UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 11, 2014
CRAY INC.
(Exact name
of registrant as specified in its charter)
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| Washington |
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0-26820 |
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93-0962605 |
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of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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| 901 Fifth Avenue, Suite 1000
Seattle, WA |
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98164 |
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(Zip Code) |
Registrant’s telephone number, including area code: (206) 701-2000
Registrant’s facsimile number, including area code: (206) 701-2500
None
(Former name or
former address if changed since last report.)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e) The Board of Directors (the “Board”) of Cray Inc. (the “Company”) and the shareholders of
the Company have previously approved the Company’s 2013 Equity Incentive Plan (the “2013 Plan”). On December 11, 2014, the Compensation Committee of the Board approved the updated form of notice of restricted stock
award and restricted stock purchase agreement (the “Restricted Stock Form”), updated form of notice of stock option grant and stock option award agreement (the “Stock Option Form”), form of notice of
restricted stock unit award and restricted stock unit award agreement (the “RSU Form”) and form of notice of stock appreciation right award grant and stock appreciation right award agreement (the “Stock
Appreciation Rights Form”) for use under the 2013 Plan.
Restricted stock issued pursuant to the Restricted Stock Form vest
and the Company’s right of repurchase lapses over time or pursuant to performance targets, contingent on the recipient’s continued services to the Company or a parent or subsidiary of the Company.
Options granted pursuant to the Stock Option Form vest and become exercisable over time or pursuant to performance targets, contingent on the
recipient’s continued services to the Company or a parent or subsidiary of the Company. In addition, in the event of the recipient’s death, disability, termination for cause or other termination, the exercisability of the options is also
subject to the applicable provisions of the 2013 Plan and the Stock Option Form.
RSUs issued pursuant to the RSU Form vest and are
settled over time or pursuant to performance targets, contingent on the recipient’s continued services to the Company or a parent or subsidiary of the Company, and are settled within 30 days following each applicable vesting date.
Stock appreciation rights granted pursuant to the Stock Appreciation Rights Form vest and become exercisable over time or pursuant to
performance targets, contingent on the recipient’s continued services to the Company or a parent or subsidiary of the Company. In addition, in the event of the recipient’s death, disability, termination for cause or other termination, the
exercisability of the stock appreciation rights are also subject to the applicable provisions of the 2013 Plan and the Stock Appreciation Rights Form.
The Restricted Stock Form, the Stock Option Form, the RSU Form and the Stock Appreciation Rights Form are filed as Exhibits 10.1, 10.2, 10.3
and 10.4, respectively, to this Form 8-K and incorporated herein by reference. The foregoing disclosure is qualified in its entirety by reference to those exhibits.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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| Exhibit No. |
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Description |
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| 10.1 |
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Form of 2013 Equity Incentive Plan Notice of Restricted Stock Award and Restricted Stock Purchase Agreement |
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| 10.2 |
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Form of 2013 Equity Incentive Plan Notice of Stock Option Grant and Stock Option Award Agreement |
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| 10.3 |
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Form of 2013 Equity Incentive Plan Notice of Restricted Stock Unit Award and Restricted Stock Unit Award Agreement |
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| 10.4 |
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Form of 2013 Equity Incentive Plan Notice of Stock Appreciation Right Award Grant and Stock Appreciation Right Award Agreement |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
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| Date: December 17, 2014 |
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CRAY INC. |
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By: |
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/s/ MICHAEL C. PIRAINO |
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Michael C. Piraino Vice President
Administration, General Counsel and Corporate Secretary |
EXHIBIT INDEX
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| Exhibit No. |
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Description |
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| 10.1 |
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Form of 2013 Equity Incentive Plan Notice of Restricted Stock Award and Restricted Stock Purchase Agreement |
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| 10.2 |
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Form of 2013 Equity Incentive Plan Notice of Stock Option Grant and Stock Option Award Agreement |
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| 10.3 |
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Form of 2013 Equity Incentive Plan Notice of Restricted Stock Unit Award and Restricted Stock Unit Award Agreement |
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| 10.4 |
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Form of 2013 Equity Incentive Plan Notice of Stock Appreciation Right Award Grant and Stock Appreciation Right Award Agreement |
Exhibit 10.1
CRAY INC.
2013 EQUITY
INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK AWARD
GRANT NUMBER:
Unless otherwise defined herein, the terms defined in Cray’s 2013 Equity Incentive Plan (the “Plan”) will have the same meanings
in this Notice of Restricted Stock Award and any electronic representation of this Notice of Restricted Stock Award established and maintained by Cray Inc. (“Cray”) or a third party designated by Cray (this
“Notice”).
You (“Participant”) have been granted an the opportunity to purchase Shares of Common Stock of Cray
that are subject to restrictions (the “Restricted Shares”) and the terms and conditions of the Plan, this Notice and the attached Restricted Stock Purchase Agreement (the “Restricted Stock Purchase
Agreement”), including any special terms imposed by the Committee for non U.S. jurisdictions.
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| Total Number of Restricted Shares Awarded: |
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| Fair Market Value per Restricted Share: |
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$ |
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| Total Fair Market Value of Award: |
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$ |
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| Purchase Price per Restricted Share: |
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$ |
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| Total Purchase Price for all Restricted Shares: |
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$ |
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| Date of Grant: |
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| Vesting Commencement Date: |
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| Vesting Schedule: |
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Subject to the limitations set forth in this Notice, the Plan and the Restricted Stock Purchase Agreement, the Restricted Shares will vest and the right of repurchase will lapse, in whole or in part, in accordance with the following
schedule: |
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[Insert applicable vesting schedule] |
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[Include for performance awards: The number of Restricted Shares that Participant will have vested in pursuant to the performance targets set forth above will be determined by Cray and certified by the Compensation Committee
of the Board.] |
By accepting (whether in writing, electronically or otherwise) the opportunity to purchase the Restricted Shares, Participant
acknowledges and agrees to the following:
Participant understands that Participant’s employment or consulting relationship or service with Cray or a
Parent or Subsidiary of Cray is for an unspecified duration, can be terminated at any time (i.e., is “at-will”), and that nothing in this Notice, the Restricted Stock Purchase Agreement or the Plan changes the nature of that relationship,
except where otherwise prohibited by applicable law. Participant acknowledges and agrees that the Vesting Schedule may change prospectively in the event that Participant’s service status changes between full and part time status in accordance
with Cray policies relating to work schedules and vesting of awards. Participant acknowledges that the vesting of the Restricted Shares pursuant to this Notice is earned only by continuing service as an Employee, Director or Consultant of Cray or a
Parent or Subsidiary of Cray. Participant also understands that this Notice is subject to the
terms and conditions of both the Restricted Stock Purchase Agreement and the Plan, both of which are incorporated herein by reference. Participant has read both the Restricted Stock Purchase
Agreement and the Plan. By acceptance of this opportunity to purchase the Restricted Shares, Participant consents to the electronic delivery as set forth in the Restricted Stock Purchase Agreement. If the Restricted Stock Purchase Agreement is not
executed by Participant within thirty (30) days of the date this Notice and the Restricted Stock Purchase Agreement was delivered to the Participant, then this grant will be voidable by Cray.
CRAY INC.
2013 EQUITY INCENTIVE PLAN
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (this “Agreement”) is made by and between Cray Inc., a Washington corporation
(“Cray”), and Participant pursuant to Cray’s 2013 Equity Incentive Plan (the “Plan”). Unless otherwise defined herein, the terms defined in the Plan will have the same meanings in this Agreement.
1. Sale of Stock. Subject to the terms and conditions of this Agreement, on the Purchase Date (as defined below) Cray will
issue and sell to Participant, and Participant agrees to purchase from Cray the number of Shares shown on the Notice of Restricted Stock Award (the “Notice”) at the purchase price per Share set forth in the Notice. The per
Share purchase price of the Shares may be zero. The term “Shares” refers to the purchased Shares and all securities received in replacement of or in connection with the Shares pursuant to stock dividends or splits, all securities received
in replacement of the Shares in a recapitalization, merger, reorganization, exchange or the like, and all new, substituted or additional securities or other properties to which Participant is entitled by reason of Participant’s ownership of the
Shares.
2. Time and Place of Purchase. The purchase and sale of the Shares under this Agreement will occur at the principal
office of Cray simultaneously with the execution of this Agreement by the parties, or on such other date as Cray and Participant will agree (the “Purchase Date”). On the Purchase Date, Cray will issue uncertificated shares
designated for the Participant in book entry form on the records of Cray’s transfer agent, representing the Shares to be purchased by Participant against payment of the purchase price therefor (if any) by Participant by (a) check made
payable to Cray, (b) Participant’s personal services that the Committee has determined have already been rendered to Cray, or (c) a combination of the foregoing. If Participant has previously rendered services to Cray, the purchase
price will be paid pursuant to (b) above.
3. Restrictions on Resale. By signing this Agreement, Participant agrees not
to sell any Shares acquired pursuant to the Plan and this Agreement at a time when applicable laws, regulations or Cray or underwriter trading policies prohibit exercise or sale. This restriction will apply as long as Participant is providing
service to Cray or a Subsidiary of Cray.
3.1 Repurchase Right on Termination Other Than for Cause. For the purposes of this
Agreement, a “Repurchase Event” will mean an occurrence of one of the following:
(i) termination of
Participant’s service, whether voluntary or involuntary and with or without cause;
(ii) resignation, retirement or death of
Participant; or
(iii) any attempted transfer by Participant of the Shares, or any interest therein, in violation of this
Agreement.
Upon the occurrence of a Repurchase Event, Cray will have the right (but not an obligation) to purchase the Unvested Shares of Participant at
a price equal to the Purchase Price per Restricted Share as set forth in the Notice (the “Repurchase Right”). The Repurchase Right will lapse in accordance with the vesting schedule set forth in the Notice. For purposes of
this Agreement, “Unvested Shares” means Shares pursuant to which Cray’s Repurchase Right has not lapsed.
3.2 Exercise of Repurchase Right.
(i) If the per Share purchase price is zero, then on the date of termination of Participant’s service to Cray or a Subsidiary of
Cray, the Repurchase Right will be deemed automatically exercised. Execution of this Agreement by Participant constitutes written notice to Participant of Cray’s
intention to exercise its Repurchase Right with respect to all Unvested Shares to which such Repurchase Right applies at the time of Termination of Participant. As a result of any repurchase of
Unvested Shares pursuant to the Repurchase Right, Cray will become the legal and beneficial owner of Unvested Shares being repurchased and will have all rights and interest therein or related thereto, and Cray will have the right to transfer to its
own name the number of Unvested Shares being repurchased by Cray, without further action by Participant.
