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Proc-Type: 2001,MIC-CLEAR
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As filed with the
Securities and Exchange Commission on November 20, 2009 UNITED STATES Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under RUDOLPH TECHNOLOGIES, INC. (Exact name of Registrant as specified in its
charter) Delaware 22-3531208 (State of Incorporation) (I.R.S. Employer Identification Number) One Rudolph Road,
PO Box 1000 (Address,
including zip code, and telephone number, RUDOLPH
TECHNOLOGIES, INC. 2009 STOCK
PLAN PAUL F.
McLAUGHLIN Indicate by check mark whether the Registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of "large accelerated filer,"
"accelerated filer" and "smaller reporting company" in Rule 12b-2 of the
Exchange Act. Large
accelerated filer [
]
Accelerated filer
[X]
Title of Securities to be Registered
Amount to be Registered (1)
Proposed Maximum Offering Price Per Share
Proposed Maximum Aggregate Offering Price
Amount of Registration Fee Common Stock $0.001 par value, to be
issued under the Rudolph Technologies, Inc. 2009 Stock Plan 3,300,000 (2)
$6.57 (4)
$21,681,000.00
$1,209.80 Common Stock $0.001 par value, to be
issued under the 2009 Employee Stock Purchase Plan
300,000 (3)
$6.57 (4)
$1,971,000.00
$109.98 Total
3,600,000
$23,652,000.00
$1,319.78
(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement on Form S-8
(this "Registration Statement") shall also cover any additional
shares of Common Stock, par value $0.001 per share (the "Common
Stock"), of Rudolph Technologies, Inc. (the "Registrant") which
become issuable under the Rudolph Technologies, Inc. 2009 Stock Plan,
as amended
(the "2009
Stock
Plan"), and
the Rudolph Technologies, Inc. 2009 Employee Stock Purchase Plan, as
amended
(the "2009 ESPP"), by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase
in the number of outstanding shares of the Registrant's Common
Stock.
(2)
Represents the aggregate number of shares of Common Stock of the
Registrant available for issuance under the 2009 Stock Plan.
(3)
Represents the aggregate number of shares of Common Stock of the
Registrant available for issuance under the 2009 ESPP.
(4)
Estimated in accordance with Rule 457(c) and Rule 457(h) under the
Securities Act solely for the purpose of calculating the
registration fee of shares of the Registrant's Common Stock reserved
for future issuance under the 2009 Stock Plan
and 2009 ESPP. The computation is based
on the average of the high and low prices of the Registrant's Common
Stock as reported on NASDAQ Global Select Market on November 16,
2009.
PART I Item 1. Plan
Information* *Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8. PART
II INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The
following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by
reference: All documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities registered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement. Not
applicable. Item 5. Interests of Named Experts and Counsel Not
applicable. The
Registrant's certificate of incorporation contains certain provisions permitted
under the Delaware General Corporation Law relating to the liability of
directors. Under Delaware law, these provisions eliminate a director's personal liability for
monetary damages resulting from a breach of fiduciary duty, except in certain
circumstances involving certain wrongful acts, including: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided in Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. The
Registrant's Bylaws provide that the Registrant shall indemnify its directors
and officers and may indemnify its employees and other agents to the fullest
extent permitted by law. The Registrant's Bylaws also permit the Registrant to
secure insurance on behalf of any officer, director, employee or other agent for
any liability arising out of his or her actions in such capacity, regardless of
whether the Registrant would have the power to indemnify him or her against such
liability under the General Corporation Law of Delaware. The
Registrant has entered into agreements to indemnify its directors and officers,
in addition to indemnification provided for in the Registrant's Bylaws. Subject
to certain conditions, these agreements, among other things, indemnify the
Registrant's directors and officers for certain expenses (including attorney's
fees), judgments, fines and settlement amounts incurred by any such person in
any action or proceeding, including any action by or in the right of the
Registrant, arising out of such person's services as a director or officer of
the Registrant. The Registrant maintains an insurance policy covering its
officers and directors with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise. Not
applicable.
4.1(1) Restated
Certificate of Incorporation of Registrant
4.2(2) Restated Bylaws of
Registrant 4.3(3)
Rights Agreement
5.1
Opinion of Day Pitney LLP, as to legality of securities being
registered
10.2(5) Rudolph Technologies,
Inc. 2009 Employee Stock
Purchase Plan 23.1
Consent of
KPMG LLP, independent registered public accounting firm 23.2
Consent of
Ernst & Young LLP, independent registered public accounting firm
23.3
Consent of Day Pitney LLP (contained in Exhibit 5.1). 24.1
Power of
Attorney (included on signature page
of the Registration Statement hereto) (1) Exhibit 4.1 is incorporated by reference to Exhibit 3.1(c)
filed with the Registrant's Registration Statement on Form S-1as amended, No.
