ex4-1



 



Exhibit 4.1


CONSULTING CONTRACT


This Agreement, dated as of December 14, 2001, is between Cray Inc., a
Washington corporation located at 411 First Avenue South, Suite 600, Seattle,
WA, U.S.A. 98104-2860 (“Cray”), and Alan Kay, a consultant located at 1209
Grand Central Avenue, Glendale, CA 91291 (“Alan Kay”).


WHEREAS, Cray has requested Alan Kay to provide certain computer software
services regarding the development of high level programming environments for
high performance computers and Alan Kay is willing to provide such services.


NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement, the parties agree as follows:


1. Services.


1.1 Scope of Work. Alan Kay shall furnish the necessary facilities, equipment
and services for performance of Alan Kay’s performance as described in Exhibit
A, Statement of Work (the “Phase I”). Cray shall provide such assistance as
Alan Kay and Cray agree. As this Agreement contemplates that it shall cover a
number of separate and/or related projects, the parties may modify, supplement
or otherwise add additional services by agreeing to additional Scopes of Work.


1.2 Timing. Alan Kay use its best efforts to complete the Phase I as mutually
agreed and set forth on Exhibit A, and to complete future projects as may be
set forth in the applicable Statement of Work.


1.3 Completion. Phase I will be deemed completed upon mutual agreement of the
parties. Upon completion, Alan Kay shall deliver such deliverables as set out
in the Phase I Statement of Work. Future Statements of Work shall define the
applicable deliverables, if any.


2. Fee. For Phase I, Cray shall deliver to Alan Kay 75,000 shares
of its Common Stock, such delivery to be pursuant to Cray’s Registration
Statement on Form S-3 No. 333-46092, and completed as soon as practicable
following execution of this Agreement. Cray shall make such filings and take
such actions so that such shares are freely tradeable on the public securities
markets


3. Project Management. To facilitate communications and effective management
of the Phase I, the parties have appointed the following individuals as Project
Managers:

		
	
	
	
	
	Cray:	 Burton Smith
	
	
	
	

	Consultant:	Alan Kay



These individuals shall have authority to agree to changes in the Scope of Work
and schedule and matters pertaining to the Phase I and to add additional Scopes
of Work as may be appropriate.


4. Proprietary Information.


4.1 Confidentiality. Both parties agree to maintain all Proprietary
Information in strict confidence, not to make use thereof other than for the
performance of this Agreement, to release it only to employees who have a
reasonable need to know the same, and not to release or disclose it to any
third parties, without the prior written


 








 



consent of the disclosing party, provided that any third parties to whom Proprietary Information is released
shall first have entered into a written confidentiality agreement, obligating
the third party to both Cray and Alan Kay and which contains substantially
equivalent confidentiality obligations of non-use and nondisclosure as the
provisions of this Section 4.


4.2 Ownership. All Proprietary Information and any copies thereof shall remain
the property of the disclosing party, and no license or other rights are
granted or implied hereby. The receiving party shall, according to the
disclosing party’s request, return to the disclosing party or destroy the
original and all copies of tangible Proprietary information.


4.3 Obligations. The obligation under this Section 4 shall survive the
termination or expiration of this Agreement for five (5) years from the date of
termination or expiration.


4.4 Equitable Remedies. The parties acknowledge and agree that due to the
unique nature of the Proprietary Information, there can be no adequate remedy
at law for any breach of the obligations hereunder, that any such breach may
result in irreparable harm to the non-breaching party, and therefore, upon any
such breach or any threat thereof, the non-breaching party shall be entitled to
appropriate equitable relief in addition to whatever remedies it might have at
law.


4.5 Definition. “Proprietary Information” shall mean any information that is
controlled by a party and identified as proprietary and confidential and that
is disclosed by a party to the other under this Agreement. Written Proprietary
Information shall be clearly marked or labeled “PROPRIETARY” or “CONFIDENTIAL.”
All oral disclosures of Proprietary information shall be identified as such
upon disclosure and confirmed, in writing, by the disclosing party within
thirty (30) days of the disclosure. In case of disagreement to confidentiality
or the contents, the receiving party must make an objection thereto, in
writing, within ten (10) days of receipt of written disclosure or confirmation.
The term “Proprietary Information” shall not include any information that: (i)
is now or hereafter in the public domain or otherwise becomes available to the
public other than by breach of this Agreement by the receiving party; (ii) has
been rightfully in the receiving party’s possession prior to receipt from the
disclosing party; (iii) is rightfully received by the receiving party from a
third party; (iv) is independently developed by the receiving party, (v) is
authorized in writing by the disclosing party to be released or disclosed; (vi)
is furnished by the disclosing party to a third party without a duty of
confidentiality; or (vii) is disclosed under operation of law after the
receiving party notifies the disclosing party so that the disclosing party may
contest the disclosure or obtain a protective order for such disclosure.