(ii) If the per Share
purchase price is greater than zero, then unless Cray provides written notice to Participant within 90 days from the date of termination of Participant’s service to Cray or a Subsidiary of Cray that Cray does not intend to exercise its
Repurchase Right with respect to some or all Unvested Shares, the Repurchase Right will be deemed automatically exercised by Cray as of the 90th day following such termination, provided that Cray may notify Participant that it is exercising its
Repurchase Right as of a date prior to such 90th day. Unless Participant is otherwise notified by Cray pursuant to the preceding sentence that Cray does not intend to exercise its Repurchase Right as to some or all Unvested Shares, execution of this
Agreement by Participant constitutes written notice to Participant of Cray’s intention to exercise its Repurchase Right with respect to all Unvested Shares to which such Repurchase Right applies at the time of Termination of Participant. Cray,
at its choice, may satisfy its payment obligation, if any, to Participant with respect to exercise of the Repurchase Right by (A) delivering a check to Participant in the amount of the purchase price for Unvested Shares being repurchased,
(B) in the event Participant is indebted to Cray, canceling an amount of such indebtedness equal to the purchase price for Unvested Shares being repurchased, (C) in the event Participant purchased Unvested Shares pursuant to
Section 2(b), at the time of Termination of Participant, Participant will forfeit all of Participant’s Unvested Shares or (D) by a combination of (A) and (B) so that the combined payment and cancellation of indebtedness
equals such purchase price. In the event of any deemed automatic exercise of the Repurchase Right by canceling an amount of such indebtedness equal to the purchase price for Unvested Shares being repurchased, such cancellation of indebtedness will
be deemed automatically to occur as of the 90th day following termination of Participant’s employment or consulting relationship unless Cray otherwise satisfies its payment obligations. As a result of any repurchase of Unvested Shares pursuant
to the Repurchase Right, Cray will become the legal and beneficial owner of Unvested Shares being repurchased and will have all rights and interest therein or related thereto, and Cray will have the right to transfer to its own name the number of
Unvested Shares being repurchased by Cray, without further action by Participant.
3.3 Acceptance of Restrictions.
Acceptance of the Shares will constitute Participant’s agreement to such restrictions and the legending of his or her certificates or the notation in Cray’s direct registration system for stock issuance and transfer of such restrictions
and accompanying legends set forth in Section 4.1 with respect thereto. Notwithstanding such restrictions, however, so long as Participant is the holder of the Shares, or any portion thereof, he or she will be entitled to receive all dividends
declared on and to vote the Shares and to all other rights of a stockholder with respect thereto.
3.4 Non-Transferability of
Unvested Shares. In addition to any other limitation on transfer created by applicable securities laws or any other agreement between Cray and Participant, Participant may not transfer any Unvested Shares, or any interest therein, unless
consented to in writing by a duly authorized representative of Cray. Any purported transfer is void and of no effect, and no purported transferee thereof will be recognized as a holder of Unvested Shares for any purpose whatsoever. Should such a
transfer purport to occur, Cray may refuse to carry out the transfer on its books, set aside the transfer, or exercise any other legal or equitable remedy. In the event Cray consents to a transfer of Unvested Shares, all transferees of Shares or any
interest therein will receive and hold such Shares or interest subject to the provisions of this Agreement, including, insofar as applicable, the Repurchase Right. In the event of any purchase by Cray hereunder where the Shares or interest are held
by a transferee, the transferee will be obligated, if requested by Cray, to transfer the Shares or interest to Participant for consideration equal to the amount to be paid by Cray hereunder. In the event the Repurchase Right is deemed exercised by
Cray, Cray may deem any transferee to have transferred the Shares or interest to Participant prior to their purchase by Cray, and payment of the purchase price by Cray to such transferee will be deemed to satisfy Participant’s obligation to pay
such transferee for such Shares or interest, and also to satisfy Cray’s obligation to pay Participant for such Shares or interest.
3.5 Assignment. The Repurchase Right may be assigned by Cray in whole or in part to
any persons or organization.
3.6 Rights Associated With Restricted Stock Award. Any dividends and other
distributions paid with respect to Unvested Shares will be held by Cray as escrow agent until the Shares vest in accordance with the vesting schedule set forth in the Notice. Upon termination of the Repurchase Right with respect to such Unvested
Shares, such dividends or other distributions will be distributed to the affected Participant or forfeited with respect to the Shares as to which they were paid.
3.7 Termination. For purposes of the Shares, Participant’s service will be considered terminated as of the date
Participant is no longer providing services to Cray, its Parent or one of its Subsidiaries (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where
Participant is employed or the terms of Participant’s employment agreement, if any) (the “Termination Date”). The Committee shall have the exclusive discretion to determine when Participant is no longer actively
providing services for purposes of the Shares (including whether Participant may still be considered to be providing services while on an approved leave of absence). Unless otherwise provided in this Agreement or determined by Cray,
Participant’s right to vest in the Unvested Shares under the Plan, if any, will terminate as of the Termination Date and will not be extended by any notice period (e.g., Participant’s period of services would not include any contractual
notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any).
4. Restrictive Legends and Stop Transfer Orders.
4.1 Legends. The certificate or certificates or book entry or book entries representing the Shares will bear or be noted by
Cray’s transfer agent with the following legend (as well as any legends required by applicable state and federal corporate and securities laws):
THE SHARES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN CRAY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF CRAY.
4.2 Stop-Transfer Notices. Participant agrees that, in
order to ensure compliance with the restrictions referred to herein, Cray may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if Cray transfers its own securities, it may make appropriate notations
to the same effect in its own records.
4.3 Refusal to Transfer. Cray will not be required (i) to transfer on its books
any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (ii) to treat as the owner or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such
Shares will have been so transferred.
5. No Rights as Employee, Director or Consultant. Nothing in this Agreement will
affect in any manner whatsoever the right or power of Cray, or a Parent or Subsidiary of Cray, to terminate Participant’s service, for any reason, with or without Cause.
6. Withholding Taxes. Participant acknowledges that, regardless of any action taken by Cray or, if different, Participant’s
employer (the “Employer”) the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to Participant’s participation in the Plan
and legally applicable to Participant (“Tax-Related Items”), is and remains Participant’s responsibility and may exceed the amount actually withheld by Cray or the Employer. Participant further acknowledges that Cray
and/or the Employer (1) make no representations or undertakings regarding the
treatment of any Tax-Related Items in connection with any aspect of the Shares, including, but not limited to, the grant, purchase or vesting of the Shares and the subsequent sale of Shares
acquired pursuant to such purchase; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Shares to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any
particular tax result. Further, if Participant is subject to Tax-Related Items in more than one jurisdiction between the date of grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that Cray
and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, Participant agrees to make adequate arrangements satisfactory to Cray
and/or the Employer to satisfy all Tax-Related Items. In this regard, Participant authorizes Cray and/or the Employer, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a
combination of the following:
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withholding from Participant’s wages or other cash compensation paid to Participant by Cray and/or the Employer; or |
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(ii) |
withholding from proceeds of the sale of Shares acquired upon purchase of the Shares either through a voluntary sale or through a mandatory sale arranged by Cray (on Participant’s behalf pursuant to this
authorization); or |
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(iii) |
withholding in Shares upon vesting of the Shares, provided Cray only withholds the amount of Shares necessary to satisfy the minimum statutory withholding amounts; or |
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any other arrangement approved by the Committee. |
Depending on the withholding method, Cray
may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any
over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, Participant is deemed to have been issued the full number of
Shares subject to the vested Shares, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items. The Fair Market Value of these Shares, determined as of the effective date when taxes otherwise
would have been withheld in cash, will be applied as a credit against the Tax-Related Items withholding.
Finally, Participant agrees to
pay to Cray or the Employer any amount of Tax-Related Items that Cray or the Employer may be required to withhold or account for as a result of Participant’s participation in the Plan that cannot be satisfied by the means previously described.
Cray may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Participant fails to comply with Participant’s obligations in connection with the Tax-Related Items.
7. Nature of Grant. By purchasing the Shares, Participant acknowledges, understands and agrees that:
7.1 the Plan is established voluntarily by Cray, it is discretionary in nature and it may be modified, amended, suspended or terminated
by Cray at any time, to the extent permitted by the Plan;
7.2 the grant of the right to purchase the Shares is voluntary and
occasional and does not create any contractual or other right to receive future grants of rights to purchase Shares, or benefits in lieu of rights to purchase Shares, even if rights to purchase Shares have been granted in the past;
7.3 all decisions with respect to future rights to purchase Shares or other grants, if any, will be at the sole discretion of Cray;
7.4 the grant of the right to purchase Shares and Participant’s participation in the
Plan will not create a right to employment or be interpreted as forming an employment or services contract with Cray, the Employer or any Parent or Subsidiary of Cray;
7.5 Participant is voluntarily participating in the Plan;
7.6 the right to purchase the Shares and the Shares are not intended to replace any pension rights or compensation;
7.7 the right to purchase the Shares and the Shares, and the income and value of same, are not part of normal or expected compensation
for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
7.8 the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
7.9 no claim or entitlement to compensation or damages will arise from forfeiture or repurchase of the Shares resulting from
Participant’s Termination, and in consideration of the grant of the right to purchase the Shares to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against Cray, or any Parent or
Subsidiary of Cray or the Employer, waives his or her ability, if any, to bring any such claim, and releases Cray, any Parent or Subsidiary of Cray and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by
a court of competent jurisdiction, then, by participating in the Plan, Participant will be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such
claim;
7.10 unless otherwise provided in the Plan or by Cray in its discretion, the right to purchase the Shares and the benefits
evidenced by this Agreement do not create any entitlement to have the right to purchase the Shares, the Shares or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with
any Corporate Transaction affecting the Shares; and
7.11 the following provisions apply only if Participant is providing services
outside the United States:
(i) the right to purchase the Shares and the Shares are not part of normal or expected compensation or
salary for any purpose;
(ii) Participant acknowledges and agrees that neither Cray, the Employer nor any Parent or Subsidiary of
Cray will be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Shares or of any amounts due to Participant pursuant to the purchase of the Shares
or the subsequent sale of any Shares.
8. Miscellaneous.
8.1 No Advice Regarding Grant. Cray is not providing any tax, legal or financial advice, nor is Cray making any recommendations
regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her
participation in the Plan before taking any action related to the Plan.
