<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1998
REGISTRATION NO. 333-48021
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
GENUS, INC.
Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
CALIFORNIA 94-2790804
(State or other jurisdiction (I.R.S. Employer
of Identification
incorporation or organization) Number)
</TABLE>
1139 KARLSTAD DRIVE
SUNNYVALE, CA 94089
(408) 747-7120
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
JAMES T. HEALY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GENUS, INC.
1139 KARLSTAD DRIVE
SUNNYVALE, CA 94089
(408) 747-7120
(Name, address, including zip code and telephone number, including area code, of
agent for service)
--------------------------
COPIES TO:
ANDREW J. HIRSCH, ESQ.
KELLY AMES MOREHEAD, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
FAX: (650) 845-5000
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AS THE SEVERAL SELLING SHAREHOLDERS MAY DECIDE.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
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. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, no par value................. 3,460,098(2) $2.031 $7,027,459.04 $2,073.10
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the Registration
fee pursuant to Rule 457(c). Based on the last reported sale price for the
Company's Common Stock on March 12, 1998.
(2) Pursuant to Rule 416 under the Securities Act of 1933, any additional shares
of Common Stock issued either as a result of the anti-dilution provisions of
the Certificate of Determination relating to the Series A Stock or to the
Warrants pursuant to which the Common Stock will be issued or by reason of a
reduction in the conversion price of the Series A Stock in accordance with
the terms thereof are deemed to be registered herewith.
--------------------------
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.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION DATED , 1998
PROSPECTUS
3,460,098 SHARES
GENUS, INC.
COMMON STOCK
---------------------
This Prospectus relates to the resale by certain holders of securities of
Genus, Inc. (the "Company" or "Genus") named herein (the "Selling Security
Holders") of (i) up to 2,882,000 shares (the "Shares") of common stock, no par
value of the Company (the "Common Stock") issuable upon conversion of Series A
Convertible Preferred Stock of the Company (the "Series A Stock"), (ii) 400,000
additional shares of Common Stock (the "Warrant Shares") issuable upon exercise
of certain warrants (the "Warrants") to purchase Common Stock and (iii) up to
178,098 additional shares of Common Stock (the "Dividend Shares") that may be
issued as dividends on the Series A Stock. The Shares, the Warrant Shares and
the Dividend Shares collectively are referred to herein as the "Securities."
Because of the possibility of antidilution adjustments to the conversion price
of the Series A Stock (which is based on the market price of the Common Stock)
and the exercise price of the Warrants, the number of shares of Common Stock
issuable upon such conversion or exercise and subject to this Prospectus is
indeterminate and this Prospectus relates to the resale of such entire
indeterminate number of shares of Common Stock. The Securities may be offered by
the Selling Security Holders from time to time in transactions in the
over-the-counter market through The Nasdaq Stock Market in privately negotiated
transactions, through the writing of options on the Securities, or through a
combination of such methods of sale, at fixed prices that may be changed, at
market prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices. The Selling Security Holders
may effect such transactions by selling the Securities to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Security Holders and/or
the purchasers of the Securities for whom such broker-dealers may act as agents
or to whom they may sell as principals, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions). In
connection with any sales, the Selling Security Holders and any brokers
participating in such sales may be deemed to be "underwriters" within the
meaning of the Securities Act. See "Selling Security Holders" and "Plan of
Distribution." Information concerning the Selling Security Holders may change
from time to time and will be set forth in supplements to this Prospectus.
None of the proceeds from the sale of the Securities by the Selling Security
Holders will be received by the Company. The Company has agreed to bear all
expenses (other than selling commissions and fees and expenses of counsel and
other advisers to the Selling Security Holders) in connection with the
registration of the Securities being offered by the Selling Security Holders.
The Company has agreed to indemnify the Selling Security Holders against certain
liabilities, including liabilities under the Securities Act of 1933, as amended
(the "Securities Act").
The Company sold the Series A Stock and the Warrants to the Selling Security
Holders in a private transaction on February 12, 1998. The Series A Stock is
convertible at the option of the holder at any time, or at the option of the
Company upon the satisfaction of certain conditions, unless previously redeemed
or repurchased, into the Shares at a conversion price that is the lesser of (i)
$3.47 or (ii) 82% of the average of the lowest 15 closing bid prices of the
Common Stock on the Nasdaq Stock Market during the 45 trading days prior to the
date of the conversion. If certain conditions relating to the registration of
the Shares are not timely met, the conversion price shall be reduced by 2% per
month for up to two months. In accordance with generally accepted accounting
principles, the net proceeds received by the Company for the sale of the Series
A Stock and Warrants will be allocated between the Series A Stock and the
Warrants, based upon the relative fair values of each security. The amount of
the beneficial conversion feature of approximately $1,791,000, consisting of the
difference between the net proceeds allocated to the Series A Stock and the fair
value of the common shares into which the Series A Stock is convertible on the
date of issuance, will be reflected as a deemed dividend to the holders of the
Series A Stock and will increase net losses available to common shareholders for
the Company's quarter ended March 31, 1998.
The Company's Common Shares are traded on The Nasdaq National Market under
the symbol "GGNS."
The Warrants are exercisable at any time until February 11, 2001 for 300,000
shares of Common Stock at a price of $3.67 per share and for 100,000 shares at a
price of $4.50 per share.
