posam
As
filed with the Securities and Exchange Commission on July 12, 2006.
Registration No. 333-57972
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
Form S-3 on Form S-1
Registration Statement
Under the Securities Act of 1933
CRAY INC.
(Exact name of registrant as specified in its charter)
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WASHINGTON
(State or other jurisdiction
of incorporation or organization)
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93-0962605
(IRS Employer
Identification No.) |
411 First Avenue South, Suite 600
Seattle, Washington
(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,
Senior Vice President, General Counsel
and Corporate Secretary
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)
Copy to:
L. John Stevenson, Jr.
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 post-effective amendment becomes effective
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,
check the following box. þ
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.
o
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.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act,
check the following box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
o
If this
Form is a registration statement pursuant to General Instruction I.D.
or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box.
o
If this
Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule
413(b) under the Securities Act, check the following box.
o
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.
EXPLANATORY NOTE
This Post Effective Amendment No. 1 to Form S-3 on Form S-1 is being filed to convert the
registration statement of Cray Inc. on Form S-3 (Registration No. 333-57972) into a registration
statement on Form S-1.
All numbers of shares of Cray Inc. common stock, per share calculations and trading prices and
similar information involving Cray Inc. common stock in this post-effective amendment to the
registration statement, including in the prospectus included herein, have been adjusted to reflect
a one-for-four reverse stock split of Cray common stock that became effective on June 8, 2006.
Such information in documents dated prior to June 8, 2006, that are incorporated by reference
herein do not reflect the reverse stock split.
The information in this prospectus is not complete and may be changed. These securities may
not be sold using this prospectus until the post-effective amendment filed with the Securities and
Exchange Commission is effective. This prospectus is not an offer to sell these securities and it
is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
PROSPECTUS,
Subject to Completion, dated July 12, 2006
CRAY INC.
1,284,852 shares of common stock
These shares of common stock are issuable upon exercise of common stock purchase warrants
owned by the selling shareholders and may be offered and sold from time to time by them.
The selling shareholders may sell the shares 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. We will not receive any proceeds from the sale of the shares, but will bear the
costs relating to the registration of 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.”
Our
common stock is traded on the Nasdaq Global Market under the symbol “CRAY.” On July 7,
2006, the closing price for our common stock was $10.78 per share.
All
numbers of shares of our common stock in this prospectus, as well as
per share calculations and trading prices and similar
information involving our common stock, reflect the one-for-four reverse stock split effected on
June 8, 2006. Such information in documents dated prior to June 8, 2006, that are incorporated by
reference into this prospectus do not reflect the one-for-four reverse stock split.
References
to “we, ”our,” “us,” “Cray,” and
the “Company,” refer to Cray Inc. and its subsidiaries.
Investing in the common stock underlying the warrants involves significant
risks. Before purchasing any of the common stock, you should carefully consider the “Risk Factors”
contained in our annual report on Form 10-K for the year ended December 31, 2005 and our quarterly
report on Form 10-Q for the quarter ended March 31, 2006, which are incorporated by reference into
this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY
STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF
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 , 2006.
This prospectus does not constitute an offer of, or an invitation to purchase, any of the
shares of common stock underlying the warrants in any jurisdiction in which, or to any person to
whom, such offer or invitation would be unlawful. In making your investment decision, you should
only rely on the information contained in or incorporated by reference into this prospectus. We
have not authorized anyone to provide you with any other information. If you receive any
unauthorized information, you must not rely on it. You should not assume that the information
contained in or incorporated by reference into this prospectus is accurate as of any date other
than the date on the front cover of this prospectus or the date of such incorporated information,
as applicable. Neither the delivery of this prospectus nor any sales of the common stock shall,
under any circumstances, create any implication that there has been no change in the affairs of
Cray Inc. after the date of this prospectus.
TABLE OF CONTENTS
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We file annual, quarterly and current reports and other information with the SEC. You may read
and copy the registration statement of which this prospectus constitutes a part and any other
materials that we file with the SEC at the SEC’s public reference room located at 100 F Street,
N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference
room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains
reports, proxy and information statements, and other information regarding issuers that file
electronically with the SEC. Our SEC filings are available to you free of charge on that SEC web
site at http://www.sec.gov.
