities; | |
| determination of compensation and benefits for our chief executive officer and chief financial officer; | |
| appointment or dismissal of any of the chairman of our board of directors, chief executive officer, chief financial officer or any other executive officer in any similar capacity; | |
| amendments to the stockholders agreement or exercise or waiver of rights under the stockholders agreement; | |
| amendments to our charter or bylaws; | |
| any increase or decrease in the number of directors that comprise our board of directors; |
57
| the declaration of dividends or other distributions; | |
| any incurrence or refinancing of indebtedness in excess of $10 million; | |
| approval of our business plan, budget and strategy; and | |
| modification of our long-term business strategy. |
All of the provisions of the stockholders agreement are expressly subject to any requirements as to governance imposed by rules of the Securities and Exchange Commission, The Nasdaq National Market or any other exchange on which our securities are listed.
Restrictions on Transfer. Generally, FP-Ultra Clean, LLC is prohibited from transferring its securities of Ultra Clean Holdings, Inc. without complying with restrictions relating to the timing of the transfer, the number of securities subject to the transfer and the transferee of such securities.
Information Rights. So long as FP-Ultra Clean, LLC holds any of our securities, it has the right to receive from us financial information, monthly management reports, reports from our independent public accountants and such additional information regarding our financial position or business as it reasonably requests.
Registration Rights Agreement |
FP-Ultra Clean, LLC has registration rights with respect to our common stock pursuant to the registration rights agreement dated December 2, 2002.
Demand Registration. The registration rights agreement provides that, after we have completed this offering and upon the expiration of the lock-up period imposed by the underwriters, we can be required to effect additional registration statements, or demand registrations, registering the securities held by FP-Ultra Clean, LLC. We are required to pay the registration expenses in connection with each demand registration. We may decline to honor any of these demand registrations if the aggregate gross proceeds expected to be received does not equal or exceed $5.0 million or if we have effected a demand registration within the preceding ninety days. If a demand registration is underwritten and the managing underwriter advises us that the number of securities offered to the public needs to be reduced, priority of inclusion in the demand registration shall be such that first priority shall be given to FP-Ultra Clean, LLC and its permitted transferees.
Incidental Registration. In addition to our obligations with respect to demand registrations, if we propose to register any of our securities, other than a registration on Form S-8 or S-4 or successor forms to these forms, whether or not such registration is for our own account, FP-Ultra Clean LLC will have the opportunity to participate in such registration. Expenses relating to these incidental registrations are required to be paid by us.
If an incidental registration is underwritten and the managing underwriter advises us that the number of securities offered to the public needs to be reduced, priority of inclusion shall be such that first priority shall be given to us and second priority shall be given to FP-Ultra Clean, LLC and its permitted transferees. We and the stockholders selling securities under a registration statement are required to enter into customary indemnification and contribution arrangements with respect to each registration statement. FP-Ultra Clean, LLC has agreed not to exercise its registration rights without the prior written consent of Credit Suisse First Boston LLC for a period of 180 days after the date of this prospectus.
Transactions with Management
In connection with the Ultra Clean acquisition, we entered into Restricted Securities Purchase Agreements, each dated as of November 26, 2002, with some of our key employees, including Messrs. Granger, Griffin and Wier and Dr. Krishnan. Pursuant to these agreements, we issued and sold an aggregate of 178,975 shares of our common stock at a purchase price of $1.00 per share and $536,900 aggregate principal amount of our Series A Senior Notes to these key employees. The notes were issued
58
In addition, on February 20, 2003, we entered into a second Restricted Securities Purchase Agreement with Mr. Granger pursuant to which we issued and sold to him an aggregate of 47,645 shares of our common stock at a purchase price of $1.00 per share, for a total purchase price of $47,645.
59
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for our common stock. Future sales of substantial amounts of our common stock in the public market could adversely affect market prices prevailing from time to time. Furthermore, because only a limited number of shares will be available for sale shortly after this offering due to existing contractual and legal restrictions on resale as described below, there may be sales of substantial amounts of our common stock in the public market after the restrictions lapse. This may adversely affect the prevailing market price and our ability to raise equity capital in the future.
As of December 31, 2003, after giving effect to the offering and assuming no exercise of any stock options, we would have had 17,245,395 shares of common stock outstanding. Of these shares, the 9,100,000 shares sold in this offering will be freely transferable without restriction or registration under the Securities Act, except for any shares purchased by one of our affiliates, as that term is defined in Rule 144 under the Securities Act. The remaining shares of common stock are restricted shares as defined in Rule 144. Restricted shares may be sold in the public market only if registered or if they qualify for an exemption from registration under Rules 144 or 701 of the Securities Act. As a result of the contractual 180-day lock-up period described below and the provisions of Rules 144 and 701, these shares will be available for sale in the public market as follows:
Number of Shares | Date | |
|
|
|
9,100,000
|
On the date of this prospectus. | |
17,245,395
|
After 180 days from the date of this prospectus (subject, in some cases, to volume limitations). |
Rule 144
In general, under Rule 144 as currently in effect, beginning 90 days after this offering, a person, or persons whose shares are aggregated, who owns shares that were purchased from us, or any affiliate, at least one year previously, is entitled to sell within any three-month period a number of shares that does not exceed the greater of 1% of our then-outstanding shares of common stock, which will equal approximately 172,450 shares immediately after this offering, assuming no exercise of any stock options outstanding as of December 31, 2003, or the average weekly trading volume of our common stock on The Nasdaq National Market during the four calendar weeks preceding the filing of a notice of the sale on Form 144. Sales under Rule 144 are also subject to manner of sale provisions, notice requirements and the availability of current public information about us. We are unable to estimate the number of shares that will be sold under Rule 144 since this will depend on the market price for our common stock, the personal circumstances of the stockholder and other factors.
Rule 144(k)
Under Rule 144(k), a person who is not deemed to have been one of our affiliates at any time during the three months preceding a sale, and who owns shares within the definition of restricted securities under Rule 144 that were purchased from us, or any affiliate, at least two years previously, would be entitled to sell shares under Rule 144(k) without regard to the volume limitations, manner of sale provisions, public information requirements or notice requirements described above.
Rule 701
In general, under Rule 701, any of our employees, directors, officers, consultants or advisors who purchases shares from us in connection with a compensatory stock or option plan or other written agreement before the effective date of this offering is entitled to resell such shares 90 days after the effective date of this offering in reliance on Rule 144, without having to comply with the holding period requirements or other restrictions contained in Rule 701.
The Securities and Exchange Commission has indicated that Rule 701 will apply to typical stock options granted by an issuer before it becomes subject to the reporting requirements of the Securities
60
Registration Rights
Following this offering and assuming no exercise of the underwriters over-allotment option, FP-Ultra Clean, LLC or its transferees will be entitled to various rights with respect to the registration under the Securities Act of the 7,650,250 that it will hold upon completion of this offering. Registration of these shares under the Securities Act would result in these shares becoming freely tradable without restriction under the Securities Act immediately upon the effectiveness of the registration, except for shares purchased by affiliates. For further information regarding these registration rights, see Certain Relationships and Related Party Transactions Relationship with Francisco Partners Registration Rights Agreement.
Stock Options
As of December 31, 2003, options to purchase a total of 1,055,250 shares of common stock were outstanding. All of the shares subject to options are subject to lock-up agreements. As of the date of this prospectus, 1,812,177 shares of common stock were available for future option grants under our Amended and Restated 2003 Stock Incentive Plan.
Upon completion of this offering, we intend to file a registration statement on Form S-8 under the Securities Act covering all shares of common stock subject to outstanding options or issuable pursuant to our Amended and Restated 2003 Stock Incentive Plan. Subject to Rule 144 volume limitations applicable to affiliates, shares registered under the Form S-8 registration statement will be available for sale in the open market, beginning 90 days after the date of the prospectus, except to the extent that the shares are subject to vesting restrictions with us or the contractual restrictions described below.
Lock-up Agreements
Our officers, directors and substantially all of our security holders have entered into the lock-up agreements described in Underwriting.
61
DESCRIPTION OF CAPITAL STOCK
The following description summarizes the material terms of our capital stock. This information does not purport to be complete and is subject in all respects to the applicable provisions of our amended and restated certificate of incorporation and bylaws.
General
Our authorized capital stock consists of 90,000,000 shares of common stock, $0.001 par value per share, and 10,000,000 shares of undesignated preferred stock, $0.001 par value per share.
Common Stock
As of December 31, 2003, we had 10,245,395 shares of common stock outstanding which were held of record by seven stockholders. As of December 31, 2003, after giving effect to the offering and assuming no exercise of any stock options, we would have had 17,245,395 shares of common stock outstanding. The holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. All shares of our common stock are entitled to share equally in any dividends our board of directors may declare from legally available sources. We have applied to have our common stock listed for quotation on The Nasdaq National Market under the symbol UCTT.
Preferred Stock
Our board of directors is authorized, subject to any limitations imposed by law, without stockholder approval, from time to time to issue up to 10,000,000 shares of preferred stock in one or more series, each series to have rights and preferences, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, as our board of directors may determine. The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from attempting to acquire, a majority of our voting stock outstanding. As of December 31, 2003, we had no shares of preferred stock outstanding, and we have no present plans to issue any shares of preferred stock.
Anti-Takeover Measures
Delaware law and provisions of our charter documents could discourage potential acquisition proposals and could delay, deter or prevent a change in control. The anti-takeover provisions of Delaware law impose various impediments to the ability of a third party to acquire control of us, even if a change in control would be beneficial to our existing stockholders. However, we have elected not to be governed by Section 203 of Delaware law, which means that we have elected not to take advantage of anti-takeover protection related to transactions with interested stockholders. Additionally, provisions of our amended and restated certificate of incorporation and bylaws to be effective on the completion of this offering could deter, delay or prevent a third party from acquiring us, even if doing so would benefit our stockholders. These provisions include:
| a requirement that special meetings of stockholders may be called only by the chairman of our board of directors or our president or, upon the written request of two directors, our secretary; | |
| advance notice requirements for stockholder proposals and nominations; and | |
| the authority of our board of directors to issue, without stockholder approval, preferred stock with such terms as our board of directors may determine. |
In addition to the anti-takeover measures described above, provisions of our stockholders agreement with FP-Ultra Clean, LLC could deter, delay or prevent a third party from acquiring us. See Certain Relationships and Related Party Transactions Relationship with Francisco Partners Stockholders Agreement.
62
Transfer Agent and Registrar
Wells Fargo Shareowner Services will serve as the
transfer agent and registrar for our common stock. The transfer
agents address is 161 North Concord Exchange, South
St. Paul, Minnesota 55075-1139 and the telephone number is
(800) 468-9716.
63
Table of Contents
MATERIAL U.S. FEDERAL TAX CONSIDERATIONS FOR
The following is a general discussion of the material U.S. federal income and estate tax consequences of the ownership and disposition of common stock by a beneficial owner that is a non-U.S. holder and that does not own, and is not deemed to own, more than 5% of our common stock. A non-U.S. holder is a person or entity that, for U.S. federal income tax purposes, is a:
| non-resident alien individual, other than certain former citizens and residents of the United States subject to tax as expatriates, | |
| foreign corporation or | |
| foreign estate or trust. |
A non-U.S. holder does not include an individual who is present in the United States for 183 days or more in the taxable year of disposition and is not otherwise a resident of the United States for U.S. federal income tax purposes. Such an individual is urged to consult his or her own tax advisor regarding the U.S. federal income tax consequences of the sale, exchange or other disposition of common stock.
This discussion is based on the Internal Revenue Code of 1986, as amended (the Code), and administrative pronouncements, judicial decisions, and final and temporary Treasury Regulations, changes to any of which subsequent to the date of this prospectus may affect the tax consequences described herein. This discussion does not address all aspects of U.S. federal income and estate taxation that may be relevant to non-U.S. holders in light of their particular circumstances and does not address any tax consequences arising under the laws of any state, local or foreign jurisdiction. Prospective holders are urged to consult their tax advisors with respect to the particular tax consequences to them of owning and disposing of common stock, including the consequences under the laws of any state, local or foreign jurisdiction.
Dividends
As discussed under Dividend Policy above, we do not currently expect to pay dividends. In the event that we do make distributions, however, distributions made to a non-U.S. holder of common stock out of our current or accumulated earnings and profits generally will constitute dividends for U.S. tax purposes and generally will be subject to withholding tax at a 30% rate or a reduced rate specified by an applicable income tax treaty. In order to obtain a reduced rate of withholding, a non-U.S. holder will be required to provide an Internal Revenue Service Form W-8BEN certifying its entitlement to benefits under a treaty. To the extent distributions exceed our current and accumulated earnings and profits, they will constitute a return of capital and will first reduce your basis in our common stock (but not below zero) and then will be treated as gain from the sale of common stock.
The withholding tax does not apply to dividends paid to a non-U.S. holder who provides a Form W-8ECI, certifying that the dividends are effectively connected with the non-U.S. holders conduct of a trade or business within the United States. Instead, the effectively connected dividends will be subject to regular U.S. income tax as if the non-U.S. holder were a U.S. resident. A non-U.S. corporation receiving effectively connected dividends may also be subject to an additional branch profits tax imposed at a rate of 30% (or a lower treaty rate).
Gain on Disposition of Common Stock
A non-U.S. holder generally will not be subject to U.S. federal income tax on gain realized on a sale or other disposition of common stock unless:
| the gain is effectively connected with a trade or business of the non-U.S. holder in the United States, subject to an applicable treaty providing otherwise, or |
64
| we are or have been a U.S. real property holding corporation, as defined in the Code, at any time within the five-year period preceding the disposition or the non-U.S. holders holding period, whichever period is shorter, and our common stock has ceased to be traded on an established securities market prior to the beginning of the calendar year in which the sale or disposition occurs. |
We believe that we are not, and do not anticipate becoming, a U.S. real property holding corporation.
Information Reporting Requirements and Backup Withholding
Information returns will be filed with the Internal Revenue Service in connection with payments of dividends. Unless you comply with certification procedures to establish that you are not a United States person, information returns may be filed with the Internal Revenue Service in connection with the proceeds from a sale or other disposition of common stock and you may be subject to backup withholding tax on payments of dividends or on the proceeds from a sale or other disposition of common stock. The certification procedures required to claim a reduced rate of withholding under a treaty will satisfy the certification requirements necessary to avoid the backup withholding tax as well. The amount of any backup withholding from a payment to you will be allowed as a credit against your United States federal income tax liability and may entitle you to a refund, provided that the required information is furnished to the Internal Revenue Service.
Federal Estate Tax
An individual non-U.S. holder who is treated as the owner of, or has made certain lifetime transfers of, an interest in the common stock will be required to include the value of the stock in his gross estate for U.S. federal estate tax purposes, and may be subject to U.S. federal estate tax, unless an applicable estate tax treaty provides otherwise.
65
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting agreement dated , 2004, we and the selling stockholder have agreed to sell to the underwriters named below, for whom Credit Suisse First Boston LLC, J.P. Morgan Securities Inc., Banc of America Securities LLC and Piper Jaffray & Co. are acting as representatives, the following respective numbers of shares of common stock:
Number of | |||||
Underwriter | Shares | ||||
|
|
||||
Credit Suisse First Boston LLC
|
|||||
J.P. Morgan Securities Inc.
|
|||||
Banc of America Securities LLC
|
|||||
Piper Jaffray & Co.
|
|||||
|
|||||
Total
|
9,100,000 | ||||
|
The underwriting agreement provides that the underwriters are obligated to purchase all the shares of common stock in the offering if any are purchased, other than those shares covered by the over-allotment option described below. The underwriting agreement also provides that if an underwriter defaults the purchase commitments of non-defaulting underwriters may be increased or the offering may be terminated.
The selling stockholder has granted to the underwriters a 30-day option to purchase on a pro rata basis up to an aggregate of 1,365,000 additional outstanding shares at the initial public offering price less the underwriting discounts and commissions. The option may be exercised only to cover any over-allotments of common stock.
The underwriters propose to offer the shares of common stock initially at the public offering price on the cover page of this prospectus and to selling group members at that price less a selling concession of $ per share. The underwriters and selling group members may allow a discount of $ per share on sales to other broker/ dealers. After the initial public offering, the representatives may change the public offering price and concession and discount to broker/ dealers.
The following table summarizes the compensation and estimated expenses we and the selling stockholder will pay:
Per Share | Total | |||||||||||||||
|
|
|||||||||||||||
Without | With | Without | With | |||||||||||||
Over-allotment | Over-allotment | Over-allotment | Over-allotment | |||||||||||||
|
|
|
|
|||||||||||||
Underwriting Discounts and Commissions paid by us
|
$ | $ | $ | $ | ||||||||||||
Expenses payable by us
|
$ | $ | $ | $ | ||||||||||||
Underwriting Discounts and Commissions paid by
the selling stockholder
|
$ | $ | $ | $ | ||||||||||||
Expenses payable by the selling stockholder
|
$ | $ | $ | $ |
The representatives have informed us that they do not expect discretionary sales to exceed 5% of the shares of common stock being offered.
We have agreed that we will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Securities and Exchange Commission a registration statement under the Securities Act relating to, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of Credit Suisse First Boston LLC for a period of 180 days after the date of this prospectus; provided that we may issue up to $15,000,000 in
66
Our officers, directors, the selling stockholder and holders of our outstanding securities have agreed that they will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of our common stock, whether any of these transactions are to be settled by delivery of our common stock or other securities, in cash or otherwise, or publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of Credit Suisse First Boston LLC for a period of 180 days after the date of this prospectus. Notwithstanding the foregoing, our officers, directors and security holders subject to lock-up agreements may transfer shares of our common stock or securities convertible into or exchangeable or exercisable for shares of our common stock as a bona fide gift or to family trusts, provided that the transferee agrees to the lock-up terms applicable to the transferor.
