As filed with the Securities and Exchange Commission on June 7, 2006

Registration No. 333-                    

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

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, Washington 98104-2860
(Address of Principal Executive Offices)

Cray Inc. 2006 Long-Term Equity Compensation Plan
(Full title of plan)

Kenneth W. Johnson
Senior Vice President, General Counsel and Corporate Secretary
CRAY INC.
411 First Avenue South, Suite 600
Seattle, Washington 98104-2860
Tel.: (206) 701-2000
Fax: (206) 701-2500
(Name, address, telephone and facsimile numbers of agent for service)

Proposed Maximum

Proposed Maximum

Title of Securities to Be

Amount to Be

Offering Price Per

Aggregate Offering

Amount of

Registered

Registered(1)

Share (2)

Price (2)

Registration Fee

Common Stock $0.01 par value

10,000,000 Shares

$1.83

$18,300,000

$1,958.10

 

 

Note: The information in this Registration Statement relating to our Common Stock pertains to our Common Stock as constituted on the date hereof and before an adjustment in the Common Stock for a one-for-four reverse stock split expected to become effective on June 8, 2006.

PART I

Item 1. Plan Information. *

Item 2. Registrant Information and Employee Plan Annual Information. *

PART II

Item 3. Incorporation of Documents By Reference.

     The Securities and Exchange Commission (the “SEC” or the “Commission”) 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 into this registration statement 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 filed with the SEC a post-effective amendment to this registration statement indicating that we have sold all the shares offered hereby or have deregistered any shares then remaining unsold.

     The following documents filed with the SEC are incorporated into this statement by reference (other than any portions of the respective filings that were furnished pursuant to Item 2.02 or 7.01 of Current Reports on Form 8-K or other applicable SEC rules):

	1)		Our Annual Report on Form 10-K for the year ended December 31, 2005;
	2)		Our Definitive Proxy Statement for the 2006 Annual Meeting, as filed with the SEC on April 28, 2006;
	3)		Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2006;
	4)		Our Current Reports on Form 8-K filed on January 4, 2006, January 11, 2006, February 21, 2006, March 17, 2006, March 31, 2006, April 10, 2006, April 18, 2006, April 24, 2006, May 2, 2006, May 4, 2006, and May 5, 2006, and our amended Current Report on Form 8-K/A filed on February 13, 2006; and
	5)		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, Cray Inc., 411 First Avenue South, Suite 600, Seattle, Washington 98104-2860, telephone (206) 701-2000.

Item 4. Description of Securities.

     Not applicable.

Item 5. Interests of Named Experts and Counsel.

     Kenneth W. Johnson, our Senior Vice President, General Counsel and Corporate Secretary, is giving an opinion on the validity of the common shares that may be offered under the Cray Inc. 2006 Long-Term Equity Compensation Plan (the “Plan”). As of the date of this registration statement, Mr. Johnson held 193,775 shares of our common stock and options to purchase 530,200 shares of our common stock. Mr. Johnson is eligible to receive awards under the Plan.

Item 6. Indemnification of Directors and Officers.

     Article VII of our Restated Articles of Incorporation and Section 10 of our Restated Bylaws require indemnification of directors and permit indemnification of our officers, employees, and agents 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, indemnification to directors and officers on terms sufficiently broad to permit indemnification under certain circumstances for liabilities arising under the Securities Act of 1933, as amended.

     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 VI of our Restated Articles of Incorporation contains provisions implementing, to the fullest extent permitted by Washington law, such limitations on a director’s liability to us and our shareholders.

     In addition, we maintain directors’ and officers’ liability insurance to insure our liability under the above-described provisions of our Articles of Incorporation and Bylaws and to cover us and our officers and directors for certain liabilities and defense costs, including those arising from claims under the securities laws.

Item 7. Exemption From Registration Claimed.

     Not applicable.

Item 8. Exhibits.

		5			Opinion on Legality
		10.1			2006 Long-Term Equity Compensation Plan*
		23.1			Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm
		23.2			Consent of Peterson Sullivan PLLC, Independent Registered Public Accounting Firm
		23.3			Consent of General Counsel (included in Exhibit 5)
		24			Power of Attorney (included on signature page hereof)

Item 9. 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 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;

(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 reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

     (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 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 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.

SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, 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 June 6, 2006.

Power of Attorney

     Each of the undersigned hereby constitutes and appoints Peter J. Ungaro, Brian C. Henry and Kenneth W. Johnson, 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 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 2006 Long-Term Equity Compensation 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 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, the Registration Statement has been signed by the following persons in the capacities indicated below on the 6th day of June, 2006:

Signature and Title

/s/ Peter J. Ungaro		/s/ Stephen C. Kiely
Peter J. Ungaro, Chief Executive Officer,		Stephen C. Kiely, Director
President and Director
/s/ Brian C. Henry		/s/ Frank L. Lederman
Brian C. Henry, Principal Financial Officer		Frank L. Lederman, Director
/s/ Kenneth D. Roselli		/s/ Sally G. Narodick
Kenneth D. Roselli, Principal Accounting Officer		Sally G. Narodick, Director
/s/ John B. Jones, Jr.		/s/ Daniel C. Regis
John B. Jones, Jr., Director		Daniel C. Regis, Director
/s/ Kenneth W. Kennedy, Jr.		/s/ Stephen C. Richards
Kenneth W. Kennedy, Jr., Director		Stephen C. Richards, Director