The SEC allows us to “incorporate by reference” into this prospectus the publicly filed
reports described below, which means that information included in those reports is considered part
of this prospectus. We specifically incorporate by reference in this prospectus the following
documents we have filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended,
which we refer to hereafter as the Exchange Act (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):
2
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our Annual Report on Form 10-K for the fiscal year ended December 31,
2005, filed on April 21, 2006; |
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our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2006, filed on May 9, 2006; |
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our Current Report on Form 8-K, filed on January 4, 2006; |
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our Current Report on Form 8-K, filed on January 11, 2006; |
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our amended Current Report on Form 8-K/A, filed on February 13, 2006; |
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our Current Report on Form 8-K, filed on February 21, 2006; |
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our Current Report on Form 8-K, filed on March 17, 2006; |
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our Current Report on Form 8-K, filed on April 10, 2006; |
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our Current Report on Form 8-K, filed on April 18, 2006; |
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our Current Report on Form 8-K, filed on April 24, 2006; |
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our Current Report on Form 8-K, filed on May 2, 2006; |
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our Current Report on Form 8-K, filed on May 4, 2006; |
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our Current Report on Form 8-K, filed on June 8, 2006; |
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our Definitive Proxy Statement for the 2006 annual meeting of our
shareholders, filed on April 28, 2006; and |
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all other reports filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act between the filing date and the
effective date of the post-effective amendment of which this
prospectus is a part. |
These filings are available at the SEC’s website, www.sec.gov, as well as our website,
www.cray.com. We will provide to each person, including any beneficial owner, to whom a prospectus
is delivered, a copy of any or all of the reports or documents that have been incorporated by
reference in this prospectus but not delivered with this prospectus. We will provide you with
these reports or documents upon written or oral request and at no cost to you. You may request a
copy of these filings, by writing or telephoning us at the following address:
3
Cray Inc.
411 First Avenue South
Suite 600
Seattle, Washington 98104
Telephone: (206) 701-2000
Attention: Kenneth W. Johnson, Corporate Secretary
The information relating to us contained in this prospectus is not comprehensive and should be
read together with the information contained in the incorporated documents. Statements contained in
this prospectus as to the contents of any contract or other document are not necessarily complete.
For a more detailed evaluation, you should refer to the copy of the contract or other document
filed as an exhibit to the Registration Statement.
The selling shareholders are not making an offer of these securities in any jurisdiction where
the offering is not permitted.
You should not assume that the information contained or incorporated by reference in this
prospectus is accurate as of any date other the date on the front of this prospectus or the dates
of the incorporated documents.
Cray is a federally registered trademark of Cray Inc. and Cray X1, Cray X1E, Cray XT3, Cray XD1,
Cray T90, Cray T3E, Cray SV1, Cray SV1ex, Cray SX-6 and Cray MTA-2 are trademarks of Cray Inc.
Other trademarks used in this prospectus are the property of their respective owners.
4
OUR BUSINESS
We design, develop, market and service high performance computer systems, commonly known as
supercomputers. These systems provide capability and capacity far beyond typical server-based
computer systems and address challenging scientific and engineering computing problems for
government, industry and academia.
We are dedicated solely to the high performance computing market. We have concentrated our
product roadmap on building balanced systems combining highly capable processors (whether developed
by ourselves or by others) along with highly scalable software with very high speed interconnect and
communications capabilities throughout the entire computing system, not solely
processor-to-processor. We believe we are very well positioned to meet the high performance
computer market’s demanding needs by providing superior supercomputer systems with performance and
cost advantages over low-bandwidth and cluster systems when sustained performance on challenging
applications and workloads and total cost of ownership are taken into account.
We were incorporated under the laws of the State of Washington in December 1987. Our corporate
headquarter offices are located at 411 First Avenue South, Suite 600, Seattle, Washington,
98104-2860, our telephone number is (206) 701-2000 and our web site address is:
www.cray.com. The contents of our web site are not incorporated by reference into this
prospectus or our other SEC reports and filings.
5
SPECIAL CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference ‘‘forward-looking statements’’ that
involve risks and uncertainties, as well as assumptions that, if they never materialize or prove
incorrect, could cause our results to differ materially from those expressed or implied by such
forward-looking statements. All statements other than statements of historical fact are statements
that could be deemed forward-looking statements, including the following: any projections of
earnings, revenue or other financial items; any statements of the plans, strategies and objectives
of management for future operations; any statements concerning proposed new products, services or
developments; any statements regarding future economic conditions or performance; statements of
belief; and any statement of assumptions underlying any of the foregoing.
The risks, uncertainties and assumptions referred to above include the following: fluctuating
operating results with possibility of periodic losses and uneven and possibly negative cash flows;
the need for increased product revenue and margin, particularly from our Cray XT3 system and
upgrade and successor systems; the technical challenges of developing new supercomputer systems on
time and budget; the timing of product orders, shipments and customer acceptances; the timing and
level of government support for supercomputer system development; whether we will be awarded a
phase 3 contract under the DARPA High Productivity Computing Systems program; our dependency on
third-party suppliers to build and deliver components timely that meet our specifications; the
challenge of maintaining expense growth at modest levels while increasing revenue; our ability to
attract, retain and motivate key employees, including executive officers and managers; and other
risks that are described under ‘‘Risk Factors’’ in our SEC reports that are incorporated by
reference into this prospectus, as described above.
