Form S-8 AUG 25 2006
As
filed
with the Securities and Exchange Commission on August 25, 2006
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
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56-1572719
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
| |
|
|
4600
Silicon Drive
Durham,
North Carolina
|
27703
|
|
(Address
of Principal Executive Offices)
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(Zip
Code)
|
INTRINSIC
SEMICONDUCTOR CORPORATION
2003
EQUITY INCENTIVE PLAN
(Full
title of the plan)
Michael
E. McDevitt
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
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CALCULATION
OF REGISTRATION FEE
|
|
Title
of securities
to
be registered
|
Amount
to be
Registered
|
Proposed
maximum offering
price
per share
|
Proposed
maximum
aggregate
offering price
|
Amount
of
registration
fee
|
|
Common
Stock,
$0.00125
par value
|
191,133
(1)
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$18.59 (2)
|
$3,553,162.47 (2)
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$380.14 (2)
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|
(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 Global Select Market on August 23,
2006.
|
PART
I
INFORMATION
REQUIRED IN THE 10(a) PROSPECTUS
This
Registration Statement on Form S-8 relates to the issuance of up to 191,133
shares of the Common Stock of Cree, Inc. (the “Registrant”), $0.00125 par value,
in connection with its assumption of all outstanding options to purchase the
common stock of INTRINSIC Semiconductor Corporation (“INTRINSIC”) under
INTRINSIC’s 2003 Equity Incentive Plan (the “Plan”). The Registrant acquired
INTRINSIC on July 10, 2006. In connection with the acquisition, all of the
options then outstanding under the Plan became exercisable for shares of the
Common Stock of the Registrant. 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
document 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.
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
| 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 25,
2006;
(b) The
Registrant’s Current Reports on Form 8-K filed on July 12, 2006, August 10, 2006
and August 25, 2006;
(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 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, 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.
| Item 4. |
Description of
Securities. |
Not
applicable.
| 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 3,800 shares of the Registrant’s Common Stock.
| Item 6. |
Indemnification of Directors
and Officers. |
North
Carolina law permits a corporation to indemnify its directors, officers,
employees or agents under either a statutory or non-statutory scheme of
indemnification, or both. The statutory scheme includes mandatory, court-ordered
and permissive indemnification. 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 because
he or she was a director or officer of the corporation against reasonable
expenses incurred by him or her in connection with the proceeding. Unless
prohibited by the articles of incorporation, a director or officer also may
apply for and obtain court-ordered indemnification if the court determines
that
such director or officer is fairly and reasonably entitled to such
indemnification.
North
Carolina law also permits a corporation to indemnify any of its directors,
officers, employees or agents against liability incurred in any proceeding
if he
or she: (1) conducted himself or herself in good faith; (2) reasonably believed
(a) that any action taken in his or her official capacity with the corporation
was in the best interest of the corporation and (b) that in all other cases
his
or her 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 or her conduct was unlawful. Whether a director, officer, employee or agent
has met the requisite standard of conduct for the type of indemnification set
forth above is determined by the corporation’s board of directors in accordance
with the statute. A corporation may not indemnify a director, officer, employee
or agent under the statutory scheme in connection with a proceeding by or in
the
right of the corporation in which the director, officer, employee or agent
was
adjudged liable to the corporation or in connection with a proceeding, whether
or not involving action in his or her official capacity, in which a director,
officer, employee or agent 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, in its
articles of incorporation or bylaws, to indemnify or agree to indemnify any
of
its directors, officers, employees or agents against liability and expenses
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 interest of the corporation. Accordingly,
the
Registrant may indemnify its directors, officers, employees and agents in
accordance with either the statutory or non-statutory standard, or
both.
The
Registrant agrees in its bylaws to indemnify to the fullest extent from time
to
time permitted by law any current or former director or officer of the
Registrant or any person serving at the request of the Registrant as an officer,
director, agent, partner, trustee, administrator or employee for any other
entity 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 or her liable
by reason of the fact that he or she is or was acting in such capacity. Such
indemnity would not extend to any liability or expense incurred on account
of
activities that the indemnitee knew or believed to be, at the time taken,
clearly in conflict with the best interests of the Registrant. Indemnification
under the bylaws may include the obligation to pay any judgment, money decree,
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 attorneys’ fees). The Registrant may also indemnify
employees and agents of the Registrant as its Board of Directors deems
appropriate.
As
permitted by North Carolina law, the Registrant’s articles of incorporation
limit the personal liability of a director for monetary damages for breach
of
his or her duty as a director, provided that such limitation will not apply
to:
(1) acts or omissions not made in good faith that the director at the time
of
the breach knew or believed were in conflict with the Registrant’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 such provision
of
the articles of incorporation became effective.
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 of the corporation against certain liabilities incurred by such
persons, whether or not the corporation is otherwise authorized under North
Carolina law to indemnify such persons. The Registrant currently maintains
directors’ and officers’ insurance policies covering its directors and
officers.
| Item 7. |
Exemption from Registration
Claimed. |
Not
applicable.
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Exhibit
No.
|
Description
|
|
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
|
|
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)
|
(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 of
1933;
(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) do not apply if the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
reports filed with or furnished to the Commission by the Registrant pursuant
to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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.
(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.
(4) That,
for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance
on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided,
however,
that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in
the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
(5) That,
for
the purpose of determining liability of the Registrant under the Securities
Act
of 1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities
of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other
communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) 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.
(c) 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, 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 24th
day of August, 2006.
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CREE,
INC.
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|
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By: |
/s/ Charles
M. Swoboda |
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Charles
M. Swoboda |
| |
Chairman,
Chief
Executive Officer and President |
KNOW
ALL
MEN BY THESE PRESENTS that each individual whose signature appears below
constitutes and appoints Charles M. Swoboda and Michael E. McDevitt, 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
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/
Charles
M. Swoboda
|
|
|
|
|
|
Charles
M. Swoboda
|
|
Chairman,
Chief Executive Officer and
President
(Principal Executive Officer)
|
|
August
24, 2006 |
|
/s/
Michael
E. McDevitt
|
|
|
|
|
|
Michael
E. McDevitt
|
|
Chief
Financial Officer and Treasurer (Principal Financial Officer and Principal
Accounting Officer) |
|
August
24, 2006 |
|
/s/
James
E. Dykes
|
|
|
|
|
|
James
E. Dykes
|
|
Director |
|
August
24, 2006
|
|
/s/
Clyde
R. Hosein
|
|
|
|
|
|
Clyde
R. Hosein
|
|
Director |
|
August
24, 2006
|
|
/s/
John
W. Palmour
|
|
|
|
|
|
John
W. Palmour, Ph.D.
|
|
Director |
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August
24, 2006
|
|
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Robert
J. Potter, Ph.D.
|
|
Director |
|
August
__, 2006
|
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/s/
Dolph
W. von Arx
|
|
|
|
|
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Dolph
W. von Arx
|
|
Director
|
|
August
24, 2006
|
|
|
|
|
|
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Harvey
A. Wagner
|
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Director
|
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August
__, 2006
|
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|
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Thomas
H. Werner
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Director
|
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August
__, 2006
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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, Independent Registered Public Accounting
Firm
|
|
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)
|
| |
|
| |
|