SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 6, 1999
--------------------
RAMTRON INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State of or other jurisdiction of incorporation or organization)
0-17739
(Commission File Number)
84-0962308
(I.R.S. Employer Identification Number)
1850 Ramtron Drive, Colorado Springs, Colorado 80921 (719) 481-7000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ITEM 5 - OTHER EVENTS:
On August 6, 1999, Ramtron International Corporation ("Ramtron") announced
that it had entered into an agreement with the holders of a majority of its
outstanding Series A Convertible Preferred Stock ("Series A Preferred") to
restate the terms of the Series A Preferred. A copy of Ramtron's press
release dated August 6, 1999, and a copy of the form of the Agreements entered
into with those Series A Preferred stockholders (the "Series A Preferred
Agreements") are included herein as Exhibits 1 and 2, respectively, and are
incorporated by reference into this Item 5. A copy of the Certificate of
Amendment of Ramtron's Certificate of Incorporation, as filed with the
Secretary of State of the State of Delaware and containing the restated terms
of the Series A Preferred, is included herein as Exhibit 3, and is
incorporated by reference into this Item 5. In accordance with the restated
terms of the Series A Preferred, holders thereof had until the close of
business on August 16, 1999, to elect (i) to continue to own shares of Series
A Preferred, (ii) to exchange shares of Series A Preferred, including accrued
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dividends, for cash in the amount per Series A Preferred share equal to 50% of
the liquidation value thereof (up to an aggregate of $6.4 million liquidation
value for all holders of Series A Preferred electing to receive cash), or
(iii) to exchange the shares of Series A Preferred, including accrued
dividends, for shares of the Ramtron's Common Stock at an exchange ratio of
$0.75 liquidation value of Series A Preferred per share of Common Stock.
Effective as of August 16, 1999, of the 8,878 shares of Series A Preferred
outstanding on August 6, 1999, 4,204 shares plus accrued dividends were
retired and canceled in exchange for the payment in the aggregate of
$2,290,431 to the former holders thereof; 3,802 shares of Series A Preferred
were exchanged for 1,104,746 shares of Common Stock; and 872 shares of Series
A Preferred remained outstanding. In connection with the restatement of the
terms of the Series A Preferred, the pending litigation against Ramtron by a
holder of Series A Preferred was dismissed with prejudice.
In connection with the restatement of the terms of the Series A Preferred,
Ramtron consummated the restructuring previously approved by the holders of a
majority of Ramtron's common stockholders on July 20, 1999 (the
"Restructuring"). As part of the Restructuring Ramtron filed with the
Secretary of State of the State of Delaware on August 6, 1999, a second
Certificate of Amendment of Ramtron's Certificate of Incorporation, effecting
a one-for-five reverse stock split of Ramtron's common stock. A copy of that
second Certificate of Amendment of Ramtron's Certificate of Incorporation is
included herein as Exhibit 4, and is incorporated by reference into this
Item 5.
Also in connection with the Restructuring, Ramtron, pursuant to agreements
with certain affiliates of Dimensional Fund Advisors, Inc. ("the DFA
Affiliates"), issued to each DFA Affiliate an unsecured convertible promissory
note (together, the "DFA Promissory Notes") in consideration of the
termination of certain Common Stock purchase rights of the DFA Affiliates.
All or part of the principal and accrued and unpaid interest of the DFA
Promissory Notes are convertible into common stock at the option of the holder
of the note at a conversion ratio of one share of Common Stock for each $1.00
of principal and interest converted. A copy of the DFA Stockholders
Recapitalization Agreement entered into with, and a copy of the form of
convertible promissory notes issued to, the DFA Affiliates are included herein
as Exhibit 5 and, respectively, and are incorporated by references into this
Item 5.
Further in connection with the Restructuring, Ramtron entered into an
agreement with the National Electrical Benefit Fund (the "Fund") to extend to
March 15, 2002, the scheduled maturity date of Ramtron's August 31, 1995, Loan
Agreement between Ramtron and the Fund and to make certain other amendments.
A copy of the amended Loan Agreement between Ramtron and the Fund is included
herein as Exhibit 6, and is incorporated by reference to this Item 5. In
consideration of the amendment of the Loan Agreement, Ramtron amended the
Fund's existing common stock purchase warrants and issued to the Fund new
warrants to purchase up to 500,000 shares of Common Stock. A copy of the
amended Loan Agreement with, and a copy of the form of Common Stock purchase
warrants issued to, the Fund are included herein as Exhibits 7 and 8,
respectively, and are incorporated by reference into this Item 5.
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Ramtron's pro forma financial statements for the periods, reflecting the
effects of the above-described transactions is included herein as Exhibit 99.2
and is incorporated by reference into this Item 5.
Ramtron will file a registration statement on Form S-3 with the Securities and
Exchange Commission to permit the resale of the common stock issuable upon
conversion of the Series A Preferred and the DFA Promissory Notes.
ITEM 7 - FINANCIAL STATEMENTS AND EXHIBITS:
(a) Financial Statements - Not Applicable
(b) Pro-Form Financial Information - See Exhibit 99.2
(c) Exhibits. The following exhibits are furnished as part of this
report:
Exhibit Description
------- -----------
4.1(i) Certificate of Amendment of Certificate of
Incorporation in regard to recapitalization
of Series A Convertible Preferred Stock as
filed on August 6, 1999.
4.1(ii) Certificate of Amendment of Certificate of
Incorporation in regard to Common Stock
Reverse Stock Split filed on August 6, 1999.
10.1 Preferred Stock Recapitalization Agreement
between the majority of the Series A Preferred
Stockholders and the Registrant dated July 30,
1999.
10.2 Supplemental Exchange Rights Agreement between
the majority of the Series A Preferred
Stockholders and the Registrant dated July 30,
1999.
10.3 Form of Optional Election between the
Series A Preferred Stockholders and the
Registrant.
10.4 DFA Stockholders Recapitalization Agreement
between the DFA Affiliates: DFA Group Trust-6-10
Subtrust, DFA Group Trust - Small Company
Subtrust, and U.S. 9-10 Small Company Portfolio,
and the Registrant dated as of July 30, 1999.
10.5 Promissory Note in the amount of $648,369
issued to DFA Affiliate, DFA Group Trust - 6-10
Subtrust, by the Registrant dated July 30, 1999.
10.6 Promissory Note in the amount of $1,692,046
issued to DFA Affiliate, DFA Group Trust - Small
Company Subtrust, by the Registrant dated
July 30, 1999.
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10.7 Promissory Note in the amount of $883,297
issued to DFA Affiliate, U.S. 9-10 Small Company
Portfolio, by the Registrant dated July 30, 1999.
10.8 Amended Loan Agreement between the National
Electrical Benefit Fund and the Registrant
dated August 6, 1999.
10.9 Amended Warrant issued by the Registrant to the
National Electrical Fund dated August 6, 1999.
10.10 Warrant issued by the Registrant to the National
Electrical Fund dated August 6, 1999.
99.1 Press Release dated August 6, 1999.
99.2 Unaudited Pro Forma Condensed Consolidated
Financial Statements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ Richard L. Mohr
------------------------------
Richard L. Mohr
Executive Vice President and CFO
Dated August 31, 1999
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State of Delaware
Office of the Secretary of State
I, Edward J. Freel, Secretary of State of the State of Delaware, do hereby
certify the attached is a true and correct copy of the Certificate of
Amendment of "Ramtron International Corporation", filed in this office on the
sixth day of August, A.D. 1999, at 1 O'clock P.M.
A filed copy of this certificate has been forwarded to the New Castle County
Recorder of Deeds.
/S/ Edward J. Freel
- ---------------------------------------
Edward J. Freel, Secretary of State
Authentication: 9908472
Date: 08-06-99
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State of Delaware
Secretary of State
Division of Corporations
Filed 01:00 PM 08/06/1999
991327093 - 2026110
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
RAMTRON INTERNATIONAL CORPORATION (hereafter called the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, hereby certifies:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that the Corporation's Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 Par
Value ("Certificate of Designation"), filed on February 12, 1998, with the
Secretary of State of the State of Delaware is hereby amended and restated in
its entirety to read as follows:
"1. Authorized Shares.
There shall be a series of shares of the Preferred Stock of the Corporation
designated "Series A Convertible Preferred Stock". The number of authorized
shares of such series shall be 29,000 and the rights and preferences of such
series (the "Series A Preferred") and the limitations or restrictions thereon,
shall be as set forth herein.
2. Dividends.
The holders of the Series A Preferred shall be entitled to receive cumulative
dividends at a rate equal to 11% per annum of the liquidation preference per
share per annum, payable semi-annually on December 31 and June 30, with the
first payment being payable on December 31, 1999, when and as declared by the
Board of Directors. Prior to the first anniversary of the date of filing of
this Certificate of Amendment (the "Closing Date"), all dividends shall be
paid in Series A Preferred. On and after the first anniversary of the Closing
Date, dividends may be paid, at the Corporation's option, on any dividend
payment date, either in cash or by the issuance of additional shares of Series
A Preferred (and payment of cash in lieu of fractional shares) having an
aggregate liquidation preference equal to the amount of such dividends. In
the event that on or after the first anniversary of the Closing Date,
dividends are paid in additional shares of Series A Preferred, the dividend
rate shall increase by 2% for such dividend payment period. In the event that
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a registration statement is not effective within 130 days after the Closing
Date with respect to the conversion rights set forth in Section 6 and the cash
exchange rights set forth in Section 7, the Series A Preferred shall accrue
dividends from and after the end of such 130 day period at a rate of 18% per
annum until such time as the registration statement is declared effective.
Dividends as provided by this Section 2 shall accrue on any given share from
the Closing Date, or from the date of original issuance of such share,
whichever is later, and shall accrue from day to day whether or not declared.
Dividends not theretofore paid shall be paid upon conversion of any shares of
the Series A Preferred and shares of Series A Preferred issued in payment of
such dividends shall be simultaneously converted into Common Stock together
with the shares on which such dividends have accrued. Dividends accrued in
accordance with the terms of the Series A Preferred prior to the Closing Date
shall not be affected by this Section 2.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of the Series A
Preferred shall be entitled to receive, prior and in preference to any
distribution of any assets of the Corporation to the holders of the Common
Stock or any other class or series of shares except any class or series which
is entitled to priority over the Series A Preferred, the amount of $1,000 per
share plus any accrued but unpaid dividends (the "Liquidation Preference").
(b) Subject to the last sentence of this Section 3(b), a consolidation or
merger of the Corporation with or into any other corporation or corporations,
or a sale of all or substantially all of the assets of the Corporation, shall,
at the option of the holders of the Series A Preferred, be deemed a
liquidation, dissolution or winding up within the meaning of this Section 3 if
the shares of stock of the Corporation (along with all derivative securities)
outstanding immediately prior to such transaction represent immediately after
such transaction less than a majority of the voting power of the surviving
corporation (or of the acquirer of the Corporation's assets in the case of a
sale of assets). Such option may be exercised by the vote or written consent
of holders of a majority of the Series A Preferred at any time within thirty
calendar days after written notice of the essential terms of such transaction
shall have been given to the holders of the Series A Preferred as provided in
Section 8 hereof. Such notice shall be given by the Corporation immediately
following determination of such essential terms. If such option is exercised,
the holders of the Series A Preferred shall be entitled to receive, in cash,
immediately upon the occurrence of such transaction, an amount per share equal
to the Liquidation Preference. This Section shall not apply to a business
combination in which substantially all the Common Stock of the Corporation is
converted into or exchanged for voting common stock of the corporation
surviving such business combination, if (i) such common stock of the surviving
corporation is listed and traded on The Nasdaq Stock Market or the New York
Stock Exchange, and (ii) the Board of Directors of the Corporation determines
in good faith that the conversion rights and other rights and preferences of
the Series A Preferred are preserved and not rendered of less value by the
terms of such business combination.
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4. Mandatory Redemption.
All of the Series A Preferred outstanding on July 31, 2002 shall be redeemed
by the Corporation at a redemption price equal to 100% of the Liquidation
Preference thereof plus, without duplication, accumulated and unpaid dividends
to the date of redemption.
5. Optional Redemption.
The Series A Preferred shall be redeemable, at the option of the Corporation
and subject to the consent of its lenders, in whole or in part, at any time on
or after July 31, 2000 at an amount equal to its Liquidation Preference plus,
without duplication, accumulated and unpaid dividends to the date of
redemption.
6. Conversion.
The holders of the Series A Preferred shall have optional conversion rights as
follows:
(a) Conversion Rights.
(i) At any time prior to 10 days after the Closing Date (the "Post-
Closing Date"), the Series A Preferred shall be exchangeable at the option of
the holder for shares of Common Stock at an exchange ratio of $.75 face value
of Series A Preferred per share of Common Stock plus accrued and unpaid
dividends to the date of conversion.
(ii) Each holder of record of Series A Preferred shares shall be
entitled to convert Series A Preferred into shares of Common Stock on or after
the Post-Closing Date at the conversion rate of 1,000 shares of Common Stock
per share of Series A Preferred (i.e., $1.00 per share of Common Stock) (such
rate of exchange, and the rate of exchange set forth in paragraph (i), as
applicable, being hereinafter referred to as the "Conversion Rate").
(b) Restriction on Right to Convert. A share of Series A Preferred shall
not be converted into Common Stock if following such conversion the holder
thereof together with affiliates of such holder would be the beneficial owners
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of 10% or
more of the Common Stock of the Corporation. A share which may not be
converted because of the preceding sentence will thereafter be convertible by
any holder if at the time such share is submitted for conversion the preceding
sentence is inapplicable.
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(c) Mechanics of Conversion. To convert shares of Series A Preferred
into shares of Common Stock, the holder shall give written notice to the
Corporation (which notice may be given by facsimile transmission) that such
holder elects to convert the same and shall state therein the number of shares
to be converted and the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. Promptly
thereafter the holder shall surrender the certificate or certificates
representing the shares to be converted, duly endorsed, at the office of the
Corporation or of any transfer agent for such shares, or at such other place
designated by the Corporation. The Corporation shall, immediately upon
receipt of such notice, issue and deliver to or upon the order of such holder,
against delivery of the certificates representing the shares which have been
converted, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled, and a certificate representing
the shares of Series A Preferred not so converted, if any. The Corporation
shall effect such issuance immediately and shall transmit the certificates by
messenger or overnight delivery service to reach the address designated by
such holder within three trading days after the receipt of such notice.
Notice of conversion may be given by a holder at any time of day up to 5:00
p.m. Los Angeles time, and such conversion shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Conversion Date"). The person or persons entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock at the close of business on the Conversion Date.
(d) Determination of Conversion Rate. In the event that the Corporation
shall declare or pay any dividend on the Common Stock payable in Common Stock
or in rights to acquire Common Stock, or shall effect a stock split or reverse
stock split, or a combination, consolidation or reclassification of the Common
Stock, then the Conversion Rate shall be proportionately decreased or
increased, as appropriate, to give effect to such event, and like adjustment
shall be made in any price per share specified elsewhere herein.
(e) Distributions. In the event the Corporation shall at any time or
from time to time make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in securities of the Corporation or any of its subsidiaries or other
property, other than cash dividends from earnings, then in each such event
provision shall be made so that the holders of Series A Preferred shall
receive, upon the conversion thereof, the securities or other property which
they would have received had they been the owners on the date of such event of
the number of shares of Common Stock issuable to them upon conversion.
