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As filed with the Securities and Exchange Commission on November 21, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CYMER, INC.
(Exact name of issuer as specified in its charter)
Nevada 33-0175463
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(State of Incorporation) (I.R.S. Employer Identification No.)
16275 Technology Drive
San Diego, CA 92127
(Address of principal executive offices)
1987 STOCK OPTION PLAN
1996 STOCK OPTION PLAN
1996 DIRECTOR OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
DR. ROBERT P. AKINS
Chief Executive Officer
CYMER, INC.
16275 Technology Drive
San Diego, CA 92127
(619) 487-2442
(Name, address and telephone number of agent for service)
Copies to:
HENRY P. MASSEY, JR., ESQ.
GREGORY T. COX, ESQ.
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, Californ a 94304-1050
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock $0.001 par value,
previously issued or to be issued
under 1987 Stock Option Plan 1,193,788 $1.95(2) $ 2,327,886.60 $ 705.42
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Common Stock $0.001 par value, to
be issued under 1996 Stock Option
Plan 1,500,000 $26.72(3) 40,080,000.00 12,145.45
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Common Stock $0.001 par value, to
be issued under 1996 Director
Option Plan 100,000 $29.25(4) 2,925,000.00 886.36
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Common Stock $0.001 par value, to
be issued under 1996 Employee
Stock Purchase Plan 250,000 $24.86(5) 6,215,000.00 1,883.33
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TOTAL 3,043,788 $51,547,886.60 $ 15,620.56
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</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement is the number
of shares subject to options currently outstanding under the 1987 Stock
Option Plan, and the number of shares authorized to be issued under the
1996 Stock Option Plan, the 1996 Director Option Plan and the 1996
Employee Stock Purchase Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
calculating the total registration fee. The price of $1.66 per share
represents the weighted average exercise price of the 1,193,788
shares subject to options currently outstanding under the 1987 Stock
Option Plan.
(3) Estimated in accordance with Rule 457(h) under the Securities Act
solely for the purpose of calculating the total registration fee.
The price of $26.72 per share represents the weighted average
exercise price based on (a) the exercise price of the 192,050 shares
subject to options currently outstanding of $9.50 per share and
(b) as to the 1,307,950 shares subject to future issuance under the
1996 Stock Option Plan, the average of the high and low prices
reported in the Nasdaq National Market on November 15, 1996 of $29.25
per share (the "Market Price").
(4) Estimated in accordance with Rule 457(h) under the Securities Act
solely for the purpose of calculating the total registration
fee. Computation based upon the Market Price because the price at
which the options to be granted in the future may be exercised or
the price at which shares may be purchased in the future is not
currently determinable.
(5) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee on the basis of 85% of the Market Price.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Information Incorporated by Reference
The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(A) The Registrant's Prospectus filed with the Commission pursuant
to Rule 424(b) on September 18, 1996, which contains audited
financial statements for the Registrant as of December 31,
1995 and 1994 and each of the three years in the period ended
December 31, 1995 and as of June 30, 1996 and for the six
months then ended.
(B) Items 1 and 2 of the Registrant's Registration Statement on
Form 8-A filed on September 6, 1996 pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(C) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996 filed on November 14, 1996 pursuant
to Section 13 of the Securities Exchange Act of 1934, as
amended.
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.
ITEM 4. Description of Securities
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel
Not Applicable.
ITEM 6. Indemnification of Directors and Officers
The Registrant's Articles of Incorporation limit, to the maximum
extent permitted by Section 78.751 of Nevada General Corporation Law, the
personal liability of directors and officers for monetary damages for breach of
their fiduciary duties as directors and officers (other than liabilities arising
from acts or omissions which involve intentional misconduct, fraud or knowing
violations of law or the payment of distributions in violation of Nevada General
Corporation Law). The Articles of Incorporation provide further that the
Registrant shall indemnify to the fullest extent permitted by Nevada General
Corporation Law any person made a party to an action or proceeding by reason of
the fact such person was a director, officer, employee or agent or the
Registrant. Subject to the Registrant's Articles of Incorporation, the Bylaws
provide that the Registrant shall indemnify
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directors and officers for all costs reasonably incurred in connection with any
action, suit or proceeding in which such director or officer is made a party by
virtue of his being an officer or director of the Registrant except where such
director or officer is finally adjudged to have been derelict in the performance
of his duties as such director or officer. The Registrant has entered into
indemnification agreements with its officers and directors containing provisions
which may require the Registrant, among other things, to indemnify the officers
and directors against certain liabilities that may arise by reason of their
status or service as directors or officers (other than liabilities arising from
willful misconduct of a culpable nature), and to advance their expenses incurred
as a result of any proceeding against them as to which they could be
indemnified.
ITEM 7. Exemption From Registration Claimed
Not Applicable.
ITEM 8. Exhibits
4.1(1) 1987 Stock Option Plan including form of Stock Option
Agreement
4.2(2) 1996 Stock Option Plan including form of Stock Option
Agreement
4.3(3) 1996 Employee Stock Purchase Plan including form of
Subscription Agreement
4.4(4) 1996 Director Option Plan including form of Director
Option Agreement
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as
to legality of securities being registered.
