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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 1996
REGISTRATION NO. 333-08383
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYMER, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
NEVADA 3559 33-0175463
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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16275 TECHNOLOGY DRIVE
SAN DIEGO, CALIFORNIA 92127
(619) 487-2442
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DR. ROBERT P. AKINS
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
CYMER, INC.
16275 TECHNOLOGY DRIVE
SAN DIEGO, CALIFORNIA 92127
(619) 487-2442
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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HENRY P. MASSEY, JR., ESQ. JAY K. HACHIGIAN, ESQ.
DAVID C. DRUMMOND, ESQ. RALPH L. ARNHEIM III, ESQ.
GREGORY T. COX, ESQ. NANCY S. KIM, ESQ.
WILSON SONSINI GOODRICH & ROSATI GUNDERSON DETTMER STOUGH VILLENEUVE
PROFESSIONAL CORPORATION FRANKLIN & HACHIGIAN, LLP
650 PAGE MILL ROAD 600 HANSEN WAY, SECOND FLOOR
PALO ALTO, CALIFORNIA 94304-1050 PALO ALTO, CALIFORNIA 94304
(415) 493-9300 (415) 843-0500
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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 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 number of the earlier effect 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. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
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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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Common Stock being registered. All amounts are estimates except
the registration fee and the NASD filing fee.
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<CAPTION>
AMOUNT
TO BE
PAID
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Registration Fee......................................................... $ 11,897
NASD Filing Fee.......................................................... 4,350
Nasdaq National Market Listing fee....................................... 45,000
Printing................................................................. 200,000
Legal Fees and Expenses.................................................. 350,000
Accounting Fees and Expenses............................................. 200,000
Blue Sky Fees and Expenses............................................... 15,000
Transfer Agent Fees...................................................... 10,000
Miscellaneous............................................................ 163,753
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Total.......................................................... $1,000,000
=======
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 78.751 of the Nevada General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by Nevada law, including
circumstances in which indemnification is otherwise discretionary under Nevada
law. The Registrant has entered into indemnification agreements with its
directors and officers containing provisions which are in some respects broader
than the specific indemnification provisions contained in the Nevada General
Corporation Law. The indemnification agreements may require the Registrant,
among other things, to indemnify its directors and officers 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), to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified, and to obtain directors' and
officers' insurance if available on reasonable terms. Article 5 of the
Registrant's Restated Articles of Incorporation (Exhibit 3.1 hereto) provides
for indemnification of its directors and officers to the maximum extent
permitted by the Nevada General Corporation Law and Article 26 of the
Registrant's Amended and Restated Bylaws (Exhibit 3.3 hereto) provides for
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by the Nevada General Corporation Law. Reference is
also made to Section 9 of the Underwriting Agreement contained in Exhibit 1.1
hereto, which contains provisions with respect to the indemnification of the
officers and directors of the Registrant against certain liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(1) In October 1993, the Company issued and sold 8% promissory notes in
the aggregate principal amount of $474,010 and warrants for the purchase of
13,941 shares of Series E or F Preferred Stock at an exercise price of $3.40 per
share to two venture funds, one corporation and one individual. Each of the
investors was an existing security holder of the Company, with the exception of
the individual, who was an accredited investor.
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(2) In February 1994, the Company sold 75,600 shares of its Series E
Preferred Stock, $.01 par value, to two Japanese companies, each of which was an
existing security holder and customer of the Company, for aggregate
consideration of $378,000.
(3) In June 1994, the Company exchanged the 8% promissory notes and
warrants described in note (1) above into a subsequent bridge loan financing
whereby the Company issued and sold convertible promissory notes in the
aggregate principal amount of $1,625,010 and warrants for the purchase of
252,914 shares of the Company's Series E or F Preferred Stock at an exercise
price of $3.40 per share to five venture funds, four individuals and one
corporation. All of the investors were existing security holders of the Company,
with the exception of three of the individuals, who were each accredited
investors.
(4) In November and December 1994, the Company sold additional convertible
promissory notes in the aggregate principal amount of $1,999,052 and warrants
for the purchase of 146,989 shares of the Company's Series E or F Preferred
Stock at an exercise price of $3.40 per share to four venture funds and one
domestic and one foreign corporation, all of which were existing security
holders of the Company.
(5) In February 1995, the Company exchanged a warrant for the purchase of
15,000 shares of Series D Preferred Stock at an exercise price of $8.50 per
share, which had been issued in May 1992 to a financial institution in
connection with a loan and security agreement, for warrants for the purchase of
16,000 shares of Series E Preferred Stock at an exercise price of $4.00 per
share.
