<PAGE> 1
As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-
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 94-2885898
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3901 NORTH FIRST STREET
SAN JOSE, CA 95118
(408) 943-2600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
GALVANTECH, INC. 1995 EQUITY INCENTIVE PLAN
(FULL NAME OF PLAN)
T.J. RODGERS
PRESIDENT
CYPRESS SEMICONDUCTOR CORPORATION
3901 NORTH FIRST STREET
SAN JOSE, CA 95134
(408) 943-2600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
LARRY SONSINI, ESQ.
PETER BERGMAN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
(shares reserved for future
grant) (1)..................... 103,582 $44.00 $4,557,600.13 $1,203.21
=============================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457 (h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee. The
computation is based upon the average of the high and low price as reported
on the Nasdaq National Market on March 16, 2000.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
January 2, 2000, filed pursuant to Section 13 of the Securities Exchange Act
of 1934;
(b) The Registrant's Current Report on Form 8-K filed on March 9, 2000; and
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A dated August 30, 1998 filed pursuant to
Section 12(b) 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 subsequent to the filing 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 de-registers all securities
then remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 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.
II-1
<PAGE> 3
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 of 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 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.
II-2
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMS.
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.1 Galvantech, Inc. 1995 Equity Incentive Plan.
5.1 Opinion of counsel as to legality of Securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
</TABLE>
ITEM 9. UNDERTAKINGS.
(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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
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, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
II-3
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the Delaware General Corporations Law, the
Certificate of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and its officers
and directors, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act 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.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
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 San Jose, State of California, on March 21, 2000.
CYPRESS SEMICONDUCTOR CORPORATION
By: /s/ T. J. RODGERS
--------------------------------------
T. J. Rodgers
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints T. J. Rodgers and Emmanuel
Hernandez and each of them acting individually, their attorneys-in-fact and
agents, each with the power of substitution, for him in any and all capacities,
to sign any amendments to this Registration Statement on Form S-8 and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and conforming all
that each said attorneys-in-fact, or his substitute or substitutes, may 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 date indicated.
Date: March 21, 2000 /s/ T. J. RODGERS
-----------------------------------------
T. J. Rodgers, President,
Chief Executive Officer and Director
(Principal Executive Officer)
Date: March 21, 2000 /s/ EMMANUEL HERNANDEZ
-----------------------------------------
Emmanuel Hernandez, Chief Financial
Officer, Vice President, Finance and
Administration and Secretary
(Principal Financial & Accounting
Officer)
Date: March 21, 2000 /s/ ALAN F. SHUGART
-----------------------------------------
Alan F. Shugart, Director
Date: March 21, 2000 /s/ JOHN C. LEWIS
-----------------------------------------
John C. Lewis, Director
II-5
<PAGE> 7
Date: March 21, 2000 /s/ FRED B. BIALEK
-----------------------------------------
Fred B. Bialek, Director
Date: March 21, 2000 /s/ ERIC A. BENHAMOU
-----------------------------------------
Eric A. Benhamou, Director
II-6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.1 Galvantech, Inc. 1995 Equity Incentive Plan.
5.1 Opinion of counsel as to legality of Securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
</TABLE>
II-7
<PAGE> 1
EXHIBIT 4.1
GALVANTECH, INC.
1995 EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the Plan is to provide incentives to attract,
retain and motivate eligible persons whose present and potential contributions
are important to the success of Galvantech, Inc., a California corporation (the
"Company"), and its Parents and Subsidiaries, by offering them an opportunity to
participate in the Company's future performance through awards of Options and
Restricted Stock. Capitalized terms not defined in the text are defined in
Section 22.
2. Shares Subject To The Plan.
2.1 Number Of Shares Available. Subject to Sections 2.2 and 16,
the total number of Shares reserved and available for grant and issuance
pursuant to the Plan shall be 3,660,000 Shares. Subject to Sections 2.2 and 15,
Shares shall again be available for grant and issuance in connection with future
Awards under the Plan that (a) are subject to issuance upon exercise of an
Option but cease to be subject to such Option for any reason other than exercise
of such Option, (b) are subject to an Award granted hereunder but are forfeited
or are repurchased by the Company at the original price, or (c) are subject to
an Award that otherwise terminates without Shares being issued.