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(f) Certificates as to Adjustments. Upon the occurrence of any
adjustments or readjustment of the Conversion Rate pursuant to Section 6(d)
hereof, or any provision for distribution pursuant to Section 6(e) hereof, or
any adjustment of the cash per-share prices specified herein, the Corporation
at its expense shall promptly compute such adjustment, readjustment or
provision in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred a certificate setting forth such adjustment,
readjustment or provision and showing in detail the facts upon which such
adjustment, readjustment or provision is based. The Corporation shall, upon
the written request at any time of any holder of Series A Preferred, furnish
or cause to be furnished to such holder a like certificate prepared by the
Corporation setting forth (i) such adjustments and readjustments, and (ii) the
number of other securities and the amount, if any, of other property which at
the time would be received upon the conversion of Series A Preferred with
respect to each share of Common Stock received upon such conversion. If any
holder disputes the computation of such adjustment or provision the
Corporation shall cause independent public accountants selected by the
Corporation to verify and, if necessary, correct such computation.
(g) Notice of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend) or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional shares
of Common Stock, or any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall give notice to each holder of
Series A Preferred at least 10 days prior to such date specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution, security or right and the amount and character of such dividend,
distribution, security or right.
(h) Issue Taxes. The Corporation shall pay any and all issue and other
taxes, excluding any income, franchise or similar taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Preferred pursuant hereto; provided, however, that the
Corporation shall not be obligated to pay any transfer taxes resulting from
any transfer requested by any holder in connection with any such conversion.
(i) Reservation of Stock Issuable Upon Conversion. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series A
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in best efforts to
obtain the requisite shareholder approval as promptly as practicable.
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(j) Fractional Shares. No fractional shares shall be issued upon the
conversion of any share or shares of Series A Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Series A Preferred by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of a fraction of a share of Common
Stock, the Corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors of the Corporation).
(k) Reorganization or Merger. In case of any reorganization or any
reclassification of the capital stock of the Corporation or any consolidation
or merger of the Corporation with or into any other corporation or
corporations or a sale of all or substantially all of the assets of the
Corporation to any other person, and the holders of Series A Preferred do not
elect to treat such transaction as a liquidation, dissolution or winding up as
provided in Section 3, then, as part of such reorganization, consolidation,
merger or sale, provision shall be made so that each share of Series A
Preferred shall thereafter be convertible into the number of shares of stock
or other securities or property (including cash) to which a holder of the
number of shares of Common Stock deliverable upon conversion of such share of
Series A Preferred would have been entitled upon the record date of (or date
of, if no record date is fixed) such event and, in any case, appropriate
adjustment (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series A Preferred, to the end that
the provisions set forth herein shall thereafter be applicable, as nearly as
equivalent as is practicable, in relation to any shares of stock or the
securities or property (including cash) thereafter deliverable upon the
conversion of the shares of Series A Preferred. The Corporation shall have no
obligation to obtain the prior consent of the holders of the Series A
Preferred, individually or as a class, except as expressly provided herein or
as provided by applicable law.
7. Cash Exchange Rights.
(a) Exchange Rights. At any time prior to June 25, 1999, the Series A
Preferred shall be exchangeable at the option of a holder for cash in amount
per share equal to 50% of the face value of the Series A Preferred Share plus
all accrued but unpaid dividends on the Series A Preferred Share, up to an
aggregate amount of $6.4 million face value and accrued and unpaid dividends
to the date of exchange. If, in the judgment of the Board of Directors of the
Corporation, the Corporation's financial condition and results of operations
permit the Corporation to permit the exchange for cash of more than $6.4
million face value (plus accrued dividends) of the Series A Preferred, the
terms of the Series A Preferred will permit the exchange for cash of up to
$8.0 million face value (plus accrued and unpaid dividends) of the Series A
Preferred. To the extent that holders of Series A Preferred desire to
exchange in the aggregate a greater face value (plus accrued and unpaid
dividends) of the Series A Preferred than is permitted under the terms of the
Series A Preferred, Series A Preferred will be accepted for exchange by the
Corporation for cash on a pro rata basis based upon the aggregate face value
(plus accrued and unpaid dividends) of the Series A Preferred validly tendered
for exchange.
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(b) Mechanics of Exchange. To exercise the exchange right set forth in
Section 7(a), the holder shall give written notice to the Corporation (which
notice may be given by facsimile transmission) that such holder elects to
exercise such right and shall state therein the number of shares to be
converted and the name or names in which such holder wishes the payment to be
received. Promptly thereafter the holder shall surrender the certificate or
certificates representing the shares to be exchanged, duly endorsed, at the
office of the Corporation or of any transfer agent for such shares, or at such
other place designated by the Corporation. The Corporation shall, immediately
upon receipt of such notice, issue and deliver to or upon the order of such
holder, against delivery of the certificates representing the shares which
have been converted, a check for payment of the cash amount to which such
holder shall be entitled, and a certificate representing the shares of Series
A Preferred not so exchanged, if any. The Corporation shall effect such
payment immediately and shall transmit the check by messenger or overnight
delivery service to reach the address designated by such holder within three
trading days after the receipt of such notice. Notice of the exercise of
exchange rights may be given by a holder at any time of day up to 5:00 p.m.
Los Angeles time, and such exercise shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Exchange Date"). The person or persons entitled to
receive payment upon such exchange shall be treated for all purposes as the
record holder or holders of such shares of Common Stock at the close of
business on the Exchange Date.
8. Notices.
Any notice to be given to the holders of the Series A Preferred shall be
(i) mailed by first class mail postage prepaid to each holder of Series A
Preferred at the address shown on the records of the Corporation for such
holder, (ii) transmitted by telecopy or facsimile transmission to any holder
which has supplied a telecopy or facsimile address to the Corporation, and
(iii) unless receipted for by telecopy or facsimile on the date such notice is
given, shall be transmitted by an overnight delivery service or courier
service for delivery at the address shown on the records of the Corporation
for such holder on the first business day following the date such notice is
given, or if delivery in one business day to such address cannot be effected
by such delivery service, then on the earliest day on which such delivery can
be made.
9. Registration Rights.
The corporation shall use its best efforts to file and cause to become
effective as of no later than 130 days after June 15th a registration
statement for Common Stock of the Corporation issuable upon exchange or
conversion of the Series A Preferred, to the extent such shares of Common
Stock are not then freely tradable under the federal securities laws.
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10. Restrictions and Limitations.
The Corporation shall not undertake the following actions without the consent
of the holders of a majority of the Series A Preferred: (i) modify its
Certificate of Incorporation or Bylaws so as to amend or change any of the
rights, preferences, or privileges of the Series A Preferred, (ii) authorize
or issue any other equity security senior to or ranking on parity with the
Series A Preferred, or (iii) pay any dividends in cash or property on, or
purchase or otherwise acquire for value, any Common Stock purchase or other
equity security of the Corporation either junior to or on a parity with the
Series A Preferred except from current or retained earnings or from the net
proceeds of sale of equity securities, except for purchases of Common Stock
from terminating or retiring employees pursuant to the terms of employee
benefit plans in an aggregate amount not greater than $1 million.
11. Voting Rights.
The Series A Preferred shall have no voting rights, except as otherwise
required by law and except in certain circumstances described herein,
including (i) amending certain rights of the holders of the Series A Preferred
and (ii) the issuance of any class of equity securities that ranks pari passu
with or senior to the Series A Preferred other than certain additional shares
of Series A Preferred.
12. Attorneys' Fees.
Any holder of Series A Preferred shall be entitled to recover from the
Corporation reasonable attorneys' fees and expenses incurred by such holder in
connection with enforcement by such holder of any obligation of the
Corporation hereunder, if such holder is the prevailing party in an action or
proceeding to compel such enforcement."
SECOND, that the proposed amendment has been duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware and that notice of the taking of such action by written consent has
been given as provided in Section 228 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. David Sikes, its Chairman of the
Board and Chief Executive Officer, this 6th day of August 1999.
Ramtron International Corporation
By: /S/ L. David Sikes
--------------------
L. David Sikes
Chairman of the Board and
Chief Executive Officer
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State of Delaware
Office of the Secretary of State
I, Edward J. Freel, Secretary of State of the State of Delaware, do hereby
certify the attached is a true and correct copy of the Certificate of
Amendment of "Ramtron International Corporation", filed in this office on the
sixth day of August, A.D. 1999, at 1:05 O'clock P.M.
A filed copy of this certificate has been forwarded to the New Castle County
Recorder of Deeds.
/S/ Edward J. Freel
- -----------------------------------
Edward J. Freel, Secretary of State
Authentication: 9908479
Date: 08-06-99
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State of Delaware
Secretary of State
Division of Corporations
Filed 01:05 PM 08/06/1999
991327102 - 2026110
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
Ramtron International Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that the first numbered paragraph of Article FOURTH of the
Certificate of Incorporation, as amended, is hereby deleted and the following
is substituted in lieu thereof:
"FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is 60,000,000, consisting of 50,000,000 shares
of common stock, par value $0.01 per share (the "Common Stock"), and
10,000,000 shares of preferred stock, par value $0.01 per shares (the
"Preferred Stock").
Immediately upon the filing of this Amendment to the Certificate of
Incorporation (the "Effective Time"), each 5 shares of the Common Stock,
issued and outstanding immediately prior to the Effective Time (the "Old
Common Stock"), shall automatically, without further action on the part of the
Corporation or any holder of Old Common Stock, be combined, converted and
changed into one (1) fully paid and nonassessable share of Common Stock (the
"New Common Stock" and the "Reverse Stock Split"), subject to the treatment of
fractional share interests as described below. The conversion of the Old
Common Stock into New Common Stock will be deemed to occur at the Effective
Time regardless of when the certificates representing such Old Common Stock
are physically surrendered to the Corporation in exchange for certificates
representing New Common Stock. After the Effective Time, certificates
representing the Old Common Stock will, until surrendered to the Corporation
in exchange for New Common Stock, represent the number of shares of New Common
Stock into which such Old Common Stock shall have been converted pursuant to
this Amendment and the right to receive cash in lieu of any fractional share
interest. No certificates representing fractional shares of New Common Stock
shall be issued in connection with the Reverse Stock Split. Holders who
otherwise would be entitled to receive fractional share interests of New
Common Stock shall be entitled to receive in lieu of fractional shares and
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upon surrender to the Corporation's transfer agent of their certificates
representing Old Common Stock, duly endorsed, a cash payment in an amount
equal to the product calculated by multiplying (i) the closing sales price of
the Corporation's Common Stock on the Effective Date as reported on The Nasdaq
Stock Market or, if no such sales price exists, the mid-range between the last
bid and asked price on the Effective Date by (ii) the number of shares of Old
Common Stock held by such holder that would otherwise have been converted into
a fractional share interest. Upon surrender by a holder of Old Common Stock
of a certificate or certificates for Old Common Stock, duly endorsed, to the
Corporation's transfer agent, the Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder of Old Common Stock, or to the
nominee or nominees of such holder, a certificate or certificates for the
number of shares of New Common Stock to which such holder shall be entitled as
aforesaid together with cash in lieu of any fractional share interest."
SECOND, that said Amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. David Sikes, its Chairman of
the Board and Chief Executive Officer, this 6th day of August 1999.
Ramtron International Corporation
By: /S/ L. David Sikes
--------------------
L. David Sikes
Chairman of the Board and
Chief Executive Officer
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PREFERRED STOCK RECAPITALIZATION AGREEMENT
This Preferred Stock Recapitalization Agreement is dated as of July 30, 1999,
among Ramtron International Corporation ("Ramtron"), a Delaware corporation,
and the holders, severally, of Ramtron's Series A Convertible Preferred Stock
executing this Agreement (each a "Series A Stockholder" and together the
"Series A Stockholders").
RECITALS:
A. Each of the Series A Stockholders and Ramtron entered into a Preferred
Stock Investment Agreement dated as of February 25, 1998 (each an "Investment
Agreement" and together the "Investment Agreements"), pursuant to which the
Series A Stockholders purchased from Ramtron shares of Ramtron's Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Stock").
B. The Series A Stockholders and Ramtron wish to amend and restate the
Certificate of Designation, Preferences, Rights and Limitations (the
"Certificate of Designation") filed on February 12, 1998, with the Secretary
of State of Delaware, pursuant to which the preferences, rights and
limitations of the Series A Stock were established.
C. The Series A Stockholders and Ramtron wish to set forth in this Agreement
their respective rights and obligations concerning Ramtron's recapitalization
to be consummated in connection with the proposed amendment of the Certificate
of Designation.
NOW, THEREFORE, in consideration of the Recitals, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Amendment of Certificate of Incorporation and Termination of Investment
Agreements. Subject only to the satisfaction or waiver of the conditions set
forth in Section 3 of this Agreement:
(a) Ramtron and the Series A Stockholders, respectively, shall as soon as
practicable following the execution and delivery of this Agreement take all
necessary and appropriate actions (including executing, as may be appropriate,
written consents, certificates of amendment and other documents and
instruments) to cause Ramtron's Certificate of Incorporation to be amended so
as to amend and restate the Certificate of Designation and to have the form
and content of Exhibit A hereto (the "Certificate of Amendment").
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(b) By their execution hereof, Ramtron and the Series A Stockholders,
respectively, terminate each Investment Agreement.
2. The Closing. In order to co-ordinate the effective consummation of the
actions to be taken pursuant to this Agreement upon satisfaction or waiver of
the conditions set forth in Section 3 of this Agreement, representatives of
Ramtron and the Series A Stockholders shall conduct a closing (the "Closing")
at Ramtron's offices or at such other place as Ramtron and the Series A
Stockholders may agree on the later of the following: (a) the date on which
the last to be fulfilled or waived of the conditions set forth in Section 3
hereof shall be fulfilled or waived in accordance with this Agreement, and
(b) such other time and date as Ramtron and the Series A Stockholders may
agree. The date on which the Closing occurs is hereinafter called the
"Closing Date." Prior to or at the Closing, Ramtron and the Series A
Stockholders shall execute and deliver originals of any required consents,
instruments or documents as may not previously have been executed and
delivered, including without limitation the consents to the Certificate of
Amendment to be filed on the Closing Date in order to approve the Certificate
of Amendment provided in Section 1(a).
3. Conditions of Closing.
(a) The obligations of the Series A Stockholders set forth in this
Agreement are subject to the fulfillment or waiver, at or before the Closing,
of each of the following conditions:
(i) (A) Ramtron's common stockholders shall have approved Proposals
1A and 1B at a special meeting held on July 20, 1999, in
accordance with Ramtron's Notice of Special Meeting dated
June 21, 1999; (B) the purchasers (the "DFA Stockholders") of
Ramtron's Common Stock pursuant to Stock Purchase Agreements
dated as of December 23, 1997 (the "DFA Purchase Agreements"),
shall have entered into and closed, or shall enter into and
close concurrently with the Closing of this Agreement, the DFA
Stockholder Recapitalization Agreement with Ramtron providing
for, among other matters, the termination of the DFA Purchase
Agreements; (C) the holders of a majority of the shares of
Series A Stock shall have approved the amendment of Ramtron's
Certificate of Incorporation as provided in Section 1(a) and if
such approval is by written consent of less than all Series A
Stockholders, Ramtron shall have given written notice to each
Series A Stockholder who has not so consented; (D) Ramtron's
Board of Directors shall have approved and authorized the
execution and filing with the Delaware Secretary of State of the
Certificate of Amendment; and (E) NEBF and Ramtron shall have
amended the Loan Agreement dated August 31, 1995, or shall have
prepared and signed a separate document, to provide (among other
things) for (I) NEBF's irrevocable consent to the amendment of
Ramtron's Certificate of Incorporation as provided in Section
1(a), (II) the extension of the maturity date for the loan to a
date not earlier than March 15, 2002, and (III) the release of
certain categories of collateral pledged as security for
repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction
of certain performance milestones.