We and the selling stockholder have agreed to indemnify the underwriters against liabilities under the Securities Act, or contribute to payments that the underwriters may be required to make in that respect.
We have applied to list the shares of common stock for quotation on The Nasdaq National Market under the symbol UCTT.
Some of the underwriters have provided investment banking and advisory services for us from time to time for which they have received customary fees and expenses. The underwriters may, from time to time, engage in transactions with and perform services for us in the ordinary course of their business.
Prior to this offering, there has been no public market for our common stock. The initial public offering price was determined by negotiation between us and the underwriters and does not necessarily reflect the market price for the common stock following the offering. The principal factors that were considered in determining the public offering price included:
| the history of and prospects for our industry and for semiconductor companies generally; | |
| an assessment of our management; | |
| our present operations; | |
| our historical results of operations; | |
| our earnings prospects; | |
| the general condition of the securities markets at the time of this offering; and | |
| recent market prices of, and the demand for, publicly traded common stock of generally comparable companies. |
We cannot be sure that the initial public offering price will correspond to the price at which the common stock will trade in the public market following this offering or that an active trading market for the common stock will develop and continue after this offering.
In connection with the offering, the underwriters may engage in stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
| Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. | |
| Over-allotment transactions involve sales by the underwriters of shares in excess of the number of shares the underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short |
67
position, the number of shares over-allotted by the underwriters is not greater than the number of shares that they may purchase in the over-allotment option. In a naked short position, the number of shares involved is greater than the number of shares in the over-allotment option. The underwriters may close out any covered short position by either exercising their over-allotment option and/or purchasing shares in the open market. | ||
| Syndicate covering transactions involve purchases of the common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. If the underwriters sell more shares than could be covered by the over- allotment option, a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering. | |
| Penalty bids permit the representatives to reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. |
These stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on The Nasdaq National Market or otherwise and, if commenced, may be discontinued at any time.
A prospectus in electronic format may be made available on the web sites maintained by one or more of the underwriters or selling group members, if any, participating in this offering and one or more of the underwriters participating in this offering may distribute prospectuses electronically. The representatives may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the underwriters and selling group members on the same basis as other allocations.
68
NOTICE TO CANADIAN RESIDENTS
Resale Restrictions
The distribution of our common stock in Canada is being made only on a private placement basis exempt from the requirement that we and the selling stockholder prepare and file a prospectus with the securities regulatory authorities in each province where trades of common stock are made. Any resale of our common stock in Canada must be made under applicable securities laws which will vary depending on the relevant jurisdiction, and which may require resales to be made under available statutory exemptions or under a discretionary exemption granted by the applicable Canadian securities regulatory authority. Purchasers are advised to seek legal advice prior to any resale of our common stock.
Representations of Purchasers
By purchasing our common stock in Canada and accepting a purchase confirmation a purchaser is representing to us, the selling stockholder and the dealer from whom the purchase confirmation is received that
| the purchaser is entitled under applicable provincial securities laws to purchase our common stock without the benefit of a prospectus qualified under those securities laws, | |
| where required by law, that the purchaser is purchasing as principal and not as agent, and | |
| the purchaser has reviewed the text above under Resale Restrictions. |
Rights of Action Ontario Purchasers Only
Under Ontario securities legislation, a purchaser who purchases our common stock offered by this prospectus during the period of distribution will have a statutory right of action for damages, or while still the owner of the shares, for rescission against us and the selling stockholder in the event that this prospectus contains a misrepresentation. A purchaser will be deemed to have relied on the misrepresentation. The right of action for damages is exercisable not later than the earlier of 180 days from the date the purchaser first had knowledge of the facts giving rise to the cause of action and three years from the date on which payment is made for the shares. The right of action for rescission is exercisable not later than 180 days from the date on which payment is made for the shares. If a purchaser elects to exercise the right of action for rescission, the purchaser will have no right of action for damages against us or the selling stockholder. In no case will the amount recoverable in any action exceed the price at which our common stock was offered to the purchaser and if the purchaser is shown to have purchased our common stock with knowledge of the misrepresentation, we and the selling stockholder will have no liability. In the case of an action for damages, we and the selling stockholder will not be liable for all or any portion of the damages that are proven to not represent the depreciation in value of our common stock as a result of the misrepresentation relied upon. These rights are in addition to, and without derogation from, any other rights or remedies available at law to an Ontario purchaser. The foregoing is a summary of the rights available to an Ontario purchaser. Ontario purchasers should refer to the complete text of the relevant statutory provisions.
Enforcement of Legal Rights
All of our directors and officers as well as the experts named herein and the selling stockholder may be located outside of Canada and, as a result, it may not be possible for Canadian purchasers to effect service of process within Canada upon us or those persons. All or a substantial portion of our assets and the assets of those persons may be located outside of Canada and, as a result, it may not be possible to satisfy a judgment against us or those persons in Canada or to enforce a judgment obtained in Canadian courts against us or those persons outside of Canada.
69
Taxation and Eligibility for Investment
Canadian purchasers of our common stock should consult their own legal and tax advisors with respect to the tax consequences of an investment in our common stock in their particular circumstances and about the eligibility of our common stock for investment by the purchaser under relevant Canadian legislation.
LEGAL MATTERS
The validity of the shares of common stock being offered will be passed upon for us by Davis Polk & Wardwell, Menlo Park, California. Selected legal matters in connection with this offering will be passed on for the underwriters by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California.
EXPERTS
The consolidated financial statements as of December 31, 2002 and 2003, and for the years ended December 31, 2001 and 2003, and the periods from January 1, 2002 through November 15, 2002 and November 16, 2002 through December 31, 2002, included in this prospectus have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report appearing herein, and have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement regarding this offering on Form S-1, including all amendments and supplements thereto, with the Securities and Exchange Commission under the Securities Act of 1933, as amended. This prospectus, which constitutes a part of the registration statement, does not contain all of the information included in the registration statement, certain items of which are contained in schedules and exhibits to the registration statement as permitted by the rules and regulations of the Securities and Exchange Commission. You should refer to the registration statement and its exhibits to read that information. Statements made in this prospectus as to any of our contracts, agreements or other documents referred to are not necessarily complete and you should refer to the exhibits attached to the registration statement for copies of the actual contract, agreement or other document. You may read and copy information omitted from this prospectus but contained in the registration statement at the public reference facilities maintained by the Securities and Exchange Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. You may also request copies of all or any portion of such material from the Public Reference Section of the Securities and Exchange Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further information on the operation of the public reference room. In addition, materials filed electronically with the Securities and Exchange Commission are available at the Securities and Exchange Commissions web site at http://www.sec.gov. You may also request a copy of these filings, at no cost, by writing or telephoning us at: Ultra Clean Technology, 150 Independence Drive, Menlo Park, California 94025, (650) 323-4100.
We intend to furnish to our stockholders annual reports containing audited financial statements and quarterly reports for the first three quarters of each fiscal year containing unaudited interim financial information, in each case prepared in accordance with generally accepted accounting principles.
70
INDEX TO FINANCIAL STATEMENTS
ULTRA CLEAN HOLDINGS, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Independent Auditors Report
|
F-2 | |
Consolidated Balance Sheets
|
F-3 | |
Consolidated Statements of Operations
|
F-4 | |
Consolidated Statements of Stockholders
Equity
|
F-5 | |
Consolidated Statements of Cash Flows
|
F-6 | |
Notes to Consolidated Financial Statements
|
F-7 |
F-1
INDEPENDENT AUDITORS REPORT
To the Stockholders of Ultra Clean
We have audited the accompanying statements of
operations, stockholders equity and cash flows of Ultra
Clean Technology Systems and Service, Inc.
(Predecessor) for the year ended December 31,
2001 and the period from January 1, 2002 through
November 15, 2002 (date of disposition) and the
accompanying consolidated balance sheets of Ultra Clean
Holdings, Inc. and its subsidiary (Ultra Clean)
(together with Predecessor, the Company), successor
company, as of December 31, 2002 and 2003, and the related
statements of operations, stockholders equity and cash
flows for the period from November 16, 2002 (date of
acquisition) through December 31, 2002 and year ended
December 31, 2003. These financial statements are the
responsibility of the Companys management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with
auditing standards generally accepted in the United States of
America. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, such financial statements present
fairly, in all material respects, the results of operations and
cash flows of the Predecessor for the year ended
December 31, 2001 and for the period from January 1,
2002 through November 15, 2002 and the consolidated
financial position of Ultra Clean, as of December 31, 2002
and 2003, and the results of its operations and cash flows for
the period from November 16, 2002 through December 31,
2002 and the year ended December 31, 2003 in conformity
with accounting principles generally accepted in the United
States of America.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
F-2
Table of Contents
ULTRA CLEAN HOLDINGS, INC.
CONSOLIDATED BALANCE SHEETS
December 31,
2002
2003
ASSETS
$
6,237
$
6,035
8,362
11,724
1,357
8,229
9,123
2,004
1,802
201
210
26,390
28,894
722
954
175
165
1,410
1,514
2,603
2,599
4,910
5,232
(230
)
(1,659
)
4,680
3,573
6,608
6,617
8,987
8,987
429
353
1,742
1,731
$
48,836
$
50,155
LIABILITIES AND STOCKHOLDERS
EQUITY
$
7,113
$
9,805
3,160
1,459
50
111
10,323
11,375
612
447
29,812
30,013
40,747
41,835
10,198
10,377
(260
)
(316
)
(1,849
)
(1,741
)
8,089
8,320
$
48,836
$
50,155
See notes to consolidated financial statements.
F-3
ULTRA CLEAN HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF
OPERATIONS
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
$
76,486
$
76,338
$
7,916
$
77,520
66,129
66,986
7,972
67,313
10,357
9,352
(56
)
10,207
613
634
99
1,155
1,302
1,586
332
2,276
3,127
6,626
962
4,978
889
5,042
8,846
2,282
8,409
5,315
506
(2,338
)
1,798
(436
)
(170
)
(182
)
(1,458
)
(4
)
(6
)
4
(440
)
(176
)
(178
)
(1,458
)
4,875
330
(2,516
)
340
(1,981
)
(642
)
667
(232
)
$
2,894
$
(312
)
$
(1,849
)
$
108
$
0.79
$
(0.08
)
$
(0.21
)
$
0.01
$
0.64
$
(0.08
)
$
(0.21
)
$
0.01
3,680
3,680
8,668
9,976
4,535
3,680
8,668
10,711
See notes to consolidated financial statements.
F-4
ULTRA CLEAN HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS
EQUITY
Retained
Common Stock
Deferred
Earnings
Total
Stock-based
(Accumulated
Stockholders
Shares
Amount
Compensation
Deficit)
Equity
3,680,000
$
6,440
$
(664
)
$
5,776
2,894
2,894
3,680,000
6,440
2,230
8,670
1,330
1,330
(312
)
(312
)
3,680,000
$
7,770
$
1,918
$
9,688
$
$
$
$
250
9,928,975
9,930
9,930
268,525
268
(268
)
8
8
(1,849
)
(1,849
)
10,197,750
10,198
(260
)
(1,849
)
8,089
47,645
47
47
132
(132
)
76
76
108
108
10,245,395
$
10,377
$
(316
)
$
(1,741
)
$
8,320
See notes to consolidated financial statements.
F-5
ULTRA CLEAN HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF CASH
FLOWS
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
$
2,894
$
(312
)
$
(1,849
)
$
108
1,766
1,477
231
1,483
3
105
457
(543
)
(103
)
213
33
325
889
1,330
5,126
(1,612
)
(2,380
)
(3,362
)
5,950
(1,665
)
152
(894
)
(1,044
)
767
134
(9
)
19
78
6
76
(12,189
)
2,789
2,502
2,568
(1,236
)
(793
)
(565
)
1,357
(2,364
)
2,752
(579
)
(1,541
)
(618
)
4,268
(1,529
)
429
(250
)
(26,285
)
(624
)
(1,700
)
(71
)
(491
)
(624
)
(1,950
)
(26,356
)
(491
)
(320
)
(248
)
(24
)
(140
)
(1,400
)
600
9,930
(9,000
)
29,786
(1,720
)
352
30,692
(140
)
(2,962
)
2,670
2,807
(202
)
3,722
760
3,430
6,237
$
760
$
3,430
$
6,237
$
6,035
$
3,217
$
2,030
$
$
15
$
551
$
194
$
$
2,092
$
348
$
19
$
143
$
246
$
$
$
268
$
47
$
$
$
25
$
201
See notes to consolidated financial statements.
F-6
ULTRA CLEAN HOLDINGS, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS
1. Organization
and Significant Accounting Policies
Organization
Ultra Clean Technology Systems and Service, Inc. (the
Predecessor) was incorporated in 1991 in California.
The Predecessor was formed to manufacture and sell gas delivery
systems to the U.S. semiconductor capital equipment industry.
The Predecessor was acquired on November 15, 2002 in a
transaction accounted for under the purchase method of
accounting (see Note 2) by Ultra Clean Holdings, Inc.
(Ultra Clean) (together with Predecessor, the
Company). Ultra Clean was incorporated in 2002 in
Delaware and is headquartered in Menlo Park, California with
additional manufacturing facilities in Austin, Texas and
Tualatin, Oregon. Ultra Clean had no significant operations
prior to the purchase of Predecessor.
Principles of
Consolidation
The
accompanying financial statements include the accounts of the
predecessor company, Ultra Clean Technology Service and Systems,
Inc. for the year ended December 31, 2001 and for the
period from January 1, 2002 through November 15, 2002
and the accounts of the successor company, Ultra Clean Holdings,
Inc. and its subsidiary, since inception including the period
from November 16, 2002 through December 31, 2002 and
for the year ended December 31, 2003. All intercompany
accounts and transactions are eliminated in consolidation.
Certain Significant Risks and
Uncertainties
The Company
operates in a dynamic industry and, accordingly, can be affected
by a variety of factors. For example, any of the following areas
could have a negative effect on the Company in terms of its
future financial position, results of operations or cash flows:
the highly cyclical nature of the semiconductor industry;
reliance on a small number of customers; ability to obtain
additional financing; regulatory changes; fundamental changes in
the technology underlying semiconductor manufacturing processes
or semiconductor manufacturing equipment; the hiring, training
and retention of key employees; successful and timely completion
of product design efforts; and new product design introductions
by competitors.
Concentration of Credit
Risk
Financial instruments
which subject the Company to concentrations of credit risk
consist principally of cash and accounts receivable. The Company
sells its products to semiconductor capital equipment
manufacturers in the United States. The Company performs credit
evaluations of its customers financial condition and
generally requires no collateral.
Sales to significant customers as a percentage of
total sales are as follows:
When combined, these same significant customers
represented 98% and 89% of trade accounts receivable at
December 31, 2002 and 2003.
Use of Accounting
Estimates
The presentation
of financial statements in conformity with generally accepted
accounting principles in the United States of America requires
management to make estimates and assumptions that affect the
reported amounts of assets and liabilities, and disclosures of
contingent liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the
reporting period. The Company bases its estimates and judgments
on historical experience and on various other assumptions that
it believes are reasonable under the circumstances. However,
future events
F-7
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
are subject to change and the best estimates and
judgments routinely require adjustment. Actual amounts may
differ from those estimates.
Fiscal
Year
Effective
January 1, 2003, Ultra Clean adopted a 52-53 week
fiscal year ending on the Friday nearest to December 31.
This change did not have a significant effect on the
Companys consolidated financial statements. For
presentation purposes, the Company presents each fiscal year as
if it ended on December 31. Using the 52-53 year end,
fiscal year 2003 would have ended on December 26, 2003. All
references to years refer to fiscal years.
Inventories
are
stated at the lower of standard cost (which approximates actual
cost on a first-in, first-out basis) or market. The Company
evaluates the valuation of all inventories, including raw
materials, work-in-process, finished goods and spare parts on a
periodic basis. Obsolete inventory or inventory in excess of
managements estimated usage is written-down to its
estimated market value less costs to sell, if less than its
cost. Inherent in the estimates of market value are
managements estimates related to economic trends, future
demand for products, and technological obsolescence of the
Companys products.
At December 31, 2002 and 2003, inventory
balances of $8,229,000 and $9,123,000 were net of write-downs of
$1,582,000 and $1,601,000. The inventory write-downs are
recorded as an inventory valuation allowance established on the
basis of obsolete inventory or specific identified inventory in
excess of estimated usage.
Equipment and leasehold improvements
are stated at cost, or, in the case of
equipment under capital leases, the present value of future
minimum lease payments at inception of the related lease.
Depreciation and amortization are computed using the
straight-line method over the lesser of the estimated useful
lives of the assets or the terms of the leases. Useful lives
range from three to seven years.
Product
Warranty
The Company
provides a warranty on its products for a period of up to two
years, and provides for warranty costs at the time of sale based
on historical activity. The determination of such provisions
requires the Company to make estimates of product return rates
and expected costs to repair or replace the products under
warranty. If actual return rates and/or repair and replacement
costs differ significantly from these estimates, adjustments to
recognize additional cost of sales may be required in future
periods. Components of the reserve for warranty costs consisted
of the following (in thousands):
Income
Taxes
Income taxes are
provided using an asset and liability approach which requires
recognition of deferred tax liabilities and assets, net of
valuation allowances, for the expected future tax consequences
of temporary differences between the financial statement
carrying amounts and the tax basis of assets and liabilities and
net operating loss and tax credit carryforwards.
Stock-Based
Compensation
The Company
accounts for its employee stock option plan in accordance with
the provisions of Accounting Principles Board (APB)
Opinion No. 25,
Accounting for Stock Issued to
Employees
, and Financial Accounting Standards Board
(FASB) Interpretation (FIN) No. 44,
Accounting for Certain Transactions Involving Stock
Compensation
. Accordingly, no compensation is recognized for
employee stock options granted with exercise prices greater than
or equal to the fair value of the underlying common stock at the
date of grant. The Company complies with the disclosure
provisions of FASB Statement of Financial Accounting Standards
(SFAS) No. 123,
Accounting for
F-8
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Stock-Based
Compensation
, as amended by SFAS
No. 148,
Accounting for Stock-Based
Compensation Transition and Disclosure
.
