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As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 333-46092
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
Form S-3 Registration Statement
Under the Securities Act of 1933
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CRAY INC.
(Exact name of registrant as specified in its charter)
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WASHINGTON 93-0962605
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
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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)
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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
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If the only shares 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 shares 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 shares offered only in connection with a dividend or interest
reinvestment plan, check the following box. [X]
If this Form is filed to register additional shares 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 Security and Exchange Commission, acting pursuant
to said section 8(a), may determine.
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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
shares 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):
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SEC Registration fee ............................. $ 5,280
Nasdaq listing fee ............................... $17,500
Legal fees ....................................... $ 5,000
Accountant's Fees ................................ $ 2,500
Miscellaneous .................................... $ 220
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Total ............................................ $30,500
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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 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.
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Item 16 Exhibits.
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1.1 Form of Underwriting Agreement (1)
1.2 Form of Placement Agent Agreement (1)
3.1 Restated Articles of Incorporation of the Company (2)
3.2 Restated Bylaws of the Company (3)
5 Opinion on Legality
23 Consent of Deloitte & Touche LLP*
24 Power of Attorney (included on signature page hereof)
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* Previolusly filed
(1) To be filed by amendment or by a Current Report on Form 8-K if the
registrant enters into any such agreement in connection with the offer
of any shares of Common Stock registered hereunder.
(2) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2000.
(3) 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.
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
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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 shares offered therein, and the offering of such
shares at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the shares 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 Security 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 shares offered therein, and the offering of such
shares 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 shares 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.
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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-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 September 29,
2000.
CRAY INC.
By: /s/ James E. Rottsolk
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James E. Rottsolk
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, the undersigned's true and
lawful attorney-in-fact and agent, with full power of substitution, for the
undersigned and in his or her 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 Cray Inc. to comply with
the Securities Act of 1933, as amended, and any requirements of the Security and
Exchange Commission in respect thereof, and to file the same, with all exhibits
thereto, with the Security and Exchange Commission, 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 the undersigned 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated below on the 29th day of September, 2000:
Signature and Title
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Terren S. Peizer, Chairman Daniel J. Evans, Director
of the Board of Directors
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Burton J. Smith, Director Stephen C. Kiely, Director
* *
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James E. Rottsolk Kenneth W. Kennedy, Director
Chief Executive Officer and Director
* *
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Kenneth W. Johnson John W. Titcomb, Jr., Director
Chief Financial Officer
* *
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David N. Cutler, Director Dean D. Thornton, Director
/s/ James E. Rottsolk
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James E. Rottsolk
* Attorney in Fact
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