<PAGE>1
As filed with the Securities and Exchange Commission on December 10, 1998
Registration No. 333-___
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYPRESS SEMICONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 3901 North First Street 94-2885898
(State of Incorporation) San Jose, California 95134-1599 (I.R.S. Employer
(Address of principle Identification No.)
executive offices)
_______________
EMPLOYEE QUALIFIED STOCK PURCHASE PLAN
(Full title of the Plan)
_______________
T.J. RODGERS
President
CYPRESS SEMICONDUCTOR CORPORATION
3901 North First Street
San Jose, California 95134-1599
(408) 943-2600
(Name, address and telephone number of agent for service)
_______________
Copies to:
John A. Fore, Esq.
Don S. Williams, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Maximum Maximum
Maximum Offering Aggregate Amount of
Title of Securities Amount to be Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee(2)
Common Stock,
$0.01 par value per 2,500,000 $10.6875 $26,718,750.00 $7,427.81
Share
(1) Estimated in accordance with Rule 457(h) of the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee based upon the average of the high and low sale prices of
the Registrant's Common Stock as reported on the New York Stock Exchange on
December 8, 1998.
(2) Amount of registration fee was calculated pursuant to Section 6(b) of the
Securities Act which provides that the fee shall be .000278 multiplied by
the maximum aggregate price at which such securities are proposed to be
offered.
<PAGE>3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents and information heretofore filed by Cypress
Semiconductor Corporation (the "Registrant") with the Securities and
Exchange Commission are hereby incorporated by reference in this
registration statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 29, 1997, as amended by the Form 10-K/A filed on April 16, 1998
and the Form 10-K/A filed on December 2, 1998, filed pursuant to Section
13 of the Securities Exchange Act of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 30, 1998, June 29, 1998, and September 28, 1998, as amended by
the Forms 10-Q/A filed on December 2, 1998 for the quarters ended March 30,
1998, June 29, 1998 and September 28, 1998, respectively, filed pursuant to
the Exchange Act.
(c) The Registrant's Current Reports on Form 8-K filed on January 29, 1998,
March 16, 1998 and November 23, 1998 and the Registrant's Current Report on
Form 8-K/A filed on February 3, 1998 to amend the Form 8-K filed on January
29, 1998.
(d) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A dated August 30, 1988 filed pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating any such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this registration
statement and 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 in this
registration statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Article 11 of the Registrant's Certificate of Incorporation provides that,
to the fullest extent permitted by Delaware General Corporation Law, as the
same now exists or may hereafter be amended, a director shall not be personally
<PAGE>4
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director. Delaware law provides that directors of a
corporation will not be personally liable for monetary damages for breach of
their fiduciary duties as directors, except for liability (i) for any breach of
their duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
Article VI of the Registrant's Bylaws provides that the Registrant (i)
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Registrant) by reason of the fact that he is or was a
director or officer of the Registrant, or is or was serving at the request of
the Registrant as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, and (ii) may indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or contemplated action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Registrant) by reason of the fact that he is or was an employee or agent of the
Registrant, or is or was serving at the request of the Registrant as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
Bylaws provide that the termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Article VI of the Registrant's Bylaws also provides that the Registrant(i)
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Registrant to procure a judgment in its favor by reason of the fact that
he is or was a director or officer of the Registrant, or is or was serving at
the request of the Registrant as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, and (ii) may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Registrant to procure a judgment in its favor by reason of the fact that he is
or was an employee or agent of the Registrant, or is or was serving at the
request of the Registrant as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
<PAGE>5
the best interests of the Registrant except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Registrant unless and only to the extent
that the Delaware Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper.
The Bylaws also provide that, to the extent that a director or officer of
the Registrant has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith and to the extent that an employee or agent of the Registrant has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, he may be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
The Registrant's Bylaws also permit the Registrant to secure insurance on
behalf of any officer, director, employee or agent of the Registrant for any
liability arising out of his or her actions in such capacity, regardless of
whether the Bylaws would permit indemnification. The Registrant currently
maintains liability insurance for its officers and directors.
