UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 10-K/A
/ X / ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the fiscal year ended December 31, 1996
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the transition period from to
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Commission File Number 0-17739
RAMTRON INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 84-0962308
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1850 Ramtron Drive, Colorado Springs, Colorado 80921
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (719) 481-7000
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock ($.01 par value)
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days. Yes / X / No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. / /
As of March 21, 1997, 36,996,742 shares of the Registrant's Common
Stock were outstanding. The aggregate market value of Registrant's Common
Stock held by non-affiliates (based upon the average bid and ask prices of the
Common Stock, as reported on the Nasdaq National Market system on March 21,
1997) was approximately $103,300,000.
DOCUMENTS INCORPORATED BY REFERENCE
The registrant's definitive proxy statement (the "Proxy Statement") to be
prepared pursuant to Schedule 14A and filed in connection with solicitation of
proxies for its Annual Meeting of Stockholders, to be held on May 29, 1997, is
incorporated by reference into Part III of this Annual Report on Form 10-K.
<PAGE>
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as a part of this report:
(1) Financial Statements. The following Consolidated Financial
Statements of the Company and the Report of Independent Accountants are
incorporated by reference from the indicated pages of the Company's 1996
Annual Report to Stockholders:
Report of Independent Public Accountants
Consolidated Balance Sheets as of December 31, 1996 and 1995
Consolidated Statements of Operation for the years ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Changes in Stockholders' Equity (Deficit)
for the years ended December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flow for the years ended
December 31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements
(2) Financial Statement Schedules
Schedule II: Valuation and Qualifying Accounts
All other schedules are omitted because they are not required, or not
applicable, or because the required information is included in the financial
statements or notes thereto.
3. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
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<C> <S>
3.1 Certificate of Incorporation of Registrant, as amended.
3.2 Bylaws of Registrant, as amended.
10.1 Registrant's Amended and Restated 1986 Stock Option Plan and
forms of Incentive Stock Option Agreement, Nonstatutory
Stock Option Agreement and Stock Purchase Agreement.(1)
10.2 Registrant's amended 1989 Nonstatutory Stock Option Plan and
forms of Nonstatutory Stock Option Agreement and Stock
Purchase Agreement.(2)
10.3 Form of Nonstatutory Stock Option Agreement for option grants
outside the 1986 Plan, including schedule identifying
optionees.(3)
10.4 Common Stock Purchase Option of Registrant dated October 4,
1989 issued to Global Alliance Pty. Ltd.(4)
10.5 Form of Invention and Non-Disclosure Agreement
between Registrant and employees.(5)
10.6 Indemnification Agreement dated March 7, 1990 between Oren L.
Benton and George J. Stathakis.(10)
10.7 Technology License Agreement dated October 25, 1991 between
Registrant and Racom Systems, Inc.(6)
10.8 Supply Agreement dated October 25, 1991 between Registrant
and Racom Systems, Inc.(6)
<PAGE>
10.9 Shareholders' Agreement dated October 25, 1991 among
Registrant, Racom Systems, Inc., AWA Limited and Intag
International Limited.(6)
10.10 Letter Agreement dated December 18, 1991 between Oren L.
Benton and George J. Stathakis.(6)
10.11 Hitachi-Ramtron Addendum to Letter of Intent dated August 24,
1992 between Registrant and Hitachi.(8)
10.12 Product Development Agreement between Racom Systems, Inc. and
Registrant dated September 17, 1992.(7)
10.13 Letter Agreement between Registrant and Lehman Brothers Inc.
dated July 21, 1993.(9)
10.14 Amendment to Technology License Agreement and Supply
Agreement between Registrant and Racom Systems, Inc. dated
March 31, 1994.(2)
*10.15 High-Density FRAM Cooperation Agreement between Registrant
and Hitachi, Ltd. dated April 25, 1994.(2)
*10.16 Memorandum of Understanding dated April 25, 1994 between the
Registrant and Hitachi.(11)
*10.17 Cooperative Agreement for License Manufacturing of FRAM
Product between Registration and Rohm Co., Ltd. dated
August 3, 1994.(2)
*10.18 Stock Purchase Agreement between Registrant, Intag
International Limited and Racom Systems, Inc. dated
November 14, 1994.(2)
10.19 First Amendment to Shareholders Agreement between Registrant,
Intag International Limited and Racom Systems, Inc. dated
November 14, 1994.(2)
*10.20 Second Amendment to Technology License Agreement and Supply
Agreement between Registrant, Intag International Limited and
Racom Systems, Inc. dated February 17, 1995.(2)
10.21 1995 Stock Option Plan and forms of Incentive Stock Option
Agreement and Nonstatutory Stock Option Agreement.(10)
10.22 Employment Agreement effective April 1, 1995 between the
Registrant and L. David Sikes.(10)
*10.23 Agreement for EDRAM Design and Purchase of Products dated
April 26, 1995 between the Registrant and IBM.(11)
*10.24 Memorandum for Payment under High-Density FRAM Cooperation
Agreement dated May 11, 1995 between the Registrant and
Hitachi.(11)
*10.25 Memorandum of Understanding dated May 8, 1995 among the
Registrant, Intag and Racom.(11)
10.26 Ramtron Employment Security and Incentive Programs Memorandum
dated May 12, 1995 and Amendment No. 1 to Incentive
Program.(10)
*10.27 Termination Agreement dated May 17, 1995 among the
Registrant, Nippon Steel and UMI.(11)
*10.28 Transit Foundry Agreement dated May 23, 1995 between EMS and
Nippon Steel.(11)
*10.29 FRAM Technology License Agreement dated July 31, 1995 between
the Registrant and Toshiba.(11)
10.30 Agreement for (1) Sale of Certain Ramtron Debt to BEA, (2)
Conversion of Such Transferred Debt and Conversion of Benton
and NEBF Debt into Ramtron Equity Interest and (3) Provision
of $12.0 Million Credit Facility to Ramtron dated July 28,
1995 among the Registrant; the Fund; Oren L. Benton and the
bankruptcy estates of CSI Enterprises, Inc., Energy Fuels,
Ltd., Oren L. Benton, Energy Fuels Exploration Co. and Nuexco
Trading Corporation; BEA; and Nordostschweizerische
Kraftwerks AG (NOK), Kernkraftwerk Gosgen-Daniken AG and
Kernkraftwerk Leibstadt AG.(10)
<PAGE>
*10.31 Symetrix/Ramtron Ferroelectric Cross License Agreement dated
as of August 11, 1995 between the Registrant and
Symetrix.(11)
10.32 Loan Agreement dated August 31, 1995 between the Registrant
and the Fund.(10)
10.33 Promissory Note dated August 31, 1995 in the maximum
principal amount of $12,000,000 made by the Registrant in
favor of the Fund.(10)
10.34 Warrant to Purchase 4,028,485 shares of Common Stock dated
August 31, 1995 issued by the Registrant to the Fund.(10)
10.35 Warrant to Purchase 1,861,216 shares of Common Stock dated
August 31, 1995 issued by the Registrant to the Oren Lee
Benton, Debtor in Possession.(10)
10.36 Agreement dated as of August 31, 1995 between Mr. Benton,
Debtor in Possession, and BEA.(10)
*10.37 First Amendment to Symetrix/Ramtron Ferroelectric Cross
License Agreement dated September 13, 1995 between the
Registrant and Symetrix.(11)
*10.38 Memorandum of Understanding dated September 21, 1995 between
the Registrant and Hitachi.(11)
*10.39 Amendment dated September 21, 1995 to High-Density FRAM
Cooperation Agreement between the Registrant and Hitachi.(11)
*10.40 Supplement-1 dated September 28, 1995 to Cooperative
Agreement for License Manufacturing of FRAM Product between
the Registrant and Rohm.(11)
10.41 Warrant to Purchase 1,100,000 shares of Common Stock dated
October 5, 1995 issued by the Registrant to the Oren Lee
Benton, Debtor in Possession.(10)
*10.42 FRAM Technology License Agreement dated December 19, 1995
between the Registrant and Fujitsu.(11)
*10.43 Memorandum of Understanding dated December 19, 1995 between
the Registrant and Fujitsu.(11)
*10.44 Amendment No. 2 to High-Density FRAM Cooperation Agreement
dated March 11, 1996 between the Registrant and Hitachi, Ltd.
