forms8.htm
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

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

KABUSHIKI KAISHA ADVANTEST
(Exact name of registrant as specified in its charter)
 

 
ADVANTEST CORPORATION
 
(Translation of Registrant’s name into English)
 
 
Japan
(State or other jurisdiction of
incorporation or organization)
  
Not Applicable
(I.R.S. Employer
Identification No.)
______________

Shin-Marunouchi Center Building
1-6-2 Marunouchi,
Chiyoda-ku, Tokyo 100-0005
Japan
(Address of principal executive offices)
______________

The Advantest Corporation 2011 Equity Incentive Plan (for Verigy Ltd.)
(Full title of the plans)
______________

Advantest America Corporation (Holding Co.)
3201 Scott Boulevard
Santa Clara, California 95054
Attention: Corporate Secretary
(408) 988-7700
 (Name, address and telephone number of agent for service)
______________

Copy to:

Kenton J. King
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, California  94301
(650) 470-4500
______________

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  S
Accelerated filer  £
Non-accelerated filer  £  (Do not check if a smaller reporting company)
Smaller reporting company  £


 
 
 



 
CALCULATION OF REGISTRATION FEE

Title of each class of
securities to be registered (1)
Amount to be
registered
Proposed maximum
offering price
per share (3)
Proposed maximum
aggregate
offering price
Amount of
registration
fee
   Common Stock of Registrant (2)
2,387,046
16.57
$39,553,352
4,592.15
   Total
2,387,046
  
$39,553,352
4,592.15

(1)
Each share of the Registrant’s common stock (the “Common Stock”) issuable in the United States pursuant to the Rules of The Advantest Corporation 2011 Equity Incentive Plan (for Verigy Ltd.) (the “Verigy Plan”) will be represented by one (1) American Depositary Shares (“ADSs”) on deposit with JPMorgan Chase Bank (formerly known as Morgan Guaranty Trust Company of New York), as depositary bank (the “Depositary”).  Each ADS will be evidenced by one (1) American Depositary Receipt issued by the Depositary.  A separate registration statement on Form F-6 (Registration No. 333-13886) was filed with the Securities and Exchange Commission (the “Commission”) on September 5, 2001 (as subsequently amended on Form F-6 POS filed with the Commission on September 12, 2006), for the registration of ADSs issuable upon deposit of shares of Common Stock.
   
(2)
This registration statement on Form S-8 (this “Registration Statement”) registers an aggregate of (i) 2,387,046 shares of Common Stock available for issuance under the Verigy Plan.  Pursuant to Rule 416(c) of the Securities Act of 1933, as amended (the “Securities Act”), there is also being registered such number of additional shares of Common Stock that may become available for issuance under the Plans in the event of certain changes in the outstanding shares of Common Stock, including reorganizations, mergers, recapitalizations, restructurings, stock dividends, stock splits, reverse stock splits and reclassifications.
   
(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act. Under Rule 457(h) the Proposed Maximum Offering Price Per Share and the Proposed Maximum Aggregate Offering Price for the shares of Common Stock subject to currently outstanding options are based on the per share exercise price of the options.





 
 
 

EXPLANATORY NOTE

On July 4, 2011, pursuant to that certain Implementation Agreement, dated March 28, 2011 (the “Implementation Agreement”), by and between the Registrant and Verigy Ltd  ( “Verigy”), and at the effective time of  that certain scheme of arrangement (the “Scheme”) approved by the Singapore High Court, Verigy became a wholly owned subsidiary of Registrant. At the effective time of the Scheme and pursuant to the terms of the Implementation Agreement, all outstanding options (other than those options held by non-employee Verigy board members) to purchase ordinary shares of Verigy, no par value, were assumed by the Registrant and converted into options to purchase common stock of the Registrant.

 
PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information required by Part I of this Registration Statement are omitted from this Registration Statement and have been or will be sent to employees as specified by Rule 428 of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.  Incorporation of Documents by Reference.