We assume no obligation to update these forward-looking statements. In various reports that we
file with the SEC and that have been or may be incorporated by reference herein, we rely on and
refer to information and statistics regarding the markets for various products. We obtained this
information from third party sources, discussions with our customers and our own internal
estimates. We believe that these third-party sources are reliable, but we have not independently
verified them and we cannot assure you that they are accurate.
6
DESCRIPTION OF COMMON STOCK
At June 30, 2006, our authorized capital stock consists of 75,000,000 shares of common stock,
$.0l par value per share, and 5,000,000 shares of preferred stock, $.0l par value per share. At
June 30, 2006, no shares of preferred stock and 23,041,752 shares of our common stock were issued
and outstanding. In addition, as of that date, up to 5,698,006 shares of common stock were issuable on
conversion of our 3.0% Convertible Senior Subordinated Notes due 2024 and 4,904,846 shares of
common stock were issuable, in the aggregate, on exercise of certain options and warrants. Holders
of common stock are entitled to one vote per share in all matters to be voted on by the
shareholders. Shareholders may not cumulate their votes in the election of directors. Subject to
preferences that may be applicable to any preferred stock outstanding at the time, holders of
common stock are entitled to receive ratably such dividends, if any, as may be declared from time
to time by the Board of Directors out of funds legally available therefor. In the event of our
liquidation, dissolution or winding up, holders of common stock are entitled to share ratably in
all assets remaining after payment of or making provision for our liabilities and the liquidation
preference, if any, of any then outstanding shares of preferred stock. Holders of common stock have
no preemptive rights and no rights to convert their common stock into any other securities, and
there is no redemption or sinking fund provision with respect to any such shares. The rights,
preferences and privileges of shares of common stock are subject to, and may be materially and
adversely affected by, the rights of shares of any series of preferred stock which we may designate
and issue in the future.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
Our common stock is traded on the Nasdaq Global Market under the symbol CRAY. On June 30,
2006, we had 23,041,752 shares of common stock outstanding that were held by 715 holders of record.
The quarterly high and low sales prices of our common stock for the periods indicated are as
follows:
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2004 |
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2005 |
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2006 |
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High |
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Low |
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High |
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Low |
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High |
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Low |
First Quarter |
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$ |
47.00 |
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$ |
24.24 |
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$ |
19.64 |
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$ |
8.32 |
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$ |
10.16 |
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$ |
5.20 |
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Second Quarter |
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32.12 |
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24.36 |
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11.00 |
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4.72 |
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10.16 |
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5.88 |
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Third Quarter
(through July 7, as to 2006) |
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26.72 |
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11.40 |
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5.64 |
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3.40 |
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11.60 |
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9.95 |
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Fourth Quarter |
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19.32 |
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12.08 |
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6.92 |
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3.56 |
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We have not paid cash dividends on our common stock and we do not anticipate paying any cash
dividends on our common stock in the foreseeable future. In addition, our credit facility prohibits
us from paying cash dividends without the consent of our lender.
7
SELLING SHAREHOLDERS
On June 21, 1999, we issued a warrant to Terren S. Peizer in exchange for $200,000. The
warrant, which fully vested on June 21, 2001, is exercisable for 1,284,852 shares of our common
stock at an exercise price of $10.12 per share and expires on June 21, 2009. The exercise price
will be proportionately adjusted for any split in the outstanding shares of our common stock or a
dividend on our common stock that is paid in common stock.
Mr. Peizer subsequently transferred the warrant to Laphroig LLC and Chinaco LLC, the selling
shareholders described below.
As of July 7, 2006, Mr. Peizer and the selling shareholders held no shares of our common
stock. The shares covered by this prospectus include only the shares of common stock issuable to
the selling shareholders upon the exercise of the warrant described above. All of the shares
covered by this prospectus are being sold for the account of the selling shareholders.
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Ownership After Offering |
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if All Shares Offered |
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Shares |
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in Offering Are Sold |
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Owned Before |
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Shares Being |
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Offering (2) |
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Offered |
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Shares (3) |
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Percent |
Laphroig LLC |
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0 |
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1,220,610 |
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0 |
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n/a |
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Chinaco LLC |
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0 |
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64,242 |
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0 |
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n/a |
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Terren S. Peizer has voting and dispositive powers over the shares to be sold by each of the
selling shareholders. |
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Does not include the shares issuable upon exercise of the warrants nor 4,500 shares
issuable to Mr. Peizer upon exercise of stock options. |
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Does not include 4,500 shares issuable to Mr. Peizer upon exercise of stock options. |
Mr. Peizer served as the chairman of our board of directors from June 25, 1999 to December 21,
2000, and as a director from June 25, 1999, to February 12, 2002.
