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EX-3.1 - CERFITICATE OF AMENDMENT - ATI LIQUIDATING, INC. | ex3-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): October 15,
2009
ATI
LIQUIDATING, INC.
(Exact
name of registrant as specified in charter)
Delaware
(State
or other jurisdiction of incorporation)
|
000-51642
(Commission
File
Number)
|
20-1979646
(I.R.S.
Employer Identification
Number)
|
440
Kings Village Road, Scotts Valley, CA
95066
(Address
of principal executive offices) (Zip Code)
|
831-438-2100
(Registrant’s
telephone number, including area code)
AVIZA TECHNOLOGY,
INC.
(Former
name or former address, if changed since last report.)
|
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[
] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item
2.01.
|
Completion
of Acquisition or Disposition of
Assets.
|
On
October 16, 2009, pursuant to the previously disclosed Asset Purchase Agreement
dated August 13, 2009 (the “Asset Purchase Agreement”), Aviza Technology, Inc.,
a Delaware corporation (the “Company”), and certain of its subsidiaries, Aviza,
Inc., a Delaware corporation (“AI”), Trikon Technologies, Inc., a Delaware
corporation (“TTI”), Aviza Technology UK Limited (formerly known as Aviza
Technology Limited), a company organized under the laws of England and Wales
(“ATUKL”), and Aviza Technology International, Inc., a Delaware corporation
(together with the Company, AI, TTI and ATUKL, the “Aviza Parties”), completed
their previously announced sale to Sumitomo Precision Products Co., Ltd., a
company organized under the laws of Japan, and to certain of its
subsidiaries (collectively, “SPP”), of substantially all of the assets of
the Aviza Parties and certain of the Aviza Parties’ subsidiaries related to
their system, service, parts, spares and upgrade businesses for batch thermal
products and technologies, atmospheric-pressure chemical vapor deposition
products and technologies, physical vapor deposition products and technologies,
chemical vapor deposition products and technologies, and plasma etch products
and technologies, as well as their service, parts, spares and upgrade business
for atomic layer deposition products and technologies, in a sale conducted under
the provisions of Section 363 of the United States Bankruptcy Code and approved
by the United States Bankruptcy Court for the Northern District of California
(the “Bankruptcy Court”) on September 29, 2009 following the completion of an
auction process in which SPP was declared the winning bidder (the “Section 363
Sale”).
The
consideration for the Section 363 Sale consisted of (i) payment to the Aviza
Parties of approximately $15 million in cash at closing; (ii) issuance to the
Aviza Parties of a recourse promissory note with an aggregate principal amount
of $10 million that bears interest at the prime rate, matures on April 16, 2011,
is secured by the purchased accounts receivable and inventory and certain
purchased intellectual property, is subject to mandatory monthly prepayments of
principal to the extent that SPP’s collection of accounts receivable and sales
of inventory securing the note, subject to certain adjustments, exceed $10
million, and is guaranteed by Sumitomo Precision Products Co., Ltd.; (iii)
issuance to the Aviza Parties of a non-recourse promissory note with an
aggregate principal amount that will be finalized post-closing, as described in
the Asset Purchase Agreement, but which the Company currently expects to be
approximately $30.5 million that does not bear interest, matures on April 16,
2011, is secured by the purchased accounts receivable and inventory, is subject
to mandatory monthly prepayments of principal to the extent that SPP’s
collection of accounts receivable and sales of inventory securing the note, as
adjusted, exceed $20 million, and provides that on the maturity date, SPP will
have the option of either repaying the outstanding principal amount of the
non-recourse note in full or returning any remaining uncollected accounts
receivable and unsold inventory to the Aviza Parties; and (iv) SPP’s assumption
of certain liabilities of the Aviza Parties and their subsidiaries, including
approximately $5 million of operating liabilities.
There is
no material relationship, other than in respect of the Asset Purchase Agreement
and the transactions contemplated thereby, between SPP or any of its affiliates,
on the one hand, and the Company or any of its affiliates, or any of the
Company’s directors or officers, or associates of such directors or officers, on
the other hand. See the Company’s Current Report on Form 8-K filed on
August 17, 2009 for more information about the Asset Purchase
Agreement.
Item
5.02.
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
On
October 15, 2009, the Company’s Board of Directors (the “Board”) appointed
Patrick C. O’Connor as a member of the Board. Effective upon the closing of the
Section 363 Sale on October 16, 2009, each of Jerauld J. Cutini, Dana C. Ditmore
and Klaus C. Wiemer resigned from the Board. In addition, effective upon the
closing of the Section 363 Sale on October 16, 2009, Mr. Cutini resigned as
President and Chief Executive Officer of the Company. On October 19, 2009, Mr.
O’Connor resigned as Executive Vice President and Chief Financial Officer of the
Company and was appointed by the Board to serve as Chief Executive Officer,
Chief Restructuring Officer and Secretary of the Company.
Item
5.03.
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
|
On
October 19, 2009, the Company filed with the Delaware Secretary of State a
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of the Company, a copy of which is attached hereto as Exhibit 3.1
(the “Charter Amendment”), to change the name of the Company from “Aviza
Technology, Inc.” to “ATI Liquidating, Inc.” The Charter Amendment
was made pursuant to Section 303 of the General Corporation Law of the State of
Delaware and pursuant to an order of the Bankruptcy Court issued in connection
with its approval of the Section 363 Sale. Stockholder approval of
the Charter Amendment was not required.
Item
8.01.
|
Other
Events.
|
As
previously disclosed, the Company does not believe that holders of
the Company’s common stock will receive any proceeds from the Section 363
Sale.
Item 9.01. | Financial Statements and Exhibits. |
(d)
Exhibits.
Exhibit
Number
3.1
|
Certificate
of Amendment to the Amended and Restated Certificate of
Incorporation.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: October
21, 2009
|
|||
ATI
LIQUIDATING, INC.
|
|||
|
By:
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/s/ Patrick C. O’Connor | |
Patrick C. O’Connor | |||
Chief Restructuring Officer | |||
EXHIBIT
INDEX
Exhibit
Number
3.1
|
Certificate
of Amendment to the Amended and Restated Certificate of
Incorporation.
|