The following documents previously filed with the Commission are incorporated by reference as of their respective dates into this Registration Statement and shall be deemed a part hereof:

(i)        the Registrant’s Annual Report on Form 20-F filed with the Commission on June 24, 2011;

(ii)       the description of the American Depository Shares of the Registrant contained in the Registrant’s Registration Statement on Form 20-F filed with the Commission on September 4, 2001; and

(iii)      all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since March 31, 2011.

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of the filing hereof and prior to the filing of a post-effective amendment to this Registration Statement 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 a part hereof from the date of filing of such documents.

Any statement contained in a document incorporated or deemed incorporated by reference in this Registration Statement 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 which also is or 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.

Item 6.  Indemnification of Directors and Officers.

 
 
 


Articles 330 of the Corporate Law of Japan (the “Corporate Law”) make the provisions of Section 10, Chapter 2, Book III of the Civil Code of Japan applicable to the relationships between the Registrant and its directors and corporate auditors, respectively.  Section 10, among other things, provides in effect that:
 
(1)        Any director or corporate auditor of a company may demand advance payment of expenses which are considered necessary for the management of the affairs of such company entrusted to such director or corporate auditor;

(2)        If a director or corporate auditor of a company has defrayed any expenses which are considered necessary for the management of the affairs of such company entrusted to such director or corporate auditor, the director or corporate auditor may demand reimbursement therefor and interest thereon after the date of payment from the company;

(3)        If a director or corporate auditor has assumed an obligation necessary for the management of affairs entrusted to such director or corporate auditor, the director or corporate auditor may require the company to perform it in such director’s or corporate auditor’s place or, if it is not due, to furnish adequate security; and

(4)        If a director or corporate auditor, without any fault on such director’s or corporate auditor’s part, sustains damage through the management of the affairs entrusted to such director or corporate auditor, the director or corporate auditor may demand compensation therefor from the company.

Under Article 388 of the Corporate Law, a company may not refuse a demand from a corporate auditor referred to in subparagraphs (1) through (3) above unless the company establishes that the relevant expense or obligation was or is not necessary for the performance of the corporate auditor’s duties.

Pursuant to Article 426 of the Corporate Law, Article 27, Paragraph 1 and Article 38, Paragraph 1 of the Registrant’s Articles of Incorporation, the Registrant may, by resolution of its board of directors, exempt the liabilities of its directors and corporate auditors (including persons who have previously served as the Registrant’s directors or corporate auditors) to the extent of the amount permitted under the Corporate Law and applicable law and regulations.  Pursuant to Article 427 of the Corporate Law, Article 27, Paragraph 2 and Article 38, Paragraph 2 of the Registrant’s Articles of Incorporation, the Registrant may conclude an agreement with its outside directors and outside corporate auditors to limit the liability for damages of the Registrant caused by non-performance of their duties to the extent of the amount permitted under the Corporate Law and applicable law and regulations. 

The Registrant maintains a directors' insurance policy to insure its directors and corporate auditors against liability for actions or omissions occurring in their capacity as director or corporate auditor, subject to certain exclusions and limitations.
 
Item 7.  Exemption from Registration Claimed.

Not applicable.

Item 8.  Exhibits.

See Exhibit list on page 9 of this Registration Statement.

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 this 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
     
   
(iii)     To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
     
   
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 15(d) of the Exchange Act that are incorporated by reference into 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; and
   
 
(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 that is incorporated by reference in this 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 of 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.

 

 
 
 

SIGNATURES
 
Pursuant to the requirements of the Securities Act, 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 Chiyoda-ku, Tokyo of Japan on this 21st day of July, 2011.

