As filed with the Securities and Exchange Commission on December 10, 1999
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 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
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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
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Common Stock, 300,000 (1) $64.75 (2) $19,425,000 (2) $ 5,128.20
$0.0025 par value shares
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(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.
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<PAGE>
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.
<PAGE>
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.
<PAGE>
Item 8. Exhibits
The following exhibits are filed as a part of this Registration Statement:
Exhibit
Number Description of Exhibit
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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).
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(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.
<PAGE>
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
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F. Neal Hunter
Chairman and Chief Executive Officer
<PAGE>
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
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F. Neal Hunter
/s/ CYNTHIA B. MERRELL Chief Financial Officer and Treasurer
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Cynthia B. Merrell Officer)
/s/ CALVIN H. CARTER, JR. Director
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Calvin H. Carter, Jr., Ph.D.
/s/ JAMES E. DYKES Director
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James E. Dykes
Director
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Michael W. Haley
/s/ WALTER L. ROBB Director
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Walter L. Robb, Ph.D.
/s/ DOLPH W. VON ARX Director
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Dolph W. Von Arx
Director
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John W. Palmour, Ph.D.
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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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).
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(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.
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.
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
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