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(ii) Each of the representations and warranties of Ramtron contained
in Section 4 shall be true and correct in all material respects
on and as of the Closing Date with the same effect as though
such representations and warranties had been made as of the
Closing.
(iii) Ramtron shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before
the Closing and shall have obtained all approvals, consents and
qualifications necessary to completely perform its obligations
undertaken herein.
(iv) Ramtron shall have provided to each of the Series A
Stockholders or their representative a copy, certified by
Ramtron's Secretary, of the resolutions of the Board of
Directors of Ramtron providing for the authorization and
approval of this Agreement and the matters mentioned in
Section 3(a)(i)(D).
(v) Ramtron's Common Stock shall be listed on The Nasdaq SmallCap
Market ("Nasdaq") and trading in Ramtron's Common Stock shall
not have been suspended by Nasdaq, the Securities and Exchange
Commission (the "SEC") or other regulatory authority.
(vi) No action, suit, proceeding, inquiry or investigation before or
by any court, public board, governmental agency or authority
shall be known to Ramtron to have been filed against or
affecting Ramtron or Enhanced Memory Systems, Inc.("EMS"), a
Delaware corporation wholly owned by Ramtron, which seeks to
prevent, enjoin, alter or delay the transactions contemplated
by this Agreement or which if decided adversely to Ramtron
would affect the validity or enforceability of this Agreement
or the Series A Stock.
(vii) The Series A Stockholders shall have received an opinion of
counsel for the Company, dated as of the Closing Date, as to
the matters of Delaware law set forth in Exhibit B, subject to
such conditions and exceptions as are usual in such opinions.
(b) The obligations of Ramtron set forth in this Agreement are subject to
the fulfillment or waiver, at or before the Closing, of each of the following
conditions:
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(i) (A) Ramtron's common stockholders shall have approved Proposals
1A and 1B at a special meeting held on July 20, 1999, in
accordance with Ramtron's Notice of Special Meeting dated
June 21, 1999; (B) the DFA Stockholders shall have entered into
and closed, or shall enter into and close concurrently with the
Closing of this Agreement, the DFA Stockholder Recapitalization
Agreement with Ramtron providing for, among other matters, the
termination of the DFA Purchase Agreements; (C) the holders of a
majority of the shares of Series A Stock shall have approved the
amendment of Ramtron's Certificate of Incorporation as provided
in Section 1(a); and (D) NEBF and Ramtron shall have amended the
Loan Agreement dated August 31, 1995, or shall have prepared and
signed a separate document, to provide (among other things) for
(I) NEBF's irrevocable consent to the amendment of Ramtron's
Certificate of Incorporation as provided in Section 1(a),
(II) the extension of the maturity date for the loan to a date
not earlier than March 15, 2002, and (III) the release of
certain categories of collateral pledged as security for
repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction
of certain performance milestones.
(ii) All legal actions of any type filed against Ramtron by any of
the Series A Stockholders, or their respective transferees,
affiliates, associates, stockholders, partners members and other
related parties, and all legal actions of any type filed against
Ramtron by any of the DFA Stockholders, or their respective
affiliates, associates, stockholders, partners, members and
other related parties, shall have been dismissed with prejudice
or appropriate documents to effect such dismissal shall have
been delivered to Ramtron.
(iii) Each of the representations and warranties of the Series A
Stockholders contained in Section 5 shall be true and correct in
all material respects on and as of the Closing Date, with the
same effect as though such representations and warranties had
been made as of the Closing.
(iv) The Series A Stockholders shall have performed and complied with
all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by
the Series A Stockholders on or before the Closing and shall
have obtained all approvals, consents and qualifications
necessary to completely perform their obligations undertaken
herein.
4. Representations and Warranties of Ramtron. Ramtron represents and
warrants to the Series A Stockholders as of the date hereof and as of the
Closing Date:
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(a) Organization and Qualification. Each of Ramtron and EMS is a
corporation duly incorporated and existing in good standing under the laws of
Delaware and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Each of Ramtron and EMS is duly
qualified as a corporation authorized to do business, and is in good standing,
in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary other than those in
which the failure so to qualify would not have a Material Adverse Effect.
"Material Adverse Effect" means any adverse effect on the business,
operations, properties, or financial condition of Ramtron.
(b) Authorization; Enforcement. (i) Ramtron has the requisite corporate
power and authority to enter into and perform this Agreement and to issue
shares of Common Stock upon conversion of the Series A Stock in accordance
with the terms of the Certificate of Amendment, (ii) the execution and
delivery of this Agreement by Ramtron and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, the required written notice has been given to the Series A
Stockholders who did not deliver a written consent approving the amendment to
Ramtron's Certificate of Incorporation, and no further consent or
authorization of Ramtron or its Board of Directors or stockholders is
required, (iii) this Agreement has been duly executed and delivered by
Ramtron, and (iv) this Agreement constitutes a valid and binding obligation of
Ramtron enforceable against Ramtron in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application. The Common Stock issuable
upon conversion of the Series A Stock will be duly authorized and reserved for
issuance and, upon conversion in accordance with the Certificate of Amendment
to be filed by Ramtron pursuant to Section 1(a) of this Agreement, will be
validly issued, fully paid and non-assessable and not subject to any
preemptive rights or adverse claims, and the holders shall be entitled to all
rights and preferences accorded to a holder of Common Stock. The Series A
Stock issuable as dividends on the Series A Stock, whether such dividends were
accrued before or after the effective date of the Certificate of Amendment,
will be fully paid and non-assessable and not subject to any preemptive rights
or adverse claims and the holders will be entitled to all rights and
preferences accorded to holders of Series A Stock.
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(c) Capitalization. The authorized capital stock of Ramtron consists of
75,000,000 shares of Common Stock and 10,000,000 shares of preferred stock;
there are approximately 62,759,301 shares of Common Stock and 8,878 shares of
preferred stock issued and outstanding. Ramtron's common stockholders
approved Proposals 1A and 1B at the common stockholders meeting held on
July 20, 1999. Upon the effectiveness of the 1:5 reverse stock split of
Ramtron's Common Stock, to be effected immediately following the effectiveness
of the Certificate of Amendment: Ramtron will have authorized capital of
60,000,000 shares, consisting of 50,000,000 shares of Common Stock and
10,000,000 shares of preferred stock, and there will be outstanding
approximately 12,551,860 shares of Common Stock and 8,878 shares of Series A
Stock, the conversion rights of which shall be adjusted pursuant to the
Certificate of Amendment to account for the reverse stock split. All of the
outstanding shares of Ramtron's Common Stock have been validly issued and are
fully paid and non-assessable. Except as described in the SEC Documents (as
hereinafter defined), except for the rights of the Series A Stockholders and
each of the DFA Stockholders and except for the right of NEBF to convert its
loan to Ramtron into Ramtron Common Stock and the registration rights of NEBF
with respect to shares of Ramtron's Common Stock held by, and to be issued to,
NEBF, no shares of Common Stock are entitled to preemptive rights or
registration rights and there are no outstanding options, convertible
securities, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatever relating to, or securities or rights convertible into,
any shares of capital stock of Ramtron, or contracts, commitments,
understandings, or arrangements by which Ramtron is or may become bound to
issue additional shares of capital stock or options, warrants, scrip, rights
to subscribe to, or commitments to purchase or acquire, any shares, or
securities or rights convertible into shares, of capital stock of Ramtron.
All of the rights to purchase Ramtron Common Stock described in the
immediately preceding sentence, and the conversion rights under the promissory
notes issued to the DFA Stockholders, are subject to adjustment to account for
the 1:5 reverse stock split to be effected pursuant to Proposal 1B approved on
July 20, 1999, by Ramtron's common stockholders. Ramtron has furnished or
made available to the Series A Stockholders true and correct copies of
Ramtron's Certificate of Incorporation as in effect on the date hereof, and
Ramtron's By-Laws, as in effect on the date hereof.
(d) No Conflicts. The execution, delivery and performance of this
Agreement by Ramtron and the consummation by Ramtron of the transactions
contemplated hereby do not and will not (i) result in a violation of EMS'
Certificate of Incorporation, in a violation of Ramtron's Certificate of
Incorporation as it shall be amended by the Certificate of Amendment; or in a
violation of the By-Laws of EMS or of Ramtron, (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which Ramtron or EMS is a party or (iii) result in a violation
of any Federal, state, local or foreign law, rule or regulation, order,
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judgment or decree (including Federal and state securities laws and
regulations) applicable to Ramtron or EMS or by which any property or asset of
Ramtron or EMS is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect);
provided that, for purposes of such representation as to Federal, state, local
or foreign law, rule or regulation, no representation is made herein with
respect to any of the same applicable solely to the Series A Stockholders and
not to Ramtron. Neither the business of Ramtron nor EMS is being conducted in
violation of any law, ordinance or regulations of any governmental entity,
except for violations which either singly or in the aggregate do not and will
not have a Material Adverse Effect. Ramtron is not required under Federal,
state or local law, rule or regulation in the United States to obtain any
consent, authorization or order of, or make any filing (other than the filing
of the Certificate of Amendment with the Delaware Secretary of State, as
required for the consummation of this Agreement pursuant to Section 3(a)(i))
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement (other
than any SEC or state securities filings which may be required to be made by
Ramtron in connection with any registration statement which may be filed
pursuant hereto and any notifications to the National Association of
Securities Dealers with respect to the shares of Common Stock to be issued
pursuant to the Certificate of Amendment); provided that, for purposes of the
representation made in this sentence, Ramtron is assuming and relying upon the
accuracy of the relevant representations and agreements of the Series A
Stockholders herein.
(e) SEC Documents, Financial Statements. The Common Stock of Ramtron is
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Ramtron has filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d), in addition to one or more
registration statements and amendments thereto heretofore filed by Ramtron
with the SEC (all of the foregoing including filings incorporated by reference
therein being referred to herein as the "SEC Documents"). As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted principles
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applied on a consistent basis during the periods (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or
(ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) fairly present in
all material respects the financial position of Ramtron as of the dates
thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(f) Absence of Litigation. Except as disclosed at the end of this Section
4(f), there is no action, suit, or proceeding before or by any court, public
board, governmental agency or authority, or self-regulatory organization
pending or, to the knowledge of Ramtron, threatened against Ramtron or any of
its respective directors or officers in their capacities as such, wherein an
unfavorable decision, ruling or finding could reasonably be expected to have a
Material Adverse Effect or would adversely affect the transactions
contemplated by this Agreement or any of the documents contemplated hereby or
which would adversely affect the validity or enforceability of, or the
authority or ability of Ramtron to perform its obligations under, this
Agreement or any of such other documents. To Ramtron's knowledge, there are no
facts which, if known by a potential claimant or governmental agency or
authority, could give rise to a claim or proceeding which, if asserted or
conducted with results unfavorable to Ramtron, could reasonably be expected to
have a Material Adverse Effect. Pursuant to the decision of the Nasdaq
Listing Qualification Panel provided to Ramtron in a letter dated June 18,
1999, Ramtron's Common Stock will be delisted from the Nasdaq SmallCap Market
unless, by August 6, 1999, Ramtron evidences a closing bid price of not less
than $1.00 per share, and, thereafter, Ramtron continues to evidence a closing
bid price of at least $1.00 per share for a minimum of ten consecutive trading
days.
(g) No Anti-Takeover Plan. There is not in effect any shareholders
rights plan or other capital structure the intent of which is to prevent or
impede a future change of the current management of Ramtron.
(h) Nasdaq Status. Upon the effectiveness of the Certificate of
Amendment, (i) the shares of Series A Stock will not constitute a "future
priced security" for purposes of the Nasdaq proposed rule change entitled
"Interpretative Material Regarding Future Priced Securities"; (ii) Nasdaq Rule
4330 as interpreted in that Interpretative Material will not be violated by
the terms of the Certificate of Amendment; and (iii) the rights and
preferences of the Series A Stock pursuant to the Certificate of Amendment do
not constitute a change in financial structure requiring Ramtron to satisfy
Nasdaq's initial inclusion requirements.
(i) No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to Ramtron or EMS or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by Ramtron but which has not been so publicly announced or
disclosed.
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(j) No Material Adverse Change. Since the date through which the most
recent quarterly report of Ramtron on Form 10-Q has been filed with the SEC,
no event which would have a Material Adverse Effect has occurred or exists
with respect to Ramtron or EMS except as otherwise disclosed or reflected in
other SEC Documents prepared through or as of a date subsequent thereto.
(k) No Third Party Actions. Ramtron has no knowledge of any action,
suit, proceeding, inquiry or investigation, before or by any court, public
board, government agency or authority and has no notice that any party intends
to institute any of the foregoing, which seeks to prevent, enjoin, alter or
delay the transactions contemplated by this Agreement or which if decided
adversely to Ramtron would affect the validity or enforceability of the
Agreement or the Series A Stock.
5. Representations and Warranties of Series A Stockholders. Each Series A
Stockholder represents and warrants to Ramtron as of the date hereof and as of
the Closing Date, solely with respect to such stockholder and not with respect
to any other Series A Stockholder (and no Series A Stockholder shall be deemed
to make or have any liability for any representation or warranty made by any
other Series A Stockholder):
(a) Authorization, Enforcement. (i) The Series A Stockholder has the
requisite power and authority to enter into and perform this Agreement,
(ii) the execution and delivery of this Agreement by the Series A Stockholder
and the consummation by such stockholder of the transactions contemplated
hereby have been duly authorized (if applicable) by all necessary corporate or
partnership action, and (iii) this Agreement constitutes a valid and binding
obligation of the Series A Stockholder enforceable against the Series A
Stockholder in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable
principals of general application.
(b) No Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the Series A Stockholder of the transactions
contemplated hereby do not and will not (i) result in a violation of (if
applicable) the Series A Stockholder's charter documents or By-Laws,
(ii) conflict with any agreement, indenture or instrument to which the Series
A Stockholder is a party, or (iii) result in a violation of any law, rule or
regulation, or any order, judgment or decree of any court or governmental
agency applicable to the Series A Stockholder (except for such conflicts,
defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a material
adverse effect on the Series A Stockholder). The Series A Stockholder is not
required to obtain any consent or authorization of any governmental agency in
order for such stockholder to perform such stockholder's obligations under
this Agreement. The data to be provided by the Series A Stockholder in
connection with registering Registerable Securities (as hereinafter defined)
under the Securities Act of 1933, as amended (the "Act"), will be true and
accurate in all material respects.
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(c) Accredited Investor. The Series A Stockholder is an accredited
investor as defined in Rule 501 promulgated under the Act. The Series A
Stockholder has such knowledge and experience in financial and business
matters in general, and investments in particular, so that the Series A
Stockholder is able to evaluate the merits and risks of the transactions
contemplated under this Agreement and to protect such stockholder's own
interests in connection with such stockholder's investment in the Series A
Stock.
(d) Information. The Series A Stockholder acknowledges (but without
limiting the effect of Ramtron's representations and warranties contained
herein), that such stockholder has received such information as such
stockholder considers necessary or appropriate for deciding whether to execute
this Agreement.
(e) Rule 144. The Series A Stockholder understands that there is no
public trading market for Series A Stock, that none is expected to develop,
and that shares of the Series A Stock must be held indefinitely unless such
shares or securities into which the shares of Series A Stock are converted are
registered under the Act or an exemption from registration is available. The
Series A Stockholder has been advised or is aware of the provisions of Rule
144 promulgated under the Act.
6. Covenants of Ramtron. Ramtron covenants and agrees as follows:
(a) Ramtron shall use its best efforts and shall act in good faith to
cause to occur all conditions to Closing which are in Ramtron's control.
