Exhibit 4.5
AMENDMENT NO. 1 TO
CONVERTIBLE SUBORDINATED DEBENTURES
AND
WARRANT PURCHASE AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
THIS AMENDMENT NO. 1 TO THE CONVERTIBLE SUBORDINATED DEBENTURES AND
WARRANT PURCHASE AGREEMENT AND OTHER TRANSACTION DOCUMENTS, dated as of November
15, 2001, 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. and Forevergreen Partners (together, the "Original Investors")
are parties to a Convertible Subordinated Debentures and Warrant Purchase
Agreement, dated as of November 6, 2001 (the "Purchase Agreement") pursuant to
which the Original Investors invested $8,000,000 in the Company in return for an
aggregate of $8,000,000 principal amount of Convertible Subordinated Debentures
(the "Debentures") and Warrants (the "Warrants") to purchase an aggregate of
316,206 shares of the Company's Common Stock, $.01 par value per share (the
"Common Stock"), and
WHEREAS, Clarion Capital Corporation and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TTEE FBO The
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Living Trust (together, the "New Investors") wish to
invest an aggregate of $1,300,000 in the Company on the same terms as the
Original Investors (the "Investment"), and the Original Investors desire that
the New Investors so invest in the Company,
WHEREAS, the Company and the Original Investors executed and delivered
the Purchase Agreement and a Registration Rights Agreement (together, the
"Transaction Documents")
NOW THEREFOR, 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, the parties, intending to be
legally bound, hereby agree as follows:
1. Amendment to Transaction Documents. The parties hereto hereby
amend each of the Transaction Documents as follows:
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a) the total principal amount of the Debentures will be
$9,300,000, with an aggregate of $1,300,000 principal amount
of the Debentures being issued to the New Investors;
b) the total Warrants to be issued will cover an aggregate of
367,590 shares of Common Stock, with an aggregate of Warrants
for 51,384 shares of Common Stock being issued to the New
Investors; and
c) to add the New Investors as parties thereto to the full extent
and as if they were original parties to each of the
Transaction Documents, with the Company and the New Investors
making the same representations and warranties to each other
and agreeing to bound by the same covenants as contained in
each of the Transaction Documents.
d) the Company agrees that to forever surrender its right to
redeem the Debentures held by the Original Investors and the
New Investors pursuant to an Optional Redemption Notice (as
defined therein) in Section 5 of the Debentures or otherwise
exercise any rights it may have to force the Original
Investors or the New Investors to convert their Debentures
other than pursuant to Section 4(b) of the Debentures,
provided, however, that this provision will not alter or
restrict any rights the Original Investors or the New
Investors have under the Purchase Agreement or Debentures to
cause the Company to redeem the Debentures pursuant to the
terms therein.
2. Debentures and Warrants. The principal amount of the
Debentures and the number of Warrant Shares being received by
each of the New Investors are set forth on the signature page
hereof.
3. Consent and Waivers. The Original Investors hereby consent to
the investment by the New Investors and waive the provisions
of Section 5.9 of the Purchase Agreement with respect to the
Investment only, and also agree that the issuance of the
Debentures and the Warrants to the New Investors and the
issuance of the shares of Common Stock under the Debentures
and upon exercise of the Warrants will be exempt from the
anti-dilution provisions of Section 4(e) of the Debentures.
4. Closing. The Company acknowledges the receipt of $1,300,000
from the New Investors and the New Investors hereby
acknowledge receipt of the Debentures and Warrants.
5. Definitions. The term "Investors" is defined to include both
the Original Investors and the New Investors. All capitalized
terms not
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otherwise defined herein are used as defined in the
Transaction Documents
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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[Signature Page to Amendment No. 1]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be executed by the undersigned, thereunto duly authorized, as of the date
first written above.
CRAY INC.
/S/
By
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman
NEW INVESTORS
CLARION CAPITAL CORPORATION
/S/
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Address for Notice:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
$1,000,000 principal amount of Debentures and
39,526 Warrant Shares
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TTEE FBO
THE ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ REVOCABLE
LIVING TRUST
/S/
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
Address for Notice:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
$300,000 principal amount of Debentures and
11,858 Warrant Shares
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OLD INVESTORS
RIVERVIEW GROUP, LLC
/S/
By
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Administrative Officer
OMICRON PARTNERS, LP
By: Omicron Capital L.P., as subadvisor
By: Omicron Capital Inc., general partner
/S/
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
LATERMAN &. CO.
/S/
By
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Managing Partner
FOREVERGREEN PARTNERS
/S/
By
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Managing Partner
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