As filed with the Securities and Exchange Commission on January 14, 2005
Registration No. 333-__________
UNITED STATES
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 Identification No.)
incorporation or organization)
4600 Silicon Drive
Durham, North Carolina 27703
(Address of Principal Executive Offices) (Zip Code)
CREE, INC.
2004 LONG-TERM INCENTIVE COMPENSATION PLAN
(Full title of the plan)
Cynthia B. Merrell
Chief Financial Officer and Treasurer
Cree, Inc.
4600 Silicon Drive
Durham, North Carolina 27703
(919) 313-5300
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Adam H. Broome, Esq.
Cree, Inc.
4600 Silicon Drive
Durham, North Carolina 27703
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of Securities To Be Offering Price Aggregate Registration
To Be Registered Registered Per Share Offering Price Fee
--------------------------------------------------------------------------------
Common Stock, 1,901,023 $33.13 $62,980,891.99 $7,412.85
$0.00125 Par Value (1) (2) (2) (2)
--------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such additional
shares of Common Stock as may be issued to prevent dilution of the shares
of Common Stock covered hereby resulting from stock splits, stock dividends
or similar transactions.
(2) Calculated solely for the purpose of this offering pursuant to Rule 457(h)
on the basis of the average of the high and low prices of the Common Stock
as reported on the Nasdaq National Market on January 11, 2005.
PART I
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
This Registration Statement on Form S-8 is being filed by the Registrant to
register 1,901,023 shares of the Common Stock of the Registrant, $0.00125, par
value, issuable under the Cree, Inc. 2004 Long-Term Incentive Compensation Plan
(the "Plan"). 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 and consists of only those items required by
General Instruction E to Form S-8. The document containing the information
specified in Part I will be delivered to the participants in the Plan as
required by Rule 482(b) under the Securities Act. This document is not being
filed with the Commission as part of this Registration Statement or a prospectus
or prospectus supplement pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are hereby incorporated
by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended June
27, 2004, filed on August 20, 2004;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended September 26, 2004, filed on November 5, 2004, and the Registrant's
Current Reports on Form 8-K filed on October 7, 2004, October 14, 2004,
October 19, 2004, November 9, 2004 and January 13, 2005;
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on January 29, 1993,
and any amendments or reports filed for the purpose of updating such
description; and
(d) The description of the rights attached to the Registrant's Common Stock
contained in the Company's Registration Statement on Form 8-A filed on May
30, 2002, and any amendments or reports filed for the purpose of updating
such description.
In addition, all documents subsequently filed by the Registrant 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 in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel
The validity of the securities being registered by this Registration
Statement will be passed upon for the Registrant by Smith, Anderson, Blount,
Dorsett, Mitchell & Jernigan, L.L.P., Raleigh, North Carolina. As of the date of
this Registration Statement, certain current individual attorneys with Smith,
Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. beneficially own an
aggregate of 3,750 shares of Cree, Inc. common stock.
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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 non-statutory scheme
of indemnification, or both. The statutory scheme includes mandatory,
court-ordered and permissive indemnification. 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 because he or she was a director or officer of the corporation
against reasonable expenses incurred by him or her in connection with the
proceeding. Unless prohibited by the articles of incorporation, a director or
officer also may apply for and obtain court-ordered indemnification if the court
determines that such director or officer is fairly and reasonably entitled to
such indemnification.
North Carolina law also permits a corporation to indemnify any of its
directors, officers, employees or agents against liability incurred in any
proceeding if he or she: (1) conducted himself or herself in good faith; (2)
reasonably believed (a) that any action taken in his or her official capacity
with the corporation was in the best interest of the corporation and (b) that in
all other cases his or her 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 or her conduct was unlawful. Whether a director, officer,
employee or agent has met the requisite standard of conduct for the type of
indemnification set forth above is determined by the corporation's board of
directors in accordance with the statute. A corporation may not indemnify a
director, officer, employee or agent under the statutory scheme in connection
with a proceeding by or in the right of the corporation in which the director,
officer, employee or agent was adjudged liable to the corporation or in
connection with a proceeding, whether or not involving action in his or her
official capacity, in which a director, officer, employee or agent 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, in
its articles of incorporation or bylaws, to indemnify or agree to indemnify any
of its directors, officers, employees or agents against liability and expenses
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. Accordingly, the
Registrant may indemnify its directors, officers, employees and agents in
accordance with either the statutory or non-statutory standard, or both.
The Registrant agrees in its bylaws to indemnify to the fullest extent from
time to time permitted by law any current or former director or officer of the
Registrant or any person serving at the request of the Registrant as an officer,
director, agent, partner, trustee, administrator or employee for any other
entity who is made, or is threatened to be made, a party to any threatened,
pending or completed civil, criminal, administrative, investigative or
arbitrative action, suit or proceeding and any appeal therein (and any inquiry
or investigation that could lead to such action, suit or proceeding), whether or
not brought by or on behalf of the Registrant, seeking to hold him or her liable
by reason of the fact that he or she is or was acting in such capacity. Such
indemnity would not extend to any liability or expense incurred on account of
activities that the indemnitee knew or believed to be, at the time taken,
clearly in conflict with the best interests of the Registrant. Indemnification
under the bylaws may include the obligation to pay any judgment, money decree,
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 attorneys' fees). The Registrant may also indemnify
employees and agents of the Registrant as its Board of Directors deems
appropriate.
As permitted by North Carolina law, the Registrant's articles of
incorporation limit the personal liability of a director for monetary damages
for breach of his or her 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 in conflict with the Registrant'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 such
provision of the articles of incorporation became effective.
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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 of 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 Registrant currently maintains
directors' and officers' insurance policies covering its directors and officers.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
5.1 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P. (Contained in Exhibit 5.1)
24.1 Power of Attorney (Contained on signature page)
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%
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 clauses (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those clauses 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 the
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 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.
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(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 Durham, State of North Carolina, on this 14th day of
January, 2005.
CREE, INC.
By: /s/ Charles M. Swoboda
-------------------------------------
Charles M. Swoboda
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Charles M. Swoboda and Cynthia B. Merrell, and
each of them, his true and lawful attorneys-in-fact and agents 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 all 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 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 their substitutes, 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 dates indicated.
Name Title Date
Chairman and Director January __, 2005
------------------------
F. Neal Hunter
/s/ Charles M. Swoboda President, Chief Executive January 14, 2005
------------------------ Officer and Director
Charles M. Swoboda (Principal Executive Officer)
/s/ Cynthia B. Merrell Chief Financial Officer and January 14, 2005
------------------------ Treasurer (Principal Financial
Cynthia B. Merrell Officer and Principal Accounting
Officer)
/s/ James E. Dykes Director January 12, 2005
------------------------
James E. Dykes
/s/ John W. Palmour Director January 12, 2005
------------------------
John W. Palmour, Ph.D.
/s/ Robert J. Potter Director January 12, 2005
------------------------
Robert J. Potter, Ph.D.
/s/ Dolph W. von Arx Director January 12, 2005
------------------------
Dolph W. von Arx
/s/ Harvey A. Wagner Director January 13, 2005
------------------------
Harvey A. Wagner
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
5.1 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P. (Contained in Exhibit 5.1)
24.1 Power of Attorney (Contained on signature page)
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