CY Cypress Semiconductor Corporation

 

 

UNITED STATES

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 incorporation or organization)		(I.R.S. Employer Identification Number)

198 Champion Court

San Jose, CA 95134-1599

(408) 943-2600

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

SPANSION INC. 2010 EQUITY INCENTIVE AWARD PLAN

CYPRESS SEMICONDUCTOR CORPORATION EMPLOYEE STOCK PURCHASE PLAN

(Full title of the plans)

 

 

T.J. Rodgers

President and Chief Executive Officer

Cypress Semiconductor Corporation

198 Champion Court

San Jose, CA 95134-1599

(408) 943-2600

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copy to:

Todd Cleary

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304-1050

 

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		x		Accelerated filer		¨
Non-accelerated filer		¨		Smaller Reporting Company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be registered		Proposed maximum offering price per share(2)		Proposed maximum aggregate offering price(2)		Amount of registration fee(3)
Common Stock, $0.01 par value, to be issued pursuant to the terms of the Cypress Semiconductor Corporation Employee Stock Purchase Plan, as amended		1,222,598(1)		$15.51		$18,962,494.98		$2,203.44
Common Stock, $0.01 par value, to be issued pursuant to outstanding awards under the terms of the Spansion Inc. 2010 Equity Incentive Award Plan, as amended		6,418,362(1)		$5.1833(4)		$33,268,295.75		$3,865.78
Common Stock, $0.01 par value, to be issued pursuant to the terms of the Spansion Inc. 2010 Equity Incentive Award Plan, as amended		9,614,862(1)		$15.51		$149,126,509.62		$17,328.50
Total		17,255,822(1)				$201,357,300.35		$23,397.72

(1)

Pursuant to Rule 416 of the Securities Act of 1933, as amended (“Securities Act”), this registration statement shall also cover any additional shares of the registrant’s common stock that become issuable under the Employee Stock Purchase Plan, as amended (the “ESPP”), and the Spansion Inc. 2010 Equity Incentive Award Plan, as amended, as described herein, by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the registrant’s receipt of consideration that results in an increase in the number of the registrant’s outstanding shares of common stock.

(2)	Estimated in accordance with paragraphs (c) and (h) of Rule 457 of 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 NASDAQ Global Select Market on March 23, 2015.

(3)	The amount of the registration fee was calculated pursuant to Section 6(b) of the Securities Act, which provides that the fee shall be 0.0001162 multiplied by the maximum aggregate price at which such securities are proposed to be offered.

(4)	Based on the weighted average exercise price per share.

 

 

 

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents and information previously filed by Cypress Semiconductor Corporation (“Cypress”) with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are hereby incorporated by reference in this registration statement. However, Cypress does not incorporate by reference those items which were “filed” for purposes of Section 8 of the Exchange Act or incorporated by reference in any filing under the Securities Act.

 

(a)

Cypress’s Annual Report on Form 10-K for the fiscal year ended December 28, 2014 filed with the Commission on February 17, 2015.

 

(b)

Cypress’s Current Report on Form 8-K filed with the Commission on March 12, 2015, as amended on March 24, 2015.

 

(c)

The description of Cypress’s common stock contained in Cypress’s Registration Statement on Form 8-A dated August 30, 1988 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 Cypress 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.

Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein, modified or supersedes such statement. Except as so modified or superseded, such statement shall not be deemed to constitute a part of this registration statement.

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 X of Cypress’ certificate of incorporation provides that, to the fullest extent permitted by the Delaware General Corporation Law, as the same now exists or may hereafter be amended, a director shall not be personally liable to Cypress or its stockholders for monetary damages for breach of fiduciary duty as a director and that Cypress is authorized to provide indemnification of (and advancement of expenses to) directors, officers, employees and other agents of Cypress in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law, subject only to statutory and non-statutory limits created by applicable Delaware law with respect to actions for breach of duty to a corporation, its stockholders and others. The Delaware General Corporation 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 Cypress’s Bylaws provides that Cypress (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 Cypress) by reason of the fact that he is or was a director or officer of Cypress, or is or was serving at the request of Cypress 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 Cypress) by reason of the fact that he is or was an employee or agent of Cypress, or is or was serving at the request of Cypress 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 Cypress, 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 Cypress, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

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Article VI of Cypress’s Bylaws also provides that Cypress (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 Cypress to procure a judgment in its favor by reason of the fact that he is or was a director or officer of Cypress, or is or was serving at the request of Cypress 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 Cypress to procure a judgment in its favor by reason of the fact that he is or was an employee or agent of Cypress, or is or was serving at the request of Cypress 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 Cypress 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 Cypress 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.