8.2 Language. If Participant has received this
Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
8.3 Imposition of Other Requirements. Cray reserves the right to impose other
requirements on Participant’s participation in the Plan, on the Shares and on any Shares acquired under the Plan, to the extent Cray determines it is necessary or advisable for legal or administrative reasons, and to require Participant to sign
any additional agreements or undertakings that may be necessary to accomplish the foregoing.
8.4 Acknowledgement. Cray and
Participant agree that the Restricted Shares are granted under and governed by the Notice, this Agreement and by the provisions of the Plan (incorporated herein by reference). Participant: (i) acknowledges receipt of a copy of the Plan and the
Plan prospectus, (ii) represents that Participant has carefully read and is familiar with their provisions, and (iii) hereby accepts the Restricted Shares subject to all of the terms and conditions set forth herein and those set forth in
the Plan and the Notice.
8.5 Entire Agreement; Enforcement of Rights. This Agreement, the Plan and the Notice constitute
the entire agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Any prior agreements, commitments or negotiations concerning the purchase of the Shares hereunder are
superseded. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the parties to this Agreement. The failure by either party to enforce any rights
under this Agreement will not be construed as a waiver of any rights of such party.
8.6 Compliance with Laws and
Regulations. The issuance of Shares will be subject to and conditioned upon compliance by Cray and Participant with all applicable state and federal laws and regulations and with all applicable requirements of any stock exchange or automated
quotation system on which Cray’s Common Stock may be listed or quoted at the time of such issuance or transfer.
8.7
Governing Law and Venue; Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Agreement, (ii) the balance of this Agreement will be interpreted as if such provision were so excluded and
(iii) the balance of this Agreement will be enforceable in accordance with its terms. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto will be governed, construed and interpreted
in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law. Any and all disputes relating to, concerning or arising from this Agreement, or relating to, concerning or arising from the relationship
between the parties evidenced by the Plan or this Agreement, will be brought and heard exclusively in the United States District Court for the Western District of Washington or the Washington Superior Court, King County. Each of the parties hereby
represents and agrees that such party is subject to the personal jurisdiction of said courts; hereby irrevocably consents to the jurisdiction of such courts in any legal or equitable proceedings related to, concerning or arising from such dispute,
and waives, to the fullest extent permitted by law, any objection which such party may now or hereafter have that the laying of the venue of any legal or equitable proceedings related to, concerning or arising from such dispute which is brought in
such courts is improper or that such proceedings have been brought in an inconvenient forum.
8.8 Construction. This
Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement will be deemed to be the product of all of the parties hereto, and no ambiguity
will be construed in favor of or against any one of the parties hereto.
8.9 Notices. Any notice to be given under the terms
of the Plan will be addressed to Cray in care of its principal office, and any notice to be given to Participant will be addressed to such Participant at the address maintained by Cray for such person or at such other address as Participant may
specify in writing to Cray.
8.10 Consent to Electronic Delivery of All Plan Documents and Disclosures. By
Participant’s acceptance (whether in writing, electronically or otherwise) of the Notice, Participant and Cray agree that this opportunity to purchase the Restricted Shares is granted under and governed by the terms and conditions of the Plan,
the Notice and this Agreement. Participant has reviewed the Plan, the Notice and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, and fully understands all provisions of the
Plan, the Notice and this Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan, the Notice and this Agreement. Participant further
agrees to notify Cray upon any change in Participant’s residence address. By acceptance of this opportunity to purchase the Restricted Shares, Participant agrees to participate in the Plan through an on-line or electronic system established and
maintained by Cray or a third party designated by Cray and consents to the electronic delivery of the Notice, this Agreement, the Plan, account statements, Plan prospectuses required by the U.S. Securities and Exchange Commission, U.S. financial
reports of Cray, and all other documents that Cray is required to deliver to its security holders (including, without limitation, annual reports and proxy statements) or other communications or information related to the Restricted Shares and
current or future participation in the Plan. Electronic delivery may include the delivery of a link to a Cray intranet or the internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other
delivery determined at Cray’s discretion. Participant acknowledges that Participant may receive from Cray a paper copy of any documents delivered electronically at no cost if Participant contacts Cray by telephone, through a postal service at
901 Fifth Avenue, Suite 1000, Seattle, Washington, 98164 or electronic mail or other electronic medium. Participant further acknowledges that Participant will be provided with a paper copy of any documents delivered electronically if electronic
delivery fails; similarly, Participant understands that Participant must provide on request to Cray or any designated third party a paper copy of any documents delivered electronically if electronic delivery fails. Also, Participant understands that
Participant’s consent may be revoked or changed, including any change in the electronic mail address to which documents are delivered (if Participant has provided an electronic mail address), at any time by notifying Cray of such revised or
revoked consent by telephone, postal service at 901 Fifth Avenue, Suite 1000, Seattle, Washington, 98164 or electronic mail or other electronic medium. Finally, Participant understands that Participant is not required to consent to electronic
delivery.
8.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which will he deemed an
original and all of which together will constitute one instrument.
9. Section 83(b) Election. No election under
Section 83(b) of the Code will be available or permitted with respect to any of the Shares and any income recognized as a result of receiving the Shares will be treated as ordinary compensation income subject to federal, state and local income,
employment and other tax withholding.
10. Data Privacy. Participant hereby explicitly and unambiguously
consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Agreement and any other Restricted Stock Award materials by and among, as applicable, the Employer, Cray and any
Parent or Subsidiary of Cray for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.
Participant understands that Cray and the Employer may hold certain personal information about Participant, including, but not limited
to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in Cray, details of all Restricted Stock
Awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.
Participant understands that Data may be transferred to Fidelity Stock Plan Services, LLC or its affiliates or such other
stock plan service provider as may be selected by Cray in the future, which is assisting Cray with the implementation, administration and management of the Plan. Participant understands that the
recipients of Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than
Participant’s country. Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources
representative. Participant authorizes Cray, Fidelity Stock Plan Services, LLC and its affiliates, and any other possible recipients which may assist Cray (presently or in the future) with implementing, administering and managing the Plan to
receive, possess, use, retain and transfer Data, in electronic or other form, for the sole purpose of implementing, administering and managing his or her participation in the Plan. Participant understands that Data will be held only as long as is
necessary to implement, administer and manage Participant’s participation in the Plan. Participant understands if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the
storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands
that he or she is providing the consents herein on a purely voluntary basis. If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with Cray or a Subsidiary of
Cray will not be adversely affected; the only adverse consequence of refusing or withdrawing Participant’s consent is that Cray would not be able to grant Participant Restricted Stock Awards or other equity awards or administer or maintain such
awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or
withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first mentioned
above.
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| CRAY INC. |
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PARTICIPANT |
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| By: |
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Name: |
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[Participant’s Name] |
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Title: |
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Exhibit 10.2
CRAY INC.
2013 EQUITY
INCENTIVE PLAN
NOTICE OF STOCK OPTION GRANT
Unless otherwise defined herein, the terms defined in the Cray Inc. 2013 Equity Incentive Plan (the “Plan”) will have the same
meanings in the Notice of Stock Option Grant and any electronic representation of the Notice of Global Stock Option Grant established and maintained by Cray Inc. (“Cray”) or a third party designated by Cray (the
“Notice”).
You (“Participant”) have been granted an option to purchase shares of Common Stock of Cray under the
Plan subject to the terms and conditions of the Plan, the Notice and the Stock Option Award Agreement (the “Option Agreement”), including any special terms imposed by the Committee for non U.S. jurisdictions.
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| Grant Number: |
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| Date of Grant: |
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| Vesting Commencement Date: |
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| Exercise Price per Share: |
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| Total Number of Shares: |
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| Type of Option: |
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Non-Qualified Stock Option |
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Incentive Stock Option |
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| Expiration Date: |
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, 20 ; The Option expires earlier in the event of
Participant’s Termination, as described in the Option Agreement. |
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| Vesting Schedule: |
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Subject to the limitations set forth in this Notice, the Plan and the Option Agreement, the Option will vest and may be exercised, in whole or in part, in accordance with the following schedule: |
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[Insert applicable vesting schedule] |
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[Include for performance awards: The number of Options that Participant will have vested in pursuant to the performance targets set forth above will be determined by Cray and certified by the Compensation Committee of the
Board.] |
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[In the case of Disability or death, the entire option shall immediately vest.] |
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| Acceptance: |
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Participant must note Participant’s acceptance of the Option at the Fidelity Net Benefits web site: 401k.fidelity.com. By Participant’s acceptance of the Option at the Fidelity Net Benefits web site, Participant
acknowledges and agrees that: |
Participant understands that Participant’s employment or consulting relationship or service with Cray or a
Parent or Subsidiary is for an unspecified duration, can be terminated at any time (i.e., is at will), except where otherwise prohibited by applicable law and that nothing in the Notice, the Option Agreement or the Plan changes the nature of
that relationship. Participant acknowledges and agrees that the Vesting Schedule may change prospectively in the event that Participant’s service status changes between full and part time status in accordance with Cray policies relating to work
schedules and vesting of awards. Participant acknowledges that the vesting of the Options pursuant to the Notice is earned only by continuing service as an Employee, Director or Consultant of Cray or a Parent or Subsidiary. Participant also
understands that the Notice is subject to the terms and conditions of both the Option Agreement and the Plan, both of which are incorporated herein by reference. Participant has read both the Option Agreement and the Plan. By accepting the Option,
Participant consents to the electronic delivery as set forth in the Option Agreement.
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| How to Exercise and Sell: |
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In connection with the requirements set forth in Section 4(b) of the Option Agreement, Participant must exercise Participant’s Options through the Fidelity web site: 401k.fidelity.com |
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Participant may sell Participant’s underlying shares through the Fidelity web site or have Participant’s shares transferred to Participant’s stockbroker and sell through Participant’s stockbroker. The fees for
selling vary among stockbrokers but may be less expensive than the fees charged by Fidelity. |
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CRAY INC.
2013 EQUITY INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
Unless
otherwise defined in this Stock Option Award Agreement (this “Option Agreement”), any capitalized terms used herein will have the meaning ascribed to them in the Cray Inc. 2013 Equity Incentive Plan (the
“Plan”).
Participant has been granted an option to purchase Shares (the “Option”) of Cray
Inc. (“Cray”), subject to the terms and conditions of the Plan, the Notice of Stock Option Grant (the “Notice”) and this Option Agreement, including any special terms imposed by the Committee for non
U.S. jurisdictions.