*10.45 Amendment to Agreement dated August 30, 1996 between the
Registrant and Fujitsu.(12)
10.46 Amendment No. 1 to Registrant's 1995 Stock Option Plan dated
October 24, 1996.
10.47 Amendment No. 1 to Registrant's 1989 Nonstatutory Stock
Option Plan dated October 24, 1996.
10.48 Amendment No. 1 to Registrant's Amended and Restated 1986
Stock Option Plan dated October 24, 1996.
**10.49 (INTENTIONALLY OMITTED)
*10.50 FRAM License Agreement dated December 20, 1996 between the
Registrant and Samsung Electronics Co., Ltd.
11.1 Statement regarding computation of per share earnings.
23.1 Consent of Independent Public Accountants
27.1 Financial Data Schedule
<PAGE>
* Confidential treatment has been granted or requested with respect to
portions of this exhibit, and such confidential portions have been deleted and
separately filed with the Securities and Exchange Commission pursuant to Rule
24b-2 or Rule 406.
** Exhibit 10.49 has been intentionally omitted as it has been deemed not
material and the request for confidential treatment of portions of that
exhibit have been withdrawn.
- -----------
<FN>
(1) Incorporated by reference to the Company's Annual Report on Form 10-K
(Commission File No. 0-17739) for the year ended June 30, 1991, filed with the
Securities and Exchange Commission on September 30, 1991.
(2) Incorporated by reference to the Company's Annual Report on Form 10-K
(Commission File No. 0-17739) for the year ended December 31, 1994 filed with
the Securities and Exchange Commission on April 17, 1995.
(3) Incorporated by reference to Amendment No. 1 to Ramtron Holdings
Limited's Registration Statement on Form 20-F under cover of Form 8
(Commission File No. 0-17121) filed with the Securities and Exchange
Commission on November 14, 1988.
(4) Incorporated by reference to the Company's Annual Report on Form 10-K
(Commission File No. 0-17739) for the year ended June 30, 1990, filed with the
Securities and Exchange Commission on October 18, 1990.
(5) Incorporated by reference to Amendment No. 1 to the Company's Annual
Report on Form 10-K under cover of Form 8 (Commission File No. 0-17739) for
the year ended June 30, 1991, filed with the Securities and Exchange
Commission on November 6, 1991.
(6) Incorporated by reference to the Company's Registration Statement on Form
S-1 (Commission File No. 33-44952 1-3) filed with the Securities and Exchange
Commission on January 2, 1992.
(7) Incorporated by reference to the Company's Annual Report on Form 10-K
(Commission File No. 0-17739) for the year ended June 30, 1992 filed with the
Securities and Exchange Commission on September 28, 1992.
(8) Incorporated by reference to the Company's Annual Report on Form 10-K
(Commission File No. 0-17739) for the year ended December 31, 1992 filed with
the Securities and Exchange Commission on March 31, 1993.
(9) Incorporated by reference to the Company's Annual Report on Form 10-K
(Commission File No. 0-17739) for the year ended December 31, 1993 filed with
the Securities and Exchange Commission on March 31, 1994.
(10) Incorporated by reference to the Company's Form S-1 Registration
Statement (Commission File No. 33-99898) filed with the Securities and
Exchange Commission on December 1, 1995.
(11) Incorporated by reference to the Company's Amendment No. 2 to the Form
S-1 Registration Statement (Commission File No. 33-99898) filed with the
Securities and Exchange Commission on January 31, 1996.
(12) Incorporated by reference to the Company's Amendment No. 2 to the Form
10-Q (Commission File No. 0-17739) for the quarter ended September 30, 1996
and filed with the Securities and Exchange Commission on January 23, 1997.
</TABLE>
<PAGE>
(b) Reports on Form 8-K:
On January 24, 1996, the Registrant filed a report on Form 8-K. The item
reported was Item 5 - "Other Events."
(c) Exhibits - See the list of Exhibits under Item 14(a)3 of this Form 10-K.
(d) Financial Statement Schedules - See the list of Schedules under Item
14(a)2 of this Form 10-K.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Amendment No. 1 to this
annual report to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of El Paso, State of Colorado, on August 29, 1997.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
-----------------------
L. David Sikes
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Amendment No. 1 to this annual report has been signed by the following persons
on behalf of the Registrant and in the capacities and on the date indicated.
Signature Title Date
- -------------------------- ---------------------------- --------------
/S/ L. David Sikes
- -------------------------- Chairman and Chief Executive 8-29-97
L. David Sikes Officer
/S/ George J. Stathakis
- -------------------------- Director 8-29-97
George J. Stathakis
/S/ William G. Howard
- ------------------------- Director 8-29-97
William G. Howard
/S/ William G. Tull
- ------------------------- Director 8-29-97
William G. Tull
/S/ L. T. Womack
- ------------------------- Director 8-29-97
L. T. Womack
/S/ Michael L. Rothschild
- ------------------------- Director 8-29-97
Michael L. Rothschild
/S/ Greg B. Jones
- ------------------------- Director, President and 8-29-97
Greg B. Jones Chief Operating Officer
/S/ Richard L. Mohr
- ------------------------- Executive Vice President and 8-29-97
Richard L. Mohr Chief Financial Officer
BY-LAWS
OF
RAMTRON INTERNATIONAL CORPORATION
RESTATED
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, CO 80921
<PAGE>
BY-LAWS
TABLE OF CONTENTS
ARTICLE I - STOCKHOLDERS
SECTION 1.1 PLACE OF MEETINGS
SECTION 1.2 ANNUAL MEETING
SECTION 1.3 SPECIAL MEETINGS
SECTION 1.4 NOTICE OF MEETINGS
SECTION 1.5 VOTING LIST
SECTION 1.6 QUORUM
SECTION 1.7 ADJOURMENTS
SECTION 1.8 VOTING AND PROXIES
SECTION 1.9 ACTION AT MEETING
SECTION 1.10 ACTION WITHOUT MEETING
SECTION 1.11 NOTIFICATION OF BUSINESS TO BE TRANSACTED AT MEETING
SECTION 1.12 STOCK LEDGER
SECTION 1.13 INSPECTORS OF ELECTION
SECTION 1.14 ORGANIZATION
SECTION 1.15 ORDER OF BUSINESS
ARTICLE II - DIRECTORS
SECTION 2.1 GENERAL POWERS
SECTION 2.2 NUMBER; ELECTION AND QUALIFICATION
SECTION 2.3 ENLARGEMENT OF THE BOARD
SECTION 2.4 TENURE
SECTION 2.5 VACANCIES
SECTION 2.6 RESIGNATION
SECTION 2.7 REGULAR MEETINGS
SECTION 2.8 SPECIAL MEETINGS
SECTION 2.9 NOTICE OF SPECIAL MEETINGS
SECTION 2.10 MEETINGS BY TELEPHONE CONFERENCE CALLS
SECTION 2.11 QUORUM
SECTION 2.12 ACTION AT MEETING
SECTION 2.13 ACTION BY CONSENT
SECTION 2.14 REMOVAL
SECTION 2.15 COMMITTEES
SECTION 2.16 COMPENSATION OF DIRECTORS
ARTICLE III - OFFICERS
SECTION 3.1 ENUMERATION
SECTION 3.2 ELECTION
SECTION 3.3 QUALIFICATION
SECTION 3.4 TENURE
SECTION 3.5 RESIGNATION AND REMOVAL
SECTION 3.6 VACANCIES
SECTION 3.7 CHAIRMAN OF THE BOARD AND VICE CHAIRMAN OF THE BOARD
SECTION 3.8 PRESIDENT
SECTION 3.9 VICE PRESIDENTS
SECTION 3.10 SECRETARY AND ASSISTANT SECRETARIES
SECTION 3.11 TREASURER AND ASSISTANT TREASURERS
SECTION 3.12 SALARIES
<PAGE>
ARTICLE IV - CAPITAL STOCK
SECTION 4.1 ISSUANCE OF STOCK
SECTION 4.2 CERTIFICATES OF STOCK
SECTION 4.3 TRANSFERS
SECTION 4.4 LOST, STOLEN OR DESTROYED CERTIFICATES
SECTION 4.5 RECORD DATE
SECTION 4.6 DIVIDENDS
ARTICLE V - INDEMNIFICATION
ARTICLE VI - GENERAL PROVISIONS
SECTION 6.1 FISCAL YEAR
SECTION 6.2 CORPORATE SEAL
SECTION 6.3 WAIVER OF NOTICE
SECTION 6.4 VOTING OF SECURITIES
SECTION 6.5 EVIDENCE OF AUTHORITY
SECTION 6.6 CERTIFICATE OF INCORPORATION
SECTION 6.7 TRANSACTIONS WITH INTERESTED PARTIES
SECTION 6.8 SEVERABILITY
SECTION 6.9 PRONOUNS
ARTICLE VII - AMENDMENTS
SECTION 7.1 BY THE BOARD OF DIRECTORS
SECTION 7.2 BY THE STOCKHOLDERS
<PAGE>
BY-LAWS
OF
RAMTRON INTERNATIONAL CORPORATION
ARTICLE I - STOCKHOLDERS
1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time
to time by the Board of Directors or the President or, if not so designated,
at the registered office of the corporation.