333-86821, filed with the SEC on September 9, 1999. (2) Exhibit 4.2 is incorporated by reference to Exhibit 3.1
filed with the Registrant's Registration Statement on Form 8-K, filed with the
SEC on February 2, 2009. (3) Exhibit 4.3 incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form 8-A, filed with the SEC on June 28,
2005. (4) Exhibit 10.1 is incorporated by reference to Appendix A of the Registrant's
revised Proxy Statement on Form DEFR14A, filed with the Commission May 8, 2009. (5) Exhibit 10.2 is incorporated by reference to Appendix B of the Registrant's
revised Proxy Statement on Form DEFR14A, filed with the Commission May 8, 2009.
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and (iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. (c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue. Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant, Rudolph Technologies, Inc., a corporation organized and existing
under the laws of the State of Delaware, certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Flanders, State of
New Jersey, on this 20th day of November, 2009.
RUDOLPH TECHNOLOGIES, INC.
By: /s/ Paul F. McLaughlin
POWER OF
ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the
undersigned officers and directors of Rudolph Technologies, Inc., a Delaware
corporation, do hereby constitute and appoint Paul F. McLaughlin and Steven R.
Roth, and each of them individually, the lawful attorneys-in-fact and agents,
each with full power of substitution or re-substitution, with full power and
authority to do any and all acts and things and to execute any and all
instruments which said attorneys-in-fact and agents, or either one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulation or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement and to any and all instruments or documents filed as part
of or in conjunction with this Registration Statement or amendments or
supplements thereto, and each of the undersigned hereby ratifies and confirms
all that said attorneys-in-fact and agents, or either one of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts. IN WITNESS WHEREOF, each of the undersigned has
executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated. Signature Title Date /s/ Paul F. McLaughlin Chairman and Chief Executive Officer
(Principal Executive Officer) November 20, 2009 Paul F.
McLaughlin /s/ Steven R. Roth Senior Vice President & Chief
Financial Officer (Principal Financial and Accounting
Officer) November 20, 2009 Steven R.
Roth /s/ Leo Berlinghieri Director November 20, 2009 Leo Berlinghieri /s/ Daniel H. Berry Director November 20, 2009 Daniel H. Berry /s/ Thomas G. Greig Director November 20, 2009 Thomas G.
Greig /s/ Richard F. Spanier Director November 20, 2009 Richard F.
Spanier /s/ Aubrey C. Tobey Director November 20, 2009 Aubrey C.
Tobey /s/ John R. Whitten Director November 20, 2009 John R.
Whitten Exhibit Number 4.1(1) Restated Certificate of Incorporation of
Registrant 4.2(2) Restated Bylaws of
Registrant 4.3(3) Rights Agreement 5.1 Opinion of Day Pitney LLP, as to
legality of securities being registered 10.1(4) Rudolph Technologies, Inc. 2009 Stock Plan 10.2(5) Rudolph Technologies, Inc. 2009 Employee Stock Purchase Plan 23.1 Consent of KPMG LLP, independent
registered public accounting firm 23.2 Consent of Ernst & Young LLP, independent
registered public accounting firm 23.3 Consent of Day Pitney LLP
(contained in Exhibit 5.1) 24.1 Power of Attorney
(included on signature page of the
Registration Statement hereto)
(1) Exhibit 4.1 is
incorporated by reference to Exhibit 3.1(c) filed with the Registrant's
Registration Statement on Form S-1 as amended, No. 333-86821, filed with the SEC
on September 9, 1999. (2) Exhibit 4.2 is
incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form 8-K, filed with the SEC on February 2, 2009. (3) Exhibit 4.3
incorporated by reference to Exhibit 4.1 of the Registrant's Registration
Statement on Form 8-A, filed with the SEC on June 28, 2005. (4) Exhibit 10.1 is
incorporated by reference to Appendix A of the Registrant's revised Proxy
Statement on Form DEFR14A, filed with the Commission May 8, 2009. (5) Exhibit 10.2 is incorporated by reference to
Appendix B of the Registrant's revised Proxy Statement on Form DEFR14A, filed with the
Commission May 8, 2009. November 20 , 2009
Rudolph Technologies, Inc. RE: Rudolph
Technologies, Inc. - Registration Statement on Form S-8
We refer to the
Registration Statement on Form S-8 (the "Registration Statement") to be filed by
Rudolph Technologies, Inc.,
a Delaware corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of 3,600,000 shares of the Company's common stock,
$0.001 par value per share (the "Securities"), to be offered pursuant to the
Rudolph Technologies, Inc. 2009 Stock Plan, as amended (the "2009 Stock Plan"),
and the Rudolph Technologies, Inc. 2009 Employee Stock Purchase Plan, as amended
(the "2009 ESPP"). The 2009 Stock Plan and the 2009 ESPP are referred to herein
together as the "Plans".