1. Vesting Rights. Subject to the applicable provisions of the Plan and this Option Agreement, the
Option may be exercised, in whole or in part, in accordance with the schedule set forth in the Notice.
2. Grant of
Option. The Participant named in the Notice has been granted an Option for the number of Shares set forth in the Notice at the exercise price per Share in U.S. dollars set forth in the Notice (the “Exercise Price”).
In the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Option Agreement, the terms and conditions of the Plan will prevail. If designated in the Notice as an Incentive Stock Option
(“ISO”), the Option is intended to qualify as an Incentive Stock Option under Section 422 of the Code. However, if the Option is intended to be an ISO, to the extent that it exceeds the U.S. $100,000 rule of Code
Section 422(d) it will be treated as a Nonqualified Stock Option.
3. Termination Period.
(a) General Rule. Except as provided below, and subject to the Plan, the Option may be exercised for three months after
Participant’s Termination. In no event will the Option be exercised later than the Expiration Date set forth in the Notice.
(b)
Death; Disability. Unless provided otherwise in the Notice, upon Participant’s Termination by reason of his or her death or “permanent and total disability” as described in the Plan, or if a Participant dies within three months
of the Termination Date, the Option may be exercised for twelve months after the Termination Date, provided that in no event will the Option be exercised later than the Expiration Date set forth in the Notice. Unless provided otherwise in the
Notice, upon Participant’s Termination by reason of his or her Disability (other than a “permanent and total disability”), the Option may be exercised for twelve months after the Termination Date, provided that in no event will the
Option be exercised later than the Expiration Date set forth in the Notice.
(c) Cause. Upon Participant’s Termination for
Cause (as defined in the Plan), the Option will expire on such date of Participant’s Termination Date.
(d) Termination.
For purposes of this Option, Participant’s service will be considered terminated as of the date Participant is no longer providing services to Cray, its Parent or one of its Subsidiaries (regardless of the reason for such termination and
whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any) (the “Termination Date”). The
Committee shall have the exclusive discretion to determine when Participant is no longer actively providing services for purposes of the Option (including whether Participant may still be considered to be providing services while on an approved
leave of absence). Unless otherwise provided in this Agreement or determined by Cray, Participant’s right to vest in the Option under the Plan, if any, will terminate as of the Termination Date and will not be extended by any notice period
(e.g., Participant’s period of services would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where Participant is employed or the terms of
Participant’s employment
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agreement, if any). Following the Termination Date, Participant may exercise the Option only as set forth in the Notice and this Section, provided that the period (if any) during which
Participant may exercise the Option after the Termination Date, if any, will commence on the date Participant ceases to provide services and will not be extended by any notice period mandated under employment laws in the jurisdiction where
Participant is employed or terms of Participant’s employment agreement, if any. If Participant does not exercise the Option within the termination periods set forth in this Section, the Option shall terminate in its entirety. In no event, may
the Option be exercised after the Expiration Date of the Option as set forth in the Notice.
4. Exercise of Option.
(a) Right to Exercise. The Option is exercisable during its term in accordance with the Vesting Schedule set forth in the Notice and
the applicable provisions of the Plan and this Option Agreement. In the event of Participant’s death, Disability, Termination for Cause or other Termination, the exercisability of the Option is governed by the applicable provisions of the Plan,
the Notice and this Option Agreement.
(b) Method of Exercise. The Option is exercisable by delivery of an exercise notice (the
“Exercise Notice”), which will state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the “Exercised Shares”), and such other representations
and agreements as may be required by Cray pursuant to the provisions of the Plan. The Exercise Notice will be delivered in person, by mail, via electronic mail or facsimile or by other authorized method to Cray or other person designated by Cray.
The Exercise Notice will be accompanied by payment of the aggregate Exercise Price as to all the Exercised Shares together with any Tax-Related Items (as defined in Section 8(a) below). The Option will be deemed to be exercised upon receipt by
Cray of such fully executed Exercise Notice accompanied by such aggregate Exercise Price and payment of any Tax-Related Items.
(c) No
Shares will be issued pursuant to the exercise of the Option unless such issuance and exercise complies with all relevant provisions of law and the requirements of any stock exchange or quotation service upon which the Shares are then listed.
Assuming such compliance, for income tax purposes the Exercised Shares will be considered transferred to Participant on the date the Option is exercised with respect to such Exercised Shares.
5. Method of Payment. Payment of the aggregate Exercise Price will be by any of the following, or a combination thereof, at the
election of Participant:
(a) cash;
(b) check;
(c) a
“broker-assisted” or “same-day sale” (as described in Section 11(d) of the Plan); or
(d) other method authorized
by the Committee or permitted under the Plan.
6. Non-Transferability of Option. The Option may not be sold, assigned,
transferred, pledged, hypothecated, or otherwise disposed of other than by will or by the laws of descent or distribution or court order and may be exercised during the lifetime of Participant only by Participant or unless otherwise permitted by the
Committee on a case-by-case basis. The terms of the Plan and this Option Agreement will be binding upon the executors, administrators, heirs, successors and assigns of Participant.
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7. Term of Option. The Option will in any event expire on the expiration date set
forth in the Notice, which date is 10 years after the Date of Grant (five years after the Date of Grant if this option is designated as an ISO in the Notice of Stock Option Grant and Participant is a Ten Percent Stockholder as described in
Section 5.3 of the Plan).
8. Tax Consequences.
(a) Exercising the Option. Participant acknowledges that, regardless of any action taken by Cray or a Parent or Subsidiary employing or
retaining Participant (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax related items related to Participant’s participation
in the Plan and legally applicable to Participant (“Tax-Related Items”) is and remains Participant’s responsibility and may exceed the amount actually withheld by Cray or the Employer. Participant further acknowledges
that Cray and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Option, including, but not limited to, the grant, vesting or exercise of the Option,
the subsequent sale of Shares acquired pursuant to such exercise and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate
Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if Participant is subject to Tax-Related Items in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax
withholding event, as applicable, Participant acknowledges that Cray and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to the relevant taxable or tax withholding event, as applicable, Participant agrees to make adequate arrangements satisfactory to Cray
and/or the Employer to satisfy all Tax-Related Items. In this regard, Participant authorizes Cray and/or the Employer, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a
combination of the following:
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withholding from Participant’s wages or other cash compensation paid to Participant by Cray and/or the Employer; or |
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withholding from proceeds of the sale of Shares acquired at exercise of the Option either through a voluntary sale or through a mandatory sale arranged by Cray (on Participant’s behalf pursuant to this
authorization) without further consent; or |
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(iii) |
withholding in Shares to be issued upon exercise of the Option, provided Cray only withholds from the amount of Shares necessary to satisfy the minimum statutory withholding amount; or |
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any other arrangement approved by the Committee. |
Depending on the withholding method, Cray
may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any
over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, Participant is deemed
to have been issued the full number of Shares issued upon exercise of the Options; notwithstanding that a number of the Shares are held back solely for the purpose of paying Tax-Related Items. The Fair Market
Value of these Shares, determined as of the effective date of the Option exercise, will be applied as a credit against Tax-Related Items withholding.
Finally, Participant agrees to pay to Cray or the Employer any amount of Tax-Related Items that Cray or the Employer may be required to
withhold or account for as a result of Participant’s participation in the Plan that cannot be satisfied by the means previously described. Cray may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Participant
fails to comply with his or her obligations in connection with Tax-Related Items.
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(b) Notice of Disqualifying Disposition of ISO Shares. For U.S. taxpayers, if Participant
sells or otherwise disposes of any of the Shares acquired pursuant to an ISO on or before the later of (i) two years after the grant date, or (ii) one year after the exercise date, Participant will immediately notify Cray in writing of
such disposition. Participant agrees that he or she may be subject to income tax withholding by Cray on the compensation income recognized from such early disposition of ISO Shares by payment in cash or out of the current earnings paid to
Participant.
9. Nature of Grant. By accepting the Option, Participant acknowledges, understands and agrees that:
(a) the Plan is established voluntarily by Cray, it is discretionary in nature, and may be amended, suspended or terminated by Cray at any
time, to the extent permitted by the Plan;
(b) the grant of the Option is voluntary and occasional and does not create any contractual or
other right to receive future grants of options, or benefits in lieu of options, even if options have been granted in the past;
(c) all
decisions with respect to future Option or other grants, if any, will be at the sole discretion of Cray;
(d) the Option grant and
Participant’s participation in the Plan will not create a right to employment or be interpreted as forming an employment or service contract with Cray, the Employer or any Parent or Subsidiary;
(e) Participant is voluntarily participating in the Plan;
(f) the Option and any Shares acquired under the Plan are not intended to replace any pension rights or compensation;
(g) the Option and any Shares acquired under the Plan and the income and value of same, are not part of normal or expected compensation for
purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
(h) the future value of the Shares underlying the Option is unknown, indeterminable, and cannot be predicted with certainty;
(i) if the underlying Shares do not increase in value, the Option will have no value;
(j) if Participant exercises the Option and acquires Shares, the value of such Shares may increase or decrease in value, even below the
Exercise Price;
(k) no claim or entitlement to compensation or damages will arise from forfeiture of the Option resulting from
Participant’s Termination, and in consideration of the grant of the Option to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against Cray, any Parent or Subsidiary or the Employer,
waives his or her ability, if any, to bring any such claim, and releases Cray, any Parent or Subsidiary and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by
participating in the Plan, Participant will be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim;
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(l) unless otherwise provided in the Plan or by Cray in its discretion, the Option and the
benefits evidenced by this Option Agreement do not create any entitlement to have the Option or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate
transaction affecting the Shares; and
(m) the following provisions apply only if Participant is providing services outside the United
States:
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the Option and the Shares subject to the Option are not part of normal or expected compensation or salary for any purpose; |
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(ii) |
Participant acknowledges and agrees that neither Cray, the Employer nor any Parent or Subsidiary will be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States
Dollar that may affect the value of the Option or of any amounts due to Participant pursuant to the exercise of the Option or the subsequent sale of any Shares acquired upon exercise. |
10. No Advice Regarding Grant. Cray is not providing any tax, legal or financial advice, nor is Cray making any recommendations
regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her
participation in the Plan before taking any action related to the Plan.
11. Data Privacy. Participant
hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Option Agreement and any other Option grant materials by and among, as
applicable, the Employer, Cray and any Parent or Subsidiary of for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.