1.2 ANNUAL MEETING. Annual meetings of stockholders shall be held at a time
and date designated by the Board of Directors for the purpose of electing
directors and transacting such other business as may properly be brought
before the meeting.
1.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Business transacted at
any special meeting of stockholders shall be limited to matters relating to
the purpose or purposes stated in the notice of meeting.
1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notices of all meetings
shall state the place, date and hour of the meeting. The notice of a special
meeting shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the corporation.
1.5 VOTING LIST. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours for a
period of at least 10 days prior to the meeting, at a place within the city
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time of the meeting, and
may be inspected by any stockholder who is present.
1.6 QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the holders of the majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote at the meeting, present in person or represented by proxy, shall
constitute a quorum for the transaction of business.
1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned to any other
time and to any other place at which a meeting of stockholders may be held
under these By-Laws by the stockholders present or represented at the meeting
and entitled to vote, although less than a quorum, or, if no stockholder is
present, by any officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of any
adjournment of less than 30 days if the time and place of the adjourned
meeting is announced at the meeting at which adjournment is taken, unless
after the adjournment a new record date is fixed for the adjourned meeting.
At the adjourned meeting, the corporation may transact any business which
might have been transacted at the original meeting.
<PAGE>
1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise
provided in the Certificate of Incorporation. Each stockholder of record
entitled to vote at a meeting of stockholders, or to express consent or
dissent to corporate action in writing without a meeting, may vote or express
such consent or dissent in person or may authorize another person or persons
to vote or act for him/her by written proxy executed by the stockholder or his
authorized agent and delivered to the Secretary of the corporation. No such
proxy shall be voted or acted upon after three years from the date of its
execution, unless the proxy expressly provides for a longer period.
1.9 ACTION AT MEETING. When a quorum is present at any meeting, the holders
of a majority of the stock present or represented and voting on a matter (or
if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the holders of a majority of the
stock of that class present or represented and voting on a matter) shall
decide any matter to be voted upon by the stockholders at such meeting, except
when a different vote is required by express provision of law, the Certificate
of Incorporation or these By-Laws. Any election by stockholders shall be
determined by a plurality of the votes cast by stockholders entitled to vote
at the election.
1.10 ACTION WITHOUT MEETING. Any action required or permitted to be taken at
any annual or special meeting of stockholders of the corporation may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
1.11 NOTIFICATION OF BUSINESS TO BE TRANSACTED AT MEETING. To be properly
brought before a meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors; (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors; or (c) otherwise properly brought before
the meeting by a stockholder entitled to vote at the meeting. Stockholders
intending to bring business before a meeting must give written notice to the
Secretary of the Corporation by the close of business at least 60 days in
advance of the meeting or 10 days after the date on which notice of such
meeting is first given to stockholders, whichever is later, either by personal
delivery or by United States mail, postage prepaid, return receipt requested.
Each such notice shall set forth (a) a brief description of each item of
business desired to be brought before the annual meeting; (b) the name and
address, as they appear on the Corporation's books of the stockholder
proposing such business; (c) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to bring such business
before the meeting; and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-laws to the contrary, no
business shall be conducted at a meeting except in accordance with the
procedures set forth in this Section 1.11. The Chairman of the meeting may
refuse to transact any business not properly brought before the meeting.
<PAGE>
1.12 STOCK LEDGER. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by section 1.5 of this Article I or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
1.13 INSPECTORS OF ELECTION. In advance of any meeting of stockholders, the
Board of Directors may appoint one or more persons (who shall not be
candidates for office) as inspectors of election to act at the meeting. If
inspectors are not so appointed, or if an appointed inspector fails to appear
or fails or refuses to act at a meeting, the Chairman of any meeting of
stockholders may, and on the request of any stockholder or his proxy shall,
appoint inspectors of election at the meeting. In the event of any dispute
between or among the inspectors, the determination of the majority of the
inspectors shall be binding.
1.14 ORGANIZATION. At each meeting of stockholders the Chairman of the Board
of Directors, if one shall have been elected, (or in his absence or if one
shall not have been elected, the President) shall act as Chairman of the
meeting. The Secretary (or in his absence or inability to act, the person
whom the Chairman of the meeting shall appoint as Secretary of the meeting)
shall act as Secretary of the meeting and keep the minutes thereof.
1.15 ORDER OF BUSINESS. The order and manner of transacting business at all
meetings of stockholders shall be determined by the Chairman of the meeting.
ARTICLE II - DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise
all of the powers of the corporation except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws. In the event of a vacancy in
the Board of Directors, the remaining directors, except as otherwise provided
by law, may exercise the powers of the full Board until the vacancy is filled.
2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall
constitute the whole Board of Directors shall be determined by resolution of
the stockholders or the Board of Directors, but in no event shall be less than
one. The number of directors may be decreased at any time and from time to
time either by the stockholders or by a majority of the directors then in
office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more directors. The
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors need not
be stockholders of the corporation.
2.3 ENLARGEMENT OF THE BOARD. The number of directors may be increased at
any time and from time to time by the stockholders or by a majority of the
directors then in office.
2.4 TENURE. Each director shall hold office until the next annual meeting
and until his successor is elected and qualified, or until his earlier death,
resignation or removal.
<PAGE>
2.5 VACANCIES. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy resulting from
an enlargement of the Board, may be filled by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office, and a director chosen to fill a
position resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until his successor
is elected and qualified, or until earlier death, resignation or removal.
2.6 RESIGNATION. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
2.7 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held
without notice at such time and place, either within or without the State of
Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made
shall be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
2.8 SPECIAL MEETINGS. Special meetings of the Board of Directors may be held
at any time and place, within or without the State of Delaware, designated in
a call by the Chairman of the Board, President, two or more directors, or by
one director in the event that there is only a single director in office.
2.9 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of
the directors calling the meeting. Notice thereof, stating the place, date
and time of the meeting, shall be given to each director either by mailing
written notice to his last known business or home address at least three (3)
business days in advance of the meeting, or personally or by telephone,
telegram, telex or similar means of communication on 24 hour notice, or on
such shorter notice as the person or persons calling such meeting deem
necessary or appropriate under exigent circumstances. A notice or waiver of
notice of a meeting of the Board of Directors need not specify the purposes of
the meeting.
2.10 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or any members of any
committee designated by the directors may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
2.11 QUORUM. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In the absence of
a quorum at any such meeting, a majority of the directors present may adjourn
the meeting from time to time without further notice other than announcement
at the meeting, until a quorum shall be present.
<PAGE>
2.12 ACTION AT MEETING. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these By-Laws.
2.13 ACTION BY CONSENT. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the
written consents are filed with the minutes of proceedings of the Board or
committee.
2.14 REMOVAL. Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then entitled to
vote at an election of directors, except that the directors elected by the
holders of a particular class or series of stock may be removed without cause
only by vote of the holders of a majority of the outstanding shares of such
class or series.
2.15 COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to consist of one or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members of the committee present at any meeting and not disqualified from
voting, whether or not he/she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors and subject to the
provisions of the General Corporation Law of the State of Delaware, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation and may authorize
the seal of the corporation to be affixed to all papers which may require it.