PLAN OF DISTRIBUTION
We are registering the shares covered by this prospectus for the selling shareholders. They or
their respective pledgees, donees, transferees or other successors in interest may sell the shares
in the over-the-
counter market or in other transactions, at market prices
prevailing at the time of sale, at prices
8
related to prevailing market prices, or at negotiated prices. The shares may also be sold by one or
more of the following methods:
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a block trade in which a broker or dealer so engaged will attempt to sell the shares as
agent but may position and resell a portion of the block, as principal, in order to facilitate
the transaction; |
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purchases by a broker or dealer, as principal, in a market maker capacity or by other means
and resale by the broker or dealer for its account under the terms of the prospectus; or |
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ordinary brokerage transactions and transactions in which a broker solicits purchases. |
We 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. We
and the selling shareholders each have agreed to indemnify the other against specified liabilities,
including liabilities arising under the Securities Act of 1933, that relate to statements or
omissions in the registration statement of which this prospectus forms a part.
Regulation M under the Securities Exchange Act of 1934 provides that during the period that
any person is engaged in the distribution of our common stock, the person engaged in the
distribution generally may not purchase shares of our common stock. The selling shareholders are
subject to applicable rules, regulations and provisions of the Securities Act of 1933 and the
Securities Exchange Act of 1934, including Regulation M, which may limit the timing of purchases
and sales of shares of our common stock by the selling shareholders and may affect the
marketability of our common stock.
The selling shareholders may negotiate and pay brokers or dealers commissions, discounts or
concessions for their services. In making sales, brokers or dealers engaged by the selling
shareholders may allow other broker or dealers to participate. However, the selling shareholders
and any brokers or dealers involved in the sale or resale of the shares may qualify as underwriters
within the meaning of section 2(a)(11) of the Securities Act of 1933. In addition, the brokers’ or
dealers’ commissions, discounts or concessions may qualify as underwriters’ compensation under the
Securities Act of 1933. If either of the selling shareholders qualifies as an underwriter, they
will be subject to the prospectus delivery requirements of section 5(b)(2) of the Securities Act of
1933.
The selling shareholders may also:
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agree to indemnify any broker or dealer or agent against liabilities related to the selling
of the shares, including liabilities arising under the Securities Act of 1933; |
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transfer their shares in other ways not involving market makers or established trading
markets, including directly by gift, distribution, or other transfer; or |
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sell their shares under Rule 144 of the Securities Act of 1933 rather than under this
prospectus, if the transaction meets the requirements of Rule 144. |
Upon notification by the selling shareholders that any material arrangement has been entered
into with a broker or dealer for the sale of the shares through a block trade, special offering,
exchange
9
distribution or secondary distribution or a purchase by a broker or dealer, we will file a
supplement to this prospectus, if required by Rule 424(b) under the Securities Act of 1933,
disclosing the material terms of the transaction.
LEGAL MATTERS
The validity of the common stock we are offering was passed upon by Kenneth W. Johnson, our
Senior Vice President and General Counsel. As of the date of this prospectus, Mr. Johnson held
48,488 shares of our common stock, and options to purchase 132,547 shares of our common stock.
EXPERTS
The financial statements and management’s report on the effectiveness of internal control over
financial reporting incorporated in this prospectus by reference from the Company’s Annual Report
on Form 10-K for the year ended December 31, 2005, have been audited by Peterson Sullivan PLLC, an
independent registered public accounting firm, as stated in its reports, which are incorporated
herein by reference (which reports express (1) an unqualified opinion on the financial statements,
(2) an unqualified opinion on management’s assessment regarding the effectiveness of internal
control over financial reporting, and (3) an unqualified opinion on the effectiveness of internal
control over financial reporting), and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
The
financial statements and related financial statement schedule as of December 31, 2004, and for the years ended December 31, 2004,
and 2003, incorporated in this prospectus by reference, have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in their
report, which is incorporated
herein by reference (which report expresses an unqualified opinion on
the financial statements and related financial statement schedule and includes an explanatory
paragraph related to the restatement described in Note 2), and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in accounting and
auditing.
10
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by the Company in connection
with the sale of the securities being registered. All amounts are estimates except the SEC
registration fee.
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SEC registration fee |
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$ |
3,251 |
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Legal fees and expenses |
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7,000 |
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Accounting fees and expenses |
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6,000 |
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Printing fees and expenses |
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4,000 |
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Miscellaneous |
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1,749 |
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Total |
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$ |
22,000 |
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Item 14. Indemnification of Directors and Officers.
