1
Exhibit 4.1
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THE SALE TO THE HOLDER OF
THIS SECURITY OF THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
SECURITY ARE NOT COVERED BY A REGISTRATION STATEMENT UNDER THE ACT OR
REGISTRATION UNDER STATE SECURITIES LAWS. THIS SECURITY HAS BEEN ACQUIRED, AND
SUCH SHARES OF COMMON STOCK MUST BE ACQUIRED, FOR INVESTMENT ONLY AND MAY NOT BE
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE
THEREOF OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE IN FORM, SCOPE AND
SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
No. TP-1A Right to Purchase 5,139,408 Shares of
Common Stock of Cray Inc.
CRAY INC.
Common Stock Purchase Warrant
CRAY INC., a Washington corporation formerly known as Tera
Computer Company (the "Company"), hereby certifies that, for value received,
Xxxxxx X. Xxxxxx, or registered assigns (the "Holder"), is entitled, subject to
the terms set forth below, to purchase from the Company at any time or from time
to time after the date hereof, and before 5:00 p.m., Seattle time, on June 21,
2009, Five Million One Hundred Thirty Nine Thousand Four Hundred Eight
(5,139,408) fully paid and non-assessable shares of Common Stock, $.01 par
value, of the Company at an Exercise Price per share initially equal to $2.53.
The number of such shares of Common Stock and the Exercise Price are subject to
adjustment as provided in this Warrant.
1. Certain Adjustments. In addition to Sections 3 and 4, the number of shares of
Common Stock which may be purchased pursuant to this Warrant is subject to
adjustment as set out in this Section 1.
(a) If prior to June 21, 2001, the Company is a party to a merger or
consolidation pursuant to which the holders of a majority of the shares of
Common Stock prior to the transaction do not hold a majority of the shares of
the voting securities of the surviving entity
2
after such transaction or is a party to a sale of all or substantially all of
the assets of the Company, then for not less than twenty days prior to the
closing of any such merger, consolidation or sale, this Warrant shall be
exercisable for 100% of the total number of shares covered hereby.
If the Company does not file a registration statement with the
Securities and Exchange Commission covering the resale of the shares of Common
Stock underlying this Warrant by March 31, 2001, or does not so file subsequent
registration statements covering additional shares of Common Stock that
subsequently become subject to this Warrant, then the number of shares subject
to this Warrant shall increase by 1% of the number of shares of Common Stock
then issued and outstanding for each three months that the registration
statement is not filed.
If Xxxxxx X. Xxxxxx terminates his relationship with the Company, then
the Holder may exercise this Warrant only with respect to the number of shares
as to which may be purchased hereunder as of the date Holder has given notice of
such termination. If the Company terminates its relationship with Xxxxxx X.
Xxxxxx, then effective upon such termination this Warrant shall be exercisable
for 100% of the shares of Common Stock which may be purchased hereunder, less
the number of shares of Common Stock which may have been issued pursuant to one
or more partial exercises prior thereto.
For purposes of this Warrant, the phrase "the number of shares of Common Stock
issued and outstanding" as of a particular time shall mean all shares of Common
Stock then issued and outstanding plus all shares of Common Stock then issuable
pursuant to convertible securities, warrants, options and other rights then
issued and outstanding, including this Warrant and all shares of Common Stock
issued upon exercise of this Warrant but excluding all shares of Common Stock
issued after March 31, 1999, for a consideration of $12.00 per share or greater
or which are issuable on the first anniversary for a consideration of $12.00 per
share or greater and all shares issued or issuable pursuant to options granted
after June 1, 1999, under the Company'stock option plans. If the number of
shares of Common Stock issuable pursuant to the convertible securities,
warrants, options and other rights varies depending upon the market price for
the Company's Common Stock, then the number of shares then issuable shall depend
upon the Market Price for the Common Stock as of such date.
2. Exercise By Holder.
(a) This Warrant shall be exercisable as set forth in Section 1 and
in all other cases as follows:
3
3. on June 21, 2000, for 50% of the number of total shares of
Common Stock which may be
purchased hereunder; and
4. thereafter, monthly as of the first date of each month at the
rate of 1/24th of the total
number of shares of Common Stock
which may be purchased hereunder,
so that as of June 21, 2001,
100% of the total number of
shares of Common Stock covered
hereby may be purchased.
