forms-8.htm
As filed
with the Securities and Exchange Commission on January 27, 2009
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
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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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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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2005
EMPLOYEE STOCK PURCHASE PLAN
(AS
AMENDED)
(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):
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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______________________________
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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Common
Stock,
$0.00125
par value (1)
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900,000
(2)
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$17.09 (3)
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$15,381,000 (3)
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$604.47 (3)
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(1)
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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(2) 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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(3) 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 20,
2009.
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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 900,000 shares of the Common Stock of the Registrant,
$0.00125 par value, issuable under the 2005 Employee Stock Purchase Plan, as
amended (the “Plan”). 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 and consists of only those items required by
General Instruction E to 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
Pursuant
to General Instruction E of Form S-8, the prior Registration Statement relating
to the Plan, Registration No. 333-129174 filed with the Commission on October
21, 2005, remains effective, and the contents of such Registration Statement are
incorporated in this Registration Statement by this
reference.
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 29, 2008,
filed with the Commission on August 20, 2008;
(b) The
Registrant’s Quarterly Reports on Form 10-Q for the quarter ended September 28,
2008, filed with the Commission on October 23, 2008, and for the quarter
ended December 28, 2008, filed with the Commission on January 21,
2009;
(c) The
Registrant’s Current Reports on Form 8-K filed on July 30, 2008, August 19,
2008, August 22, 2008, September 29, 2008, October 31, 2008 and December
31, 2008;
(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
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 3,050 shares of
the Registrant’s Common Stock.
Exhibit
No.
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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) |
5.1
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Opinion
of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P.
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23.1
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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) |
99.1
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2005
Employee Stock Purchase Plan, as
amended
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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 27th day of January, 2009.
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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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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.
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 27,
2009 |
/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 27,
2009
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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 27,
2009
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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
27, 2009
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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 27, 2009
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Franco
Plastina
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Director |
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January 27,
2009
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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
27, 2009
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Harvey
A. Wagner
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Director |
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January
27, 2009
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Thomas
H. Werner
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Director
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January 27,
2009
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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)
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24.1 |
Power
of Attorney (Contained on signature page) |
99.1
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2005
Employee Stock Purchase Plan, as
amended
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