AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 21, 2000.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHEROKEE INTERNATIONAL, LLC
(Exact Name of Registrant as Specified in Its Charter)
CALIFORNIA 33-0696451
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
2841 DOW AVENUE
TUSTIN, CALIFORNIA 92780
TELEPHONE: (714) 544-6665
(Address, Including Zip Code, of Principal Executive Offices)
1999 UNIT OPTION PLAN
1999 UNIT PURCHASE PLAN
(Full Title of the Plans)
R. VAN NESS HOLLAND, JR.
CHIEF FINANCIAL OFFICER
2841 DOW AVENUE
TUSTIN, CALIFORNIA 92780
TELEPHONE: (714) 544-6665
(Name and Address of Agent for Service)
COPY TO:
JEFFREY H. COHEN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE, 34TH FLOOR
LOS ANGELES, CA 90071
(213) 687-5000
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGRE- AMOUNT OF REGISTRATION
REGISTERED(1) PRICE PER SHARE(2) GATE OFFERING PRICE FEE
Class B Non-Voting Units, 2,970,000(3) $5.71 $16,958,700 $4,477.10
issuable pursuant to the 1999
Unit Option Plan
Class B Non-Voting Units, 1,500,000(3) $5.71 $ 8,565,000 $2,261.16
issuable pursuant to the 1999
Unit Purchase Plan
================================ ====================== ========================= ====================== ======================
Total 4,470,000 $5.71 $25,523,700 $6,738.26
================================ ====================== ========================= ====================== ======================
- --------
(1) This Registration Statement shall also cover any additional
Class B Non-Voting units which may become issuable under any of the
Plans being registered pursuant to this Registration Statement by
reason of any distribution on units, unit split, recapitalization or
any other similar transaction effected without the receipt of
consideration which results in an increase in the number of the
Registrant's outstanding Class B Non-Voting Units.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, based on the Company's good faith estimate of the value of
the Class B Non-Voting Units on September 21, 2000.
(3) Represents the maximum number of Class B Non-Voting Units (the
"Class B Units"), of Cherokee International, LLC (the "Company")
available for issuance under the 1999 Unit Option Plan or 1999 Unit
Purchase Plan respectively.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 are being maintained and delivered by the Company as specified by Rule
428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference into this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended July 2, 2000;
(c) The Company's current report on Form 8-K filed on
June 30, 2000; and
(d) The Company's current report on Form 8-K/A filed on
August 29, 2000.
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 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 herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a 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 other subsequently filed
document that is or is deemed to be incorporated by reference herein modifies or
supersedes such previous statement. Any statement so modified or superseded
shall not be deemed to constitute a part of this Registration Statement, except
as so modified or superseded.
ITEM 4. DESCRIPTION OF THE SECURITIES
The following is a summary of the material terms of the Company's Class
A Voting Units and Class B Non-Voting Units. Please see the Company's Second
Amended and Restated Operating Agreement, and the amendments thereto, or the
Operating Agreement, filed as exhibits to the Company's Annual Report on Form
10-K for the year ended December 31, 1999, and the Company's Quarterly Report on
Form 10-Q for the quarter ended July 2, 2000, for more detailed information. The
following summary is qualified by this reference to the Operating Agreement.
Holders of the Company's Class A or Class B Units are referred to as "members."
As of August 1, 2000, the Company has 347,671 of its Class A Voting
Units, and 35,950,264 of its Class B Non-Voting Units outstanding. The Company's
Class A Voting Units and Class B Non-Voting Units are identical except that each
Class A Unit entitles the holder thereof to one vote, while the Class B Units,
except in limited circumstances, do not entitle the holders thereof to any
votes, on any matter voted on by the Company's members. The Company's Units are
not subject to redemption, conversion or sinking fund provisions. In the event
of a liquidation, dissolution or winding up of the Company, the Company's
members are entitled to share ratably in all assets of the Company remaining
after payment of the Company's liabilities.
The Company has been, and we believe will continue to be, treated as a
"pass-through" entity for United States federal income tax purposes and is not
itself subject to United States federal income taxation. Each holder of the
Company's Units, however, is subject to tax on that member's allocable share of
the Company's taxable income, deductions, gain or loss for each taxable year of
the Company ending within or with such taxable year of the member. The Operating
Agreement provides that in addition to whatever periodic pro rata distributions
of cash the Company's Management Committee may determine to make to the
Company's members out of funds available therefore, the Company shall, so long
as funds are available therefore, make calendar year quarterly distributions to
each member in an amount which, taken together with all discretionary
distributions, is no less than the income tax liability incurred by a member as
a result of allocation of the Company's taxable income to that member. The
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Company makes tax related distributions on a quarterly basis based on
estimates of the annual tax liability incurred by its members.