The Series A Stock accrues a dividend ("Dividend") at a rate per share (as a
percentage of the Stated Value per share) of 6% per annum, payable in cash or
shares of Common Stock at the option of the Company. The aggregate unconverted
Stated Value of the issued and outstanding Series A Stock and Warrants was $5.0
million on February 12, 1998.
The Series A Stock may be redeemed at the option of the Company on or after
February 12, 2003 at a redemption price equal to the product of (i) the average
of the closing bid prices for the five trading days immediately preceding (a)
February 12, 2003 or (b) the date of payment by the Company of the redemption
price, whichever is greater, and (ii) the conversion ratio applicable to the
Series A Stock calculated on February 12, 2003.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS,"
COMMENCING ON PAGE 3.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
As used in this Prospectus, unless the context otherwise requires, the terms
"Genus" and the "Company" mean Genus, Inc. and its subsidiaries. The Company is
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and, in accordance therewith, files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Reports and proxy statements and other
information filed with the Commission pursuant to the informational requirements
of the Exchange Act may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following regional offices of the Commission:
New York Regional Office, 7 World Trade Center, Suite 1300, New York, New York
10048; and Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, the Commission maintains a World Wide
Web site that contains reports, proxy and information statements and other
information regarding registrants that filed electronically with the Commission.
The address of the site is http://www.sec.gov.
The Company's Common Stock is traded on the Nasdaq National Market. Reports
and other information concerning the Company may be inspected at the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
This Prospectus constitutes part of a Registration Statement on Form S-3
(herein, together with all amendments and exhibits thereto, referred to as the
"Registration Statement") filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement,
copies of which may be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of the
fees prescribed by the Commission. Statements contained in this Prospectus as to
the contents of any contract or any other document filed, or incorporated by
reference, as an exhibit to the Registration Statement, are qualified in all
respects by such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents, previously filed by the Company with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference, except as
superseded or modified herein:
Registration Statements on Form 8-A filed with the Commission on August 26,
1988 and May 3, 1990.
Current Report on Form 8-K filed with the Commission on February 17, 1998.
Current Report on Form 8-K filed with the Commission on April 24, 1998.
Annual Report on Form 10-K/A for the fiscal year ended December 31, 1997
(the "1997 Form 10-K" filed with the Commission on April 28, 1998).
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and shall be part hereof from the date of filing of such
document. Any statement contained in any document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus 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 in this Prospectus modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as modified or superseded, to constitute a part of this
Prospectus.
2
<PAGE>
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any document described above (other than exhibits). Requests
for such copies should be directed to Genus, Inc. at its principal offices
located at 1139 Karlstad Drive, Sunnyvale, California 94089, telephone (408)
747-7120, attention: Investor Relations.
RECENT DEVELOPMENTS
In April 1998, the Company entered into an agreement with Varian Associates,
Inc. to sell selected assets and transfer selected liabilities related to the
MeV ion implantation equipment product line for approximately $25 million plus
additional payments if certain revenue targets are achieved ("Asset Sale"). The
completion of the Asset Sale is subject to approval by the Company's
shareholders as well as to expiration of the applicable waiting periods under
federal Hart-Scott-Rodino premerger notification requirements. As a result of
the Asset Sale, the Company will no longer engage in the ion implant business
and will refocus its efforts on thin film deposition. The Company will use the
net proceeds of the Asset Sale for repayment of certain outstanding indebtedness
as well as for working capital and general corporate purposes, including
investment in research and development of thin film products. In connection with
the Asset Sale and the refocusing of the Company's business on thin film
products, the Company anticipates that it will significantly reduce the
workforce at its Sunnyvale, California location. In addition, James Healy will
resign as President and Chief Executive Officer of the Company and William W.R.
Elder, the Company's Chairman, will return to a full-time role as President and
Chief Executive Officer.
Genus-Registered Trademark- is a trademark of Genus, Inc.
3
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE SHARES BEING OFFERED BY THIS PROSPECTUS INVOLVES A HIGH
DEGREE OF RISK. THE FOLLOWING FACTORS, IN ADDITION TO THOSE DISCUSSED ELSEWHERE
IN THIS PROSPECTUS, SHOULD BE CAREFULLY CONSIDERED IN EVALUATING THE COMPANY AND
ITS BUSINESS PROSPECTS BEFORE PURCHASING SHARES OFFERED BY THIS PROSPECTUS. THIS
PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE
ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS,
INCLUDING THOSE SET FORTH IN THE FOLLOWING RISK FACTORS AND ELSEWHERE IN THIS
PROSPECTUS.
HISTORICAL PERFORMANCE. Although the Company had net income of $19.3
million and $4.2 million in the years ended December 31, 1995 and 1994, the
Company experienced losses of $19.3 million, $9.2 million, and $6.9 million for
the years ended December 31, 1997, 1996 and 1993, respectively. As a result of
the Company's inconsistent sales and operating results in recent years, there
can be no assurance that the Company will be able to sustain consistent future
revenue growth on a quarterly or annual basis, or that the Company will be able
to maintain consistent profitability on a quarterly or annual basis.
