As filed with the Securities and Exchange Commission on November 1,
1995 Registration No. _____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE CHERRY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 36-2977756
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3600 SUNSET AVENUE
WAUKEGAN, ILLINOIS 60087
(Address of Principal Executive Offices)
1995 STOCK INCENTIVE PLAN
AND
1995 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plans)
DAN A. KING Telephone number,
VICE PRESIDENT OF FINANCE including area code,
TREASURER AND SECRETARY of agent for service:
3600 SUNSET AVENUE (708) 662-9200
WAUKEGAN, ILLINOIS 60087
(Name and Address of Agent For Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
- ----------------------------------------------------------------------------
Class A Common Stock,
par value $1.00
per share 1,000,000 Shares $12.438 $12,438,000 $4,289
- ----------------------------------------------------------------------------
(1) An undetermined number of additional shares may be issued if the anti-
dilution adjustment provisions of the plans become operative.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and (h) under the Securities Act of 1933 on
the basis of the average of the high and low prices of the Class A
Common Stock as quoted on the Nasdaq National Market on October 27, 1995.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
Registration Statement:
(1) The Annual Report of The Cherry Corporation (the "Company") on
Form 10-K for the year ended February 28, 1995, which has heretofore been
filed by the Company with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act").
(2) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended May 31, 1995, which has heretofore been filed by the Company with
the Commission pursuant to the 1934 Act.
(3) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended August 31, 1995, which has heretofore been filed by the Company
with the Commission pursuant to the 1934 Act.
(4) The description of the Company's Class A Common Stock contained
in the Company's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the 1934 Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post
effective amendment that 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 (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
-------- -------
subsequently filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the 1934 Act in each year during which the offering made by this
Registration Statement is in effect prior to the filing with the Commission of
the registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this Registration
Statement or be a part hereof from and after the filing of such Annual Report
on Form 10-K.
Any statement contained in an Incorporated Document 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 Incorporated Document modifies or supersedes such statement. Any such
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.
The securities to be offered are registered under Section 12(b) of
the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
Robert B. McDermott a director of the Company and of counsel at
McDermott, Will & Emery, a law firm acting as counsel to the Registrant, owns
20,000 shares of Class A Common Stock and 21,000 shares of Class B Common
Stock of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law and the Amended
and Restated By-laws of the Company provide for indemnification of directors
and officers for expenses (including reasonable amounts paid in settlement)
incurred in defending actions brought against them.
The Company's Amended and Restated Certificate of Incorporation
contains a provision that eliminates, to the fullest extent permitted by
Delaware law, the personal liability of each director of the Company to the
Company and its stockholders for monetary damages for certain breaches of
fiduciary duty. This provision does not affect the director's liability for
monetary damages for breaches of the duty of loyalty, actions or omissions not
in good faith, knowing violation of law or intentional misconduct, willful or
negligent conduct in approving an unlawful dividend, stock repurchase or
redemption or obtaining any improper personal benefit.
The Company maintains directors and officers liability insurance
covering all directors and officers of the Company against claims arising out
of the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
Item 9. Undertakings.
The 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 distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "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) That, for the purposes of determining any liability under the
Act, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934
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.
(4) 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.
(5) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned registrant 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 Waukegan, State of
Illinois, on the 17th day of October, 1995.
THE CHERRY CORPORATION
By:\s\ Peter B. Cherry
-------------------------------------
Peter B. Cherry,
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of The Cherry
Corporation, hereby severally constitute Peter B. Cherry and Dan A. King, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
amendments (including post-effective amendments) to said Registration
Statement, and generally to do all such things in our name and behalf in the
capacities indicated below to enable The Cherry Corporation to comply with
the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any
of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 17th day of October, 1995.
Signature Title
--------- -----
\s\Peter B. Cherry Chairman of the Board, Chief Executive
- ----------------------------- Officer, President and Director
Peter B. Cherry
\s\Walter L. Cherry Director
- -----------------------------
Walter L. Cherry
\s\Alfred S. Budnick Vice President and Director
- -----------------------------
Alfred S. Budnick
\s\Dan A. King Vice President of Finance, Treasurer and
- ----------------------------- Secretary
Dan A. King (Principal Financial Officer)
\s\Kevin G. Powers Corporate Controller and Assistant
- ----------------------------- Secretary
Kevin G. Powers (Principal Accounting Officer)
\s\Peter A. Guglielmi Director
- -----------------------------
Peter A. Guglielmi
\s\Thomas L. Martin, Jr. Director
- ------------------------------
Thomas L. Martin, Jr.
\s\Robert B. McDermott Director
- ----------------------------
Robert B. McDermott
\s\Charles W. Denny Director
- -----------------------------
Charles W. Denny
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4.1 The Cherry Corporation 1995 Stock Incentive Plan
(incorporated herein by reference to Exhibit A to
Registrant's Proxy Statement dated May 19, 1995).
4.2 The Cherry Corporation 1995 Nonemployee Director Stock Option
Plan (incorporated herein by reference to Exhibit B to
Registrant's Proxy Statement dated May 19, 1995).
4.3 Amended and Restated Certificate of Incorporation, as
currently in effect (incorporated herein by reference to
Exhibit 3(a) to Registrant's Form 8-K dated July 6, 1994).
4.4 Amended and Restated By-Laws of the Registrant as currently
in effect (incorporated herein by reference to Exhibit 3(b) to
Registrant's Form 8-K dated July 6, 1994.)
5* Opinion (including consent) of McDermott, Will & Emery.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of McDermott, Will & Emery (included in Exhibit 5).
24* Power of Attorney (included on signature page).
*Filed herewith.
<PAGE>
Exhibit 5
November 1, 1995
The Cherry Corporation
3600 Sunset Avenue
Waukegan, IL 60087
RE: 1,000,000 Shares of Class A Common Stock
($1.00 par value) for the 1995 Stock
Incentive Plan and the 1995 Nonemployee
Director Stock Option Plan (the "Plans")
-----------------------------------------
Gentlemen:
We have acted as counsel for The Cherry Corporation (the "Company") in
connection with the preparation and filing of a Registration Statement on Form
S-8 (the "Registration Statement") for the registration under the Securities
Act of 1933, as amended, of 1,000,000 shares of the Company's Class A Common
Stock, $1.00 par value (the "Class A Common Stock"), which may be purchased
pursuant to the Plans.
We have examined or considered:
1. A copy of the Company's Amended and Restated Certification of
Incorporation.
2. The By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State of Delaware, as of
a recent date, as to the good standing of the Company in that state.
4. A copy of resolutions duly adopted by the Board of Directors of the
Company relating to the Plans.
5. A copy of each of the Plans.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion.
Based on the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) All legal and corporate proceedings necessary for the authorization,
issuance and delivery of the states of Class A Common stock under
the Plans have been duly taken, and the Class A Common Stock, upon
acquisition pursuant to the terms of the Plans, will be duly
authorized, legally and validly issued, fully paid and nonassessable.
We hereby consent to all references to our Firm in the Registration Statement
and to the filing of this opinion by the company as an Exhibit to the
Registration Statement.
Very truly yours,
McDermott, Will & Emery
-----------------------
McDermott, Will & Emery
<PAGE>
Consent of Independent Public Accountants Exhibit 23.1
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated April 12,
1995, included in The Cherry Corporation Form 10-K for the year ended
February 28, 1995 and to all references to our Firm included in this
Registration Statement.
Arthur Andersen LLP
-------------------
Arthur Andersen LLP
Chicago, Illinois
November 1, 1995
