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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to
Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): July 13, 1994
THE CHERRY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-8955 39-2977756
(Commission File Number) (I.R.S. Employer Identification Number)
3600 Sunset Avenue, Waukegan, Illinois 60087
(Address of Principal Executive Offices) (Zip Code)
(708) 662-9200
(Registrant's Telephone Number, Including Area Code)
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ITEM 5. OTHER EVENTS
(a) On July 11, 1994, the stockholders of The Cherry
Corporation (the "Company") approved an amendment to
the Company's Certificate of Incorporation authorizing
the nonvoting Class A Common Stock and reclassifying
the Company's existing common stock into Class B Common
Stock. An Amended and Restated Certificate of
Incorporation, as set forth in Exhibit 3(a) attached
hereto, was filed on July 12, 1994 with the Delaware
Secretary of State.
The Company announced on July 12, 1994 a stock dividend
of one share of Class A Common Stock on each issued and
outstanding share of common stock, as described in the
Press Release attached hereto as Exhibit 99(a). On
July 12, 1994, the Company also filed a registration
statement for a public offering of Class A Common
Stock, as described in the press release attached
hereto as Exhibit 99(b).
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
EXHIBITS
Number Description of Exhibit
3(a) Amended and Restated Certificate of Incorporation
99(a) Press Release dated July 12, 1994 regarding the
stock dividend
99(b) Press Release dated July 12, 1994 regarding the filing
of a registration statement
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
THE CHERRY CORPORATION
By: /s/ Dan A. King
________________________
Dan A. King
Treasurer, Secretary and
Corporate Controller
Dated: July 13, 1994
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Exhibit 3(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE CHERRY CORPORATION
(The Corporation originally incorporated in the
State of Delaware under the name of
Delaware Cherry Electrical Products Corporation
on June 6, 1978.)
FIRST. The name of the Corporation is THE CHERRY
CORPORATION.
SECOND. The address of its registered office in the
State of Delaware is 32 Loockerman Square, Suite L-100, City of
Dover, County of Kent. The name of its registered agent at such
address is United States Corporation Company.
THIRD. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH. The total number of shares of all classes of
capital stock which the corporation shall have authority to issue
is thirty million (30,000,000) shares which shall be divided into
two classes as follows:
(a) Twenty Million (20,000,000) shares of
Class A Common Stock of the par value of one
dollar ($1.00) per share; and
(b) Ten Million (10,000,000) shares of Class
B Common Stock of the par value of one dollar
($1.00) per share.
Upon a Certificate of Amendment of Certificate of
Incorporation becoming effective pursuant to the General
Corporation Law of the State of Delaware (the "Effective
Time"), and without any further action on the part of the
Corporation or its stockholders, each share of the
Corporation's Common Stock, $1.00 par value, then issued
(including shares held in the treasury of the Corporation),
shall be automatically reclassified, changed and converted
into one (1) fully paid and non-assessable share of Class B
Common Stock, $1.00 par value. Any stock certificate that,
immediately prior to the Effective Time, represents shares
of Common Stock, $1.00 par value, will, from and after the
Effective Time, automatically and without the necessity of
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presenting the same for exchange, represent that number of
shares of Class B Common Stock equal the number of shares of
Common Stock represented by such certificate prior to the
Effective Time. As soon as practicable after the Effective
Time, the Corporation's transfer agent shall mail a
transmittal letter to each record holder who would be
entitled to receive a share of Class B Common Stock.
The Class A Common Stock and Class B Common Stock are
hereinafter collectively referred to as the "Common Stock."
The designations and powers, preferences and rights, and the
qualifications, limitations on restrictions thereof, of the
above classes of stock shall be as follows:
(a) Rights. Except as otherwise required by law or as
otherwise provided in this certificate, each share of Class
A Common Stock and each share of Class B Common Stock shall
have identical powers, preferences, qualifications,
limitations and other rights.
