forms-8.htm
As filed
with the Securities and Exchange Commission on January 26, 2010
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)
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North
Carolina
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56-1572719
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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| |
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4600
Silicon Drive
Durham,
North Carolina
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27703
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(Address
of Principal Executive Offices)
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(Zip
Code)
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CREE,
INC. NON-EMPLOYEE DIRECTOR STOCK COMPENSATION
AND DEFERRAL
PROGRAM
(Full
title of the plan)
John T.
Kurtzweil
Executive
Vice President – Finance, 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
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
accelerated filer x
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Accelerated
filer o
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Non-accelerated
filer o
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(Do not check if a
smaller reporting company)
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Smaller reporting
company o
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______________________________
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
To
Be Registered
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Amount
To Be
Registered
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Proposed
Maximum Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
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|
Deferred
Compensation
Obligations (1)
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$5,000,000
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100%
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$5,000,000 (2)
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$356.50 (2)
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Common
Stock,
$0.00125
par value (3)
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100,000
(4)
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$54.655 (5)
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$5,465,500 (5)
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$389.69 (5)
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(1) The
deferred compensation obligations being registered hereon (the “Deferred
Compensation Obligations”) arise under the Cree, Inc. Non-Employee
Director Stock Compensation and Deferral Program (the “Plan”) and are
general unsecured obligations of the Registrant to pay deferred
compensation in the future in accordance with the terms of the
Plan.
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(2) Estimated
solely for calculating the amount of the registration fee pursuant to Rule
457.
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(3)
Each share of Common Stock issued by the Registrant includes one right to
purchase a fraction of a share of Series A Preferred Stock. Prior to
the occurrence of certain events, the preferred stock purchase rights will
not be exercisable or evidenced separately from the
Common Stock. Accordingly, no additional registration fee
is required.
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(4) 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.
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(5) 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 Global Select Market on January 19,
2010.
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PART
I
INFORMATION
REQUIRED IN THE 10(a) PROSPECTUS
This
Registration Statement on Form S-8 is being filed by Cree, Inc. (the
“Registrant”) to register 100,000 shares of the Common Stock of the Registrant,
$0.00125 par value, issuable under the Non-Employee Director Stock
Compensation and Deferral Program (the “Plan”) and $5,000,000 of the
Registrant’s deferred compensation obligations (the “Deferred Compensation
Obligations”). 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. The documents containing the
information specified in Part I will be delivered to the participants in the
Plan as required by Rule 428(b) under the Securities Act. Such
documents are not being filed with the Commission as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule
424.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
| 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 28, 2009,
filed with the Commission on August 18, 2009;
(b) The
Registrant’s Quarterly Reports on Form 10-Q for the quarter ended September 27,
2009, filed with the Commission on October 21, 2009, and for the quarter
ended December 27, 2009, filed with the Commission on January 20,
2010;
(c) The
Registrant’s Current Reports on Form 8-K filed on August 11, 2009, August 21,
2009, September 11, 2009 and October 30, 2009;
(d) 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
(e) The
description of the rights attached to the Registrant’s Common Stock contained in
the Registrant’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 Securities Exchange Act of 1934, as
amended (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. However, any documents or portions
thereof, whether specifically listed above or filed in the future, that are not
deemed “filed” with the Commission, including without limitation any information
furnished pursuant to Item 2.02 or 7.01 of Form 8-K or certain exhibits
furnished pursuant to Item 9.01 of Form 8-K, shall not be deemed to be
incorporated by reference in this Registration Statement.
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.
| Item
4. |
Description
of Securities. |
Common
Stock. The Common Stock is registered under Section 12 of the
Exchange Act, and, accordingly, no description is provided
hereunder.
Deferred Compensation
Obligations. The following description of the Deferred
Compensation Obligations incurred by the Registrant under the Plan is qualified
by reference to the Plan.
The Plan
is an unfunded deferred compensation plan. The Deferred Compensation
Obligations are unsecured general obligations of the Registrant and will rank
equally with other unsecured and unsubordinated indebtedness of the Registrant,
from time to time outstanding, payable from the general assets of the
Registrant. These Deferred Compensation Obligations represent the
contractual obligations of the Registrant to distribute when due to participants
in the Plan shares of the Registrant’s common stock with respect to the amounts
deferred in accordance with the terms of the Plan.
