-----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, IFLPpj1/8IJv/MRAbDYCfD+m1Tbado/NPx+zmHqhX5SaylQbA6y8ZjbZBBhU72E5 4KPYbWvV33F/f6yMbA2m5Q== 0000895419-05-000004.txt : 20050114 0000895419-05-000004.hdr.sgml : 20050114 20050114164521 ACCESSION NUMBER: 0000895419-05-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 REFERENCES 429: 000-21154 FILED AS OF DATE: 20050114 DATE AS OF CHANGE: 20050114 EFFECTIVENESS DATE: 20050114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CREE INC CENTRAL INDEX KEY: 0000895419 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 561572719 STATE OF INCORPORATION: NC FISCAL YEAR END: 0626 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-122072 FILM NUMBER: 05531153 BUSINESS ADDRESS: STREET 1: 4600 SILICON DR CITY: DURHAM STATE: NC ZIP: 27703 BUSINESS PHONE: 9193135300 MAIL ADDRESS: STREET 1: 4600 SILICON DR CITY: DURHAM STATE: NC ZIP: 27703-8475 FORMER COMPANY: FORMER CONFORMED NAME: CREE RESEARCH INC /NC/ DATE OF NAME CHANGE: 19940224 S-8 1 fs8_01142005-ec.txt REGISTRATION STATEMENT ON FORM S-8 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. AMENDED AND RESTATED EQUITY COMPENSATION PLAN (AS AMENDED AND RESTATED) (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, 5,358,777 $33.13 $177,536,282.01 $20,896.02 $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 an additional 5,358,777 shares of the Common Stock of the Registrant, $0.00125, par value, issuable under the Cree, Inc. Amended and Restated Equity 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 of 1934. 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 Pursuant to General Instruction E of Form S-8, the prior Registration Statement relating to the Plan, Registration No. 333-92479 filed with the Commission on December 12, 1999, remains effective, and the contents of such Registration Statement are incorporated in this Registration Statement by this reference. 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. 2 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. 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) 3 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 4 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) 5 EX-5.1 2 fs8_01142005-ecex51.txt OPINION OF SMITH, ANDERSON, ET AL. EXHIBIT 5.1 OFFICES Mailing Address 2500 Wachovia Capitol Center P.O. Box 2611 Raleigh, North Carolina 27601 Raleigh, North Carolina 27602-2611 TELEPHONE: (919) 821-1220 FACSIMILE: (919) 821-6800 January 14, 2005 Cree, Inc. 4600 Silicon Drive Durham, North Carolina 27703 Re: Cree, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel for Cree, Inc., a North Carolina corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 5,358,777 shares of common stock (the "Shares"), $0.00125 par value per share, for issuance under the Cree, Inc. Amended and Restated Equity Compensation Plan (the "Plan"). This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. We have examined the Restated Articles of Incorporation of the Company, as amended (the "Articles"), the Bylaws of the Company (the "Bylaws"), the minutes of the meetings of the Board of Directors of the Company relating to the approval of the Plan and the authorization and the issuance of the Shares and such other corporate documents, records, and matters of law as we have deemed necessary for purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents as originals, the conforming to originals of all documents submitted to us as certified copies or photocopies, and the authenticity of originals of such latter documents. We have also received a certificate of an officer of the Company, dated of even date herewith, relating to the issuance of the Shares pursuant to the Plan. Based on such examination and such certificate, it is our opinion that the Shares may be validly issued in accordance with the Articles and Bylaws, and when so issued and duly delivered against payment therefor in accordance with the Plan as described in the Registration Statement, such Shares will be validly issued, fully paid, and non-assessable. This opinion is limited to the laws of the State of North Carolina, and we express no opinion as to the laws of any other jurisdiction. The opinion expressed herein does not extend to compliance with federal and state securities laws relating to the sale of the Shares. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Such consent shall not be deemed to be an admission that our firm is within the category of persons whose consent is required under Section 7 of the Act or the regulations promulgated pursuant to the Act. Our opinion is as of the date hereof, and we do not undertake to advise you of matters that might come to our attention subsequent to the date hereof which may affect our legal opinion expressed herein. Sincerely yours, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P. EX-23 3 fs8_01142005-ecex231.txt CONSENT OF ERNEST & YOUNG LLP EXHIBIT 23.1 Consent of Independent Registered Public Accounting Firm We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Cree, Inc. Amended and Restated Equity Compensation Plan of our report dated July 23, 2004, with respect to the consolidated financial statements of Cree, Inc. included in its Annual Report (Form 10-K) for the year ended June 27, 2004, filed with the Securities and Exchange Commission. /s/ Ernst & Young, LLP Raleigh, North Carolina January 12, 2005 -----END PRIVACY-ENHANCED MESSAGE-----