S-8 1 tm2120134d1_s8.htm FORM S-8

 

As filed with the Securities and Exchange Commission on June 21, 2021

Registration No. 333-________

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

 

 

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

 

 

COHERENT, INC.
(Exact name of Registrant as specified in its charter)

 

Delaware   94-1622541
(State of Incorporation)   (I.R.S. Employer Identification Number)

 

5100 Patrick Henry Drive
Santa Clara, California 95054
(Address of principal executive offices, including zip code)

 

 

 

Coherent, Inc. Employee Stock Purchase Plan
(Full title of the plan)

 

 

 

Bret M. DiMarco
Executive Vice President, Chief Legal Officer and Corporate Secretary
Coherent, Inc.
5100 Patrick Henry Drive
Santa Clara, California 95054
(408) 764-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

Copy to:
Jose F. Macias
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300

 

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

 

Large accelerated filer x Accelerated filer ¨
Non-accelerated filer ¨ Smaller reporting company ¨
  Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered  Amount
to be Registered (1)		   Proposed
Maximum
Offering Price
Per Share		   Proposed
Maximum
Aggregate
Offering Price		   Amount of
Registration
Fee		 
Common Stock, $0.01 par value per share   250,000   $224.68(2)  $56,170,000   $6,129 

  

(1)Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the Coherent, Inc. Employee Stock Purchase Plan (the “ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.

 

(2)Estimated in accordance with Rule 457(c) and (h) solely for purposes of calculating the registration fee on the basis of 85% of $264.33 per share, which is the average of the high and low prices of the Registrant’s common stock as reported on the NASDAQ Global Select Market on June 17, 2021. Pursuant to the ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be 85% of the lesser of the fair market value of a share of common stock (i) on the first day of the offering period or (ii) the last day of the offering period.

 

 

 

 

 

 

PART I

INFORMATION REQUIRED IN THE PROSPECTUS

 

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

 

PART II

INFORMATION REQUIRED IN REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):

 

1.                   The Registrant’s Annual Report on Form 10-K for the fiscal year ended October 3, 2020, filed with the Commission on December 1, 2020, as amended by Amendment No. 1 on Form 10-K/A filed with the Commission on February 1, 2021, pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);

 

2.                   The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarter ended January 2, 2021, filed with the Commission on February 10, 2021, and for the fiscal quarter ended April 3, 2021, filed with the Commission on May 12, 2021, pursuant to Section 13(a) of the Exchange Act;

 

3.                   All other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (1) above (other than the portions of these documents not deemed to be filed); and

 

4.                   The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A dated November 23, 1970, and any further amendment or report filed hereafter for the purpose of updating such description.

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that 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; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained 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 subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, 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.

 

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Item 6. Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act). The Registrant’s Bylaws provides for the mandatory indemnification of its directors and officers and permissible indemnification of employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. The Registrant has entered into an indemnification agreement with each of its officers and directors that provides the Registrant’s officers and directors with indemnification to the maximum extent permitted by the Delaware General Corporation Law. In addition, as permitted by Section 145 of the Delaware General Corporation Law, the Registrant’s Certificate of Incorporation provides that its directors shall not be liable for monetary damages for a breach of the directors’ fiduciary duty as a director, provided that such liability does not arise from certain proscribed conduct. The Registrant also currently maintains officer and director liability insurance.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

       

Incorporated by Reference

Exhibit
Number

  

Exhibit Description

  

Form

  

File No.

  

Exhibit

  

Filing Date

4.1   Description of the Registrant’s securities registered under Section 12 of the Exchange Act   10-K   001-33962   4.1   November 26, 2019
5.1   Opinion of Wilson Sonsini Goodrich & Rosati, P.C., counsel to the Registrant                
23.1   Consent of Independent Registered Public  Accounting Firm                
23.2   Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1)                
24.1   Power of attorney (contained on signature page hereto)                
99.1   Coherent, Inc. Employee Stock Purchase Plan                

 

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;

 

(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; and

 

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(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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)  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 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 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.

 

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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the 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 Securities 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, 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 Santa Clara, State of California, on June 21, 2021.

 

  COHERENT, INC.
   
  By: /s/ Bret M. DiMarco
    Bret M. DiMarco
    Executive Vice President and Chief Legal Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Andreas W. Mattes and Kevin Palatnik, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully 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 date indicated.

 

Signature

  

Title

  

Date

/s/ Andreas W. Mattes   Director, President and Chief Executive Officer (Principal Executive Officer)   June 21, 2021
Andreas W. Mattes        
/s/ Kevin Palatnik   Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)   June 21, 2021
Kevin Palatnik        
/s/ Jay T. Flatley   Director   June 21, 2021
Jay T. Flatley        
/s/ Pamela Fletcher   Director   June 21, 2021
Pamela Fletcher        
/s/ Beverly Kay Matthews   Director   June 21, 2021
Beverly Kay Matthews        
/s/ Michael R. McMullen   Director   June 21, 2021
Michael R. McMullen        
/s/ Garry W. Rogerson   Chairman of the Board   June 21, 2021
Garry W. Rogerson        
/s/ Steve Skaggs   Director   June 21, 2021
Steve Skaggs        
/s/ Sandeep Vij   Director   June 21, 2021
Sandeep Vij        

 

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