<PAGE> 1
As filed with the Securities and Exchange Commission on APRIL 25, 2000
Registration No. 333-30644
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
Amendment No. 2 to
Form S-3 Registration Statement
Under the Securities Act of 1933
------------
CRAY, INC.
(Exact name of registrant as specified in its charter)
------------
WASHINGTON 93-0962605
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
411 First Avenue South
Suite 600
Seattle, WA 98104
(206) 701-2000 (telephone)
(206) 701-2500 (facsimile)
(Address, including zip code, and telephone and facsimile
numbers, including area code, of principal executive
offices)
------------
Kenneth W. Johnson, Chief Financial Officer
CRAY, INC.
411 First Avenue South
Suite 600
Seattle, WA 98104
(206) 701-2000 (telephone)
(206) 701-2500 (facsimile)
(Name, address, including zip code, and telephone
and facsimile numbers, including area code, of agent for service)
Copy to:
Christopher J. Voss
Stoel Rives LLP
One Union Square, 36th Floor
Seattle, WA 98101-3197
(206) 624-0900 (telephone)
(206) 386-7500 (facsimile)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective
If the only securities being registered on this Form are to be offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with a dividend or
interest reinvestment plan, check the following box. [X]
<PAGE> 2
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said section 8(a), may determine.
<PAGE> 3
PROSPECTUS, Subject to Completion, dated APRIL 25, 2000
---------------
CRAY, INC.
5,536,875 SHARES OF COMMON STOCK
These shares of Common Stock are being offered and sold from time to
time by certain of our current shareholders.
The selling shareholders may sell the shares from time to time at fixed
prices, market prices, prices computed with formulas based on market prices, or
at negotiated prices, and may engage a broker or dealer to sell the shares. For
additional information on the selling shareholders' possible methods of sale,
you should refer to the section of this prospectus entitled "Plan of
Distribution" on page 6. We will not receive any proceeds from the sale of the
shares, but will bear the costs relating to the registration of the shares.
Our Common Stock is traded on the Nasdaq National Market under the
symbol "CRAY." On APRIL 20, 2000, the closing price for our Common Stock was
$4.2188 per share.
-------------------------------
THE SHARES OFFERED IN THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK. YOU
SHOULD CAREFULLY CONSIDER THE "RISK FACTORS" CONTAINED IN OUR ANNUAL REPORT ON
FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999 AND IN OUR FUTURE FILINGS
MADE WITH THE SECURITIES AND EXCHANGE COMMISSION, WHICH ARE INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, IN DETERMINING WHETHER TO PURCHASE SHARES OF OUR
COMMON STOCK.
-------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THE SHARES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------------
The date of this Prospectus is _____, 2000.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
Our Business ...................................................... 3
Selling Shareholders .............................................. 3
Plan of Distribution .............................................. 8
-
Experts ........................................................... 10
--
Limitation of Liability and Indemnification ....................... 10
--
Information Incorporated by Reference ............................. 11
--
Available Information ............................................. 12
--
</TABLE>
You should rely only on information contained or incorporated by
reference in this prospectus. See "Information Incorporated by Reference" on
page 11. Neither CRAY nor the selling shareholders have authorized any other
person to provide you with information different from that contained in this
prospectus.
The shares of Common Stock are not being offered in any jurisdiction
where the offering is not permitted.
-2-
<PAGE> 5
OUR BUSINESS
CRAY, INC., FORMERLY KNOWN AS Tera Computer Company, designs, builds and
sells high-performance computer systems, sometimes referred to as
"supercomputers." Our executive offices are located at Merrill Place, Suite 600,
411 First Avenue South, Seattle, WA 98104-2860, and our telephone number is
(206) 701-2000.
SELLING SHAREHOLDERS
On February 2, 2000, we issued an aggregate of 5,226,875 shares of our
common stock to 28 investors in a private placement (the "February Placement")
that is described more fully in our Current Report on Form 8-K for the event of
February 2, 2000, as filed with the Securities and Exchange Commission on
February 15, 2000. Except as noted below, each investor acquired the number of
shares of our common stock set forth opposite their respective names under the
heading "Shares Being Offered" on the selling shareholder table below.