Each such committee shall keep minutes and make such reports as the Board of
Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these By-Laws for the Board of Directors.
2.16 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for
their services, including, without limitation, for their service on committees
of the Board of Directors, and such reimbursement for expenses of attendance
at meetings of the Board of Directors and meetings of committees of the Board
of Directors, as the Board of Directors may from time to time determine. No
such payment shall preclude any director from serving the corporation or any
of its parent or subsidiary corporations in any other capacity and receiving
compensation for such service.
ARTICLE III - OFFICERS
3.1 ENUMERATION. The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including Chairman of the
Board, a Vice-Chairman of the Board and one or more Vice Presidents, Assistant
Treasurers and Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
<PAGE>
3.2 ELECTION. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 QUALIFICATION. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in
the vote choosing or appointing him/her, or until his earlier death, resignation
or removal.
3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the
happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of
a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an
officer for any period following his resignation or removal, or any right
to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise, unless such compensation is expressly
provided in a duly authorized written agreement with the corporation.
3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President,
Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of his predecessor and until his successor is elected and
qualified, or until his earlier death, resignation or removal.
3.7 CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN OF THE BOARD. The Board of
Directors may appoint a Chairman of the Board and may designate the Chairman
of the Board as Chief Executive Officer. If the Board of Directors appoints a
Chairman of the Board, he/she shall perform such duties and possess such
powers as are assigned to him/her by the Board of Directors. If the Board of
Directors appoints a Vice-Chairman of the Board, he/she shall, in the absence
or disability of the Chairman of the Board, perform the duties and exercise
the powers of the Chairman of the Board and shall perform such other duties
and possess such other powers as may from time to time be vested in him/her by
the Board of Directors.
3.8 PRESIDENT. The President shall be the Chief Operating Officer of the
corporation. Unless the Board of Directors has designated the Chairman of the
Board as Chief Executive Officer, the President shall also be the Chief
Executive Officer of the corporation. The President shall, subject to the
direction of the Board of Directors, have general charge and supervision of
the business of the corporation. Unless otherwise provided by the Board of
Directors, he/she shall preside at all meetings of the stockholders, if he/she
is a director, at all meetings of the Board of Directors. The President shall
perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe.
<PAGE>
3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time
to time prescribe. In the event of the absence, inability or refusal to act
of the President, the Vice President (or if there shall be more than one, the
Vice Presidents in the order determined by the Board of Directors) shall
perform the duties of the President and when so performing shall have all the
powers of and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of Executive
Vice President, Senior Vice President or any other title selected by the Board
of Directors.
3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the President
may from time to time prescribe. In addition, the Secretary shall perform
such duties and have such powers as are incident to the office of the
Secretary, including without limitation the duty and power to give notices of
all meetings of stockholders and special meetings of the Board of Directors,
to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time
to time prescribe. In the event of the absence, inability or refusal to
act of the Secretary, the Assistant Secretary (or if there shall be more
than one, the Assistant Secretaries in the order determined by the Board
of Directors), shall perform the duties and exercise the powers of the
Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such
duties and shall have such powers as the Board of Directors or the President
may from time to time prescribe. In addition, the Treasurer shall perform
such duties and have such powers as are incident to the office of the
Treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds
of the corporation in depositories selected in accordance with these By-Laws,
to disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
Any Assistant Treasurers shall perform such duties and possess such
powers as the Board of Directors, the President or the Treasurer may from
time to time prescribe. In the event of the absence, inability or
refusal to act of the Treasurer, the Assistant Treasurer (or if there
shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors), shall perform the duties and exercise the
powers of the Treasurer.
3.12 SALARIES. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
<PAGE>
ARTICLE IV - CAPITAL STOCK
4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the authorized
capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such
manner, for such consideration and on such terms as the Board of Directors may
determine.
4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him/her in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman or Vice-Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have
conspicuously noted on the face or back of the certificate either the
full text of the restriction or a statement of the existence of such
restriction.
4.3 TRANSFERS. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to
the corporation or its transfer agent of the certificate representing such
shares properly endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or the
authenticity of signature as the corporation or its transfer agent may
reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any transfer,
pledge or other disposition of such stock until the shares have been
transferred on the books of the corporation in accordance with the
requirements of these By-Laws.
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen or destroyed upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity
as the Board of Directors may require for the protection of the corporation or
any transfer agent or registrar.
<PAGE>
4.5 RECORD DATE. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 days nor less than
10 days before the date of such meeting, nor more than 60 days prior to any
other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. The record date for determining
stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
4.6 DIVIDENDS. Subject to limitations contained in the General Corporation
Law of the State of Delaware and the Certificate of Incorporation, the Board
of Directors may declare and pay dividends upon the shares of capital stock of
the Corporation, which dividends may be paid either in cash, securities of the
Corporation or other property.
ARTICLE V - INDEMNIFICATION
The corporation shall, to the fullest extent permitted by Section 145 of the
General Corporation Law of Delaware or any other applicable provisions of
Delaware law, as such law may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have power to
indemnify under such law against any expenses, liabilities or other matters
referred to in or covered by such law. The indemnification provided for in
this Article: (i) shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any by-law, agreement or vote of
stockholders or disinterested directors or otherwise, both as to action in
their official capacities and as to action in another capacity while holding
such office; (ii) shall continue as to a person who has ceased to be a
director, officer or trustee; and (iii) shall inure to the benefit of the
heirs, executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be offset to
the extent of any other source of indemnification or any otherwise applicable
insurance coverage under a policy maintained by the corporation or any other
person.
<PAGE>
To assure indemnification under this Article of all such persons who are
determined by the corporation or otherwise to be or to have been "fiduciaries"
of any employee benefit plan of the corporation which may exist from time to
time, such Section 145 shall, for the purposes of this Article, be interpreted
as follows: an "other enterprise" shall be deemed to include such an employee
benefit plan, including without limitation, any plan of the corporation which
is governed by the Act of Congress entitled "Employee Retirement Income
Security Act of 1974," as amended from time to time; the corporation shall be
deemed to have requested a person to serve an employee benefit plan where the
performance by such person of his duties to the corporation also imposes
duties on, or otherwise involves services by, such person to the plan or
participants or beneficiaries of the plan; excise taxes assessed on a person
with respect to an employee benefit plan pursuant to such Act of Congress
shall be deemed "fines"; and action taken or omitted by a person with respect
to an employee benefit plan in the performance of such person's duties for a
purpose reasonably believed by such person to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the corporation.
ARTICLE VI - GENERAL PROVISIONS
6.1 FISCAL YEAR. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the
first day of January in each year and end on the last day of December in each
year.
6.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 WAIVER OF NOTICE. Whenever any notice whatsoever is required to be given
by law, by the Certificate of Incorporation or by these By-Laws, a waiver of
such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver,
or the appearance of such person or persons at such meeting in person or by
proxy, shall be deemed equivalent to such notice.
6.4 VOTING OF SECURITIES. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders of any other corporation or organization, the securities of which
may be held by this corporation.
6.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith
be conclusive evidence of such action.
6.6 CERTIFICATE OF INCORPORATION. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
<PAGE>
6.7 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction between
the corporation and one or more of the directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum;
(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
6.8 SEVERABILITY. Any determination that any provision of these By-Laws is
for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
6.9 PRONOUNS. All pronouns used in these By-Laws shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
Article VII - AMENDMENTS
7.1 BY THE BOARD OF DIRECTORS. These By-Laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of a majority
of the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
7.2 BY THE STOCKHOLDERS. These By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote at any regular meeting of stockholders, or at
any special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in the
notice of such special meeting.
"Confidential treatment has been granted or requested with respect to
portions of this exhibit, and such portions have been replaced with "**".
Such confidential portions have been deleted and separately filed with
the Securities and Exchange Commission pursuant to Rule 24b-2."