2.2 Adjustment Of Shares. In the event that the number of
outstanding Shares is changed by a stock dividend, recapitalization, stock
split, reverse stock split, subdivision, combination, reclassification or
similar change in the capital structure of the Company without consideration,
then (a) the number of Shares reserved for issuance under the Plan, (b) the
Exercise Prices of and number of Shares subject to outstanding Options, and (c)
the number of Shares subject to other outstanding Awards, shall be
proportionately adjusted, subject to any required action by the Board or the
shareholders of the Company and compliance with applicable securities laws;
provided, however, that fractions of a Share shall not be issued but shall
either be paid in cash at their Fair Market Value or shall be rounded up to the
nearest Share, as determined by the Committee; and provided, further, that the
Exercise Price of any Option may not be decreased to below the par value of the
Shares, if any.
3. Eligibility. ISOs (as defined in Section 5) may be granted only to
employees (including officers and directors who are also employees) of the
Company or of a Parent or Subsidiary of the Company. NQSO's (as defined in
Section 5) may be granted to employees, officers, directors, consultants,
independent contractors and advisers of the Company or any Parent or Subsidiary
of the Company, provided such consultants, independent contractors and advisers
render bona fide services not in connection with the offer and sale of
securities in a capital-raising transaction. A person may be granted an Award
more than once under the Plan.
4. Administration.
4.1 Committee Authority. The Plan shall be administered by a
Committee appointed by the Board or by the Board acting as the Committee.
Subject to the general purposes, terms and conditions of the Plan, and to the
direction of the Board, the Committee shall have full power to implement and
carry out the Plan. The Committee shall have the authority to:
(a) construe and interpret the Plan, any Award Agreement and
any other agreement or document executed pursuant to the Plan;
<PAGE> 2
(b) prescribe, amend and rescind rules and regulations
relating to the Plan;
(c) select persons to receive Awards and the number of
shares subject to Awards they are to receive;
(d) determine the form and terms of Awards;
(e) determine whether Awards will be granted singly, or as
alternatives to, any other incentive or compensation plan of the Company or any
Parent or Subsidiary of the Company;
(f) grant waivers of Plan or Award conditions;
(g) determine the vesting and exercisability of Awards;
(h) correct any defect, supply any omission, or reconcile
any inconsistency in the Plan, any Award or any Award Agreement; and
(i) make all other determinations necessary or advisable for
the administration of the Plan.
4.2 Committee Discretion. Any determination made by the Committee
with respect to any Award shall be made in its sole discretion at the time of
grant of the Award or, unless in contravention of any express term of the Plan
or Award, at any later time, and such determination shall be final and binding
on the Company and all persons having an interest in any Award under the Plan.
The Committee may delegate to one or more officers of the Company the authority
to grant an Award under the Plan to Participants who are not Insiders of the
Company.
4.3 Exchange Act Requirements. If the Company is subject to the
Exchange Act, the Company will take appropriate steps to comply with the
disinterested director requirements of Section 16(b) of the Exchange Act,
including but not limited to, the appointment by the Board of a Committee
consisting of not less than two persons (who are members of the Board), each of
whom is a Disinterested Person.
5. Options. The Committee may grant Options to eligible persons and
shall determine whether such Options shall be Incentive Stock Options within the
meaning of the Code ("ISOs") or Nonqualified Stock Options ("NQSOs"), the number
of Shares subject to the Option, the Exercise Price of the Option, the period
during which the Option may be exercised, and all other terms and conditions of
the Option, subject to the following:
5.1 Form Of Option Grant. Each Option granted under the Plan
shall be evidenced by a Stock Option Agreement which shall expressly identify
the Option as an ISO or NQSO ("Option Agreement"), and be in such form and
contain such provisions (which need not be the same for each Participant) as the
Committee shall from time to time approve, and which shall comply with and be
subject to the terms and conditions of the Plan.