Cypress’s Bylaws also provide that, to the extent that a director or officer of Cypress 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 Cypress 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.

Cypress’s Bylaws also permit Cypress to secure insurance on behalf of any officer, director, employee or agent of Cypress for any liability arising out of his or her actions in such capacity, regardless of whether the Bylaws would permit indemnification. Cypress currently maintains liability insurance for its officers and directors.

Item 7. Exemption from Registration Claimed.

Not applicable.

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Item 8. Exhibits.

 

				Incorporated by Reference
Exhibit Number		Exhibit Description		Form		Filing Date/ Period End Date		Filed Herewith
5.1		Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.						X
10.1		Cypress Semiconductor Corporation Employee Stock Purchase Plan, as amended.		Def 14A		03/29/2013
10.2		Spansion Inc. 2010 Equity Incentive Award Plan.		S-8(1)		05/10/2010
10.3		Amendment to Spansion Inc. 2010 Equity Incentive Award Plan.		8-K(1)		05/14/2010
10.4		U.S. Employees Form of Stock Option Agreement and Terms and Conditions for Awards Under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		06/27/2010
10.5		Amended U.S. and Non-US Employees Form of Restricted Stock Unit Award and Terms and Conditions for Awards under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		09/28/2014
10.6		Non-U.S. Employees Form of Stock Option Agreement Terms and Conditions (With Foreign Exhibit) for Awards Under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		06/27/2010
10.7		Amended U.S. Employees Form of Restricted Stock Unit Award and Terms and Conditions for Awards under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		06/29/2014
10.8		Spansion Inc. 2010 Equity Incentive Award Plan—French Sub-Plan—Options.		10-Q(1)		06/27/2010
10.9		Spansion Inc. 2010 Equity Incentive Award Plan—French Sub-Plan—Restricted Stock/Restricted Stock Units		10-Q(1)		06/27/2010
10.10		Spansion Inc. 2010 Equity Incentive Award Plan—Sub-Plan—Israel.		10-Q(1)		06/27/2010
10.11		Amended Form of Performance-Based Restricted Stock Unit Award and Terms and Conditions for Awards under the Spansion Inc. 2010 Equity Incentive Award Plan		10-Q(1)		06/29/2014
10.12		Amended Form of Restricted Stock Unit Award for Non-Employee Director under the Spansion Inc. 2010 Equity Incentive Award Plan, as amended.		10-K(1)		12/28/2014
23.1		Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.						X
23.2		Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.						X
23.3		Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1).
24.1		Power of attorney (contained on signature pages of this registration statement).

 

(1)	Indicates a filing of Spansion Inc.

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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(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 information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission 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.

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(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 (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.

 

(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 of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

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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.

 

				CYPRESS SEMICONDUCTOR CORPORATION
Dated: March 26, 2015				By:		/s/ Thad Trent
				Name:		Thad Trent
				Title:		Executive Vice President, Finance and Administration, and Chief Financial Officer

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints T.J. Rodgers and Pamela Tondreau, and each of them, his attorney-in-fact, with full power of substitution in each, 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 Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitutes, may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 and Director
T.J. Rodgers		(Principal Executive Officer)		March 26, 2015
/s/ Thad Trent		Executive Vice President, Finance and
Thad Trent		Administration and Chief Financial Officer (Principal Financial and Accounting Officer)		March 26, 2015
/s/ Eric A. Benhamou
Eric A. Benhamou		Director		March 26, 2015
/s/ W. Steve Albrecht
W. Steve Albrecht		Director		March 26, 2015
/s/ Wilbert van den Hoek
Wilbert van den Hoek		Director		March 26, 2015
/s/ John H. Kispert
John H. Kispert		Director		March 26, 2015
/s/ Raymond Bingham
Raymond Bingham		Director		March 26, 2015
/s/ O.C. Kwon
O.C. Kwon		Director		March 26, 2015
/s/ Michael S. Wishart
Michael S. Wishart		Director		March 26, 2015