The Company amortizes deferred stock-based
compensation on the straight-line method over the vesting
periods of the stock options, generally four years. Had
compensation expense been determined based on the fair value at
the grant date for all employee awards, consistent with the
provisions of SFAS No. 123, the Companys pro forma
net income (loss) and net income (loss) per share would have
been as follows (in thousands):
SFAS No. 123,
Accounting for Stock-Based
Compensation
, requires the disclosure of pro forma net
income as though the Company had adopted the fair value method
since the inception of the Company. Under SFAS No. 123, the
fair value of stock-based awards to employees is calculated
through the use of option pricing models, even though such
models were developed to estimate the fair value of freely
tradable, fully transferable options without vesting
restrictions, which differ significantly from the Companys
stock option awards. These models also require the use of
subjective assumptions, including expected time to exercise,
which greatly affect the calculated values. The Companys
calculations were made using the minimum value method with the
following assumptions: expected life of five years and no
dividends during the expected term. The risk free interest rate
assumption used was 4.7% in 2001, 3.9% in 2002 and 2.8% in 2003.
The Companys calculations are based on a single option
valuation approach, and forfeitures are recognized as they occur.
Goodwill and
Tradename
As part of the
Ultra Clean acquisition in November 2002, the Company allocated
the purchase price to the tangible and intangible assets
acquired, liabilities assumed, and in-process research and
development based on their estimated fair values (see
Note 2). A third-party appraisal firm assisted management
in determining the fair values of the assets acquired and the
liabilities assumed. Such valuations required management to make
significant estimates and assumptions, especially with respect
to intangible assets. Estimates associated with accounting for
the acquisition may change as
F-9
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
additional information becomes available
regarding the assets acquired and liabilities assumed. In
particular, a claim by the Company for a refund of approximately
$470,000 of the purchase price remains unresolved. Any payment
of this unresolved amount will decrease the recorded goodwill.
Critical estimates in valuing certain intangible
assets include, but are not limited to: future expected cash
flows from customer contracts; acquired developed technologies
and patents; expected costs to develop the in-process research
and development into commercially viable products and estimated
cash flows from the projects when completed; the market position
of the acquired products; and assumptions about the period of
time the trade name will continue to be used in Ultra
Cleans product portfolio. Managements estimates of
fair value are based upon assumptions believed to be reasonable,
but which are inherently uncertain.
In June 2001, the FASB issued SFAS No. 141,
Business Combinations
, and SFAS No. 142,
Goodwill
and Other Intangible Assets
. SFAS No. 141 requires that
all business combinations initiated after June 30, 2001 be
accounted for under the purchase method and addresses the
initial recognition and measurement of goodwill and other
intangible assets acquired in a business combination. The
provisions of SFAS No. 142 also require an annual goodwill
impairment test or more frequently if impairment indicators
arise. In testing for a potential impairment of goodwill, the
provisions of SFAS 142 require the application of a fair value
based test at the reporting unit level. The Company operates in
one reporting segment which has one reporting unit. Therefore,
all goodwill is considered enterprise goodwill and the first
step of the impairment test prescribed by SFAS 142 requires a
comparison of fair value to book value of the Company. If the
estimated fair value of the Company is less than the book value,
SFAS 142 requires an estimate of the fair value of all
identifiable assets and liabilities of the business, in a manner
similar to a purchase price allocation for an acquired business.
This estimate requires valuations of certain internally
generated and unrecognized intangible assets such as in-process
research and development and developed technology. Potential
goodwill impairment is measured based upon this two-step
process. Management performed the annual goodwill impairment
test as of December 31, 2002 and 2003 and determined that
goodwill was not impaired.
During the year ended December 31, 2003, the
goodwill balance increased by $9,000 as a result of finalizing
transaction costs related to the acquisition of the Predecessor.
Long-Lived
Assets
In accordance with
SFAS No. 144,
Accounting for the Impairment or Disposal
of Long-Lived Assets
, the Company evaluates the impairment
of long-lived assets, based on the projection of undiscounted
cash flows whenever events or changes in circumstances indicate
that the carrying amounts of such assets may not be recoverable.
In the event such cash flows are not expected to be sufficient
to recover the recorded value of the assets, the assets are
written down to their estimated fair values
Revenue
Recognition
Revenue from
the sale of gas delivery systems is generally recorded upon
shipment. In arrangements which specify title transfer upon
delivery, revenue is not recognized until the product is
delivered. The Company recognizes revenue when persuasive
evidence of an arrangement exists, shipment has occurred, price
is fixed or determinable and collectability is reasonably
assured. If the Company has not substantially completed a
product or fulfilled the terms of a sales agreement at the time
of shipment, revenue recognition is deferred until completion.
Our standard arrangement for our customers includes a signed
purchase order or contract, no right of return of delivered
products and no customer acceptance provisions.
The Company assesses collectibility based on the
credit worthiness of the customer and past transaction history.
The Company performs on-going credit evaluations of customers
and does not require collateral from customers.
Research and development
expenses are charged to operations as
incurred.
F-10
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Reclassifications
Certain reclassifications have been made to the prior year
consolidated financial statements to conform to the 2003
presentation. Such reclassifications had no effect on previously
reported results of operations or retained earnings.
Net Income (Loss) per
Share
Basic net income
(loss) per share is computed by dividing net income (loss)
by the weighted average number of shares outstanding for the
period. Diluted net income (loss) per share earnings is
calculated by dividing net income (loss) by the weighted average
number of common shares outstanding and common equivalent shares
from dilutive stock options and restricted stock using the
treasury stock method, except when antidilutive (see
Note 8).
Comprehensive
Income
In accordance with
SFAS No. 130,
Reporting Comprehensive Income
, the
Company reports by major components and as a single total, the
change in its net assets during the period from nonowner
sources. Comprehensive income for the year ended
December 31, 2001, and the period from January 1, 2002
through November 15, 2002, and the period from
November 16, 2002 through December 31, 2002 and the
year ended December 31, 2003 was the same as net income.
Recently Issued Accounting
Standards
In June 2002,
the FASB issued SFAS No. 146,
Accounting for Costs
Associated with Exit or Disposal Activities
. SFAS
No. 146 supersedes previous accounting guidance,
principally Emerging Issues Task Force (EITF) Issue
No. 94-3. The provisions of SFAS No. 146 are
applicable for restructuring activities initiated after
December 28, 2002. SFAS No. 146 requires that a
liability for costs associated with an exit or disposal activity
be recognized when the liability is incurred. Under Issue
No. 94-3, a liability for an exit cost was recognized at
the date of the commitment to an exit plan. SFAS No. 146
also establishes that the liability should initially be measured
and recorded at fair value. The adoption of SFAS No. 146 on
January 1, 2003 did not have a material effect on the
Companys consolidated financial statements.
In November 2002, the FASB issued FIN
No. 45,
Guarantors Accounting and Disclosure
Requirements for Guarantees, Including Indirect Guarantees of
Indebtedness of Others
. This interpretation specifies the
disclosures to be made by a guarantor in its interim and annual
financial statements concerning its obligations under certain
guarantees that it has issued. FIN No. 45 also requires a
guarantor to recognize a liability, at the inception of the
guarantee, for the fair value of obligations it has undertaken
in issuing the guarantee. The disclosure requirements of FIN
No. 45 are effective for interim and annual periods ending
after December 15, 2002. The initial recognition and
initial measurement requirements of FIN No. 45 are
effective for guarantees issued or modified after
December 31, 2002. The adoption of these provisions did not
have a material effect on the Companys consolidated
financial statements.
In December 2002, the EITF reached a consensus on
EITF Issue No. 00-21,
Revenue Arrangements with Multiple
Deliverables
. This Issue addresses certain aspects of the
accounting by a vendor for arrangements under which it will
perform multiple revenue-generating activities. This Issue
addresses when and how an arrangement involving multiple
deliverables should be divided into separate units of
accounting. The guidance in this Issue is effective for revenue
arrangements entered into in fiscal periods beginning after
June 15, 2003. The adoption of EITF Issue No. 00-21
did not have a material effect on the Companys
consolidated financial statements.
In January 2003, the FASB issued FIN 46,
Consolidation of Variable Interest Entities
, and a
revised interpretation of FIN 46 (FIN 46R) in December
2003 (collectively FIN 46). These address consolidation of
variable interest entities. FIN 46 provides guidance for
determining when a primary beneficiary should consolidate a
variable interest entity or equivalent structure that functions
to support the activities of the primary beneficiary. The
provisions of FIN 46 are effective immediately for all
variable interest entities created after January 31, 2003.
For variable interest entities created prior to February 1,
2003, the provisions of FIN 46 are effective for our first
quarter of fiscal 2004. The Company does not expect the adoption
of FIN 46 to have a material effect on the Companys
consolidated financial statements.
F-11
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In May 2003, the FASB issued SFAS No. 150,
Accounting for Certain Financial Instruments with
Characteristics of both Liabilities and Equity
. SFAS
No. 150 establishes standards for how an issuer classifies
and measures certain financial instruments with characteristics
of both liabilities and equity. SFAS No. 150 is effective
for financial instruments entered into or modified after
May 31, 2003, and otherwise is effective at the beginning
of the first interim period beginning after June 15, 2003.
The adoption of SFAS No. 150 did not have a material effect
on the Companys consolidated financial statements.
In December 2003 the SEC issued Staff Accounting
Bulletin No. 104,
Revenue Recognition
. SAB 104
updates portions of existing interpretative guidance in order to
make this guidance consistent with current authoritative
accounting and auditing guidance and SEC rules and regulations.
The adoption of SAB 104 did not have a material effect on
the Companys consolidated financial statements.
2. Acquisition
At the close of business on November 15,
2002, the Company acquired all of the outstanding shares of
Predecessor, Ultra Clean Technology Systems and Service, Inc.,
in a transaction accounted for using the purchase method of
accounting. Ultra Clean incurred approximately $3,121,000 in
acquisition expenses, including financial advisory and legal
fees and other direct transaction costs, which were included as
a component of the purchase price. Approximately $2,000,000 of
such acquisition costs were paid to Francisco Partners
Management, LLC, a related party.
The purchase price was allocated to the assets
acquired and liabilities assumed based on their estimated fair
values as follows (in thousands):
Accounting principles generally accepted in the
United States of America require purchased in-process research
and development with no alternative future use to be recorded
and charged to expense in the period acquired. Accordingly, the
results of operations for the period from November 16, 2002
through December 31, 2002, include the write-off of
$889,000 of purchased in-process research and development that
had not yet reached technological feasibility and had no
alternative future use. The $889,000 of purchased in-process
research and development resulted from one project for the
development of a catalytic steam generator. This project related
to the development of technology and a related product that
simplified the generation of steam for use in the semiconductor
manufacturing process. The development effort was completed in
December 2003. Actual costs incurred to complete this project
were not significantly different from the initial estimate.
Value ascribed to the project was based on the cost method and
represented the cost of personnel, material, equipment and
finance charges that would have been incurred to replicate the
project to its development stage at the date of acquisition.
In accordance with EITF Issue No. 85-45,
Business Combinations: Settlement of Stock Options and
Awards
, the buyout of $2,547,000 of stock options prior to
the effective date of the acquisition was
F-12
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
recorded by Predecessor as an expense in the
period from January 1, 2002 through November 15, 2002.
The buyout is included within general and administrative
expenses in that period. In addition, an officer of Predecessor
did not exercise options with a value of $1,330,000.
Accordingly, the $1,330,000 was recorded as an expense in the
period from January 1, 2002 through November 15, 2002
within general and administrative expenses with a corresponding
credit to contributed capital.
Certain executives of the Predecessor signed
employment agreements with Ultra Clean. Under the terms of these
arrangements, Ultra Clean recorded $741,000 for executive
bonuses within general and administrative expenses for the
period from November 16, 2002 through December 31,
2002. Certain payments under these arrangements were deferred
(see Note 9).
In connection with the purchase accounting
transaction, the Company recorded a step-up in the inventory
value of $113,000.
The operating results of the Company have been
included in the statements of operations from the date of
acquisition.
3. Inventories
Inventories consisted of the following (in
thousands):
4. Notes Payable
and Borrowing Arrangements
Notes payable consist of the following (in
thousands):
The Company had two revolving line of credit
arrangements with Mitsubishi International Corporation. The
arrangements permitted borrowings of up to $14,000 and $1,500
and expired on December 31, 2002 and November 27,
2002, respectively. Interest is payable monthly at various
rates. There were no amounts outstanding under the lines at
December 31, 2002 and 2003.
The Company issued Series A Senior Notes for
the principal sums of $24,130,000, $2,730,000 and $3,733,000 on
November 15, 2002, November 26, 2002 and
December 2, 2002, respectively. These notes are not
redeemable by the holder and can be repaid, in whole or in part,
with outstanding accrued interest at any time without penalty.
As of December 31, 2002 and 2003, all Series A Senior
Notes were held by related parties and employees of the Company.
Employee Debt
Of the Series A Senior Notes issued on
November 26, 2002, $1,342,000 was granted to employees of
the Company for cash received from employees of $536,000 and
$806,000 in deferred compensation. The
F-13
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
deferred compensation amount vests, in equal
annual installments, over four years from the grant date.
Compensation expense is recognized and the corresponding debt
amounts are accreted on a straight line basis over four years
from the grant date. In the period from November 16, 2002
to December 31, 2002 and the year ended December 31,
2003, $25,000 and $201,000, respectively, was charged to
compensation expenses related to the accretion of such debt
amounts. At December 31, 2002 and 2003, $781,000 and
$580,000 of deferred compensation was recorded as a reduction of
the principal amount of debt outstanding of $30,593,000. At
December 31, 2003, $604,000 of the employees debt was
unvested. The unvested portion of this debt instrument is
subject to forfeiture.
Bank Line of Credit
In July 2003, Ultra Clean Technology Systems and
Service, Inc. entered into a secured line of credit arrangement
which permits borrowing of up to $10,000,000 based upon a
defined borrowing base and bearing interest, at its option, at a
rate equal to 2% per annum plus LIBOR or 0.25% per annum plus
the reference rate established from time to time by the lender.
Interest is payable monthly and the line expires on
June 15, 2004. The arrangement contains financial covenants
requiring the maintenance of minimum specified working capital,
no successive quarterly net losses and tangible net worth ratios
as well as a restriction on payment of any cash dividends. In
addition, the arrangement requires that Francisco Partners, LLP
retain at least 50% ownership of Ultra Clean. The Series A
Senior Notes are subordinated to any borrowings under this
credit arrangement. There were no amounts outstanding under the
line of credit at December 31, 2003.
5. Income
Taxes
The benefit (provision) for taxes on income
consisted of the following (in thousands):
F-14
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Significant components of net deferred tax assets
for federal and state income taxes were as follows (in
thousands):
The effective tax rate differs from the federal
statutory tax rate as follows:
The Company leases certain equipment under
capital lease arrangements. In addition, the Company leases its
corporate and regional offices as well as some of its office
equipment under noncancelable
F-15
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
operating leases. The Company has a renewal
option for its leased facilities in Austin, Texas and Tualatin,
Oregon. Future minimum lease payments under these leases are as
follows (in thousands):
The cost of equipment under the capital leases
included in property and equipment at December 31, 2002 and
2003 was approximately $551,000 and $796,000, respectively.
Accumulated amortization of leased equipment at
December 31, 2002 and 2003 was approximately $180,000 and
$407,000, respectively.
Rental expense for the year ended
December 31, 2001, the period from January 1, 2002
through November 15, 2002, the period from
November 16, 2002 through December 31, 2002 and the
year ended December 31, 2003 was $918,000, $840,000,
$137,000 and $1,113,000, respectively. Included within capital
lease obligations and other liabilities in 2002 and 2003 was
$227,000 and $17,000 of deferred rent, respectively.
In connection with letters of credit required for
the leases of certain facilities, the Company held $310,000 on
deposit in restricted cash accounts as of December 31, 2002
and 2003. The restricted cash balance is included in other long
term assets.
The Company had commitments to purchase inventory
totaling $13,416,000 at December 31, 2003.
7. Stockholders
Equity
Under the 1999 Stock Option Plan (the 1999
Option Plan), the Predecessor had reserved
425,000 common shares for issuance under options granted to
employees. Options were generally granted at fair value at the
date of grant as determined by the Board of Directors, had terms
up to ten years and generally vested over four years. At
November 15, 2002, prior to the sale of Predecessor,
Predecessor had 148,625 shares available for future grants under
the 1999 Option Plan and options exercisable for
194,406 shares were vested at a weighted average exercise
price of $9.76. Outstanding options were settled in connection
with the sale of Predecessor and the 1999 Option Plan was
terminated.
On February 20, 2003, Ultra Clean adopted
the 2003 Stock Incentive Plan (the 2003 Option Plan)
and reserved 1,266,284 shares of its common stock for
issuance under the 2003 Option Plan. Options are generally
granted at fair value at the date of grant as determined by the
Board of Directors, have terms up to ten years and generally
vest over four years. At December 31, 2003,
211,034 shares were available for future grants under the
2003 Option Plan.
F-16
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Option activity under the 1999 Option Plan and
the 2003 Option Plan is as follows:
During the year ended December 31, 2003,
options to purchase 1,020,000 common shares of the Company were
granted at an exercise price of $1.00 per share, which was equal
to the estimated fair market value of the Companys common
shares on the grant date. These options had a weighted average
fair value of $0.16. In addition, during the year ended
December 31, 2003, options to purchase 5,000, 22,500 and
19,500 common shares of the Company were granted at an exercise
price of $1.00 per share when the fair estimated market value of
the Companys common shares were $1.82, $3.24 and $4.97,
respectively. These options had weighted average fair values of
$0.96, $2.40 and $4.12, respectively.