The Registrant has entered into agreements to indemnify its directors and
officers, in addition to the indemnification provided for in the Registrant's
Certificate of Incorporation and Bylaws. These agreements, among other things,
indemnify the Registrant's directors and officers for certain expenses
(including attorney's fees), judgments, fines and settlement amounts incurred
by any such person in any action or proceeding, including any action by or in
the right of the Registrant, arising out of such person's services as a
director or officer of the Registrant, any subsidiary of the Registrant or any
other company or enterprise to which the person provides services at the
request of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
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ITEM 8. EXHIBITS.
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Exhibit
Number Description
------- --------------------------------------------------------------
4.1 Employee Qualified Stock Purchase Plan and form of agreement
thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to the Registrant (contained in Exhibit
5.1).
24.1 Power of Attorney (see p. 9).
ITEM 9. UNDERTAKINGS.
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(a) 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
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, 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 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 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.
<PAGE>7
(c) 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 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>8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Cypress Semiconductor Corporation, 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 Jose, State of
California, on December 10, 1998.
CYPRESS SEMICONDUCTOR CORPORATION
By: /s/ T.J. Rodgers
----------------------
T.J. Rodgers
President, Chief Executive Officer and
Director (Principal Executive Officer)
<PAGE>9
POWER OF ATTORNEY
Each of the officers and directors of Cypress Semiconductor Corporation
whose signature appears below hereby constitutes and appoints T.J. Rodgers and
Emmanuel Hernandez, and each of them acting individually, their true and lawful
attorneys-in-fact and agents each with full power of substitution, each with
the power to act alone, to sign and execute on behalf of the undersigned any
amendment or amendments to this registration statement on Form S-8, and to
perform any acts necessary to be done in order to file such amendment, with
exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission, and each of the undersigned does hereby
ratify and confirm all that each of said attorneys-in-fact and agents, or any
substitutes, shall 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.
_______________________ ______________________________________ ________________
SIGNATURE TITLE DATE
_______________________
/s/ T.J. Rodgers President, Chief Executive Officer December 10,
- ----------------------- and Director 1998
T.J. Rodgers (Principal Executive Officer)
/s/ Emmanuel Hernandez Chief Financial Officer, December 10,
- ----------------------- Vice President, Finance and 1998
Emmanuel Hernandez Administration and Secretary
(Principal Financial and Accounting
Officer)
/s/ Alan F. Shugart Director December 10,
- ----------------------- 1998
Alan F. Shugart
/s/ John C. Lewis Director December 10,
- ----------------------- 1998
John C. Lewis
/s/ Fred B. Bialek Director December 10,
- ----------------------- 1998
Fred B. Bialek
/s/ Eric A. Benhamou Director December 10,
- ----------------------- 1998
Eric A. Benhamou
<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________________________________________________________________
EXHIBITS
_______________________________________________________________________________
REGISTRATION STATEMENT ON FORM S-8
CYPRESS SEMICONDUCTOR CORPORATION
<PAGE>2
INDEX TO EXHIBITS
Exhibit No. Description
_________________ _____________________________________________________________
4.1 Employee Stock Purchase Plan (and form of agreement
thereunder).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, counsel to the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, counsel to the Registrant
(contained in Exhibit 5.1).
24.1 Power of Attorney (see p.9).
<PAGE>1
EXHIBIT 4.1
CYPRESS SEMICONDUCTOR CORPORATION
EMPLOYEE QUALIFIED STOCK PURCHASE PLAN
AMENDED AND RESTATED EFFECTIVE AS OF MAY 15, 1998
The following constitute the provisions of the Employee Stock Purchase
Plan (herein called the "Plan") of Cypress Semiconductor Corporation (herein
called the "Company").