RELIANCE ON INTERNATIONAL SALES. Export sales accounted for approximately
74%, 84% and 88% of total net sales in the years ended 1997, 1996 and 1995,
respectively. In addition, net sales to South Korean customers accounted for
approximately 50%, 59% and 63%, respectively, of total net sales during the same
periods. The Company anticipates that international sales, including sales to
South Korea, will continue to account for a significant portion of net sales. As
a result, a significant portion of the Company's sales will be subject to
certain risks, including unexpected changes in regulatory requirements, tariffs
and other barriers, political and economic instability, difficulties in accounts
receivable collection, difficulties in managing distributors or representatives,
difficulties in staffing and managing foreign subsidiary operations and
potentially adverse tax consequences. Although the Company's foreign system
sales are primarily denominated in U.S. dollars and the Company does not engage
in hedging transactions, the Company's foreign sales are subject to the risks
associated with unexpected changes in exchange rates, which could have the
effect of making the Company's products more or less expensive. There can be no
assurance that any of these factors will not have a material adverse effect on
the Company's business, financial condition and results of operations.
Further, the Company has a wholly owned South Korean subsidiary providing
service and support to the installed base of customers and whose functional
currency is the won. As a result of the devaluation of the won in the fourth
quarter of 1997, the Company incurred a foreign exchange loss of $1.1 million.
There can be no assurance that the Company will not incur currency losses or
gains in future quarters as the currency fluctuates.
A substantial portion of the Company's sales are in Asia. Recent turmoil in
the Asian financial markets has resulted in dramatic currency devaluations,
stock market declines, restriction of available credit and general financial
weakness. In addition, Dynamic Random Access Memory ("DRAM") prices have fallen
dramatically and may continue to do so as some Asian integrated circuit ("IC")
manufacturers may be selling DRAMs at less than cost in order to raise cash.
These developments may affect the Company in several ways. Currency devaluation
may make dollar-denominated goods, such as the Company's, more expensive for
Asian clients. Asian manufacturers may limit capital spending. Furthermore, the
uncertainty of the DRAM market may cause manufacturers everywhere to delay
capital spending plans. These circumstances may also affect the ability of
Company customers to meet their payment obligations, resulting in the
cancellations or deferrals of existing orders and the limitation of additional
orders. Some of the Company's South Korean customers have rescheduled their
required delivery dates for orders previously placed and have announced delays
in the facilitization of their new manufacturing areas. In addition, some
portion of IC fabrication plant construction has been subsidized by Asian
governments. Financial turmoil may weaken these governments' willingness to
continue such subsidies. Such developments could have a material adverse affect
on the Company's business, financial condition and results of operations.
4
<PAGE>
RELIANCE ON A SMALL NUMBER OF CUSTOMERS AND CONCENTRATION OF CREDIT
RISK. The Company continued its efforts to expand its customer base in 1997 and
was successful, with new customers in Taiwan and North America. Historically,
the Company has relied on a limited number of customers for a substantial
portion of its net sales. In 1997, two customers, Samsung Electronics Company,
Ltd. and Innotech Corporation, accounted for 47% and 17%, respectively, of the
Company's net sales. In 1996, these same two customers accounted for 53% and
18%, respectively, of the Company's net sales. Additionally, three customers,
Samsung Electronics Company, Ltd., Micron Technology, Inc. and Innotech
Corporation, accounted for an aggregate of 75% of accounts receivable at
December 31, 1997; and three customers, Samsung Electronics Company Ltd.,
Innotech Corporation and Newport Wafer-Fab Ltd., accounted for an aggregate of
71% of accounts receivable at December 31, 1996. Because the semiconductor
manufacturing industry is concentrated in a limited number of generally larger
companies, the Company expects that a significant portion of its future product
sales will be concentrated within a limited number of customers. None of these
customers has entered into a long-term agreement requiring it to purchase the
Company's products. Furthermore, sales to certain of these customers may
decrease in the future when those customers complete their current semiconductor
equipment purchasing requirements for new or expanded fabrication facilities.
The loss of a significant customer or any reduction in orders from a significant
customer, including reductions due to customer departures from recent buying
patterns, market, economic or competitive conditions in the semiconductor
industry or in the industries that manufacture products utilizing ICs, could
have a material adverse effect on the Company's business, financial condition
and results of operations.
The Company is dependent on a small number of customers. Accordingly, the
Company is subject to concentration of credit risk. With the exception of the
write-off of one account in the fourth quarter of 1997, the Company has not
experienced material bad debt expense over the last four years. However, if a
major customer were to encounter financial difficulties and become unable to
meet its obligations, the Company would be adversely impacted.
CYCLICAL NATURE OF THE SEMICONDUCTOR INDUSTRY. The Company's business
depends upon the capital expenditures of semiconductor manufacturers, which in
turn depend on the current and anticipated market demand for ICs and products
utilizing ICs. The semiconductor industry is cyclical and experiences periodic
downturns, which have an adverse effect on the semiconductor industry's demand
for semiconductor manufacturing capital equipment. Semiconductor industry
downturns have adversely affected the Company's revenues, operating margins and
results of operations. There can be no assurance that the Company's revenues and
operating results will not continue to be materially and adversely affected by
future downturns in the semiconductor industry. In addition, the need for
continued investment in R&D, substantial capital equipment requirements and
extensive ongoing worldwide customer service and support capability limits the
Company's ability to reduce expenses. Accordingly, there is no assurance that
the Company will be able to attain profitability in the future.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS. The Company's revenue and
operating results may fluctuate significantly from quarter to quarter. The
Company derives its revenue primarily from the sale of a relatively small number
of high-priced systems, many of which may be ordered and shipped during the same
quarter. The Company's results of operations for a particular quarter could be
adversely affected if anticipated orders, for even a small number of systems,
were not received in time to enable shipment during the quarter, anticipated
shipments were delayed or canceled by one or more customers or shipments were
delayed due to manufacturing difficulties. The Company's revenue and operating
results may also fluctuate due to the mix of products sold and the channel of
distribution.