Notwithstanding the foregoing, all Cray source codes to which Alan Kay has
access, compilers and other programs and tools, are “Proprietary Information”
of Cray within the meaning of this Section 4.


5. Ownership of Intellectual Property. During the performance of this
Agreement, Alan Kay directly or indirectly will generate the deliverables
pursuant to Exhibit A and may generate other ideas, inventions, improvements,
copyrightable materials, patentable concepts and other information of value
which is derived directly from Kay’s efforts under this Agreement (together,
the “Intellectual Property”). Alan Kay hereby grants to Cray a perpetual,
non-exclusive, fully paid, royalty free license to copy, use, install,
modify,distribute and sublicense the Intellectual Property, including


 








 



without limitation the inclusion of all or any part of the Intellectual Property in
products, software and services sold, licensed or provided by Cray to third
parties for compensation. To the extent that the Intellectual Property is open
source software that may be used without limitation on its inclusion in Cray
products, such as pursuant to a Squeak license, then to that extent that
license would satisfy the requirements of this section.


6. Termination. Either party may terminate this Agreement upon one month’s
prior written notice, provided that unless mutually agreed, Phase I may not be
terminated for the first three months following execution of this Agreement.
Either party may terminate this Agreement immediately upon the material default
of the other party of its obligations under this Agreement.


7. Miscellaneous.


7.1 Assignment and Delegations. The parties agree that this Agreement is not
assignable in whole or in part by either of them, nor may Alan Kay delegate any
of its responsibilities hereunder without the prior written consent of Cray.
This Agreement shall inure to the benefit of, and be enforceable by and be
binding upon, each party’s successors.


7.2 Legal Relationship. This Agreement shall not be interpreted or construed
as establishing anything other than an independent contractor relationship, and
no employee, partnership, joint venture or other arrangement shall be inferred
from this Agreement.


7.3 Notices. Any notices, consents or requests given hereunder shall be
sufficient if in writing or if personally delivered or if sent by registered or
certified mail, postage prepaid, return receipt requested, to the addresses
first set forth above. The parties may designate a different place for notice
in the manner described in this Section. Notices shall be effective as of the
date of personal delivery or, if mailed, five business days after the deposit
of the same in the mail.


7.4 Controlling Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Washington.


7.5 Entire Agreement; Separability. This Agreement reflects the entire
agreement and understanding of the parties, and its provisions may not be
amended or changed except by a writing signed by the party against whom enforcement of the
amendment or change is sought. No waiver of any breach shall constitute a
subsequent waiver of any subsequent breach, and if any provision of this
Agreement shall be deemed invalid, the remaining provisions shall remain
enforceable.


IN WITNESS WHEREOF, the parties hereby sign and deliver this Agreement as of
the date first above written.



	 	 	 	 	 
	CRAY INC.	 	
Consultant
	
	
	
	


	By	/s/	 	
By	/s/
	
         	
	 	 	

	 	Authorized Officer	 	 	Alan Kay
	Tel: 206-701-2000	 	
Tel: 818-332-3003
	Fax: 206-701-2500	 	
Fax: 818-244-9761



 








 





Exhibit A


STATEMENT OF WORK


Description of services that may be performed by Consultant:


Consultant will perform original research of object-oriented systems on various
supercomputer architectures with the intention to capture the software mind
share of super computer users worldwide.


Consultant will provide strategic overview and direction of major object
oriented environments.


Consultant will provide tactical insight into object oriented technology in use
today and contribute to the formulation of an object oriented technology
strategy for Cray Inc.


Consultant will mentor the culture in the industry and contribute to the
formulation of a sales strategy, identify opportunities for new business,
provide contacts and make introductions if appropriate.


The Spirit of the Initiative:


Computering is difficult... Supercomputering is super difficult.


Therefore, Cray is looking for visionary ideas about making complex systems
more approachable for software engineering.


Cray is taking the necessary steps to fully embrace, further its progress, and
take the lead by investigating state of the art object oriented systems and
their applicability to supercomputers.


More specifically, Cray is actively seeking to collaborate with object oriented
researchers worldwide and is currently involved in the teaming of some of the
most preeminent object oriented researchers to address the many issues that
make supercomputers difficult to use.


Cray intends to attract, employ, fund, support and in other various and
meaningful ways, forward the vision of making complex systems easier to use
through the use of object oriented methodology.


Original research will include, but is not limited to, the development of
systems, parallel programming languages and compilers, operating systems,
schedulers, runtime, middleware, libraries, integrated programming
environments, user application tools, and tools for parallel and distributed
computing systems.