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the
intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Internal Revenue Code of 1986, as
amended. The provisions of the Plan shall, accordingly, be construed so as to
extend and limit participation in a manner consistent with the requirements of
that section of the Code.
2. Definitions.
(a) "Act" shall mean the Securities Exchange Act of 1934, as amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Common Stock" shall mean the Common Stock, no par value, of the
Company.
(e) "Company" shall mean Cypress Semiconductor Corporation, a Delaware
corporation.
(f) "Compensation" shall mean all regular straight time earnings, payments
for overtime, shift premium, incentive compensation, incentive
payments, bonuses and commissions (except to the extent that the
exclusion of any such items for all participants is specifically
directed by the Board or its committee).
(g) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous
Status as an Employee shall not be considered interrupted in the case
of a leave of absence agreed to in writing by the Company, provided
that such leave is for a period of not more than 90 days or
reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(h) "Designated Subsidiaries" shall mean the Subsidiaries which have been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(i) "Employee" shall mean any person, including an officer, who is
customarily employed for at least twenty (20) hours per week and more
than five (5) months in a calendar year for at least three (3) months
by the Company or one of its Designated Subsidiaries.
<PAGE>2
(j) "Exercise Date" shall mean the date one day prior to the date six (6)
months, twelve (12) months, eighteen (18) months or twenty-four (24)
months after the Offering Date of each Offering Period.
(k) "Exercise Period" shall mean a period commencing on an Offering Date
or on the day after an Exercise Date and terminating one day prior to
the date six (6) months later.
(l) "Offering Period" shall mean a period of twenty-four (24) months
consisting of four (4) six-month Exercise Periods during which options
granted pursuant to the Plan may be exercised.
(m) "Offering Date" shall mean the first day of each Offering Period of
the Plan.
(n) "Plan" shall mean this Employee Qualified Stock Purchase Plan.
(o) "Subsidiary" shall mean a corporation, domestic or foreign, of which
not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
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3. Eligibility.
(a) Any Employee as defined in paragraph 2 who shall be employed by the
Company on the date his participation in the Plan is effective shall
be eligible to participate in the Plan, subject to limitations imposed
by Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately
after the grant, such Employee (or any other person whose stock would
be attributed to such Employee pursuant to Section 425(d) of the Code)
would own stock and/or hold outstanding options to purchase stock
possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or of any
subsidiary of the Company, or (ii) which permits his rights to
purchase stock under all employee stock purchase plans of the Company
and its subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) of fair market value of such stock
determined at the time such option is granted) for each calendar year
in which such option is outstanding at any time.
4. Offering Periods. The plan shall be implemented by twenty-four (24)
month Offering Periods beginning every six (6) months. The Plan shall
continue thereafter until terminated in accordance with paragraph 20
hereof. Subject to the requirements of paragraph 20, the Board of
Directors of the Company shall have the power to change the duration of
Offering Periods with respect to future offerings without stockholder
approval if such change is announced at least fifteen (15) days prior
to the scheduled beginning of the first offering period to be affected.
<PAGE>3
5. Participation.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deduction on
the form provided by the Company and filing it with the Company's
payroll office prior to the applicable Offering Date, unless a later
time for filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given offering.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Offering Date and shall end on the Exercise Date
of the offering to which such authorization is applicable, unless
sooner terminated by the participant as provided in paragraph 11.
6. Payroll Deductions.
(a) At the time a participant files his subscription agreement, he shall
elect to have payroll deductions made on each payday during the
Offering Period in amounts from two (2%) to ten percent (10%) of the
Compensation which he received on the payday immediately preceding the
Offering Date. The aggregate of such payroll deductions during any
Offering Period shall not exceed ten percent (10%) of his aggregate
Compensation during said offering period.
(b) All payroll deductions made by a participant shall be credited to his
account under the Plan. A participant may not make any additional
payments into such account.