FRAM LICENSE AGREEMENT
THIS FRAM LICENSE AGREEMENT (the "Agreement"), effective as of the 20 day of
December 1996, is entered into by and between RAMTRON INTERNATIONAL
CORPORATION ("Ramtron"), a Delaware corporation having its principal office at
1850 Ramtron Drive, Colorado Springs, Colorado 80921, USA, and SAMSUNG
ELECTRONICS CO., LTD. ("SEC"), a Korean corporation having its registered
office at San #24 Nongseo-Ri, Kiheung-Eup, Yongin-City, Kyungki-Do, KOREA.
RECITALS
A. Ramtron is the owner and/or controls certain United States and foreign
patents and patent applications related to the proprietary design, development
and architecture of state-of-the-art ferroelectric semiconductor technology.
B. SEC wishes to obtain from Ramtron, and Ramtron is willing to grant to SEC
a license to said ferroelectric patents and patent applications for use in the
manufacture and sale of licensed products (defined below).
NOW, THEREFORE, in consideration of the recitals and the mutual covenants
contained herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Ramtron and SEC hereby agree as
follows:
ARTICLE 1 - DEFINITIONS
When used in this Agreement, the following terms have the following meanings:
1.1 "Dollars" or "$" means the United States currency unless otherwise
specified.
1.2 "Effective Date" means the date of approval of this Agreement by the
Korean Government.
1.3 "FRAM Technology" means that certain thin-film ferroelectric technology
developed and/or owned by Ramtron, the patents and patent applications to
which Ramtron has the right to grant a license to SEC without payment of any
compensation to third parties except its employees, and which consist of
technology pertaining to the manufacture and production of nonvolatile, random
access semiconductor memory devices that utilize binary polarization states on
the hysteresis curve of ferroelectric material.
1.4 "Licensed RF/ID Products" means a device using FRAM Technology and/or
Ramtron's Improvements and/or other memory, and embedded with RF/ID analog
circuitry in a single chip ("RF/ID Products").
1.5 "Licensed FRAM Products" means nonvolatile ferroelectric semiconductor
memory devices with no density limitation, whether in standard or embedded
form, but which specifically excludes RF/ID Products.
<PAGE>
1.6 "Ramtron Intellectual Property Rights" ("Ramtron IPR") means all claims
of all United States and foreign patents and patent applications, their
continuations, divisions and reissues in all countries of the world relating
to FRAM Technology and/or Ramtron's Improvements owned and/or controlled by
Ramtron and which are created or have filing dates prior to the date of
expiration or termination of this Agreement, and which Ramtron has the right
to grant a license to SEC hereunder without payment of any compensation to
third parties except its employees as of the Effective Date or thereafter
during the term of this Agreement.
1.7 "Ramtron's Improvements" means United States and foreign patent and
patent applications, their continuations, divisions and reissues to all
improvements, enhancements and developments to the FRAM Technology made by
Ramtron and owned and/or controlled by Ramtron during a term not exceeding a
period of ten (10) years after the first commercial sale by SEC of Licensed
FRAM Products or Licensed RF/ID Products. Ramtron Improvements shall not
include any such improvements, enhancements, and developments if Ramtron is
prohibited from making the license to same available to SEC pursuant to any
judicial order or proceeding.
1.8 "SEC's Improvements" means all improvements, enhancements and
developments to the FRAM Technology made by SEC, independent of Ramtron,
during a term not exceeding a period of ten (10) years after the first
commercial sale by SEC of Licensed FRAM Products or Licensed RF/ID Products.
SEC's Improvements shall not include any such improvements, enhancements, and
developments if SEC is prohibited from making the license to same available to
Ramtron pursuant to any judicial order or proceeding.
1.9 "Joint Improvements" means all improvements, enhancements and
developments to the FRAM Technology made jointly by the parties hereto during
the term of this Agreement, should the parties choose to collaborate on
certain aspect of ferroelectric design and/or development, where at least one
(1) employee each from both Ramtron and SEC is involved in such improvements,
enhancements and developments.
1.10 "Joint Patent Rights" means the patents where the claimed invention is
developed as a Joint Improvement by at least one (1) employee each from
Ramtron and SEC during the terms of this Agreement. The Parties shall jointly
own such Joint Patent Rights with each party having an undivided equal
ownership in such Patent.
1.11 "Net Sales" means the total of all gross amounts received by SEC with
regard to the sale or other transfer of Licensed FRAM Products and Licensed
RF/ID Products for value accounted for in accordance with generally accepted
accounting principles, less costs of packing, transportation, shipping or
insurance incident to such transportation and shipping charges, excise or
other taxes and customs duties and allowances for actual returns, if any.
Should SEC sell Licensed FRAM Products and/or Licensed Ferroelectric RF/ID
Products in combination with other components or equipment, then the
calculation of Net Sales shall be based on the price normally charged by such
party for Licensed FRAM Products and/or Licensed RF/ID Products when
separately invoiced or priced or if no such separately invoiced or priced
sales of such Licensed FRAM Products and/or Licensed RF/ID Products have been
made, then the calculation of Net Sales shall be based on the price which SEC
would charge for such Licensed FRAM Products and/or Licensed RF/ID Products in
an arm's-length commercial sale transaction for cash; provided, however, that
in either case such price shall be reduced by the amount of any percentage
discount applicable to the transaction in which such Licensed FRAM Products
were sold, used or otherwise transferred.
<PAGE>
1.12 "Technology License" has the meaning set forth in Section 2.1.
1.13 "Royalty Period" means the period of three (3) months ending on the last
day of March, June, September and December of each year this Agreement is in
effect following the expiration of the immediately preceding Royalty Period.
1.14 "Royalty Year" means the calendar year.
1.15 "Licensed Trademark" means Ramtron's trademark, "FRAM."
1.16 "Subsidiary" means a corporation or other entity of which more that
fifty percent (50%) of the outstanding stock or other equity interest entitled
to vote for the election of directors or equivalent governing body is now or
hereinafter controlled, directly or indirectly, by a party, but such
corporation or other entity shall be deemed to be a Subsidiary only so long as
such ownership exists.
ARTICLE II - TECHNOLOGY LICENSE
2.1 Grant of License:
2.1.1 Ramtron hereby grants, subject to the payments and reporting
provisions of Article 3 and the other provisions of this Agreement, to SEC and
SEC's Subsidiary a worldwide, perpetual, nonexclusive, nontransferable,
nonsublicensable, right and license to use the Ramtron IPR and Ramtron
Improvements in connection with the sale of Licensed FRAM Products and
Licensed RF/ID Products thereto, but only for the development, manufacture,
make, sale, use, lease and transfer and other disposition of value of Licensed
FRAM Products and Licensed RF/ID Products. This Technology License may not be
used by SEC for any purpose other than those specifically stated in this
Section 2.1.
(a) Exception to Limitation of Use. Ten (10) years after the
Effective Date SEC may utilize those Ramtron patents having an issue date or
application date earlier than the Effective Date without limitation to use.
SEC use of Ramtron patents having an issue date or application date later than
the Effective Date will be limited to the purposes specifically stated in this
Section 2.1.
(b) Ramtron Proprietary Intellectual Property. All Ramtron IPR
and Ramtron Improvements licensed to SEC hereunder shall remain the sole and
exclusive property of Ramtron.
(c) Exception to License. The Technology License shall
specifically exclude a sublicense of Symetrix Y-1 based technology. ** SEC
shall ** of the ** FRAM Technology from Ramtron without the
requirement for SEC ** provided, however, that (i) SEC agrees to comply
with all of the terms and conditions ** of ** rights and (ii) SEC
expressly acknowledges that until such time SEC ** to have a ** based
technology. Ramtron ** and is free to ** as may be agreed between
Ramtron ** at any time and from time to time.
<PAGE>
2.1.2 Ramtron hereby grants to SEC and SEC's Subsidiary, subject to the
timely payments set forth herein and compliance with all of the other terms
and conditions of this Agreement, a worldwide, perpetual, non-exclusive, non-
transferable, non-sublicensable, license and right to use the Licensed
Trademark solely on FRAM Products and/or Licensed RF/ID Products which are
(i) manufactured by or for SEC and (ii) distributed and/or sold under SEC's
name.
(a) SEC shall not use the Licensed Trademark in any country
unless and until SEC has given at least ninety (90) days prior written notice
to Ramtron. During such ninety (90) day period Ramtron may, where it deems
appropriate in its sole discretion, effect recordation of SEC as a registered
user of such mark in such country and/or recordation of the Agreement or other
license agreements which meet appropriate local standards with appropriate
authorities. SEC shall assist Ramtron as appropriate in carrying out such
recording process.