At various times during 1999, we issued warrants to purchase shares of
our common stock to another ten of the selling shareholders listed on the table
below, INCLUDING KIRLIN SECURITIES, INC., A REGISTERED BROKER-DEALER, in
consideration for financial ADVISORY and related services.
The following table sets forth certain information as of February 3,
2000 regarding the selling shareholders' ownership of our common stock and as
adjusted to reflect the selling SHAREHOLDERS' ownership of our common stock if
all shares covered by this prospectus are sold. The shares covered by this
prospectus include:
- shares of common stock issued to certain of the selling
shareholders in the February Placement;
- shares of common stock issuable upon exercise of warrants issued
to certain of the selling shareholders as payment for FINANCIAL
ADVISORY services in January 1999;
- shares of common stock issuable upon exercise of warrants issued
to certain of the selling shareholders as payment for FINANCIAL
ADVISORY services in March 1999; and
- shares of common stock issuable upon exercise of a warrant
issued to certain of the selling shareholders for FINANCIAL
ADVISORY services in connection with a private placement of OUR
securities.
-3-
<PAGE> 6
The selling shareholders' percentage of ownership after this offering is
based on 31,430,021 shares of common stock that were outstanding as of February
3, 2000, and assumes no exercise of any outstanding options or warrants after
February 3, 2000.
<TABLE>
<CAPTION>
Ownership After Offering
Shares if All Shares Offered
Owned Prior to Shares Being Hereby Are Sold
Selling Shareholder Offering Offered Shares Percent
- ------------------- -------- ------- ------- -------
<S> <C> <C> <C> <C>
Banca del Gottardo(1) 2,721,402 2,391,875 329,527 (1)
Castle Creek Technology
Partners LLC#(2) 773,422 280,000 493,422 1.6%
William David Corbett 25,000 25,000 0 0
Cranshire Capital, L.P.(3) 280,000 280,000 0 0
Angel Cruz# 0 57,000 0 0
DM Management, LLC(4) 130,000 130,000 0 0
EDJ Limited(5) 50,000 50,000 0 0
Jack E. Erlanger# 25,000 25,000 0 0
Nathan Goldstein# 0 6,000 0 0
Harpel Family Partnership(6) 76,450 29,840 46,610 *
Harpel International, L.P.(6) 37,978 16,140 21,838 *
Harpel Partners, L.P.(6) 345,109 107,820 237,239 *
Harpel Select Growth,
L.P.(6) 152,132 46,200 105,932 *
Headwater Holdings, LLC# 200,000 200,000 0 0
(7)
William Hott 40,000 40,000 0 0
JMG Capital Partners, L.P.(8) 100,000 100,000 0 0
JMG Triton Offshore Fund
Ltd.(9) 100,000 100,000 0 0
</TABLE>
-4-
<PAGE> 7
<TABLE>
<CAPTION>
Ownership After Offering
Shares if All Shares Offered
Owned Prior to Shares Being Hereby Are Sold
Selling Shareholder Offering Offered Shares Percent
- ------------------- -------- ------- ------- -------
<S> <C> <C> <C> <C>
Anthony J. Kirincic# 0 6,000 0 0
Kirlin Securities, Inc.(10)+ 0 20,000 0 0
David O. Lidner# 0 6,000 0 0
Ivan Lieberburg 25,000 25,000 0 0
Christopher A. Marlett
Living Trust# 30,000 30,000 0 0
MDB Capital Group, LLC(11)+ 20,000 20,000 0 0
Montrose Investments Ltd.#(12) 800,000 400,000 400,000 1.3%
Nob Hill Capital
Associates, L.P.(13) 15,000 15,000 0 0
Nob Hill Capital Partners,
L.P.(13) 85,000 85,000 0 0
Thomas Parigian# 0 64,000 0 0
Timothy R. Pask 30,000 30,000 0 0
Thomas Poletti 0 5,000 0 0
Photiney Poliak# 0 5,000 0 0