In connection with our
opinion, we have examined the Plans and the Registration Statement. We have
also examined originals, or copies certified or otherwise identified to our
satisfaction, of the Restated Certificate of Incorporation and the Restated
Bylaws of the Company, each as amended and currently in effect, and relevant
resolutions of the Board of Directors of the Company and we have examined such
other documents as we deemed necessary in order to express the opinion
hereinafter set forth.
Registration No.
333-_____________
SECURITIES AND EXCHANGE
COMMISSION
THE SECURITIES ACT OF 1933
Flanders, NJ 07836
973-691-1300
including area code of
registrant's principal executive offices)
RUDOLPH TECHNOLOGIES, INC. 2009 EMPLOYEE STOCK PURCHASE
PLAN
(Full title of the Plans)
Chairman and Chief Executive Officer
RUDOLPH
TECHNOLOGIES, INC.
One Rudolph Road, PO Box 1000
Flanders, NJ
07836
(973) 691-1300
(Name, address including zip code, and
telephone number, including area code, of agent for
service)
Non-accelerated filer [ ] (Do not check if smaller reporting
company)
Smaller reporting company [ ]
CALCULATION OF
REGISTRATION FEE
Item 2. Registrant Information and
Employee Plan Annual Information*
Item 4. Description of Securities
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
10.1(4) Rudolph Technologies, Inc. 2009 Stock Plan
Item 9. Undertakings
SIGNATURES
Paul F. McLaughlin,
Chairman and Chief Executive
Officer
INDEX TO
EXHIBITS
EXHIBIT
5.1
One Rudolph Road
P.O. Box 1000
Flanders, NJ 07836
In our examination of such documents and records, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with authentic original documents of all of the documents submitted to us as copies.
It is understood that this opinion is to be used only in connection with the offer and sale of the Securities while the Registration Statement is in effect.
Based upon the foregoing, we are of the opinion that, when the Registration Statement has become effective under the Act, and the Securities have been duly issued as contemplated by the Registration Statement and the Plans and for the consideration determined in accordance with the terms of the Plans, the Securities will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United States and the General Corporation Law of the State of Delaware, and we express no opinion as to the effect of the laws of any other jurisdiction. In this connection, we hereby confirm that the foregoing reference to the General Corporation Law of the State of Delaware includes the statutory provisions and also all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.
This opinion letter is being delivered by us solely for your benefit pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Act. We hereby consent to use of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act, or the Rules and Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Day Pitney LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Rudolph Technologies, Inc.:
We consent to the incorporation by reference in the registration statement on Form S-8 of Rudolph Technologies, Inc. expected to be dated November 20, 2009 of our report dated March 3, 2008, with respect to the consolidated balance sheet of Rudolph Technologies, Inc. and subsidiaries as of December 31, 2007 and the related consolidated statements of operations, stockholders' equity and comprehensive income (loss), and cash flows for each of the years in the two-year period ended December 31, 2007, and the related consolidated financial statement schedule.
Our report with respect to the consolidated balance sheet of Rudolph Technologies, Inc. and subsidiaries as of December 31, 2007 and the related consolidated statements of operations, stockholders' equity and comprehensive income (loss), and cash flows for each of the years in the two-year period ended December 31, 2007, and the related consolidated financial statement schedule, dated March 3, 2008 refers to Rudolph Technologies, Inc.'s adoption of Financial Accounting Standards Board Interpretation No. 48, "Accounting for Uncertainties in Income Taxes", effective January 1, 2007, and Statement of Financial Accounting Standards No. 123(R), "Share-Based Payment", effective January 1, 2006.
/s/ KPMG LLP
Short Hills, New Jersey
November 19, 2009
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Rudolph Technologies, Inc. 2009 Stock Plan and the Rudolph Technologies, Inc. 2009 Employee Stock Purchase Plan of our reports dated March 5, 2009, with respect to the consolidated financial statements and schedule of Rudolph Technologies, Inc. in its Annual Report (Form 10-K) for the year ended December 31, 2008, and the effectiveness of internal control over financial reporting of Rudolph Technologies, Inc. filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Metropark, New Jersey
November
19, 2009
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