(c) A participant may discontinue his participation in the Plan as
provided in paragraph 11, or may decrease or increase the rate or
amount of his payroll deductions during the Offering Period (within
the limitations of paragraph 6(a)) by completing and filing with the
Company a new subscription agreement authorizing a change in the rate
or amount of payroll deductions; provided, however, that a participant
may not change the rate or amount of his payroll deductions more than
two (2) times in any one calendar year. The change in rate shall be
effective fifteen (15) days following the Company's receipt of the new
authorization. Subject to the limitations of paragraph 6(a), a
participant's subscription agreement shall remain in effect for
successive Offering Periods unless revised as provided herein or
terminated as provided in paragraph 11.
(d) Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and paragraph 3(b) herein, a
participant's payroll deductions may be decreased to 0% at such time
during any Exercise Period which is scheduled to end during the
current calendar year that the aggregate of all payroll deductions
accumulated with respect to such Exercise Period and any other
Exercise Period ending
A-2
within the same calendar year equal $21,250. Payroll deductions shall
recommence at the rate provided in such participant's subscription
agreement at the beginning of the first Exercise Period which is
scheduled to end in the following calendar year, unless terminated by
the participant as provided in paragraph 11.
<PAGE>4
7. Grant of Option.
(a) On the Offering Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period a number of
shares of the Company's Common Stock determined by dividing such
Employee's payroll deductions accumulated prior to such Exercise Date
and retained in the Participant's account as of the Exercise Date by
the lower of (i) eighty-five percent (85%) of the fair market value of
a share of the Company's Common Stock on the Offering Date or (ii)
eighty-five percent (85%) of the fair market value of a share of
the Company's Common Stock on the Exercise Date; provided, however,
that the maximum number of Shares an Employee may purchase during each
Offering Period shall be determined at the Offering Date by dividing
$100,000 by the fair market value of a share of the Company's Common
Stock on the Offering Date, and provided further that such purchase
shall be subject to the limitations set forth in paragraphs 3(b) and
13 hereof. Exercise of the option shall occur as provided in paragraph
8, unless the participant has withdrawn pursuant to paragraph 11, and
shall expire on the last day of the Offering Period. Fair market value
of a share of the Company's Common Stock shall be determined as
provided in paragraph 7(b) herein.
(b) The option price per share of the shares offered in a given Exercise
Period shall be the lower of: (i) eighty-five percent (85%) of the
fair market value of a share of the Common Stock of the Company on the
Offering Date; or (ii) eighty-five percent (85%) of the fair market
value of a share of the Common Stock of the Company on the Exercise
Date. The fair market value of the Company's Common Stock on a given
date shall be determined by the Board in its discretion; provided,
however, that where there is a public market for the Common Stock, the
fair market value per share shall be the closing price of the Common
Stock for such date on the New York Stock Exchange or on such other
stock exchange as the Company's Common Stock may be traded or, if not
traded on a stock exchange, as reported by the NASDAQ National Market
System, or, in the event the Common Stock is not listed on a stock
exchange or NASDAQ's National Market System, the fair market value per
share shall be the mean of the bid and asked prices of the Common
Stock reported for such date in over-the-counter trading.
8. Exercise of Option. Unless a participant withdraws from the Plan as
provided in paragraph 11, his option for the purchase of shares will be
exercised automatically on each Exercise Date of the Offering Period,
and the maximum number of full shares subject to option shall be
purchased for such participant at the applicable option price with the
accumulated payroll deductions in his account. Any amount remaining in
the participant's account after an Exercise Date shall be held in the
account until the next Exercise Date of the Offering Period, unless the
Offering Period has been oversubscribed or has terminated with such
Exercise Date, in which case such amount shall be refunded to the
participant. During a participant's lifetime, a participant's option to
purchase shares hereunder is exercisable only by him.
<PAGE>5
9. Delivery. As promptly as practicable after the Exercise Date of each
Exercise Period, the Company shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares
purchased upon exercise of his option. Any cash remaining to the
credit of a participant's account under the Plan after a purchase by
him of shares at the termination of each Exercise Period which is
insufficient to purchase a full share of Common Stock of the Company
shall be applied to the participant's account for the next Exercise
Period.