This Warrant shall be exercised by surrender of this Warrant and the
subscription form annexed hereto (duly executed) by such Holder to the Company
and by making payment, in cash or by certified or official bank check payable to
the order of the Company or wire transfer to the Company's account, in the
amount obtained by multiplying (a) the number of shares of Common Stock
designated by the Holder in the subscription form by (b) the Exercise Price then
in effect. On any partial exercise the Company will forthwith issue and deliver
to or upon the order of the Holder hereof a new Warrant or Warrants of like
tenor, in the name of the Holder hereof or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may request, providing in the aggregate
on the face or faces thereof for the purchase of the number of shares of Common
Stock for which such Warrant or Warrants may still be exercised.
(b) Notwithstanding anything to the contrary contained in Section 2(a),
the Holder may elect to exercise this Warrant in whole or in part by receiving
shares of Common Stock equal to the value (as determined below) of this Warrant,
or any part hereof, upon surrender of this Warrant at the principal executive
office of the Company together with notice of such election in which event the
Company shall issue to the Holder a number of shares of Common Stock computed
using the following formula:
X = Y(A-B)
----------
A
Where X = the number of Shares of Common Stock to be issued to the
Holder;
Y = the number of shares of Common Stock issuable upon the
exercise of this Warrant (the "Shares");
A = the current fair market value of one share of Common Stock;
and
4
B = the Exercise Price of this Warrant.
As used herein, the current fair market value of Common Stock shall
mean, with respect to each share of Common Stock, the closing price of the
Company's Common Stock sold on the principal national securities exchange,
including the Nasdaq National Market System, on which the Common Stock is at the
time admitted to trading or listed, or, if there have been no sales of any such
exchange on such day, the average of the highest bid and lowest ask price on
such day as reported by NASDAQ, or any similar organization if NASDAQ is no
longer reporting such information, on the date which the form of election is
deemed to have been sent to the Company (the "Notice Date"). If on the date for
which current fair market value is to be determined the Common Stock is not
listed on any securities exchange, including the Nasdaq National Market System,
or quoted in the NASDAQ System or the over-the-counter market, the current fair
market value of Common Stock shall be the highest price per share which the
Company could then obtain from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the Board of Directors of the
Company, unless prior to such date the Company has become subject to a binding
agreement for a merger, acquisition or other consolidation pursuant to which the
Company is not the surviving party, in which case the current fair market value
of the Common Stock shall be deemed to be the value to be received by the
holders of the Company's Common Stock for each share thereof pursuant to such
merger, acquisition or consolidation.
(c) As soon as practicable after the exercise of this Warrant, and in
any event within five business days thereafter, the Company at its expense
(including the payment by it of any applicable issue or stamp taxes) will cause
to be issued in the name of and delivered to the Holder hereof, or as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such Holder shall be entitled on
such exercise, in such denominations as may be requested by such Holder, plus,
in lieu of any fractional share to which such Holder would otherwise be
entitled, cash equal to such fraction multiplied by the then current fair market
value of one full share.
3. Dilution.
(a) If the Company shall pay to the holders of its Common Stock a
dividend in shares of Common Stock or in securities convertible into Common
Stock, the Exercise Price in effect immediately prior to the record date fixed
for the determination of the holders of Common Stock entitled to such dividend
shall be proportionately decreased, effective at the opening of business on the
next following full business day.
(b) If the Company shall split the outstanding shares of its Common
Stock into a greater number of shares or combine the outstanding shares into a
smaller number, the
5
Exercise Price in effect immediately prior to such action shall be
proportionately decreased in the case of a split or increased in the case of a
combination, effective at the opening of business on the full business day next
following the day such action becomes effective.
4. Protection in Case or Reclassification, Etc. In case of (i) any
reclassification or change of the terms of the outstanding shares of the class
of Common Stock issuable upon the exercise of this Warrant, then upon exercise
of this Warrant (other than a change relating to par value, or as a result of a
subdivision or combination), or (ii) in case of any (a) consolidation or merger
of the Company with or into another company (other than a merger in which the
Company is the continuing company or which does not result in any
reclassification or change of outstanding shares of Common Stock of the class
issuable upon exercise of this Warrant, other than a split or combination of
shares), or (b) any sale or conveyance to any other person or entity of all or
substantially all of the assets of the Company, the Company shall use its best
efforts to execute an agreement providing that the holder of this Warrant shall
have the right thereafter to exercise this Warrant for the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, dividend, distribution, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock of the Company
for which this Warrant might have been exercised immediately prior to such
reclassification, change, dividend, distribution, consolidation, merger, sale or
conveyance. This Section 4 shall apply to successive reclassifications and
changes of and dividends and distributions on shares of Common Stock and to
successive consolidations, mergers, sales or conveyances. Notice of the
execution of any agreement pertaining to such reclassification, change,
dividend, distribution, consolidation, merger, sale or conveyance shall be given
to the holder of this Warrant as soon as practicable and in any event not less
than ten (10) business days before any such transaction is consummated.