5.2 Date Of Grant. Unless otherwise specified by the committee,
the date of grant of an Option shall be the date on which the Committee makes
the determination to grant such Option. The Option Agreement and a copy of the
Plan will be delivered to each Participant within a reasonable time after the
granting of an Option.
2
<PAGE> 3
5.3 Exercise Period. Options shall be exercisable within the
times or upon the events determined by the Committee as set forth in the Stock
Option Agreement; provided, however, that no Option shall be exercisable after
the expiration of 10 years from the date of grant of the Option; provided,
further, that no Option granted to a person who directly or by attribution
(within the meaning of Section 424(d) of the Code) owns more than 10% of the
total combined voting power of all classes of stock of the Company or any Parent
or Subsidiary of the Company (a "Ten Percent Shareholder") shall be exercisable
after the expiration of 5 years from the date of grant of the Option. The
Committee also may provide for Options to become exercisable at one time or from
time to time, periodically or otherwise, in such number or percentage as the
Committee determines; provided, however, that the Option shall become fully
exercisable within 5 years from the date of grant with at least 20% of the total
Shares first becoming exercisable at the end of each of the 5 years; provided,
further, that Options granted to an Insider will not be exercisable before 6
months after the date of grant.
5.4 Exercise Price. The Exercise Price of any Option shall be
determined by the Committee when the Option is granted and may be not less than
85% of the Fair Market Value of the Shares on the date of grant; provided,
however, that (i) the Exercise Price of an ISO shall not be less than 100% of
the Fair Market Value of the Shares on the date of grant and (ii) the Exercise
Price of any Option granted to a Ten Percent Shareholder shall not be less than
110% of the Fair Market Value of the Shares on the date of grant. Payment for
the Shares purchased shall be made in accordance with Section 7.
5.5 Method Of Exercise. Options may be exercised only by delivery
to the Company of a written notice of exercise (the "Notice of Exercise") in a
form approved by the Committee (which need not be the same for each
Participant), stating the number of Shares being purchased, the additional
restrictions imposed on the Shares, if any, and such representations and
agreements regarding a Participant's investment intent and access to
information, if any, as may be required or desirable by the Company to comply
with applicable securities laws, together with payment in full of the Exercise
Price for the number of Shares being purchased.
5.6 Termination. Notwithstanding the exercise periods set forth
in the Option Agreement, exercise of an Option shall always be subject to the
following:
(a) If a Participant is Terminated for any reason except
death or Disability, then such Participant may exercise his or her Options (only
to the extent that such Options would have been exercisable upon the Termination
Date) no later than 3 months after the Termination Date (or such shorter time
period, not less than 30 days, as may be specified in the Stock Option
Agreement) but in no event later than the expiration date of the Options
specified in the Option Agreement.
(b) If a Participant is Terminated because of death or
Disability, then such Participant (or such Participant's legal representative or
authorized assignee) may exercise such Participant's Options (only to the extent
that such Options would have been exercisable by such Participant on the
Termination Date) no later than 12 months after the Termination Date (or such
shorter time period, not less than 6 months, as may be specified in the Stock
Purchase Agreement), but in no event later than the expiration date of the
Options; provided, however, that the tax treatment available pursuant to Section
442 of the Code upon exercise of an ISO will not be available to a Participant
(or such representative or assignee) who exercises such ISO more than 3 months
after the Participant is Terminated for any reason except death or permanent and
total disability within the meaning of Section 22(e)(2) of the Code.
5.7 Limitations On Exercise. The Committee may specify a
reasonable minimum number of Shares that may be purchased on any exercise of an
Option, provided that such minimum
3
<PAGE> 4
number will not prevent a Participant from exercising the Option for the full
number of Shares for which it is then exercisable.