(b) To defray Ramtron's expenses for charges imposed on Ramtron
by such country and by local associates for the recording activities
contemplated in Sub-section 2.1.2 (a), Ramtron shall invoice SEC a recordal
fee per country in which recordal is effected. Such invoice shall be payable
to Ramtron within thirty (30) days after receipt of the applicable invoice.
Upon the termination or expiration of this Agreement or SEC's right to use the
Licensed Trademark in any country to which this paragraph applies, Ramtron and
SEC shall cancel the registered user registration or licensed recordal in such
country, and to this end SEC agrees to execute any documents that may be
necessary to restore Ramtron to its former position in all respects.
2.1.3 SEC shall grant to Ramtron a royalty-free, nonexclusive,
nontransferable, nonsublicensable, worldwide and perpetual license to use any
and all SEC's Improvements to design, develop, manufacture, make, use, lease,
sell, transfer or otherwise dispose of ferroelectric memory products.
(a) SEC Proprietary Information. All Proprietary Information and
technology, including SEC's Improvements, provided or disclosed by SEC to
Ramtron hereunder and all inventions or technologies made or developed solely
by SEC in the performance of this Agreement shall remain the property of SEC.
2.2 Status Review Meeting. During the term of this Agreement each party
hereto shall, from time to time but not less than at least twice each year,
dispatch its pertinent personnel and/or counsel to the facilities of the other
party for the purpose of expediting the manufacture and sale of Licensed FRAM
Products and/or Licensed RF/ID Products by SEC ** of Licensed FRAM
Products and/or Licensed RF/ID Products by SEC. Each party hereto shall bear
its own costs and expense for such meetings. ** .
<PAGE>
ARTICLE III - COMPENSATION
3.1 License Fees. In consideration of the license to the Ramtron IPR and
Ramtron's Improvements made available to SEC during the term of this
Agreement, SEC shall pay to Ramtron, net of any Korean or other applicable
withholding tax, the following in accordance with the schedule described
below:
3.1.1 Lump Sum Payment:
(a) License Execution Fee. Within thirty (30) days after the
Effective Date of this Agreement, SEC shall pay Ramtron ** .
3.1.2 Lump Sum Payment:
(a) Paid-Up License Fee. Within thirty (30) days after the first
commercial sale of Licensed FRAM Product and/or Licensed RF/ID Product, or
within one (1) year following the Effective Date of this Agreement, whichever
occurs first, SEC shall pay Ramtron ** .
3.2 Royalty Payments.
3.2.1 Licensed FRAM Products. SEC shall pay Ramtron a royalty on all
Licensed FRAM Products based upon and/or which use the FRAM Technology and/or
Ramtron's Improvement and sold by SEC commencing upon the first commercial
sale of Licensed FRAM Products by SEC. ** . The start
date for the royalty rate schedule is the date of the first commercial sale of
Licensed FRAM Products by SEC **
(hereinafter, "Royalty Schedule Start Date"), according to the following
schedule:
(i) ** of the net sales by SEC from the sale or
other transfer for value of Licensed FRAM Products **
after the Royalty Schedule Start Date.
(ii) ** of the net sales by SEC from the sale or
other transfer for value of Licensed FRAM Products **
after the Royalty Schedule Start Date.
(iii) ** of net sales by SEC for the sale or other transfer
for value of Licensed FRAM Products ** after the Royalty Schedule Start
Date.
All Licensed FRAM Products manufactured and/or sold by SEC after expiration of
such ten (10) year period shall no longer be subject to any royalty payment to
Ramtron.
3.2.2 Licensed RF/ID Products. SEC shall pay Ramtron a royalty on all
Licensed RF/ID Products sold by SEC commencing upon the first commercial sale
of Licensed RF/ID Products by SEC. The royalty rate for Licensed RF/ID
Products is ** of the net sales by SEC from the sale or other
transfer for value of Licensed RF/ID Products for life of the governing
Ramtron IPR.
<PAGE>
3.3 Payment and Certification of Royalties by SEC. All payments for each
Royalty Period under this Agreement is made, on or before April 30, July 31,
October 31 and January 31, immediately after the preceding Royalty Period, by
SEC in the United States dollars through wire transfer directly to Ramtron's
bank account: Colorado National Bank, 1125 Garden of the Gods Road, Colorado
Springs, Colorado 80907, Bank Routing Number-102000021, Account Number-
127100003459, Account Name-Ramtron International Corporation. As for Royalty
Payments under Section 3.2 above, SEC shall, on or before April 30, July 31,
October 31 and January 31 in each year during which royalties are payable
under this Agreement, furnish to Ramtron a statement, signed by the
appropriate SEC authority, concerning the Net Sales by or on behalf of SEC of
FRAM Products and/or Licensed RF/ID Products sold by or on behalf of SEC, its
Subsidiaries or SEC Third Party during the preceding Royalty Period in
sufficient detail to permit the computation of the royalties due for such
Royalty Period.
3.4 Records. SEC shall keep true and accurate records, files and books of
accounts reasonably necessary in accordance with generally accepted accounting
principles to ascertain the amount of the royalties payable to Ramtron under
Section 3.2 above for three (3) years from the end of each reporting Royalty
Period.
3.5 Audit. Ramtron shall have the right, through a certified independent
public accountant of international reputation with a branch office in Korea to
be designated by Ramtron and reasonably acceptable to SEC, to make an
examination and audit, not more frequently than once per year, during normal
business hours acceptable to SEC, of SEC's records, files and books of
accounts as may contain information bearing upon the amounts due to Ramtron
under Section 3.2 above. Prompt adjustment shall be made between the parties
for any underpayments or overpayments disclosed by such audit. In the event
that any royalty report(s) understates in total the royalties due to Ramtron
for the relevant audited Royalty Period(s) by more than five percent (5%), SEC
shall pay any shortfall and, upon request of Ramtron, reimburse Ramtron for
the cost of such audit. Ramtron assures SEC that said public certified
accountant's report to Ramtron shall provide only the amount of royalties
actually payable to Ramtron and any information in said SEC's records, files
and books of accounts shall be treated as confidential by said certified
public accountant and shall not be disclosed to Ramtron or to any third party.
ARTICLE IV - CONFIDENTIALITY
4.1 Confidentiality. During the term of this Agreement and for a period of
five (5) years thereafter, the parties hereto agree that all data, drawings,
materials, prototypes, designs, processes, procedures, formulae, improvements,
financial data, marketing information, technical information, engineering
data, manufacturing specifications and other trade secrets and confidential
information disclosed by one party to the other, which is on written, graphic,
machine-readable or other tangible form and is marked "Confidential Data,"
which relates to FRAM Technology, Ramtron IPR, Ramtron's Improvements, SEC's
Improvements, Licensed FRAM Products or Licensed RF/ID Products (hereinafter
"Confidential Data"), shall be regarded and treated by the parties in
strictest confidence and shall not be disclosed to any third party without the
express written consent of the disclosing party. The parties hereto further
acknowledge and agree that all information disclosed to the other party
hereunder and all other information to which the other party may have access
by virtue of any such disclosure shall be presumed by the parties to be
Confidential Data, unless the disclosing party shall advise the receiving
party that any such item or items need not be regarded or treated as
Confidential Data. However, the parties hereto confirm that confidential data
may be used to the extent necessary for implementing any of the recording
party's activities to be contemplated under this Agreement.
<PAGE>
4.2 Exclusions. Confidential Data shall not include: (i) information which
is in the possession of the recipient at the time it is received from the
disclosing party, where the possession of such information can be established
from documentation generated prior to the disclosure of such information by
the disclosing party; (ii) information which is in the public domain through
no act or omission of the parties hereto or their respective representatives;
(iii) information lawfully received from others who are not under restrictions
similar to those identified in Section 5.1 hereof or who are not in breach of
any confidentiality agreement with Ramtron or SEC; (iv) information that is
developed or derived by the recipient independent of any disclosure hereunder;
or (v) information of which five (5) years elapses from the disclosure by the
disclosing party. Also, the parties hereto may disclose confidential data to
(a) any government or judicial body having jurisdiction to request and to
review the same, and (b) legal counsel representing the parties hereto.