(b) Ramtron shall file with the Delaware Secretary of State on the
Closing Date the Certificate of Amendment in substance and form of Exhibit A,
and immediately thereafter, Ramtron also shall file with the Delaware
Secretary of State a second certificate of amendment to its Certificate of
Incorporation effecting the 1:5 reverse stock split pursuant to Proposal 1B
approved on July 20, 1999, by Ramtron's common stockholders.
(c) Ramtron acknowledges that irreparable damage would occur in the event
that the conversion rights provided for herein and in the Certificate of
Amendment were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Series A Stockholders
shall be entitled to an injunction or injunctions to prevent or cure breaches
of the conversion provisions of this Agreement and of the Certificate of
Amendment to enforce specifically the terms and provisions hereof and thereof,
this being in addition to any other remedy to which they may be entitled by
law or equity.
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(d) Ramtron shall file one or more registration statements as provided
in, and comply with its obligations undertaken in, Section 8.
(e) Ramtron shall determine the "fair market value of such fraction on
the date of conversion" provided in Section 6(j) of the Certificate of
Amendment in the same way as is provided in the penultimate sentence of
Article Fourth of the certificate of amendment, attached as Exhibit C to
Ramtron's Proxy Statement filed with the SEC on June 21, 1999, effecting the
1:5 reverse stock split, except that the "Effective Date" shall mean the day
on which the conversion is effected.
(f) Ramtron, for itself, and for its predecessors, successors, assigns,
subsidiaries, affiliates, officers, directors, shareholders and agents fully
and unconditionally releases, discharges and covenants to hold harmless each
Series A Stockholder and each of their successors, assigns, subsidiaries,
affiliates, officers, directors, shareholders and agents from any and all
causes of action, including without limitation claims, demands, administrative
complaints, lawsuits, rights, judgments, liens, damages, debts and expenses
(including attorneys' fees and costs actually incurred), liabilities and
obligations of any kind and nature whatsoever, whether intentional or
negligent, known or unknown, suspected or unsuspected, in law or in equity,
individually or as part of a class action, including any and all known and
unknown, foreseen or unforeseen, injuries, damages and losses, arising from,
relating or attributable in any manner to the Investment Agreements, the
Certificate of Designation or the Series A Stock and occurring prior to the
Closing Date, except that the foregoing will not affect any rights arising
under this Agreement, the Certificate of Amendment or any other documents
executed and delivered in connection with this Agreement. The provisions of
any laws providing in substance that releases shall not extend to claims which
are unknown or unsuspected at the time, to the person executing such waiver or
release, are hereby expressly waived. Ramtron certifies that it has not
assigned or transferred, purported to assign or transfer, and will not assign
or transfer any matter herein released.
(g) During such period as any of the shares of Series A Stock is
outstanding, Ramtron will cause the Common Stock (or other securities into
which the shares of Series A Stock are convertible) to continue to be
registered under Section 12(b) or 12(g) of the Exchange Act, will comply in
all respects with its reporting and filing obligations under said act, will
comply with all requirements related to any registration statement filed
pursuant to this Agreement and will not take any action or file any document
(whether or not permitted by the Act or the Exchange Act or the rules
thereunder) to terminate or suspend such registration or to terminate or
suspend its reporting and filing obligations under said acts, except as
permitted herein. During the time that the Series A Stock is outstanding,
Ramtron will use commercially reasonable efforts to continue the listing or
trading of its Common Stock (or other securities into which the shares of
Series A Stock are convertible) on Nasdaq and will comply in all respects with
Ramtron's reporting, filing and other obligations under the bylaws or rules of
Nasdaq.
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(h) Ramtron represents and warrants that on the date hereof, and Ramtron
covenants that at the time of any conversion made pursuant to Section 6(a) of
the Certificate of Amendment or upon the issuance of all accrued and unpaid
dividends pursuant to Section 9(b) of this Agreement, Ramtron shall have
sufficient surplus, as required by Delaware law, to effect lawfully such
conversion or issuance.
7. Covenants of Series A Stockholders. Each Series A Stockholder severally,
and not jointly, covenants and agrees as follows:
(a) The Series A Stockholder shall use its best efforts and shall act in
good faith to cause to occur all conditions to Closing which are in the Series
A Stockholder's control.
(b) The Series A Stockholder shall not be entitled to convert any Series
A Stock into Common Stock of Ramtron if following conversion of such Series A
Stock, the converting Series A Stockholder and its affiliates (within the
meaning of the Exchange Act) shall be the beneficial owners (as defined in
Rule 13d-3 under the Exchange Act) of 10% or more of Ramtron's Common Stock.
The provisions of this Section 7(b) cannot be amended.
(c) Upon the consummation of the transactions contemplated by this
Agreement, the Series A Stockholder acknowledges and agrees that Ramtron has
no obligation to honor any conversion requests except under the Certificate of
Amendment.
(d) Upon the consummation of the transactions contemplated by this
Agreement, the Series A Stockholder for itself, himself or herself and for
such stockholder's predecessors, successors, assigns, subsidiaries,
affiliates, officers, directors, shareholders and agents fully and
unconditionally releases, discharges and covenants to hold harmless Ramtron
and its successors, assigns, subsidiaries, affiliates, officers, directors,
shareholders and agents from any and all causes of action, including without
limitation claims, demands, administrative complaints, lawsuits, rights,
judgments, liens, damages, debts and expenses (including attorneys' fees and
costs actually incurred), liabilities and obligations of any kind and nature
whatsoever, whether intentional or negligent, known or unknown, suspected or
unsuspected, in law or in equity, individually or as part of a class action,
including any and all known and unknown, foreseen or unforeseen, injuries,
damages and losses, arising from, relating or attributable in any manner to
the Investment Agreements, the Certificate of Designation or the Series A
Stock and occurring prior to the Closing Date, except that the foregoing will
not affect (i) the rights of Series A Stockholders to receive accrued but
unpaid dividends, or (ii) any rights arising under this Agreement, the
Certificate of Amendment or any other documents executed and delivered in
connection with this Agreement. The provisions of any laws providing in
substance that releases shall not extend to claims which are unknown or
unsuspected at the time, to the person executing such waiver or release, are
hereby expressly waived. Each Series A Stockholder certifies that such
stockholder has not assigned or transferred, purported to assign or transfer,
and will not assign or transfer any matter herein released.
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(e) If a Series A Stockholder, or any of its transferees, affiliates,
associates, stockholders, partners, members and other related parties, has
filed any type of legal action against Ramtron, such Series A Stockholder
agrees to dismiss such action with prejudice, or to deliver to Ramtron
appropriate documents to effect such dismissal with prejudice, prior to or on
the Closing Date.
8. Covenant to Register Shares of Common Stock
(a) For purposes of this Section, the following definitions shall apply:
(i) The terms "register," "registered" and "registration" refer to a
registration under the Act, effected by preparing and filing a
registration statement in compliance with the Act, and the
declaration or ordering of effectiveness of such registration
statement or amendment thereto.
(ii) The term "Registrable Securities" means (A) the shares of common
stock issued or issuable upon conversion of Series A Stock, or
(B) any securities of Ramtron or securities of any successor
corporation issued pursuant to the provisions of the Certificate
of Amendment or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as a dividend or
other distribution with respect to, or in exchange for or in
replacement of, Series A Stock, which in either case (I) have
not been resold pursuant to an effective registration statement
or pursuant to Rule 144 under the Act or (II) may not be resold
pursuant to Rule 144(k) under the Act. For purposes of this
Agreement, securities will be considered ineligible for resale
pursuant to Rule 144(k) under the Act unless Ramtron's transfer
agent has accepted an instruction from Ramtron specifying that
such securities are eligible for sale pursuant to Rule 144(k).
(iii) The term "holder of Registrable Securities" includes any person
who holds Shares of Series A Stock which are convertible into
Registrable Securities.
(b) (i) Ramtron shall, within ten (10) business days after the Closing
Date, file a registration statement on Form S-3, or if Form S-3
is not then available, another appropriate form, covering the
resale of all the Registrable Securities under Rule 415 and, to
the extent applicable, Rule 416. The number of shares of Common
Stock included in such registration statement shall be not less
than the aggregate number which would be issuable upon
conversion of all outstanding Shares of Series A Stock,
including Shares of Series A Stock subject to the Series A
placement agents' warrants, if all thereof were to be converted
at the conversion price specified in Section 6(a)(i) or (ii), as
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applicable, of the Certificate of Amendment. Ramtron shall use
its best efforts to cause such registration statement to become
effective by the 130th calendar day after the Closing Date (the
"Initial Registration"). In the event such registration is not
so declared effective or if at any time thereafter it does not
include all of the number of Registrable Securities which would
then be issuable upon conversion of the shares of Series A Stock
(or any successor security), any holder of Registrable Securities
shall have the right to require by notice in writing that Ramtron
register all or any part of the Registrable Securities held by
such holder (a "Demand Registration") and Ramtron shall thereupon
effect such registration in accordance herewith (which may
include adding such shares to an existing shelf registration).
The parties agree that if the holder of Registrable Securities
demands registration of less than all of the Registrable
Securities, Ramtron, at its option, may nevertheless file a
registration statement covering all of the Registrable
Securities. If such registration statement is declared effective
with respect to all Registrable Securities, then so long as
Ramtron is in compliance with its obligations under Sections
8(c)(i) through (v), the demand registration rights granted
pursuant to this Section 8(b)(i) shall not be applicable.
Ramtron shall provide holders of Registrable Securities
reasonable opportunity to review any such registration statement
or amendment or supplement thereto prior to the filing thereof.
(ii) Ramtron may suspend the effectiveness of any such registration
effected pursuant to this Section 8(b) in the event, and for such
period of time as, such a suspension is required by the rules and
regulations of the SEC, and may suspend use of the prospectus
included in the Registration Statement if such prospectus ceases
to meet the requirements of Section 10 of the Act. Ramtron will
immediately advise the holders of the registered securities of
any such suspension, and will use its best efforts to cause such
suspension to terminate at the earliest possible date. The Series
A Stockholder agrees that following receipt of any such notice,
and until such suspension is terminated, the Series A Stockholder
will not make use of the suspended prospectus and will make no
sales requiring delivery of such prospectus.
(c) Whenever required under this Section to effect the registration of
any Registrable Securities, including, without limitation, the Initial
Registration, Ramtron shall, as expeditiously as reasonably possible:
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(i) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts
to cause such registration to become effective as provided in
Section 8(b)(i), and keep such registration statement effective
for so long as any holder of Registrable Securities desires to
dispose of the securities covered by such registration
statement, or if earlier, until such Registrable Securities may
be sold under Rule 144(k) (provided that Ramtron's transfer
agent has accepted an instruction from Ramtron to such effect).
(ii) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in
connection with such registration statement as may be necessary
to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration
statement and notify the holders of the filing and the
effectiveness of such Registration Statement and any amendments
or supplements.
(iii) Furnish to each holder of Registrable Securities such numbers of
copies of a current prospectus conforming with the requirements
of the Act, copies of the registration statement, any amendment
or supplement thereto and any documents incorporated by
reference therein and such other documents as such holder of
Registrable Securities may reasonably require in order to
facilitate the disposition of Registrable Securities owned by
such holder of Registrable Securities.
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such securities or
"Blue Sky" laws of such jurisdictions as shall be reasonably
requested by a holder of Registrable Securities and keep such
registration or qualification effective as long as required to
permit sale of Registrable Securities thereunder, provided that
Ramtron shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions.
(v) Notify each holder of Registrable Securities immediately of the
happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing, and use its best efforts to
promptly update and/or correct such prospectus.
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(vi) Upon request in writing to Ramtron, furnish to each holder of
Registrable Securities included therein (A) an opinion of
counsel to Ramtron covering compliance of the registration
statement, as to form with the requirements of the Act and the
rules thereunder, and covering the matters covered in the
opinion filed as an exhibit to the registration statement, and
(B) a "cold comfort" letter or letters of Ramtron's independent
public accountants in the form and of the substance customarily
supplied to underwriters in connection with a public offering.
(vii) Use its best efforts to list the Registrable Securities covered
by such registration statement with any national market or
securities exchange on which the Common Stock is then listed.
(viii) Make available for inspection by any holder of Registrable
Securities, upon request, all documents filed with the SEC
subsequent to the Closing Date and require Ramtron's
representatives to supply all information reasonably requested
by any holder of Registrable Securities in connection with such
registration statement.
(d) Each holder of Registrable Securities will furnish to Ramtron in
connection with any registration under this Section such information regarding
itself, the Registrable Securities and other securities of Ramtron held by it,
and the intended method of disposition of such securities as shall be
reasonably required to effect the registration of the Registrable Securities
held by such holder of Registrable Securities. Initially, and without
limitation of the preceding sentence, each holder of Registrable Securities
shall provide such data as of the Closing Date or a date not more than five
(5) days after the Closing Date. The intended method of disposition (Plan of
Distribution) of such securities as so provided by the holder of Registrable
Securities shall be included without alteration in the Registration Statement
covering the Registrable Securities and shall not be changed without written
consent of the holder of Registrable Securities.
(e) (i) Ramtron shall indemnify, defend and hold harmless each holder of
Registrable Securities which are included in the registration
statement pursuant to the provisions of Section 8(b) (each, a
"Selling Shareholder") and each of its officers, directors,
employees, agents, partners or controlling persons (within the
meaning of the Act) (each, for purposes of this Section 8(e)(i),
an "indemnified party") from and against, and shall reimburse
such indemnified party with respect to, any and all claims,
suits, demands, causes of action, losses, damages, liabilities,
costs or expenses ("Liabilities") to which such indemnified
party may become subject under the Act or otherwise, arising
from or relating to (A) any untrue statement or alleged untrue
statement of any material fact contained in such registration
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statement, any prospectus contained therein or any amendment or
supplement thereto, or (B) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided,
however, that Ramtron shall not be liable in any such case to
the extent that any such Liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any preliminary prospectus if (A) a
Selling Shareholder under an obligation to send or deliver a
copy of the prospectus with or prior to the delivery of written
confirmation of the sale of Registrable Securities to the person
asserting such Liability who purchased such Registrable
Securities which are the subject thereof from such Selling
Shareholder failed to do so and (B) the prospectus would have
corrected such untrue statement or omission; and, provided
further, that Ramtron shall not be liable in any such case to
the extent that any Liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission in the prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission corrected
in an amendment or supplement to the prospectus and if, having
previously been obligated to deliver such prospectus, the
Selling Shareholder thereafter failed to deliver such prospectus
as so amended or supplemented, prior to or concurrently with the
sale of Registrable Securities to the person asserting such
Liability who purchased such Registrable Securities which are
the subject thereof from such Selling Shareholder.
(ii) In the event of any registration under the Act of Registrable
Securities pursuant to Section 8(b), each holder of Registrable
Securities hereby severally agrees to indemnify, defend and hold
harmless Ramtron, and its officers, directors, employees,
agents, partners, or controlling persons (within the meaning of
the Act) (each, for purposes of this Section 8(e)(ii), an
"indemnified party") from and against, and shall reimburse such
indemnified party with respect to, any and all Liabilities to
which such indemnified party may become subject under the Act or
otherwise, arising from or relating to (A) any untrue statement
or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or (B) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading; provided that such holders of Registrable Securities
will be liable in any such case to the extent, and only to the
extent, that any such Liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, prospectus
or amendment or supplement thereto in reliance upon and in
conformity with written information furnished in an instrument
duly executed by such holder of Registrable Securities
specifically for use in the registration statement.