5.8 Limitations On ISOs. The aggregate Fair Market Value
(determined as of the date of grant) of Shares (together with stock of Parents
and Subsidiaries) with respect to which ISOs are exercisable for the first time
by a Participant during any calendar year (under the Plan or under any other
incentive stock option plan of the Company or any Parent or Subsidiary of the
Company) shall not exceed $100,000. If the Fair Market Value of Shares on the
date of grant with respect to which ISOs are exercisable for the first time by a
Participant during any calendar year exceeds $100,000, the Options for the first
$100,000 worth of Shares to become exercisable in such calendar year shall be
ISOs and the Options for the amount in excess of $100,000 that become
exercisable in that calendar year shall be NQSOs. In the event that the Code or
the regulations promulgated thereunder are amended after the Effective Date (as
defined in Section 16) of the Plan to provide for a different limit on the Fair
Market Value of Shares permitted to be subject to ISOs, such different limit
shall be automatically incorporated herein and shall apply to any Options
granted after the effective date of such amendment.
5.9 Modification, Extension Or Renewal. The Committee may modify,
extend or renew outstanding Options and authorize the grant of new Options in
substitution therefor, provided that any such action may not, without the
written consent of a Participant, impair any of such Participant's rights under
any Option previously granted. Any outstanding ISO that is modified, extended,
renewed or otherwise altered shall be treated in accordance with Section 424(h)
of the Code. The Committee may reduce the Exercise Price of outstanding Options
without the consent of Participants affected by a written notice to them;
provided, however, that the Exercise Price may not be reduced below the minimum
Exercise Price that would be permitted under Section 5.4 for Options granted on
the date the action is taken to reduce the Exercise Price; provided, further,
that the Exercise Price shall not be reduced below the par value of the Shares,
if any.
5.10 No Disqualification. Notwithstanding any other provision in
the Plan, no term of the Plan relating to ISOs shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be
exercised, so as to disqualify the Plan under Section 422 of the Code or,
without the consent of the Participant affected, to disqualify any ISO under
Section 422 of the Code.
6. Restricted Stock. The Committee may grant Restricted Stock Awards to
eligible persons and shall shall determine to whom an offer will be made, the
number of Shares the person may purchase, the price to be paid (the "Purchase
Price"), the restrictions to which the Shares shall be subject, and all other
terms and conditions of the Restricted Stock Award, subject to the following:
6.1 Form of Restricted Stock Award. All purchases under a
Restricted Stock Award made pursuant to the Plan shall be evidenced by an Award
Agreement ("Restricted Stock Purchase Agreement") that shall be in such form
(which need not be the same for each Participant) as the Committee shall from
time to time approve, and shall comply with and be subject to the terms and
conditions of the Plan. The offer of Restricted Stock shall be accepted by the
Participant's execution and delivery of the Restricted Stock Purchase Agreement
and full payment for the Shares to the Company within 30 days from the date the
Restricted Stock Purchase Agreement is delivered to the person. If such person
does not execute and deliver the Restricted Stock Purchase Agreement along with
full payment for the Shares to the Company within 30 days, then the offer shall
terminate, unless otherwise determined by the Committee.
6.2 Purchase Price. The Purchase Price of Shares sold pursuant to a
Restricted Stock Award shall be determined by the Committee and shall be at
least 85% of the Fair Market Value of the Shares when the Restricted Stock Award
is granted, except in the case of a sale to a Ten Percent Shareholder, in
4
<PAGE> 5
which case the Purchase Price shall be 100% of the Fair Market Value. Payment of
the Purchase Price may be made in accordance with Section 7.
6.3 Restrictions. Restricted Stock Awards shall be subject to such
restrictions as the Committee may impose. The Committee may provide for the
lapse of such restrictions in installments and may accelerate or waive such
restrictions, in whole or part, based on length of service, performance or such
other factors or criteria as the Committee may determine.