Denise Reilly# 0 31,000 0 0
Raymond Scott 50,000 50,000 0 0
Gary J. Shemano aka The
Shemano Group Investment
Account#(14) 100,000 100,000 0 0
David Stefansky# 50,000 50,000 0 0
Strong River Investments(15) 811,864 600,000 211,864 *
Trans-Union Group, Inc.(16) 20,000 20,000 0 0
</TABLE>
-5-
<PAGE> 8
<TABLE>
<CAPTION>
Ownership After Offering
Shares if All Shares Offered
Owned Prior to Shares Being Hereby Are Sold
Selling Shareholder Offering Offered Shares Percent
- ------------------- -------- ------- ------- -------
<S> <C> <C> <C> <C>
Viviana Partners, L.P.(16) 50,000 50,000 0 0
Von Graffenried AG
Privatbank(17) 60,000 60,000 0 0
</TABLE>
- -----------------
+ Registered broker-dealer
# AFFILIATE OF REGISTERED BROKER-DEALER
* Less than 1%
(1) Banca del Gottardo has represented to us that it has purchased our
common stock for its own account and on behalf of its private banking
and other clients, that it possesses neither investment nor voting power
with respect to these securities, and that neither Banca del Gottardo
nor any client or group of affiliated clients owns more than one percent
of our outstanding shares of common stock.
(2) CASTLE CREEK PARTNERS LLC IS THE INVESTMENT MANAGER FOR CASTLE CREEK
TECHNOLOGY PARTNERS LLC, AND CONSEQUENTLY MAY BE DEEMED TO HAVE VOTING
CONTROL AND INVESTMENT DISCRETION OVER THE SECURITIES HELD BY CASTLE
CREEK TECHNOLOGY PARTNERS LLC. CASTLE CREEK PARTNERS LLC DISCLAIMS
BENEFICIAL OWNERSHIP OF ALL SECURITIES OWNED BY CASTLE CREEK TECHNOLOGY
PARTNERS LLC. Daniel Asher and John Ziegelman, MANAGING MEMBERS OF
CASTLE CREEK PARTNERS LLC, MAY BE DEEMED AS A RESULT THEREOF TO BE THE
BENEFICIAL OWNERS OF THE SECURITIES HELD BY CASTLE CREEK TECHNOLOGY
PARTNERS LLC. MESSRS. ASHER AND ZIEGELMAN DISCLAIM SUCH BENEFICIAL
OWNERSHIP.
(3) Voting and/or investment power held by Downsview Capital, Inc. (Mitchell
P. Kopin is sole shareholder, officer and director).
(4) VOTING AND/OR INVESTMENT POWER HELD BY ROBERT L. MILLER AND MARC S.
DRIER
(5) Voting and/or investment power held by Jeffrey H. Porter.
(6) Voting and/or investment power held by James W. Harpel.
(7) Voting and/or investment power held by Jeff Goshay.
(8) Voting and/or investment power held by Jonathan M. Glaser, Member
Manager.
(9) Voting and/or investment power held by Roger Richter.
(10) Voting and/or investment power held by ANTHONY KIRINCIC.
(11) Voting and/or investment power held by Chris Marlett, Dyana Marlett,
Anthony DiGandomenico and James D. Bowyer. MDB Capital Group is an NASD
registered broker/dealer. The above-named individuals are NASD
registered persons.
(12) Voting and/or investment power held by Harlan B. Korenvacs, Kenneth M.
Hirsh, Laurence H. Lebowitz, William E. Rose, Richard L. Booth, David C.
Haley and Jamiel A. Akhtar.
(13) Voting and/or investment power held by Stephen R. Mittel.
(14) Voting and/or investment power held by Gary Shemano, aka Shemano Group
Investment Account.
(15) Voting and/or investment power held by Tom Waugh, Managing Director,
Cavallo Capital Corp.
(16) Voting and/or investment power held by Robert Yin Chin Lee and Robert
Hsiang Lin Wu.
(17) Voting and/or investment power held by Stuart Zimmerman.
-6-
<PAGE> 9
(17) Voting and/or investment power held by Peter L. Heller and Fritz Rudolf.
