Exhibit 4.4
AMENDMENT NO. 2 TO
CONVERTIBLE SUBORDINATED DEBENTURES
AND PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO THE CONVERTIBLE SUBORDINATED DEBENTURES
AND PURCHASE AGREEMENT, dated as of August 29, 2002 (this "Amendment No. 2"), is
by and between the Investors (as such term is defined below) and Cray Inc., a
corporation organized and existing under the laws of the State of Washington
(the "Company").
WHEREAS, the Company and Riverview Group, LLC, Omicron Partners,
LP, Laterman & Co., Forevergreen Partners, Clarion Capital Corporation and
Xxxxxx X. Xxxxx TTEE FBO The Xxxxxx X. Xxxxx Revocable Living Trust (together,
the "Investors") are parties to a Convertible Subordinated Debentures and
Warrant Purchase Agreement, dated as of November 6, 2001, as amended by
Amendment No. 1 dated as of November 15, 2001 thereto ("Amendment No. 1") (such
agreement, as amended by Amendment No. 1, is referred to herein as the "Purchase
Agreement") pursuant to which the Company issued the Investors an aggregate of
$9,300,000 principal amount of 5% Convertible Subordinated Debentures (the
"Debentures") and Warrants to purchase an aggregate of 367,590 shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock"), and
WHEREAS, all capitalized terms used but not defined herein shall
be as defined in the Debentures or the Purchase Agreement, and
WHEREAS, the Company and the Investors want to amend the
Debentures and the Purchase Agreement to delete the right of the holders to
convert the Debentures at the Alternate Conversion Price and to restore the
right of the Company to make an optional redemption of the Debentures under
certain circumstances as set forth herein,
NOW THEREFORE, in consideration of the foregoing premises, and
the promises and covenants herein contained, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, and acknowledging that each
party intends to and is entitled to rely on provisions herein in its favor, the
parties, intending to be legally bound, hereby agree as follows:
1. Amendments to the Debentures. The parties hereto hereby amend
each of the Debentures as follows:
Section 4(a)(ii) of each Debenture is deleted, and the
Set Price shall be the sole conversion price at which
each Debenture is convertible into Common Stock at the
option of the Holder. In the first sentence of Section
4(a)(i) of each Debenture, the parenthetical "(subject
to the limitations on conversion set forth in Section
4(a)(ii) hereof)" is amended
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to "(subject to the limitations on conversion set forth
in Section 4(d) hereof)".
2. Amendment to the Purchase Agreement. Section 1(d) of Amendment
No. 1 to the Purchase Agreement is hereby amended to add the
following at the end of that section:
; provided, however, that, notwithstanding any of the
foregoing, if the VWAPs for each of any twenty (20)
consecutive Trading Days exceeds $6.00 per share
(adjusted proportionately for stock splits or other
subdivisions or combinations of the outstanding Common
Stock), the Company shall have the right to redeem the
Debentures as set forth in Sections 5(a) and (b) of the
Debentures, subject to all of the terms and conditions
therein, if the Company gives an Optional Redemption
Notice within 30 days after any such 20 Trading Day
period.
3. Entire Amendment. This Amendment No. 2 sets forth all of the
amendments being made to the Debentures and the Purchase
Agreement at this time.
[Signature Page to Amendment No. 2]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be executed by the undersigned, thereunto duly authorized, as of the
date first written above.
CRAY INC.
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, President
INVESTORS:
RIVERVIEW GROUP, LLC
By /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Administrative Officer
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OMICRON PARTNERS, LP
By: Omicron Capital L.P., as subadvisor
By: Omicron Capital Inc., general partner
By /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxx, President
LATERMAN & CO.
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxxx, Managing Partner
FOREVERGREEN PARTNERS
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxxx, Managing Partner
CLARION CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx, President
XXXXXX X. XXXXX TTEE FBO
THE XXXXXX X XXXXX REVOCABLE
LIVING TRUST
By /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx, Trustee
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