As filed with the Securities and Exchange Commission on August 10, 1999.
Registration No. 333-___________
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)
THE CHERRY CORPORATION
1996 EMPLOYEE STOCK PURCHASE 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 (847) 662-9200
WAUKEGAN, ILLINOIS 60087
(Name and Address of Agent For Service)
<TABLE>
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CALCULATION OF REGISTRATION FEE
<CAPTION>
- --------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $1.00
per share 400,000 Shares $14.00 $5,600,000 $1,557.00
========================================================================================================
1 An undetermined number of additional shares may be issued if the anti-
dilution adjustment provisions of the plan 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 Common Stock as quoted
on the Nasdaq National Market on August 9, 1999.
</TABLE>
<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, 1999, 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
quarter period ended May 31, 1999, which has heretofore been filed by the
Company with the Commission pursuant to the 1934 Act.
(3) The description of the Company's 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.
None.
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 10th day of August, 1999.
THE CHERRY CORPORATION
By: /s/ Dan A. King
--------------------------------
Dan A. King
Vice President of Finance and
Administration
Treasurer and Secretary
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 10th day of August, 1999.
Signature Title
--------- -----
/s/ Peter B. Cherry Chairman of the Board, President
Peter B. Cherry and Director
/s/ Dan A. King Vice President of Finance and Administration,
Dan A. King Treasurer and Secretary
(principal financial officer)
/s/ Kevin G. Powers Corporate Controller and Assistant Secretary
Kevin G. Powers (principal accounting officer)
/s/ Alfred S. Budnick Vice President, President of Cherry Semiconductor
Alfred S. Budnick Corporation and Director
/s/ Peter A. Guglielmi Director
Peter A. Guglielmi
/s/ Robert B. McDermott Director
Robert B. McDermott
/s/ Charles W. Denny Director
Charles W. Denny
/s/ Dr. Thomas L. Martin, Jr. Director
Dr. Thomas L. Martin, Jr.
/s/ W. Ed Tyler Director
W. Ed Tyler
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4.1 Amended and Restated Certificate of Incorporation, as
amended (incorporated herein by reference to Exhibit
3(a) to Registrant's Form 8-K dated July 13, 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.
McDermott, Will & Emery
227 West Monroe Street, Suite 3100
Chicago, Illinois 60606-5096
August 10, 1999
The Cherry Corporation
3600 Sunset Avenue
Waukegan, Illinois 60087
RE: 400,000 Shares of Common Stock ($1.00 par value)
for the 1996 Employee Stock Purchase Plan
------------------------------------------------
Ladies and 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 400,000 shares of the Company's Common Stock, $1.00 par
value (the "Common Stock"), which may be purchased pursuant to the Plan.
We have examined or considered:
1. A copy of the Company's Amended and Restated Certificate of
Incorporation, as amended.
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 Plan.
<PAGE>
The Cherry Corporation
August 10, 1999
Page 2
5. A copy of the Plan.
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 shares of Common Stock
under the Plan has been duly taken, and the Common Stock, upon
acquisition pursuant to the terms of the Plan, 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,
/s/ McDermott, Will & Emery
McDermott, Will & Emery
WJQ/bjs
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 31, 1999
included in The Cherry Corporation's Form 10-K for the year ended February 28,
1999 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
July 30, 1999