COMPETITION. The semiconductor manufacturing capital equipment industry is
highly competitive. The Company faces substantial competition throughout the
world. The Company believes that to remain competitive, it will require
significant financial resources in order to offer a broader range of products,
to maintain customer service and support centers worldwide and invest in product
and process R&D. Many
5
<PAGE>
of the Company's existing and potential competitors have substantially greater
financial resources, more extensive engineering, manufacturing, marketing and
customer service and support capabilities, as well as greater name recognition
than the Company. The Company expects its competitors to continue to improve the
design and performance of their current products and processes and to introduce
new products and processes with improved price and performance characteristics.
If the Company's competitors enter into strategic relationships with leading
semiconductor manufacturers covering MeV or CVD products similar to those sold
by the Company, it would materially adversely affect the Company's ability to
sell its products to these manufacturers. There can be no assurance that the
Company will continue to compete successfully in the United States or worldwide.
The Company faces direct competition in CVD WSiX from Applied Materials, Inc.
and Tokyo Electron, Ltd. In the MeV marketplace, the Company's MeV ion
implantation systems compete with MeV systems marketed by Eaton Corporation.
There can be no assurance that these or other competitors will not succeed in
developing new technologies, offering products at lower prices than those of the
Company or obtaining market acceptance for products more rapidly than the
Company.
DEPENDENCE ON NEW PRODUCTS AND PROCESSES. The Company believes that its
future performance will depend in part upon its ability to continue to enhance
its existing products and their process capabilities and to develop and
manufacture new products with improved process capabilities. As a result, the
Company expects to continue to invest in R&D. The Company also must manage
product transitions successfully, as introductions of new products could
adversely affect sales of existing products. There can be no assurance that the
market will accept the Company's new products or that the Company will be able
to develop and introduce new products or enhancements to its existing products
and processes in a timely manner to satisfy customer needs or achieve market
acceptance. The failure to do so could have a material adverse effect on the
Company's business, financial condition and results of operations. Furthermore,
if the Company is not successful in the development of advanced processes or
equipment for manufacturers with whom it has formed strategic alliances, its
ability to sell its products to those manufacturers would be adversely affected.
PRODUCT CONCENTRATION; RAPID TECHNOLOGICAL CHANGE. Semiconductor
manufacturing equipment and processes are subject to rapid technological change.
The Company derives its revenue primarily from the sale of its MeV ion
implantation and WSix CVD systems. The Company estimates that the life cycle for
these systems is generally three to five years. The Company believes that its
future prospects will depend in part upon its ability to continue to enhance its
existing products and their process capabilities and to develop and manufacture
new products with improved process capabilities. As a result, the Company
expects to continue to make significant investments in R&D. The Company also
must manage product transitions successfully, as introductions of new products
could adversely affect sales of existing products. There can be no assurance
that future technologies, processes or product developments will not render the
Company's product offerings obsolete or that the Company will be able to develop
and introduce new products or enhancements to its existing and future processes
in a timely manner to satisfy customer needs or achieve market acceptance. The
failure to do so could adversely affect the Company's business, financial
condition and results of operations. Furthermore, if the Company is not
successful in the development of advanced processes or equipment for
manufacturers with whom it currently does business, its ability to sell its
products to those manufacturers would be adversely affected.
DEPENDENCE ON PATENTS AND PROPRIETARY RIGHTS. The Company's success depends
in part on its proprietary technology. While the Company attempts to protect its
proprietary technology through patents, copyrights and trade secret protection,
it believes that the success of the Company will depend on more technological
expertise, continuing the development of new systems, market penetration and
growth of its installed base and the ability to provide comprehensive support
and service to customers. There can be no assurance that the Company will be
able to protect its technology or that competitors will not be able to develop
similar technology independently. The Company currently has a number of United
States and foreign patents and patent applications. There can be no assurance
that any patents issued to the Company
6
<PAGE>
will not be challenged, invalidated or circumvented or that the rights granted
thereunder will provide competitive advantages to the Company.
From time to time, the Company has received notices from third parties
alleging infringement of such parties' patent rights by the Company's products.
In such cases, it is the policy of the Company to defend against the claims or
negotiate licenses on commercially reasonable terms where considered
appropriate. However, no assurance can be given that the Company will be able to
negotiate necessary licenses on commercially reasonable terms, or at all, or
that any litigation resulting from such claims would not have a material adverse
effect on the Company's business and financial results.
DEPENDENCE ON KEY SUPPLIERS. Certain of the components and sub-assemblies
included in the Company's products are obtained from a single supplier or a
limited group of suppliers. Disruption or termination of these sources could
have a temporary adverse effect on the Company's operations. The Company
believes that alternative sources could be obtained and qualified to supply
these products, if necessary. Nevertheless, a prolonged inability to obtain
certain components could have a material adverse effect on the Company's
business, financial condition and results of operations.