Common Stock
On November 15, 2002, all outstanding shares
of Predecessor were purchased by Ultra Clean.
In February 2003, the Company issued
47,645 shares of common stock to an employee. In connection
with this grant, approximately $47,000 was recognized as
compensation charge in general and administrative expenses.
Restricted Stock
On November 26, 2002, Ultra Clean granted
268,525 shares of common stock to certain key employees.
These shares vest, in equal installments, over a four year
period from the date of grant, and any unvested shares are
subject to repurchase at fair market value by Ultra Clean upon
termination of the employees service to Ultra Clean. For
the period from November 16, 2002 to December 31, 2002
and the year ended December 31, 2003, Ultra Clean charged
$8,000 and $67,000, respectively, to compensation expense
related to the vesting of such restricted stock. The unvested
amount is subject to forfeiture, until the common stock is fully
vested. At December 31, 2003, 67,131 shares were
vested and 201,393 shares were subject to repurchase.
F-17
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
8. Net Income
(Loss) Per Share
The following is a reconciliation of the
numerators and denominators used in computing basic and diluted
net income (loss) per share (in thousands):
For the periods from January 1, 2002 through
November 15, 2002 and November 16, 2002 through
December 31, 2002, the Company had securities outstanding
which could potentially dilute basic earnings per share in the
future, but the incremental shares from the assumed exercise of
these securities were excluded in the computation of diluted net
loss per share, as their effect would have been anti-dilutive.
Such outstanding securities consist of the following:
Deferred Stock Compensation
During the year ended December 31, 2003, the
Company issued 1,067,000 common stock options to employees
at a weighted average exercise price of $1.00 per share.
The weighted average exercise price
F-18
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
was below the weighted average deemed fair value
of the Companys common stock which ranged from $1.00 to
$4.97 per share. In connection with these options, the
Company recorded deferred stock based compensation of
approximately $132,000 and amortized approximately $9,000 as an
expense during the year ended December 31, 2003.
9. Employee
Benefit Plan
The Company sponsors a 401(k) savings and profit
sharing plan (the 401(k) Plan) for all employees who
meet certain eligibility requirements. Participants could elect
to contribute to the 401(k) Plan, on a pre-tax basis, from
2-19% of their salary up to a maximum of $11,000. The Company
may make matching contributions up to 6% of employee
contributions based upon eligibility. The Company made
approximately $147,000, $145,000, $23,000 and $186,000 in
discretionary employer contributions to the 401(k) Plan in the
year ended December 31, 2001, the period January 1,
2002 through November 15, 2002, the period from
November 16, 2002 through December 31, 2002 and the
year ended December 31, 2003, respectively.
10. Related Party
Transaction
In addition to the related party transactions
previously described, Ultra Clean entered into an agreement with
a key executive of Ultra Clean on November 15, 2002 to
defer payment of $265,000 in compensation until
November 15, 2009. Under this arrangement Ultra Clean pays
interest of 2.7% per annum, payable on June 30 and
December 31 of each year. The amounts owed under this
arrangement may be prepaid by Ultra Clean at the discretion of
the board of directors. The principal amount owed under this
arrangement is contained within capital lease obligations and
other liabilities on the balance sheet of Ultra Clean.
11. Subsequent
Events
On March 2, 2004, Ultra Clean effected a
one for four reverse stock split of its common stock.
All share and per share data of Ultra Clean included in the
accompanying consolidated financial statements has been adjusted
to give effect to the reverse stock split.
On March 1, 2004, contingent upon the
closing of the initial public offering, the Companys board
of directors approved the redemption of $30,593,000 in aggregate
principal amount of its Series A Senior Notes held by
related parties and employees, which includes the accelerated
vesting of $604,000 aggregate principal amount of previously
unvested Series A Senior Notes held by employees. The
charge for the vesting acceleration will be recorded in the
period the registration statement is declared effective by the
Securities and Exchange Commission.
In addition, the Companys board of
directors adopted the Employee Stock Purchase Plan (Stock
Purchase Plan). Under this Stock Purchase Plan, eligible
employees may authorize salary withholdings of up to 10% of
their base compensation to purchase shares of common stock at a
price of 85% of the fair market value at certain specified dates
within a defined purchase period. The initial purchase period
commences upon the effective date of the registration statement.
Ultra Clean has initially reserved 555,343 shares of common
stock for issuance under this Stock Purchase Plan.
The Companys board of directors also
authorized an additional 1,851,143 shares of common stock
for future grants under the 2003 Option Plan plus an annual
increase not to exceed 370,228 shares of common stock. The
Companys board of directors increased the authorized
common shares to 90,000,000 and authorized preferred shares of
10,000,000. In addition, the board of directors granted
250,000 shares of restricted stock to a board member. The
shares vest over four years.
F-19
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
51
%
46
%
50
%
47
%
40
%
26
%
27
%
24
%
27
%
22
%
21
%
Table of Contents
December 31,
2002
2003
$
117
$
89
36
74
(64
)
(75
)
$
89
$
88
Table of Contents
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
$
2,894
$
(312
)
$
(1,849
)
$
108
8
76
(180
)
(161
)
(32
)
(121
)
$
2,714
$
(473
)
$
(1,873
)
$
63
$
0.79
$
(0.08
)
$
(0.21
)
$
0.01
$
0.64
$
(0.08
)
$
(0.21
)
$
0.01
$
0.74
$
(0.13
)
$
(0.22
)
$
0.01
$
0.60
$
(0.13
)
$
(0.22
)
$
0.01
Table of Contents
Table of Contents
Table of Contents
$
23,164
2,547
3,121
$
28,832
$
27,694
8,987
889
(15,346
)
$
6,608
Table of Contents
December 31,
2002
2003
$
5,693
$
5,746
2,452
3,282
84
95
$
8,229
$
9,123
December 31,
2002
2003
$
29,812
$
30,013
Table of Contents
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
$
(1,256
)
$
(928
)
$
479
$
58
(268
)
(257
)
85
(77
)
(1,524
)
(1,185
)
564
(19
)
(396
)
471
32
(152
)
(61
)
72
71
(61
)
(457
)
543
103
(213
)
$
(1,981
)
$
(642
)
$
667
$
(232
)
Table of Contents
December 31,
2002
2003
$
1,609
$
1,512
319
250
75
1
40
2,004
1,802
87
7
130
1,946
1,897
(33
)
(291
)
(270
)
1,742
1,731
$
3,746
$
3,533
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
35.0
%
35.0
%
(35.0
)%
35.0
%
4.4
7.7
(4.2
)
23.7
12.8
5.9
0.7
3.6
40.1
%
42.7
%
(26.4
)%
68.2
%
6.
Commitments
Table of Contents
Capital
Operating
Leases
Leases
$
123
$
773
92
362
55
293
31
133
301
$
1,561
25
276
111
$
165
Table of Contents
Weighted
Average
Number of
Exercise
Shares
Price
1,035,000
$
2.29
75,500
9.50
(5,000
)
9.50
1,105,500
2.75
21,500
13.40
(21,500
)
3.03
(1,105,500
)
2.98
1,067,000
1.00
(11,750
)
1.00
1,055,250
$
1.00
Table of Contents
Predecessor
January 1,
November 16,
2002
2002
Year Ended
Through
Through
Year Ended
December 31,
November 15,
December 31,
December 31,
2001
2002
2002
2003
$
2,894
$
(312
)
$
(1,849
)
$
108
3,680
3,680
8,937
10,239
(268
)
(263
)
3,680
3,680
8,668
9,976
3,680
10,239
855
472
4,535
3,680
8,668
10,711
$
0.79
$
(0.08
)
$
(0.21
)
$
0.01
$
0.64
$
(0.08
)
$
(0.21
)
$
0.01
Predecessor
January 1,
November 16,
2002
2002
Through
Through
November 15,
December 31,
2002
2002
269
1,106
1,106
269
Table of Contents
Table of Contents
Table of Contents
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
The following table indicates the expenses to be
incurred in connection with the offering described in this
registration statement. All amounts are estimates, other than
the registration fee, the NASD fee, the Nasdaq National Market
application fee and the advisory fee payable to Francisco
Partners.
Section 145 of the Delaware General
Corporation Law provides that a corporation may indemnify
directors and officers as well as other employees and
individuals against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any
threatened, pending or completed actions, suits or proceedings
in which such person is made a party by reason of such person
being or having been a director, officer, employee or agent to
Ultra Clean Holdings, Inc. The Delaware General Corporation Law
provides that Section 145 is not exclusive of other rights
to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its
certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability for any breach of the
directors duty of loyalty to the corporation or its
stockholders, for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
for unlawful payments of dividends or unlawful stock
repurchases, redemptions or other distributions, or for any
transaction from which the director derived an improper personal
benefit.
Article 8 of Ultra Clean Holdings,
Inc.s amended and restated certificate of incorporation
provides that a director of Ultra Clean Holdings, Inc. shall not
be liable to Ultra Clean Holdings, Inc. or its stockholders for
monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted by Delaware law. In addition,
Article 8 of Ultra Clean Holdings, Inc.s amended and
restated certificate of incorporation provides that each person
(and the heirs, executors or administrators of such person) who
was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was
a director of Ultra Clean Holdings, Inc. or is or was serving at
the request of Ultra Clean Holdings, Inc. as a director of
another corporation, partnership, joint venture, trust
II-1
Article 8 of Ultra Clean Holdings,
Inc.s amended and restated certificate of incorporation
provides that Ultra Clean Holdings, Inc. may, by action of its
board of directors, provide indemnification to such of the
officers, employees and agents of Ultra Clean Holdings, Inc. to
such extent and to such effect as its board of directors shall
determine to be appropriate and authorized by Delaware law.
Article 8 also provides that Ultra Clean Holdings, Inc.
shall have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent
of Ultra Clean Holdings, Inc. or is or was serving at the
request of Ultra Clean Holdings, Inc. as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense,
liability or loss incurred by such person in any such capacity
or arising out of his status as such, whether or not Ultra Clean
Holdings, Inc. would have the power to indemnify him against
such liability under Delaware law.
The Registrant has entered into indemnification
agreements with its directors and officers. The indemnification
agreements provide indemnification to such directors and
officers under certain circumstances for acts or omissions which
may not be covered by directors and officers
liability insurance. The Registrant also intends to obtain
directors and officers liability insurance, which
insures against liabilities that its directors or officers may
incur in such capacities.
Section 2.04 of the Registration Rights
Agreement dated as of December 2, 2002 between Ultra Clean
Holdings, Inc. and FP-Ultra Clean, LLC, the Registrants
majority shareholder (the Registration Rights
Agreement), provides that Ultra Clean Holdings, Inc. will
indemnify and hold harmless FP-Ultra Clean, LLC and certain
other persons (together, the Shareholders) holding
securities covered by a registration statement
(Registrable Securities), its officers, directors,
employees, partners and agents, and each person, if any, who
controls such Shareholder within the meaning of Section 15
of the Securities Act of 1933, as amended, or Section 20 of
the Securities Exchange Act of 1934, as amended, from and
against any and all losses, claims, damages, liabilities and
expenses (including reasonable expenses of investigation and
reasonable attorneys fees and expenses)
(Damages) caused by or relating to any untrue
statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating
to the Registrable Securities (as amended or supplemented if
Ultra Clean Holdings, Inc. shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused
by or relating to any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such Damages are caused by or related to any such
untrue statement or omission or alleged untrue statement or
omission so made based upon information furnished in writing to
Ultra Clean Holdings, Inc. by such Shareholder or on such
Shareholders behalf expressly for use therein,
provided
that, with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary
prospectus, or in any prospectus, as the case may be, the
indemnity agreement contained in this paragraph shall not apply
to the extent that any Damages result from the fact that a
current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) was not sent or given to the
person asserting any such Damages at or prior to the written
confirmation of the sale of the Registrable Securities concerned
to such person if it is determined that Ultra Clean Holdings,
Inc. has provided such prospectus to such Shareholder and it was
the responsibility of such Shareholder to provide such person
with a current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) and such current
copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect
giving rise to such Damages. Ultra Clean Holdings, Inc. also
agreed to indemnify any underwriters of the Registrable
Securities, their officers and directors and each person who
controls such
II-2
The Registrant has not issued and sold any
unregistered securities other than:
The sales of these securities were exempt from
registration under the Securities Act pursuant to
Section 4(2).
The Registrant has issued, and plans to continue
issuing from time to time, stock options pursuant to its Amended
and Restated 2003 Stock Incentive Plan, as amended immediately
prior to the completion of this offering. None of these stock
options have been exercised, and none of the common stock
issuable upon exercise of these options has been issued to date.
The options were issued in transactions exempt from the
registration requirements of the Securities Act of 1933, as
amended, in reliance on Rule 701 of that Act. The
Registrants Amended and Restated 2003 Stock Incentive Plan
is a written compensatory benefit plan for the benefit of its
employees and directors.
Item 16.
Exhibits
and Financial Statement Schedules
II-3
Item 17.
Undertakings
(a) The undersigned Registrant hereby
undertakes to provide to the underwriters at the closing
specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
(b) 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 provisions described under
Item 14 Indemnification of Directors and
Officers above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, 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
II-4
(c) The undersigned Registrant hereby
undertakes that:
II-5
Item 13.
Other Expenses of Issuance and
Distribution
$
11,961
13,058
100,000
2,000,000
500,000
900,000
170,000
50,000
30,000
24,981
$
3,800,000
Item 14.
Indemnification of Directors and
Officers
Delaware General Corporation
Law
Amended and Restated Certificate of
Incorporation and Bylaws
Table of Contents
Indemnification Agreements and
Directors and Officers Liability
Insurance
Registration Rights Agreement
Table of Contents
Item 15.
Recent Sales of Unregistered
Securities
(1) On October 28, 2002, the Registrant
issued to FP-Ultra Clean, LLC 250 shares of common stock for a
purchase price of $4.00.
(2) On November 15, 2002, the
Registrant issued to FP-Ultra Clean, LLC 8,043,275 shares of
common stock for a purchase price of $8,043,275 and $24,129,810
principal amount of 5.0% Series A Senior Notes for a
purchase price of $24,129,810.
(3) On November 26, 2002, the
Registrant issued to FP-Ultra Clean, LLC 462,500 shares of
common stock for a purchase price of $462,500 and $1,387,500
principal amount of 5.0% Series A Senior Notes for a
purchase price of $1,387,500. Also on November 26, 2002,
the Registrant issued to members of its management an aggregate
of 178,975 shares of common stock for an aggregate purchase
price of $178,975 and $536,900 aggregate principal amount of
5.0% Series A Senior Notes for an aggregate purchase price
of $536,900.
(4) On December 2, 2002, the Registrant
issued to FP-Ultra Clean, LLC 1,244,225 shares of common stock
for a purchase price of $1,244,225 and $3,732,690 principal
amount of 5.0% Series A Senior Notes for a purchase price
of $3,732,690.
(5) On February 20, 2003, the
Registrant issued to Clarence L. Granger, its Chief Executive
Officer, 47,645 shares of common stock for a purchase price of
$47,645.
Stock Options and Shares Issuable Upon
Exercise of Stock Options
Exhibit
Description
1.1
Underwriting Agreement*
2.1
Agreement and Plan of Merger dated
October 30, 2002, among Ultra Clean Holdings, Inc., Ultra
Clean Technology Systems and Service, Inc., Mitsubishi
Corporation, Mitsubishi International Corporation and Clean
Merger Company**
3.1
Amended and Restated Certificate of Incorporation
of Ultra Clean Holdings, Inc.
3.2
Amended and Restated Bylaws of Ultra Clean
Holdings, Inc.
4.1
Specimen Stock Certificate*
4.2
Form of Stockholders Agreement between
Ultra Clean Holdings, Inc. and FP-Ultra Clean, LLC to be
effective upon closing of the offering**
4.3
Form of Restricted Securities Purchase Agreement
dated November 26, 2002 with Ultra Clean Holdings, Inc.**
Table of Contents
Exhibit
Description
4.4
Registration Rights Agreement dated
December 2, 2002 between Ultra Clean Holdings, Inc. and
FP-Ultra Clean, LLC**
4.5
Restricted Securities Purchase Agreement dated
February 20, 2003 between Ultra Clean Holdings, Inc. and
Clarence L. Granger**
5.1
Opinion of Davis Polk & Wardwell
10.1
Employment Agreement dated November 15, 2002
between Clarence L. Granger and Ultra Clean Holdings, Inc.**
10.2
Agreement to Preserve Corporate Opportunity dated
November 15, 2002 between Clarence L. Granger and Ultra
Clean Holdings, Inc.**
10.3
Employment Agreement dated November 15, 2002
between Kevin L. Griffin and Ultra Clean Holdings, Inc.**
10.4
Agreement to Preserve Corporate Opportunity dated
November 15, 2002 between Kevin L. Griffin and Ultra Clean
Holdings, Inc.**
10.5
Amended and Restated 2003 Stock Incentive Plan
10.6
Form of Stock Option Agreement (included with
Exhibit 10.5)
10.7
Revolving Credit Facility Agreement with Union
Bank of California, N.A. dated as of July 9, 2003**
10.8
Advisory Agreement dated as of February 15,
2004 by and among Ultra Clean Holdings, Inc. and Francisco
Partners Management, LLC
10.9
Employee Stock Purchase Plan
10.10
Form of Indemnification Agreement between Ultra
Clean Holdings, Inc. and each of its directors and executive
officers
10.11
Amendment No. 1 to Employment Agreement
between Clarence L. Granger and Ultra Clean Holdings, Inc. dated
March 2, 2004
10.12
Amendment No. 1 to Employment Agreement
between Kevin L. Griffin and Ultra Clean Holding, Inc. dated
March 2, 2004
21.1
Subsidiaries of Ultra Clean Holdings, Inc.**
23.1
Consent of Deloitte & Touche LLP, independent
auditors
23.2
Consent of Davis Polk & Wardwell (contained
in their opinion filed as Exhibit 5.1)
24.1
Power of Attorney (included on signature page)**
*
To be filed by subsequent amendment.
