As filed with the Securities and Exchange Commission on August 10, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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
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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
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Common Stock, 136,543 $91.38 $12,477,299 $3,294.01
$0.0025 par shares
value
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(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.
<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 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.
<PAGE>
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
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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)
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(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.
<PAGE>
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.
<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 August 10, 2000.
CREE, 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 (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
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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
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Calvin H. Carter, Jr., Ph.D.
/s/ James E. Dykes Director
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James E. Dykes
/s/ Michael W. Haley Director
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Michael W. Haley
/s/ John W. Palmour Director
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John W. Palmour, Ph.D.
/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
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibit
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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)
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(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.