Under the
Plan, the Registrant provides its non-employee directors with deferred
compensation benefits through deferrals of amounts (the “Fees”) earned for
service as a member of the Board of Directors of the Registrant (the “Board”)
(including amounts earned for service as a member of a committee of the
Board). The Plan provides eligible directors with the opportunity in
each election period to defer up to 100% of his or her Fees. The
portion of the participant’s Fees that is deferred depends on the participant’s
election in effect with respect to his or her elective contributions under the
Plan. The Registrant will maintain a deferral account for each
participant. All of such participant’s deferrals will be credited to
his or her deferral account. The deferral accounts are bookkeeping
entries only; the Plan is unfunded, the Registrant is not required to set aside
assets to be used for payment of the deferred compensation obligations under the
Plan and no deferral account is insured or otherwise secured.
Participants
who elect to defer compensation may elect to receive their deferred compensation
in shares of the Registrant’s common stock in a lump sum on a specified date
following the participant’s Separation from Service (as defined in the Plan) or
in annual installments on a specified date following the participant’s
Separation from Service (as defined in the Plan).
The
Registrant reserves the right to amend or terminate the Plan, provided that such
amendment or termination does not result in a reduction to the amounts credited
at that time to any participant’s account (except for mere clarifying amendments
necessary to avoid an inappropriate windfall).
| 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 3,110 shares of
the Registrant’s Common Stock.
| Item 6. |
Indemnification
of Directors and Officers. |
The
Registrant currently has provisions for limitation on the personal liability of
directors in its Articles of Incorporation, as restated (the “Articles of
Incorporation”), and provisions for indemnification of directors and officers in
its Bylaws, as amended and restated (the “Bylaws”). Additionally,
sections of the North Carolina Business Corporation Act (the “NCBCA”) provide
indemnification of the Registrant’s directors and officers in a variety of
circumstances.
Article VII of the Articles of Incorporation provides that no
director of the Registrant shall have personal liability arising out of an
action whether by or in the right of the Registrant or otherwise for monetary
damages for breach of his or her duty as a director. Consistent with
the NCBCA, the Articles of Incorporation do not limit or eliminate the personal
liability of a director with respect to (i) acts or omissions not made in good
faith that such director at the time of such breach knew or believed were in
conflict with the best interests of the Registrant, (ii) any liability under
Section 55-8-33 of the NCBCA or any successor provision, (iii) any transaction
from which such director derived an improper personal benefit, or (iv) acts or
omissions occurring prior to the date of the effectiveness of Article VII of the
Articles of Incorporation. In the event that the NCBCA is amended or
legislation is enacted to permit further limitation or elimination of the
personal liability of a director, Article VII provides that the personal
liability of the Registrant’s directors shall be limited or eliminated to the
fullest extent permitted by applicable law.
Article
IX, Section 3 of the Bylaws provides that the Registrant shall indemnify, to the
fullest extent permitted by law, any person who is made, or is threatened to be
made, a party to any threatened, pending or completed civil, criminal,
administrative, investigative or arbitrative action, suit or proceeding and any
appeal therein (and any inquiry or investigation that could lead to such action,
suit or proceeding), whether or not brought by or on behalf of the Registrant,
seeking to hold him liable by reason of the fact that he is or was acting in his
capacity as a director or officer of the Registrant, or at the request of the
Registrant is or was serving as a director or officer for any other foreign or
domestic corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan, or other enterprise, or as a trustee or
administrator under any employee benefit plan of the Registrant or a
wholly-owned subsidiary of the Registrant, against (i) reasonable expenses,
including without limitation all attorneys’ fees actually and necessarily
incurred by him in connection with any such action, suit or proceeding; (ii) all
reasonable payments made by him in satisfaction of any judgment, money decree,
fine (including an excise tax assessed with respect to an employee benefit
plan), penalty or settlement for which he may have become liable in such action,
suit or proceeding; and (iii) all reasonable expenses incurred in enforcing the
indemnification rights provided in the Bylaws. Pursuant to the
Bylaws, this indemnification may, at the discretion of the Registrant’s board of
directors, also include advancement of expenses related to such action, suit or
proceeding.
Sections 55-8-50
through 55-8-58 of the NCBCA permit a corporation to indemnify its directors,
officers, employees or agents under either or both a statutory or nonstatutory
scheme of indemnification. In general, the NCBCA provides directors
and officers with a right to indemnification when the director or officer has
been wholly successful, on the merits or otherwise, in defense of any proceeding
to which he was a party because he is or was a director or officer of the
corporation, unless limited by the Articles of Incorporation. The NCBCA also
permits a corporation to indemnify directors and officers who met a certain
standard of conduct. Directors and officers are also entitled to apply to a
court for an order requiring the corporation to indemnify the director or
officer in a particular case. The court may grant such an order if it determines
the director or officer is fairly and reasonably entitled to indemnification in
view of all of the relevant circumstances.