 
   
ADVANTEST CORPORATION
     
 
By:
/s/ Yuichi Kurita
   
Name:   
Yuichi Kurita
   
Title:    
Director and Senior Executive Officer


 
 
 

POWER OF ATTORNEY
 
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and appoints Yuichi Kurita as his true and lawful attorney-in-fact and agent with full powers 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 registration statements filed pursuant to Rule 462 under the Securities Act, and to file the same with all exhibits thereto, and all documents in connection therewith, with the Commission, granting such attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the indicated capacities on July 21, 2011.

Signature
  
Capacity
     
     
/s/ Toshio Maruyama
  
  
Toshio Maruyama
  
Chairman of the Board and Representative Director
     
     
/s/ Haruo Matsuno
    
Haruo Matsuno
  
Representative Director, President and CEO
(Principal Executive Officer)
     
     
 Naoyuki Akikusa
  
Director
     
     
     
Yasushige Hagio
  
Director
     
     
/s/ Yuichi Kurita
    
Yuichi Kurita
  
Director and Senior Executive Officer
(Principal Financial Officer)
     
     
/s/ Hiroyasu Sawai
    
Hiroyasu Sawai
  
Director and Managing Executive Officer
     
     
/s/ Shinichiro Kuroe
  
  
Shinichiro Kuroe
  
Director and Managing Executive Officer
     
     
/s/ Sae Bum Myung
    
Sae Bum Myung
  
Director and Managing Executive Officer
     
     
/s/ Hiroshi Nakamura
    
Hiroshi Nakamura
  
Managing Executive Officer
(Principal Accounting Officer)


 
 
 


Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Advantest Corporation has signed this Registration Statement or amendment thereto in Santa Clara, California, on July 21, 2011.


 
Advantest America Corporation (Holding Co.)
  
       
       
 
By:  
          /s/ Keith Hardwick
  
   
Name:   
Keith Hardwick
  
   
Title:   
Corporate Secretary
  

 
 
 
 
EXHIBIT INDEX
 
 
Exhibit
Number
  
                 Description
       
 
4.1
  
Amended and Restated Articles of Incorporation of the Registrant (English Translation) (incorporated by reference herein to the Registrant’s Report on Form 20-F (No. 001-15236), filed June 26, 2009).
       
 
4.2
  
Regulations of the Board of Directors of the Registrant (English Translation) (incorporated by reference herein to the Registrant’s Annual Report on Form 20-F (No. 001-15236), filed June 26, 2008).
       
 
4.3
  
Share Handling Regulations of the Registrant (English Translation) (incorporated by reference herein to the Registrant’s Annual Report on Form 20-F (No. 001-15236), filed June 26, 2009).
       
 
4.4
  
Form of Deposit Agreement, dated as of September 14, 2001, among Advantest Corporation, JPMorgan Chase Bank (formerly known as Morgan Guaranty Trust Company of New York), as depositary, and all holders from time to time of American Depositary Receipts issued thereunder, including the form of American Depositary Receipt attached thereto as Exhibit A (incorporated by reference herein to Exhibit A to the Registrant’s Registration Statement on Form F-6 (Registration No. 333-13886)).
       
 
4.5
  
Form of Amendment No. 1 to Deposit Agreement, among Advantest Corporation, JP Morgan Chase Bank, as depositary, and holders from time to time of American Depositary Receipts, including the form of American Depositary Receipt attached thereto as Exhibit (a)(2) (incorporated by reference herein to the Post Effective Amendment to the Registrant’s Registration Statement on Form F-6 (No. 333-13886) filed September 12, 2006).
       
 
4.6*
  
Rules of the The Advantest Corporation 2011 Equity Incentive Plan  (for Verigy Ltd.).
       
 
5*
  
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of securities being offered hereby.
       
 
23.1*
  
Consent of Ernst & Young ShinNihon LLC.
       
 
23.2*
  
Consent of  Skadden, Arps, Slate, Meagher & Flom LLP (contained in Exhibit 5).
       
 
24*
  
Powers of Attorney (included on signature page to this Registration Statement).
       
* Filed herewith.