DEPENDENCE ON INDEPENDENT DISTRIBUTORS. The Company currently sells and
supports its MeV ion implantation and CVD products through direct sales and
customer support organizations in the U.S., Western Europe and South Korea and
through eight exclusive, independent sales representatives and distributors in
the U.S., Europe, Japan, South Korea, Taiwan, Hong Kong and Singapore. The
Company does not have any long-term contracts with its sales representatives and
distributors. Although the Company believes that alternative sources of
distribution are available, the disruption or termination of its existing
distributor relationships could have a temporary adverse effect on the Company's
business, financial condition and results of operations.
LIQUIDITY AND CAPITAL RESOURCES. The Company's primary source of funds at
December 31, 1997 consisted of $8.7 million in cash and cash equivalents. The
Company has a $10.0 million revolving line of credit which is secured by
substantially all of the assets of the Company and expires in June 1998. At
December 31, 1997, the Company had $2.8 million in unused letters of credit and
borrowings of $7.2 million outstanding under the line of credit. Availability of
borrowings is based on eligible accounts receivable and inventory. Based on
eligible accounts receivable and inventory at December 31, 1997, the Company's
borrowing capacity under the revolving credit facility was in excess of $10
million. A monthly borrowing base certificate is required by the bank.
The Company incurred operating losses during each of the two years in the
period ended December 31, 1997 and, as of December 31, 1997, had an accumulated
deficit of $48.9 million. Additionally, the Company's bank line of credit is
scheduled to expire in June 1998. The accompanying consolidated financial
statements have been prepared assuming the Company will continue as a going
concern and do not include any adjustments to reflect the possible future
effects on the recoverability and classification of assets and liabilities that
may result from the outcome of this uncertainty.
In connection with the issuance of Series A Stock for gross proceeds of $5
million, the same investors in the Company's Series A Stock have committed to
providing additional equity financing upon fulfillment of certain conditions.
Assuming the Company fulfills these conditions and receives the proceeds from
this additional preferred stock financing and assuming the Company is able to
secure borrowings upon renewal of its existing bank line of credit or under a
new line of credit, the Company believes that its existing cash resources
together with funds from this additional preferred stock financing and line of
credit will be sufficient to fund the Company's expected working capital
requirements for at least the next 12 months. However, the exact amount and
timing of these working capital requirements and the Company's ability to
continue as a going concern will be determined by numerous factors, including
the level of and gross margin on future sales, the payment terms extended to and
by the Company and the timing of capital expenditures. Furthermore, there can be
no assurance that funds will be received or become available from
7
<PAGE>
the additional preferred stock financing or line of credit or that these funds,
together with the Company's existing cash resources, will be sufficient to
implement the Company's operating strategy or meet the Company's other working
capital requirements. Accordingly, the Company may be required to seek
additional equity or debt financing. There can be no assurance that the Company
would be able to obtain additional debt or equity financing, if and when needed,
on terms that the Company finds acceptable. Any additional equity or debt
financing may involve substantial dilution to the Company's shareholders,
restrictive covenants or high interest costs.
If the Company is unable to obtain sufficient funds to satisfy its cash
requirements, it will be forced to curtail operations, dispose of assets or seek
extended payment terms from its vendors. There can be no assurance that the
Company would be able to reduce expenses or successfully complete other steps
necessary to continue as a going concern. Such events would materially and
adversely affect the value of the Company's equity securities.
VOLATILITY OF STOCK PRICE; EFFECT OF CONVERSION OF SERIES A STOCK ON THE
STOCK PRICE. The Company's Common Stock has experienced substantial price
volatility, particularly as a result of quarter-to-quarter variations in the
actual or anticipated financial results of, or announcements by, the Company,
its competitors or its customers, announcements of technological innovations or
new products by the Company or its competitors, changes in earnings estimates by
securities analysts and other events or factors. Also, the stock market has
experienced extreme price and volume fluctuations which have affected the market
price of many technology companies, in particular, and which have often been
unrelated to the operating performance of these companies. These broad market
fluctuations, as well as general economic and political conditions in the United
States and the countries in which the Company does business, may adversely
affect the market price of the Company's Common Stock. Furthermore, trading in
the stock is thin and because the Series A Stock is convertible at a discount to
the market price, the holders of Series A Stock can convert the Series A Stock
into Common Stock and sell such Common Stock at a profit at any time, which may
have a depressive effect on the stock price. In addition, the occurrence of any
of the events described in these "Risk Factors" could have a material adverse
effect on such market price. In addition, the occurrence of any of the events
described in these "Risk Factors" could have a material adverse effect on such
market price. See "Market for the Registrant's Common Equity and Related
Shareholder Matters" in the "1997 Form 10-K."
READINESS FOR YEAR 2000. Many existing computer systems and applications,
and other control devices, use only two digits to identify a year in the date
field, without considering the impact of the upcoming change in the century.
These computer systems and applications could fail or create erroneous results
unless corrected so that they can process data related to the year 2000. The
Company relies on its systems, applications and devices in operating and
monitoring all major aspects of its business, including financial systems (such
as general ledger, accounts payable and payroll modules), customer service,
infrastructure, embedded computer chips, networks and telecommunications
equipment and end products. The Company also relies on external systems of
business enterprises such as customers, suppliers, creditors, financial
organizations, and of governments both domestically and globally, directly for
accurate exchange of data and indirectly. During 1997, the Company started the
implementation of a new business system. One criteria for the selection of the
enterprise software was compliance with Year 2000 issues. Accordingly, the
Company's current estimate is that the costs associated with the Year 2000
issue, and the consequences of incomplete or untimely resolution of the Year
2000 issue, will not have a material adverse effect on the result of operations
or financial position of the Company in any given year. However, despite the
Company's efforts to address the Year 2000 impact on its internal systems, there
can be no assurance that the Company has fully identified such impact or that it
can resolve it without disruption of its business and without incurring
significant expense. In addition, even if the internal systems of the Company
are not materially affected by the Year 2000 issue, the Company could be
affected through disruption in the operation of the enterprises with which the
Company interacts. The Company has not contacted the entities with which it
interacts to determine whether such entities are addressing the Year 2000 issue.