(6) In February and March 1995, the Company issued and sold a total of
1,900,000 shares of its Series F Preferred Stock for aggregate consideration of
$6,650,000, of which $2,895,092 was in cash and $3,754,908 was the principal and
interest from the conversion of the promissory notes described in (3) and (4)
above, to eight venture funds, two foreign corporations, one domestic
corporation, forty-five individuals, four trusts and one investment club. Of
these investors, twelve were existing security holders of the Company and the
remainder were all accredited investors. In connection with this financing, the
Company issued to Weeden & Co., L.P., an existing security holder of the
Company, as Placement Agent, in lieu of a cash commission, five-year warrants to
purchase 443,624 shares of Series F Preferred Stock at a per share exercise
price of $3.50.
(7) In December 1995, the Company issued warrants for the purchase of
27,005 shares of Common Stock, at an exercise price of $3.40 per share, to one
venture fund, one foreign corporation and three individuals, all existing
security holders of the Company which had concurrently exercised warrants for
the purchase of 270,074 shares of Series F Preferred Stock at an exercise price
of $3.40 per share.
(8) In January and February 1996, the Company issued and sold a total of
900,000 shares of its Series G Preferred Stock to three of its customers two of
which were existing security holders of the Company and one of which was an
accredited investor for an aggregate consideration of $5,400,000.
(9) In May and June 1996, the Company issued warrants for the purchase of
12,992 shares of Common Stock, at an exercise price of $3.40 per share, to three
individuals affiliated with the Placement Agent who had concurrently exercised
warrants for the purchase of 129,926 shares of Series F Preferred Stock at an
exercise price of $3.50 per share.
(10) Since June 1993, the Company has issued and sold shares of Common
Stock to employees at prices ranging from $.50 to $1.00, upon exercise of stock
options pursuant to the Company's 1987 Stock Plan.
The sales of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act, or Regulation D promulgated thereunder, or Rule 701 promulgated
under Section 3(b) of the Securities Act as transactions by an issuer not
involving a public offering or transactions pursuant to the compensatory benefit
plans and contracts relating to compensation as provided under such Rule 701.
The recipients of securities in each such transaction represented their
intention to acquire the securities for investment only and not with a view to
or for sale in connection with any distribution thereof and appropriate legends
were attached to the share certificates issued in such transactions. All
recipients had adequate access to information about the Registrant.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
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5.1 Opinion of Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd.
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(B) FINANCIAL STATEMENT SCHEDULES
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, 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 of 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the 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.
(3) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
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(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) 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.
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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, has duly caused this Amendment No. 5 to this Registration
Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on this 18th day
of September 1996.
CYMER, INC.
By: /s/ WILLIAM A. ANGUS, III
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William A. Angus, III
Senior Vice President of Finance and
Administration, Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 5 to this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
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<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
ROBERT P. President, Chief Executive September 18, 1996
AKINS* Officer and Chairman of the
- ------------------------------------------ Board
Robert P. Akins
/s/ WILLIAM A. ANGUS, Senior Vice President and September 18, 1996
III Chief Financial Officer
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William A. Angus, III
NANCY J. Controller, Chief Accounting September 18, 1996
BAKER* Officer
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Nancy J. Baker
RICHARD P. ABRAHAM* Director September 18, 1996
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Richard P. Abraham
KENNETH M. DEEMER* Director September 18, 1996
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Kenneth M. Deemer
PETER J. Director September 18, 1996
SIMONE*
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Peter J. Simone
F. DUWAINE TOWNSEN* Director September 18, 1996
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F. Duwaine Townsen
*By: /s/ WILLIAM A. ANGUS,
III
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William A. Angus, III
(Attorney-in-fact)
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INDEX TO EXHIBITS
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SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBITS PAGE
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5.1 Opinion of Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd.
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EXHIBIT 5.1
September 18, 1996
Cymer, Inc.
16275 Technology Drive
San Diego, CA 92127
RE: REGISTRATION STATEMENT NO 333-08383 ON FORM S-1
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-1 filed by you
with the Securities and Exchange Commission on July 18, 1996, and as amended as
of the date hereof (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of 3,340,000 shares
of Common Stock (including 501,000 shares subject to an over allotment option
granted to the underwriters)(the "Shares") of Cymer, Inc. As your counsel in
connection with this transaction, we have examined the proceedings proposed to
be taken in connection with said sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions 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 Registration Statement 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,
Allison, MacKenzie, Hartman,
Soumbeniotis & Russell, Ltd.