23.1 Independent Auditors' Consent (see Page II-5).
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-4).
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(1) Exhibit No. 4.1 is incorporated by reference to Exhibit 10.2 filed with
Registrant's Registration Statement on Form S-1, No. 333-08383.
(2) Exhibit No. 4.2 is incorporated by reference to Exhibit 10.3 filed with
the Registrant's Registration Statement on Form S-1, No. 333-08383.
(3) Exhibit No. 4.3 is incorporated by reference to Exhibit 10.4 filed with
the Registrant's Registration Statement on Form S-1, No. 333-08383.
(4) Exhibit No. 4.4 is incorporated by reference to Exhibit 10.5 filed with
the Registrant's Registration Statement on Form S-1, No. 333-08383.
ITEM 9. UNDERTAKINGS
(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 to include
any material information with respect to the plan of
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distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(B) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (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 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the Nevada General Corporation Law, the Restated
Articles of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and its officers
and directors, or otherwise, the Registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant, Cymer, Inc, a corporation organized and existing under the laws
of the State of Nevada, 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 San Diego, State of California, on this 21st day
of November, 1996.
CYMER, INC.
By: /s/ William A. Angus, III
______________________________________________
William A. Angus, III
Senior Vice President, Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William A. Angus, III and Robert P.
Akins, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Robert P. Akins President, Chief Executive Officer and November 21, 1996
__________________________________ Chairman of the Board
(Robert P. Akins)
/s/ William A. Angus Senior Vice President, Chief Financial November 21, 1996
__________________________________ Officer and Secretary
(William A. Angus, III)
/s/ Nancy J. Baker Director, Corporate Finance and Treasurer November 21, 1996
__________________________________
(Nancy J. Baker)
/s/ Richard P. Abraham Director November 21, 1996
__________________________________
(Richard P. Abraham)
/s/ Kenneth M. Deemer Director November 21, 1996
__________________________________
(Kenneth M. Deemer)
/s/ Peter J. Simone Director November 21, 1996
__________________________________
(Peter J. Simone)
/s/ F. Duwaine Townsen Director November 21, 1996
__________________________________
(F. Duwaine Townsen)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
- -------
<S> <C>
4.1(1) 1987 Stock Option Plan including form of Stock Option
Agreement
4.2(2) 1996 Stock Option Plan including form of Stock Option
Agreement
4.3(3) 1996 Employee Stock Purchase Plan including form of
Subscription Agreement
4.4(4) 1996 Director Option Plan including form of Director
Option Agreement
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as
to legality of securities being registered.
23.1 Independent Auditors' Consent.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-4).
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(1) Exhibit No. 4.1 is incorporated by reference to Exhibit 10.2 filed with
Registrant's Registration Statement on Form S-1, No. 333-08383.
(2) Exhibit No. 4.2 is incorporated by reference to Exhibit 10.3 filed with
the Registrant's Registration Statement on Form S-1, No. 333-08383.
(3) Exhibit No. 4.3 is incorporated by reference to Exhibit 10.4 filed with
the Registrant's Registration Statement on Form S-1, No. 333-08383.
(4) Exhibit No. 4.4 is incorporated by reference to Exhibit 10.5 filed with
the Registrant's Registration Statement on Form S-1, No. 333-08383.
</TABLE>
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EXHIBIT 5.1
November 21, 1996
Cymer, Inc.
16275 Technology Drive
San Diego, CA 92127
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Cymer, Inc. (the "Company") with the Securities and Exchange Commission on or
about November 21, 1996 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of 3,043,788 shares
of Common Stock (the "Shares") reserved for issuance under the 1987 Stock Option
Plan, 1996 Stock Option Plan, 1996 Director Option Plan and the 1996 Employee
Stock Purchase Plan (the "Plans"). As your counsel, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with said issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us to be taken prior to the issuance and sale of the Shares
pursuant to the Plans, and upon completion of the proceedings being taken in
order to permit such transaction to be carried out in accordance with the
securities laws of the various states where required, the Shares, when issued
and sold in the manner referred to in the Plans and the Registration Statement,
will be legally and validly issued, fully-paid and non-assessable.
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 amendments thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/s/ WILSON, SONSINI, GOODRICH & ROSATI
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Cymer, Inc. (the Company) on Form S-8 of our report dated August 9,
1996 (August 21, 1996 as to the second paragraph in Note 1 and Note 12; which
report contains an explanatory paragraph that describes a change during 1994 in
the Company's method of accounting for the accretion on the Company's Redeemable
Convertible Preferred Stock), appearing in the Company's Prospectus, filed
pursuant to Rule 424(b) of the Securities Act of 1933 on September 18, 1996, in
connection with Registration Statement No. 333-08383 of Cymer, Inc. on Form S-1,
which Prospectus is incorporated by reference in this Registration Statement.
/s/ Deloitte & Touche LLP
San Diego, California
November 20, 1996
