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)
North
Carolina
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56-1572719
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(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
|
|
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)
|
CREE,
INC. 2004 LONG-TERM INCENTIVE COMPENSATION 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
|
|
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
|
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 (1)
|
3,076,394
(2)
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$54.655 (3)
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$168,140,314.07 (3)
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$11,988.40 (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) Includes
(a) 3,000,000 additional shares that are authorized for issuance under the
Registrant's 2004 Long-Term Incentive Compensation Plan, as amended and
approved by the Registrant's shareholders at the annual meeting of
shareholders held on October 29, 2009 (the "Plan") and (b) 76,394 shares
carried forward from the Registrant's Amended and Restated Equity
Compensation Plan, which were subject to options that expired, were
cancelled or otherwise terminated unexercised for any reason on or after
December 29, 2008. In addition, 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 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 3,076,394 shares of the Common Stock of the Registrant,
$0.00125 par value, issuable under the Cree, Inc. 2004 Long-Term Incentive
Compensation 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
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 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 Statements relating
to the Plan, Registration Nos. 333-122073, 333-136903, 333-148927 and
333-156981 filed with the Commission on January 14, 2005, August 25, 2006,
January 29, 2008 and January 27, 2009, remain effective, and the contents of
such Registration Statements 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 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
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.
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
|
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
|
2004
Long-Term Incentive Compensation Plan, as amended (incorporated herein by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K,
dated October 29, 2009, as filed with the Commission on October 30,
2009)
|
99.2 |
Form
of Master Stock Option Award Agreement for Grants of Nonqualified Stock
Options to Non-employee Directors (incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, dated October
1, 2004, as filed with the Commission on October 7,
2004) |
99.3 |
Form
of Master Stock Option Award Agreement for Grants of Nonqualified Stock
Options to Employees (incorporated herein by reference to Exhibit 10.2 to
the Registrant’s Current Report on Form 8-K, dated October 1, 2004, as
filed with the Commission on October 7, 2004) |
99.4 |
Form
of Master Stock Option Award Agreement for Grants of Nonqualified Stock
Options (incorporated herein by reference to Exhibit 10.4 to the
Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended
September 24, 2006, as filed with the Commission on November 2,
2006) |
99.5 |
Form
of Master Restricted Stock Award Agreement (incorporated herein by
reference to Exhibit 10.1 to the Registrant’s Quarterly Report on
Form 10-Q for the quarterly period ended September 25, 2005, as filed with
the Commission on October 26, 2005) |
99.6 |
Form
of Master Restricted Stock Award Agreement (incorporated herein by
reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form
10-Q for the quarterly period ended September 24, 2006, as filed with the
Commission on November 2, 2006) |
99.7 |
Notice
of Grant to Charles M. Swoboda, dated August 17, 2009 (incorporated
herein by reference to Exhibit 10.2 to the Registrant’s Current Report on
Form 8-K, dated August 17, 2009, as filed with the Commission on August
21, 2009) |
99.8 |
Master
Performance Unit Award Agreement, dated August 18, 2008, between the
Registrant and Charles M. Swoboda (incorporated herein by reference to
Exhibit 10.3 to the Registrant’s Current Report on Form 8-K, dated August
18, 2008, as filed with the Commission on August 22,
2008)
|
(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.
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CREE,
INC.
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|
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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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|
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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 |
/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
|
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
|
2004
Long-Term Incentive Compensation Plan, as amended (incorporated herein by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K,
dated October 29, 2009, as filed with the Commission on October 30,
2009)
|
99.2 |
Form
of Master Stock Option Award Agreement for Grants of Nonqualified Stock
Options to Non-employee Directors (incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, dated October
1, 2004, as filed with the Commission on October 7,
2004) |
99.3 |
Form
of Master Stock Option Award Agreement for Grants of Nonqualified Stock
Options to Employees (incorporated herein by reference to Exhibit 10.2 to
the Registrant’s Current Report on Form 8-K, dated October 1, 2004, as
filed with the Commission on October 7, 2004) |
99.4 |
Form
of Master Stock Option Award Agreement for Grants of Nonqualified Stock
Options (incorporated herein by reference to Exhibit 10.4 to the
Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended
September 24, 2006, as filed with the Commission on November 2,
2006) |
99.5 |
Form
of Master Restricted Stock Award Agreement (incorporated herein by
reference to Exhibit 10.1 to the Registrant’s Quarterly Report
on Form 10-Q for the quarterly period ended September 25, 2005, as filed
with the Commission on October 26, 2005) |
99.6 |
Form
of Master Restricted Stock Award Agreement (incorporated herein by
reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form
10-Q for the quarterly period ended September 24, 2006, as filed with the
Commission on November 2, 2006) |
99.7 |
Notice
of Grant to Charles M. Swoboda, dated August 17, 2009 (incorporated
herein by reference to Exhibit 10.2 to the Registrant’s Current Report on
Form 8-K, dated August 17, 2009, as filed with the Commission on August
21, 2009) |
99.8 |
Master
Performance Unit Award Agreement, dated August 18, 2008, between the
Registrant and Charles M. Swoboda (incorporated herein by reference to
Exhibit 10.3 to the Registrant’s Current Report on Form 8-K, dated August
18, 2008, as filed with the Commission on August 22,
2008)
|