Article VII of the Company’s Restated Articles of Incorporation and Section 10 of the
Company’s Restated Bylaws require indemnification of directors
and permit indemnification of 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 VI 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 15. Recent Sales of Unregistered Securities.
In January 1999, we issued a warrant to the Agean Group for 25,000 shares of common stock for
investment advisory services. The warrant had an exercise price of $24.00 per share, had cashless
exercise provisions and expired on January 20, 2004. From July 1, 2003, through January 20, 2004,
we issued an aggregate of 10,530 shares of common stock in cashless exercises upon exercises of
this warrant.
In February and March 1999, we issued warrants to Compunetics, Inc. covering 3,707 shares of
common stock as part of a private financing. The warrants had an
exercise price of $20.00 per share and
expired on March 31, 2004. The warrant was exercised in full in February 2004 and we received
$74,145 upon such exercise.
In March 1999, we issued a warrant to Kirlin Securities, Inc. for 25,000 shares of common
stock for investment advisory services. The warrant had an exercise price of $24.00 per share, had
cashless exercise provisions and expired on March 30, 2005. From July 1, 2003, through March 30,
2004, we issued an aggregate of 12,312 shares
of common stock in cashless exercises of this warrant.
II - 1
In March 1999, in connection with a private financing in which we raised $5,000,000, we
issued a warrant to Banca del Gottardo for 277,778 shares of common
stock with an initial per share exercise
price of $20.64, subsequently reduced to $18.88 in connection with a private financing in June
1999. As part of the March 1999 financing, we also had issued warrants for 6,250 shares of common
stock as part payment for a financing fee whose exercise price was not reduced. The warrants
expired on March 9, 2004. From July 1, 2003, through March 9, 2004, we issued an aggregate of
265,028 shares of common stock upon exercises of such warrants, receiving an aggregate of
$4,910,724.
In connection with the acquisition of OctigaBay Systems Corporation on April 1, 2004, we
issued a total of 1,890,221 shares of our common stock to certain OctigaBay shareholders and
reserved an additional 1,210,105 shares of our common stock for issuance upon exchange of
exchangeable securities issued to certain OctigaBay shareholders by our Nova Scotia subsidiary. We
also assumed outstanding OcitgaBay stock options exercisable for 185,181 shares of our common
stock. During the period from June 2004 through January 2006, we issued all 1,210,105 shares of
common stock upon exchange of the exchangeable securities.
In connection
with a private financing on February 15, 2002, we extended the exercise date for
certain warrants to purchase an aggregate of 363,580 shares of common stock from June 21, 2002,
through June 21, 2004, with an exercise price of $12.00 per share. From
July 1, 2003, through June 21, 2004,
we issued 311,962 shares upon exercise of these warrants, receiving $3,743,538 in proceeds.
On May 17, 2002, we issued a warrant to Patrick W. Grady covering 37,500 shares of common
stock in return for certain financial advisory services. The warrant had an exercise price of
$14.00 per share, had cashless exercise provisions and expired on May 17, 2004. This warrant was exercised
from time to time and fully in the second quarter of 2004 pursuant to the cashless exercise
provisions. We issued an aggregate of 24,155 shares of common stock pursuant to these exercises.
In connection with the surrender to our landlord, Merrill Place, LLC, of certain space in our
Seattle, Washington headquarters office and related amendments to our lease in the fourth quarter
of 2005, we issued an aggregate of 17,500 shares of our common stock to our landlord.
The issuances of the warrants and the shares described above, because of the nature of the
investors and the manner in which the offerings were each conducted, were exempt from the
registration provisions of the Securities Act of 1933 under Sections 4(2) and 4(6) and the rules
and regulations thereunder and, with respect to the shares issued upon exchange of exchangeable
shares, also under Regulation S under the Securities Act. The issuances of the shares of our Common
Stock to OctigaBay shareholders were exempt from registration pursuant to Section 3(a)(10) of the
Securities Act of 1933, as amended in accordance with a plan of arrangement approved by the Supreme
Court of British Columbia, Canada.
In separate closings held on December 6 and 21, 2004, we issued and sold a total of $80
million in aggregate principal amount of our 3.0% Convertible Senior Subordinated Notes due 2024 in
a private placement to Bear, Stearns & Co. Inc., the initial purchaser, which was entitled to
resell the Notes to “qualified institutional buyers” pursuant to Rule 144A under the Securities Act
of 1933, as amended.