Participant understands that Cray and the Employer may hold certain personal information about Participant, including, but not limited
to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in Cray, details of all Options or any
other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.
Participant understands that Data will be transferred to Fidelity Stock Plan Services, LLC or its affiliates or such other stock plan
service provider as may be selected by Cray in the future, which is assisting Cray with the implementation, administration and management of the Plan. Participant understands that the recipients of Data may be located in the United States or
elsewhere, and that the recipient’s country (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that if he or she resides outside the United States, he or she
may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative. Participant authorizes Cray, Fidelity Stock Plan Services, LLC and its affiliates, and any other
possible recipients which may assist Cray (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer Data, in electronic or other form, for the sole purposes of implementing,
administering and managing Participant’s participation in the Plan. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. Participant
understands that if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis. If Participant
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does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected; the only adverse
consequence of refusing or withdrawing Participant’s consent is that Cray would not be able to grant Participant options or other equity awards or administer or maintain such awards. Therefore, Participant understands that refusing or
withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may
contact his or her local human resources representative.
12. Language. If Participant has received this Option
Agreement, or any other document related to the Option and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
Notwithstanding any provisions in this Option Agreement, the Option will be subject to any special terms and conditions imposed by the Committee for non U.S. jurisdictions.
13. Imposition of Other Requirements. Cray reserves the right to impose other requirements on Participant’s participation
in the Plan, on the Option and on any Shares purchased upon exercise of the Option, to the extent Cray determines it is necessary or advisable for legal or administrative reasons, and to require Participant to sign any additional agreements or
undertakings that may be necessary to accomplish the foregoing.
14. Acknowledgement. Cray and Participant agree that the
Option is granted under and governed by the Notice, this Option Agreement and by the provisions of the Plan (incorporated herein by reference). Participant: (i) acknowledges receipt of a copy of the Plan and the Plan prospectus,
(ii) represents that Participant has carefully read and is familiar with their provisions, and (iii) hereby accepts the Option subject to all of the terms and conditions set forth herein and those set forth in the Plan and the Notice.
15. Entire Agreement; Enforcement of Rights. This Option Agreement, the Plan and the Notice constitute the entire
agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Any prior agreements, commitments or negotiations concerning the purchase of the Shares hereunder are superseded. No
modification of or amendment to this Option Agreement, nor any waiver of any rights under this Option Agreement, will be effective unless in writing and signed by the parties to this Option Agreement. The failure by either party to enforce any
rights under this Option Agreement will not be construed as a waiver of any rights of such party.
16. Compliance with Laws
and Regulations. The issuance of Shares and any restriction on the sale of Shares will be subject to and conditioned upon compliance by Cray and Participant with all applicable state, federal and local laws and regulations and with all
applicable requirements of any stock exchange or automated quotation system on which Cray’s Shares may be listed or quoted at the time of such issuance or transfer.
17. Severability. If one or more provisions of this Option Agreement are held to be unenforceable, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Option Agreement, (ii) the balance
of this Option Agreement will be interpreted as if such provision were so excluded and (iii) the balance of this Option Agreement will be enforceable in accordance with its terms.
18. Governing Law and Venue. This Option Agreement and all acts and transactions pursuant hereto and the rights and obligations
of the parties hereto will be governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.
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Any and all disputes relating to, concerning or arising from this Option Agreement, or relating
to, concerning or arising from the relationship between the parties evidenced by the Plan or this Option Agreement, will be brought and heard exclusively in the United States District Court for the Western District of Washington or the Washington
Superior Court, King County. Each of the parties hereby represents and agrees that such party is subject to the personal jurisdiction of said courts; hereby irrevocably consents to the jurisdiction of such courts in any legal or equitable
proceedings related to, concerning or arising from such dispute, and waives, to the fullest extent permitted by law, any objection which such party may now or hereafter have that the laying of the venue of any legal or equitable proceedings related
to, concerning or arising from such dispute which is brought in such courts is improper or that such proceedings have been brought in an inconvenient forum.
19. No Rights as Employee, Director or Consultant. Nothing in this Option Agreement will affect in any manner whatsoever the
right or power of Cray, or a Parent or Subsidiary, to terminate Participant’s service, for any reason, with or without Cause.
20. Consent to Electronic Delivery of all Plan Documents and Disclosures. By Participant’s signature and the signature of
Cray’s representative on the Notice, Participant and Cray agree that the Option is granted under and governed by the terms and conditions of the Plan, the Notice and this Option Agreement. Participant has reviewed the Plan, the Notice and this
Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing the Notice, and fully understands all provisions of the Plan, the Notice and this Option Agreement. Participant hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan, the Notice and this Option Agreement. Participant further agrees to notify Cray upon any change in the residence address
indicated on the Notice. By acceptance of the Option, Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by Cray or a third party designated by Cray and consents to the electronic
delivery of the Notice, this Option Agreement, the Plan, account statements, Plan prospectuses required by the U.S. Securities and Exchange Commission, U.S. financial reports of Cray, and all other documents that Cray is required to deliver to its
security holders (including, without limitation, annual reports and proxy statements) or other communications or information related to the Option and current or future participation in the Plan. Electronic delivery may include the delivery of a
link to Cray intranet or the internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other delivery determined at Cray’s discretion. Participant acknowledges that Participant may
receive from Cray a paper copy of any documents delivered electronically at no cost if Participant contacts Cray by telephone, through a postal service at 901 Fifth Avenue, Suite 1000, Seattle, Washington, 98164 or electronic mail or other
electronic medium. Participant further acknowledges that Participant will be provided with a paper copy of any documents delivered electronically if electronic delivery fails; similarly, Participant understands that Participant must provide on
request to Cray or any designated third party a paper copy of any documents delivered electronically if electronic delivery fails. Also, Participant understands that Participant’s consent may be revoked or changed, including any change in the
electronic mail address to which documents are delivered (if Participant has provided an electronic mail address), at any time by notifying Cray of such revised or revoked consent by telephone, postal service at 901 Fifth Avenue, Suite 1000,
Seattle, Washington, 98164 or electronic mail or other electronic medium. Finally, Participant understands that Participant is not required to consent to electronic delivery.
9
Exhibit 10.3
CRAY INC.
2013 EQUITY
INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK UNIT AWARD
GRANT NUMBER:
Unless otherwise defined herein, the terms defined in the Cray Inc. 2013 Equity Incentive Plan (the “Plan”) will have the same
meanings in this Notice of Restricted Stock Unit Award and any electronic representation of this Notice of Restricted Stock Unit Award established and maintained by Cray Inc. (“Cray”) or a third party designated by Cray (this
“Notice”).
You (“Participant”) have been granted an award of Restricted Stock Units
(“RSUs”) under the Plan subject to the terms and conditions of the Plan, this Notice and the attached Restricted Stock Unit Award Agreement (the “Agreement”), including any special terms imposed by the
Committee for non U.S. jurisdictions.
|
|
|
| Total Number of RSUs Awarded: |
|
| Fair Market Value per Share subject to the RSUs: |
|
| Total Fair Market Value of Award: |
|
| Date of Grant: |
|
| Vesting Commencement Date: |
|
|
| Expiration Date: |
|
The date on which settlement of all RSUs granted hereunder occurs, with earlier expiration upon the Termination Date |
|
|
| Vesting Schedule: |
|
Subject to the limitations set forth in this Notice, the Plan and the Agreement, the RSUs will vest in accordance with the following schedule: |
|
|
|
|
[Insert applicable vesting schedule] |
|
|
|
|
[Include for performance awards: The number of RSUs that Participant will have vested in pursuant to the performance targets set forth above will be determined by Cray and certified by the Compensation Committee of the
Board.] |
By accepting (whether in writing, electronically or otherwise) the RSUs, Participant acknowledges and agrees to the following:
Participant understands that Participant’s employment or consulting relationship or service with Cray or a Parent or Subsidiary of Cray is for an
unspecified duration, can be terminated at any time (i.e., is at will), and that nothing in this Notice, the Agreement or the Plan changes the nature of that relationship except where otherwise prohibited by applicable law. Participant
acknowledges and agrees that the Vesting
1
Schedule may change prospectively in the event that Participant’s service status changes between full and part time status in accordance with Cray policies relating to work schedules and
vesting of awards. Participant acknowledges that the vesting of the RSUs pursuant to this Notice is earned only by continuing service as an Employee, Director or Consultant of Cray or a Parent or Subsidiary of Cray. Participant also understands that
this Notice is subject to the terms and conditions of both the Agreement and the Plan, both of which are incorporated herein by reference. Participant has read both the Agreement and the Plan. By accepting the RSUs, Participant consents to the
electronic delivery as set forth in the Agreement.
2
CRAY INC.
2013 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
Unless otherwise defined herein, the terms defined in the Cray Inc. 2013 Equity Incentive Plan (the “Plan”) will have
the same defined meanings in this Restricted Stock Unit Award Agreement (the “Agreement”).
Participant has been granted
Restricted Stock Units (“RSUs”) subject to the terms, restrictions and conditions of the Plan, the Notice of Restricted Stock Unit Award (the “Notice”) and this Agreement, including any special terms
imposed by the Committee for non U.S. jurisdictions.
1. Settlement. Settlement of RSUs will be made within 30 days following the
applicable date of vesting under the vesting schedule set forth in the Notice. Settlement of RSUs will be in Shares.
2. No Stockholder
Rights. Unless and until such time as Shares are issued in settlement of vested RSUs, Participant will have no ownership of the Shares allocated to the RSUs and will have no right to dividends or to vote such Shares.
3. Dividend Equivalents. Dividends, if any (whether in cash or Shares), will not be credited to Participant.
4. Non-Transferability of RSUs. The RSUs and any interest therein will not be sold, assigned, transferred, pledged, hypothecated, or otherwise
disposed of in any manner other than by will or by the laws of descent or distribution or court order or unless otherwise permitted by the Committee on a case-by-case basis.
5. Termination. If Participant’s service Terminates for any reason, all unvested RSUs will be forfeited to Cray forthwith, and all rights
of Participant to such RSUs will immediately terminate. For purposes of the RSUs, Participant’s service will be considered terminated as of the date Participant is no longer providing services to Cray, its Parent or one of its Subsidiaries
(regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any) (the
“Termination Date”). The Committee shall have the exclusive discretion to determine when Participant is no longer actively providing services for purposes of the RSUs (including whether Participant may still be considered to
be providing services while on an approved leave of absence). Unless otherwise provided in this Agreement or determined by Cray, Participant’s right to vest in the RSUs under the Plan, if any, will terminate as of the Termination Date and will
not be extended by any notice period (e.g., Participant’s period of services would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where
Participant is employed or the terms of Participant’s employment agreement, if any).