The shares of common stock listed as owned by Banca del Gottardo after
this offering, together with 1,241,111 shares issuable upon exercise of
warrants, have been registered for offer and sale by Banca del Gottardo in
Registration Statements on Form S-3, Registration Nos. 333-76223 and 333-83521.
Banca del Gottardo has represented to us that it has purchased our common stock
for its own account and on behalf of its private banking and other clients, that
it possesses neither investment nor voting power with respect to these
securities, and that neither Banca del Gottardo nor any client or group of
affiliated clients owns more than one percent of our outstanding shares of
common stock.
The shares of common stock listed as owned by Castle Creek Technology
Partners LLC, DM Management, LLC, Harpel Family Partnership, Harpel
International, L.P., Harpel Partners, L.P., Harpel Select Growth, L.P., Montrose
Investments Ltd. and Strong River Investments after this offering have been
registered for offer and sale by these selling shareholders in a Registration
Statement on Form S-3, Registration No. 333-83521.
Except as set forth below, none of the selling shareholders has held any
positions or office or had any other material relationship with us or any of our
affiliates within the past three years:
- On February 2, 2000, Castle Creek Technology Partners LLC filed a
Schedule 13 G/A, indicating that it had beneficial ownership of
1,552,744 shares, or 6.2%, of our outstanding common stock. ON
MARCH 20, 2000, CASTLE CREEK TECHNOLOGY PARTNERS LLC FILED AN
ADDITIONAL SCHEDULE 13G/A INDICATING THAT IT NO LONGER OWNED 5%
OR MORE OF OUR OUTSTANDING COMMON STOCK.
In recognition of the fact that the selling shareholders may wish to be
legally permitted to sell their shares when they deem appropriate, we have
agreed with the selling shareholders to file with the Securities and Exchange
Commission ("SEC"), under the Securities Act of 1933 (the "Securities Act"), a
registration statement on Form S-3, of which this prospectus forms a part, with
respect to the resale of the shares, and have agreed to prepare and file such
amendments and supplements to the registration statement as may be necessary to
keep the registration statement effective until the shares are no longer
required to be registered for sale by the selling shareholders.
-7-
<PAGE> 10
PLAN OF DISTRIBUTION
CRAY is registering the shares covered by this prospectus for the
selling shareholders. As used in this prospectus, "selling shareholders"
includes the pledgees, donees, transferees or others who may later hold the
selling shareholders' interest. CRAY will pay the costs and fees of registering
the shares, but the selling shareholders will pay any brokerage commissions,
discounts or other expenses relating to the sale of the shares. CRAY and the
selling shareholders each have agreed to indemnify the other against certain
liabilities, including liabilities arising under the Securities Act, that relate
to statements or omissions in the registration statement of which this
prospectus forms a part.
The selling shareholders may sell the shares in the over-the-counter
market or otherwise, at market prices prevailing at the time of sale, at prices
related to prevailing market prices, or at negotiated prices. In addition, the
selling shareholders may sell some or all of their shares through:
- a block trade in which a broker-dealer may resell a portion of
the block, as principal, in order to facilitate the transaction;
- purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account;
- TRANSACTIONS DIRECTLY WITH A MARKET MAKER;
- IN PRIVATELY REGISTERED TRANSACTIONS NOT INVOLVING A BROKER; OR
- ordinary brokerage transactions and transactions in which a
broker solicits purchases.
When selling the shares, the selling shareholders may enter into hedging
transactions. For example, the selling shareholders may:
- enter into transactions involving short sales of the shares by
broker-dealers;
- sell shares short themselves and redeliver such shares to close
out their short positions;
-8-
<PAGE> 11
- enter into option or other types of transactions that require the
selling shareholder to deliver shares to a broker-dealer, who
will then resell or transfer the shares under this prospectus; or
- loan or pledge the shares to a broker-dealer, who may sell the
loaned shares or, in the event of default, sell the pledged
shares.
