EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
CRAY INC.
ARTICLE I
Name
The name of this Corporation is Cray Inc.
ARTICLE II
Capital Stock
A. Authorized Capital. The Corporation is authorized to issue a total
of one hundred twenty-five million (125,000,000) shares, consisting of one
hundred twenty million (120,000,000) shares of $.01 par value to be designated
"Common Stock" and five million (5,000,000) shares of $.01 par value to be
designated "Preferred Stock." Subject to any rights expressly granted to
Preferred Stock issued pursuant to Paragraph B of this Article, the Common Stock
shall have all the rights ordinarily associated with common shares, including
but not limited to general voting rights, general rights to dividends, and
liquidation rights. The Preferred Stock shall have the rights and preferences
described in Paragraph B of this article or in a resolution of the Board of
Directors adopted pursuant to Paragraph B.
B. Issuance of Preferred Stock in Series. The Preferred Stock may be
issued from time to time in one or more series in any manner permitted by law
and these Restated Articles of Incorporation, as determined from time to time by
the Board of Directors and stated in the resolution or resolutions providing for
its issuance, prior to the issuance of any shares thereof. The Board of
Directors shall have the authority to fix and determine, subject to the
provisions hereof, the rights and preferences of the shares of any series so
established. Unless otherwise provided in the resolution establishing a series
of shares of Preferred Stock, prior to the issuance of any shares of a series so
established or to be established, the Board of Directors may by resolution amend
the relative rights and preferences of the shares of such series, and, after the
issuance of shares of a series whose number has been designated by the Board of
Directors, the resolution establishing the series may be amended by the Board of
Directors to decrease (but not below the number of shares of such series then
outstanding) the number of shares of that series.
ARTICLE III
No Preemptive Rights
Except as may otherwise be provided by the Board of Directors, no
holder of any shares of this Corporation shall have any preemptive right to
purchase, subscribe for or otherwise acquire any securities of this Corporation
of any class or kind now or hereafter authorized.
ARTICLE IV
Cumulative Voting
There shall be no cumulative voting of shares in this Corporation.
ARTICLE V
Directors
A. Number. The Corporation shall have at least six directors, the
actual number to be prescribed in the Bylaws. Subject to the minimum requirement
of six directors, the number of directors may be increased or decreased from
time to time by amendment of the Bylaws, but no decrease shall have the effect
of shortening the term of any incumbent director.
B. Staggered Terms. The Board of Directors shall be divided into three
classes of directors, with said classes to be as equal in number as may be
possible. Initially, two directors shall be assigned to Class 1, two directors
shall be assigned to Class 2, and two directors shall be assigned to Class 3.
Any director or directors in excess of the number divisible by three shall be
first assigned to Class 1 and any additional director shall be assigned to Class
2, as the case may be. (For example, if there are eight directors, the seventh
director shall be in Class 1 and the eighth director in Class 2.) At the first
election of directors to such classified Board of Directors, each Class 1
Director shall be elected to serve until the next ensuing annual meeting of
shareholders, each Class 2 Director shall be elected to serve until the second
ensuing annual meeting of shareholders and each Class 3 Director shall be
elected to serve until the third ensuing annual meeting of shareholders. At each
annual meeting of shareholders following the meeting at which the Board of
Directors is initially classified, the number of directors equal to the number
of directors in the class whose term expires at the time of such meeting shall
be elected to serve until the third ensuing annual meeting of shareholders.
Notwithstanding any of the foregoing provisions of this Article V, directors
shall serve until their successors are elected and qualified or until their
earlier death, resignation or removal from office, or until there is a decrease
in the number of directors; provided, however, that no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director.
C. Removal. The directors of this Corporation may be removed only for
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cause, in the manner provided by the Bylaws, by the affirmative vote of the
holders of not less than two-thirds of the shares entitled to elect the director
or directors whose removal is being sought.
ARTICLE VI
Limitation on Director Liability
To the fullest extent permitted by Washington law and subject to the
Bylaws of this Corporation, a director of this Corporation shall not be liable
to the Corporation or its shareholders for monetary damages for his or her
conduct as a director. Any amendment to or repeal of this Article VI shall not
adversely affect any right of a director of this Corporation hereunder with
respect to any acts or omissions of the director occurring prior to amendment or
repeal.
ARTICLE VII
Indemnification of Directors
To the fullest extent permitted by its Bylaws and Washington law, this
Corporation is authorized to indemnify any of its directors. The Board of
Directors shall be entitled to determine the terms of indemnification, including
advance of expenses, and to give effect thereto through the adoption of Bylaws,
approval of agreements, or by any other manner approved by the Board of
Directors. Any amendment to or repeal of this Article VII shall not adversely
affect any right of an individual with respect to any right to indemnification
arising prior to such amendment or repeal.