6. No Rights as Employee, Director or Consultant.
Nothing in this Agreement will affect in any manner whatsoever the right or power of Cray, or a Parent or Subsidiary of Cray, to terminate Participant’s service, for any reason, with or
without Cause.
7. Withholding Taxes. Participant acknowledges that, regardless of any action taken by Cray or, if different,
Participant’s employer (the “Employer”) the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to Participant’s
participation in the Plan and legally applicable to Participant (“Tax-Related Items”), is and remains Participant’s responsibility and may exceed the amount actually withheld by Cray or the Employer. Participant further
acknowledges that Cray and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the
3
RSUs, including, but not limited to, the grant, vesting or settlement of the RSUs and the subsequent sale of Shares acquired pursuant to such settlement; and (2) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if Participant is subject to Tax-Related Items
in more than one jurisdiction between the date of grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that Cray and/or the Employer (or former employer, as applicable) may be required to
withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as
applicable, Participant agrees to make adequate arrangements satisfactory to Cray and/or the Employer to satisfy all Tax-Related Items. In this regard, Participant authorizes Cray and/or the Employer, or their respective agents, at their discretion,
to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:
| |
(i) |
withholding from Participant’s wages or other cash compensation paid to Participant by Cray and/or the Employer; or |
| |
(ii) |
withholding from proceeds of the sale of Shares acquired upon settlement of the RSUs either through a voluntary sale or through a mandatory sale arranged by Cray (on Participant’s behalf pursuant to this
authorization); or |
| |
(iii) |
withholding in Shares to be issued upon settlement of the RSUs, provided Cray only withholds the amount of Shares necessary to satisfy the minimum statutory withholding amounts; or |
| |
(iv) |
any other arrangement approved by the Committee. |
Depending on the withholding method,
Cray may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any
over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, Participant is deemed to have been issued the full number of
Shares subject to the vested RSUs, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items. The Fair Market Value of these Shares, determined as of the effective date when taxes otherwise
would have been withheld in cash, will be applied as a credit against the Tax-Related Items withholding.
Finally, Participant agrees to
pay to Cray or the Employer any amount of Tax-Related Items that Cray or the Employer may be required to withhold or account for as a result of Participant’s participation in the Plan that cannot be satisfied by the means previously described.
Cray may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if Participant fails to comply with Participant’s obligations in connection with the Tax-Related Items.
8. Nature of Grant. By accepting the RSUs, Participant acknowledges, understands and agrees that:
(a) the Plan is established voluntarily by Cray, it is discretionary in nature and it may be modified, amended, suspended or terminated
by Cray at any time, to the extent permitted by the Plan;
(b) the grant of the RSUs is voluntary and occasional and does not
create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted in the past;
(c) all decisions with respect to future RSU or other grants, if any, will be at the sole discretion of Cray;
4
(d) the RSU grant and Participant’s participation in the Plan will not create a right
to employment or be interpreted as forming an employment or services contract with Cray, the Employer or any Parent or Subsidiary of Cray;
(e) Participant is voluntarily participating in the Plan;
(f) the RSUs and the Shares subject to the RSUs are not intended to replace any pension rights or compensation;
(g) the RSUs and the Shares subject to the RSUs, and the income and value of same, are not part of normal or expected compensation for
purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
(h) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(i) no claim or entitlement to compensation or damages will arise from forfeiture of the RSUs resulting from Participant’s
Termination, and in consideration of the grant of the RSUs to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against Cray, or any Parent or Subsidiary of Cray or the Employer, waives his or
her ability, if any, to bring any such claim, and releases Cray, any Parent or Subsidiary of Cray and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by
participating in the Plan, Participant will be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim;
(j) unless otherwise provided in the Plan or by Cray in its discretion, the RSUs and the benefits evidenced by this Agreement do not
create any entitlement to have the RSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any Corporate Transaction affecting the Shares; and
(k) the following provisions apply only if Participant is providing services outside the United States:
| |
(i) |
the RSUs and the Shares subject to the RSUs are not part of normal or expected compensation or salary for any purpose; |
| |
(ii) |
Participant acknowledges and agrees that neither Cray, the Employer nor any Parent or Subsidiary of Cray will be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United
States Dollar that may affect the value of the RSUs or of any amounts due to Participant pursuant to the settlement of the RSUs or the subsequent sale of any Shares acquired upon settlement. |
9. Miscellaneous.
(a)
No Advice Regarding Grant. Cray is not providing any tax, legal or financial advice, nor is Cray making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the
underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
(b) Language. If Participant has received this Agreement or any other document related to the Plan translated into a language
other than English and if the meaning of the translated version is different than the English version, the English version will control.
5
(c) Imposition of Other Requirements. Cray reserves the right to impose other
requirements on Participant’s participation in the Plan, on the RSUs and on any Shares acquired under the Plan, to the extent Cray determines it is necessary or advisable for legal or administrative reasons, and to require Participant to sign
any additional agreements or undertakings that may be necessary to accomplish the foregoing.
(d) Acknowledgement. Cray and
Participant agree that the RSUs are granted under and governed by the Notice, this Agreement and by the provisions of the Plan (incorporated herein by reference). Participant: (i) acknowledges receipt of a copy of the Plan and the Plan
prospectus, (ii) represents that Participant has carefully read and is familiar with their provisions, and (iii) hereby accepts the RSUs subject to all of the terms and conditions set forth herein and those set forth in the Plan and the
Notice.
(e) Entire Agreement; Enforcement of Rights. This Agreement, the Plan and the Notice constitute the entire
agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Any prior agreements, commitments or negotiations concerning the purchase of the Shares hereunder are superseded. No
modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the parties to this Agreement. The failure by either party to enforce any rights under this
Agreement will not be construed as a waiver of any rights of such party.
(f)
Compliance with Laws and Regulations. The issuance of Shares will be subject to and conditioned upon compliance by Cray and Participant with all applicable state and federal laws and regulations and with all applicable
requirements of any stock exchange or automated quotation system on which Cray’s Common Stock may be listed or quoted at the time of such issuance or transfer.
(g) Governing Law and Venue; Severability. If one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this
Agreement, (ii) the balance of this Agreement will be interpreted as if such provision were so excluded and (iii) the balance of this Agreement will be enforceable in accordance with its terms. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto will be governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law. Any and all disputes
relating to, concerning or arising from this Agreement, or relating to, concerning or arising from the relationship between the parties evidenced by the Plan or this Agreement, will be brought and heard exclusively in the United States District
Court for the Western District of Washington or the Washington Superior Court, King County. Each of the parties hereby represents and agrees that such party is subject to the personal jurisdiction of said courts; hereby irrevocably consents to the
jurisdiction of such courts in any legal or equitable proceedings related to, concerning or arising from such dispute, and waives, to the fullest extent permitted by law, any objection which such party may now or hereafter have that the laying of
the venue of any legal or equitable proceedings related to, concerning or arising from such dispute which is brought in such courts is improper or that such proceedings have been brought in an inconvenient forum.
(h) Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and
their respective counsel, if any; accordingly, this Agreement will be deemed to be the product of all of the parties hereto, and no ambiguity will be construed in favor of or against any one of the parties hereto.
(i) Notices. Any notice to be given under the terms of the Plan will be addressed to Cray in care of its principal office, and
any notice to be given to Participant will be addressed to such Participant at the address maintained by Cray for such person or at such other address as Participant may specify in writing to Cray.
6
(j) Consent to Electronic Delivery of All Plan Documents and Disclosures. By
Participant’s acceptance (whether in writing, electronically or otherwise) of the Notice, Participant and Cray agree that the RSUs are granted under and governed by the terms and conditions of the Plan, the Notice and this Agreement.
Participant has reviewed the Plan, the Notice and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, and fully understands all provisions of the Plan, the Notice and this
Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan, the Notice and this Agreement. Participant further agrees to notify Cray upon
any change in Participant’s residence address. By acceptance of the RSUs, Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by Cray or a third party designated by Cray and consents
to the electronic delivery of the Notice, this Agreement, the Plan, account statements, Plan prospectuses required by the U.S. Securities and Exchange Commission, U.S. financial reports of Cray, and all other documents that Cray is required to
deliver to its security holders (including, without limitation, annual reports and proxy statements) or other communications or information related to the RSUs and current or future participation in the Plan. Electronic delivery may include the
delivery of a link to a Cray intranet or the internet site of a third party involved in administering the Plan, the delivery of the document via e-mail or such other delivery determined at Cray’s discretion. Participant acknowledges that
Participant may receive from Cray a paper copy of any documents delivered electronically at no cost if Participant contacts Cray by telephone, through a postal service at 901 Fifth Avenue, Suite 1000, Seattle, Washington, 98164 or electronic mail or
other electronic medium. Participant further acknowledges that Participant will be provided with a paper copy of any documents delivered electronically if electronic delivery fails; similarly, Participant understands that Participant must provide on
request to Cray or any designated third party a paper copy of any documents delivered electronically if electronic delivery fails. Also, Participant understands that Participant’s consent may be revoked or changed, including any change in the
electronic mail address to which documents are delivered (if Participant has provided an electronic mail address), at any time by notifying Cray of such revised or revoked consent by telephone, postal service at 901 Fifth Avenue, Suite 1000,
Seattle, Washington, 98164 or electronic mail or other electronic medium. Finally, Participant understands that Participant is not required to consent to electronic delivery.
(k) Counterparts. This Agreement may be executed in two or more counterparts, each of which will he deemed an original and all
of which together will constitute one instrument.
10. Data Privacy. Participant hereby explicitly and unambiguously
consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Agreement and any other RSU grant materials by and among, as applicable, the Employer, Cray and any Parent or
Subsidiary of Cray for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.
Participant understands that Cray and the Employer may hold certain personal information about Participant, including, but not limited
to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in Cray, details of all RSUs or any
other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.