WE HAVE BEEN ADVISED THAT AN AFFILIATE OF CASTLE CREEK TECHNOLOGY
PARTNERS LLC HAS A SHORT POSITION IN OUR COMMON STOCK. CASTLE CREEK TECHNOLOGY
PARTNERS LLC HAS CONFIRMED TO US THAT NONE OF THE SHARES COVERED BY THE
REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS FORMS A PART WILL BE USED TO
COVER ANY PORTION OF THIS SHORT POSITION.
REGULATION M UNDER THE SECURITIES EXCHANGE ACT OF 1934 PROVIDES THAT
DURING THE PERIOD THAT ANY PERSON IS ENGAGED IN THE DISTRIBUTION, AS SO DEFINED
IN REGULATION M, OF OUR COMMON STOCK, SUCH PERSON GENERALLY MAY NOT PURCHASE
SHARES OF OUR COMMON STOCK. THE SELLING SHAREHOLDERS ARE SUBJECT TO APPLICABLE
PROVISIONS OF THE SECURITIES ACT OF 1933 AND THE SECURITIES EXCHANGE ACT OF 1934
AND THE RULES AND REGULATIONS THEREUNDER, INCLUDING, WITHOUT LIMITATION,
REGULATION M, WHICH PROVISIONS MAY LIMIT THE TIMING OF PURCHASES AND SALES OF
SHARES OF OUR COMMON STOCK BY THE SELLING SHAREHOLDERS. THE FOREGOING MAY AFFECT
THE MARKETABILITY OF OUR COMMON STOCK.
The selling shareholders may negotiate and pay broker-dealers
commissions, discounts or concessions for their services. Broker-dealers engaged
by the selling shareholders may allow other broker-dealers to participate in
resales. However, the selling shareholders and any broker-dealers involved in
the sale or resale of the shares may qualify as "underwriters" within the
meaning of the Section 2(a)(11) of the Securities Act. In addition, the
broker-dealers' commissions, discounts or concessions may qualify as
underwriters' compensation under the Securities Act. If the selling shareholders
qualify as "underwriters," they will be subject to the prospectus delivery
requirements of Section 5(b)(2) of the Securities Act.
EACH SELLING SHAREHOLDER THAT IS IDENTIFIED ON THE SELLING SHAREHOLDER
TABLE BEGINNING ON PAGE 4 AS A REGISTERED BROKER-DEALER OR AS AN AFFILIATE OF A
REGISTERED BROKER-DEALER (I) PURCHASED THE SHARES OF OUR COMMON STOCK INCLUDED
IN THE REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS FORMS A PART IN THE
ORDINARY COURSE OF BUSINESS AND (II) AT THE TIME OF PURCHASE, HAD NO AGREEMENTS
OR UNDERSTANDINGS, DIRECTLY OR INDIRECTLY, WITH ANY PERSON TO DISTRIBUTE THE
SECURITIES.
In addition to selling their shares under this prospectus, the selling
shareholders may:
-9-
<PAGE> 12
- agree to indemnify any broker-dealer or agent against certain
liabilities related to the selling of the shares, including
liabilities arising under the Securities Act;
- transfer their shares in other ways not involving market makers
or established trading markets, including directly by gift,
distribution, or other transfer; or
- sell their shares under Rule 144 of the Securities Act rather
than under this prospectus, if the transaction meets the
requirements of Rule 144.
Upon notification by a selling shareholder that any material arrangement
has been entered into with a broker-dealer for the sale of the shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, if required, pursuant to Rule 424(b) under the Securities Act,
disclosing the material terms of the transaction. In addition, we will file a
supplement to this prospectus if a selling shareholder notifies us that a donee
or pledgee intends to sell more than 500 shares.