(b) Dividends. Subject to all of the rights of any
class of stock authorized after the effective date of this
provision of Article Fourth ranking senior to the Common
Stock as to dividends, dividends may be paid upon the Class
A Common Stock and the Class B Common Stock as and when
declared by the Board of Directors out of funds and other
assets legally available for the payment of dividends. If
and when dividends on the Class A Common Stock and the Class
B Common Stock are declared and payable from time to time by
the Board of Directors whether payable in cash, in property
or in shares of stock of the corporation, the holders of the
Class A Common Stock and the holders of the Class B Common
Stock shall be entitled to share equally, on a per share
basis, in such dividends, except that (1) a dividend or
distribution in cash or property on a share of Class A
Common Stock may be greater than any dividend or
distribution in cash or property on a share of Class B
Common Stock, and (2) dividends or other distributions
payable on the Common Stock in shares of any authorized
class or series of capital stock of the corporation may be
made (i) in shares of Class A Common Stock to the holders of
Class A Common Stock and in shares of Class B Common Stock
to the holders of Class B Common Stock, (ii) in shares of
Class A Common Stock to the holders of Class A Common Stock
and to the holders of Class B Common Stock, or (iii) in any
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other authorized class or series of capital stock to the
holders of both classes of Common Stock.
(c) Liquidation. In the event of any liquidation,
dissolution or winding up of the corporation, whether
voluntary or involuntary, and after the holders of any class
of stock authorized after the effective date of this
provision of Article Fourth ranking senior to the Common
Stock as to assets shall have been paid in full the amounts
to which such holders shall be entitled, or an amount
sufficient to pay the aggregate amount to which such holders
shall be entitled shall have been set aside for the benefit
of the holders of such stock, the remaining net assets of
the corporation shall be distributed pro rata to the holders
of both classes of the Common Stock.
(d) Merger and Consolidation. In the event of a
merger or consolidation of the corporation with or into
another entity (whether or not the corporation is the
surviving entity), the holders of Class A Common Stock shall
be entitled to receive the same per share consideration as
the per share consideration, if any, received by any holder
of the Class B Common Stock in such merger or consolidation.
(e) Voting. (1) Except as otherwise expressly
provided with respect to any other class of stock and except
as otherwise may be required by law or this certificate, the
Class B Common Stock shall have the exclusive right to vote
for the election of directors and for all other purposes and
each holder of Class B Common Stock shall be entitled to one
vote for each share of Class B Common Stock held. Except as
expressly provided in this certificate and except as
otherwise required by law, the Class A Common Stock shall
have no voting rights.
(2) The Class A Common Stock shall be entitled to
vote separately as a class only with respect to (i)
proposals to change the par value of the Class A Common
Stock, (ii) other amendments to this certificate that alter
or change the powers, preferences or special rights of the
Class A Common Stock so as to affect them adversely, and
(iii) such other matters as may require class voting under
the Delaware General Corporation Law.
(3) The number of authorized shares of Class A
Common Stock may be increased or decreased (but not below
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the number of shares then outstanding) by the affirmative
vote of the holders of a majority of the Class B Common
Stock.
(f) Stock Splits. The corporation may not split,
divide or combine the shares of either class of Common Stock
unless, at the same time, the corporation splits, divides or
combines, as the case may be, the shares of the other class
of Common Stock in the same proportion and manner.
(g) Conversion. (1) All outstanding shares of Class
A Common Stock may be converted into shares of Class B
Common Stock on a share-for-share basis by a resolution of
the Board of Directors if, as a result of the existence of
the Class A Common Stock, either the Class A Common Stock or
Class B Common Stock is, or both are, excluded from trading
on the Nasdaq National Market, or, if such shares are
listed on a national securities exchange, from trading on
the principal national securities exchange on which such
securities are traded.
(2) All outstanding shares of Class A Common
Stock shall be immediately converted into shares of Class B
Common Stock on a share-for-share basis if at any time the
number of outstanding shares of Class B Common Stock as
reflected on the stock transfer records of the corporation
falls below 10% of the aggregate number of outstanding
shares of Class A Common Stock and of Class B Common Stock.
For purposes of the immediately preceding sentence, any
shares of Common Stock repurchased by the corporation shall
no longer be deemed "outstanding" from and after the date of
repurchase.
