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Exhibit 4.1
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER
THE
SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER
FOR
INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE
AUTHORIZED
UNDER THE SECURITIES ACT OF 1933 AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER.
CRAY INC.
Warrant
Right to Purchase 200,000
Certificate No. F-2005
May , 2005
Shares of Common Stock
of Cray Inc.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
CRAY INC.,
a Washington corporation (the "Company"), hereby certifies
that, for value received, WELLS FARGO
FOOTHILL, INC., a California corporation,
or registered assigns (the "Holder"), is
entitled to purchase, subject to the
terms and conditions set forth herein, Two
Hundred Thousand (200,000) fully paid
and non-assessable shares of Common Stock
of the Company, at an initial purchase
price per share determined in accordance
with the provisions set forth in
Section 1 below (the "Purchase Price"), at
any time or from time to time after
June , 2005 [the "Issuance "Date" as
defined in Section 1] and on or prior to
5:00 P.M. Pacific Standard Time on June ,
2009 (the "Expiration Date"). The
Purchase Price and the number and kind of
securities of the Company purchasable
upon the exercise of this Warrant are
subject to modification and adjustment as
provided herein. The Purchase Price shall
be payable in cash or by check in
lawful funds of the United States of
America. Upon presentation and surrender of
this Warrant Certificate, together with
payment of the Purchase Price of the
shares of Common Stock thereby purchased
and the Form of Notice of Exercise duly
executed, at the principal office of the
Company, the Holder shall be entitled
to receive a certificate or certificates
for the shares of Common Stock so
purchased (the "Shares").
1.
Purchase Price. The Purchase Price of the shares of Common
Stock
issuable upon the exercise of the Warrants
shall the per share closing price as
quoted on the Nasdaq National Market System
for the Company's Common Stock on
the Issuance Date. For purposes of this
Warrant, the "Issuance Date" shall be
the second business day after the Company
has issued publicly by press release
all material inside information so that
officers and directors of the Company
would not be restricted from trading in
shares of the Company's Common Stock.
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2.
Registration and Transfer.
2.1 General. The Company shall maintain books for the
registration
and transfer of Warrant Certificates. Prior
to due presentment for registration
of transfer of this Warrant Certificate,
the Company may deem and treat the
registered Holder as the absolute owner
thereof.
2.2 Compliance with Securities Laws. Notwithstanding the
foregoing,
the Warrant may not be assigned or
transferred unless a Registration Statement
is in effect covering these Warrants and
the shares of Common Stock issuable
hereunder pursuant to the Securities Act of
1933, as amended (the "Securities
Act"), or an opinion of counsel reasonably
satisfactory to the Company to the
effect that such registration is not
required has been received by the Company
prior to such transfer; provided, however,
that such opinion of counsel shall
not be required for a transfer to an
Affiliate (as hereinafter defined) in a
transaction exempt from the registration
and prospectus delivery requirements of
the Securities Act. For purposes of this
Section 2(a), an "Affiliate" of any
person is any other person which controls,
is controlled by or is under common
control with such person.
2.3 Registration. Subject to the foregoing, the Company shall
register upon its books any transfer of a
Warrant Certificate upon surrender of
the same to the Company accompanied (if so
required by the Company) by a written
instrument of transfer duly executed by the
registered Holder or by a duly
authorized attorney-in-fact. Upon any such
registration of transfer, a new
Warrant Certificate shall be issued to the
transferee and the surrendered
Warrant Certificate shall be cancelled by
the Company.
3. Loss or
Mutilation. Upon receipt by the Company of reasonable evidence
of the ownership of and the loss, theft,
destruction or mutilation of any
Warrant Certificate and, in the case of
loss, theft or destruction, of indemnity
reasonably satisfactory to the Company, or,
in the case of mutilation, upon
surrender and cancellation of the mutilated
Warrant Certificate, the Company
shall execute and deliver in lieu thereof a
new Warrant Certificate representing
an equal number of Warrants.
4.
Adjustments.
4.1 Split, Subdivision or Combination of Shares. If the Company
at
any time while this Warrant remains
outstanding and unexpired shall split,
subdivide or combine the securities as to
which purchase rights under this
Warrant exist, the Purchase Price shall be
proportionately decreased in the case
of a split or subdivision or
proportionately increased in the case of a
combination.
4.2 Common Stock Dividends. If the Company at any time while
this
Warrant is outstanding and unexpired shall
pay a dividend with respect to Common
Stock payable in, or make any other
distribution with respect to the, shares of
Common Stock, then the Purchase Price shall
be adjusted, from and after the date
of determination of the shareholders
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entitled to receive any dividend or
distribution, to that price determined by
multiplying the Purchase Price in effect
immediately prior to such date of
determination by a fraction (i) the
numerator of which shall be the total number
of shares of Common Stock outstanding
immediately prior to such dividend or
distribution, and (ii) the denominator of
which shall be the total number of
shares of Common Stock outstanding
immediately after such dividend or
distribution.
4.3 Other Dividends. If the Company at any time while this
Warrant
is outstanding and unexpired shall pay a
dividend or make any other distribution
with respect to Common Stock payable in
stock (other than Common Stock) or other
securities or property, the Holder hereof
shall be entitled to receive, upon
exercise of the Warrants, in addition to
the shares of Common Stock otherwise
receivable upon exercise hereof, the same
number and kind of stock other
securities and property which the Holder
would have received had the holder then
held the shares of Common Stock receivable
on exercise hereof on and before the
record date for such dividend or
distribution.