**
Previously filed.
Table of Contents
(1) For purposes of determining any
liability under the Securities Act, 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 was declared effective.
(2) For the purposes of determining any
liability under the Securities Act, 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.
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on March 2, 2004.
ULTRA CLEAN HOLDINGS, INC. |
By: | /s/ CLARENCE L. GRANGER |
|
|
Name: Clarence L. Granger | |
Title: Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Name | Title | Date | ||||
|
|
|
||||
/s/ CLARENCE L. GRANGER
Clarence L. Granger |
Chief Executive Officer and Director | March 2, 2004 | ||||
*
Kevin L. Griffin |
Chief Financial Officer
(Principal Accounting Officer) |
March 2, 2004 | ||||
*
Dipanjan Deb |
Director | March 2, 2004 | ||||
*
David ibnAle |
Director | March 2, 2004 | ||||
*
Thomas M. Rohrs |
Director | March 2, 2004 | ||||
*By: |
/s/ CLARENCE L. GRANGER
Clarence L. Granger Attorney-in-fact |
II-6
EXHIBIT INDEX
Exhibit | Description | |||
|
|
|||
1.1 | Underwriting Agreement* | |||
2.1 | Agreement and Plan of Merger dated October 30, 2002, among Ultra Clean Holdings, Inc., Ultra Clean Technology Systems and Service, Inc., Mitsubishi Corporation, Mitsubishi International Corporation and Clean Merger Company** | |||
3.1 | Amended and Restated Certificate of Incorporation of Ultra Clean Holdings, Inc. | |||
3.2 | Amended and Restated Bylaws of Ultra Clean Holdings, Inc. | |||
4.1 | Specimen Stock Certificate* | |||
4.2 | Form of Stockholders Agreement between Ultra Clean Holdings, Inc. and FP-Ultra Clean, LLC to be effective upon closing of the offering** | |||
4.3 | Form of Restricted Securities Purchase Agreement dated November 26, 2002 with Ultra Clean Holdings, Inc.** | |||
4.4 | Registration Rights Agreement dated December 2, 2002 between Ultra Clean Holdings, Inc. and FP-Ultra Clean, LLC** | |||
4.5 | Restricted Securities Purchase Agreement dated February 20, 2003 between Ultra Clean Holdings, Inc. and Clarence L. Granger** | |||
5.1 | Opinion of Davis Polk & Wardwell | |||
10.1 | Employment Agreement dated November 15, 2002 between Clarence L. Granger and Ultra Clean Holdings, Inc.** | |||
10.2 | Agreement to Preserve Corporate Opportunity dated November 15, 2002 between Clarence L. Granger and Ultra Clean Holdings, Inc.** | |||
10.3 | Employment Agreement dated November 15, 2002 between Kevin L. Griffin and Ultra Clean Holdings, Inc.** | |||
10.4 | Agreement to Preserve Corporate Opportunity dated November 15, 2002 between Kevin L. Griffin and Ultra Clean Holdings, Inc.** | |||
10.5 | Amended and Restated 2003 Stock Incentive Plan | |||
10.6 | Form of Stock Option Agreement (included with Exhibit 10.5) | |||
10.7 | Revolving Credit Facility Agreement with Union Bank of California, N.A. dated as of July 9, 2003** | |||
10.8 | Advisory Agreement dated as of February 15, 2004 by and among Ultra Clean Holdings, Inc. and Francisco Partners Management, LLC | |||
10.9 | Employee Stock Purchase Plan | |||
10.10 | Form of Indemnification Agreement between Ultra Clean Holdings, Inc. and each of its directors and executive officers | |||
10.11 | Amendment No. 1 to Employment Agreement between Clarence L. Granger and Ultra Clean Holdings, Inc. dated March 2, 2004 | |||
10.12 | Amendment No. 1 to Employment Agreement between Kevin L. Griffin and Ultra Clean Holdings, Inc. dated March 2, 2004 | |||
21.1 | Subsidiaries of Ultra Clean Holdings, Inc.** | |||
23.1 | Consent of Deloitte & Touche LLP, independent auditors | |||
23.2 | Consent of Davis Polk & Wardwell (contained in their opinion filed as Exhibit 5.1) | |||
24.1 | Power of Attorney (included on signature page)** |
* | To be filed by amendment |
** | Previously filed. |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ULTRA CLEAN HOLDINGS, INC.
* * * * *
FIRST: The name of the Corporation is Ultra Clean Holdings, Inc.
SECOND: The address of its registered office in the State of Delaware is 15 East North Street, Dover, County of Kent, Delaware 19901. The name of its registered agent at such address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended ("DELAWARE LAW").
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 100,000,000, consisting of 90,000,000 shares of Common Stock, par value $0.001 per share (the "COMMON STOCK"), and 10,000,000 shares of Preferred Stock, par value $0.001 per share (the "PREFERRED STOCK").
Each share of Common Stock, either issued and outstanding or held by the Corporation as treasury stock immediately prior to the time this Amended and Restated Certificate of Incorporation becomes effective shall be and is hereby automatically reclassified and changed into a 1/4 (one-fourth) fully-paid and non-assessable share of Common Stock without increasing or decreasing the par value of each share of Common Stock; provided that no fractional shares shall be issued.
The Board of Directors is hereby empowered to authorize by resolution or resolutions from time to time the issuance of one or more classes or series of Preferred Stock and to fix the designations, powers, preferences and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to each such class or series of Preferred Stock and the number of shares constituting each such class or series, and to increase or decrease the number of shares of any such class or series to the extent permitted by the General Corporation Law of the State of Delaware, as amended from time to time.
FIFTH: Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock) or pursuant to Delaware Law.
SIXTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation.
SEVENTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.
EIGHTH: (1) A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware Law. The right to indemnification conferred in this ARTICLE EIGHTH shall also include the right to be paid by the Corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by Delaware Law. The right to indemnification conferred in this ARTICLE EIGHTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE EIGHTH shall not be exclusive of any other right which any person may otherwise have or hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE EIGHTH, nor the adoption of any provision of this Certificate of Incorporation or the bylaws of the Corporation, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall eliminate or reduce the effect of this ARTICLE EIGHTH in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification.
NINTH: Special meetings of the stockholders may be called by the Board of Directors or the Chairman of the Board of Directors or by the Secretary of the Corporation pursuant to the Bylaws and may not be called by any other person. Notwithstanding the foregoing, whenever holders of one or more classes or series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, such holders may call, pursuant to the terms of the resolution or resolutions adopted by the Board of Directors pursuant to ARTICLE FOURTH hereto, special meetings of holders of such Preferred Stock.
TENTH: The Corporation reserves the right to amend this Certificate of Incorporation in any manner permitted by Delaware Law and, with the sole exception of those rights and powers conferred under the above ARTICLE EIGHTH, all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power.
ELEVENTH: The Corporation expressly elects not to be governed by
Section 203 of Delaware Law.
IN WITNESS WHEREOF, the undersigned has caused this Amended and Restated Certificate of Incorporation to be duly executed in its corporate name by its duly authorized officer.
Dated: March 2, 2004
ULTRA CLEAN HOLDINGS, INC.
By: /s/ Kevin L. Griffin ---------------------------------- Name: Kevin L. Griffin Title: Secretary |
EXHIBIT 3.2
AMENDED
&
RESTATED
BYLAWS
OF
ULTRA CLEAN HOLDINGS, INC.
* * * * *
ARTICLE 1
OFFICES
Section 1.01. Registered Office. The registered office shall be in the City of Dover, County of Kent, State of Delaware.
Section 1.02. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
Section 1.03. Books. The books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a designation by the Board of Directors).
Section 2.02. Annual Meetings. Unless directors are elected by written consent in lieu of an annual meeting as permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended
("DELAWARE LAW"), an annual meeting of stockholders, commencing with the year 2005, shall be held for the election of directors and to transact such other business as may properly be brought before the meeting. Stockholders may, unless the certificate of incorporation otherwise provides, act by written consent to elect directors; provided, however, that, if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.
Section 2.03. Special Meetings. Special meetings of stockholders may be called by the Board of Directors or the Chairman of the Board of Directors and shall be called by the Secretary at the request in writing of at least two members of the Board of Directors. Such request shall state the purpose or purposes of the proposed meeting.
Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a) Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by Delaware Law, such notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Unless these bylaws otherwise require, when a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
(b) A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.05. Quorum. Unless otherwise provided in the certificate of incorporation or these bylaws and subject to Delaware Law, the presence, in person or by proxy, of the holders of a majority of the outstanding capital stock of the Corporation entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders present in person or represented by proxy shall adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.
Section 2.06. Voting. (a) Unless otherwise provided in the certificate of incorporation and subject to Delaware Law, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Unless otherwise provided in Delaware Law, the certificate of incorporation or these bylaws, the affirmative vote of a majority of the shares of capital stock of the Corporation present, in person or by written proxy, at a meeting of stockholders and entitled to vote on the subject matter shall be the act of the stockholders.
(b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for him by written proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
Section 2.07. Action by Consent. (a) Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had
been the date that written consents signed by a sufficient number of
stockholders to take the action were delivered to the Corporation as provided in
Section 2.07(b).
(b) Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section and Delaware Law to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested.
Section 2.08. Organization. At each meeting of stockholders, the Chairman of the Board of Directors, if one shall have been elected, or in the Chairman's absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary's absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting.
ARTICLE 3
DIRECTORS
Section 3.01. General Powers. Unless otherwise provided in the certificate of incorporation and subject to Delaware Law, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
Section 3.02. Number, Election and Term of Office. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two or more than eleven. The directors shall be elected at the annual meeting of the stockholders by written ballot, except as provided in Section 2.02 and Section 3.13 herein, and each director so elected shall hold office until such director's successor is elected and qualified or until such director's earlier death, resignation or removal. Directors need not be stockholders.
Section 3.03. Quorum and Manner of Acting. (a) A quorum of the Board of Directors shall consist of a majority of the total number of directors, which shall include a majority of the directors nominated by FP-Ultra Clean, LLC pursuant to Section 2.01(a) of the Stockholders' Agreement; provided that FP-Ultra Clean, LLC shall have the right at any time to increase the number of directors nominated by FP-Ultra Clean, LLC necessary to constitute such quorum. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
(b) All actions of the Board of Directors shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board of Directors at which a quorum is present or (ii) the unanimous written consent of the Board of Directors; provided that in the event that there is a vacancy on the Board of Directors and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
Section 3.04. Action by the Board of Directors. No action by the Corporation (including but not limited to any action by the Board of Directors or any committee thereof) shall be taken with respect to any of the following matters without the affirmative approval of the Board of Directors, including the affirmative approval of a majority of the directors nominated by FP-Ultra Clean, LLC pursuant to Section 2.01(a) of the Stockholders' Agreement:
(i) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Corporation or any Subsidiary, except as expressly permitted by the Stockholders' Agreement;
(ii) any incurrence, refinancing, alteration of material terms or prepayment by the Corporation or any Subsidiary of indebtedness for borrowed money in excess of $10,000,000 in the aggregate (or the guaranty by the Corporation or any Subsidiary of any such indebtedness);
(iii) any approval of the annual business plan, budget and long-term strategic plan of the Corporation or any Subsidiary;
(iv) any modification of the long-term business strategy or scope of the business of the Corporation or any Subsidiary or any material customer relationships thereof;
(v) (A) any merger or consolidation of the Corporation with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Corporation or any other wholly owned Subsidiary, or (B) any sale of the Corporation or any Subsidiary or any significant operations of the Corporation or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Corporation or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (B) in excess of $10,000,000;
(vi) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Corporation or any Subsidiary;
(vii) the issuance of any security by the Corporation or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board of Directors), other than as specifically contemplated by the Stockholders' Agreement;
(viii) any determination of compensation, benefits, perquisites and other incentives for the Chief Executive Officer or the Chief Financial Officer of the Corporation or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Corporation or its Subsidiaries;
(ix) any appointment or dismissal of any of the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer or any other executive officer in any similar capacity of the Corporation or any Subsidiary;
(x) any amendment to the Stockholders' Agreement, any exercise or waiver of the Corporation's rights under the Stockholders' Agreement, any amendment to the Corporation's certificate of incorporation or these bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any Subsidiary; or
(xi) any increase or decrease to the number of Directors that comprise the entire Board of Directors of the Corporation or any Subsidiary.
Section 3.05. Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a determination by the Board of Directors).
Section 3.06. Annual Meeting. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in Section 3.08 herein or in a waiver of notice thereof signed by any director who chooses to waive the requirement of notice.
Section 3.07. Regular Meetings. After the place and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.
Section 3.08. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the President and shall be called by the Chairman of the Board of Directors, President or Secretary on the written request of two directors. Notice of special meetings of the Board of Directors shall be given to each director at least 12 hours before the date of the meeting in such manner as is determined by the Board of Directors.
Section 3.09. Committees. (a) The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation; provided that for so long as FP-Ultra Clean, LLC owns at least 25% of the Common Stock, FP-Ultra Clean, LLC shall be entitled to majority representation on any committee created by the Board of Directors, which majority representation shall consist of any director or directors designated by FP-Ultra Clean, LLC to serve on such committee; provided further that if rules and regulations of the Securities and Exchange Commission or the securities exchange or quotation system on which the Common Stock is traded require any committee to consist of one or more "independent directors" (as such term is defined by the rules and regulations of the securities exchange or quotation system on which the Common Stock is traded), the directors designated to serve on such committee by FP-Ultra Clean, LLC shall be "independent directors" to the extent required by such rules and regulations.
(b) The Board of Directors may designate one or more directors as alternate members of any committee who may replace any absent or disqualified
member that is not a member designated by FP-Ultra Clean, LLC (each, a
"DISINTERESTED MEMBER") at any meeting of the committee. In the absence or
disqualification of a Disinterested Member, the member or members present at any
such committee meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified Disinterested Member. Any such committee, to the extent provided in
the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to the following matter: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by Delaware Law to be submitted to the stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the Corporation. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
Section 3.10. Action by Consent. Unless otherwise provided in the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.11. Telephonic Meetings. Unless otherwise provided in the certificate of incorporation or these bylaws, members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.12. Resignation. Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.13. Vacancies. Unless otherwise provided in the certificate of incorporation or the Stockholders' Agreement, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Each director so chosen shall hold office until his successor is elected and qualified, or until his earlier death, resignation or removal. If there are no directors in office, then an election of directors may be held in accordance with Delaware Law. Unless otherwise provided in the certificate of incorporation or the Stockholders' Agreement, when one or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in the filling of other vacancies.
Section 3.14. Removal. Except as otherwise provided in the Stockholders' Agreement, any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created may be filled in accordance with Section 3.13 herein.
Section 3.15. Compensation. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.
ARTICLE 4
OFFICERS
Section 4.01. Principal Officers. The principal officers of the Corporation shall be a President, one or more Vice Presidents, the Chief Financial Officer and a Secretary who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Controllers, as the Board of Directors may in its discretion appoint. One person may hold the offices and perform the duties of any two or more of
said offices, except that no one person shall hold the offices and perform the duties of President and Secretary.
Section 4.02. Election, Term of Office and Remuneration. The principal officers of the Corporation shall be elected annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until his successor is elected and qualified, or until his earlier death, resignation or removal. The remuneration of all senior officers and named key employees of the Corporation shall be fixed by the Board of Directors or a committee thereof. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.
Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.
Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.
Section 4.05. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of Directors has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.
ARTICLE 5
GENERAL PROVISIONS
Section 5.01. Fixing the Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by Delaware Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by Delaware Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 5.02. Dividends. Unless otherwise provided in the certificate of incorporation and subject to Delaware Law, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.
Section 5.03. Year. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.
Section 5.04. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 5.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.
Section 5.06. Certain Definitions. The following terms used herein have the following meanings:
"PERSON" means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement dated as of , 2004, as amended from time to time, among the Corporation, FP-Ultra Clean LLC and other parties named in joinder agreements thereto.
"SUBSIDIARY" means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
"FP-ULTRA CLEAN, LLC" means, to the extent such entity shall have transferred any of its Company Securities to any of its Permitted Transferees (as defined in the Stockholders' Agreement), FP-Ultra Clean, LLC and such Permitted Transferees, taken together.
Section 5.07. Amendments. These bylaws or any of them, may be altered, amended or repealed, or new bylaws may be made, by the stockholders entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors.
EXHIBIT 5.1
[Letterhead of Davis Polk & Wardwell]
March 2, 2004
Ultra Clean Holdings, Inc.
150 Independence Drive
Menlo Park, California 94025
Ladies and Gentlemen:
Ultra Clean Holdings, Inc., a Delaware corporation (the "COMPANY"), is filing with the Securities and Exchange Commission a Registration Statement on Form S-1 (the "REGISTRATION STATEMENT") for the purpose of registering under the Securities Act of 1933, as amended (the "SECURITIES ACT"), up to an aggregate amount of 10,465,000 shares of its common stock, par value $0.001 per share (the "SECURITIES"), as described in the Registration Statement.