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(iii) Promptly after receipt by any indemnified party of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against another party
(the "indemnifying party") hereunder, notify such party in
writing thereof, but the omission so to notify shall not relieve
the indemnifying party from any Liability which it may have to
the indemnified party other than under this section and shall
only relieve it from any Liability which it may have to the
indemnified party under this section if and to the extent it is
actually prejudiced by such omission. In case any such action
shall be brought against any indemnified party and such
indemnified party shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled
to participate in and, to the extent it shall wish, to assume
and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from
the indemnifying party to the indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to the indemnified party under this
section for any legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof other
than reasonable costs of investigation and liaison with counsel
so selected; provided, however, that if the defendants in any
such action include both the indemnifying party and such
indemnified party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those
available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall
have the right to select a separate counsel and to assume such
legal defenses and otherwise to participate in the defense of
such action, with (subject to the following sentence) the
reasonable expenses and fees of such separate counsel and other
reasonable expenses related to such participation to be
reimbursed by the indemnifying party as incurred. If Ramtron is
the indemnifying party it shall pay the reasonable expenses and
fees of only one separate counsel whose selection is approved by
the largest group of similarly situated indemnified parties as
measured by the aggregate par value of such Registrable
Securities owned by such group. Any indemnified party who
chooses not to be represented by the foregoing separate counsel
shall be entitled, at its own expense, to be represented by
counsel of its own selection.
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(iv) If the indemnification provided for in this Section 8(e) is
unavailable or insufficient to hold harmless an indemnified
party, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other
hand in connection with statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to
this Section 8(e)(iv) were to be determined by pro rata
allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the
first sentence of this Section 8(e)(iv). The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section
8(e)(iv) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the
subject of this Section 8(e). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
Notwithstanding anything in this Section 8(e) to the contrary,
no indemnifying party (other than Ramtron) shall be required
pursuant to this Section 8(e) to indemnify for or contribute any
amount in excess of the proceeds received by such indemnifying
party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the
indemnified parties relate.
(f) (i) With respect to the inclusion of Registrable Securities in a
registration statement pursuant to Section 8(b), all fees, costs
and expenses of and incidental to such registration, inclusion
and public offering shall be borne by Ramtron; provided,
however, that any Selling Shareholders participating in such
registration shall bear their own share of the underwriting
discounts and commissions, and transfer taxes if any, incurred
by them in connection with such registration.
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(ii) Except as provided in Section 9(c) of this Agreement, the fees,
costs and expenses of registration to be borne by Ramtron as
provided in this Section 8(f) shall include, without limitation,
all registration, filing and Nasdaq fees, printing expenses,
fees and disbursements of counsel and accountants for Ramtron,
and all legal fees and disbursements and other expenses of
complying with state securities or Blue Sky laws of any
jurisdiction or jurisdictions in which securities to be offered
are to be registered and qualified. Subject to appropriate
agreements as to confidentiality, and upon reasonable advance
notice from the holder or its counsel, Ramtron shall make
available to counsel for the holders of Registrable Securities
its documents and personnel for due diligence purposes. Fees
and disbursements of counsel and accountants for the Selling
Shareholders shall be borne by the respective Selling
Shareholders. Nothing herein shall require Ramtron to postpone
filing the registration statement or delay its effectiveness.
(g) The rights to cause Ramtron to register all or any portion of
Registrable Securities pursuant to this Section may be assigned by a holder of
Registrable Securities to a transferee or assignee of all or a portion equal
to 20% or more, in the aggregate, of its Shares of Series A Stock or the
Registrable Securities derived from such Shares of Series A Stock. Any
transferee asserting registration rights hereunder shall agree to be bound by
the applicable provisions of this Agreement.
(h) From and after the date of this Agreement, Ramtron shall not agree to
allow any other holders of any securities of Ramtron (except the DFA
Stockholders) to include any of their securities in any registration statement
filed by Ramtron pursuant to Section 8(b) unless such inclusion will not
reduce the amount of the Registrable Securities included therein.
9. Specific Covenants
(a) Conversion Requests. Ramtron and each Series A Stockholder agree
that upon filing of the Certificate of Amendment all conversion requests with
respect to Series A Stock made under the terms of the prior Certificate of
Designation will be deemed withdrawn and Ramtron will honor conversion
requests only under the terms of the Certificate of Amendment.
(b) Accrued Dividends. On the Closing Date, Ramtron shall pay all
accrued and unpaid dividends on the shares of Series A Stock outstanding on
the Closing Date. Ramtron and the Series A Stockholders acknowledge that the
shares of Series A Stock issued on the Closing Date as dividends shall be
entitled to the rights and benefits of the Certificate of Amendment.
(c) Fees. Ramtron agrees to pay the fees and expenses of Foley & Lardner
relating to the negotiation and consummation of the transactions contemplated
in this Agreement, including any amounts related to the registration of Common
Stock.
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(d) Issue Taxes. Ramtron shall pay any and all issue and other taxes,
excluding any income, franchise or similar taxes, that may be payable in
respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Stock pursuant to the Certificate of Amendment; provided,
however, that Ramtron shall not be obliged to pay any transfer taxes resulting
from any transfer requested by any holder in connection with any such
conversion.
10. Miscellaneous.
(a) Successors and Assigns. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
(b) Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware, without reference to
principles of conflict of laws or choice of laws.
(c) Consent to Jurisdiction. Ramtron and each Series A Stockholder
(i) hereby irrevocably submit to the exclusive jurisdiction of either the
United States District Court for the Southern District of New York and the
state courts for the State of New York or the United States District Court for
the District of Delaware and the state courts for the State of Delaware for
the purposes of any suit, action or proceeding arising out of or relating to
this Agreement and (ii) hereby waive, and agree not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in
an inconvenient forum or that the venue of the suit, action or proceeding is
improper. Ramtron and each of the Series A Stockholders consent to process
being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address in effect for notices to it under this Agreement
and agree that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this paragraph shall affect or limit
any right to serve process in any other manner permitted by law.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together, whether bearing original or facsimile signatures, will constitute
one and the same instrument.
(e) Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules will, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits attached hereto, all of which
exhibits are incorporated herein by this reference.
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(f) Notices. Any notice required or permitted under this Agreement shall
be given in writing, shall be effective when received, and shall in any event
be deemed received and effectively given upon personal delivery to the party
to be notified or three (3) business days after deposit with the United States
Post Office, by registered or certified mail, postage prepaid, or one (1)
business day after deposit with a nationally recognized courier service such
as Federal Express for next business day delivery under circumstances in which
such service guarantees next business day delivery, or one (1) business day
after facsimile with copy delivered by registered or certified mail, in any
case, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof or at such other address
as a Series A Stockholder or Ramtron may designate by giving at least ten (10)
days advance written notice pursuant to this Section 10(f).
(g) Amendments and Waivers. The provisions of this Agreement may not be
amended without the written consent of Ramtron and the Series A Stockholders,
which may be withheld in the sole and absolute discretion of such parties.
Any amendment or waiver effected in accordance with this Section 10(g) will be
binding upon Ramtron, the Series A Stockholders and their respective
successors and assigns.
(h) Severability. If any provision of this Agreement is held to be
unenforceable under applicable law, such provision will be excluded from this
Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its
terms.
(i) Entire Agreement. Except for the Supplemental Exchange Rights
Agreement, this Agreement, together with all exhibits hereto, constitutes the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between the parties with
respect to the subject matter hereof.
(j) Further Assurances. From and after the date of this Agreement upon
the request of Ramtron or any Series A Stockholder, Ramtron and the Series A
Stockholders will execute and deliver such instruments, documents or other
writings, and take such other actions, as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement, provided that Ramtron shall pay all filing fees,
recording fees, documentary stamp taxes and similar fees and taxes relating to
such instruments, documents or other writings.
(k) Meaning of Include and Including. Whenever in this Agreement the word
"include" or "including" is used, it shall be deemed to mean "include, without
limitation" or "including, without limitation," as the case may be, and the
language following "include" or "including" shall not be deemed to set forth
an exhaustive list.
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(l) Enforcement. Ramtron will pay the costs of the Series A Stockholders
in connection with the enforcement of this Agreement and the other documents
and agreements executed and delivered in connection with this Agreement.
(m) Survival. The agreements and covenants set forth in Section 6, 7, 8,
9 and 10 will survive the Closing and the representations and warranties of
Ramtron and the Series A Stockholders made in Sections 4 and 5, respectively,
will survive through the statute of limitations period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
- ----------------------
L. David Sikes
Chairman and Chief Executive Officer
Address: 1850 Ramtron Drive
Colorado Springs, CO 80921
ACCEPTED AND AGREED:
THE FOLLOWING SERIES A PREFERRED STOCKHOLDERS:
/S/ Alexander L. Cappello
- -------------------------
Mr. Alexander L. Cappello
1299 Ocean Avenue, Suite 306
Santa Monica, CA 90401
Holder of 20 Shares of Series A Preferred Stock
/S/ Alfred Romano
- ------------------------
Mr. Alfred Romano
4 Wagon Wheel Lane
Dix Hills, NY 11746-5017
Holder of 15 Shares of Series A Preferred Stock
/S/ Howard M. Zelikow, COO
- --------------------------
Kayne Anderson Non-Traditional
Investments, L.P.
Mr. Richard Farber
By:-----------------------
1800 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Holder of 332 Shares of Series A Preferred Stock
Page 39
<PAGE>
- ------------------------
CC Investments, LDC
Mr. John Ziegelman
By: ----------------------
Castle Creek Partners
77 W. Wacker Drive, Suite 4040
Chicago, IL 60601
Holder of ------ Shares of Series A Preferred Stock
/S/ Mark S. Zucker
- ------------------------
Anvil Investment Partners, L.P.
Mr. Mark S. Zucker
By: ---------------------
100 Wilshire Blvd., 15th
Santa Monica, CA 90401
Holder of 88 Shares of Series A Preferred Stock
- ------------------------
Crisostomo B. Garcia Trust Dated 6/8/93
Mr. Crisostomo B. Garcia, Trustee
By: --------------------
P.O. Box 9248
17950 Circa Oriente
Rancho Santa Fe, CA 92067
Holder of ------ Shares of Series A Preferred Stock
/S/ Douglas A. Gerrard
- ------------------------
Deere Park Capital Management, LLC
Mr. Douglas A. Gerrard
By:----------------------
40 Skokie Boulevard, Suite 110
Northbrook, IL 60062
Holder of 2,450 Shares of Series A Preferred Stock
/S/ Earl E. Gales, Jr.
- ------------------------
Mr. Earl E. Gales, Jr.
5933 W. Century Blvd., Suite 1000
Los Angeles, CA 90045
Holder of 70 Shares of Series A Preferred Stock
/S/ Real A. Rouillard
- ------------------------
Mr. Real A. Rouillard
1979 Memorial Drive
Chicopee, MA 01020
Holder of 60 Shares of Series A Preferred Stock
Page 40
<PAGE>
/S/ Robert J. Schiller, Jr.
- ---------------------------
Fayerweather Associates
Mr. Robert J. Schiller, Jr.
By:------------------------
63 Fayerweather Street
Cambridge, MA 02138
Holder of 158 Shares of Series A Preferred Stock
/S/ Gerard K. Cappello
- ------------------------
Mr. Gerard K. Cappello
1299 Ocean Avenue, Suite 306
Santa Monica, CA 90401
Holder of 20 Shares of Series A Preferred Stock
- ------------------------
Mr. Jerry Kaplan
150 Vanderbilt Motor Parkway, Suite 311
Hauppauge, NY 11788
Holder of ------ Shares of Series A Preferred Stock
/S/ Jonathan Glaser
- ------------------------
JMG Capital Partners, L.P.
Mr. Jonathan Glaser
By: ---------------------
1999 Avenue of the Stars, Suite 2530
Los Angeles, CA 90067
Holder of 300 Shares of Series A Preferred Stock
/S/ Ann Nicholson
- ------------------------
KEYWAY Investments, Ltd.
Ms. Ann Nicholson
By: ----------------------
19 Mount Havelock
Douglas, Isle of Man 1M1 2QG
United Kingdom
and Mr. Gregory W. Murphy
Mr. Martin Peters
Holder of 800 Shares of Series A Preferred Stock
/S/ Lawrence K. Fleischman
- --------------------------
Laredo Capital Partners
Mr. Lawrence K. Fleischman
By: ----------------------
150 Vanderbilt Motor Parkway, Suite 311
Hauppauge, NY 11788
Holder of 40 Shares of Series A Preferred Stock
Page 41
<PAGE>
/S/ Lawrence Kaplan & Helaine Kaplan
- ------------------------------------
Lawrence Kaplan & Helaine Kaplan, J.T.
17 Riverview Terrace
Smithtown, NY 11787
Holder of 18 Shares of Series A Preferred Stock
/S/ Joseph M. Fitzgerald
- ------------------------
Mr. Joseph M. Fitzgerald
1530 Touraine Drive
San Jose, CA 95118
Holder of 50 Shares of Series A Preferred Stock
/S/ Lawrence K. Fleischman
- --------------------------
LICAP Partners
Mr. Lawrence K. Fleischman
By: --------------------------
150 Vanderbilt Motor Parkway, Suite 311
Hauppauge, NY 11788
Holder of 70 Shares of Series A Preferred Stock
/S/ Lisa G. Shine
- ------------------------
Ms. Lisa G. Shine
2910 Neilson Way, #602
Santa Monica, CA 90405
Holder of 13 Shares of Series A Preferred Stock
- ------------------------
Ms. Loretta Hirsh Shine
5301 Aldea Avenue
Encino, CA 91316
Holder of ------- Shares of Series A Preferred Stock
/S/ Nancy A. Aossey
- ------------------------
Ms. Nancy A. Aossey
1807 Camden Avenue #2
Los Angeles, CA 90025
Holder of 8 Shares of Series A Preferred Stock
/S/ Howard M. Zelikow, COO
- ------------------------
Offense Group Associates, L.P.
Mr. Richard Farber
By: ----------------------
1800 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Holder of 350 Shares of Series A Preferred Stock
Page 42
<PAGE>
/S/ Paul Rajewski
- ------------------------
Mr. Paul Rajewski
7 Country Meadow Road
Rolling Hills Estates, CA 90274
Holder of 68 Shares of Series A Preferred Stock
- ------------------------
Mr. Peter J. Cocoziello
1545 State Highway 206, Suite 100
Bedminster, NJ 07921
Holder of ------ Shares of Series A Preferred Stock
/S/ Ronald H. Means
- ------------------------
Mr. Ronald H. Means
2195 Holiday Pines Lane
Camarillo, CA 93012
Holder of 32 Shares of Series A Preferred Stock
- ------------------------
Mr. George R. Wong
3834 Rawhide Road
Rocklin, CA 95677
Holder of ------ Shares of Series A Preferred Stock
- ------------------------
SIL Nominees, Ltd.
c/o Slome Capital Corporation
Mr. Ansel A. Slome
By: ----------------------
1888 Century Park East, Suite 1108
Los Angeles, CA 90067
Holder of ------ Shares of Series A Preferred Stock
/S/ Stanley A. Kaplan
- ------------------------
Mr. Stanley A. Kaplan
4 Spinning Wheel Lane
Dix Hills, NY 11746
Holder of 18 Shares of Series A Preferred Stock
/S/ Jonathan Glaser
- ------------------------
Triton Capital Holdings, Ltd.
Mr. Jonathan Glaser
By: ----------------------
1999 Avenue of the Stars, Suite 2530
Los Angeles, CA 90067
Holder of 300 Shares of Series A Preferred Stock
/S/ Kris Melling
- ------------------------
Mr. Kris Melling
4416 Glasgow Way
Anacortes, WA 98221
Holder of 50 Shares of Series A Preferred Stock
Page 43
<PAGE>
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
RAMTRON INTERNATIONAL CORPORATION (hereafter called the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, hereby certifies:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that the Corporation's Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 Par
Value ("Certificate of Designation"), filed on February 12, 1998, with the
Secretary of State of the State of Delaware is hereby amended and restated in
its entirety to read as follows:
"1. Authorized Shares.