4.4 Reclassifications and Recapitalizations. In the event of
any
reclassification or recapitalization of the
Common Stock, the Purchase Price
shall be appropriately adjusted in good
faith by the Board of Directors of the
Company to reflect such reclassification or
recapitalization and to protect the
rights of Holders of the Warrants to
receive upon the exercise thereof the same
amount of securities or property that they
would have received had they
exercised their Warrants immediately prior
to the date for determination of
holders of Common Stock entitled to receive
securities or property as a result
of such reclassification or
recapitalization, and their rights to appropriate
adjustments upon any further stock
dividend, stock split, reclassification or
recapitalization.
4.5 Adjustment of Number of Shares. Upon each adjustment in the
Purchase Price pursuant to Section 4.1 or
Section 4.2 above, the Holder shall
thereafter, on the exercise of this
Warrant, be entitled to receive that number
of shares of Common Stock which would be
issuable on such exercise as of
immediately prior to such adjustment
multiplied by a fraction of (i) the
numerator of which shall be the Purchase
Price immediately prior to such
adjustment, and (ii) the denominator of
which shall be the Purchase Price
immediately after such adjustment.
4.6 Capital Reorganization, Merger or Sale of Assets. If at any
time
or from time to time there shall be a
capital reorganization of the Common Stock
(other than a subdivision, combination,
reclassification or exchange of shares
provided for elsewhere in this Section 4)
or a merger or consolidation of the
Company with or into another corporation,
or the sale of all or substantially
all of the Company's properties and assets
to any other person, after receiving
a thirty (30) day prior written notice from
the Company of such an event, the
Holder of this Warrant Certificate shall
thereafter be entitled to purchase (and
it shall be a condition to the consummation
of any such reorganization, merger,
consolidation or sale, that appropriate
provision be made so that the holders of
the Warrants shall thereafter be entitled
to purchase), upon exercise of the
Warrants, the kind and amount of shares of
stock or other securities or property
of the Company, or of the successor
corporation resulting from such merger,
consolidation or sale, to which a holder of
Common Stock issuable upon exercise
would have been entitled on such capital
reorganization, merger, consolidation,
or sale. In any such case,
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appropriate adjustment shall be made in the
application of the provisions of
this Section 4 with respect to the rights
of the holders of the Warrants after
the reorganization, merger, consolidation
or sale to the end that the provisions
of this Section 4 (including adjustment of
the Purchase Price then in effect and
the number of shares purchasable upon
exercise of the Warrants) shall be
applicable after that event in as nearly
equivalent a manner as may be
practicable.
4.7 Certificate as to Adjustment. Upon the occurrence of each
adjustment or readjustment of the Purchase
Price pursuant to this Section 4, the
Company, at its expense, shall promptly
compute such adjustment or readjustment
in accordance with the terms hereof and
cause its chief financial officer to
verify such computation and prepare and
furnish to each Holder of the Warrants a
certificate setting forth such adjustment
or readjustment and showing in detail
the facts upon which such adjustment or
readjustment is based. The Company
shall, upon the written request at any time
of any Holder of the Warrants,
furnish or cause to be furnished to such
Holder a like certificate setting forth
(A) such adjustment and readjustment, (B)
the Purchase Price at the time in
effect, and (C) the number of shares of
Common Stock and the amount, if any, of
other securities and/or property which at
the time would be receivable upon the
exercise of a Warrant. Such certificate
shall set forth in reasonable detail
such facts as may be necessary to show the
reason for and manner of computing
such adjustment. If demanded by the Holders
of more than 10% of the total
outstanding Warrants, the Company shall
provide the Holders of the Warrants a
verification or confirmation of the
calculation of such adjustment signed by an
independent certificate public accountant,
which may be the firm of independent
certified public accountants servicing the
Company.
4.8 No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any
reorganization, recapitalization,
transfer of assets, consolidation, merger,
dissolution, issue or sale of
securities or any other voluntary action,
avoid or seek to avoid the observance
or performance of any of the terms to be
observed or performed hereunder by the
Company, but will at all times in good
faith assist in the carrying out of all
the provisions of this Section 4 and in the
taking of all such action as may be
necessary or appropriate in order to
protect the exercise rights of the Holders
against impairment.
4.9 Notices of Record Date. In the event of any taking by the
Company of a record of the Holders of any
class of securities for the purpose of
determining the Holders thereof who are
entitled to receive any dividend (other
than a cash dividend) or other
distribution, any rights to subscribe for,
purchase or otherwise acquire any shares of
stock of any class or for any
securities or property, or to receive any
other right, this Company shall mail
to each Holder, at least thirty (30) days
prior to the date specified therein, a
notice specifying the date on which any
such record is to be taken for the
purpose of such dividend, distribution or
right, and the amount and character of
such dividend, distribution or right.
4.10 No Fractional Shares. No fractional shares shall be issued
upon
exercise of the Warrants, and the number of
shares of Common Stock to be issued
shall be rounded to the nearest whole
share. Such rounding shall be determined
on the basis of the total number of
Warrants the Holder is at the time
exercising and the number of shares of