EXPERTS
The balance sheets of CRAY, INC., FORMERLY KNOWN AS Tera Computer
Company, as of December 31, 1998 AND 1999 and the related statements of
operations, stockholders' equity and cash flows for each of the three years in
the period ended December 31, 1999, incorporated by reference into this
prospectus, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report with respect thereto, which report includes an
explanatory paragraph concerning our ability to continue as a going-concern, and
has been incorporated herein by reference in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Our Restated Articles of Incorporation provide that, to the fullest
extent permitted by the Washington Business Corporation Act, our directors will
not be liable for monetary damages to CRAY or its shareholders, excluding,
however, liability for acts or omissions involving intentional misconduct or
knowing violations of law, illegal distributions or transactions from which the
director receives benefits to which the director is not legally entitled. Our
Restated Bylaws provide that CRAY will indemnify its directors and, by action of
the Board of Directors, may indemnify its officers, employees and other agents
to the fullest extent permitted by applicable law, except for any legal
proceeding that is initiated by such directors, officers, employees or agents
without authorization of the Board of Directors.
-10-
<PAGE> 13
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of CRAY
pursuant to the foregoing provisions, or otherwise, we have been advised that,
in the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" our publicly-filed
reports into this prospectus, which means that information included in those
reports is considered part of this prospectus. Information that we file with the
SEC subsequent to the date of this prospectus will automatically update and
supersede the information contained in this prospectus. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until the selling shareholders have sold all the shares.
The following documents filed with the SEC are incorporated by reference
in this prospectus:
1. Our Annual Report on Form 10-K for the year ended December 31,
1999;
2. OUR CURRENT REPORT ON FORM 8-K FOR THE EVENT OF APRIL 2, 2000,
AS FILED WITH THE SEC ON APRIL 17, 2000;
3. OUR CURRENT REPORT ON FORM 8-K FOR THE EVENT OF APRIL 3, 2000,
AS FILED WITH THE SEC ON APRIL 5, 2000;
4. Our Current Report on Form 8-K for the event of March 1, 2000,
as filed with the SEC on March 3, 2000;
5. Our Current Report on Form 8-K for the event of February 2,
2000, as filed - with the SEC on February 15, 2000;
6. Our DEFINITIVE PROXY STATEMENT, as filed with the SEC on APRIL
13, 2000; AND
7. The description of our common stock set forth in our
Registration Statement on Form SB-2 (Registration No.
33-95460-LA), including any amendment or report filed for the
purpose of updating such description, as incorporated by
-11-
<PAGE> 14
reference in our Registration Statement on Form 8-A
(Registration No. 0-26820), including the amendment thereto on
Form 8-A/A.
We will furnish without charge to you, on written or oral request, a
copy of any or all of the documents incorporated by reference, other than
exhibits to such documents. You should direct any requests for documents to
Investor Relations, CRAY, INC., 411 First Avenue South, Suite 600, Seattle,
Washington 98104, Telephone (206) 701-2000.
The information relating to CRAY contained in this prospectus is not
comprehensive and should be read together with the information contained in the
incorporated documents.
AVAILABLE INFORMATION
This prospectus is part of a Registration Statement on Form S-3 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with SEC rules.
We file annual, quarterly and special reports and other information with
the SEC. You may read and copy the Registration Statement and any other document
that we file at the SEC's public reference rooms located at Room 1024, Judiciary
Plaza, 450 Fifth Street N.W., Washington, D.C. 20549; 7 World Trade Center,
Suite 1300, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to you free of charge at the SEC's web site at
http://www.sec.gov.
Statements contained in this prospectus as to the contents of any
contract or other document referred to are not necessarily complete. You should
refer to the copy of such contract or other document filed as an exhibit to the
Registration Statement.
-12-
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
All expenses in connection with the issuance and distribution of the
securities being registered will be paid by the Company. The following is an
itemized statement of these expenses (all amounts are estimated except for the
SEC and Nasdaq listing fees):
<TABLE>
<CAPTION>
<S> <C>
SEC Registration fee ...................................... $ 9,449
Nasdaq listing fee ........................................ $17,500
Legal fees ................................................ $ 8,000
Accountant's Fees ......................................... $ 3,000
Miscellaneous ............................................. $ 51
-------
Total ..................................................... $38,000
=======
</TABLE>
Item 15. Indemnification of Officers and Directors.