8
<PAGE>
SELLING SECURITY HOLDERS
The following table sets forth certain information with respect to the
beneficial ownership by the Selling Security Holders of shares of the Company's
Common Stock. The Selling Security Holders purchased from the Company in a
private transaction on February 12, 1998 an aggregate of 100,000 shares of
Series A Stock, Warrants to purchase an aggregate of 400,000 shares of Common
Stock and may receive dividends of 6% per annum on the Series A Stock payable in
Common Stock. The Securities offered by this Prospectus are being acquired by
the Selling Security Holders upon conversion of the Series A Stock, exercise of
the Warrants and as dividends on the Series A Stock.
The Registration Rights Agreement requires the Company to register a total
of 3,460,098 shares of the Company's Common Stock, even though less or more than
that amount may be required to be issued by the Company upon the conversion of
all of the shares of Series A Stock, the exercise of the Warrants or as
dividends on the Series A Stock as of the date of this Prospectus. The Selling
Security Holders named below may sell the shares of Common Stock offered hereby
from time to time and may choose to sell less than all or none of such shares.
<TABLE>
<CAPTION>
MAXIMUM
NUMBER OF SHARES
SHARES THAT OFFERED SHARES OWNED
NAME MAY BE SOLD (1) (1) AFTER OFFERING (2)
- ----------------------------------------------------------------- --------------- ---------- -----------------------
<S> <C> <C> <C>
SOUTHBROOK INTERNATIONAL INVESTMENTS, LTD. ...................... 1,680,048 1,680,048 0
c/o Trippoak Advisors, Inc.
Robert L. Miller
630 Fifth Avenue, Suite 2000
New York, NY 10111
WESTOVER INVESTMENTS L.P. ....................................... 537,616 537,616 0
Will Rose
777 Main Street, Suite 2750
Fort Worth, Texas 76102
MONTROSE INVESTMENTS, LTD. ...................................... 806,424 806,424 0
Will Rose
777 Main Street, Suite 2750
Fort Worth, Texas 76102
BROWN SIMPSON STRATEGIC GROWTH FUND, L.P. ....................... 82,502 82,502 0
Mitchell Kaye
152 West 57th Street, 40th Floor
New York, NY 10019
BROWN SIMPSON STRATEGIC GROWTH FUND, LTD. ....................... 253,507 253,507 0
Mitchell Kaye
152 West 57th Street, 40th Floor
New York, NY
CIBC OPPENHEIMER CORP. .......................................... 100,000 100,000 0
Matthew J. Maryles
200 Liberty Street, 7th Floor
New York, NY 10281
</TABLE>
- ------------------------
(1) The Registration Rights Agreement requires that the Company register an
aggregate of 3,460,098 shares of Common Stock pursuant to the Registration
Statement of which this Prospectus is a part. As of March 12, 1998, an
aggregate of 3,224,098 shares would be required to be issued upon conversion
of the Series A Stock (assuming a conversion price of $1.89), exercise of
the Warrants and as dividends on the Series A Stock. The maximum number of
shares that each Selling Security Holder may sell
9
<PAGE>
(except for CIBC Oppenheimer Corp.) includes (i) two times the number of
shares of Common Stock issuable upon conversion of the Series A Stock,
assuming a conversion price of $3.47 (which price may fluctuate from time to
time based on changes in the market price of the Common Stock and provisions
in the conversion formula pursuant to the Convertible Preferred Stock
Purchase Agreement pursuant to which the Series A Preferred Stock and the
Warrants were sold), (ii) the number of shares of Common Stock issuable upon
exercise of the Warrants (iii) the number of shares of Common Stock issuable
as dividends on the Series A Stock assuming the Selling Security Holder held
the Series A Stock for two years and (iv) an indeterminate number of
additional shares which may become issuable upon conversion by reason of
adjustments and fluctuations of the conversion price. If any Selling
Security Holder's ownership exceeds this amount, this Prospectus will be
amended. CIBC Oppenheimer Corp.'s ownership includes only the number of
shares of Common Stock issuable upon exercise of its Warrant.
(2) Assumes all shares offered by this Prospectus are sold and no beneficially
owned shares are sold other than by this Prospectus.
No Selling Security Holder has held any position or office or had any other
material relationship with the Company or any of its affiliates within the past
three years other than CIBC Oppenheimer Corp., which received a finder's fee in
connection with the sale of the Series A Stock and Warrants.
Each Selling Security Holder has represented to the Company that it
purchased the Securities for investment, with no present intention of
distribution. However, in recognition of the fact that investors, even though
purchasing the Securities for investment, may wish to be legally permitted to
sell their securities when they deem appropriate, the Company has filed with the
Commission under the Securities Act the Registration Statement with respect to
the resale of the Shares, the Warrant Shares and the Dividend Shares from time
to time in the over-the-counter market through The Nasdaq Stock Market or in
privately negotiated transactions, through the writing of options on the Shares,
the Warrant Shares or the Dividend Shares, or through a combination of the
foregoing. The Company has agreed to prepare and file such amendments and
supplements to the Registration Statement as may be necessary to keep the
Registration Statement effective for two years from the date the Registration
Statement is declared effective or such earlier date when all Securities covered
by such Registration Statement have been sold.
