Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TERA COMPUTER COMPANY
(Exact Name of Registrant as Specified in its Charter)
Washington 93-0962605
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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411 First Avenue South, Suite 600
Seattle, Washington 98104-2860
(Address of Principal Executive Offices)
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1995 STOCK OPTION PLAN, AS AMENDED
1999 STOCK OPTION PLAN
(Full Title of Plan)
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Kenneth W. Johnson
Vice President-Finance and Chief Financial Officer
TERA COMPUTER COMPANY
411 First Avenue South, Suite 600
Seattle, WA 98104-2860
(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)
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With copy to:
Christopher J. Voss
Stoel Rives LLP
One Union Square, 36th Floor
600 University Street
Seattle, Washington 98101-3197
(206) 624-0900 (telephone)
(206) 386-7500 (facsimile)
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Calculation of Registration Fee
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Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Maximum Aggregate Registration
to be Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock, 3,215,686 shares $9.00 $21,511,214 $5,679
par value $.01
per share
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(1) The proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities
Act of 1933. The calculation of the registration fee for the shares to be
registered is based on (i) the actual exercise price for 2,000,186 options which
have been granted at various exercise prices from $3.22 per share to $9.00 per
share and (ii) $7.55, which was the average of the high and low prices of the
common stock on February 8, 2000, for the remaining 1,215,500 options.
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Act and the Note to Part I of Form S-8.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows us to "incorporate by reference" our publicly-filed reports
into this registration statement which means that information included in those
reports is considered part of this registration statement. Information that we
file with the SEC subsequent to the date of this registration statement will
automatically update and supersede the information contained in this
registration statement. 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 we have sold all the shares.
The following documents filed with the SEC are incorporated by reference:
1. Our Annual Report on Form 10-K for the year ended December 31, 1998
and Amendments 1 and 2 thereto as filed with the SEC on August 17,
1999 and August 26, 1999, respectively;
2. Our Quarterly Report on Form 10-Q for the quarterly period ended March
31, 1999 and Amendment No. 1 thereto filed with the SEC on August 16,
1999;
3. Our Quarterly Reports on Form 10-Q for the quarterly periods ended
June 30, 1999 and September 30, 1999;
4. Our Current Report on Form 8 K for the event of May 21, 1999, as filed
with the SEC on July 21, 1999;
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5. Our Current Report on Form 8-K for the event of June 25, 1999, as
filed with the SEC on June 29, 1999;
6. Our Current Report on Form 8-K for the event of June 21, 1999, as
filed with the SEC on June 30, 1999;
7. Our Current Report on Form 8-K for the event of March 22, 1999, as
filed with the SEC on March 25, 1999;
8. Our Current Report on Form 8-K for the event of March 10, 1999, as
filed with the SEC on March 25, 1999; and
9. 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 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, Tera Computer Company, 411 First Avenue South, Suite 600, Seattle,
Washington 98104, Telephone (206) 701-2000.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Director and Officers.
Article XII of the Company's Articles of Incorporation and Section 11 of
the Company's Bylaws require indemnification of directors, officers, employees,
and agents of the Company to the fullest extent permitted by the Washington
Business Corporation Act (the "WBCA"). Sections 23B.08.500 through 23B.08.000 of
the WBCA 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 Act.
Section 23B.08.320 of the WBCA 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 a
benefit in money, property or services to which the director is not legally
entitled. Article XI of the Company's Articles of Incorporation contains
provisions implementing, to the fullest extent
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permitted by Washington law, such limitations on a director's liability to the
Company and its shareholders.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Articles of Incorporation of the Company (1)
4.2 Restated Bylaws of the Company (1)
4.3 Tera Computer Company 1995 Stock Option Plan, as amended (2)
4.4 Tera Computer Company 1999 Stock Option Plan (2)
5 Opinion on Legality
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on signature page hereof)
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(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 Proxy Statement for the
1999 Annual Meeting of Shareholders, filed with the Commission on April
22, 1999.
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) 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, as amended;
(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
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(iii) To include any additional material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to information contained herein;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is incorporated by reference from periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
(c) 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.
2. 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.
3. 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.
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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 Seattle, State of Washington, on February 2,
2000.
TERA COMPUTER COMPANY
By:/s/ JAMES E. ROTTSOLK
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James E. Rottsolk
President and Chief Executive Officer
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Each of the undersigned hereby constitutes and appoints James E. Rottsolk
and Burton J. Smith, and each of them, his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments or
post-effective amendments to this Registration Statement, and any other
instruments or documents that said attorneys-in-fact and agents may deem
necessary or advisable, to enable Tera Computer Company to comply with the
Securities Act of 1933, as amended, and any requirements of the Securities and
Exchange Commission in respect thereof, and to file the same, with all exhibits
thereto, with the Securities and Exchange Commission, in connection with the
registration under the Securities Act, of shares of Common Stock of Tera
Computer Company, issuable pursuant to the 1995 and 1999 Stock Option Plans,
granting unto said attorneys-in-fact and agents and each of them full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities indicated below on the 2nd day of February, 2000:
Signature and Title
/s/ TERREN PEIZER /s/ DAVID N. CUTLER
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Terren Peizer David N. Cutler, Director
Chairman of the Board of Directors
/s/ BURTON J. SMITH
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Burton J. Smith Daniel J. Evans, Director
Chief Scientist and Director
/s/ JAMES E. ROTTSOLK /s/ KENNETH W. KENNEDY
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James E. Rottsolk Kenneth W. Kennedy, Director
Chief Executive Officer and Director
/s/ KENNETH W. JOHNSON /s/ JOHN W. TITCOMB, JR.
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Kenneth W. Johnson John W. Titcomb, Jr., Director
Chief Financial Officer
/s/ PHILISSA SARGIN /s/ STEPHEN C.KIELY
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Philissa Sargin Stephen C. Kiely, Director
Chief Accounting Officer
/s/ DEAN D. THORNTON
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Dean D. Thornton, Director
February 2, 2000
The Board of Directors
Tera Computer Company
Dear Sirs:
I am the general counsel of Tera Computer Company (the "Company") and have
supervised the corporate proceedings in connection with the filing of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 relating to the issuance of an aggregate of 3,215,686
shares of Common Stock (the "Shares") of the Company pursuant to the Company's
1995 Stock Option Plan, as amended, and the 1999 Stock Option Plan
(collectively, the "Plans"). I have reviewed the corporate actions of the
Company in connection with this matter and have examined those documents,
corporate records, and other instruments that I deemed necessary for the
purposes of this opinion.
Based on the foregoing, it is my opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the state of Washington; and
2. The Shares have been duly authorized and the Shares, when issued
pursuant to the Plans, will be, legally issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ KENNETH W. JOHNSON
Kenneth W. Johnson
General Counsel
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Tera Computer Company on Form S-8 of our report dated March 22, 1999, which
report includes an explanatory paragraph concerning the Company's ability to
continue as a going-concern, appearing in the Annual Report on Form 10-K of
Tera Computer Company for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Seattle, Washington
February 11, 2000