We have examined such documents and such matters of fact and law that we have deemed necessary for the purpose of rendering the opinion expressed herein. Based on the foregoing, we are of the opinion that, when the price at which the Securities to be sold has been approved by or on behalf of the Board of Directors of the Company and when the Securities have been duly issued in the manner described in the Registration Statement and delivered against payment therefor in accordance with the terms of the Underwriting Agreement referred to in the Registration Statement, the Securities will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement referred to above, and further consent to the reference to our name under the caption "Legal Matters" in the Prospectus which is a part of the Registration Statement, without admitting that we are experts within the meaning of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell |
Exhibit 10.5
ULTRA CLEAN HOLDINGS, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN
(TO BE EFFECTIVE AS OF THE IPO CLOSING)
Section 1. Purpose. The purposes of the Ultra Clean Holdings, Inc. Stock Incentive Plan (this "PLAN") are to promote the interests of Ultra Clean Holdings, Inc., a Delaware company (together with its successors and assigns, the "COMPANY") and its stockholders by (i) attracting and retaining exceptional executive personnel and other key employees and consultants of the Company and its Affiliates (as defined below); (ii) motivating employees, consultants and directors by means of performance related incentives to achieve longer range performance goals; and (iii) enabling employees, consultants and directors to participate in the long term growth and financial success of the Company.
Section 2. Definitions. As used in the Plan, the following terms shall have the meanings set forth below:
"AFFILIATE" means any parent corporation or subsidiary corporation of the Company, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of the Code.
"AWARD" means any Option or other stock-based award granted under Section 6 or 7 hereof.
"AWARD AGREEMENT" means any written agreement, contract, or other instrument or document evidencing any Award, which may, but need not, be executed or acknowledged by a Participant.
"BOARD" means the Board of Directors of the Company.
"CAUSE" means, unless otherwise defined in any Employment Agreement or Award Agreement:
(i) the failure, refusal or willful neglect of a Participant to perform the services required of such Participant in his capacity as an employee;
(ii) the Company forming a good faith belief that a Participant has engaged in fraudulent conduct in connection with the business of the Company or its subsidiaries or that a Participant has committed a felony;
(iii) a Participant's breach of any trade secret or confidential information agreement with the Company or its subsidiaries; or
(iv) the Company forming a good faith belief that a Participant has committed an act of misconduct, violated the Company's or its subsidiaries' anti-discrimination policies prohibiting discrimination or harassment on the grounds of
race, sex, age or any other legally prohibited basis, or otherwise has caused material harm to the Company's or its subsidiaries' reputation or goodwill.
"CHANGE OF CONTROL" means the occurrence of one of the following events:
(i) the consummation of a merger or consolidation of the Company with or into any other entity pursuant to which the stockholders of the Company, or applicable, immediately prior to such merger or consolidation hold less than 50% of the voting power of the surviving entity;
(ii) the sale or other disposition of all or substantially all of the Company's assets; or
(iii) any acquisition by any person or persons (other than the direct and indirect stockholders of the Company immediately after the Effective Date) of the beneficial ownership of 50% or more of the voting power of the Company's equity securities in a single transaction or series of related transactions; provided, however, that an underwritten public offering of the Company's securities shall not be considered a Change in Control;
provided, however, that a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company's incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company's securities immediately before such transaction.
"CODE" means the Internal Revenue Code of 1986, as amended from time to time.
"COMMITTEE" means a committee of one or more members of the Board designated by the Board to administer the Plan. Until otherwise determined by the Board, the full Board shall be the Committee under the Plan.
"CONSULTANT" means any natural person, including an advisor, engaged by the Company or an Affiliate to render bona fide consulting or advisory services.
"DIRECTOR" means a member of the Board.
"DISABILITY" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Code.
"EMPLOYEE" means an employee of the Company or any of its Affiliates.
"EMPLOYMENT AGREEMENT" means an employment agreement entered into between a Participant and the Company or any of its Affiliates.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE PRICE" means the purchase price of the Option as set forth in the Award Agreement.
"FAIR MARKET VALUE" means, with respect to a Share as of any date of determination, the reported closing price of a share of such class of common stock on such exchange or market as is the principal trading market for such class of common stock for the trading day immediately preceding such date of determination. If such class of common stock is not listed on an exchange or principal trading market on such date, the fair market value of a Share shall be determined by the Committee in good faith taking into account as appropriate recent sales of the Shares, recent valuations of the Shares and such other factors as the Committee shall in its discretion deem relevant or appropriate.
"INCENTIVE STOCK OPTION" means a right to purchase Shares from the Company that is granted under Section 6 of the Plan and that is intended to meet the requirements of Section 422 of the Code or any successor provision thereto.
"NON-QUALIFIED STOCK OPTION" means a right to purchase Shares from the Company that is granted under Section 6 of the Plan and that is not intended to be an Incentive Stock Option.
"OPTION" means an Incentive Stock Option or a Non-Qualified Stock Option.
"PARTICIPANT" means a Person granted an Award under the Plan (and to the extent applicable, any heirs or legal representatives thereof).
"PERSON" means any individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity.
"RULE 16B-3" means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
"SEC" means the Securities and Exchange Commission or any successor thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of common stock of the Company or such other securities as may be designated by the Committee from time to time.
"SUBSTITUTE AWARDS" means Awards granted in assumption of, or in substitution for, outstanding awards previously granted by a company acquired by the Company or with which the Company combines.
Section 3. Administration.
(a) Authority of Committee. The Plan shall be administered by the Committee. Subject to the terms of the Plan, applicable law and contractual restrictions affecting the Company, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a
Participant and the exercise price or purchase price, if applicable; (iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions (including the vesting schedule, if any) of any Award and Award Agreement; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited or suspended; (vi) determine whether, to what extent, and under what circumstances cash, Shares, other securities, other Awards, other property, and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the holder thereof or of the Committee; (vii) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (viii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (ix) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
(b) Committee Composition. If the Board in its discretion deems it advisable, the Board may provide that the Committee may consist solely of two or more "Outside Directors" as defined in the regulations under Section 162(m) of the Code and/or solely of two or more "Non-Employee Directors" as defined in Rule 16b-3.
(c) Committee Discretion Binding. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all Persons, including the Company, any of its Affiliates, any Participant, any holder or beneficiary of any Award, any shareholder and any Employee.
Section 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in this Section, the number of Shares with respect to which Awards may be granted under the Plan shall be 2,062,177, plus an annual increase on the first day of each fiscal year during the term of the Plan beginning January 1, 2005 through 2014, in each case in an amount equal to the lesser of (i) 370,228 shares, (ii) 2% of the number of shares of the Common Stock outstanding on such date, or (iii) an amount determined by the Board. Such Shares may consist, in whole or in part, of authorized and unissued shares or treasury shares. If, after the effective date of the Plan, any Shares covered by an Award granted under the Plan (including any Substitute Award) or to which such an Award relates are forfeited, or if such an Award is settled for cash or otherwise terminates or is canceled without the delivery of Shares, then the Shares covered by such Award, or to which such Award relates, shall again become Shares with respect to which Awards may be granted. In addition, Shares tendered in satisfaction or partial satisfaction of the exercise price of any Award or any tax withholding obligations will again become Shares with respect to which Awards may be granted.
(b) Section 162(m) Limitation. Subject to the provisions below relating to adjustments upon changes in the shares of Common Stock, no Employee shall be eligible to be granted Options covering more than 750,000 shares of Common Stock during any calendar year and no Employee shall be eligible to be granted other Awards covering more than 750,000 shares of Common Stock during any calendar year.
(c) Adjustments. In the event that the number of issued Shares is increased or decreased as a result of a stock dividend, stock split, reverse stock split, combination or reclassification of Shares, or any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company (provided that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration"), then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number of Shares of the Company (or number and kind of other securities or property) with respect to which Awards may thereafter be granted, (ii) the number of Shares or other securities of the Company (or number and kind of other securities or property) subject to outstanding Awards, and (iii) the grant or exercise price with respect to any Award.
(d) Substitute Awards. Any Shares underlying Substitute Awards shall not be counted against the Shares authorized for issuance under the Plan and shall increase the number Shares available for issuance hereunder.
Section 5. Eligibility.
(a) General. Any Employee, Consultant or Director shall be eligible to be selected by the Committee to receive an Award under the Plan.
(b) Incentive Stock Options. Only Employees shall be eligible for the grant of Incentive Stock Options.
(c) Substitute Awards. Holders of options and other types of awards granted by a company acquired by the Company or with which the Company combines are eligible for grants of Substitute Awards hereunder.
(d) Non-Employee Directors. Awards may be granted to Non-Employee Directors in accordance with the policies established from time to time by the Board specifying the number of shares (if any) to be subject to each such Award and the time(s) at which such awards shall be granted. Awards granted to Non-Employee Directors shall be on terms and conditions determined by the Board, subject to the provisions of the Plan.
Section 6. Stock Options.
(a) Grants. The Committee is authorized to grant Options to Participants with the terms and conditions set forth in this Section 6 and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(b) Type of Option. The Committee shall have the authority to grant Incentive Stock Options, Non-Qualified Stock Options, or both. In the case of Incentive Stock Options, the terms and conditions of such grants shall be subject to and comply with the provisions of Section 422 of the Code, as from time to time amended, or any successor provision thereto, and any regulations implementing such statute.
(c) Exercise Price. The Committee in its sole discretion shall establish the Exercise Price at the time each Option is granted. Notwithstanding the foregoing, the Exercise Price of any Option shall not be less than 100% of the Fair Market Value at the time the Option is granted.
(d) Exercise. Each Option shall be exercisable at such times and subject to such terms and conditions as the Committee may, in its sole discretion, specify in the applicable Award Agreement or thereafter. The Committee may impose such conditions with respect to the exercise of Options, including without limitation, any relating to the application of Federal or state securities laws, as it may deem necessary or advisable.
(e) Payment. No Shares shall be delivered pursuant to any exercise of an Option until payment in full of the exercise price is received by the Company. Such payment may be made: (i) in cash; (ii) if approved by the Committee, in Shares (the value of such Shares shall be their Fair Market Value on the date of exercise) owned by the Participant for the period required to avoid a charge to the Company's earnings (which is generally six months); (iii) if approved by the Committee, by a combination of the foregoing; (iv) if approved by the Committee, in accordance with a cashless exercise program; or (v) in such other manner as permitted by the Committee at the time of grant or thereafter.
Section 7. Other Stock-based Awards.
(a) Other Stock-based Awards. The Committee is hereby authorized to grant
to Participants awards of restricted stock, restricted stock units, stock
appreciation rights, rights to purchase stock, bonus stock rights, warrants,
rights to dividends and dividend equivalents, and other awards that are
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, Shares (including, without limitation,
securities convertible into Shares) as are deemed by the Committee to be
consistent with the purposes of the Plan. Subject to the terms of the Plan, the
Committee shall determine the terms and conditions of such Awards. Shares or
other securities delivered pursuant to a purchase right granted under this
Section shall be purchased for such consideration, which may be paid by such
method or methods and in such form or forms, including, without limitation,
cash, Shares, other securities, other Awards, or other property, or any
combination thereof, as the Committee shall determine.
Section 8. Effect of Termination of Employment or Service.
(a) Termination of Employment or Service. Except as the Committee may otherwise provide at the time the Award is granted or thereafter, or as required to comply with applicable law, if the Participant's employment or service with the Company and its
Affiliates is terminated by Participant or by the Company for any reason (other than death or Disability or by the Company for Cause), then (i) to the extent not yet vested as of the date of termination, an Award shall immediately be forfeited, and (ii) to the extent vested as of the date of termination, an Award may be retained and, if applicable, exercised until the earlier of (A) the date three months (or such longer or shorter period, if any, specified in the applicable Award Agreement or Employment Agreement) after such termination of employment or service or (B) the date such Award would have expired had it not been for the termination of employment or service, after which time, in either case, such Award shall expire.
(b) Death or Disability. Except as the Committee may otherwise provide at the time the Award is granted or thereafter, or as required to comply with applicable law, if the Participant's employment or service with the Company and its Affiliates is terminated by reason of death or Disability, then (i) to the extent not yet vested as of the date of termination, an Award shall immediately be forfeited, and (ii) to the extent vested as of the date of termination, the Award may be retained and, if applicable, exercised by the Participant or his successor (if employment or service is terminated by death) until the earlier of (A) the date one year after such termination of employment or service or (B) the date such Award would have expired had it not been for the termination of such employment or service, after which time, in either case, such Award shall expire.
(c) Cause. Except as the Committee may otherwise provide at the time the Award is granted or thereafter, or as required to comply with applicable law, if the Participant's employment or service with the Company and its Affiliates is terminated by the Company or an Affiliate for Cause, all Awards shall be forfeited and shall expire immediately on the date of termination.
Section 9. Amendment and Termination.
(a) Amendment or Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided that no such amendment, alteration, suspension, discontinuation or termination shall be made without shareholder approval if such approval is necessary to comply with any tax or regulatory requirement, for which or with which the Board deems it necessary or desirable to qualify or comply. Notwithstanding anything to the contrary herein, the Committee may amend the Plan in such manner as may be necessary so as to have the Plan conform with local rules and regulations in any jurisdiction outside the United States. Any such amendment, alteration, suspension, discontinuance, or termination that would adversely affect the rights of a Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective with respect to such Award without the consent of the affected Participant, holder or beneficiary, except as otherwise provided in Section 10 below or elsewhere in the Plan.
(b) Amendment or Termination of Awards. Subject to the terms of the Plan and applicable law, the Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted, prospectively or retroactively; provided that any such waiver, amendment (other
than any amendment to Section 10 hereof), alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of a Participant or any holder or beneficiary of any Award theretofore
granted shall not to that extent be effective without the consent of the
affected Participant, holder or beneficiary, except as otherwise provided in
Section 10 below or elsewhere in the Plan or the applicable Award Agreement.
Section 10. Corporate Transactions.
(a) Corporate Transactions. Any provision of this Plan or any Award
Agreement to the contrary notwithstanding, in the event of a Change of Control,
the Committee, in its sole discretion, (i) may cause any outstanding Award to be
(x) continued by the Company, (y) assumed, or substituted with a substantially
equivalent award, by the successor company (or its parent or any of its
subsidiaries), or (z) canceled in consideration of a cash payment or alternative
Award, if applicable, made to the holder of such canceled Award equal in value
to the Fair Market Value of such canceled Award less any exercise price
(provided that the Committee may determine that only holders of vested Awards
shall receive any such cash payment or alternative Award); or (ii) may take any
other action or actions with respect to the outstanding Awards that it deems
appropriate. Any Award (or any portion thereof) not continued or assumed by the
Company or the successor company (or its parent or any of its subsidiaries), as
applicable, pursuant to the foregoing shall terminate on such Change of Control
and the holder thereof shall be entitled to no consideration for such Award.
(b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company, then all outstanding Awards shall terminate immediately prior to such event.
Section 11. General Provisions.
(a) Dividend Equivalents. In the sole and complete discretion of the Committee, an Award may provide the Participant with dividends or dividend equivalents, payable in cash, Shares, other securities or other property on a current or deferred basis.
(b) Nontransferability of Awards. Except to the extent otherwise provided in an Award Agreement, no Award shall be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant, except by will or the laws of descent and distribution.
(c) No Rights to Awards. No Employee, Participant or other Person shall have any claim to be granted any Award, and there is no obligation for uniformity of treatment of Employees, Participants, or holders or beneficiaries of Awards. The terms and conditions of Awards need not be the same with respect to each recipient.
(d) Share Certificates. Certificates issued in respect of Shares shall, unless the Committee otherwise determines, be registered in the name of the Participant or its permitted transferees and shall be deposited by such Participant or permitted transferee,
together with a stock power endorsed in blank, with the Company. When the Participant ceases to be bound by any transfer restrictions set forth herein or in the applicable Award Agreement, the Company shall deliver such certificates to the Participant upon request. Such stock certificate shall carry such appropriate legends, and such written instructions shall be given to the Company transfer agent, as may be deemed necessary or advisable by counsel to the Company in order to comply with the requirements of the Securities Act of 1933, any state securities laws or any other applicable laws. All certificates for Shares or other securities of the Company or any of its Affiliates delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission or any stock exchange upon which such Shares or other securities are then listed and any applicable laws or rules or regulations, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
(e) Withholding. A Participant may be required to pay to the Company or any of its Affiliates, and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any Award, from any payment due or transfer made under any Award or under the Plan or from any compensation or other amount owing to a Participant, the amount (in cash, Shares, other securities, other Awards or other property) of any applicable withholding taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. The Committee may provide for additional cash payments to holders of Awards to defray or offset any tax arising from any such grant, lapse, vesting, or exercise of any Award.
(f) Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement which shall be delivered to the Participant and shall specify the terms and conditions of the Award and any rules applicable thereto.
(g) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting or continuing in effect other compensation arrangements, which may, but need not, provide for the grant of options, restricted stock, Shares and other types of Awards provided for hereunder (subject to shareholder approval if such approval is required), and such arrangements that may be either generally applicable or applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ or service of the Company or any Affiliate and shall not lessen or effect the right of the Company or its Affiliates to terminate the employment or service of a Participant.
(i) Rights as a Stockholder. Subject to the provisions of the applicable Award, no Participant or holder or beneficiary of any Award shall have any rights as a stockholder with respect to any Shares to be issued under the Plan until he or she has become the holder of such Shares.
(j) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan and any Award Agreement shall be determined in accordance with the laws of the State of California.
(k) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or transfer any Shares or other consideration under an Award if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration might violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant in connection therewith shall be promptly refunded to the relevant Participant, holder or beneficiary. Without limiting the generality of the foregoing, no Award granted hereunder shall be construed as an offer to sell securities of the Company, and no such offer shall be outstanding, unless and until the Committee in its sole discretion has determined that any such offer, if made, would be in compliance with all applicable requirements of the U.S. federal securities laws and any other laws to which such offer, if made, would be subject.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company or any Affiliate.
(n) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash or other securities or other property shall be paid or transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be canceled, terminated, or otherwise eliminated.
(o) Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
(p) Proprietary Information and Inventions Agreement. A Participant shall, as a condition precedent to the exercise or settlement of an Award, have executed and be in
compliance with the Company's (or its subsidiary's) standard form of confidentiality and non-disclosure agreement.