Participant understands that Data may be transferred to Fidelity Stock Plan Services, LLC or its affiliates or such other stock plan
service provider as may be selected by Cray in the future, which is assisting Cray with the implementation, administration and management of the Plan. Participant understands that the recipients of Data may be located in the United States or
elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that if he or she resides outside the United States, he or she
may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative. Participant authorizes Cray, Fidelity Stock Plan Services, LLC and its affiliates, and any other
possible recipients which may assist Cray (presently or
7
in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer Data, in electronic or other form, for the sole purpose of implementing,
administering and managing his or her participation in the Plan. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. Participant understands if
he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any
case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis. If Participant does not consent, or if
Participant later seeks to revoke his or her consent, his or her employment status or service and career with Cray or a Subsidiary of Cray will not be adversely affected; the only adverse consequence of refusing or withdrawing Participant’s
consent is that Cray would not be able to grant Participant RSUs or other equity awards or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability
to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.
8
Exhibit 10.4
CRAY INC.
2013 EQUITY
INCENTIVE PLAN
NOTICE OF STOCK APPRECIATION RIGHT AWARD GRANT
Unless otherwise defined herein, the terms defined in the Cray Inc. 2013 Equity Incentive Plan (the “Plan”) will have the same
meanings in the Notice of Stock Appreciation Right Award and any electronic representation of the Notice of Stock Appreciation Right Award established and maintained by Cray Inc. (“Cray”)or a third party designated by Cray
(the “Notice”).
You (“Participant”) have been granted an award of Stock Appreciation Rights
(“SARs”) of Cray under the Plan subject to the terms and conditions of the Plan, the Notice and the Stock Appreciation Right Award Agreement (the “SAR Agreement”), including any special terms imposed
by the Committee for non U.S. jurisdictions.
|
|
|
| Grant Number: |
|
| Date of Grant: |
|
| Vesting Commencement Date: |
|
| Exercise Price per Share: |
|
| Total Number of Shares: |
|
| Expiration Date: |
|
|
| Vesting Schedule: |
|
Subject to the limitations set forth in this Notice, the Plan and the SAR Agreement, the SAR will vest and may be exercised, in whole or in part, in accordance with the following schedule: |
|
|
|
|
[Insert applicable vesting schedule] |
|
|
|
|
[Include for performance awards: The number of SARs that Participant will have vested in pursuant to the performance targets set forth above will be determined by Cray and certified by the Compensation Committee of the
Board.] |
|
|
|
|
[In the case of Disability or death, the entire SAR shall immediately vest.] |
|
|
| Acceptance: |
|
Participant must note Participant’s acceptance of the SAR at the Fidelity Net Benefits web site: 401k.fidelity.com. By Participant’s acceptance of
the SAR at the Fidelity Net Benefits web site, Participant acknowledges and agrees that: |
Participant understands that Participant’s employment or consulting relationship or service with Cray or a Parent or
Subsidiary is for an unspecified duration, can be terminated at any time (i.e., is at-will), except where otherwise prohibited by applicable law and that nothing in the Notice, the SAR Agreement or the Plan changes the nature of that relationship.
Participant acknowledges and agrees that the Vesting Schedule may change prospectively in the event that Participant’s service status changes between full and part time status in accordance with Cray policies relating to work schedules and
vesting of awards. Participant acknowledges that the vesting of the SARs pursuant to the Notice is earned only by continuing service as an Employee, Director or Consultant of Cray or a Parent or Subsidiary. Participant also understands that the
Notice is subject to the terms and conditions of both the SAR Agreement and the Plan, both of which are incorporated herein by reference. Participant has read both the SAR Agreement and the Plan. By accepting the SARs, Participant consents to the
electronic delivery as set forth in the SAR Agreement.
1
|
|
|
| How to Exercise and Sell: |
|
In connection with the requirements set forth in Section 4(b) of the SAR Agreement, Participant must exercise Participant’s SAR through the Fidelity web site: 401k.fidelity.com |
|
|
|
|
Participant may sell Participant’s underlying shares through the Fidelity web site or have Participant’s shares transferred to Participant’s stockbroker and sell through Participant’s stockbroker. The fees for
selling vary among stockbrokers but may be less expensive than the fees charged by Fidelity. |
2
CRAY INC.
2013 EQUITY INCENTIVE PLAN
STOCK APPRECIATION RIGHT AWARD AGREEMENT
Unless otherwise defined in this Stock Appreciation Right Award Agreement (this “Agreement”), any capitalized terms used herein will
have the meaning ascribed to them in the Cray Inc. (“Cray”) 2013 Equity Incentive Plan (the “Plan”).
Participant has been granted Stock Appreciation Rights (“SARs”), subject to the terms and conditions of the Plan, the Notice of Stock
Appreciation Right Award (the “Notice”) and this Agreement, including any special terms imposed by the Committee for non U.S. jurisdictions.
1. Vesting Rights. Subject to the applicable provisions of the Plan and this Agreement, this SAR may be exercised, in whole or
in part, in accordance with the schedule set forth in the Notice.
2. Grant of SAR. The Participant named in the Notice has
been granted a SAR for the number of Shares set forth in the Notice at the exercise price per Share in U.S. dollars set forth in the Notice (the “Exercise Price”). Upon exercise and subject to the terms and conditions of the
Plan and this Agreement, the Company will issue Shares or, in Cray’s sole discretion, cash, having a value equal to (a) the difference between the Fair Market Value on the date of exercise over the Exercise Price multiplied by (b) the
number of Shares with respect to which the SAR is being exercised (subject to any maximum number of Shares that may be issuable as specified in the Notice). In the event of a conflict between the terms and conditions of the Plan and the terms and
conditions of this Agreement, the terms and conditions of the Plan will prevail.
3. Termination Period.
(a) General Rule. Except as provided below, and subject to the Plan, this SAR may be exercised for three months after
Participant’s Termination. In no event will this SAR be exercised later than the Expiration Date set forth in the Notice.
(b)
Death; Disability. Unless provided otherwise in the Notice, upon Participant’s Termination by reason of his or her death or “permanent and total disability” as described in the Plan, or if a Participant dies within three months
of the Termination Date, the SAR may be exercised for twelve months after the Termination Date, provided that in no event will the SAR be exercised later than the Expiration Date set forth in the Notice. Unless provided otherwise in the Notice, upon
Participant’s Termination by reason of his or her Disability (other than a “permanent and total disability”), the SAR may be exercised for twelve months after the Termination Date, provided that in no event will the SAR be exercised
later than the Expiration Date set forth in the Notice.
(c) Cause. Upon Participant’s Termination for Cause (as defined in
the Plan), the SAR will expire on such date of Participant’s Termination Date.
(d) Termination. For purposes of these
SARs, Participant’s service will be considered terminated as of the date Participant is no longer providing services to Cray, its Parent or one of its Subsidiaries (regardless of the reason for such termination and whether or not later found to
be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any) (the “Termination Date”). The Committee shall have the exclusive
discretion to determine when Participant is no longer actively providing services for purposes of the SARs (including whether Participant may still be considered to be providing services while on an approved leave of absence). Unless otherwise
provided in this Agreement or determined by Cray, Participant’s right to vest in the SARs under the Plan, if any, will terminate as of the Termination Date and will not be extended by any notice period (e.g.,
3
Participant’s period of services would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the
jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any). Following the Termination Date, Participant may exercise the SARs only as set forth in the Notice and this Section, provided that the period
(if any) during which Participant may exercise the SARs after the Termination Date, if any, will commence on the date Participant ceases to provide services and will not be extended by any notice period mandated under employment laws in the
jurisdiction where Participant is employed or terms of Participant’s employment agreement, if any. If Participant does not exercise the SARs within the termination periods set forth in this Section, the SARs shall terminate in its entirety. In
no event, may the SARs be exercised after the Expiration Date of the SARs as set forth in the Notice.
4. Exercise of
SAR.
(a) Right to Exercise. This SAR is exercisable during its term in accordance with the Vesting Schedule set
forth in the Notice and the applicable provisions of the Plan and this Agreement. In the event of Participant’s death, Disability, Termination for Cause or other Termination, the exercisability of the SAR is governed by the applicable
provisions of the Plan, the Notice and this Agreement.
(b) Method of Exercise. This SAR is exercisable by delivery of an exercise
notice (the “Exercise Notice”), which will state the election to exercise the SAR, the number of Shares in respect of which the SAR is being exercised (the “Exercised SARs”), and such other
representations and agreements as may be required by Cray pursuant to the provisions of the Plan. The Exercise Notice will be delivered in person, by mail, via electronic mail or facsimile or by other authorized method to Cray or other person
designated by Cray. The Exercise Notice will be accompanied by payment of the aggregate Exercise Price as to all the Exercised Shares together with any Tax-Related Items (as defined in Section 7(a) below). The SAR will be deemed to be exercised
upon receipt by Cray of such fully executed Exercise Notice accompanied by such aggregate Exercise Price and payment of any Tax-Related Items.
(c) No Shares or cash, where settlement is in cash, will be issued pursuant to the exercise of the SAR unless such issuance and exercise
complies with all relevant provisions of law and the requirements of any stock exchange or quotation service upon which the Shares are then listed. Assuming such compliance, for income tax purposes the Exercised SARs will be considered transferred
to Participant on the date the SAR is exercised with respect to such Exercised SARs.
5. Non-Transferability of SAR. This
SAR may not be sold, assigned, transferred, pledged, hypothecated, or otherwise disposed of other than by will or by the laws of descent or distribution or court order and may be exercised during the lifetime of Participant only by Participant or
unless otherwise permitted by the Committee on a case-by-case basis. The terms of the Plan and this Agreement will be binding upon the executors, administrators, heirs, successors and assigns of Participant.
6. Term of SAR. This SAR will in any event expire on the expiration date set forth in the Notice, which date is 10 years
after the Date of Grant.