10. Automatic Transfer to Low Price Offering Period. In the event that the
fair market value of the Company's Common Stock is lower on an
Exercise Date than it was on the first Offering Date for that Offering
Period, all Employees participating in the Plan on the Exercise Date
shall be deemed to have withdrawn from the Offering Period immediately
after the exercise of their option on such Exercise Date and to have
enrolled as participants in a new Offering Period which begins on or
about the day following such Exercise Date. A participant may elect to
remain in the previous Offering Period by filing a written statement
declaring such election with the Company prior to the time of the
automatic change to the new Offering Period.
A-3
11. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all the payroll
deductions credited to his account and not yet used to exercise his
option under the Plan at any time by giving written notice to the
Company. All of the participant's payroll deductions credited to his
account will be paid to such participant promptly after receipt of
notice of withdrawal and such participant's option for the Offering
Period will be automatically terminated, and no further payroll
deductions for the purchase of shares will be made during the Offering
Period. If a participant withdraws from an Offering Period, payroll
deductions will not resume at the beginning of the succeeding Offering
Period unless the participant delivers to the Company a new
subscription agreement.
(b) Upon termination of the participant's Continuous Status as an Employee
prior to an Exercise Date for any reason, including retirement or
death, the payroll deductions credited to such participant's account
during the Offering Period but not yet used to exercise the option
will be returned to such participant or, in the case of his death, to
the person or persons entitled thereto under paragraph 15, and such
participant's option will be automatically terminated.
(c) In the event an Employee fails to remain in Continuous Status as an
Employee of the Company for at least twenty (20) hours per week during
an Offering Period in which the Employee is a participant, he will be
deemed to have elected to withdraw from the Plan and the payroll
deductions credited to his account will be returned to such
participant and such participant's option terminated.
<PAGE>6
(d) A participant's withdrawal from an Offering Period will not have any
effect upon his eligibility to participate in any similar plan which
may hereafter be adopted by the Company or in succeeding Offering
Periods which commence after the termination of the Offering Period
from which the participant withdraws.
(e) A participant's withdrawal from an offering will not have any effect
upon his eligibility to participate in any similar plan which may
hereafter be adopted by the Company.
12. Interest. No interest shall accrue on the payroll deductions of a
participant in the Plan.
13. Stock.
(a) The maximum number of shares of the Company's Common Stock which shall
be made available for sale under the Plan shall be 10,100,000 shares,
plus, commencing on the first day of the Company's 1999 fiscal year,
an annual increase equal to the lesser of (i) 3,000,000 shares, (ii)
1.5% of the Issued Shares (as defined below) as of the last day of the
immediately preceding fiscal year or (iii) a lesser amount determined
by the Board, all subject to adjustment upon changes in capitalization
of the Company as provided in paragraph 19. "Issued Shares" shall mean
the number of shares of Common Stock of the Company outstanding on
such date plus any shares reacquired by the Company during the fiscal
year that ends on such date. If the total number of shares which would
otherwise be subject to options granted pursuant to paragraph 7(a)
hereof on the Exercise Date exceeds the number of shares then
available under the Plan (after deduction of all shares for which
options have been exercised or are then outstanding), the Company
shall make a pro rata allocation of the shares remaining available for
option grant is as uniform a manner as shall be practicable and as it
shall determine to be equitable. In such event, the Company shall give
written notice of such reduction of the number of shares subject to
the option to each Employee affected thereby and shall similarly
reduce the rate of payroll deductions, if necessary.
(b) The participant will have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the
participant and his spouse.
14. Administration. The Plan shall be administered by the Board of
Directors of the Company or a committee appointed by the Board. The
administration, interpretation or application of the Plan by the Board
or its committee shall be final, conclusive and binding upon all
participants. Members of the Board who are eligible Employees are
permitted to participate in the Plan.