In addition to any transfer restrictions contained in the option
agreements and subscription agreements to be executed by participants and in
the Company's 1999 Unit Option Plan and 1999 Unit Purchase Plan which are
described in the materials delivered as specified by Rule 428(b)(1) under the
Securities Act, the Company's Units, including the Class B Units, are subject
to transfer restrictions set forth in the Operating Agreement. These
restrictions include a right of first offer to the Company and the Company's
option to purchase a member's Units upon their death. Additionally, the Units
are subject to tag-along and drag-along rights. For details concerning these
rights and restrictions, see the Operating Agreement filed as an exhibit to
the Company's Annual Report on Form 10-K for the year ended December 31,
1999, and the Company's Quarterly Report on Form 10-Q for the quarter ended
July 2, 2000. All rights and restrictions regarding transfer of Units
contained in the Operating Agreement terminate in the event of an
underwritten public offering made pursuant to an effective registration
statement under the Securities Act resulting in aggregate offering proceeds
to the Company of at least $50 million.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a California Limited Liability Company governed by
the Beverly-Killea Limited Liability Company Act, or BKLLCA.
Section 17155 of the BKLLCA empowers a California limited liability
company to indemnify any person, including, without limitation, any manager,
member, officer, employee, or agent of the limited liability company, against
judgments, settlements, penalties, fines or expenses of any kind incurred as
a result of acting in that capacity, except that indemnification of managers
for a breach of any fiduciary duty owed to the limited liability company and
its members is not permitted under the BKLLCA.
Article 12.2 of the Operating Agreement provides, among other
things, that to the fullest extent permitted by applicable law, the Company
shall indemnify and defend each member, Management Committee representative,
officer, or other agent of the company, and the affiliates and partners of
each of the foregoing, who was or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that such person is or was a member, Management Committee
representative, officer or other agent of the Company, except that no such
person shall be entitled to indemnification for any act or omission
constituting gross negligence, willful misconduct or material breach of the
Operating Agreement.
The Operating Agreement facilitates the enforcement of
indemnification rights by establishing the indemnification right as a
contract right pursuant to which the person entitled thereto may bring suit
as if the indemnification provisions of the Operating Agreement were set
forth in a separate written contract between the Company and the indemnified
party. Therefore, any amendment or repeal of the indemnification provisions
contained in the Operating Agreement or the BKLLCA shall only be prospective
and will not affect the indemnification rights under such provision in effect
at the time of the alleged occurrence of any action or omission to act.
In addition, the Company maintains insurance on behalf of its
officers and Management Committee representatives against any liability
asserted against or incurred by any such person acting in that capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Exhibits Index.
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
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(a) 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 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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)(i) and (a)(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 issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
2. 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 of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the 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 herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. 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.
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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 Tustin, State of California, on
September 21, 2000.
CHEROKEE INTERNATIONAL, LLC
By /s/ Pat Patel
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Name: Pat Patel
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints R. Van Ness Holland, Jr. and Rita
Patel, and each or any one of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitutes or substitute, may lawfully do or cause to be done
by virtue hereof.
SIGNATURE TITLE DATE
/s/ Ganpat I. Patel Chairman, Chief Executive Officer September 21, 2000
- --------------------------------------- and member of Management Committee
Ganpat I. Patel (Principal Executive Officer)
/s/ R. Van Ness Holland, Jr. Chief Financial Officer September 21, 2000
- --------------------------------------- (Principal Financial and
R. Van Ness Holland, Jr. Accounting Officer)
/s/ Bahechar S. Patel Executive Vice President and member of September 21, 2000
- --------------------------------------- Management Committee
Bahechar S. Patel
/s/ Ian A. Shapiro Vice President and member of Manage- September 21, 2000
- --------------------------------------- ment Committee
Ian A. Shapiro
/s/ Stephen Kaplan Member of Management Committee September 21, 2000
- ---------------------------------------
Stephen Kaplan
/s/ Tony Bloom Member of Management Committee September 21, 2000
- ---------------------------------------
Tony Bloom
/s/ Christopher Brothers Member of Management Committee September 21, 2000
- ---------------------------------------
Christopher Brothers
Member of Management Committee
- ---------------------------------------
Kenneth King
EXHIBIT INDEX
EXHIBIT
NUMBER
*4.1 Second Amended and Restated Operating Agreement of Cherokee
International, LLC, dated as of April 30, 1999.
*4.2 Amendment No. 1 to the Second Amended and Restated Operating
Agreement of Cherokee International, LLC, dated as of June 28, 1999.
*4.3 Amendment No. 2 to the Second Amended Restated Operating Agreement
of Cherokee International, LLC, dated as of June 28, 1999.
**4.4 Amendment No. 3 to the Second Amended and Restated Operating
Agreement of Cherokee International, LLC, dated as of June 12, 2000.
**4.5 Amendment No. 4 to the Second Amended and Restated Operating
Agreement of Cherokee International, LLC, dated as of June 14, 2000.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the
legality of the securities being registered
23.1 Consent of Deloitte & Touche LLP, Costa Mesa, California
23.2 Consent of Deloitte & Touche LLP, Brussels, Belgium
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1 hereto)
24.1 Power of Attorney (included in signature page hereto)
*99.1 Cherokee International, LLC 1999 Unit Option Plan.
*99.2 Form of Unit Option Agreement.
*99.3 Cherokee International, LLC 1999 Unit Purchase Plan.
99.4 Form of unit Subscription Agreement
* Incorporated by reference to the Company's Registration Statement on
Form S-4, filed with the Securities and Exchange Commission on July
13, 1999 (File No. 333-82713).
** Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the quarter ended July 2, 2000, filed with the Securities
and Exchange Commission on August 21, 2000 (File No. 333-82713).