7. Payment For Shares.
7.1 Payment. Payment for Shares purchased pursuant to the Plan
may be made in cash (by check) or, where expressly approved by the Committee at
the time of exercise or other purchase for a Participant and where permitted by
law:
(a) by cancellation of indebtedness of the Company to such
Participant;
(b) by surrender of Shares that either: (i) have been owned
by such Participant for more than 6 months and have been paid for within the
meaning of SEC Rule 144 (and, if such shares were purchased from the Company by
use of a promissory note, such note has been fully paid with respect to such
Shares); or (ii) were obtained by such Participant in the open public market;
and in either case are clear of all liens, claims, security interests, or other
encumbrances;
(c) by tender of a full recourse promissory note having such
terms as may be approved by the Committee and bearing interest at a rate
sufficient to avoid imputation of income under Sections 483 and 1274 of the
Code; provided, however, that Participants who are not employees of the Company
shall not be entitled to purchase Shares with a promissory note unless the note
is adequately secured by collateral other than the Shares; provided, further,
that the portion of the Exercise Price equal to the par value of the Shares, if
any, must be paid in cash;
(d) by waiver of compensation due or accrued to such
Participant for services rendered; or
(e) by any combination of the foregoing.
7.2 Loan Guarantees. The Committee may help a Participant pay for
Shares purchased under the Plan by authorizing a guarantee by the Company of a
third-party loan to such Participant.
7.3 Withholding Taxes. Whenever Shares are to be issued in
satisfaction of Awards granted under the Plan, the Company may require a
Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. Such amount shall be paid in cash,
by check payable to the order of the Company, or in such other form that is
expressly approved by the Committee on its sole discretion.
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8. Privileges Of Stock Ownership.
8.1 Voting And Dividends. No Participant shall have any of the
rights of a shareholder with respect to any Shares until the Shares are issued
to such Participant. After Shares are issued to a Participant, such Participant
shall be a shareholder and have all the rights of a shareholder with respect to
such Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; provided, however, that
if such Shares are Restricted Stock, then any new, additional or different
securities the Participant may become entitled to receive with respect to such
Shares by virtue of a stock dividend, stock split or any other change in the
corporate or capital structure of the Company shall be subject to the same
restrictions as the Restricted Stock; provided, further, that the Participant
shall have no right to retain such dividends or distributions with respect to
Shares that are repurchased at the Participant's original Purchase Price
pursuant to Section 10.
8.2 Financial Statements. The Company shall provide financial
statements to each Participant prior to such Participant's purchase of Shares
under the Plan, and to each Participant annually during the period such
Participant has Options outstanding; provided, however, the Company shall not be
required to provide such financial statements to Participants whose services in
connection with the Company assure them access to equivalent information.
9. Transferability. Awards granted under the Plan, and any interest
therein, shall not be transferable or assignable by any Participant, and may not
be made subject to execution, attachment or similar process, otherwise than by
will or by the laws of descent and distribution. During the lifetime of a
Participant an Award shall be exercisable only by such Participant, and any
elections with respect to an Award may be made only by such Participant.
10. Restrictions On Shares. At the discretion of the Committee, the
Company may reserve to itself and/or its assignee(s) in the Award Agreement (a)
a right of first refusal to purchase all Shares that a Participant (or a
subsequent transferee) may propose to transfer to a third party, and/or (b) a
right to repurchase a portion of or all Shares held by a Participant following
such Participant's Termination after the later of such Participant's Termination
Date and the date such Participant purchases Shares under the Plan, for cash or
cancellation of purchase money indebtedness at:
(a) with respect to Shares that are "Vested" (as defined in the
Award Agreement), the higher of: (1) Participant's original Purchase Price, or
(2) the Fair Market Value of such Shares on Participant's Termination Date,
provided that such right of repurchase terminates when the Company's securities
become publicly traded; or
(b) with respect to Shares that are not "Vested" (as defined in
the Award Agreement), at the Participant's original Purchase Price, provided
that the right to repurchase at the original Purchase Price lapses at the rate
of at least 20% per year over 5 years from the date the Shares were purchased,
and if the right to repurchase is assignable, the assignee must pay the Company,
upon assignment of the right to repurchase, cash equal to the excess of the Fair
Market Value of the Shares over the original Purchase Price.
11. Certificates. All certificates for Shares or other securities
delivered under the Plan shall be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the SEC or any stock
exchange or automated quotation system upon which the Shares may be listed.