DESCRIPTION OF EQUITY SECURITIES
The authorized capital stock of the Company consists of 50,000,000 shares of
Common Stock, no par value per share, and 2,000,000 shares of Preferred Stock,
no par value per share, of which 100,000 have been designated Series A
Convertible Preferred Stock. As of February 27, 1998, approximately 17,129,260
shares of Common Stock were outstanding, held of record by approximately 479
shareholders. As of February 27, 1998, 100,000 shares of Series A Stock were
outstanding, held of record by approximately 5 shareholders.
PLAN OF DISTRIBUTION
The sale of the Securities by the Selling Security Holders may be effected
from time to time in transactions in the over-the-counter market through Nasdaq,
in privately negotiated transactions, through the writing of options on the
Securities, or through a combination of such methods of sale, at fixed prices,
that may be changed, at market prices prevailing at the time of sale, at prices
relating to such prevailing market prices or at negotiated prices. The Selling
Security Holders may effect such transactions by selling the Securities to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Security Holders
and/or the purchasers of the Securities for whom such broker-dealers may act as
agents or to whom they may sell as principals, or both (which compensation as to
a particular broker-dealer may be in excess of customary compensation). Any
10
<PAGE>
broker-dealer may act as a broker-dealer on behalf of one or more of the Selling
Security Holders in connection with the offering of certain of the Securities by
the Selling Security Holders.
The Selling Security Holders and any broker-dealers who act in connection
with the sale of the Securities hereunder may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any commissions
received by them and profit on any resale of the Securities as principal might
be deemed to be underwriting discounts and commissions under the Securities Act.
The Company has agreed to indemnify the Selling Security Holders against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for
Genus by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto,
California. As of the date of this Prospectus, members of Wilson Sonsini
Goodrich & Rosati, Professional Corporation, who have represented the Company in
connection with this offering, beneficially own approximately 11,500 shares of
the Company's Common Stock. Mario M. Rosati, a Director and Secretary of the
Company, is a member of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
EXPERTS
The Consolidated Financial Statements of the Company, as of December 31,
1997 and 1996 and for each of the three years in the period ended December 31,
1997 and the Financial Statement Schedule of the Company for each of the three
years in the period ended December 31, 1997, incorporated by reference in this
Prospectus and elsewhere in the Registration Statement, have been incorporated
herein in reliance on the reports, one of which includes an explanatory
paragraph regarding the Company's ability to continue as a going concern, of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
11
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED IN CONNECTION
WITH ANY OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY
OTHER THAN THE SECURITIES OFFERED HEREBY, NOR DO THEY CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD BE
UNLAWFUL OR TO ANY PERSON TO WHOM IT IS UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Information Incorporated by Reference..................................... 2
Recent Developments....................................................... 2
Risk Factors.............................................................. 3
Selling Security Holders.................................................. 8
Description of Equity Securities.......................................... 9
Plan of Distribution...................................................... 9
Legal Matters............................................................. 10
Experts................................................................... 10
</TABLE>
GENUS, INC.
3,460,098 SHARES OF
COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fee and the Nasdaq
National Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 2,073
Nasdaq National Market listing fee................................. 17,500
Printing and engraving expenses.................................... 1,200
Legal fees and expenses............................................ 15,000
Accounting fees and expenses....................................... 15,000
Transfer agent and registrar fees and expenses..................... 10,000
Miscellaneous...................................................... 5,000
---------
Total.......................................................... $ 65,773
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers who are parties or are threatened to be made parties to any
proceeding (with certain exceptions) by reason of the fact that the person is or
was an agent of the corporation, against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with the
proceeding if that person acted in good faith and in a manner the person
reasonably believed to be in the best interests of the corporation. This
limitation on liability has no effect on a directors' liability (i) for acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) for acts or omissions that a director believes to be
contrary to the best interests of the corporation or its shareholders or that
involve the absence of good faith on the part of the director, (iii) relating to
any transaction from which a director derived an improper personal benefit, (iv)
for acts or omissions that show a reckless disregard for the director's duty to
the corporation or its shareholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of a serious injury to the corporation or its
shareholders, (v) for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the directors' duty to the
corporation or its shareholders, (vi) under Section 310 of the California
General Corporation Law (concerning contracts or transactions between the
corporation and a director) or (vii) under Section 316 of the California General
Corporation Law (directors' liability for improper dividends, loans and
guarantees). The provision does not extend to acts or omissions of a director in
his capacity as an officer. Further, the provision has no effect on claims
arising under federal or state securities laws and does not affect the
availability of injunctions and other equitable remedies available to the
Company's shareholders for any violation of a director's fiduciary duty to the
Company or its shareholders. Although the validity and scope of the legislation
underlying the provision have not yet been interpreted to any significant extent
by the California courts, the provision may relieve directors of monetary
liability to the Company for grossly negligent conduct, including conduct in
situations involving attempted takeovers of the Company.