A-4
<PAGE>7
15. Designation of Beneficiary.
(a) A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to
the end of the Offering Period but prior to delivery to him of such
shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such
participant's death prior to the Exercise Date of the Offering Period.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant
and in the absence of a beneficiary validly designated under the Plan
who is living at the time of such participant's death, the Company
shall deliver such shares and/or cash to the executor or administrator
of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares and/or cash to
the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
16. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an
option or to receive shares under the Plan may be assigned,
transferred, pledged or otherwise disposed of in any way (other than
by will, the laws of descent and distribution or as provided in
paragraph 15 hereof) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to
withdraw funds in accordance with paragraph 11.
17. Use of Funds. All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll
deductions.
18. Reports. Individual accounts will be maintained for each participant
in the Plan. Statements of account will be given to participating
Employees promptly following the Exercise Date, which statements will
set forth the amounts of payroll deductions, the per share purchase
price, the number of shares purchased and the remaining cash balance,
if any.
19. Adjustments Upon Changes in Capitalization. Subject to any required
action by the stockholders of the Company, the number of shares of
Common Stock covered by each option under the Plan which has not yet
been exercised and the number of shares of Common Stock which have
been authorized for issuance under the Plan but have not yet been
placed under option, including the annual share replenishment limit of
three million shares set forth in Section 13, (collectively, the
"Reserves") as well as the price per share of Common Stock covered by
each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split or the
payment of a stock dividend (but only on the Common Stock) or any
<PAGE>8
other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue by the Company of shares
of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock
subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the offering period will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Board. In the
event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation,
each option under the Plan shall be assumed or an equivalent option shall
be substituted by such successor corporation or a parent or subsidiary of
such successor corporation, unless the Board determines, in the exercise
of its sole discretion and in lieu of such assumption or substitution,
that the participant shall have the right to exercise the option as to all
of the option stock, including shares as to which the option would not
otherwise be exercisable. If the Board makes an option fully
A-5
exercisable in lieu of assumption or substitution in the event of a merger
or sale of assets, the Board shall notify the participant that the option
shall be fully exercisable for a period of thirty (30) days from the date
of such notice, and the option will terminate upon the expiration of such
period.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves, as well as the price per
share of Common Stock covered by each outstanding option, in the event
that the Company effects one or more reorganizations, recapitalizations,
rights offerings or other increases or reductions of shares of its
outstanding Common Stock, and in the event of the Company being
consolidated with or merged into any other corporation.
20. Amendment or Termination. The Board of Directors of the Company may at
any time terminate or amend the Plan. No such termination can affect
options previously granted, nor may an amendment make any change in
any option theretofore granted which adversely affects the rights of
any participant. In addition, to the extent necessary to comply with
Rule 16b-3 under the Act or under Section 423 of the Code (or any
successor rule or provision or any other applicable law or
regulation), the Company shall obtain stockholder approval in such a
manner and to such a degree as so required.
21. Notices. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company at
the location, or by the person, designated by the Company for the
receipt thereof.
<PAGE>9
22. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply
with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Act,
the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company
with respect to such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by
any of the aforementioned applicable provisions of law.
23. Term of Plan. The Plan shall be come effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company. It shall continue for a term of twenty
(20) years unless sooner terminated under paragraph 20.
A-6
<PAGE>10
CYPRESS SEMICONDUCTOR CORPORATION
EMPLOYEE QUALIFIED STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
_________________ Original Application Date: _______________
_________________ Change in Payroll Deduction Rate
_________________ Change of Beneficiary
1. _______________ hereby elects to participate in the Cypress
Semiconductor Corporation Employee Qualified Stock Purchase Plan (the
"Stock Purchase Plan") and subscribes to purchase shares of the
Company's Common Stock, with par value $.01, in accordance with this
Subscription Agreement and the Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount
of ____% of my Compensation (not less than 2% nor more than 10%) on
each payday during the Offering Period in accordance with the Stock
Purchase Plan. Such deductions are to continue for succeeding Offering
Periods until I give written instructions for a change in or
termination of such deductions.