4.3 Marking of Documents and Materials. In furtherance, but not in
limitation, of the provisions of Section 4.1, each party shall use its
reasonable endeavors to cause all written materials and other physical
documents and materials of all types relating to or containing Confidential
Data to be plainly marked to indicate the secret, proprietary and confidential
nature thereof and to prevent the unauthorized use or reproduction thereof,
directly or indirectly.
4.4 Return of Confidential Data. Within fourteen (14) days following a
request, after the expiration or termination of this Agreement, by the
disclosing party, the receiving party shall return any Confidential Data and
any copies, recordings or transcriptions thereof, which are no longer required
to be used for purposes of this Agreement.
4.5 Indemnification. Without limiting any other right, remedy or benefit
occurring to either party under this Agreement or by law, but subject to the
limitations set forth in Article V, each party shall indemnify the other party
fully for all damages caused by any unauthorized disclosure or use of any
information intended to be kept secret, confidential or proprietary in
accordance with this Article IV, by such other party or its representatives,
employees, agents, consultants and sublicensees.
ARTICLE V - COVENANTS, WARRANTY AND LIMITED INDEMNIFICATION
5.1 Covenants, Representations and Warranties of Ramtron. Ramtron hereby
represents and warrants that Ramtron's execution of this Agreement has been
duly authorized by all necessary corporate action, including, with limitation,
approval of Ramtron's board of directors in order for this Agreement to
constitute a legally binding and enforceable obligation of Ramtron.
5.2 Covenants, Representations and Warranties of SEC. SEC hereby represents
and warrants that SEC's execution of this Agreement has been duly authorized
by all necessary corporate action, including, with limitation, approval of
SEC's board of directors, and constitutes a legally binding and enforceable
obligation of SEC.
5.3 Ramtron Warranty. Ramtron represents and warrants that it has all right,
title and interest to its FRAM Technology and Ramtron's Improvements disclosed
hereunder and/or Ramtron's IPR licensed hereunder to SEC, and that it has the
right to grant to SEC the licenses granted herein.
5.4 SEC Warranty. SEC represents and warrants that it has all right, title
and interest to SEC's Improvements disclosed hereunder to Ramtron, and that it
has the right to grant to Ramtron the licenses granted as a result hereof.
<PAGE>
5.5 Ramtron and SEC Representations. Ramtron represents and warrants in
connection with the Ramtron IPR and/or Ramtron's Improvement that Ramtron
shall use its best efforts to defend Ramtron's IPR and/or the Ramtron
Improvements against claims asserted by a third party that the Ramtron's IPR
is invalid or unenforceable. SEC shall use its best efforts to defend its
patents against claims asserted by a third party that the SEC's Improvements
are invalid or unenforceable. SEC and Ramtron shall cooperate and use their
best efforts to defend any Joint Patent Rights developed under this Agreement
against claims asserted by a third party that Joint Patent Rights are invalid
or unenforceable. SEC and Ramtron shall consult with each other regarding
these matters.
5.6 Notice of Infringement. Each of Ramtron and SEC shall promptly advise
the other in writing of any claim, action, lawsuit, or proceeding threatened,
made or brought against them or either of them for infringement of a patent
issued to a third party, or for violation of a third party's patent, trade
secret or other intellectual property right based in any instance upon
(i) SEC's use of the Ramtron IPR and/or Ramtron's Improvements or SEC's sale,
lease, use or distribution of Licensed FRAM Products and/or Licensed RF/ID
Products or (ii) Ramtron's use of SEC's Improvements or Ramtron's sale, use or
distribution of ferroelectric memory products, which in any way incorporate
SEC's Improvements.
5.7 Infringement Assistance Provided SEC. In the event any claim or action
is brought by a third party against SEC based on alleged infringement by
Licensed FRAM Products and/or Licensed RF/ID Products manufactured by SEC
using Ramtron IPR and/or Ramtron's Improvements licensed to SEC hereunder, of
any patent or other intellectual property rights owned by any third party,
then Ramtron shall use its best efforts to provide SEC with (i) reasonable
assistance in connection with the defense and settlement of such claim or
action, including all the necessary information related to the infringing
technology, and (ii) reasonable consultation for SEC's achievement of viable
alternative solution to avoid such infringement issue.
5.8 Infringement Assistance Provided Ramtron. In the event any claim or
action is brought by a third party against Ramtron based on alleged
infringement by ferroelectric memory products manufactured by Ramtron using
SEC's Improvements provided to Ramtron thereunder, of any patent or other
intellectual property rights owned by any third party, then SEC shall use its
best efforts to provide Ramtron with (i) reasonable assistance in connection
with the defense and settlement of such claim or action, including all the
necessary information related to the infringing technology, and
(ii) reasonable consultation for Ramtron's achievement of viable alternative
solution to avoid such infringement issue.
5.9 Non-assertion Status. Ramtron agrees that it, its successors and
assignees shall not assert a claim of infringement of its intellectual
property rights licensed by Ramtron with respect to any other products made by
SEC, provided that SEC does not intentionally use such non-assertion status
granted by Ramtron to design, make, and sell devices which compete with
ferroelectric memory products manufactured by Ramtron or by any of Ramtron's
alliance partners, and/or which utilize substantial portions of Ramtron
intellectual property rights.
5.10 Ancillary Use Of The Licensed Trademark. Subject to the terms and
conditions of this Agreement, SEC is further authorized to use the Licensed
Trademark in connection with marketing materials related to FRAM Products
and/or Licensed RF/ID Products for purposes of publicity, materials, signs,
product brochures, cartons and other forms of advertising. SEC shall promptly
provide Ramtron with specimens of marketing materials requested in writing by
Ramtron in order to monitor consistency of such materials with SEC's
obligations under this Agreement.
<PAGE>
5.11 Protection Of Licensed Trademark. SEC agrees not to challenge, oppose,
petition to cancel or otherwise attack the Licensed Trademark and Ramtron's
ownership thereof anywhere in the world. SEC also agrees, subject to the terms
and conditions of this Agreement, that any and all rights that may be acquired
by the use of the Licensed Trademark by SEC shall inure to the sole benefit of
Ramtron. Except as provided in this Agreement, SEC shall not use the Licensed
Trademark as all or part of any corporate name, tradename, trademark, service
mark, certification mark, collective membership mark or any other designation
confusingly similar to the Licensed Trademark. If any application for
registration is or has been filed by or on behalf of SEC in any country and
relates to any mark, which in the reasonable opinion of Ramtron, is
confusingly similar, deceptive or misleading with respect thereto, or dilutes
or in any way damages the Licensed Trademark, SEC shall at Ramtron's request
abandon all use of such mark and any registration or application for
registration thereof and shall reimburse Ramtron for all costs and expenses of
any successful opposition or related legal proceeding, including attorneys'
fees, initiated by Ramtron or its authorized representatives.
In the performance of this Agreement, SEC shall comply with all applicable
laws and regulations pertaining to the proper use and designation of
trademarks in all countries of the world. Should SEC be, or become, aware of
any applicable laws or regulations which are inconsistent with the provisions
of this Agreement, SEC shall promptly notify Ramtron of such inconsistency.
Ramtron and SEC shall attempt to resolve such inconsistency. In the event no
resolution is achieved and performance of such inconsistent provision is not
waived, and provided Ramtron in good faith determines that such inconsistency
threatens its legal rights in and to the Licensed Trademark or may subject it
to liability for damages or penalties to a third party or government entity or
is otherwise injurious to Ramtron, then Ramtron may terminate the license and
rights granted hereunder with respect to the use of the Licensed Trademark in
the country whose laws and regulations are inconsistent with the provisions of
this Agreement.
5.12 THIS ARTICLE V STATES RAMTRON'S AND SEC'S TOTAL LIABILITY AND
RESPONSIBILITY TO EACH OTHER, AND SEC'S AND RAMTRON'S SOLE REMEDY FOR ANY
ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT OR PATENT APPLICATION BY THE
RAMTRON IPR, THE RAMTRON IMPROVEMENTS OR SEC'S IMPROVEMENTS LICENSED
HEREUNDER, THE LICENSED FRAM PRODUCTS AND/OR LICENSED FERROELCTRIC RF/ID
PRODUCTS, OR ANY PART THEREOF. THIS ARTICLE V IS IN LIEU OF AND REPLACES ANY
OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT.
