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As filed with the Securities and Exchange Commission on April 28, 1998
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
PERICOM SEMICONDUCTOR CORPORATION
(Exact name of Registrant as Specified in Its Charter)
_______________________
CALIFORNIA 77-0254621
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2380 BERING DRIVE
SAN JOSE, CALIFORNIA 95131
(Address of Principal Executive Offices)
1995 STOCK OPTION PLAN
(Full Title of the Plan)
_______________________
PATRICK B. BRENNAN
VICE PRESIDENT, FINANCE AND ADMINISTRATION
PERICOM SEMICONDUCTOR CORPORATION
2380 BERING DRIVE
SAN JOSE, CALIFORNIA 95131
(Name and Address of Agent for Service)
(408) 435-0800
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
MICHAEL C. PHILLIPS, ESQ.
HEIKE E. FISCHER, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 813-5600
__________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par
value per share 2,700,000 $9.25 $24,975,000 $7,368
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Pericom Semiconductor Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) The Registrant's Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act"), related to the
Registration Statement on Form S-1 (the "Registration Statement") as declared
effective on October 30, 1997 (No. 333-35327), which includes audited financial
statements for the Registrant's latest fiscal year.
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year covered by the audited financial statements described in (a)
above.
(c) The description of the Registrant's Common Stock which is contained in
its Registration Statement on Form 8-A dated October 30, 1997 filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement 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 herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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.
Under Section 317 of the California Corporations Code, the Registrant has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Registrant's Bylaws also provide for mandatory indemnification of its
directors and executive officers and permissive indemnification of its employees
and agents, to the fullest extent permissible under California law.
The Registrant's Articles of Incorporation provide that the liability of its
directors for monetary damages shall be eliminated to the fullest extent
permissible under California law. Pursuant to California law, this includes
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its shareholders. These provisions
do not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under California law. In addition, each director will continue
to be subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under California
law. The provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Registrant has entered into agreements with its directors and certain of
its executive officers that require the Registrant to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated entities, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
The Registrant has obtained directors' and officers' liability insurance that
insures the Company's directors and officers against the cost of defense,
settlement or payment of a judgment under certain circumstances.
The Underwriting Agreement filed as Exhibit 1.1 to the Registrant's
Registration Statement on Form S-1 provides for indemnification by the
Underwriters of the Registrant and its officers and directors for certain
liabilities arising under the Securities Act or otherwise.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Registrant (incorporated by reference
to Exhibit 3.1 and 3.2 to the Registrant's Registration Statement on
Form S-1 (Commission File No. 333-35327) which became effective on
October 30, 1997 (the "Registration Statement on Form S-1")).
4.2 Registrant's Bylaws and amendments thereto (incorporated by reference
to Exhibit 3.3 and 3.4 to the Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (see page 6).
ITEM 9. UNDERTAKINGS.
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:
(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;
(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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do 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 Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
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(2) 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.
- ----
(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.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, 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 of 1933 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 of 1933 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,
Pericom Semiconductor Corporation certifies that it has reasonable grounds to
believe that it meets all 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 Jose, State of
California, on April 28, 1998.
PERICOM SEMICONDUCTOR CORPORATION
By: /s/ Alex Chi-Ming Hui
----------------------
Alex C. Hui
Chief Executive Officer, President
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, severally and not jointly, Patrick B. Brennan,
with full power to act alone, his true and lawful attorneys-in-fact, with the
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact may lawfully 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/ Alex Chi-Ming Hui Chief Executive Officer, President and April 28, 1998
- --------------------------------- Director (Principal Executive Officer)
Alex Chi-Ming Hui
/s/ Patrick B. Brennan Vice President, Finance and Administration April 28, 1998
- --------------------------------- (Principal Financial and Accounting Officer)
Patrick B. Brennan
/s/ Chi-Hung (John) Hui Vice President, Technology and Director April 28, 1998
- ---------------------------------
Chi-Hung (John) Hui
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Tay Tiam Song Director April 28, 1998
- ---------------------------------
Tay Tiam Song
/s/ Jeffrey Young Director April 28, 1998
- ---------------------------------
Jeffrey Young
</TABLE>
Page 7
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 and 3.2 to the Registrants' Registration
Statement on Form S-1 (Commission File No. 333-35327) which became
effective on October 30, 1997 (the "Registration Statement on Form S-
1")).
4.2 Registrant's Bylaws and amendments (incorporated by reference to
Exhibit 3.3 and 3.4 to the Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (See page 6).
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Exhibit 5.1
MORRISON & FOERSTER LLP
Palo Alto, California
April 28, 1998
Pericom Semiconductor Corporation
2380 Bering Drive
San Jose, CA 95131
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on April 28, 1998, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 2,700,000 shares of your
common stock, no par value (the "Common Stock") which will be issuable under the
1995 Stock Option Plan (the "Plan").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plan and the authorization of the issuance of the shares of Common Stock under
the Plan (the "Plan Shares") and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Plan, will be validly issued, fully
paid and nonassessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Pericom Semiconductor Corporation (the "Company") on Form S-8 of our report
dated July 31, 1997 (October 23, 1997 as to the third and fourth sentences of
Note 1) appearing in the Company's Registration Statement on Form S-1 (File No.
333-35327).
/s/ Deloitte & Touche LLP
San Jose, California
April 23, 1998