(3) In the event of any conversion of the Class A
Common Stock pursuant to subdivision (g)(1) or (g)(2),
certificates which formerly represented outstanding shares
of Class A Common Stock will thereafter be deemed to
represent a like number of shares of Class B Common Stock
and all authorized shares of Common Stock shall consist of
only Class B Common Stock.
(h) (1) A Person, as defined in clause (6) of
paragraph (h) of this Article Fourth, who after the
Effective Time, acquires any shares of Class B Common Stock
may not exercise the voting power of that number of the
shares of Class B Common Stock so acquired that are deemed
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to be excess Class B Shares for purposes of this paragraph
(h). An acquisition of shares of Class B Common Stock
hereunder shall be deemed to include any shares of Class B
Common Stock that a Person acquires, directly or indirectly,
in one transaction or in a series of transactions, or with
respect to which the Person acts or agrees to act in concert
with any other Person. The number of shares of Class B
Common Stock deemed hereunder to be excess Class B Shares
shall be determined by application of the following formula:
(i) the percentage which the number of shares of
Class B Common Stock acquired by the Person since the
Effective Time, bears to the aggregate number of
outstanding shares of Class B Common Stock;
(ii) minus 10%;
(iii) minus the percentage which the number
of shares of Class A Common Stock acquired at an
equitable price by that Person after the Effective
Time bears to the aggregate number of outstanding
shares of Class A Common Stock;
(iv) times the aggregate number of
outstanding shares of Class B Common Stock.
For purposes of this determination, any shares of Class A
Common Stock or Class B Common Stock repurchased by the
Corporation since the last date on which a Person acquired
any shares of Class A Common Stock or Class B Common Stock
(whether in treasury or retired) shall be deemed still to be
outstanding. Determination of excess Class B Shares shall
be made as of the date that a Person, directly or
indirectly, alone or with others, otherwise would seek to
exercise or direct the exercise of voting power with respect
to those Class B Shares.
(2) Shares of Class A Common Stock shall have
been acquired at an equitable price for purposes of clause
(1) of this paragraph (h) only if they were acquired at a
price at least equal to the higher of:
(i) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the acquiring
Person for any shares of Class B Common Stock
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acquired by that Person within either 60 days
before or 60 days after the shares of Class A
Common Stock were acquired; or
(ii) the highest closing sale price during
the 30-day period immediately before the shares of
Class A Common Stock were acquired of a share of
Class B Common Stock on the NASDAQ National Market,
or, if the shares of Class B Common Stock
are not quoted on the NASDAQ National Market,
on the principal United States national
securities exchange on which the shares of Class B
Common Stock are listed, or, if the shares of
Class B Common Stock are not listed on any United
States national securities exchange, or, if no
quotations are available, the fair market value
during such 30-day period of a share of Class B
Common Stock as determined in good faith by the
Board of Directors of the Corporation.
If any of the consideration given by the Person for any
share of Class B Common Stock under subclause (i) of this
clause (2) was other than cash, the value of such non-cash
consideration shall be as determined in good faith by the
Board of Directors of the Corporation.
(3) An acquisition of a share of Class B Common
Stock shall not include for the purposes of clause (1) of
this paragraph (h) an acquisition by bequest or inheritance,
by operation of law upon the death of any individual, or by
any other transfer without valuable consideration, including
a gift that is made in good faith and not for the purpose of
circumventing this paragraph (h).
(4) Unless there are affirmative attributes of
concerted action, acting or agreeing to act in concert with
any other Person shall not include for purposes of clause
(1) of this paragraph (h) actions taken or agreed to be
taken by Persons acting in their official capacities as
directors or officers of the Corporation or actions by
Persons related by blood or marriage.
(5) To the extent that the voting power of any
share of Class B Common Stock cannot be exercised pursuant
to this paragraph (h), that share of Class B Common Stock
shall not be included in the determination of the voting
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power of the Corporation for any purpose under this
Certificate of Incorporation or the Delaware General
Corporation Law.
(6) For purposes of this subsection (h) of this
Article Fourth, the term "Person" means a natural person,
company, government, or any political subdivision, agency or
instrumentality of a government, or other entity.