(q) Modification of Award Terms for non-U.S. Employees. The Committee shall have the discretion and authority to grant Awards with such modified terms as the Committee deems necessary or appropriate in order to comply with the laws of the country in which the Employee resides or is employed, and may establish a subplan under this Plan for such purposes.
Section 12 . Term of the Plan. The Plan shall remain in effect until terminated by the Board under the terms of the Plan, provided that in no event may Incentive Stock Options be granted under the Plan later than ten years from the date the Plan was adopted by the Board (or as otherwise allowed by applicable law). Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted hereunder may, and the authority of the Board or the Committee to amend, alter, adjust, suspend, discontinue or terminate any such Award or to waive any conditions or rights under any such Award shall, continue after the authority for grant of new Awards hereunder has been exhausted.
EXHIBIT 10.8
ADVISORY AGREEMENT
This Advisory Agreement (this "AGREEMENT") is made and entered into as of February 15, 2004 by and between Ultra Clean Holdings, Inc. (the "COMPANY") and Francisco Partners Management, LLC ("ADVISOR").
WHEREAS, the Company desires to retain Advisor, and Advisor desires to perform certain services for the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Services. Advisor shall provide assistance and advice to the Company with respect to the following matters:
(a) selection of investment bankers;
(b) business plan
(c) equity capitalization;
(d) outside debt financing;
(e) management organization and recruiting;
(f) management compensation;
(g) identification and recruitment of directors;
(h) board of directors compensation; and
(i) directors' and officers' insurance.
2. Advisory Fee. The Company hereby agrees to pay the Advisor or its designee a fee of $2,000,000, plus reasonable out-of-pocket expenses in respect of the provision of the foregoing services. Such fees shall be payable to Advisor or its designees by wire transfer to an account designated in writing by Advisor upon the completion of the foregoing services, but in any event not later than the completion by the Company of its initial public offering.
3. Liability. Neither Advisor nor any other Indemnitee (as defined in Section 4 below) shall be liable to any of the Company or its stockholders for any loss, liability, damage or expense arising out of or in connection with the performance of services contemplated by this Agreement, unless such loss, liability, damage or expense shall be proven to result directly from gross negligence, willful misconduct or bad faith on the part of an Indemnitee acting within the scope of such person's employment or
authority. Advisor makes no representations or warranties, express or implied,
in respect of the services to be provided by Advisor or any of the other
Indemnitees. In no event will any of the parties hereto be liable to any other
party hereto for any indirect, special, incidental or consequential damages,
including lost profits or savings, whether or not such damages are foreseeable,
or in respect of any liabilities relating to any third party claims (whether
based in contract, tort or otherwise) other than the Claims (as defined in
Section 4 below) relating to the service to be provided by Advisor hereunder.
4. Indemnity. The Company shall defend, indemnify and hold harmless each of Advisor, its affiliates, members, partners, employees and agents (collectively, the "INDEMNITEES") from and against any and all loss, liability, damage or expenses arising from any claim by any person with respect to, or in any way related to, the performance of services contemplated by this Agreement (including attorneys' fees) (collectively, "CLAIMS") resulting from any act or omission of any of the Indemnitees, other than for Claims which shall be proven to be the direct result of gross negligence, bad faith or willful misconduct by an Indemnitee. The Company shall defend at its own cost and expense any and all suits or actions (just or unjust) which may be brought against it or any of the Indemnitees or in which any of the Indemnitees may be impleaded with others upon any Claims, or upon any matter, directly or indirectly, related to or arising out of this Agreement or the performance hereof by any of the Indemnitees, except that if such damage shall be proven to be the direct result of gross negligence, bad faith or willful misconduct by an Indemnitee, then Advisor shall reimburse the Company for the costs of defense and other costs incurred by the Company.
5. Notices. All notices hereunder shall be in writing and shall be delivered personally or mailed by United States mail, postage prepaid, addressed to the parties as follows:
To the Company:
Ultra Clean Holdings, Inc.
150 Independence Drive
Menlo Park, California 94025
Attention: Chief Executive Officer
Facsimile: (650) 326-0929
To Advisor:
Francisco Partners GP, LLC
c/o Francisco Partners, L.P.
2882 Sand Hill Road, Suite 280
Menlo Park, California 94025
Attention: Dipanjan Deb
Facsimile: (650) 233-2999
6. Counterparts. This Agreement may be executed and delivered by each party hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute but one and the same agreement.
7. Entire Agreement; Modification; Governing Law. The terms and conditions hereof constitute the entire agreement between the parties hereto with respect to the subject matter of this Agreement and supersede all previous communications, either oral or written, representations or warranties of any kind whatsoever, except as expressly set forth herein. No modifications of this Agreement nor waiver of the terms or conditions thereof shall be binding upon either party unless approved in writing by an authorized representative of such party. All issues concerning this Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of California.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Advisory Agreement.
ULTRA CLEAN HOLDINGS, INC.
By: ________________________________________
Name: Clarence L. Granger
Title: Chief Executive Officer
FRANCISCO PARTNERS MANAGEMENT, LLC
By: ________________________________________
Name: Dipanjan Deb
Title: Managing Member
Exhibit 10.9
ULTRA CLEAN HOLDINGS, INC.
EMPLOYEE STOCK PURCHASE PLAN
Section 1. Purpose of the Plan.
The purpose of this Employee Stock Purchase Plan (the "PLAN") is to give eligible employees of Ultra Clean Holdings, Inc. (the "COMPANY") and its subsidiaries the ability to share in the Company's future success. The Company expects that it and its stockholders will benefit from the added interest which such eligible employees will have in the welfare of the Company as a result of their increased equity interest in the Company's success. The Plan is intended to qualify under Section 423 of the Code (as defined below).
Section 2. Definitions.
The following capitalized terms used in the Plan have the respective meanings set forth in this Section:
(a) "BOARD" means the board of directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended from time to time.
(c) "COMMITTEE" means a committee of the Board designated by the Board to administer the Plan. If no committee is so designated by the Board, the full Board shall be the Committee hereunder.
(d) "COMMON STOCK" means the Common Stock, par value $0.001 per share, of the Company.
(e) "COMPENSATION" means base pay prior to any reductions for pre-tax contributions made to a plan or salary reduction contributions to a plan excludable from income under Sections 125, 132 or 402(g) of the Code, unless otherwise determined by the Committee or its delegate. Notwithstanding the foregoing, unless otherwise determined by the Committee or its delegate, "Compensation" shall exclude severance pay, bonuses, retirement income, change in control payments, contingent payments, income derived from stock options, stock appreciation rights and other equity-based compensation and other forms of special remuneration.
(f) "CORPORATE TRANSACTION" means (i) a merger of the Company with or into another corporation (other than a merger whose sole purpose is to change the state of the Company's incorporation or a merger as a result of which the direct or indirect stockholders of the Company immediately prior to such merger or consolidation hold, directly or indirectly, less than 50% of the voting power of the surviving entity); (ii) the sale of substantially all of the assets or stock of the Company; or (iii) the complete liquidation or dissolution of the Company.
(g) "ENROLLMENT DATE" means the first date of an Offering Period.
(h) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any successor thereto.
(i) "FAIR MARKET VALUE" means, as of any date, the value of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of the Common Stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the Common Stock) on the last market trading day prior to the day of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable.
(ii) In the absence of such markets for the Common Stock, the Fair Market Value shall be determined in good faith by the Committee.
(j) "MAXIMUM SHARE AMOUNT" means, subject to applicable law, the maximum number of Shares that a Participant may purchase on any given Purchase Date, as determined by the Committee in its sole discretion.
(k) "NEW PURCHASE DATE" means the purchase date established pursuant to
Section 12 of the Plan.
(l) "OFFERING PERIOD" means a period of approximately 12 months consisting of consecutive Purchase Periods (or such other period as may be determined by the Committee), as set forth in Section 7.
(m) "OPTION" means an option granted pursuant to Section 7 of the Plan.
(n) "PARTICIPANT" means an eligible employee of the Company or a Participating Subsidiary who participates in the Plan.
(o) "PARTICIPATING SUBSIDIARY" means a Subsidiary that is selected to participate in the Plan by the Committee in its sole discretion.
(p) "PAYROLL DEDUCTION ACCOUNT" means an account to which payroll deductions of a Participant are credited under Section 8(c) of the Plan.
(q) "PERSON" means an individual, corporation, partnership, limited partnership, syndicate, person (including, without limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government, but excluding any of the Company, any Subsidiary or any employee benefit plan sponsored or maintained by the Company or any Subsidiary.
(r) "PURCHASE DATE" means the last trading day of a Purchase Period.
(s) "PURCHASE PERIOD" means the approximately six-month period commencing after one Purchase Date and ending with the next Purchase Date, except that the first Purchase Period of any Offering Period will commence on the applicable Enrollment Date.
(t) "PURCHASE PRICE" means, with respect to each Share, 85% of the lesser of (i) the Fair Market Value of a Share on the Enrollment Date and (ii) the Fair Market Value of a Share on the Purchase Date, or such other purchase price as may be determined by the Committee.
(u) "SHARE" means a share of Common Stock of the Company.
(v) "SUBSIDIARY" means any corporation, partnership, joint venture or other legal entity of which the Company owns directly or indirectly, more than 50% of the total combined voting power of all classes of stock or other equity interests of such entity.
Section 3. Shares Subject To The Plan.
The total number of Shares subject to the Plan is 555,343. The Shares will consist in whole or in part of authorized but unissued Shares or treasury Shares, including Shares purchased on the open market or otherwise.
Section 4. Administration.
(a) The Plan shall be administered by the Committee. Subject to the terms of the Plan and applicable law, the Committee shall have full power and authority to: (i) designate Participants; (ii) interpret and administer the Plan; (iii) establish, amend, suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; (iv) correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable; and (v) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
(b) All decisions of the Committee shall be final, conclusive and binding upon all persons.
Section 5. Eligibility.
Any individual who is employed by the Company or a Participating Subsidiary on a given Enrollment Date is eligible to participate in the Plan, subject to limitations imposed by Section 423 of the Code or as otherwise determined by the Committee. Notwithstanding the foregoing, no Employee shall be granted an option under the Plan if, immediately after the grant, such Employee (or any other person whose stock would be attributed to such Employee pursuant to Section 424(d) of the Code) would own stock
possessing 5% or more of the total combined voting power or value of all classes of stock of the Company or its Subsidiaries.
Section 6. Election to Participate.
Pursuant to procedures set forth by the Committee, Participants may elect to participate in a given Offering Period under the Plan prior to the Enrollment Date for such Offering Period. Enrollments shall remain in effect for subsequent Offering Periods, except as provided herein. A Participant shall not be enrolled in more than one Offering Period at any time.
Section 7. Offering Periods; Grant of Option on Enrollment; Purchase of Shares.
(a) The Plan shall be implemented by consecutive, overlapping Offering Periods with a new Offering Period commencing on a date determined by the Committee.
(b) With respect to an Offering Period, each Participant enrolled in such
Offering Period shall be granted as of the Enrollment Date an Option to purchase
on each Purchase Date during the Offering Period a number of Shares equal to the
lesser of (i) the Maximum Share Amount or (ii) the number determined by dividing
(A) the amount expected to be accumulated in such Participant's Payroll
Deduction Account as of a Purchase Date, pursuant to the election made under
Section 8, by (B) the Fair Market Value of a Share on the Enrollment Date.
(c) In the event that the Committee determines that the number of Shares that may be purchased on a Purchase Date may exceed the number of Shares available under Section 3, the Committee may in its discretion provide for a pro rata purchase on the Purchase Date, and may continue or terminate any Offering Periods then in effect.
Section 8. Payment of Purchase Price; Changes in Payroll Deductions; Issuance of Shares.
(a) Payroll deductions shall be made on each day that a Participant is paid during an Offering Period in respect of a payroll period with a payment date commencing after the Enrollment Date. The deductions shall be made as a percentage of the Participant's Compensation in 1% increments, from 1% to 10% of such Participant's Compensation, as elected by the Participant; provided that, in accordance with Section 423(b)(8) of the Code, no Participant shall be permitted to accrue rights to purchase Shares under this Plan (and any other employee stock purchase plan of the Company or any of its Subsidiaries) with an aggregate Fair Market Value (as determined as of the date the applicable option is granted) in excess of $25,000 for each calendar year in which such option is outstanding at any time.
(b) A Participant may discontinue his or her participation in the Plan as provided in Section 9, or may change the rate of his or her payroll deductions during an Offering Period by completing and filing with the Company a new authorization for payroll deduction, subject to clause (a) above. The Committee may, in its discretion, limit the number of participation rate changes in any Offering Period. The change in rate
shall be effective as soon as administratively feasible following the Company's receipt of the new authorization.
(c) All payroll deductions made with respect to a Participant shall be credited to the Participant's Payroll Deduction Account under the Plan and shall be deposited with the general funds of the Company, and no interest shall accrue on the amounts credited to such Payroll Deduction Account, in either case except as otherwise required by law or as determined by the Committee. All payroll deductions received or held by the Company may be used by the Company for any corporate purpose and the Company shall not be obligated to segregate such payroll deductions, except as otherwise required by law or as determined by the Committee. Except to the extent provided by the Committee, a Participant may not make any separate cash payments into such Participant's Payroll Deduction Account, and payment for Shares purchased under the Plan may not be made in any form other than by payroll deduction.
(d) On each Purchase Date, all funds then in the Participant's Payroll Deduction Account shall be applied to purchase Shares (or fractions thereof) pursuant to the automatic exercise of the Option granted on the Enrollment Date. The Committee may determine with respect to all Participants that any fractional shares shall be rounded down to the next lower whole share, in which event the resulting unused amount in any Participant's Payroll Deduction Account may be carried over into the next Purchase Period.
(e) Certificates representing the Shares purchased by a Participant under the Plan shall be issued to the Participant as soon as practicable following the end of each Purchase Period, except that the Committee may determine that such Shares shall be held for each Participant's benefit by a broker designated by the Committee.
(f) The Participant shall have no interest or voting right in the Shares covered by the Participant's Option until such Option is exercised and the covered Shares are registered in the name of the Participant.
Section 9. Withdrawal.
Each Participant may withdraw from participation prior to the end of an Offering Period or from the Plan in accordance with procedures set forth by the Committee. Upon a Participant's withdrawal from participation in respect of any Offering Period or from the Plan, all accumulated payroll deductions in the Payroll Deduction Account shall be returned, without interest, to such Participant (except as otherwise required by law or as determined by the Committee), and such Participant shall not be entitled to any Shares on the Purchase Date or thereafter with respect to the Offering Period in effect at the time of such withdrawal. If a Participant withdraws from an Offering Period, payroll deductions will not resume at the beginning of the succeeding Offering Period unless the Participant re-enrolls in the Plan in accordance with procedures set forth by the Committee prior to the applicable Enrollment Date.
Section 10. Termination of Employment.
A Participant shall cease to participate in the Plan upon the Participant's termination of employment for any reason (including death), and all accumulated payroll deductions in the Payroll Deduction Account shall be returned, without interest, to such Participant. For purposes of the Plan, transfers from the Company or a Participating Subsidiary to another Participating Subsidiary or to the Company, as the case may be, shall not be a termination of employment. Employment shall not be deemed to terminate when the Participant goes on a leave of absence approved by the Company in writing, unless otherwise required by the Code and the applicable regulations.
Section 11. Automatic Transfer to Low Price Offering Period.
To the extent permitted by any applicable laws and regulations, if the Fair Market Value of the Shares on any Purchase Date in an Offering Period is lower than the Fair Market Value of the Shares on the Enrollment Date of such Offering Period, then all Participants in such Offering Period shall be automatically withdrawn from such Offering Period immediately after the purchase of their Shares on such Purchase Date and automatically re-enrolled in a new Offering Period as of the first business day after such Purchase Date.
Section 12. Adjustments Upon Certain Events.
Notwithstanding any other provisions in the Plan to the contrary, the following provisions shall apply to all Options granted under the Plan:
(a) In the event of any stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company, the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number or type of Shares or other securities issued or reserved for issuance pursuant to the Plan, (ii) the Purchase Price and/or (iii) any other affected terms hereunder.
(b) In the event of a Corporate Transaction, unless each outstanding Option shall be continued or assumed or an equivalent option substituted by the Company or the successor corporation or a parent or Subsidiary of the successor corporation, the Committee shall shorten any Offering Period then in progress by setting a New Purchase Date, which shall be before the date of the consummation of the Corporate Transaction. The Committee shall notify each Participant not less than 10 days prior to the New Purchase Date that (i) a New Purchase Date has been set and (ii) the Participant's Option will be exercised automatically on the New Purchase Date unless prior to such date the Participant has withdrawn from the Offering Period as provided in Section 9. Each Offering Period then in effect shall terminate on such New Purchase Date.
Section 13. Nontransferability.
Unless otherwise determined by the Committee, Options granted under the Plan shall not be transferable or assignable by the Participant other than by will or by the laws of descent and distribution.
Section 14. Legal Compliance.
Shares shall not be issued hereunder unless the issuance and delivery of such Shares shall comply with all applicable laws and regulations, including the federal and state securities laws and the regulations of any stock exchange or other securities market on which the Company's securities are traded.
Section 15. No Right to Employment.
The granting of an Option under the Plan shall impose no obligation on the Company or any Subsidiary to continue the employment of a Participant and shall not lessen or affect the Company's or Subsidiary's right to terminate the employment of such Participant.
Section 16. Amendment or Termination of the Plan.
(a) The Plan shall continue until the earliest to occur of the following:
(i) termination of the Plan by the Board, (ii) issuance of all of the Shares
reserved for issuance under the Plan or (iii) the twentieth anniversary of the
effective date of the Plan.