In accordance with Section 317, the Restated Articles of Incorporation, as
amended (the "Articles"), of the Company limits the liability of a director to
the Company or its shareholders for monetary damages to the fullest extent
permissible under California law, and authorizes the Company to provide
indemnification to it agents (including officers and directors), subject to the
limitations set forth above. The
II-1
<PAGE>
Company's Bylaws further provide for indemnification of corporate agents to the
maximum extent permitted by the California General Corporation Law.
Pursuant to the authority provided in the Articles, the Company has entered
into indemnification agreements with each of its officers and directors,
indemnifying them against certain potential liabilities that may arise as a
result of their service to the Company, and providing for certain other
protection.
The Company also maintains insurance policies which insure its officers and
directors against certain liabilities.
The foregoing summaries are necessarily subject to the complete text of the
statute, the Articles, the Bylaws and the agreements referred to above and are
qualified in their entirety by reference thereto.
Reference is made to the Convertible Preferred Common Stock Purchase
Agreement incorporated by reference as an exhibit to the Registration Statement
for provisions regarding indemnification of the Company's officers, directors
and controlling persons against liabilities, including liabilities under the
Securities Act.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
4.1* Common Shares Rights Agreement, dated as of April 27, 1990, between the
Registrant and Bank of America, N.T. and S.A., as Rights Agent.
4.2** Convertible Preferred Stock Purchase Agreement, dated February 2, 1998,
among the Registrant and the Investors.
4.3** Registration Rights Agreement, dated February 2, 1998, among the
Registrant and the Investors.
4.4** Certificate of Determination.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1 filed herewith).
</TABLE>
- ------------------------
* Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1990.
** Incorporated by reference to the exhibit filed with the Registrant's Current
Report on Form 8-K filed February 17, 1998.
ITEM 17. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sale are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
II-2
<PAGE>
provided, however, that the undertakings set forth in paragraph (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange of 1934 (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
3. Insofar as indemnification of 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 15 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 Registration of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
4. The undersigned Registrant hereby undertakes that:
(a) 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.
(b) For the purpose 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on April 28, 1998.
<TABLE>
<S> <C> <C>
GENUS, INC.
By: /s/ MARY F. BOBEL
-----------------------------------------
Mary F. Bobel
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ WILLIAM W. R. ELDER*
- ------------------------------ Chairman of the Board April 28, 1998
(William W. R. Elder)
President and Chief
/s/ JAMES T. HEALY Executive Officer
- ------------------------------ (Principal Executive April 28, 1998
(James T. Healy) Officer)
Executive Vice President,
Chief Financial Officer,
Corporate Controller,
/s/ MARY F. BOBEL Chief Accounting Officer
- ------------------------------ and Treasurer (Principal April 28, 1998
(Mary F. Bobel) Financial Officer and
Chief Accounting
Officer)
/s/ TODD S. MYHRE*
- ------------------------------ Director April 28, 1998
(Todd S. Myhre)
/s/ MARIO M. ROSATI*
- ------------------------------ Director and Secretary April 28, 1998
(Mario M. Rosati)
/s/ STEPHEN F. FISHER*
- ------------------------------ Director April 28, 1998
(Stephen F. Fisher)
/s/ G. FREDERICK FORSYTH*
- ------------------------------ Director April 28, 1998
(G. Frederick Forsyth)
*By: /s/ MARY F. BOBEL
-------------------------
Mary F. Bobel April 28, 1998
ATTORNEY-IN-FACT
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- ------
<C> <S>
4.1* Common Shares Rights Agreement, dated as of April 27, 1990, between the
Registrant and Bank of America, N.T. and S.A., as Rights Agent
4.2** Convertible Preferred Stock Purchase Agreement, dated February 2, 1998,
among the Registrant and the Investors
4.3** Registration Rights Agreement, dated February 2, 1998, among the
Registrant and the Investors
4.4** Certificate of Determination
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1 filed herewith)
</TABLE>
- ------------------------
* Incorporated by reference to the exhibit filed with the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1990.
** Incorporated by reference to the exhibit filed with the Registrant's Current
Report on Form 8-K filed February 17, 1998.
<PAGE>
EXHIBIT 5.1
[Letterhead]
April 28, 1998
Genus, Inc.
1139 Karlstad Drive
Sunnyvale, California 94089
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed with the
Securities and Exchange Commission (the "Registration Statement"), in connection
with the registration under the Securities Act of 1933, as amended, of a shelf
offering of 3,460,098 shares of your Common Stock (the "Shares"), to be issued
upon the conversion of issued and outstanding shares of the Series A Convertible
Preferred Stock (the "Series A Stock"), exercise of Warrants to Purchase Common
Stock (the "Warrants") and dividends on the Series A Stock in accordance with
the Articles of Incorporation as currently in effect. As your counsel, we have
examined the proceedings proposed to be taken in connection with the sale and
issuance of the above-referenced securities.
In our opinion, the Shares, when issued upon conversion of the Series A
Stock, the exercise of the Warrants and as dividends on the Series A Stock, will
be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Genus, Inc. (the "Company") of our report, which includes an
explanatory paragraph regarding the Company's ability to continue as a going
concern, dated January 26, 1998, except for Notes 1, 5 and 16, as to which the
date is March 2, 1998, and of our report dated January 26, 1998, on our audits
of the consolidated financial statements and financial statement schedule,
respectively, of the Company. We also consent to the reference to our firm under
the caption "Experts."
COOPERS & LYBRAND L.L.P.
San Jose, California
April 28, 1998