We received net proceeds of approximately $76.6 million from the offering of $80 million in
aggregate principal amount of the Notes, after deducting the initial purchaser’s discount of $3
million and offering expenses. The offering of the Notes was made pursuant to the terms of a
Purchase Agreement, dated December 1, 2004, between Bear, Stearns & Co. Inc. and us. The Notes are
issued under an Indenture by and between The Bank of New York Trust Company, N.A. and us and
benefit from a Registration Rights Agreement between Bear, Stearns & Co. Inc., as the initial
purchaser, and us.
II - 2
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
| |
|
|
| Exhibit |
|
|
| Number |
|
Description |
3.1
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|
Restated Articles of Incorporation (1) |
|
|
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3.2
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Amended and Restated Bylaws (1) |
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4.1
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Form of Common Stock Purchase Warrants due September 3, 2006 (16) |
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4.2
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Form of Common Stock Purchase Warrants due June 21, 2009 (17) |
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4.3
|
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Indenture dated as of December 6, 2004, by and between the Company and The Bank of New York
Trust Company, N.A. as Trustee (and Form of 3.0% Convertible Senior Subordinated Note
included as Exhibit A to the Indenture) (14) |
|
|
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4.4
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Common Stock Purchase Warrant due May 30, 2009 (23) |
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5.1
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Opinion regarding validity (30) |
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10.1
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2000 Non-Executive Employee Stock Option Plan (5) |
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10.2
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2001 Employee Stock Purchase Plan (13)* |
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10.3
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2003 Stock Option Plan (2)* |
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10.4
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2004 Long-Term Equity Compensation Plan (15)* |
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10.5
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Cray Canada Inc. Amended and Restated Key Employee Stock Option Plan (21) |
|
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10.6
|
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Form of Management Continuation Agreement between the Company and its Executive Officers and
certain other Employees (10)* |
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10.7
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Executive Severance Policy, as amended (24)* |
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10.8
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Lease Agreement between Merrill Place, LLC and the Company, dated November 21, 1997 (6) |
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10.9
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FAB I Building Lease Agreement between Union Semiconductor Technology Corporation and the
Company, dated as of June 1, 2000 (7) |
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10.10
|
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Amendment No. 1 to the FAB Building Lease Agreement between Union Semiconductor Technology
Corporation and the Company, dated as of August 19, 2002 (3) |
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10.11
|
|
Conference Center Lease Agreement between Union Semiconductor Technology Corporation and the
Company, dated as of June 1, 2000 (7) |
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10.12
|
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Amendment No. 1 to the Conference Center Lease Agreement between Union Semiconductor
Technology Corporation and the Company dated as of August 19, 2002 (3) |
|
|
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10.13
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|
Mendota Heights Office Lease Agreement between the Teachers’ Retirement System of the State
of Illinois and the Company, dated as of August 10, 2000 (7) |
|
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10.14
|
|
First Amendment to the Mendota Heights Office Lease Agreement between the Teachers’
Retirement System of the State of Illinois and the Company, dated as of January 17, 2003 (3) |
II - 3
| |
|
|
| Exhibit |
|
|
| Number |
|
Description |
10.15
|
|
Sublease Agreement between Trillium Digital Systems Canada, Ltd. and OctigaBay Systems
Corporation, dated as of January 13, 2003, with Consent to Subletting by and among 391102
B.C, Ltd. and Dominion Construction and Development Inc., Trillium Digital Systems Canada,
Ltd., OctigaBay Systems Corporation and Intel Corporation, dated January 20, 2003, and Lease
Agreement between Dominion Construction Company Inc. and 391102 B.C. Ltd., Trillium Digital
Systems Canada, Ltd. and Intel Corporation, dated March 5, 2001 (22) |
|
|
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10.16
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Credit Agreement between Wells Fargo Bank, N.A. and the Company, dated April 10, 2003, and
Related Revolving Line of Credit Note (8) |
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10.17
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First Amendment to Credit Agreement between Wells Fargo Bank, N.A. and the Company, dated
March 5, 2004 (22) |
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10.18
