As filed with the Securities and Exchange Commission on November 5, 2001.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
Form S-8
Registration Statement
Under
The Securities Act of 1933
CREE, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-1572719
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4600 Silicon Drive
Durham, North Carolina 27703
(Address of Principal Executive Offices) (Zip Code)
Cree, Inc.
Fiscal 2002 Stock Option Bonus Plan
Cree, Inc.
2001 Nonqualified Stock Option Plan
(Full title of the plans)
CYNTHIA B. MERRELL
CHIEF FINANCIAL OFFICER AND TREASURER
Cree, Inc.
4600 Silicon Drive
Durham, North Carolina 27703
(Name and address of agent for service)
(919) 313-5300
(Telephone number, including area code, of agent for service)
Copies to:
Gerald F. Roach, Esq.
Chris B. Capel, Esq.
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.
2500 First Union Capitol Center
Raleigh, North Carolina 27601
(919) 821-1220
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering Registration
registered registered (1) share (2) price Fee
================================================================================
Common Stock, 3,600,000 $17.48 $62,928,000 $15,732.00
$0.00125 par shares
value
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(1) Of the 3,600,000 shares registered herewith, 600,000 shares will be
issuable under the Cree, Inc. Fiscal 2002 Stock Option Bonus Plan and
3,000,000 shares will be issuable under the Cree, Inc. 2001 Nonqualified
Stock Option Plan.
(2) This price is estimated solely for the purpose of calculating the
registration fee. Pursuant to Rules 457(c) and (h), shares that may be the
subject of the plans are deemed to be offered at $17.48 per share, the
average of the high and low prices for the Registrant's Common Stock on
October 30, 2001 in the Nasdaq National Market System.
PART I
Information Required in the Section 10(a) Prospectus
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this registration statement omits the information specified in
Part I of Form S-8. The documents containing the information specified in Part I
will be delivered to the participants in the Cree, Inc. Fiscal 2002 Stock Option
Bonus Plan and the Cree, Inc. 2001 Nonqualified Stock Option Plan (hereinafter
referred to collectively as the "Plans") as required by Rule 482(b) under the
Securities Act. Such documents are not being filed with the Commission as part
of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended June 24, 2001.
(b) The Company's Quarterly Report on Form 10-Q for the period ended September
23, 2001.
(c) The description of the Company's common stock contained in its registration
statement on Form 8-A filed with the Commission under Section 12 of the
Securities Exchange Act of 1934.
All documents filed by the Company subsequent to the date hereof 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 under
the Plans 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.
Item 6. Indemnification of Directors and Officers
North Carolina law permits a corporation to indemnify its directors,
officers, employees or agents under either a statutory or nonstatutory scheme of
indemnification, or both. Under the statutory scheme, a corporation may, with
certain exceptions, indemnify a director, officer, employee or agent of the
corporation who was, is, or is threatened to be made, a party to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative, because of the fact that such person was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. This indemnity may include the obligation to
pay any judgment, settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan) and reasonable expenses incurred in
connection with the proceeding (including counsel fees), but no such
indemnification may be granted unless such director, officer, agent or employee
(1) conducted himself in good faith, (2) reasonably believed (a) that any action
taken in his official capacity with the corporation was in the best interest of
the corporation or (b) that in all other cases his conduct at least was not
opposed to the corporation's best interest and (3) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. Whether
a director has met the requisite standard of conduct for the type of
indemnification set forth above is determined by the corporation's board of
directors, a committee of directors, special legal counsel or the shareholders
in accordance with the statute. A corporation may not indemnify a director under
the statutory scheme in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation or in
connection with a proceeding in which a director was adjudged liable on the
basis of having received an improper personal benefit.
In addition to, and separate and apart from, the indemnification described
above under the statutory scheme, North Carolina law permits a corporation to
indemnify or agree to indemnify any of its directors, officers, employees or
agents against liability and expenses (including attorneys fees) in any
proceeding (including proceedings brought by or on behalf of the corporation)
arising out of their status as such or their activities in such capacities,
except for any liabilities or expenses incurred on account of activities that
were, at the time taken, known or believed by the person to be clearly in
conflict with the best interest of the corporation. The Company's bylaws provide
for indemnification to the fullest extent permitted under North Carolina law,
provided, however, that the Company will indemnify any person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the Board of Directors of the Company.