There shall be a series of shares of the Preferred Stock of the Corporation
designated "Series A Convertible Preferred Stock". The number of authorized
shares of such series shall be 29,000 and the rights and preferences of such
series (the "Series A Preferred") and the limitations or restrictions thereon,
shall be as set forth herein.
2. Dividends.
The holders of the Series A Preferred shall be entitled to receive cumulative
dividends at a rate equal to 11% per annum of the liquidation preference per
share per annum, payable semi-annually on December 31 and June 30, with the
first payment being payable on December 31, 1999, when and as declared by the
Board of Directors. Prior to the first anniversary of the date of filing of
this Certificate of Amendment (the "Closing Date"), all dividends shall be
paid in Series A Preferred. On and after the first anniversary of the Closing
Date, dividends may be paid, at the Corporation's option, on any dividend
payment date, either in cash or by the issuance of additional shares of Series
A Preferred (and payment of cash in lieu of fractional shares) having an
aggregate liquidation preference equal to the amount of such dividends. In
the event that on or after the first anniversary of the Closing Date,
dividends are paid in additional shares of Series A Preferred, the dividend
rate shall increase by 2% for such dividend payment period. In the event that
a registration statement is not effective within 130 days after the Closing
Date with respect to the conversion rights set forth in Section 6 and the cash
exchange rights set forth in Section 7, the Series A Preferred shall accrue
Page 44
<PAGE>
dividends from and after the end of such 130 day period at a rate of 18% per
annum until such time as the registration statement is declared effective.
Dividends as provided by this Section 2 shall accrue on any given share from
the Closing Date, or from the date of original issuance of such share,
whichever is later, and shall accrue from day to day whether or not declared.
Dividends not theretofore paid shall be paid upon conversion of any shares of
the Series A Preferred and shares of Series A Preferred issued in payment of
such dividends shall be simultaneously converted into Common Stock together
with the shares on which such dividends have accrued. Dividends accrued in
accordance with the terms of the Series A Preferred prior to the Closing Date
shall not be affected by this Section 2.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of the Series A
Preferred shall be entitled to receive, prior and in preference to any
distribution of any assets of the Corporation to the holders of the Common
Stock or any other class or series of shares except any class or series which
is entitled to priority over the Series A Preferred, the amount of $1,000 per
share plus any accrued but unpaid dividends (the "Liquidation Preference").
(b) Subject to the last sentence of this Section 3(b), a consolidation or
merger of the Corporation with or into any other corporation or corporations,
or a sale of all or substantially all of the assets of the Corporation, shall,
at the option of the holders of the Series A Preferred, be deemed a
liquidation, dissolution or winding up within the meaning of this Section 3 if
the shares of stock of the Corporation (along with all derivative securities)
outstanding immediately prior to such transaction represent immediately after
such transaction less than a majority of the voting power of the surviving
corporation (or of the acquirer of the Corporation's assets in the case of a
sale of assets). Such option may be exercised by the vote or written consent
of holders of a majority of the Series A Preferred at any time within thirty
calendar days after written notice of the essential terms of such transaction
shall have been given to the holders of the Series A Preferred as provided in
Section 8 hereof. Such notice shall be given by the Corporation immediately
following determination of such essential terms. If such option is exercised,
the holders of the Series A Preferred shall be entitled to receive, in cash,
immediately upon the occurrence of such transaction, an amount per share equal
to the Liquidation Preference. This Section shall not apply to a business
combination in which substantially all the Common Stock of the Corporation is
converted into or exchanged for voting common stock of the corporation
surviving such business combination, if (i) such common stock of the surviving
corporation is listed and traded on The Nasdaq Stock Market or the New York
Stock Exchange, and (ii) the Board of Directors of the Corporation determines
in good faith that the conversion rights and other rights and preferences of
the Series A Preferred are preserved and not rendered of less value by the
terms of such business combination.
Page 45
<PAGE>
4. Mandatory Redemption.
All of the Series A Preferred outstanding on July 31, 2002 shall be redeemed
by the Corporation at a redemption price equal to 100% of the Liquidation
Preference thereof plus, without duplication, accumulated and unpaid dividends
to the date of redemption.
5. Optional Redemption.
The Series A Preferred shall be redeemable, at the option of the Corporation
and subject to the consent of its lenders, in whole or in part, at any time on
or after July 31, 2000 at an amount equal to its Liquidation Preference plus,
without duplication, accumulated and unpaid dividends to the date of
redemption.
6. Conversion.
The holders of the Series A Preferred shall have optional conversion rights as
follows:
(a) Conversion Rights.
(i) At any time prior to 10 days after the Closing Date (the "Post-
Closing Date"), the Series A Preferred shall be exchangeable at the option of
the holder for shares of Common Stock at an exchange ratio of $.75 face value
of Series A Preferred per share of Common Stock plus accrued and unpaid
dividends to the date of conversion.
(ii) Each holder of record of Series A Preferred shares shall be
entitled to convert Series A Preferred into shares of Common Stock on or after
the Post-Closing Date at the conversion rate of 1,000 shares of Common Stock
per share of Series A Preferred (i.e., $1.00 per share of Common Stock) (such
rate of exchange, and the rate of exchange set forth in paragraph (i), as
applicable, being hereinafter referred to as the "Conversion Rate").
(b) Restriction on Right to Convert. A share of Series A Preferred shall
not be converted into Common Stock if following such conversion the holder
thereof together with affiliates of such holder would be the beneficial owners
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of 10% or
more of the Common Stock of the Corporation. A share which may not be
converted because of the preceding sentence will thereafter be convertible by
any holder if at the time such share is submitted for conversion the preceding
sentence is inapplicable.
Page 46
<PAGE>
(c) Mechanics of Conversion. To convert shares of Series A Preferred
into shares of Common Stock, the holder shall give written notice to the
Corporation (which notice may be given by facsimile transmission) that such
holder elects to convert the same and shall state therein the number of shares
to be converted and the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. Promptly
thereafter the holder shall surrender the certificate or certificates
representing the shares to be converted, duly endorsed, at the office of the
Corporation or of any transfer agent for such shares, or at such other place
designated by the Corporation. The Corporation shall, immediately upon
receipt of such notice, issue and deliver to or upon the order of such holder,
against delivery of the certificates representing the shares which have been
converted, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled, and a certificate representing
the shares of Series A Preferred not so converted, if any. The Corporation
shall effect such issuance immediately and shall transmit the certificates by
messenger or overnight delivery service to reach the address designated by
such holder within three trading days after the receipt of such notice.
Notice of conversion may be given by a holder at any time of day up to 5:00
p.m. Los Angeles time, and such conversion shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Conversion Date"). The person or persons entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock at the close of business on the Conversion Date.
(d) Determination of Conversion Rate. In the event that the Corporation
shall declare or pay any dividend on the Common Stock payable in Common Stock
or in rights to acquire Common Stock, or shall effect a stock split or reverse
stock split, or a combination, consolidation or reclassification of the Common
Stock, then the Conversion Rate shall be proportionately decreased or
increased, as appropriate, to give effect to such event, and like adjustment
shall be made in any price per share specified elsewhere herein.
(e) Distributions. In the event the Corporation shall at any time or
from time to time make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in securities of the Corporation or any of its subsidiaries or other
property, other than cash dividends from earnings, then in each such event
provision shall be made so that the holders of Series A Preferred shall
receive, upon the conversion thereof, the securities or other property which
they would have received had they been the owners on the date of such event of
the number of shares of Common Stock issuable to them upon conversion.
(f) Certificates as to Adjustments. Upon the occurrence of any
adjustments or readjustment of the Conversion Rate pursuant to Section 6(d)
hereof, or any provision for distribution pursuant to Section 6(e) hereof, or
any adjustment of the cash per-share prices specified herein, the Corporation
at its expense shall promptly compute such adjustment, readjustment or
provision in accordance with the terms hereof and prepare and furnish to each
Page 47
<PAGE>
holder of Series A Preferred a certificate setting forth such adjustment,
readjustment or provision and showing in detail the facts upon which such
adjustment, readjustment or provision is based. The Corporation shall, upon
the written request at any time of any holder of Series A Preferred, furnish
or cause to be furnished to such holder a like certificate prepared by the
Corporation setting forth (i) such adjustments and readjustments, and (ii) the
number of other securities and the amount, if any, of other property which at
the time would be received upon the conversion of Series A Preferred with
respect to each share of Common Stock received upon such conversion. If any
holder disputes the computation of such adjustment or provision the
Corporation shall cause independent public accountants selected by the
Corporation to verify and, if necessary, correct such computation.
(g) Notice of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend) or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional shares
of Common Stock, or any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall give notice to each holder of
Series A Preferred at least 10 days prior to such date specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution, security or right and the amount and character of such dividend,
distribution, security or right.
(h) Issue Taxes. The Corporation shall pay any and all issue and other
taxes, excluding any income, franchise or similar taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Preferred pursuant hereto; provided, however, that the
Corporation shall not be obligated to pay any transfer taxes resulting from
any transfer requested by any holder in connection with any such conversion.
(i) Reservation of Stock Issuable Upon Conversion. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series A
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in best efforts to
obtain the requisite shareholder approval as promptly as practicable.
Page 48
<PAGE>
(j) Fractional Shares. No fractional shares shall be issued upon the
conversion of any share or shares of Series A Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Series A Preferred by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of a fraction of a share of Common
Stock, the Corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors of the Corporation).
(k) Reorganization or Merger. In case of any reorganization or any
reclassification of the capital stock of the Corporation or any consolidation
or merger of the Corporation with or into any other corporation or
corporations or a sale of all or substantially all of the assets of the
Corporation to any other person, and the holders of Series A Preferred do not
elect to treat such transaction as a liquidation, dissolution or winding up as
provided in Section 3, then, as part of such reorganization, consolidation,
merger or sale, provision shall be made so that each share of Series A
Preferred shall thereafter be convertible into the number of shares of stock
or other securities or property (including cash) to which a holder of the
number of shares of Common Stock deliverable upon conversion of such share of
Series A Preferred would have been entitled upon the record date of (or date
of, if no record date is fixed) such event and, in any case, appropriate
adjustment (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series A Preferred, to the end that
the provisions set forth herein shall thereafter be applicable, as nearly as
equivalent as is practicable, in relation to any shares of stock or the
securities or property (including cash) thereafter deliverable upon the
conversion of the shares of Series A Preferred. The Corporation shall have no
obligation to obtain the prior consent of the holders of the Series A
Preferred, individually or as a class, except as expressly provided herein or
as provided by applicable law.
7. Cash Exchange Rights.
(a) Exchange Rights. At any time prior to June 25, 1999, the Series A
Preferred shall be exchangeable at the option of a holder for cash in amount
per share equal to 50% of the face value of the Series A Preferred Share plus
all accrued but unpaid dividends on the Series A Preferred Share, up to an
aggregate amount of $6.4 million face value and accrued and unpaid dividends
to the date of exchange. If, in the judgment of the Board of Directors of the
Corporation, the Corporation's financial condition and results of operations
permit the Corporation to permit the exchange for cash of more than $6.4
million face value (plus accrued dividends) of the Series A Preferred, the
terms of the Series A Preferred will permit the exchange for cash of up to
$8.0 million face value (plus accrued and unpaid dividends) of the Series A
Preferred. To the extent that holders of Series A Preferred desire to
exchange in the aggregate a greater face value (plus accrued and unpaid
dividends) of the Series A Preferred than is permitted under the terms of the
Series A Preferred, Series A Preferred will be accepted for exchange by the
Corporation for cash on a pro rata basis based upon the aggregate face value
(plus accrued and unpaid dividends) of the Series A Preferred validly tendered
for exchange.
Page 49
<PAGE>
(b) Mechanics of Exchange. To exercise the exchange right set forth in
Section 7(a), the holder shall give written notice to the Corporation (which
notice may be given by facsimile transmission) that such holder elects to
exercise such right and shall state therein the number of shares to be
converted and the name or names in which such holder wishes the payment to be
received. Promptly thereafter the holder shall surrender the certificate or
certificates representing the shares to be exchanged, duly endorsed, at the
office of the Corporation or of any transfer agent for such shares, or at such
other place designated by the Corporation. The Corporation shall, immediately
upon receipt of such notice, issue and deliver to or upon the order of such
holder, against delivery of the certificates representing the shares which
have been converted, a check for payment of the cash amount to which such
holder shall be entitled, and a certificate representing the shares of Series
A Preferred not so exchanged, if any. The Corporation shall effect such
payment immediately and shall transmit the check by messenger or overnight
delivery service to reach the address designated by such holder within three
trading days after the receipt of such notice. Notice of the exercise of
exchange rights may be given by a holder at any time of day up to 5:00 p.m.
Los Angeles time, and such exercise shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Exchange Date"). The person or persons entitled to
receive payment upon such exchange shall be treated for all purposes as the
record holder or holders of such shares of Common Stock at the close of
business on the Exchange Date.
8. Notices.
Any notice to be given to the holders of the Series A Preferred shall be
(i) mailed by first class mail postage prepaid to each holder of Series A
Preferred at the address shown on the records of the Corporation for such
holder, (ii) transmitted by telecopy or facsimile transmission to any holder
which has supplied a telecopy or facsimile address to the Corporation, and
(iii) unless receipted for by telecopy or facsimile on the date such notice is
given, shall be transmitted by an overnight delivery service or courier
service for delivery at the address shown on the records of the Corporation
for such holder on the first business day following the date such notice is
given, or if delivery in one business day to such address cannot be effected
by such delivery service, then on the earliest day on which such delivery can
be made.
9. Registration Rights.
The corporation shall use its best efforts to file and cause to become
effective as of no later than 130 days after June 15th a registration
statement for Common Stock of the Corporation issuable upon exchange or
conversion of the Series A Preferred, to the extent such shares of Common
Stock are not then freely tradable under the federal securities laws.
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<PAGE>
10. Restrictions and Limitations.
The Corporation shall not undertake the following actions without the consent
of the holders of a majority of the Series A Preferred: (i) modify its
Certificate of Incorporation or Bylaws so as to amend or change any of the
rights, preferences, or privileges of the Series A Preferred, (ii) authorize
or issue any other equity security senior to or ranking on parity with the
Series A Preferred, or (iii) pay any dividends in cash or property on, or
purchase or otherwise acquire for value, any Common Stock purchase or other
equity security of the Corporation either junior to or on a parity with the
Series A Preferred except from current or retained earnings or from the net
proceeds of sale of equity securities, except for purchases of Common Stock
from terminating or retiring employees pursuant to the terms of employee
benefit plans in an aggregate amount not greater than $1 million.
11. Voting Rights.
The Series A Preferred shall have no voting rights, except as otherwise
required by law and except in certain circumstances described herein,
including (i) amending certain rights of the holders of the Series A Preferred
and (ii) the issuance of any class of equity securities that ranks pari passu
with or senior to the Series A Preferred other than certain additional shares
of Series A Preferred.
12. Attorneys' Fees.
Any holder of Series A Preferred shall be entitled to recover from the
Corporation reasonable attorneys' fees and expenses incurred by such holder in
connection with enforcement by such holder of any obligation of the
Corporation hereunder, if such holder is the prevailing party in an action or
proceeding to compel such enforcement."
SECOND, that the proposed amendment has been duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware and that notice of the taking of such action by written consent has
been given as provided in Section 228 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. David Sikes, its Chairman of the
Board and Chief Executive Officer, or by Greg B. Jones, its President and
Chief Operating Officers, this XXX day of July 1999.