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Second Amendment to Credit Agreement between Wells Fargo Bank, N.A. and the Company, dated
June 7, 2004 (22) |
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10.19
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Third Amendment to Credit Agreement between Wells Fargo Bank, N.A. and the Company, dated
November 29, 2004 (22) |
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10.20
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Fourth Amendment to Credit Agreement between Wells Fargo Bank, N.A. and the Company, dated
December 15, 2004 (22) |
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10.21
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Securities Account Control Agreement, with Addendum, by and among Wells Fargo Bank, N.A. and
the Company, dated as of December 15, 2004 (22) |
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10.22
|
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Technology Agreement between Silicon Graphics, Inc. and the Company, effective as of March
31, 2000 (4) |
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10.23
|
|
Distribution Agreement between NEC Corporation and the Company, dated as of February 28,
2001 (12)+ |
|
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10.24
|
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Sales and Marketing Services Agreement among NEC Corporation, HNSX Supercomputers, Inc. and
Cray Inc., dated as of February 28, 2001 (12)+ |
|
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10.25
|
|
Maintenance Agreement between NEC Corporation and the Company, dated as of February 28, 2001
(12)+ |
|
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10.26
|
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Amendment to Maintenance Agreement between NEC Corporation and the Company, dated June 9,
2003 (11)+ |
|
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10.27
|
|
Letter from NEC Corporation notifying the Company that its distribution rights in North
America will be non-exclusive, dated April 24, 2003 (11) |
|
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10.28
|
|
Arrangement Agreement, dated as of February 25, 2004, by and among the Company, 3084317 Nova
Scotia Limited and OctigaBay Systems Corporation (18) |
|
|
|
10.29
|
|
Purchase Agreement, dated December 1, 2004, by and between the Company and Bear, Stearns &
Co. Inc. as Initial Purchaser (14) |
|
|
|
10.30
|
|
Registration Rights Agreement dated December 6, 2004, by and between the Company and Bear,
Stearns & Co. Inc., as Initial Purchaser (14) |
|
|
|
10.31
|
|
2005 Executive Bonus Plan* (20) |
|
|
|
10.32
|
|
Form of Officer Non-Qualified Stock Option Agreement* (22) |
|
|
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10.33
|
|
Form of Officer Incentive Stock Option Agreement* (22) |
|
|
|
10.34
|
|
Form of Director Stock Option Agreement* (22) |
II - 4
| |
|
|
| Exhibit |
|
|
| Number |
|
Description |
10.35
|
|
Form of Director Stock Option, immediate vesting* (22) |
|
|
|
10.36
|
|
Fourth Amendment to the Lease between Merrill Place LLC and the Company, dated as of October
31, 2005 (25) |
|
|
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10.37
|
|
Letter Agreement between the Company and Peter J. Ungaro, effective March 7, 2005* (19) |
|
|
|
10.38
|
|
Offer Letter between the Company and Margaret A. Williams, dated April 14, 2005* (26) |
|
|
|
10.39
|
|
Offer Letter between the Company and Brian C. Henry, dated May 16, 2005* (27) |
|
|
|
10.40
|
|
Senior Secured Credit Agreement among the Company, Cray Federal Inc. and Wells Fargo
Foothill, Inc., dated May 31, 2005 (23) |
|
|
|
10.41
|
|
Amendment No. 1 to the Senior Secured Credit Agreement among the Company, Cray Federal Inc.
and Wells Fargo Foothill, Inc., dated November 9, 2005 (28) |
|
|
|
10.42
|
|
Form of Restricted Stock Agreement* (29) |
|
|
|
10.43
|
|
Retention Agreement between the Company and Peter J. Ungaro, dated December 20, 2005* (29) |
|
|
|
10.44
|
|
Retention Agreement between the Company and Brian C. Henry, dated December 20, 2005* (29) |
|
|
|
10.45
|
|
Retention Agreement between the Company and Margaret A. Williams, dated December 20, 2005*
(29) |
|
|
|
10.46
|
|
Summary sheet setting forth amended compensation arrangements for non-employee Directors (31) |
|
|
|
10.47
|
|
Amendment Number Two to Senior Secured Credit Agreement, dated as of March 14, 2006, between
Wells Fargo Foothill, Inc., Cray Inc. and Cray Federal Inc. (32) |
|
|
|
10.48
|
|
Form of Director Restricted Stock Agreement* (1) |
|
|
|
10.49
|
|
Cray 2006 Bonus Plan* (9) |
|
|
|
10.50
|
|
2006 Long-Term Equity Compensation Plan* (34) |
|
|
|
21.1
|
|
Subsidiaries of the Company (33) |
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
|
|
|
23.2
|
|
Consent of Peterson Sullivan PLLC, Independent Registered Public Accounting Firm |
|
|
|
24.1
|
|
Power of Attorney for certain directors and officers (previously filed on the signature page
of this registration statement) |
|
|
|
24.2
|
|
Power of Attorney for additional directors and officers |
|
|
|
| * |
|
Management contract or compensatory plan or arrangement. |
| |
| + |
|
Subject to confidential treatment. The omitted confidential information has been filed with
the Securities and Exchange Commission. |
| (1) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on June 8, 2006. |
II - 5
| (2) |
|
Incorporated by reference to the Company’s definitive Proxy Statement for the 2003 Annual
Meeting, as filed with the Commission on March 31, 2003. |
| |
| (3) |
|
Incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with the
Commission for the fiscal year ended December 31, 2002. |
| |
| (4) |
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q, as filed with the
Commission on May 15, 2000. |
| |
| (5) |
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 (SEC No.