ARTICLE VI - LIMITATIONS ON LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL,
INDIRECT OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE TECHNOLOGY OR PRODUCTS
LICENSED, PATENTS AND/OR PATENT APPLICATIONS LICENSED PURSUANT TO THIS
AGREEMENT.
ARTICLE VII - TERM AND TERMINATION
7.1 Term. This Agreement shall become effective on the Effective Date and
shall remain in full force, unless earlier terminated in accordance with the
provisions of this Article VII.
7.2 Termination Without Cause. Each party may terminate this Agreement
without further liability by giving a thirty (30) day written notice to the
other party upon or after:
<PAGE>
7.2.1 The filing by the other party of a voluntary petition in
bankruptcy or insolvency;
7.2.2 Any adjudication that the other party is bankrupt or insolvent;
7.2.3 The appointment of a receiver or trustee for all or substantially
all of the property of the other party;
7.2.4 Any assignment or attempted assignment by the other party for the
benefit of creditors;
7.2.5 The institution of any proceedings for the liquidation or winding
up of the other party's business or for the termination of its corporate
charter; or
7.2.6 The merger or acquisition of the other party into or by, or the
sale of all or substantially all of the other party's assets to a third party
corporation or other entity, unless such merging or acquiring corporation or
entity expressly agrees to assume (i) the other party's obligation under this
Agreement and (ii) other such terms and conditions, as may be reasonably
imposed by such party.
7.3 Termination by Default. If either party defaults in the performance of
any material obligations hereunder, and if any such default is not corrected
within sixty (60) days after the defaulting party receives written notice of
such default from the non-defaulting party, then non-defaulting party, may, at
its option and in addition to any other remedies it may have, terminate this
Agreement.
7.4 Survival. Upon expiration or termination of this Agreement, all rights,
privileges and obligations hereunder shall cease, provided, however that:
7.4.1 In the event that this Agreement is terminated under Section 7.2
above, any and all licenses previously granted hereunder to the terminating
party which are in force on the termination date shall survive such
termination and continue, while any and all licenses previously granted
hereunder to the other party (i.e., bankrupt and/or insolvent party) which are
in force on the termination date shall terminate immediately upon the
termination date.
7.4.2 In the event this Agreement is terminated under Section 7.3 as a
result of a Ramtron default, which is not corrected within the sixty (60) day
period provided in Section 7.3 above, any and all licenses granted to SEC
hereunder shall survive and continue after such termination, subject to the
provisions of Articles IV, V and VII.
7.4.3 In the event that this Agreement is terminated under Section 7.3,
as a result of a SEC default which is not corrected by SEC within the sixty
(60) day period provided in Section 7.3 above, then any and all license rights
granted to SEC hereunder shall automatically terminate on the date of such
termination, and SEC shall return to Ramtron any and all technical documents
and data that may have been furnished by Ramtron to SEC under this Agreement;
provided, however, nothing in this Subsection 7.4.3 shall be construed to
relieve SEC of its liability to pay Ramtron royalties on all FRAM Products and
Licensed RF/ID Products sold, used or otherwise transferred by SEC prior to
or after the date of such termination in accordance with this Agreement.
<PAGE>
ARTICLE VIII - GENERAL TERMS AND CONDITIONS
8.1 Notices. All notices and requests required or authorized hereunder,
shall be given in writing by registered or certified mail, postage prepaid,
addressed as follows unless one party notifies the other in writing of any
changes in such address:
If to SEC:
Samsung Electronics Co., LTD.
San #24 Nongseo-Ri, Kiheung-Eup
Yougin-City, Kyungki-Do, KOREA
For technical matters:
Ph.D. Tae-Earn Shim
Executive Director
Technology Development Team
Semiconductor Business, SEC
Telephone: 82-2-760-6376
Facsimile: 82-331-209-3274
For non-technical matters:
Mr. Sang-Wook Kim
Executive Director
Technology Planning Team
Semiconductor Business, SEC
Telephone: 82-2-760-6020
Facsimile: 82-2-760-6209
If to Ramtron:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: President
Telephone: (719) 481-7000
Facsimile: (719) 481-9294
8.3 Arbitration. All disputes, controversies or differences which may arise
between the parties in relation to or in connection with this Agreement shall
be settled by amicable negotiation by both parties. If both parties are
unable to settle such disputes, then such disputes shall be referred to and
finally settled by arbitration under the Rules of Conciliation and Arbitration
of the International Chamber of Commerce. The arbitration shall be conducted
in English and take place in Korea if it is initiated by Ramtron or in Denver,
Colorado, USA if it is initiated by SEC. The award of arbitration shall be
final and binding upon both parties.
8.4 Export Control. The parties agree that no technical information,
including software, furnished hereunder or any direct products thereof is
intended to or will be exported or re-exported, directly or indirectly, to any
destination restricted or prohibited by export control regulations of the USA
and/or Korea, including the US Export Administration Regulations, without the
prior written authorization from the appropriate governmental authorities.
8.5 Governing Law. This Agreement and the performance of the parties
hereunder shall be construed in accordance with and governed by the laws of
the State of New York, USA, without giving effect to the principles of
conflicts of laws.
<PAGE>
8.6 Severability. In the event that one or more provision(s) of this
Agreement is or becomes or is deemed invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not effect any
other provision of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision(s) had not been contained
herein.
8.7 Waiver. The delay or failure of a party to exercise any right or option
hereunder or failure to enforce any provision herein shall not impair any such
right or option nor shall it constitute a waiver thereof or acquiescence
thereto unless explicit written notice is provided.
8.8 Assignment. Neither this Agreement nor any right or obligation hereunder
may be assigned to any third party by either party hereto, nor shall the same
inure to the benefit of any trustee in bankruptcy, receiver or other successor
of either party, without the prior written consent of the other party.
8.9 Remedies Cumulative. Except as explicitly excluded or limited, all
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not exclusive or alternative and shall be in
addition to all remedies given hereunder or now or hereafter existing, at law
or in equity, by statute or otherwise. The election of any one or more
remedies by any party shall not constitute a waiver of the right to pursue
other available remedies.
8.10 Force Majeure. Neither party to this Agreement shall be responsible for
delay or failure in performance caused by any governmental act, law,
regulation, order or decree, by communication line or power failures beyond
its reasonable control, or by fire, flood or other natural disasters, nor
shall any such delay or failure be considered to be a breach of this
Agreement. In any such event, performance shall take place thereafter as soon
as is reasonably feasible.
8.11 Publicity. The parties hereto agree that the terms and conditions of
this Agreement shall be confidential to any third party and that if necessary,
all notices to third parties and all publicity concerning the terms and
conditions of this Agreement shall be jointly planned and coordinated by and
between the parties. Neither of the parties shall act unilaterally in this
regard without the prior written approval of the other party. It is expected
that the parties will mutually agree upon a press release which will be issued
after the Effective Date.
8.12 Independent Contractor. The parties are independent contractors.
Nothing contained herein or done pursuant to this Agreement shall constitute
the parties as entering into a joint venture or partnership, or shall
constitute either party as the agent of the other party for any purpose or in
any sense whatsoever.
8.13 Headings. The section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of such section, or in any way affect this
Agreement.
8.14 Press Release. The parties shall mutually agree upon a press release
and its contents, which shall be issued within five (5) days following
execution of this Agreement.
<PAGE>
8.15 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and
supersedes all prior agreements, negotiations or understandings with respect
thereto. This Agreement may not be changed, altered or amended in any manner,
orally or otherwise, except in writing signed by duly authorized officers or
representatives of both parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives.
SAMSUNG ELECTRONICS CORPORATION
By: /S/ Sangwook Kim
----------------
Sangwook Kim
Title: Executive Director
Date: December 19, 1996
RAMTRON INTERNATIONAL CORPORATION
By: /S/ Greg B. Jones
-----------------
Greg B. Jones
Title: President
Date: December 2, 1996