Article XII of the Company's Restated Articles of Incorporation and
Section 11 of the Company's Restated Bylaws require indemnification of
directors, officers, employees and agents of the Company to the fullest extent
permitted by the Washington Business Corporation Act (the "Act"). Sections
23B.08.500 through 23B.08.600 of the Act authorize a court to award, or a
corporation's board of directors to grant, indemnification to directors and
officers on terms sufficiently broad to permit indemnification under certain
circumstances for liabilities arising under the Securities Act.
Section 23B.08.320 of the Act authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives
II-1
<PAGE> 16
a benefit in money, property or services to which the director is not legally
entitled. Article XI of the Company's Restated Articles of Incorporation
contains provisions implementing, to the fullest extent permitted by Washington
law, such limitations on a director's liability to the Company and its
shareholders.
Item 16. Exhibits.
3.1 Restated Articles of Incorporation of the Company(1)
3.2 Restated Bylaws of the Company(1)
5 Opinion on Legality(2)
10.1 Form of Registration Rights Agreement, dated January 21, 2000
between the Company and certain selling shareholders (and
schedule of similar AGREEMENTS)(3)
10.2 Form of Purchase Agreement, dated January 21, 2000, between the
Company and certain selling shareholders (and schedule of similar
AGREEMENTS)(3)
10.3 Form of Warrant, between the Company and DM Management, LLC(4)
10.4 Form of Warrant, between the Company and CERTAIN selling
shareholders (and schedule of similar WARRANTS)(2)
23 Consent of Deloitte & Touche LLP
24 Power of Attorney(2)
- ------------------
(1) Incorporated by reference to the Company's Current Report on Form 8-K
for the event of May 21, 1999, filed with the Commission on July 21,
1999.
(2) Incorporated by reference to the Company's Registration Statement on
Form S-3, Registration No. 333-30644, filed with the Commission on
February 17, 2000.
(3) Incorporated by reference to the Company's Current Report on Form 8-K
for the event of February 2, 2000, filed with the Commission on February
15, 2000.
II-2
<PAGE> 17
(4) Incorporated by reference to Exhibit 10.2 on the Company's Current
Report on Form 8-K for the event of June 21, 1999, filed with the
Commission on June 30, 1999.
Item 17. Undertakings.
(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 this
Registration Statement (or the most recent
post-effective amendment thereof) that,
individually or in the aggregate, represent a
fundamental change in the information set forth in
this Registration Statement; and
(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 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 post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
II-3
<PAGE> 18
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that
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 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 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.
II-4
<PAGE> 19
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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Seattle, State of Washington, on APRIL 21, 2000.
CRAY, INC.
By: /S/ James E. Rottsolk
----------------------------------------
James E. Rottsolk
Chief Executive Officer
<PAGE> 20
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 indicated below on the 21st day of APRIL, 2000:
Signature and Title
*
- -------------------------------------
Terren S. Peizer, Chairman
of the Board of Directors
* *
- ------------------------------------- ------------------------------
Burton J. Smith, Director Daniel J. Evans, Director
/S/ James E. Rottsolk *
- ------------------------------------- -------------------------------
James E. Rottsolk Kenneth W. Kennedy, Director
Chief Executive Officer and Director
/S/ Kenneth W. Johnson *
- ------------------------------------- ------------------------------
Kenneth W. Johnson John W. Titcomb, Jr., Director
Chief Financial Officer
/S/ Philissa Sargin *
- ------------------------------------- -------------------------------
Philissa Sargin David N. Cutler, Director
Chief Accounting Officer
* *
- ------------------------------------- -------------------------------
Stephen C. Kiely, Director Dean D. Thornton, Director
/S/ James E. Rottsolk
- --------------------------------------------------------
* By: James E. Rottsolk
Attorney-in-Fact
<PAGE> 1
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 2 to the
Registration Statement of Cray Inc., formerly known as Tera Computer Company,
on Form S-3 of our report dated February 4, 2000 (March 1, 2000 as to Note 12),
which expresses an unqualified opinion and includes an explanatory paragraph
describing an uncertainty about the Company's ability to continue as a
going-concern, appearing in the Annual Report on Form 10-K of Cray, Inc. for
the year ended December 31, 1999 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Seattle, Washington
April 21, 2000