333-57970), as filed with the Commission on March 30, 2001. |
| |
| (6) |
|
Incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with the
Commission for the fiscal year ended December 31, 1997. |
| |
| (7) |
|
Incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with the
Commission for the fiscal year ended December 31, 2000. |
| |
| (8) |
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q, as filed with the
Commission on May 15, 2003. |
| |
| (9) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on May 4, 2006. |
| |
| (10) |
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q, as filed with the
Commission on May 17, 1999. |
| |
| (11) |
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q, as filed with the
Commission on August 14, 2003. |
| |
| (12) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on May 14, 2001. |
| |
| (13) |
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 (SEC No.
333-70238), filed on September 26, 2001. |
| |
| (14) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on December 7, 2004. |
| |
| (15) |
|
Incorporated by reference to the Company’s definitive Proxy Statement for the 2004 Annual
Meeting, as filed with the Commission on March 24, 2004. |
| |
| (16) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on September 4, 2002. |
| |
| (17) |
|
Incorporated by reference to the Registration Statement, as filed with the Commission on
March 30, 2001. |
| |
| (18) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on April 2, 2004. |
| |
| (19) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on March 8, 2005. |
| |
| (20) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on March 25, 2005. |
| |
| (21) |
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 (SEC No.
333-114243), filed on April 6, 2004. |
II - 6
| (22) |
|
Incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with the
Commission for the fiscal year ended December 31, 2004. |
| |
| (23) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on June 1, 2005. |
| |
| (24) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on August 10, 2005. |
| |
| (25) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on November 15, 2005. |
| |
| (26) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on May 9, 2005. |
| |
| (27) |
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q, as filed with the
Commission on November 9, 2005. |
| |
| (28) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on November 16, 2005. |
| |
| (29) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on December 22, 2005. |
| |
| (30) |
|
Previously filed with this Registration Statement. |
| |
| (31) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on February 21, 2006. |
| |
| (32) |
|
Incorporated by reference to the Company’s Current Report on Form 8-K, as filed with the
Commission on March 17, 2006. |
| |
| (33) |
|
Incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with the
Commission for the fiscal year ended December 31, 2005. |
| |
| (34) |
|
Incorporated by reference to the Company’s definitive Proxy Statement for the 2006 Annual
Meeting, as filed with the Commission on April 28, 2006. |
Excluded from this list of exhibits, pursuant to Paragraph (b) (4) (iii) (a) of Item 601 of
Regulation S-K, may be one or more instruments defining the rights of holders of long-term debt of
the Company. The Company hereby agrees that it will, upon request of the Securities and Exchange Commission, furnish
to the Commission a copy of any such instrument.
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; |
II - 7
| |
(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) which, 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; |
| |
(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 |
| |
| |
(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 prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to
such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use. |
| |
| |
(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 - 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly
caused this amendment to this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Seattle, Washington, on July 10, 2006.
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CRAY INC. |
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By:
|
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/s/ Kenneth W. Johnson |
|
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Kenneth W. Johnson |
|
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Senior Vice President and |
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General Counsel |
|
|
Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration
statement has been duly signed by the following persons on July 10, 2006 in the capacities
indicated.
| |
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/s/ Peter J. Ungaro*
Peter J. Ungaro
|
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President, Chief Executive Officer and Director
|
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/s/ Brian C. Henry*
Brian C. Henry
|
|
Executive Vice President and Chief
Financial
Officer
(Principal Financial Officer)
|
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/s/ Kenneth D. Roselli*
Kenneth D. Roselli
|
|
Vice President and Corporate Controller
(Principal Accounting Officer)
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/s/ William C. Blake*
William C. Blake
|
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Director
|
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/s/ John B. Jones, Jr.*
John B. Jones, Jr.
|
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Director
|
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/s/ Kenneth W. Kennedy, Jr.*
Kenneth W. Kennedy, Jr.
|
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Director
|
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II - 9
| |
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/s/ Stephen C. Kiely*
Stephen C. Kiely
|
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Director
|
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/s/ Frank L. Lederman*
Frank L. Lederman
|
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Director
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/s/ Sally G. Narodick*
Sally G. Narodick
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Director
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/s/ Daniel C. Regis*
Daniel C. Regis
|
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Director
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/s/ Stephen C. Richards*
Stephen C. Richards
|
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Director
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*By /s/ Kenneth W. Johnson
|
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Kenneth W. Johnson |
|
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Attorney-in-Fact |
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II - 10