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12. Escrow; Pledge Of Shares. To enforce any restrictions on a
Participant's Shares contained in the Plan or the Award Agreement, the Committee
may require such Participant to deposit all certificates, together with stock
powers or other instruments of transfer approved by the Committee, appropriately
endorsed in blank, with the Company or an agent designated by the Company to
hold in escrow until such restrictions have lapsed or terminated, and the
Committee may cause a legend or legends referencing such restrictions to be
placed on the certificates. Any Participant who is permitted to execute a
promissory note as partial or full consideration for purchase of Shares under
the Plan shall be required to pledge and deposit with the Company all or part of
the Shares so purchased as collateral to secure the payment of such
Participant's obligation to the Company under the promissory note; provided,
however, that the Committee may require or accept other or additional forms of
collateral to secure the payment of such obligation and, in any event, the
Company shall have full recourse against such Participant under the promissory
note notwithstanding any pledge of such Participant's Shares or other
collateral. In connection with any pledge of the Shares, a Participant shall be
required to execute and deliver a written pledge agreement in such form as the
Committee shall from time to time approve. The Shares purchased with the
promissory note may be released from the pledge on a pro rata basis as the
promissory note is paid.
13. Exchange And Buyout Of Options. The Committee may, at any time or
from time to time, authorize the Company, with the consent of the respective
Participants, to issue new Awards in exchange for the surrender and cancellation
of any or all outstanding Awards. The Committee may at any time buy from a
Participant an Award previously granted with payment in cash, other Shares or
other consideration, based on such terms and conditions as the Committee and the
Participant shall agree.
14. Securities Law And Other Regulatory Compliance. An Award shall not
be effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed, as they are in effect on the date of grant of the
Award and also on the date of exercise or other issuance. Notwithstanding any
other provision in the Plan, the Company shall have no obligation to issue or
deliver certificates for Shares under the Plan prior to (a) obtaining any
approvals from governmental agencies that the Company determines are necessary
or advisable, and/or (b) completion of any registration or other qualification
of such shares under any state or federal law or ruling of any governmental body
that the Company determines to be necessary or advisable. The Company shall be
under no obligation to register the Shares with the SEC or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
shall have no liability for any inability or failure to do so.
15. No Obligation To Employ. Nothing in the Plan or any Award granted
under the Plan shall confer or be deemed to confer on any Participant any right
to continue in the employ of, or other relationship with, the Company or any
Parent or Subsidiary of the Company or limit in any way the right of the Company
or any Parent or Subsidiary of the Company to terminate any Participant's
employment or other relationship at any time, with or without cause.
16. Corporate Transactions.
16.1 Assumption Or Replacement Of Awards By Successor. In the
event of (a) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the shareholders of
the Company and the Awards granted under the Plan are assumed or replaced by the
successor corporation, which assumption shall be binding on all Participants),
(b) a dissolution or liquidation of the Company,
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(c) the sale of substantially all of the assets of the Company, or (d) any other
transaction which qualifies as a corporate transaction to which Section 424(a)
of the Code applies wherein the shareholders of the Company give up all of their
equity interest in the Company (except for the acquisition, sale or transfer of
all or substantially all of the outstanding shares of the Company), any or all
outstanding Awards may be assumed or replaced by the successor corporation,
which assumption or replacement shall be binding on all Participants. In the
alternative, the successor corporation may substitute equivalent Options or
provide substantially similar consideration to Participants as was provided to
shareholders (after taking into account the existing provisions of the Awards).
The successor corporation may also issue, in place of outstanding Shares of the
Company held by the Participant, substantially similar shares or other property
subject to repurchase restrictions no less favorable to the Participant.
16.2 Expiration Of Options. In the event any such successor
corporation refuses to assume or substitute the Options as provided above,
pursuant to a transaction described in Subsection 16.l(a), such Options shall
expire on such transaction at such time and on such conditions as the Board
shall determine. In the event any such successor corporation refuses to assume
or substitute the Options as provided above, pursuant to a transaction described
in Subsections 16.1(b), (c) or (d), or there is no successor corporation, and if
the Company ceases to exist as a separate corporate entity, then,
notwithstanding any contrary terms in the Award Agreement, the Options shall
expire on a date at least 20 days after the Board gives written notice to
Participants specifying the terms and conditions of such termination.