ARTICLE VIII
Registered Office and Registered Agent
The name of the registered agent of this Corporation and the street
address of its registered office are as follows:
JGB Service Corporation
3600 One Union Square
600 University Street
Seattle, WA 98101
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ARTICLE IX
Bylaws
The Board of Directors shall have the power to adopt, amend or repeal
the Bylaws of this Corporation subject to approval by a majority of the
Continuing Directors (as defined in Section A of Article XII hereof); provided,
however, that the Board of Directors may not repeal or amend any bylaw that the
shareholders expressly have provided may not be amended or repealed by the Board
of Directors. The shareholders shall also have the power to adopt, amend or
repeal the Bylaws of this Corporation by the affirmative vote of the holders of
not less than two-thirds of the outstanding shares entitled to vote thereon and,
to the extent, if any, provided by resolution adopted by the Board of Directors
authorizing the issuance of a class or series of Preferred Stock, by the
affirmative vote of the holders of not less than two-thirds of the outstanding
shares of Common Stock and/or of such class or series of Preferred Stock, voting
as separate voting groups.
ARTICLE X
Special Meetings of Shareholders
The Chairman of the Board of Directors, the President or a majority of
the Board of Directors may call special meetings of the shareholders for any
purpose. Further, for so long as the Corporation is a "public company" under
Title 23B RCW, a special meeting of the shareholders shall be held if the
holders of not less than 30% of all the votes entitled to be cast on any issue
proposed to be considered at such special meeting have dated, signed and
delivered to the Secretary of this Corporation one or more written demands for
such meeting, describing the purpose or purposes for which it is to be held;
provided, however, that if the Corporation is not a "public company" under Title
23B RCW, the percentage of such votes required to call a special meeting shall
be 25%.
ARTICLE XI
Amendments to Restated Articles of Incorporation
This Corporation reserves, and the rights of the shareholders of this
Corporation are granted subject to, the right to amend or repeal any of the
provisions contained in these Restated Articles of Incorporation as follows:
A. Two-Thirds Requirement. Except as provided in Section B of this
Article XI, the Restated Articles of Incorporation may be amended or repealed
only upon the affirmative vote of the holders of at least two-thirds of the
outstanding shares entitled to vote thereon and, to the extent, if any, provided
by resolution adopted by the Board of Directors authorizing the issuance of a
class or series of Preferred Stock, by the affirmative vote of the holders of at
least two-thirds of the outstanding shares of
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Common Stock and/or of such class or series of Preferred Stock, voting as
separate voting groups.
B. Majority Voting. Notwithstanding the provisions of Section A of this
Article XI, if an amendment or repeal of a Section or Article of the Restated
Articles of Incorporation is approved by a majority of the Continuing Directors
(as defined in Section A of Article XII hereof), voting separately and as a
subclass of directors, such amendment or repeal shall require the affirmative
vote of the holders of at least a majority of the outstanding shares entitled to
vote thereon and, to the extent, if any, provided by resolution adopted by the
Board of Directors authorizing the issuance of a class or series of Preferred
Stock, by the affirmative vote of the holders of at least a majority of the
outstanding shares of Common Stock and/or of such class or series of Preferred
Stock, voting as separate voting groups.
ARTICLE XII
Special Voting Requirements
In addition to any affirmative vote required by law, by these Restated
Articles of Incorporation or otherwise, any "Business Combination" (as
hereinafter defined) involving this Corporation shall be subject to approval in
the manner set forth in this Article XII.
A. Definitions. For the purpose of this Article XII:
a. "Business Combination" means (i) a merger, share exchange
or consolidation of this Corporation or any of its Subsidiaries with any other
corporation; (ii) the sale, lease, exchange, mortgage, pledge, transfer or other
disposition or encumbrance, whether in one transaction or a series of
transactions, by this Corporation or any of its Subsidiaries of all or a
substantial part of this Corporation's assets otherwise than in the usual and
regular course of business; or (iii) any agreement, contract or other
arrangement providing for any of the foregoing transactions.
b. "Continuing Director" means any member of the Board of
Directors (i) who was a member of the Board of Directors on August 31, 1995, or
(ii) who is elected to the Board of Directors after August 31, 1995, after being
nominated by a majority of the Continuing Directors voting separately and as a
subclass of directors on such nomination.
c. "Subsidiary" means a domestic or foreign corporation, a
majority of the outstanding voting shares of which are owned, directly or
indirectly, by this Corporation.
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B. Vote Required for Business Combinations.
1. Except as provided in subsection 2 of this Section B, the
affirmative vote of the holders of not less than two-thirds of the outstanding
shares entitled to vote thereon and, to the extent, if any, provided by
resolution adopted by the Board of Directors authorizing the issuance of a class
or series of Preferred Stock, the affirmative vote of the holders of not less
than two-thirds of the outstanding shares of Common Stock and/or of such class
or series of Preferred Stock, voting as separate voting groups, shall be
required for the adoption or authorization of a Business Combination.
2. Notwithstanding subsection (1) of this Section 2, if a
Business Combination shall have been approved by a majority of the Continuing
Directors, voting separately and as a subclass of directors, such Business
Combination, if required to be approved by this Corporation's shareholders by
the Washington Business Corporation Act or these Restated Articles of
Incorporation, shall be approved only with the affirmative vote of the holders
of not less than a majority of the outstanding shares entitled to vote thereon
and, to the extent, if any, provided by resolution adopted by the Board of
Directors authorizing the issuance of a class or series of Preferred Stock, the
affirmative vote of the holders of not less than a majority of the outstanding
shares of Common Stock and/or such class or series of Preferred Stock, voting as
separate voting groups.
DATED: August 5, 2003
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