5. Reservation of Stock, etc., Issuable on Exercise of Warrants.
The Company will at all times reserve and keep available, solely for issuance
and delivery on the exercise of this Warrant, all shares of Common Stock from
time to time issuable on the exercise of this Warrant.
6. Register of Warrants. The Company shall maintain, at the
principal office of the Company (or such other office as it may designate by
notice to the Holder hereof), a register in which the Company shall record the
name and address of the person in whose name this Warrant has been issued, as
well as the name and address of each successor and prior owner of such Warrant.
The Company shall be entitled to treat the person in whose name this Warrant is
so registered as the sole and absolute owner of this Warrant for all purposes.
7. Exchange of Warrant. This Warrant is exchangeable, upon the
surrender hereof by the Holder hereof at the office or agency of the Company
referred to in Section 6, for one or more new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares of Common Stock which may be subscribed for purchase
6
hereunder, each of such new Warrants to represent the right to subscribe for and
purchase such number of shares as shall be designated by said Xxxxxx hereof at
the time of such surrender.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Warrant Agent. The Company will act as the exercise agent for the
purpose of issuing Common Stock on the exercise of this Warrant pursuant to
Section 1. The Company may, by written notice to the Holder, appoint an agent
having an office in the United States of America, for the purpose of issuing
Common Stock on the exercise of this Warrant pursuant to Section 1, exchanging
this Warrant pursuant to Section 7, and replacing this Warrant pursuant to
Section 8, or any of the foregoing, and thereafter any such issuance, exchange
or replacement, as the case may be, shall be made at such office by such agent.
10. No Rights or Liabilities as a Stockholder. This Warrant shall
not entitle the Holder hereof to any voting rights or other rights as a
stockholder of the Company, until properly exercised.
11. Notices, etc. All notices and other communications from the
Company to the registered Holder of this Warrant shall be mailed by first class
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such Holder or at the address shown for such Holder on
the register of Warrants referred to in Section 6.
12. Miscellaneous. This Warrant and any terms hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement or such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of California. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
This Warrant is a reissuance of a Warrant originally issued on June 21, 1999.
IN WITNESS WHEREOF, Cray Inc. has caused this Warrant to be executed on
its behalf by one of its officers thereunto duly authorized.
Dated: February 27, 2001 CRAY INC.
7
By: /s/
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
8
FORM OF SUBSCRIPTION
COMMON STOCK PURCHASE WARRANT
OF CRAY INC.
(To be signed only on exercise of Warrant)
TO: Cray Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
1. The undersigned Holder of the attached original, executed
Warrant hereby elects to exercise its purchase right under such Warrant with
respect to shares of Common Stock, as defined in the Warrant, of Cray Inc. , a
Washington corporation (the "Company").
2. The undersigned Holder (check one):
____ (a) elects to pay the aggregate purchase price for such shares of
Common Stock (i) by lawful money of the United States or the enclosed certified
or official bank check payable in United States dollars to the order of the
Company in the amount of $___________, or (ii) by wire transfer of United States
funds to the account of the Company in the amount of $____________, which
transfer has been made before or simultaneously with the delivery of this Form
of Subscription pursuant to the instructions of the Company; or
____ (b) elects to receive shares of Common Stock having a value equal
to the value of the Warrant calculated in accordance with Section 2(b) of the
Warrant.
3. Please issue a stock certificate or certificates representing
the appropriate number of shares of Common Stock in the name of the undersigned
or in such other names as is specified below:
Name:
--------------------------------------
Address:
-----------------------------------
-----------------------------------
Dated:
-------------- -------------------------------------------
(Signature must conform to name of Holder
as specified on the face of the Warrant)
(Address)