7. Tax Consequences.
(a) Exercising the SAR. Participant acknowledges that, regardless of any action taken by Cray or a Parent or Subsidiary employing or
retaining Participant (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax related items related to Participant’s participation
in the Plan and legally applicable to Participant (“Tax-Related Items”) is and remains Participant’s responsibility and may exceed the amount actually withheld by Cray or the Employer. Participant further acknowledges
that Cray and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the SAR, including, but not limited to, the grant, vesting or exercise of the SAR, the
subsequent sale of Shares acquired pursuant to such
4
exercise and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the SAR to reduce or eliminate
Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if Participant is subject to Tax-Related Items in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax
withholding event, as applicable, Participant acknowledges that Cray and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to the relevant taxable or tax withholding event, as applicable, Participant agrees to make adequate arrangements satisfactory to Cray
and/or the Employer to satisfy all Tax-Related Items. In this regard, Participant authorizes Cray and/or the Employer, or their respective agents, at their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a
combination of the following:
| |
(i) |
withholding from Participant’s wages or other cash compensation paid to Participant by Cray and/or the Employer; or |
| |
(ii) |
where settlement of the SAR is in cash, withholding from the cash settlement amount; |
| |
(iii) |
withholding from proceeds of the sale of Shares acquired at exercise of the SAR either through a voluntary sale or through a mandatory sale arranged by Cray (on Participant’s behalf pursuant to this authorization)
without further consent; or |
| |
(iv) |
withholding in Shares to be issued upon exercise of the SAR, provided Cray only withholds from the amount of Shares necessary to satisfy the minimum statutory withholding amount; or |
| |
(v) |
any other arrangement approved by the Committee. |
Depending on the withholding method, Cray
may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates, including maximum applicable rates, in which case Participant will receive a refund of any
over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, Participant is deemed
to have been issued the full number of Shares issued upon exercise of the SARs; notwithstanding that a number of the Shares are held back solely for the purpose of paying Tax-Related Items. The Fair Market
Value of these Shares, determined as of the effective date of the SAR exercise, will be applied as a credit against Tax-Related Items withholding.
Finally, Participant agrees to pay to Cray or the Employer any amount of Tax-Related Items that Cray or the Employer may be required to
withhold or account for as a result of Participant’s participation in the Plan that cannot be satisfied by the means previously described. Cray may refuse to issue or deliver the Shares, cash, if settlement of the SAR is in cash, or the
proceeds of the sale of Shares, if Participant fails to comply with his or her obligations in connection with Tax-Related Items.
8.
Nature of Grant. By accepting the SAR, Participant acknowledges, understands and agrees that:
(a) the Plan is
established voluntarily by Cray, it is discretionary in nature, and may be amended, suspended or terminated by Cray at any time, to the extent permitted by the Plan;
5
(b) the grant of the SAR is voluntary and occasional and does not create any contractual or other
right to receive future grants of equity, or benefits in lieu of equity, even if equity has been granted in the past;
(c) all decisions
with respect to future SAR or other grants, if any, will be at the sole discretion of Cray;
(d) the SAR grant and Participant’s
participation in the Plan will not create a right to employment or be interpreted as forming an employment or service contract with Cray, the Employer or any Parent or Subsidiary;
(e) Participant is voluntarily participating in the Plan;
(f) the SAR and any Shares or cash, where settlement of the SAR is in cash, acquired under the Plan are not intended to replace any pension
rights or compensation;
(g) the SAR and any Shares or cash, where settlement of the SAR is in cash, acquired under the Plan and the
income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or
welfare benefits or similar payments;
(h) the future value of the Shares underlying the SAR is unknown, indeterminable, and cannot be
predicted with certainty;
(i) if the underlying Shares do not increase in value, the SAR will have no value;
(j) if Participant exercises the SAR and acquires Shares, the value of such Shares may increase or decrease in value, even below the Exercise
Price;
(k) no claim or entitlement to compensation or damages will arise from forfeiture of the SAR resulting from Participant’s
Termination, and in consideration of the grant of the SAR to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against Cray, any Parent or Subsidiary or the Employer, waives his or her ability,
if any, to bring any such claim, and releases Cray, any Parent or Subsidiary and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan,
Participant will be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim;
(l) unless otherwise provided in the Plan or by Cray in its discretion, the SAR and the benefits evidenced by this Agreement do not create any
entitlement to have the SAR or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Shares; and
(m) the following provisions apply only if Participant is providing services outside the United States:
| |
(i) |
the SAR and the Shares subject to the SAR or cash, where settlement of the SAR is in cash, are not part of normal or expected compensation or salary for any purpose; |
| |
(ii) |
Participant acknowledges and agrees that neither Cray, the Employer nor any Parent or Subsidiary will be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States
Dollar that may affect the value of the SAR or of any amounts due to Participant pursuant to the exercise of the SAR or the subsequent sale of any Shares acquired upon exercise. |
6
9. No Advice Regarding Grant. Cray is not providing any tax, legal or financial
advice, nor is Cray making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares or the payment of cash, where settlement of the SAR is in cash. Participant is
hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
10. Data Privacy. Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or
other form, of Participant’s personal data as described in this Agreement and any other SAR grant materials by and among, as applicable, the Employer, Cray and any Parent or Subsidiary of for the exclusive purpose of implementing, administering
and managing Participant’s participation in the Plan.
Participant understands that Cray and the Employer may hold
certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any
shares of stock or directorships held in Cray, details of all SARs or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of
implementing, administering and managing the Plan.
Participant understands that Data will be transferred to Fidelity Stock
Plan Services, LLC or its affiliates or such other stock plan service provider as may be selected by Cray in the future, which is assisting Cray with the implementation, administration and management of the Plan. Participant understands that the
recipients of Data may be located in the United States or elsewhere, and that the recipient’s country (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that
if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative. Participant authorizes Cray, Fidelity Stock
Plan Services, LLC and its affiliates, and any other possible recipients which may assist Cray (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer Data, in electronic or
other form, for the sole purposes of implementing, administering and managing Participant’s participation in the Plan. Participant understands that Data will be held only as long as is necessary to implement, administer and manage
Participant’s participation in the Plan. Participant understands that if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any
necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands that he or she is providing the consents
herein on a purely voluntary basis. If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected; the only adverse
consequence of refusing or withdrawing Participant’s consent is that Cray would not be able to grant Participant stock appreciation rights or other equity awards or administer or maintain such awards. Therefore, Participant understands that
refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he
or she may contact his or her local human resources representative.
11. Language. If Participant has received this
Agreement, or any other document related to the SAR and/or the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control. Notwithstanding
any provisions in this Agreement, the SAR will be subject to any special terms and conditions imposed by the Committee for non U.S. jurisdictions.
7
12. Imposition of Other Requirements. Cray reserves the right to impose other
requirements on Participant’s participation in the Plan, on the SAR and on any Shares purchased upon exercise of the SAR, to the extent Cray determines it is necessary or advisable for legal or administrative reasons, and to require Participant
to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
13. Acknowledgement.
Cray and Participant agree that the SAR is granted under and governed by the Notice, this Agreement and by the provisions of the Plan (incorporated herein by reference). Participant: (i) acknowledges receipt of a copy of the Plan and the Plan
prospectus, (ii) represents that Participant has carefully read and is familiar with their provisions, and (iii) hereby accepts the SAR subject to all of the terms and conditions set forth herein and those set forth in the Plan and the
Notice.
14. Entire Agreement; Enforcement of Rights. This Agreement, the Plan and the Notice constitute the entire
agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Any prior agreements, commitments or negotiations concerning the settlement of SARS hereunder are superseded. No
modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the parties to this Agreement. The failure by either party to enforce any rights under this
Agreement will not be construed as a waiver of any rights of such party.
15. Compliance with Laws and Regulations. The
issuance of Shares and any restriction on the sale of Shares and the payment of cash, where settlement is in cash, will be subject to and conditioned upon compliance by Cray and Participant with all applicable state, federal and local laws and
regulations and with all applicable requirements of any stock exchange or automated quotation system on which Cray’s Shares may be listed or quoted at the time of such issuance or transfer.
16. Severability. If one or more provisions of this Agreement are held to be unenforceable, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Agreement, (ii) the balance of this Agreement
will be interpreted as if such provision were so excluded and (iii) the balance of this Agreement will be enforceable in accordance with its terms.
17. Governing Law and Venue. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the
parties hereto will be governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.
Any and all disputes relating to, concerning or arising from this Agreement, or relating to, concerning or arising from the relationship
between the parties evidenced by the Plan or this Agreement, will be brought and heard exclusively in the United States District Court for the Western District of Washington or the Washington Superior Court, King County. Each of the parties hereby
represents and agrees that such party is subject to the personal jurisdiction of said courts; hereby irrevocably consents to the jurisdiction of such courts in any legal or equitable proceedings related to, concerning or arising from such dispute,
and waives, to the fullest extent permitted by law, any objection which such party may now or hereafter have that the laying of the venue of any legal or equitable proceedings related to, concerning or arising from such dispute which is brought in
such courts is improper or that such proceedings have been brought in an inconvenient forum.
8
18. No Rights as Employee, Director or Consultant. Nothing in this Agreement will
affect in any manner whatsoever the right or power of Cray, or a Parent or Subsidiary, to terminate Participant’s service, for any reason, with or without Cause.
19. Consent to Electronic Delivery of all Plan Documents and Disclosures. By Participant’s signature and the signature of
Cray’s representative on the Notice, Participant and Cray agree that the SAR is granted under and governed by the terms and conditions of the Plan, the Notice and this Agreement. Participant has reviewed the Plan, the Notice and this Agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior to executing the Notice, and fully understands all provisions of the Plan, the Notice and this Agreement. Participant hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Committee upon any questions relating to the Plan, the Notice and this Agreement. Participant further agrees to notify Cray upon any change in the residence address indicated on the Notice. By acceptance
of the SAR, Participant agrees to participate in the Plan through an on-line or electronic system established and maintained by Cray or a third party designated by Cray and consents to the electronic delivery of the Notice, this Agreement, the Plan,
account statements, Plan prospectuses required by the U.S. Securities and Exchange Commission, U.S. financial reports of Cray, and all other documents that Cray is required to deliver to its security holders (including, without limitation, annual
reports and proxy statements) or other communications or information related to the SAR and current or future participation in the Plan. Electronic delivery may include the delivery of a link to Cray intranet or the internet site of a third party
involved in administering the Plan, the delivery of the document via e-mail or such other delivery determined at Cray’s discretion. Participant acknowledges that Participant may receive from Cray a paper copy of any documents delivered
electronically at no cost if Participant contacts Cray by telephone, through a postal service at 901 Fifth Avenue, Suite 1000, Seattle, Washington, 98164 or electronic mail or other electronic medium. Participant further acknowledges that
Participant will be provided with a paper copy of any documents delivered electronically if electronic delivery fails; similarly, Participant understands that Participant must provide on request to Cray or any designated third party a paper copy of
any documents delivered electronically if electronic delivery fails. Also, Participant understands that Participant’s consent may be revoked or changed, including any change in the electronic mail address to which documents are delivered (if
Participant has provided an electronic mail address), at any time by notifying Cray of such revised or revoked consent by telephone, postal service at 901 Fifth Avenue, Suite 1000, Seattle, Washington, 98164 or electronic mail or other electronic
medium. Finally, Participant understands that Participant is not required to consent to electronic delivery.
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