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As filed with the Securities and Exchange Commission on November 18, 1998
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYMER, INC.
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(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.)
16750 Via Del Campo Court
San Diego, CA 92127
(Address of principal executive offices)
1996 STOCK OPTION PLAN
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(Full title of the Plans)
DR. ROBERT P. AKINS
President, Chief Executive Officer
and Chairman of the Board
CYMER, INC.
16750 Via Del Campo Court
San Diego, CA 92127
(619) 451-7300
(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, California 94304-1050
(650) 493-9300
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<TABLE>
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C>
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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Common Stock $0.001 par value, options to
be issued under 1996 Stock Option Plan 1,250,000 $13.438 (2) $16,797,500 $4,669.71
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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 additional shares authorized to be issued under the 1996 Stock Option
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. Computation based upon the average of the
high and low prices of the Common Stock as reported on The Nasdaq National
Market on November 11, 1998 because the price at which options to be
granted in the future may be exercised is not currently determinable.
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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 Annual Report on Form 10-K of Cymer, Inc. (the
"Registrant"), Commission file no. 0-21321, filed on March 25,
1998, as amended Form 10K/A filed on July 30, 1998, which
contains audited financial statements for the Registrant's
latest fiscal year ended December 31, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998, filed on May 12, 1998 pursuant to
Section 13 of the Exchange Act.
The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1998, filed on July 31, 1998 pursuant to
Section 13 of the Exchange Act.
The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1998, filed on November 12, 1998
pursuant to Section 13 of the Exchange Act.
The Registrant's Current Report on Form 8-K, Commission file no.
0-21321, filed on September 18, 1998, reporting the information
set forth in the Company's press releases dated September 4,
1998 regarding a shareholder lawsuit, and September 11, 1998
regarding a workforce reduction.
(c) 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").
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.
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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
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
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<S> <C>
4.1(1) 1996 Stock Option Plan including form of Stock 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 10.3 filed with the
Registrant's Registration Statement on Form S-1, No. 333-08383.
ITEM 9. UNDERTAKINGS
(A) The undersigned Registrant hereby undertakes:
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(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 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 18th day of November, 1998.
CYMER, INC.
By: /s/ William A. Angus, III
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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
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<S> <C> <C>
/s/ Robert P. Akins President, Chief Executive November 18, 1998
- ------------------------ Officer and Chairman of the
(Robert P. Akins) Board
/s/ William A. Angus Senior Vice President, Chief November 18, 1998
- ------------------------ Financial Officer and Secretary
(William A. Angus, III)
/s/ Richard P. Abraham Director November 18, 1998
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(Richard P. Abraham)
/s/ Kenneth M. Deemer Director November 18, 1998
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(Kenneth M. Deemer)
/s/ Peter J. Simone Director November 18, 1998
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(Peter J. Simone)
/s/ Gerald F. Taylor Director November 18, 1998
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(Gerald F. Taylor)
/s/ F. Duwaine Townsen Director November 18, 1998
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(F. Duwaine Townsen)
</TABLE>
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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
February 17, 1998, appearing in the Annual Report on Form 10-K, as amended by
Form 10-K/A on July 30, 1998, of the Company for the year ended December 31,
1997.
/s/ Deloitte & Touche LLP
San Diego, California
November 17, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Registration Statement on Form S-8
CYMER, INC.
November 18, 1998
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
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<S> <C> <C>
4.1(1) 1996 Stock Option Plan including form of Stock 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 10.3 filed
with the Registrant's Registration Statement on Form S-1, No.
333-08383.
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EXHIBIT 5.1
November 18, 1998
Cymer, Inc.
16750 Via Del Campo Court
San Diego, CA 92127
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and 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 18, 1998 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of 1,250,000
shares of Common Stock (the "Shares") reserved for issuance under the 1996
Stock Option Plan (the "Plan"). 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 Plan.
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 Plan, 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 Plan 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