Ramtron International Corporation
By:
--------------------
Page 51
<PAGE>
EXHIBIT B
DRAFT 7-28-88
=============
[Letterhead of Morris, Nichols, Arsht and Tunnell]
August XXX, 1999
To the holders of Series A Convertible
Preferred Stock, par value $.01 per share
(the "Series A Preferred Stock") of Ramtron
International Corporation, a Delaware
corporation (the "Company") that have
executed the Preferred Stock Recapitalization
Agreement dated and made effective July 20,
1999 among the Company and such holders (the
"Preferred Stock Recapitalization Agreement")
c/o Foley & Lardner
[address]
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 3(b) of the
Preferred Stock Recapitalization Agreement.
In connection with rendering this opinion, we have reviewed the Company's
certificate of incorporation, as amended to date, as filed with the Secretary
of State of the State of Delaware, including the Certificate of Amendment to
the Certificate of Incorporation of the Company filed today with the Secretary
of State of the State of Delaware (the "Certificate of Amendment") setting
forth certain amendments to the Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 par
value, filed on February 12, 1998 with the Delaware Secretary of State (the
"Amendments") and copies of the Preferred Stock Recapitalization Agreement and
the Agreement dated July 30, 1999 among the Company and certain holders of the
Series A Preferred Stock (the "Cash Exchange Agreement") that have provided to
us by the Company. We have not reviewed any other agreements or documents of
or relating to the Company and we have assumed that nothing contained in any
such document that we have not reviewed is contrary to or inconsistent with
the opinions expressed herein. We have also assumed the due authorization,
execution and delivery of the Preferred Stock Recapitalization Agreement and
the Cash Exchange Agreement by each of the parties hereto and the due
authorization of the Amendments by all requisite corporate action of the
Company. Finally, we have assumed that the Board of Directors of the Company
satisfied its fiduciary duties in authorizing the Preferred Stock
Recapitalization Agreement and the Cash Exchange Agreement and in approving
the Amendments.
Page 52
<PAGE>
Based upon and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that:
(1) the Amendments became effective today upon the filing of the Certificate
of Amendment and that, upon such filing, the powers, preferences and rights,
and the qualifications, limitations or restrictions of the Series A Preferred
Stock were amended as provided for in the Amendments: provided, however, that
we express no opinion with respect to the effectiveness of (A) the
obligations of the Company to pay dividends or redeem shares to the extent
that such provisions would require the Company to do so when and if funds are
not legally available therefor under the Delaware General Corporation Law (and
we note that this exception will apply, inter alia, to the following
paragraphs set forth in the Amendments, each of which purports to require the
Company to make payments to holders of the Series A Preferred Stock but does
not specifically refer to such payments as constituting dividends or payment
upon redemption: 3(b) (option to treat certain transactions as a liquidation,
dissolution or winding up), 6(a)(i) (to the extent a payment of accrued and
unpaid dividends is required), 6(e) (requiring, in some circumstances, the
"conversion" of shares for "property"), 6(h), 6(k) (requiring conversion for
"property" including cash in certain circumstances), 7(a) ("exchange" for
cash), 12 (to the extent such provision is valid)); (B) the penultimate
sentence of paragraph 2 of the Amendments and (C) paragraph 12. In addition,
we express no opinion with respect to how a court applying Delaware law would
interpret (A) the pro rata treatment of holders of shares of Series A Preferred
Stock pursuant to paragraph 7(a) of the Amendments, especially in light of the
requirement in Section 7(b) that the Company "immediately" issue and deliver
payment as provided for in that section and, further, we express no opinion
with respect to the effectiveness of the requirement of such pro rata treatment
if and to the extent such provision is interpreted as requiring pro rata
treatment on any basis other than the aggregation of all requests by the
holders of Series A Preferred Stock to exchange the Series A Preferred Stock;
(B) paragraph 3(b) of the Amendments, but we have assumed, for purposes of this
opinion, that such a court would interpret it to require the Company to redeem
shares of Series A Preferred Stock in connection with a "deemed" liquidation,
dissolution or winding up, on the terms provided for therein; and (C) the
phrase "plus accrued and unpaid dividends to the date of conversion" in
paragraph 6(a)(i) of the Amendments, but we have assumed a court applying
Delaware law would treat the phrase as a requirement that such amount of
dividends be added to the exchange ratio. Finally, the Amendments may be
limited by (i) bankruptcy, insolvency, receivership, fraudulent conveyance,
reorganization, moratorium, statutory lien or other laws, rules or regulations
of general application relating to or affecting the enforcement of creditors'
rights and remedies, as from time to time in effect and (ii) application of
equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
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(2) the Cash Exchange Agreement is a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency, receivership,
fraudulent conveyance, reorganization, moratorium, statutory lien or other
laws, rules or regulations of general application relating to or affecting the
enforcement of creditors' rights and remedies, as from time to time in effect
and (ii) application of equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
This opinion is being provided to you in connection with the transactions
provided for in the Preferred Stock Recapitalization Agreement and may not be
relied upon by any other person or for any other purpose.
Very truly yours,
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SUPPLEMENTAL EXCHANGE RIGHTS AGREEMENT
This Supplemental Exchange Rights Agreement is dated as of July 30, 1999,
among Ramtron International Corporation ("Ramtron"), a Delaware corporation,
and the holders, severally, of Ramtron's Series A Convertible Preferred Stock
executing this Agreement (each a "Series A Stockholder" and together the
"Series A Stockholders").
RECITAL:
Each of the Series A Stockholders and Ramtron are concurrently herewith
entering into a Preferred Stock Recapitalization Agreement (the
"Recapitalization Agreement") pursuant to which, among other things, the
parties to that Agreement agree to amend Ramtron's Certificate of
Incorporation in the form and content of Exhibit A attached hereto (the
"Certificate of Amendment"), in order to amend and restate the Certificate
of Designation, Preferences, Rights and Limitations filed on February 12,
1998, with the Secretary of State of Delaware, establishing the preferences,
rights and limitations of Ramtron's Series A Convertible Preferred Stock,
$0.01 par value per share (the "Series A Stock").
NOW, THEREFORE, in consideration of the Recital, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Exchange Rights.
Notwithstanding that Section 7(a) of the Certificate of Amendment states that
the exchange rights to which the holders of Series A Stock are entitled
pursuant to such section are to be exercised "at any time prior to June 25,
1999," Ramtron agrees with and for the benefit of each Series A Stockholder to
exchange shares of Series A Stock of any holder of Series A Stock on the same
terms as set forth is Section 7(a) of the Certificate of Amendment, to the
extent funds are legally available therefor, at any time prior to the tenth
day after the Closing Date (as defined in the Recapitalization Agreement).
Ramtron makes this covenant for the benefit of the Series A Stockholders and
for the third-party benefit of all other holders of Series A Stock. Ramtron
represents and warrants that on the date hereof, and Ramtron covenants that at
the time of any exchange made pursuant to this Supplemental Exchange Rights
Agreement and the Certificate of Amendment, as applicable, Ramtron shall have
sufficient surplus, as required by Delaware law, to effect lawfully such
exchange.
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2. Miscellaneous.
(a) Successors and Assigns. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
(b) Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware, without reference to
principles of conflict of laws or choice of laws.
(c) Consent to Jurisdiction. Ramtron and each Series A Stockholder
(i) hereby irrevocably submit to the exclusive jurisdiction of either the
United States District Court for the Southern District of New York and the
state courts for the State of New York or the United States District Court for
the District of Delaware and the state courts for the State of Delaware for
the purposes of any suit, action or proceeding arising out of or relating to
this Agreement and (ii) hereby waive, and agree not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in
an inconvenient forum or that the venue of the suit, action or proceeding is
improper. Ramtron and each of the Series A Stockholders consent to process
being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address in effect for notices to it under this Agreement
and agree that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this paragraph shall affect or limit
any right to serve process in any other manner permitted by law.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together, whether bearing original or facsimile signatures, will constitute
one and the same instrument.
(e) Notices. Any notice required or permitted under this Agreement shall
be given in writing, shall be effective when received, and shall in any event
be deemed received and effectively given upon personal delivery to the party
to be notified or three (3) business days after deposit with the United States
Post Office, by registered or certified mail, postage prepaid, or one (1)
business day after deposit with a nationally recognized courier service such
as Federal Express for next business day delivery under circumstances in which
such service guarantees next business day delivery, or the same business day
if received prior to 5:00 p.m. Los Angeles time by facsimile or the next
business day if received after such time or if received on a non-business day.
Notice shall be addressed to the party to be notified at the address indicated
for such party on the signature page hereof or at such other address as a
Series A Stockholder or Ramtron may designate by giving at least ten (10) days
advance written notice pursuant to this Section 2(e).
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(f) Amendments and Waivers. The provisions of this Agreement may not be
amended without the written consent of Ramtron and the Series A Stockholders,
which may be withheld in the sole and absolute discretion of such parties.
Any amendment or waiver effected in accordance with this Section 2(f) will be
binding upon Ramtron, the Series A Stockholders and their respective
successors and assigns.
(g) Entire Agreement. Except for the Recapitalization Agreement, and the
exhibits thereto, this Agreement, together with all exhibits hereto,
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings duties or obligations between the
parties with respect to the subject matter hereof.
(h) Further Assurances. From and after the date of this Agreement upon
the request of Ramtron or any Series A Stockholder, Ramtron and the Series A
Stockholders will execute and deliver such instruments, documents or other
writings, and take such other actions, as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement, provided that Ramtron shall pay all filing fees,
recording fees, documentary stamp taxes and similar fees and taxes relating to
such instruments, documents or other writings.
(i) Meaning of Include and Including. Whenever in this Agreement the word
"include" or "including" is used, it shall be deemed to mean "include, without
limitation" or "including, without limitation," as the case may be, and the
language following "include" or "including" shall not be deemed to set forth
an exhaustive list.
(j) Enforcement. Ramtron will pay the costs of the Series A Stockholders
in connection with the enforcement of this Agreement and the other documents
and agreements executed and delivered in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
- ----------------------
L. David Sikes
Chairman and Chief Executive Officer
Address: 1850 Ramtron Drive
Colorado Springs, CO 80921
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ACCEPTED AND AGREED:
THE FOLLOWING SERIES A PREFERRED STOCKHOLDERS:
/S/ Alexander L. Cappello
- -------------------------
Mr. Alexander L. Cappello
1299 Ocean Avenue, Suite 306
Santa Monica, CA 90401
Holder of 20 Shares of Series A Preferred Stock
/S/ Alfred Romano
- ------------------------
Mr. Alfred Romano
4 Wagon Wheel Lane
Dix Hills, NY 11746-5017
Holder of 15 Shares of Series A Preferred Stock
/S/ Howard M. Zelikow, COO
- --------------------------
Kayne Anderson Non-Traditional
Investments, L.P.
Mr. Richard Farber
By:-----------------------
1800 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Holder of 332 Shares of Series A Preferred Stock
- ------------------------
CC Investments, LDC
Mr. John Ziegelman
By: ----------------------
Castle Creek Partners
77 W. Wacker Drive, Suite 4040
Chicago, IL 60601
Holder of ------ Shares of Series A Preferred Stock
/S/ Mark S. Zucker
- ------------------------
Anvil Investment Partners, L.P.
Mr. Mark S. Zucker
By: ---------------------
100 Wilshire Blvd., 15th
Santa Monica, CA 90401
Holder of 88 Shares of Series A Preferred Stock
- ------------------------
Crisostomo B. Garcia Trust Dated 6/8/93
Mr. Crisostomo B. Garcia, Trustee
By: --------------------
P.O. Box 9248
17950 Circa Oriente
Rancho Santa Fe, CA 92067
Holder of ------ Shares of Series A Preferred Stock
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/S/ Douglas A. Gerrard
- ------------------------
Deere Park Capital Management, LLC
Mr. Douglas A. Gerrard
By:----------------------
40 Skokie Boulevard, Suite 110
Northbrook, IL 60062
Holder of 2,450 Shares of Series A Preferred Stock
/S/ Earl E. Gales, Jr.
- ------------------------
Mr. Earl E. Gales, Jr.
5933 W. Century Blvd., Suite 1000
Los Angeles, CA 90045
Holder of 70 Shares of Series A Preferred Stock
/S/ Real A. Rouillard
- ------------------------
Mr. Real A. Rouillard
1979 Memorial Drive
Chicopee, MA 01020
Holder of 60 Shares of Series A Preferred Stock
/S/ Robert J. Schiller, Jr.
- ---------------------------
Fayerweather Associates
Mr. Robert J. Schiller, Jr.
By:------------------------
63 Fayerweather Street
Cambridge, MA 02138
Holder of 158 Shares of Series A Preferred Stock
/S/ Gerard K. Cappello
- ------------------------
Mr. Gerard K. Cappello
1299 Ocean Avenue, Suite 306
Santa Monica, CA 90401
Holder of 20 Shares of Series A Preferred Stock
- ------------------------
Mr. Jerry Kaplan
150 Vanderbilt Motor Parkway, Suite 311
Hauppauge, NY 11788
Holder of ------ Shares of Series A Preferred Stock
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/S/ Jonathan Glaser
- ------------------------
JMG Capital Partners, L.P.
Mr. Jonathan Glaser
By: ---------------------
1999 Avenue of the Stars, Suite 2530
Los Angeles, CA 90067
Holder of 300 Shares of Series A Preferred Stock
/S/ Ann Nicholson
- ------------------------
KEYWAY Investments, Ltd.
Ms. Ann Nicholson
By: ----------------------
19 Mount Havelock
Douglas, Isle of Man 1M1 2QG
United Kingdom
and Mr. Gregory W. Murphy
Mr. Martin Peters
Holder of 800 Shares of Series A Preferred Stock
/S/ Lawrence K. Fleischman
- --------------------------
Laredo Capital Partners
Mr. Lawrence K. Fleischman
By: ----------------------
150 Vanderbilt Motor Parkway, Suite 311
Hauppauge, NY 11788
Holder of 40 Shares of Series A Preferred Stock
/S/ Lawrence Kaplan & Helaine Kaplan
- ------------------------------------
Lawrence Kaplan & Helaine Kaplan, J.T.
17 Riverview Terrace
Smithtown, NY 11787
Holder of 18 Shares of Series A Preferred Stock
/S/ Joseph M. Fitzgerald
- ------------------------
Mr. Joseph M. Fitzgerald
1530 Touraine Drive
San Jose, CA 95118
Holder of 50 Shares of Series A Preferred Stock
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/S/ Lawrence K. Fleischman
- --------------------------
LICAP Partners
Mr. Lawrence K. Fleischman
By: --------------------------
150 Vanderbilt Motor Parkway, Suite 311
Hauppauge, NY 11788
Holder of 70 Shares of Series A Preferred Stock
/S/ Lisa G. Shine
- ------------------------
Ms. Lisa G. Shine
2910 Neilson Way, #602
Santa Monica, CA 90405
Holder of 13 Shares of Series A Preferred Stock
- ------------------------
Ms. Loretta Hirsh Shine
5301 Aldea Avenue
Encino, CA 91316
Holder of ------- Shares of Series A Preferred Stock
/S/ Nancy A. Aossey
- ------------------------
Ms. Nancy A. Aossey
1807 Camden Avenue #2
Los Angeles, CA 90025
Holder of 8 Shares of Series A Preferred Stock
/S/ Howard M. Zelikow, COO
- ------------------------
Offense Group Associates, L.P.