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INDEX TO EXHIBITS

 

				Incorporated by Reference
Exhibit Number		Exhibit Description		Form		Filing Date/ Period End Date		Filed Herewith
5.1		Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.						X
10.1		Cypress Semiconductor Corporation Employee Stock Purchase Plan, as amended.		Def 14A		03/29/2013
10.2		Spansion Inc. 2010 Equity Incentive Award Plan.		S-8(1)		05/10/2010
10.3		Amendment to Spansion Inc. 2010 Equity Incentive Award Plan.		8-K(1)		05/14/2010
10.4		U.S. Employees Form of Stock Option Agreement and Terms and Conditions for Awards Under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		06/27/2010
10.5		Amended U.S. and Non-US Employees Form of Restricted Stock Unit Award and Terms and Conditions for Awards under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		09/28/2014
10.6		Non-U.S. Employees Form of Stock Option Agreement Terms and Conditions (With Foreign Exhibit) for Awards Under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		06/27/2010
10.7		Amended U.S. Employees Form of Restricted Stock Unit Award and Terms and Conditions for Awards under the Spansion Inc. 2010 Equity Incentive Award Plan.		10-Q(1)		06/29/2014
10.8		Spansion Inc. 2010 Equity Incentive Award Plan—French Sub-Plan—Options.		10-Q(1)		06/27/2010
10.9		Spansion Inc. 2010 Equity Incentive Award Plan—French Sub-Plan—Restricted Stock/Restricted Stock Units		10-Q(1)		06/27/2010
10.10		Spansion Inc. 2010 Equity Incentive Award Plan—Sub-Plan—Israel.		10-Q(1)		06/27/2010
10.11		Amended Form of Performance-Based Restricted Stock Unit Award and Terms and Conditions for Awards under the Spansion Inc. 2010 Equity Incentive Award Plan		10-Q(1)		06/29/2014
10.12		Amended Form of Restricted Stock Unit Award for Non-Employee Director under the Spansion Inc. 2010 Equity Incentive Award Plan, as amended.		10-K(1)		12/28/2014
23.1		Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.						X
23.2		Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.						X
23.3		Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1).
24.1		Power of attorney (contained on signature pages of this registration statement).

 

(1)	Indicates a filing of Spansion Inc.

Exhibit 5.1

March 26, 2015

Cypress Semiconductor Corporation

198 Champion Court

San Jose, CA 95134-1599

 

Re:

Registration Statement on Form S-8

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 March 26, 2015 (the “Registration Statement”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of up to 1,222,598 shares of common stock, par value $0.01, of Cypress Semiconductor Corporation (“Common Stock”), reserved for issuance pursuant to the Cypress Semiconductor Corporation Employee Stock Purchase Plan, as amended (the “ESPP”) and 16,033,224 shares of Common Stock reserved for issuance pursuant to the Spansion Inc. 2010 Equity Incentive Award Plan, as amended (the “Plan”). As your legal counsel, we have examined the proceedings taken and are familiar with the actions proposed to be taken by you in connection with the sale and issuance of the shares of Common Stock under the ESPP and the Plan (collectively, the “Shares”).

It is our opinion that the Shares will be, when issued and sold in the manner referred to in the ESPP and the Plan, legally and validly issued, fully paid and nonassessable.

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 and any subsequent amendment thereto. In giving such consent, we do not consider that we are “experts” within the meaning of such term as used in the Securities Act, or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.

 

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Cypress Semiconductor Corporation of our report dated February 13, 2015 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting of Cypress Semiconductor Corporation, which appears in Cypress Semiconductor Corporation’s Annual Report on Form 10-K for the year ended December 28, 2014.

/s/ PRICEWATERHOUSECOOPERS LLP

San Jose, California

March 26, 2015

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Cypress Semiconductor Corporation of our report dated February 10, 2015 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting of Spansion Inc., which appears in Cypress Semiconductor Corporation’s Current Report on Form 8-K dated March 11, 2015.

/s/ PRICEWATERHOUSECOOPERS LLP

San Jose, California

March 26, 2015