Accordingly, the Company may indemnify its directors, officers and employees in
accordance with either the statutory or nonstatutory standard, or both.
North Carolina law requires a corporation, unless its Articles of
Incorporation provide otherwise, to indemnify a director or officer who has been
wholly successful, on the merits or otherwise, in the defense of any proceeding
to which such director or officer was a party. Unless prohibited by the Articles
of Incorporation, a director or officer also may make application and obtain
court-ordered indemnification if the court determines that such director or
officer is fairly and reasonably entitled to such indemnification.
Finally, North Carolina law provides that a corporation may purchase and
maintain insurance on behalf of an individual who is or was a director, officer,
employee or agent to the corporation against certain liabilities incurred by
such persons, whether or not the corporation is otherwise authorized under North
Carolina law to indemnify such party. The Company currently maintains directors'
and officers' insurance policies covering its directors and officers.
As permitted by North Carolina law, the Company's articles limit the
personal liability of a director for monetary damages for breaches of duty as a
director, provided that such limitation will not apply to (1) acts or omissions
not made in good faith that the director at the time of the breach knew or
believed were clearly in conflict with the Company's best interests, (2) any
liability for unlawful distributions under North Carolina law, (3) any
transaction from which the director derived an improper personal benefit or (4)
acts or omissions occurring prior to the date the provision of the articles
became effective.
Item 8. Exhibits
The following exhibits are filed as a part of this Registration Statement:
Exhibit
Number Description of Exhibit
------- ---------------------------------------------------------------
4.1 Specimen Stock Certificate (1)
4.2 Amended and Restated Articles of Incorporation (2)
4.3 Amended and Restated Bylaws (3)
5.1 Legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P. (included in Exhibit 5.1)
23.2 Consent of Independent Auditors
24 Power of Attorney (Contained on signature page)
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(1) Incorporated by reference herein. Filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-94013, effective
as of January 13, 2000.
(2) Incorporated by reference herein. Filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarterly period ending December 24,
2000, filed February 2, 2001.
(3) Incorporated by reference herein. Filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ending June 24, 2001, filed August
27, 2001.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(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 20% 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) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and 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 registration
pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement; and
(b) 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; and
(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.
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 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.
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, 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 Durham, State of North Carolina, on November 5, 2001.
CREE, INC.
By: /s/ Charles M. Swoboda
--------------------------------
Charles M. Swoboda
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles M. Swoboda and Cynthia B. Merrell and
each of them, each with full power to act without the other, his true and lawful
attorneys-in-fact and agents, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or 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 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 for all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the following
persons have signed this Registration Statement on November 5, 2001 in the
capacities indicated.
Signature Title
--------- -----
/s/ Charles M. Swoboda President, Chief Executive
--------------------------------------- Officer and Director
Charles M. Swoboda
/c/ Cynthia B. Merrell Chief Financial Officer and
--------------------------------------- Treasurer
Cynthia B. Merrell (Chief Accounting and Financial
Officer)
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F. Neal Hunter Executive Chairman and Director
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John W. Palmour, Ph.D. Director
/s/ James E. Dykes
---------------------------------------
James E. Dykes Director
/s/ Dolph W. von Arx
---------------------------------------
Dolph W. von Arx Director
/s/ William J. O'Meara
---------------------------------------
William J. O'Meara Director
/s/ Robert J. Potter
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Robert J. Potter, Ph.D. Director
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------- ----------------------------------------------------------------
4.1 Specimen Stock Certificate (1)
4.2 Amended and Restated Articles of Incorporation (2)
4.3 Amended and Restated Bylaws (3)
5.1 Legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P. (included in Exhibit 5.1)
23.2 Consent of Independent Auditors
24 Power of Attorney (Contained on signature page)
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(1) Incorporated by reference herein. Filed as an exhibit to the Company's
Registration Statement on Form S-3, Registration No. 333-94013, effective
as of January 13, 2000.
(2) Incorporated by reference herein. Filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarterly period ending December 24,
2000, filed February 2, 2001.
(3) Incorporated by reference herein. Filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ending June 24, 2001, filed August
27, 2001.