-----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, N1A87rafx38Sq7oGF415ueYTB/osmZuSCCSRxPOnyNwmwYVcLhEBC+Kv6jNA2wSK I0qgGQahFFt22bkkb04sow== 0000895419-99-000022.txt : 19991213 0000895419-99-000022.hdr.sgml : 19991213 ACCESSION NUMBER: 0000895419-99-000022 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991210 EFFECTIVENESS DATE: 19991210 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CREE RESEARCH INC /NC/ CENTRAL INDEX KEY: 0000895419 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 561572719 STATE OF INCORPORATION: NC FISCAL YEAR END: 0627 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-92477 FILM NUMBER: 99772169 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 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on December 10, 1999 Registration No. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- Form S-8 Registration Statement under the Securities Act of 1933 CREE RESEARCH, 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 RESEARCH, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) F. Neal Hunter, Chairman Cree Research, 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) Copy to: Gerald F. Roach, 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 Amount of securities Amount to offering price aggregate registration to be registered be registered per share offering price fee - -------------------------------------------------------------------------------- Common Stock, 300,000 (1) $64.75 (2) $19,425,000 (2) $ 5,128.20 $0.0025 par value shares - -------------------------------------------------------------------------------- (1) Plus such indeterminate number of shares as may be issued pursuant to certain anti-dilution provisions contained in the 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 Plan are deemed to be offered at $64.75 per share, the average of the high and low prices for the Registrant's Common Stock on December 3, 1999 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 27, 1999. b) The Company's Quarterly Report on Form 10-Q for the period ended September 26, 1999. c) The Company's Current Report on Form 8-K dated July 13, 1999. d) 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 for persons who serve as directors or officers of the Company or at the request of the Company serve as officers, directors, agents, partners, trustees, administrators or employees of any other foreign or domestic corporation or enterprise. Accordingly, the Company may indemnify its directors, officers, and employees in accordance with either the statutory or non-statutory standard. In addition, 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 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. In addition, the Company's articles also provide that the Company's board of directors shall have the authority to adopt resolutions approving the indemnification, to the fullest extent provided under North Carolina law, of any person made a party to any action or proceeding, whether civil, criminal or administrative, by reason of the fact that such person was serving as a director, officer, employee or agent of the Company. Item 8. Exhibits The following exhibits are filed as a part of this Registration Statement: Exhibit Number Description of Exhibit - ------- ---------------------- 4.01(1) Amended and Restated Articles of Incorporation 4.02(1) Amended and Restated Bylaws 5 Legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of PricewaterhouseCoopers LLP 23.3 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP (Included in Exhibit 5) 24 Power of Attorney (Contained on signature page). - --------------------- (1) Exhibit to the Company's Annual Report on Form 10-K for the year ended June 27, 1999 as filed with the Commission and incorporated herein by reference. 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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 December 10, 1999. CREE RESEARCH, 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 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, this Registration Statement has been signed by the following persons on December 10, 1999 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 Cynthia B. Merrell Officer) /s/ CALVIN H. CARTER, JR. Director - ----------------------------------- Calvin H. Carter, Jr., Ph.D. /s/ JAMES E. DYKES Director - ----------------------------------- James E. Dykes Director - ----------------------------------- Michael W. Haley /s/ WALTER L. ROBB Director - ----------------------------------- Walter L. Robb, Ph.D. /s/ DOLPH W. VON ARX Director - ----------------------------------- Dolph W. Von Arx Director - ----------------------------------- John W. Palmour, Ph.D. EXHIBIT INDEX Exhibit Number Description of Exhibit - ------- ---------------------- 4.01(1) Amended and Restated Articles of Incorporation 4.02(1) Amended and Restated Bylaws 5 Legal opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of PricewaterhouseCoopers LLP 23.3 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP (Included in Exhibit 5) 24 Power of Attorney (Contained on signature page). - ---------------------- (1) Exhibit to the Company's Annual Report on Form 10-K for the year ended June 27, 1999 as filed with the Commission and incorporated herein by reference. EX-5 2 LEGAL OPINION OF COUNSEL EXHIBIT 5 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P Post Office Box 2611 Raleigh, North Carolina 27602-2611 Telephone: (919) 821-1220 Facsimile: (919) 821-6800 December 10, 1999 Cree Research, Inc. 4600 Silicon Drive Durham, North Carolina 27703 Ladies and Gentlemen: As counsel for Cree Research, Inc. (the "Company"), we furnish the following opinion in connection with the proposed issuance by the Company of up to 300,000 additional shares of its common stock (the "Common Stock"), pursuant to the Cree Research, Inc. 1999 Employee Stock Purchase 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 "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 Act. We have examined the Amended and Restated Articles of Incorporation, as amended, and Bylaws, as amended, of the Company, the minutes of meetings of its Board of Directors, and such other documents and considered such matters of law and fact as we, in our professional judgment, have deemed appropriate to render the opinion contained herein. Based on such examination, it is our opinion that the shares of Common Stock of the Company, which are being registered pursuant to the Registration Statement, may be legally issued in accordance with the Company's Amended and Restated Articles of Incorporation and Bylaws, and when so issued and duly delivered against payment therefor pursuant to the terms of the Plan, such shares will be legally issued, fully paid, and nonassessable. 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 this 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. This opinion is limited to the laws of the State of North Carolina and no opinion is expressed as to the laws of any other jurisdiction. Our opinion is as of the date hereof, and we do not undertake to advise you of matters which might come to our attention subsequent to the date hereof which may affect our legal opinion expressed herein. Very truly yours, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P. /s/ Smith, Anderson, Blount, Dorsett Mitchell & Jernigan, L.L.P. EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 of Cree Research, Inc., pertaining to the Cree Research, Inc. 1999 Employee Stock Purchase Plan, of our report dated July 23, 1999 with respect to the consolidated financial statements of Cree Research, Inc. included in its Annual Report on Form 10-K for the fiscal year ended June 27, 1999 filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Raleigh, North Carolina December 7, 1999 EX-23.2 4 CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the inclusion in the Registration Statement on Form S-8, pertaining to the Cree Research, Inc. 1999 Employee Stock Purchase Plan, of our report dated July 22, 1998, on our audits of the financial statements of Cree Research, Inc. and subsidiaries. /s/ PricewaterhouseCoopers LLP Raleigh, North Carolina December 7, 1999 -----END PRIVACY-ENHANCED MESSAGE-----