16.3 Other Treatment Of Awards. Subject to any greater rights
granted to Participants under the foregoing provisions of this Section 16, in
the event of the occurrence of any transaction described in Section 16.1, any
outstanding Awards shall be treated as provided for in the applicable agreement
or plan of merger, consolidation, dissolution, liquidation, sale of assets or
other transaction.
16.4 Assumption Of Awards By The Company. The Company, from time
to time, also may substitute or assume outstanding Options granted by another
company, whether in connection with an acquisition of such other company or
otherwise, by either (a) granting an Award under the Plan in substitution of
such other company's option, or (b) assuming such Award as if it had been
granted under the Plan if the terms of such assumed Award could be applied to an
Award granted under the Plan. Such substitution or assumption shall be
permissible if the holder of the substituted or assumed Award would have been
eligible to be granted an Award under the Plan if the other company had applied
the rules of the Plan to such grant. In the event the Company assumes an award
granted by another company, the terms and conditions of such award shall remain
unchanged except that the exercise price and the number and nature of Shares
issuable upon exercise of any such award will be adjusted appropriately pursuant
to Section 424(a) of the Code. In the event the Company elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
17. Adoption And Shareholder Approval. The Plan shall become effective
on the date that it is adopted by the Board (the "Effective Date"). The Plan
shall be approved by the shareholders of the Company (excluding Shares issued
pursuant to the Plan), consistent with applicable laws, within 12 months before
or after the Effective Date. Upon the Effective Date, the Board may grant
Options pursuant to the Plan; provided, however, that: (a) no Option may be
exercised prior to initial shareholder approval of the Plan; (b) no Option
granted pursuant to an increase in the number of Shares approved by the Board
shall be exercised prior to the time such increase has been approved by the
shareholders of the Company; and (c) in the event that shareholder approval is
not obtained within the time period provided herein, all Awards granted
hereunder shall be cancelled and any Shares issued pursuant to any Award shall
be cancelled. After the Company becomes subject to Section 16(b) of the Exchange
Act, the Company will comply with the requirements of Rule 16b-3 (or its
successor), as amended, with respect to shareholder approval.
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18. Term Of Plan. The Plan will terminate 10 years from the Effective
Date or, if earlier, the date of shareholder approval.
19. Amendment Or Termination Of Plan. The Board may at any time
terminate or amend the Plan in any respect, including without limitation
amendment of any form of Award Agreement or instrument to be executed pursuant
to the Plan; provided, however, that the Board shall not, without the approval
of the shareholders of the Company, amend the Plan in any manner that requires
such shareholder approval pursuant to the Code or the regulations promulgated
thereunder as such provisions apply to ISO plans or, to the extent applicable,
pursuant to the Exchange Act or Rule 16b-3 (or its successor), as amended,
thereunder.
20. Nonexclusivity Of The Plan. Neither the adoption of the Plan by the
Board, the submission of the Plan to the shareholders of the Company for
approval, nor any provision of the Plan shall be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such arrangements
may be either generally applicable or applicable only in specific cases.
21. Governing Law. The Plan and all agreements, documents and
instruments entered into pursuant to the Plan shall be governed by and construed
in accordance with the internal laws of the State of California, excluding that
body of law pertaining to choice or conflict of laws.
22. Definitions. As used in the Plan, the following terms shall have the
following meanings:
"Award" means any award under the Plan, including any Option or
Restricted Stock.
"Award Agreement" means, with respect to each Award, the signed written
agreement between the Company and the Participant setting forth the terms and
conditions of the Award including an Option Agreement or a Restricted Stock
Purchase Agreement.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee appointed by the Board to administer the
Plan, or if no committee is appointed, the Board.
"Company" means Galvantech, Inc., a California corporation, or any
successor corporation.
"Disability" means any disability, whether temporary or permanent, total
or partial, as determined by the Committee.