(i) No Pre-emptive Rights. No stockholder of this
corporation shall by reason of his holding shares of any
class have any pre-emptive or preferential right to purchase
or subscribe to any shares of any class of this corporation,
now or hereafter to be authorized, or any notes, debentures,
bonds, or other securities convertible into or carrying
options or warrants to purchase shares of any class, now or
hereafter to be authorized, whether or not the issuance of
any such shares, or such notes, debentures, bonds or other
securities, would adversely affect the dividend or voting
rights of such stockholder, other than such rights, if any,
as the Board of Directors, in its discretion from time to
time may grant and at such price as the Board of Directors
in its discretion may fix; and the Board of Directors may
issue shares of any class of this corporation, or any notes,
debentures, bonds, or other securities convertible into or
carrying options or warrants to purchase shares of any
class, without offering any such shares of any class, either
in whole or in part, to the existing stockholders of any
class.
(j) Issuances and Repurchases of Common Stock. (1)
The Board of Directors shall have the power to issue and
sell all or any part of any class of stock herein or
hereafter authorized to such persons, firms, associations or
corporations, and for such consideration as the Board of
Directors shall from time to time, in its discretion,
determine, whether or not greater consideration could be
received upon the issue or sale of the same number of shares
of another class, and as otherwise permitted by law.
(2) The Board of Directors shall have the power
to purchase any class of stock herein or hereafter
authorized from such persons, firms, associations or
corporations, and for such consideration as the Board of
Directors shall from time to time, in its discretion,
determine, whether or not less consideration could be paid
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upon the purchase of the same number of shares of another
class, and as otherwise permitted by law.
FIFTH. The name and mailing address of the
incorporator is as follows:
Name Mailing Address
William J. Quinlan, Jr. 111 West Monroe Street
Chicago, Illinois 60603
SIXTH. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
empowered:
To make, alter or repeal the By-Laws of the
Corporation.
To provide indemnification and insurance to the full
extent not inconsistent with Delaware and other applicable
law.
To exercise all such powers and do all such acts as may
be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the laws of the State of
Delaware, this Certificate of Incorporation and the By-Laws
of the Corporation.
Any contract, transaction or act of the Corporation or
of the directors or of any committee which shall be ratified
by the holders of a majority of the shares of stock of the
Corporation present in person or by proxy and voting at any
annual meeting, or at any special meeting called for such
purpose, or by consent, shall, insofar as permitted by law
or by this Certificate of Incorporation, be as valid and as
binding as though ratified by every stockholder of the
Corporation.
SEVENTH. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of
the Corporation. Election of directors need not be by ballot
unless the By-Laws of the Corporation shall so provide.
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EIGHTH. In addition to the vote or consent of the
holders of the stock of the Corporation otherwise required by
law, in all cases, notwithstanding any provision to the contrary
in the Delaware General Corporation Law or any superseding
statute: (a) with respect to the proposed approval of any
agreement for the merger of this Corporation with or into any
other corporation or the consolidation of this Corporation with
any other corporation (other than a merger with a subsidiary of
the Corporation pursuant to Section 253 of the Delaware General
Corporation Law or any provision of the Delaware law superseding
said Section 253); (b) to authorize any sale, lease or exchange
of all or substantially all of the assets of the Corporation; (c)
to authorize the dissolution of the Corporation; the affirmative
vote or consent of the holders of two-thirds (2/3) of the
outstanding shares of stock of the Corporation entitled to vote
thereon shall be required to approve such agreement or to give
such authorization.
NINTH. Subject to Article Eighth hereof, the
provisions of this Certificate of this Certificate of
Incorporation may be amended, altered, changed or repealed if
such amendment, alteration, change or repeal shall receive the
affirmative vote or consent of the holders of not less than a
majority of the outstanding shares of stock of the Corporation
entitled to vote thereon.
TENTH. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware or (iv)
for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law of the State of Delaware
is amended after approval of this Article by the stockholders to
authorize the further elimination or limitation of the liability
of directors, then the liability of directors shall be eliminated
or limited to the full extent authorized by the General
Corporation Law of the State of Delaware, as so amended.
