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As filed with the Securities and Exchange Commission on September 3, 1998
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COHU, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-1934119
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
5755 KEARNY VILLA ROAD
SAN DIEGO, CALIFORNIA 92123
(Address of principal executive offices) (Zip code)
COHU, INC. 1998 STOCK OPTION PLAN
(Full title of the plan)
JOHN H. ALLEN
Vice President, Finance and Chief Financial Officer
Cohu, Inc.
5755 Kearny Villa Road
San Diego, California 92123
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (619) 277-6700
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------
Proposed
Title of Amount Maximum Proposed Maximum
Securities to be to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------
Common Stock, 450,000 $15.19 $6,835,500 $2,016.47
par value $1.00
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(1) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as amended,
solely for purposes of calculating the registration fee. The maximum offering
price per share is based on the average of the high and low selling prices per
share of Cohu, Inc. Common Stock on September 1, 1998, as reported on the Nasdaq
National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Cohu, Inc. (the "Company") hereby incorporates by reference in this
registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
fiscal year ended December 31, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Inapplicable
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Delaware law authorizes corporations to eliminate the personal liability
of directors to corporations and their stockholders for monetary damages for
breach or alleged breach of the directors' "duty of care." While the relevant
statute does not change directors' duty of care, it enables corporations to
limit available relief to equitable remedies such as injunction or rescission.
The statute has no effect on directors' duty of loyalty, acts or omissions not
in good faith or involving intentional misconduct or knowing violations of law,
illegal payment of dividends and approval of any transaction from which a
director derives an improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The By-Laws of the Company provide for indemnification of its directors,
officers, employees and agents to the fullest extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware Law. Section 145 of the General
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Corporation Law of the State of Delaware provides for indemnification in terms
sufficiently broad to indemnify such individuals, under certain circumstances,
for liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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)(l)(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 Exchange Act 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) Filing incorporating subsequent Exchange Act documents by
reference
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
Exchange Act (and, where applicable, each filing of an employee
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benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 , as amended,
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 Diego, State of California, on September 2,
1998.
COHU, INC.
By: /s/ Charles A. Schwan
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Charles A. Schwan
President and Chief Executive Officer
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POWER OF ATTORNEY
The officers and directors of Cohu, Inc. whose signatures appear below,
hereby constitute and appoint Charles A. Schwan and John H. Allen, and each of
them, their true and lawful attorneys and agents, with full power of
substitution, each with 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 each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their, her or his substitutes, shall 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 indicated on September 2, 1998.
SIGNATURE TITLE
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/s/ Charles A. Schwan President, Chief Executive Officer and Director
- ---------------------- (Principal Executive Officer)
Charles A. Schwan
/s/ John H. Allen Vice President, Finance and Chief Financial Officer
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John H. Allen
/s/ William S. Ivans Chairman of the Board
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William S. Ivans
/s/ James W. Barnes Director
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James W. Barnes
/a/ Harry L. Casari Director
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Harry L. Casari
/s/ Frank W. Davis Director
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Frank W. Davis
/s/ Gene E. Leary Director
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Gene E. Leary
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EXHIBIT INDEX
4.1. Amended and Restated Certificate of Incorporation of Cohu, Inc.
incorporated by reference to Exhibit 3.1(a) to the Cohu, Inc. Form 10-Q
for the quarterly period ended June 30, 1998.
4.2. Amended and Restated Bylaws of Cohu, Inc. incorporated by reference to
Exhibit 3.2 to the Company's Report on Form 8-K filed with the Securities
and Exchange Commission on December 12, 1996.
4.3. Rights Agreement dated November 15, 1996, between Cohu, Inc. and Chase
Mellon Shareholder Services, L.L.C., incorporated by reference to Exhibit
4.1 to Cohu, Inc. Report on Form 8-K filed with the Securities and
Exchange Commission on December 12, 1996.
5 Opinion re legality
10.1 Cohu, Inc. 1998 Stock Option Plan incorporated by reference from Exhibit
10.14 to the Cohu, Inc. 1997 Form 10-K filed with the Securities and
Exchange Commission.
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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[GRAY CARY WARE & FREIDENRICH LETTERHEAD]
EXHIBIT 5
OUR FILE NO.
8203-92001
September 1, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Cohu, Inc., a Delaware corporation (the "Company"),
we are rendering this opinion in connection with the registration under the
Securities Act of 1933, as amended, of a total of up to 450,000 shares of the
Common Stock, $1.00 par value, of the Company which may be issued pursuant to
the Cohu, Inc. 1998 Stock Option Plan (the "Plan"). We have examined all
instruments, documents and records which we deemed relevant and necessary for
the basis of our opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity to the originals of all
documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California, the corporation laws of the State of Delaware and the federal law of
the United States. As to matters of Delaware corporation law, we have based our
opinion solely upon our examination of such laws and the rules and regulations
of the authorities administering such laws, all as reported in standard,
unofficial compilations. We have not obtained opinions of counsel licensed to
practice in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 450,000 shares
of Common Stock which may be issued under the Plan are duly authorized shares
and, when issued against receipt of the consideration therefor in accordance
with the provisions of the Plan, will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware Freidenrich
GRAY CARY WARE & FREIDENRICH, LLP
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Cohu, Inc. 1998 Stock Option Plan of our report dated
January 29, 1998, with respect to the consolidated financial statements and
schedules of Cohu, Inc. included and incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
San Diego, California
September 1, 1998
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