"Disinterested Person" means a director who has not, during the period
that person is a member of the Committee and for one year prior to service as a
member of the Committee, been granted Options pursuant to the Plan or awarded
equity securities pursuant to any other plan, of the Company or any Parent or
Subsidiary of the Company, except in accordance with the requirements set forth
in Rule 16b-3(c)(2)(i) (and any successor regulation thereto) as promulgated by
the SEC under Section 16(b) of the Exchange Act, as such rule is amended from
time to time and as interpreted by the SEC.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exercise Price" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"Fair Market Value" means, as of any date, the value of a share of the
Company's Common Stock determined as follows:
(a) if such Common Stock is publicly traded and is then listed on a
national securities exchange, the last reported sale price or, if no such
reported sale takes place on such date, the average of the closing bid and asked
prices on the principal national securities exchange on which the Common Stock
is listed or admitted to trading;
(b) if such Common Stock is then quoted on the NASDAQ National Market
System, its last reported sale price on the NASDAQ National Market System or, if
no such reported sale takes place on such date, the average of the closing bid
and asked prices;
(c) if such Common Stock is publicly traded but is not quoted on the
NASDAQ National Market System nor listed or admitted to trading on a national
securities exchange, the average average of the closing bid and asked prices on
such date, as reported by The Wall Street Journal, for the over-the-counter
market; or
(d) if none of the foregoing is applicable, by the Board of Directors of
the Company in good faith.
"Insider" means an officer or director of the Company or any other
person whose transactions in the Company's Common Stock are subject to Section
16 of the Exchange Act.
"Option" means a grant of an option to purchase Shares pursuant to
Section 5.
"Parent" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if at the time of the granting of
an Option under the Plan, each of such corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
"Participant" means a person who receives an Option under the Plan.
"Plan" means this Galvantech, Inc. 1995 Equity Incentive Plan, as
amended from time to time.
"Restricted Stock Award" means an an offer to sell Shares pursuant to
Section 6.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of the Company's Common Stock, reserved for
issuance under the Plan, as adjusted pursuant to Sections 2 and 13, and any
successor security.
"Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
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"Termination" or "Terminated" means, for purposes of the Plan with
respect to a Participant, that such Participant has ceased to provide services
as an employee, officer, director, consultant, independent contractor or
adviser, to the Company or a Parent or Subsidiary of the Company, except in the
case of sick leave, military leave, or any other leave of absence approved by
the Committee, provided that such leave is for a period of not more than 90
days, or reinstatement upon the expiration of such leave is guaranteed by
contract or statute. The Committee shall have sole discretion to determine
whether such Participant has ceased to provide services and the effective date
on which the Participant ceased to provide services (the "Termination Date").
* * *
Date Plan Adopted by Board of Directors: April 28, 1995
Date Plan Adopted by Shareholders: April 29, 1995
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Exhibit 5.1
March 21, 2000
Cypress Semiconductor Corporation
3901 North First Street
San Jose, CA 95134
Re: REGISTRATION STATEMENT ON FORM S-8
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 the date hereof (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 103,582 shares of your
Common Stock (the " Shares") reserved for issuance under the Galvantech, Inc.
1995 Equity Incentive 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 the Shares under the Plan. In
addition, for purposes of this opinion we have assumed that the consideration
received by the Company in connection with each issuance of the Shares will
include an amount in the form of cash, services rendered or property that
exceeds the greater of (i) the aggregate par value of such Shares or (ii) the
portion of such consideration determined by the Company's Board of Directors to
be "capital" for purposes of the Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that, when issued and sold
in the manner referred to in the Plan and pursuant to the agreements which
accompany the Plan, the Shares issued and sold thereby will be legally and
validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to General Instruction E of
Form S-8 under the Securities Act with respect to the Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
II-8
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Cypress Semiconductor Corporation of our report dated
January 26, 2000 relating to the financial statements, which appears in Cypress
Semiconductor Corporation's Annual Report on Form 10-K for the year ended
January 2, 2000.
PricewaterhouseCoopers LLP
San Jose, California
March 20, 2000
II-9