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Any repeal or modification of this Article shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
The amendment to ARTICLE FOURTH was duly adopted by the
stockholders of the Corporation at an annual meeting held on
July 11, 1994 in accordance with Section 242 of the General
Corporation Law of the State of Delaware and the restatement
was duly adopted by the Board of Directors on June 16, 1994
(subject to stockholder approval of the amendment to ARTICLE
FOURTH) in accordance with Section 245 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, THE CHERRY CORPORATION has caused
its corporate seal to be hereunto affixed and this certificate to
be signed by its President, and attested by its Secretary, this
11th day of July, 1994.
THE CHERRY CORPORATION
BY /s/ Peter B. Cherry
___________________________
President
Attest:
/s/ Dan A. King
_______________________________
Secretary
[Corporate Seal]
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Exhibit 99(b)
FOR: THE CHERRY CORPORATION (NASDAQ-CHER)
RELEASE: IMMEDIATE
CONTACT: Leigh Ann Dissser or Dan King
Public Communications Inc. The Cherry Corporation
(312) 558-1770 (708) 360-3541
THE CHERRY CORPORATION FILES REGISTRATION STATEMENT FOR PUBLIC
OFFERING OF NONVOTING CLASS A COMMON STOCK
WAUKEGAN, IL (July 12, 1994) -- The Cherry Corporation today
announced it has filed a registration statement with the
Securities and Exchange Commission for a public offering by the
Corporation of 2.5 million shares of nonvoting Class A Common
Stock.
Donaldson, Lufkin & Jenrette Securities Corporation and Cleary
Gull Reiland & McDevitt Inc. will manage the offering.
The Corporation has granted the underwriters an option for 30
days to purchase up to an additional 375,000 shares solely to
cover over-allotments.
A preliminary prospectus relating to the securities may be
obtained from the U.S. offices of either Donaldson, Lufkin &
Jenrette Securities Corporation, 140 Broadway, New York, New York
10005 or Cleary Gull Reiland & McDevitt Inc., 100 E. Wisconsin
Avenue, Suite 2700, Milwaukee, Wisconsin 53202.
The Cherry Corporation manufactures proprietary and custom
electrical switches, electronic keyboards and displays, and
semiconductors.
A registration statement relating to these securities has been
filed with the Securities and Exchange Commission, but has not
yet become effective. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration
statement becomes effective. This news release shall not
constitute either an offer to sell or a 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.
Exhibit 99(b)
FOR: THE CHERRY CORPORATION (NASDAQ-CHER)
RELEASE: IMMEDIATE
CONTACT: Leigh Ann Dissser or Dan King
Public Communications Inc. The Cherry Corporation
(312) 558-1770 (708) 360-3541
THE CHERRY CORPORATION FILES REGISTRATION STATEMENT FOR PUBLIC
OFFERING OF NONVOTING CLASS A COMMON STOCK
WAUKEGAN, IL (July 12, 1994) -- The Cherry Corporation today
announced it has filed a registration statement with the
Securities and Exchange Commission for a public offering by the
Corporation of 2.5 million shares of nonvoting Class A Common
Stock.
Donaldson, Lufkin & Jenrette Securities Corporation and Cleary
Gull Reiland & McDevitt Inc. will manage the offering.
The Corporation has granted the underwriters an option for 30
days to purchase up to an additional 375,000 shares solely to
cover over-allotments.
A preliminary prospectus relating to the securities may be
obtained from the U.S. offices of either Donaldson, Lufkin &
Jenrette Securities Corporation, 140 Broadway, New York, New York
10005 or Cleary Gull Reiland & McDevitt Inc., 100 E. Wisconsin
Avenue, Suite 2700, Milwaukee, Wisconsin 53202.
The Cherry Corporation manufactures proprietary and custom
electrical switches, electronic keyboards and displays, and
semiconductors.
A registration statement relating to these securities has been
filed with the Securities and Exchange Commission, but has not
yet become effective. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration
statement becomes effective. This news release shall not
constitute either an offer to sell or a 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.