In
addition to, and notwithstanding the conditions of and limitations on, the
indemnification described above under the statutory scheme, Section 55-8-57
of the NCBCA 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. Additionally, Section 55-8-57 of the NCBCA
authorizes a corporation to purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee or agent of the
corporation against certain liabilities incurred by such a person, whether or
not the corporation is otherwise authorized by the NCBCA to indemnify that
person. The Registrant has purchased and maintains such
insurance.
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Exhibit
No.
|
Description
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| 4.1 |
Rights
Agreement, dated as of May 30, 2002, between the Registrant and American
Stock Transfer & Trust Company, including the form of Rights
Certificate and the Summary of Rights to Purchase Preferred Stock,
attached thereto as Exhibits B and C, respectively (incorporated
herein by reference to Exhibit 4.01 to the Registrant’s Registration
Statement on Form 8-A filed with the Commission on May 30,
2002) |
| 4.2 |
Amendment
No. 1 to Rights Agreement, dated as of October 16, 2006, between the
Registrant and American Stock Transfer & Trust Company (incorporated
herein by reference to Exhibit 4.02 to the Registrant’s Registration
Statement on Form 8-A/A filed with the Commission on October 16,
2006) |
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5.1
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Opinion
of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P.
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23.1
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm
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23.2
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Consent
of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
(Contained in Exhibit 5.1)
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| 24.1 |
Power
of Attorney
(Contained on signature page) |
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99.1
|
Cree,
Inc. Non-Employee Director Stock Compensation and Deferral Program
(incorporated herein by reference to Exhibit 10.3 to the Registrant’s
Quarterly Report on Form 10-Q for the quarterly period ended September 27,
2009, as filed with the Commission on October 21,
2009)
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(a) 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:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement;
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to section
13 or section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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.
(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.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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 26th day of January, 2010.
| |
CREE,
INC.
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By:
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/s/ Charles M.
Swoboda
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Charles
M. Swoboda
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| |
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Chairman,
Chief Executive Officer and
President
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KNOW ALL MEN BY THESE PRESENTS that
each individual whose signature appears below constitutes and appoints Charles
M. Swoboda and John T. Kurtzweil, 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 date
indicated.
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Name
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Title
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Date
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/s/ Charles M. Swoboda
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Charles
M. Swoboda
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Chairman,
Chief Executive Officer and
President
(Principal Executive Officer)
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January 26,
2010 |
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/s/ John T. Kurtzweil
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John
T. Kurtzweil
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Executive
Vice President – Finance, Chief Financial Officer and Treasurer
(Principal
Financial Officer and Principal Accounting Officer)
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January 26,
2010
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/s/ Clyde R.
Hosein
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Clyde
R. Hosein
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Director |
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January 26,
2010
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/s/ Robert
A. Ingram
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Robert
A. Ingram
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Director |
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January
26, 2010
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/s/ John W. Palmour
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John
W. Palmour, Ph.D.
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Director |
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January 26, 2010
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Franco
Plastina
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Director |
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January 26,
2010
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/s/ Dolph
W. von Arx
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Dolph
W. von Arx
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Director |
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January
26, 2010
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Harvey
A. Wagner
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Director |
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January
26, 2010
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Thomas
H. Werner
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Director
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January 26,
2010
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EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
| 4.1 |
Rights
Agreement, dated as of May 30, 2002, between the Registrant and American
Stock Transfer & Trust Company, including the form of Rights
Certificate and the Summary of Rights to Purchase Preferred Stock,
attached thereto as Exhibits B and C, respectively (incorporated
herein by reference to Exhibit 4.01 to the Registrant’s Registration
Statement on Form 8-A filed with the Commission on May 30,
2002) |
| 4.2 |
Amendment
No. 1 to Rights Agreement, dated as of October 16, 2006, between the
Registrant and American Stock Transfer & Trust Company (incorporated
herein by reference to Exhibit 4.02 to the Registrant’s Registration
Statement on Form 8-A/A filed with the Commission on October 16,
2006) |
|
5.1
|
Opinion
of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P.
|
|
23.1
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm
|
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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) |
|
99.1
|
Cree,
Inc. Non-Employee Director Stock Compensation and Deferral Program
(incorporated herein by reference to Exhibit 10.3 to the Registrant’s
Quarterly Report on Form 10-Q for the quarterly period ended September 27,
2009, as filed with the Commission on October 21,
2009)
|