-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PfsMnzjvJPpTV+605oaXeehchESDhSEDBwZeNMeRDHaFnUGZmoxmH1O7vuGvubhl ksueEzpbTPATMx4CIbAeVg== /in/edgar/work/20000810/0000895419-00-000013/0000895419-00-000013.txt : 20000921 0000895419-00-000013.hdr.sgml : 20000921 ACCESSION NUMBER: 0000895419-00-000013 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000810 EFFECTIVENESS DATE: 20000810 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CREE INC CENTRAL INDEX KEY: 0000895419 STANDARD INDUSTRIAL CLASSIFICATION: [3674 ] IRS NUMBER: 561572719 STATE OF INCORPORATION: NC FISCAL YEAR END: 0627 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-43490 FILM NUMBER: 691987 BUSINESS ADDRESS: STREET 1: 4600 SILICON DR CITY: DURHAM STATE: NC ZIP: 27703 BUSINESS PHONE: 9193615709 MAIL ADDRESS: STREET 1: 4600 SILICON DR STREET 2: STE 176 CITY: DURHAM STATE: NC ZIP: 27703 FORMER COMPANY: FORMER CONFORMED NAME: CREE RESEARCH INC /NC/ DATE OF NAME CHANGE: 19940224 S-8 1 0001.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 10, 2000 Registration No. 333- - -------------------------------------------------------------------------------- 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) NITRES, INC. 1999 STOCK OPTION/ISSUANCE PLAN (Full title of the plan) 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 - -------------------------------------------------------------------------------- Title of Amount Proposed maximum Proposed maximum Amount of securities to to be offering price aggregate offering registration be registered registered per share (1) price fee - -------------------------------------------------------------------------------- Common Stock, 136,543 $91.38 $12,477,299 $3,294.01 $0.0025 par shares value - -------------------------------------------------------------------------------- (1) 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 Plan are deemed to be offered at $91.38 per share, the average of the high and low prices for the Registrant's Common Stock on August 3, 2000 in the Nasdaq National Market System. 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 25, 2000. (b) 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 Plan 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 or both a statutory or non-statutory scheme of indemnification. 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 interests of the corporation. The Company's bylaws provide for indemnification to the fullest extent permitted under North Carolina law. Accordingly, the Company may indemnify its directors, officers, and employees in accordance with either the statutory or non-statutory standard. 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 of Incorporation limit the personal liability of a director for monetary damages for breaches of duty as a director whether by or in the right of the Company or otherwise, provided that such limitation will not apply to (1) acts or omissions 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 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 (1) 4.3 Amended and Restated Bylaws (1) 5.1 Legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP 23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP (included in Exhibit 5.1) 23.2 Consent of Independent Auditors 23.3 Consent of Independent Accountants 24.1 Power of Attorney (Contained on signature page) - ------------------- (1) Incorporated by reference herein. Filed as an exhibit to the Company's Registration Statement filed on Form S-3, as amended, Registration No. 333-94013, and declared effective by the Securities and Exchange Commission on January 13, 2000. Item 9. Undertakings 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 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. (2) 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 (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. 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 August 10, 2000. CREE, INC. By: /s/ F. Neal Hunter ---------------------------------------- F. Neal Hunter Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints F. Neal Hunter 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 July 31, 2000 in the capacities indicated. Signature Title /s/ F. Neal Hunter Chairman and Chief Executive Officer - ------------------------------- F. Neal Hunter /s/ Cynthia B. Merrell Chief Financial Officer and Treasurer - ------------------------------- (Chief Accounting and Financial Officer) Cynthia B. Merrell /s/ Calvin H. Carter, Jr. Director - ------------------------------- Calvin H. Carter, Jr., Ph.D. /s/ James E. Dykes Director - ------------------------------- James E. Dykes /s/ Michael W. Haley Director - ------------------------------- Michael W. Haley /s/ John W. Palmour Director - ------------------------------- John W. Palmour, Ph.D. /s/ Walter L. Robb Director - ------------------------------- Walter L. Robb, Ph.D. /s/ Dolph W. von Arx Director - ------------------------------- Dolph W. von Arx EXHIBIT INDEX Exhibit Number Description of Exhibit - -------------- ---------------------- 4.1 Specimen Stock Certificate (1) 4.2 Amended and Restated Articles of Incorporation (1) 4.3 Amended and Restated Bylaws (1) 5.1 Legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP 23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP (included in Exhibit 5.1) 23.2 Consent of Independent Auditors 23.3 Consent of Independent Accountants 24.1 Power of Attorney (Contained on signature page) - ------------------- (1) Incorporated by reference herein. Filed as an exhibit to the Company's Registration Statement filed on Form S-3, as amended, Registration No. 333-94013, and declared effective by the Securities and Exchange Commission on January 13, 2000. EX-5.1 2 0002.txt OPINION OF COUNSEL EXHIBIT 5.1 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. Lawyers P. O. Box 2611 Raleigh, North Carolina 27601 Phone: 919-821-1220 Fax: 919-821-6800 August 10, 2000 Cree, Inc. 4600 Silicon Drive Durham, North Carolina 27703 Ladies and Gentlemen: As counsel for Cree, Inc., a North Carolina Corporation (the "Company"), we furnish the following opinion in connection with the proposed issuance by the Company of up 136,543 shares of its common stock, $0.01 par value (the "Common Stock"), pursuant to the Nitres, Inc. 1999 Stock Option/Issuance Plan (the "Plan"). These securities are the subject of a Registration Statement to be filed by the Company with the Securities and Exchange Commission on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "1933 Act"), to which this opinion is to be attached as an exhibit. This opinion is furnished pursuant to the requirement of Item 601(b)(5) of Regulation S-K under the 1933 Act. We have examined the Articles of Incorporation and the Bylaws of the Company, the minutes of meetings of its Board of Directors, and such other corporate records of the Company and other documents and have made such examinations of law as we have deemed relevant for purposes of this opinion. We also have received a certificate of an officer of the Company, dated of even date herewith, relating to the issuance of the Common Stock pursuant to the Plan. Based on such examination and such certificate, it is our opinion that the 136,543 shares of Common Stock of the Company that are being registered pursuant to the Registration Statement have been duly authorized, and when duly issued and delivered against payment of the consideration therefor expressed in the applicable resolutions of the Board of Directors or a committee thereof, pursuant to the Plan as described in the Registration Statement, such shares will be validly issued, fully paid, and nonassessable. The opinion set forth herein is limited to matters governed by the laws of the State of North Carolina, and no opinion is expressed herein as to the laws of any other jurisdiction. The opinion set forth herein does not extend to compliance with state and federal securities laws relating to the sale of these securities. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement that the Company is about to file with the Securities and Exchange Commission. Such consent shall not be deemed to be an admission that this firm is within the category of persons whose consent is required under Section 7 of the 1933 Act or the regulations promulgated pursuant to the 1933 Act. Very truly yours, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P. EX-23.2 3 0003.txt CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8, 333-_____) of Cree, Inc., pertaining to the Nitres, Inc. 1999 Stock Option/Issuance Plan of (i) our report dated July 21, 2000, with respect to the consolidated financial statements of Cree, Inc. and subsidiaries, and (ii) our report dated March 26, 2000, except for Note 8, as to which the date is April 10, 2000, with respect to the financial statements of Nitres, Inc. included in the Annual Report (Form 10-K) of Cree, Inc. for the year ended June 25, 2000 filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Raleigh, North Carolina August 8, 2000 EX-23.3 4 0004.txt CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.3 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated July 22, 1998, except for the restatement of the fiscal 1998 financial statements as a result of the business combination described in the first three paragraphs of Note 2 for which the date is May 1, 2000, relating to the financial statements of Cree, Inc., which appears in Cree, Inc.'s Annual Report on Form 10-K for the year ended June 25, 2000. /s/ PricewaterhouseCoopers LLP Raleigh, North Carolina August 8, 2000 -----END PRIVACY-ENHANCED MESSAGE-----