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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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CRAY INC.
(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)
2001 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
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Kenneth W. Johnson
Vice President-Finance and Chief Financial Officer
CRAY INC.
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:
L John Stevenson, Esq.
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, par value $.01 per share 4,000,000 shares $1.83 $7,320,000 $1,830
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based on the last sale price of the Common
Stock of Cray Inc. as reported on September 24, 2001, on the NASDAQ
National Market System.
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PART I.
INTRODUCTION
This Registration Statement on Form S-8 is filed by Cray Inc. (the
"Company") relating to 4,000,000 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), issuable upon exercise of stock purchase
rights granted or to be granted pursuant to the Company's 2001 Employee Stock
Purchase Plan (the "Plan").
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 after 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,
2000 and amended on September 17, 2001;
2. Our quarterly reports on Form 10-Q for the quarters ended March
31, 2001 and June 30, 2001;
3. Our definitive proxy statement, as filed with the Securities and
Exchange Commission on April 9, 2001;
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4. Our current report on Form 8-K for the event of May 10, 2001, as
filed on May 14, 2001;
5. Our current report on Form 8-K for the event of April 3, 2001,
as filed on April 13, 2001;
6. Our current report on Form 8-K for the event of February 7,
2001, as filed on February 15, 2001;
7. Our current report on Form 8-K for the event of December 15,
2000, as filed on January 4, 2001 and amended on July 27, 2001;
and
8. The description of our common stock as described in our
registration statement on Form SB-2 (registration no.
33-95460-LA), including any amendment or report filed for the
purpose of updating the description, as incorporated by
reference in our registration statement on Form 8-A
(registration no. 0-26820), including the amendment 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
For purposes of this offering, Kenneth W. Johnson, Cray's general
counsel, is giving an opinion on the validity of the common shares. As of the
date of this prospectus, Mr. Johnson held 40,538 shares of Cray's common stock
and options exercisable for 270,000 shares of Cray's common stock.
Item 6. Indemnification of Director and Officers.
Article XII of the Company's 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 "WBCA"). Sections 23B.08.500 through
23B.08.600 of the WBCA authorize a court to award, or a corporation's board of
directors to grant,
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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 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4 Cray Inc. 2001 Employee Stock Purchase Plan
5 Opinion on Legality
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of General Counsel (included in Exhibit 5)
24 Power of Attorney (included on signature page hereof)
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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
(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.
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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 September 26,
2001.
CRAY INC.
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 Burton J. Smith and Kenneth W. Johnson, 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 Cray Inc. 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 Cray Inc., issuable pursuant to
the 2001 Employee Stock Purchase Plan, 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 26th day of September, 2001:
Signature and Title
/s/ James E. Rottsolk /s/ David N. Cutler
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James E. Rottsolk, Chairman of the David N. Cutler, Director
Board and Chief Executive Officer
/s/ Burton J. Smith /s/ Daniel J. Evans
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Burton J. Smith Daniel J. Evans, Director
Chief Scientist and Director
/s/ Terren S. Peizer /s/ Kenneth W. Kennedy
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Terren S. Peizer, Director Kenneth W. Kennedy, Director
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/s/ Kenneth W. Johnson /s/ William A. Owens
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Kenneth W. Johnson William A. Owens, Director
Chief Financial Officer
/s/ Stephen C. Kiely /s/ Dean D. Thornton
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Stephen C. Kiely, Director Dean D. Thornton, Director
/s/ Douglas C. Ralphs
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Douglas C. Ralphs
Chief Accounting Officer