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable purchase price
determined in accordance with the Stock Purchase Plan. I further
understand that, except as otherwise set forth in the Stock Purchase
Plan, shares will be purchased for me automatically on each Exercise
Date of the Offering Period unless I otherwise withdraw from the Stock
Purchase Plan by giving written notice to the Company for such purpose.
4. Shares purchased for me under the Stock Purchase Plan will be deposited
into my account with Smith Barney of Menlo Park, California.
5. I understand that if I dispose of any shares received by me pursuant to
the Stock Purchase Plan within two years after the Offering Date (the
first day of the Offering Period during which I purchased such shares)
or within one year after the date on which such shares were delivered
to me, I may be treated for federal income tax purposes as having
received ordinary income at the time of such disposition in an amount
generally measured as the excess of the fair market value of the shares
at the time such shares were delivered to me over the price which I
paid for the shares, and that I may be required to provide income tax
withholding on that amount. I hereby agree to notify the Company in
writing within 30 days after the date of any such disposition. However,
if I dispose of such shares at any time after the expiration of the
two-year and one-year holding periods, I understand that I will be
treated for federal income tax purposes as having received income only
at the time of such disposition, and that such income will be taxed as
ordinary income only to the extent of an amount equal to the lesser of
(1) the excess of the fair market value of the shares at the time of
such disposition over the purchase price which I paid for the shares
under the option, or (2) the excess of the fair market value of the
shares over the option price, measured as if the option had been
exercised on the Offering Date. The remainder of the gain, if any,
recognized on such disposition will be taxed as capital gains.
<PAGE>11
6. I have received a copy of the Company's most recent prospectus which
describes the Stock Purchase Plan and a copy of the complete "Cypress
Semiconductor Employee Qualified Stock Purchase Plan." I understand
that my participation in the Stock Purchase Plan is in all respects
subject to the terms of the Plan.
7. I hereby agree to be bound by the terms of the Stock Purchase Plan. The
effectiveness of this Subscription Agreement is dependent upon my
eligibility to participate in the Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Stock Purchase Plan:
NAME: (Please print) _____________________________________
(First) (Middle) (Last)
_____________________________________
(Address)
_____________________________________
NAME: (Please print) _____________________________________
(First) (Middle) (Last)
_____________________________________
(Address)
_____________________________________
Employee's Social _____________________________________
Security Number: _____________________________________
Employee's Address:* _____________________________________
_____________________________________
_____________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT
THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:___________________ _____________________________________
Signature of Employee
_________________
* It is the participant's responsibility to notify the company's stock
administrator in the event of a change of address.
<PAGE>1
EXHIBIT 5.1
December 10, 1998
Cypress Semiconductor Corporation
3901 North First Street
San Jose, CA 95134
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about December 10, 1998, in
connection with the registration under the Securities Act of 1933, as amended,
of shares of your Common Stock reserved for issuance under the Employee
Qualified Stock Purchase Plan (the "Plan"). As your legal counsel, we have
examined the proceedings taken and are familiar with the proceedings proposed
to be taken by you in connection with the sale and issuance of said shares.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part of
and incorporated by reference into the Registration Statement on Form S-8 and
upon completion of the proceedings being taken in order to permit such
transactions 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 agreements which accompany the Plan, and in
accordance with the Company's Restated Certificate of Incorporation, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement, including the Prospectus constituting a part thereof,
and amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI,
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI, P.C.
------------------------------------------
<PAGE>1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 20, 1998 except as to
Note 9, which is as of March 6, 1998, appearing on page 42 of Cypress
Semiconductor Corporation's Annual Report on Form 10-K for the year ended
December 29, 1997.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
San Jose, California
December 9, 1998