(b) The Committee may amend, alter or discontinue the Plan or any portion
thereof at any time, provided that no amendment, alteration or discontinuation
shall be made (x) without the approval of the stockholders of the Company if
such amendment, alteration or discontinuation would (except as is provided in
Section 12) increase the total number of Shares reserved for purposes of the
Plan or as otherwise required by applicable laws or regulations, or (y) without
the consent of a Participant if such amendment, alteration or discontinuation
would materially diminish any of the rights or obligations under any Option
theretofore granted to such Participant under the Plan (except as otherwise
provided in this Section 16).
(c) Notwithstanding clause (y) of Section 16(b), the Committee may amend or terminate the Plan, including with respect to any Offering Periods then in effect, without consent of the Participants in such manner as it deems necessary to permit the granting of Options meeting the requirements of the Code or other applicable laws or in the event the Board determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences for the Company.
(d) Notwithstanding clause (y) of Section 16(b), the Committee shall have the power at any time to change the duration and timing of current and future Offering Periods and Purchase Periods; provided that in no event shall any such Offering Period be longer than 27 months.
Section 17. Taxes.
At the time the Shares are purchased, or at the time some or all of the Shares issued under the Plan are disposed of, the Participant must make adequate provision for the Company's federal, state or other tax withholding obligations, if any, which arise. At any time, the Company, may, but shall not be obligated to, withhold from the Participant's compensation the amount necessary for the Company to meet applicable withholding obligations, including any withholding required to make available to the Company any tax deductions or benefits attributable to sale or early disposition of Shares by the Participant.
Section 18. Governing Law.
The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws.
Section 19. Effectiveness of the Plan.
The Plan shall become effective as determined by the Board, subject to stockholder approval.
EXHIBIT 10.10
ULTRA CLEAN HOLDINGS, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "AGREEMENT") is made as of _____________, 20__ by and between Ultra Clean Holdings, Inc., a Delaware corporation (the "COMPANY"), and _____________________ (the "INDEMNITEE").
WHEREAS, the Company and the Indemnitee recognize the difficulty in obtaining directors' and officers' liability insurance, the cost of such insurance and the limited scope of coverage of such insurance;
WHEREAS, the Company and the Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting officers and directors to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited;
WHEREAS, the Indemnitee does not regard the current protection available as adequate under the present circumstances, and the Indemnitee and other officers and directors of the Company may not be willing to continue to serve as officers and directors without additional protection; and
WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as the Indemnitee, to serve as officers and directors of the Company and to indemnify its officers and directors so as to provide them with the maximum protection permitted by law.
NOW, THEREFORE, the Company and the Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third Party Actions. The Company shall indemnify and hold harmless the Indemnitee if the Indemnitee was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action, suit or proceeding by or in the right of the Company) by reason of the fact that the Indemnitee is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by the Indemnitee in connection with such action, suit or proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with
respect to any criminal action or proceeding, had no reasonable cause to believe the Indemnitee's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, in itself, create a presumption that the Indemnitee did not act in good faith and in a manner which the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had reasonable cause to believe that the Indemnitee's conduct was unlawful.
(b) Actions by or in the Right of the Company. The
Company shall indemnify and hold harmless the Indemnitee if the Indemnitee was
or is a party or is threatened to be made a party to, or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the Indemnitee is or
was a director or officer of the Company, or is or was serving at the request of
the Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding if the Indemnitee acted in good faith and in a manner
the Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, except that, if applicable law so provides, no indemnification
shall be made in respect of any claim, issue or matter as to which the
Indemnitee shall have been adjudged to be liable to the Company unless and to
the extent that the Delaware Court of Chancery or the court in which such
action, suit or proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper. Notwithstanding any other provision of this Agreement, the Indemnitee
shall not be indemnified hereunder for any expenses or amounts paid in
settlement with respect to any action to recover short-swing profits under
Section 16(b) of the Securities Exchange Act of 1934, as amended.
(c) Mandatory Payment of Expenses. To the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Subsections (a) and (b) of this
Section 1 or in defense of any claim, issue or matter therein, the Indemnitee
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by the Indemnitee in connection therewith.
(d) Determination of Conduct. Any indemnification under Subsections (a) and (b) of this Section 1 (unless ordered by a court) shall be made by the Company upon a determination that the indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Subsections (a) and (b) of this Section 1. Such determination shall be made (1) by a majority vote of the disinterested directors, even though less than a quorum, (2) by independent legal counsel in a written opinion or (3) by the stockholders. Notwithstanding the foregoing, the Indemnitee shall be entitled to contest any determination as to the Indemnitee's standard of conduct set forth in Subsections (a) and (b) of this Section 1 by petitioning a court of competent jurisdiction.
(e) Selection of Independent Counsel. If the determination of entitlement to indemnification is to be made by independent counsel pursuant to Subsection (d) of this Section 1, the independent counsel shall be selected jointly by the Indemnitee and the Company. In the event the Indemnitee and the Company cannot agree on the selection of the independent counsel, either party may petition the Delaware Court of Chancery or other court of competent jurisdiction to resolve the issue or to make its own provisions for the selection of independent counsel. The Company shall pay any and all reasonable fees and expenses of the independent counsel incurred in connection with acting pursuant to Section 1(d) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Subsection (e), regardless of the manner in which such independent counsel was selected or appointed.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. Expenses incurred in connection with any action, suit or proceeding by the Indemnitee, if the Indemnitee reasonably believes that he is entitled to indemnification pursuant to Subsection (a) or (b) of Section 1 hereof, shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company pursuant to this Agreement (the "UNDERTAKING"); provided, however, that the Company shall not be required to advance expenses to the Indemnitee in connection with any proceeding (or part thereof) initiated by the Indemnitee unless the action, suit or proceeding was authorized in advance by the board of directors of the Company; provided further that no advance shall be made by the Company to the Indemnitee in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of disinterested directors or (ii) by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that the Indemnitee acted in bad faith or in a manner that the Indemnitee did not believe to be in or not opposed to the best interests of the Company. Nonetheless, the Indemnitee shall be entitled to receive interim payments of expenses pursuant to this Subsection (a) unless and until such
defense may be finally adjudicated by court order or judgment from which no further right of appeal exists.
(b) Notice/Cooperation by the Indemnitee. The Indemnitee shall, as a condition precedent to his or her right to be indemnified under this Agreement, give the Company notice in writing as soon as practicable of any action, suit or proceeding involving the Indemnitee for which indemnification will or could be sought under this Agreement. Notice to the Company shall be directed to the Chief Executive Officer of the Company at the address shown on the signature page of this Agreement (or such other address as the Company shall designate in writing to the Indemnitee). In addition, the Indemnitee shall cooperate with, and provide such information to, the Company as it may reasonably require and as shall be within the Indemnitee's power.
(c) Procedure. Any indemnification and advances determined proper in accordance with Sections 1 or 2 hereof shall be made no later than 45 days after such determination. If a claim under this Agreement, any law, statute or rule, or any provision of the Company's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws providing for indemnification, is not paid in full by the Company within 45 days after such determination, the Indemnitee may, but need not, at any time thereafter bring an action against the Company to recover the unpaid amount of the claim and, subject to Section 13 hereof, the Indemnitee shall also be entitled to be paid for the expenses (including attorneys' fees) of bringing such action. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with any action, suit or proceeding in advance of its final disposition) that the Indemnitee has not met the standards of conduct required under applicable law for the Company to indemnify the Indemnitee for the amount claimed.
(d) Notice to Insurers. If, at the time of the receipt of a notice of an action, suit or proceeding pursuant to Section 2(b) hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all reasonable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such action, suit or proceeding in accordance with the terms of such policies.
(e) Assumption of Defense. In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses of any action, suit or proceeding involving the Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by the Indemnitee (such approval not to be unreasonably withheld), upon the delivery to the Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee with respect to the same proceeding; provided that (i) the Indemnitee shall have the right to employ his or her counsel in any such action, suit or proceeding at the Indemnitee's expense; and (ii) if (A) the employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding, then the fees and expenses of the Indemnitee's counsel shall be at the expense of the Company.
3. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby agrees to indemnify the Indemnitee to the fullest extent permitted by law, notwithstanding the fact that such indemnification is not specifically authorized by the other provisions of this Agreement, the Company's Amended and Restated Certificate of Incorporation, the Company's Amended and Restated Bylaws or by law, statute or rule. In the event of any change in any applicable law, statute or rule which narrows the right of a Delaware corporation to indemnify a member of its board of directors or an officer, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or the parties' rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement shall not be deemed exclusive of any rights to which the Indemnitee may otherwise be entitled under the Company's Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, any agreement, any vote of shareholders or disinterested directors, the Delaware General Corporation Law or by law, statute or rule. The indemnification provided under this Agreement shall continue as to the Indemnitee for any act or omission while serving in an indemnified capacity even though he or she may have ceased to serve in such capacity at the time of any action, suit or other covered proceeding.
4. Partial Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the expenses (including attorneys' fees), judgments, fines or amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by the Indemnitee in connection with any action, suit or proceeding but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such expenses, judgments, fines or amounts paid in settlement to which the Indemnitee is entitled.
5. Mutual Acknowledgment. Both the Company and the Indemnitee acknowledge that in certain instances, Federal law or applicable public policy may prohibit the Company from indemnifying its directors and officers under this Agreement or otherwise. The Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company's right under public policy to indemnify the Indemnitee.
6. Officer and Director Liability Insurance. The Company may, from time to time, make the good faith determination whether or not it is practicable for the Company to obtain and maintain a policy or policies of insurance with reputable insurance companies providing the officers and directors of the Company with coverage for losses from wrongful acts, or to ensure the Company's performance of its indemnification obligations under this Agreement. Among other considerations, the Company will weigh the costs of obtaining such insurance coverage against the protection afforded by such coverage. In all policies of director and officer liability insurance, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured of (x) the Company's directors, if the Indemnitee is a director, (y) the Company's officers, if the Indemnitee is not a director of the Company, but is an officer or (z) the Company's key employees, if the Indemnitee is not an officer or director, but is a key employee. Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such insurance if the Company determines in good faith that such insurance is not reasonably available, if the premium costs for such insurance are disproportionate to the amount of coverage provided, if the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit, or if the Indemnitee is covered by similar insurance maintained by a subsidiary or parent of the Company. However, the Company's decision whether or not to adopt and maintain such insurance shall not affect in any way its obligations to indemnify the Indemnitee under this Agreement or otherwise.
7. Severability. Nothing in this Agreement is intended to require or shall be construed as requiring the Company to take or not take any act in violation of applicable law. The Company shall not be in breach of this Agreement if, pursuant to court order, it is prohibited from performing its obligations hereunder. The provisions of this Agreement shall be severable as provided in this Section 7. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify the Indemnitee to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms.
8. Exceptions. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by the Indemnitee. To indemnify or advance expenses to the Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or any other law, statute or rule, but such indemnification or advancement of expenses may be provided by the Company in specific cases if the Board of Directors has approved the initiation or bringing of such suit.
(b) Lack of Good Faith. To indemnify the Indemnitee for any expenses incurred by the Indemnitee with respect to any proceeding instituted by the Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each material assertion made by the Indemnitee in such proceeding was not made in good faith or was frivolous.
(c) Insured Claims. To indemnify the Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to the Indemnitee by an insurance carrier under a policy maintained by the Company.
(d) Claims Under Section 16(b). To indemnify the Indemnitee for expenses and the payment of profits arising from the purchase and sale by the Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
9. Construction of Certain Phrases. For purposes of this Agreement, references to the "Company" shall include any constituent corporation (including any constituent of a constituent) absorbed by purchase, consolidation, merger or otherwise which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that if the Indemnitee is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, the Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as the Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
10. Effectiveness. This Agreement shall be deemed to be effective as of the commencement date of the Indemnitee's service as an officer or director of the Company.
11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.
12. Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns, and shall inure to the benefit of the Indemnitee and the Indemnitee's estate, heirs, legal representatives and assigns.
13. Attorneys' Fees. In the event that any action, suit or proceeding is instituted by the Indemnitee under this Agreement to enforce or interpret any of the terms hereof, the Indemnitee shall be entitled to be paid all court costs and expenses (including attorneys' fees), incurred by the Indemnitee with respect to such action, unless as a part of such action, suit or proceeding the court of competent jurisdiction determines that each material assertion made by the Indemnitee as a basis for such action, suit or proceeding was not made in good faith or was frivolous. In the event of an action instituted by or in the name of the Company under this Agreement or to enforce or interpret any of the terms of this Agreement, the Indemnitee shall be entitled to be paid all court costs and expenses (including attorneys' fees) incurred by the Indemnitee in defense of such action (including with respect to the Indemnitee's counterclaims and cross-claims made in such action), unless as a part of such action the court of competent jurisdiction determines that each material defense asserted by the Indemnitee was made in bad faith or was frivolous.
14. Notice. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted for by the party addressee, on the date of such receipt, or (ii) if mailed by domestic certified or registered mail with postage prepaid, on the third business day after the date postmarked. Addresses for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified by written notice.
15. Consent to Jurisdiction. The Company and the Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any action, suit or proceeding which arises out of or relates to this Agreement and agree that any action, suit or proceeding instituted under this Agreement shall be brought only in the state courts of the State of Delaware.
16. Choice of Law. This Agreement shall be governed by and its provisions construed in accordance with the laws of the State of Delaware.
17. Modification. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. All prior negotiations, agreements and understandings between the parties with respect hereto are superseded hereby. This Agreement may not be modified or amended except by an instrument in writing signed by or on behalf of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
ULTRA CLEAN HOLDINGS, INC.
By: _____________________________
Name: Clarence L. Granger
Title: Chief Executive Officer
Agreed and accepted as of the date hereof:
INDEMNITEE
Exhibit 10.11
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT dated as of March 2, 2004 (this "AMENDMENT") to the Employment Agreement dated as of November 15, 2002 ("EMPLOYMENT AGREEMENT") by and among Ultra Clean Technology Systems and Service, Inc., a Delaware corporation (together with its successors, the "COMPANY"), Ultra Clean Holdings, Inc., a Delaware corporation ("PARENT"), and Clarence L. Granger ("EXECUTIVE").
WHEREAS, the Company, Parent and Executive have previously entered into the Employment Agreement;
WHEREAS, the Board and Executive desire to extend the term of Executive's employment in the positions and on the terms and conditions set forth in this Amendment and in the Employment Agreement;
NOW THEREFORE the parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Employment Agreement has the meaning assigned to such term in the Employment Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and each other similar reference and each reference to "this Agreement" and each other similar reference contained in the Employment Agreement shall, after this Amendment becomes effective, refer to the Employment Agreement as amended hereby
Section 2. Amendment To Section 1.02. Section 1.02 of the Employment Agreement is hereby amended in its entirety to read as follows:
Section 1.02 Term. Executive shall be employed by the Company for a period (the "EMPLOYMENT TERM") commencing on the Effective Time and, subject to earlier termination or extension as provided herein, ending on March 1, 2006.
Section 3. Amendment To Section 2.01. Executive's Base Salary from and after the date of this Amendment shall be $300,000.
Section 4. Amendment To Section 2.03. Section 2.03 of the Employment Agreement is hereby amended in its entirety to read as follows:
Section 2.03 Bonus. Executive shall be eligible to participate in an executive bonus plan in accordance with the terms and conditions of such plan. For fiscal 2004, Executive's target bonus opportunity shall be $150,000, subject to meeting such performance criteria (including
Company performance goals and/or individual performance goals) as shall be set by the Board.
Section 5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California.
Section 6. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
ULTRA CLEAN TECHNOLOGY SYSTEMS AND SERVICE, INC.
By: _____________________
Name:
Title:
ULTRA CLEAN HOLDINGS, INC.
By: _____________________
Name:
Title:
EXECUTIVE:
Exhibit 10.12
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT dated as of March 2, 2004 (this "AMENDMENT") to the Employment Agreement dated as of November 15, 2002 (the "EMPLOYMENT AGREEMENT") by and among Ultra Clean Technology Systems and Service, Inc., a Delaware corporation (together with its successors, the "COMPANY"), Ultra Clean Holdings, Inc., a Delaware corporation ("PARENT"), and Kevin Griffin ("EXECUTIVE").
WHEREAS, the Company, Parent and Executive previously entered into the Employment Agreement;
WHEREAS, the Company, Parent and Executive desire to amend certain terms of Executive's employment as set forth in this Amendment;
NOW THEREFORE the parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Employment Agreement has the meaning assigned to such term in the Employment Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and each other similar reference and each reference to "this Agreement" and each other similar reference contained in the Employment Agreement shall, after this Amendment becomes effective, refer to the Employment Agreement as amended hereby
Section 2. Amendment To Section 2.01. Executive's Base Salary from and after the date of this Amendment shall be $150,000.
Section 3. Amendment To Section 2.02. Section 2.02 of the Employment Agreement is hereby amended in its entirety to read as follows:
Section 2.02 Bonus. Executive shall be eligible to participate in an executive bonus plan in accordance with the terms and conditions of such plan, as determined by the Board in its sole discretion. For fiscal 2004, Executive's target bonus opportunity shall be $95,000, subject to meeting such performance criteria (including Company performance goals and/or individual performance goals) as shall be set by the Board in its discretion.
Section 4. Amendment To Section 3.03. Section 3.03 of the Employment Agreement is hereby amended by deleting Section 3.03(d) in its entirety and re-numbering Section 3.03(e) to be Section 3.03(d).
Section 5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California.
Section 6. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
ULTRA CLEAN TECHNOLOGY
SYSTEMS AND SERVICE, INC.
By: _____________________
Name:
Title:
ULTRA CLEAN HOLDINGS, INC.
By: _____________________
Name:
Title:
EXECUTIVE:
EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the use in this Amendment No. 2 to Registration Statement No. 333-111904 of Ultra Clean Holdings, Inc. on Form S-1 of our report dated February 13, 2004 (March 2, 2004 as to Note 11) appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ DELOITTE & TOUCHE LLP San Jose, California March 2, 2004 |