Mr. Richard Farber
By: ----------------------
1800 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
Holder of 350 Shares of Series A Preferred Stock
/S/ Paul Rajewski
- ------------------------
Mr. Paul Rajewski
7 Country Meadow Road
Rolling Hills Estates, CA 90274
Holder of 68 Shares of Series A Preferred Stock
- ------------------------
Mr. Peter J. Cocoziello
1545 State Highway 206, Suite 100
Bedminster, NJ 07921
Holder of ------ Shares of Series A Preferred Stock
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/S/ Ronald H. Means
- ------------------------
Mr. Ronald H. Means
2195 Holiday Pines Lane
Camarillo, CA 93012
Holder of 32 Shares of Series A Preferred Stock
- ------------------------
Mr. George R. Wong
3834 Rawhide Road
Rocklin, CA 95677
Holder of ------ Shares of Series A Preferred Stock
- ------------------------
SIL Nominees, Ltd.
c/o Slome Capital Corporation
Mr. Ansel A. Slome
By: ----------------------
1888 Century Park East, Suite 1108
Los Angeles, CA 90067
Holder of ------ Shares of Series A Preferred Stock
/S/ Stanley A. Kaplan
- ------------------------
Mr. Stanley A. Kaplan
4 Spinning Wheel Lane
Dix Hills, NY 11746
Holder of 18 Shares of Series A Preferred Stock
/S/ Jonathan Glaser
- ------------------------
Triton Capital Holdings, Ltd.
Mr. Jonathan Glaser
By: ----------------------
1999 Avenue of the Stars, Suite 2530
Los Angeles, CA 90067
Holder of 300 Shares of Series A Preferred Stock
/S/ Kris Melling
- ------------------------
Mr. Kris Melling
4416 Glasgow Way
Anacortes, WA 98221
Holder of 50 Shares of Series A Preferred Stock
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EXHIBIT A
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
RAMTRON INTERNATIONAL CORPORATION (hereafter called the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, hereby certifies:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that the Corporation's Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 Par
Value ("Certificate of Designation"), filed on February 12, 1998, with the
Secretary of State of the State of Delaware is hereby amended and restated in
its entirety to read as follows:
"1. Authorized Shares.
There shall be a series of shares of the Preferred Stock of the Corporation
designated "Series A Convertible Preferred Stock". The number of authorized
shares of such series shall be 29,000 and the rights and preferences of such
series (the "Series A Preferred") and the limitations or restrictions thereon,
shall be as set forth herein.
2. Dividends.
The holders of the Series A Preferred shall be entitled to receive cumulative
dividends at a rate equal to 11% per annum of the liquidation preference per
share per annum, payable semi-annually on December 31 and June 30, with the
first payment being payable on December 31, 1999, when and as declared by the
Board of Directors. Prior to the first anniversary of the date of filing of
this Certificate of Amendment (the "Closing Date"), all dividends shall be
paid in Series A Preferred. On and after the first anniversary of the Closing
Date, dividends may be paid, at the Corporation's option, on any dividend
payment date, either in cash or by the issuance of additional shares of Series
A Preferred (and payment of cash in lieu of fractional shares) having an
aggregate liquidation preference equal to the amount of such dividends. In
the event that on or after the first anniversary of the Closing Date,
dividends are paid in additional shares of Series A Preferred, the dividend
rate shall increase by 2% for such dividend payment period. In the event that
a registration statement is not effective within 130 days after the Closing
Date with respect to the conversion rights set forth in Section 6 and the cash
exchange rights set forth in Section 7, the Series A Preferred shall accrue
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dividends from and after the end of such 130 day period at a rate of 18% per
annum until such time as the registration statement is declared effective.
Dividends as provided by this Section 2 shall accrue on any given share from
the Closing Date, or from the date of original issuance of such share,
whichever is later, and shall accrue from day to day whether or not declared.
Dividends not theretofore paid shall be paid upon conversion of any shares of
the Series A Preferred and shares of Series A Preferred issued in payment of
such dividends shall be simultaneously converted into Common Stock together
with the shares on which such dividends have accrued. Dividends accrued in
accordance with the terms of the Series A Preferred prior to the Closing Date
shall not be affected by this Section 2.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of the Series A
Preferred shall be entitled to receive, prior and in preference to any
distribution of any assets of the Corporation to the holders of the Common
Stock or any other class or series of shares except any class or series which
is entitled to priority over the Series A Preferred, the amount of $1,000 per
share plus any accrued but unpaid dividends (the "Liquidation Preference").
(b) Subject to the last sentence of this Section 3(b), a consolidation or
merger of the Corporation with or into any other corporation or corporations,
or a sale of all or substantially all of the assets of the Corporation, shall,
at the option of the holders of the Series A Preferred, be deemed a
liquidation, dissolution or winding up within the meaning of this Section 3 if
the shares of stock of the Corporation (along with all derivative securities)
outstanding immediately prior to such transaction represent immediately after
such transaction less than a majority of the voting power of the surviving
corporation (or of the acquirer of the Corporation's assets in the case of a
sale of assets). Such option may be exercised by the vote or written consent
of holders of a majority of the Series A Preferred at any time within thirty
calendar days after written notice of the essential terms of such transaction
shall have been given to the holders of the Series A Preferred as provided in
Section 8 hereof. Such notice shall be given by the Corporation immediately
following determination of such essential terms. If such option is exercised,
the holders of the Series A Preferred shall be entitled to receive, in cash,
immediately upon the occurrence of such transaction, an amount per share equal
to the Liquidation Preference. This Section shall not apply to a business
combination in which substantially all the Common Stock of the Corporation is
converted into or exchanged for voting common stock of the corporation
surviving such business combination, if (i) such common stock of the surviving
corporation is listed and traded on The Nasdaq Stock Market or the New York
Stock Exchange, and (ii) the Board of Directors of the Corporation determines
in good faith that the conversion rights and other rights and preferences of
the Series A Preferred are preserved and not rendered of less value by the
terms of such business combination.
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4. Mandatory Redemption.
All of the Series A Preferred outstanding on July 31, 2002 shall be redeemed
by the Corporation at a redemption price equal to 100% of the Liquidation
Preference thereof plus, without duplication, accumulated and unpaid dividends
to the date of redemption.
5. Optional Redemption.
The Series A Preferred shall be redeemable, at the option of the Corporation
and subject to the consent of its lenders, in whole or in part, at any time on
or after July 31, 2000 at an amount equal to its Liquidation Preference plus,
without duplication, accumulated and unpaid dividends to the date of
redemption.
6. Conversion.
The holders of the Series A Preferred shall have optional conversion rights as
follows:
(a) Conversion Rights.
(i) At any time prior to 10 days after the Closing Date (the "Post-
Closing Date"), the Series A Preferred shall be exchangeable at the option of
the holder for shares of Common Stock at an exchange ratio of $.75 face value
of Series A Preferred per share of Common Stock plus accrued and unpaid
dividends to the date of conversion.
(ii) Each holder of record of Series A Preferred shares shall be
entitled to convert Series A Preferred into shares of Common Stock on or after
the Post-Closing Date at the conversion rate of 1,000 shares of Common Stock
per share of Series A Preferred (i.e., $1.00 per share of Common Stock) (such
rate of exchange, and the rate of exchange set forth in paragraph (i), as
applicable, being hereinafter referred to as the "Conversion Rate").
(b) Restriction on Right to Convert. A share of Series A Preferred shall
not be converted into Common Stock if following such conversion the holder
thereof together with affiliates of such holder would be the beneficial owners
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of 10% or
more of the Common Stock of the Corporation. A share which may not be
converted because of the preceding sentence will thereafter be convertible by
any holder if at the time such share is submitted for conversion the preceding
sentence is inapplicable.
(c) Mechanics of Conversion. To convert shares of Series A Preferred
into shares of Common Stock, the holder shall give written notice to the
Corporation (which notice may be given by facsimile transmission) that such
holder elects to convert the same and shall state therein the number of shares
to be converted and the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. Promptly
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thereafter the holder shall surrender the certificate or certificates
representing the shares to be converted, duly endorsed, at the office of the
Corporation or of any transfer agent for such shares, or at such other place
designated by the Corporation. The Corporation shall, immediately upon
receipt of such notice, issue and deliver to or upon the order of such holder,
against delivery of the certificates representing the shares which have been
converted, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled, and a certificate representing
the shares of Series A Preferred not so converted, if any. The Corporation
shall effect such issuance immediately and shall transmit the certificates by
messenger or overnight delivery service to reach the address designated by
such holder within three trading days after the receipt of such notice.
Notice of conversion may be given by a holder at any time of day up to 5:00
p.m. Los Angeles time, and such conversion shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Conversion Date"). The person or persons entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock at the close of business on the Conversion Date.
(d) Determination of Conversion Rate. In the event that the Corporation
shall declare or pay any dividend on the Common Stock payable in Common Stock
or in rights to acquire Common Stock, or shall effect a stock split or reverse
stock split, or a combination, consolidation or reclassification of the Common
Stock, then the Conversion Rate shall be proportionately decreased or
increased, as appropriate, to give effect to such event, and like adjustment
shall be made in any price per share specified elsewhere herein.
(e) Distributions. In the event the Corporation shall at any time or
from time to time make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in securities of the Corporation or any of its subsidiaries or other
property, other than cash dividends from earnings, then in each such event
provision shall be made so that the holders of Series A Preferred shall
receive, upon the conversion thereof, the securities or other property which
they would have received had they been the owners on the date of such event of
the number of shares of Common Stock issuable to them upon conversion.
(f) Certificates as to Adjustments. Upon the occurrence of any
adjustments or readjustment of the Conversion Rate pursuant to Section 6(d)
hereof, or any provision for distribution pursuant to Section 6(e) hereof, or
any adjustment of the cash per-share prices specified herein, the Corporation
at its expense shall promptly compute such adjustment, readjustment or
provision in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred a certificate setting forth such adjustment,
readjustment or provision and showing in detail the facts upon which such
adjustment, readjustment or provision is based. The Corporation shall, upon
the written request at any time of any holder of Series A Preferred, furnish
or cause to be furnished to such holder a like certificate prepared by the
Corporation setting forth (i) such adjustments and readjustments, and (ii) the
number of other securities and the amount, if any, of other property which at
the time would be received upon the conversion of Series A Preferred with
respect to each share of Common Stock received upon such conversion. If any
holder disputes the computation of such adjustment or provision the
Corporation shall cause independent public accountants selected by the
Corporation to verify and, if necessary, correct such computation.
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(g) Notice of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend) or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional shares
of Common Stock, or any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall give notice to each holder of
Series A Preferred at least 10 days prior to such date specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution, security or right and the amount and character of such dividend,
distribution, security or right.
(h) Issue Taxes. The Corporation shall pay any and all issue and other
taxes, excluding any income, franchise or similar taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Preferred pursuant hereto; provided, however, that the
Corporation shall not be obligated to pay any transfer taxes resulting from
any transfer requested by any holder in connection with any such conversion.
(i) Reservation of Stock Issuable Upon Conversion. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series A
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in best efforts to
obtain the requisite shareholder approval as promptly as practicable.
(j) Fractional Shares. No fractional shares shall be issued upon the
conversion of any share or shares of Series A Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Series A Preferred by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of a fraction of a share of Common
Stock, the Corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors of the Corporation).
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(k) Reorganization or Merger. In case of any reorganization or any
reclassification of the capital stock of the Corporation or any consolidation
or merger of the Corporation with or into any other corporation or
corporations or a sale of all or substantially all of the assets of the
Corporation to any other person, and the holders of Series A Preferred do not
elect to treat such transaction as a liquidation, dissolution or winding up as
provided in Section 3, then, as part of such reorganization, consolidation,
merger or sale, provision shall be made so that each share of Series A
Preferred shall thereafter be convertible into the number of shares of stock
or other securities or property (including cash) to which a holder of the
number of shares of Common Stock deliverable upon conversion of such share of
Series A Preferred would have been entitled upon the record date of (or date
of, if no record date is fixed) such event and, in any case, appropriate
adjustment (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series A Preferred, to the end that
the provisions set forth herein shall thereafter be applicable, as nearly as
equivalent as is practicable, in relation to any shares of stock or the
securities or property (including cash) thereafter deliverable upon the
conversion of the shares of Series A Preferred. The Corporation shall have no
obligation to obtain the prior consent of the holders of the Series A
Preferred, individually or as a class, except as expressly provided herein or
as provided by applicable law.
7. Cash Exchange Rights.
(a) Exchange Rights. At any time prior to June 25, 1999, the Series A
Preferred shall be exchangeable at the option of a holder for cash in amount
per share equal to 50% of the face value of the Series A Preferred Share plus
all accrued but unpaid dividends on the Series A Preferred Share, up to an
aggregate amount of $6.4 million face value and accrued and unpaid dividends
to the date of exchange. If, in the judgment of the Board of Directors of the
Corporation, the Corporation's financial condition and results of operations
permit the Corporation to permit the exchange for cash of more than $6.4
million face value (plus accrued dividends) of the Series A Preferred, the
terms of the Series A Preferred will permit the exchange for cash of up to
$8.0 million face value (plus accrued and unpaid dividends) of the Series A
Preferred. To the extent that holders of Series A Preferred desire to
exchange in the aggregate a greater face value (plus accrued and unpaid
dividends) of the Series A Preferred than is permitted under the terms of the
Series A Preferred, Series A Preferred will be accepted for exchange by the
Corporation for cash on a pro rata basis based upon the aggregate face value
(plus accrued and unpaid dividends) of the Series A Preferred validly tendered
for exchange.
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(b) Mechanics of Exchange. To exercise the exchange right set forth in
Section 7(a), the holder shall give written notice to the Corporation (which
notice may be given by facsimile transmission) that such holder elects to
exercise such right and shall state therein the number of shares to be
converted and the name or names in which such holder wishes the payment to be
received. Promptly thereafter the holder shall surrender the certificate or
certificates representing the shares to be exchanged, duly endorsed, at the
office of the Corporation or of any transfer agent for such shares, or at such
other place designated by the Corporation. The Corporation shall, immediately
upon receipt of such notice, issue and deliver to or upon the order of such
holder, against delivery of the certificates representing the shares which
have been converted, a check for payment of the cash amount to which such
holder shall be entitled, and a certificate representing the shares of Series
A Preferred not so exchanged, if any. The Corporation shall effect such
payment immediately and shall transmit the check by messenger or overnight
delivery service to reach the address designated by such holder within three
trading days after the receipt of such notice. Notice of the exercise of
exchange rights may be given by a holder at any time of day up to 5:00 p.m.
Los Angeles time, and such exercise shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Exchange Date"). The person or persons entitled to
receive payment upon such exchange shall be treated for all purposes as the
record holder or holders of such shares of Common Stock at the close of
business on the Exchange Date.
8. Notices.
Any notice to be given to the holders of the Series A Preferred shall be
(i) mailed by first class mail postage prepaid to each holder of Series A
Preferred at the address shown on the records of the Corporation for such
holder, (ii) transmitted by telecopy or facsimile transmission to any holder
which has supplied a telecopy or facsimile address to the Corporation, and
(iii) unless receipted for by telecopy or facsimile on the date such notice is
given, shall be transmitted by an overnight delivery service or courier
service for delivery at the address shown on the records of the Corporation
for such holder on the first business day following the date such notice is
given, or if delivery in one business day to such address cannot be effected
by such delivery service, then on the earliest day on which such delivery can
be made.
9. Registration Rights.
The corporation shall use its best efforts to file and cause to become
effective as of no later than 130 days after June 15th a registration
statement for Common Stock of the Corporation issuable upon exchange or
conversion of the Series A Preferred, to the extent such shares of Common
Stock are not then freely tradable under the federal securities laws.
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10. Restrictions and Limitations.
The Corporation shall not undertake the following actions without the consent
of the holders of a majority of the Series A Preferred: (i) modify its
Certificate of Incorporation or Bylaws so as to amend or change any of the
rights, preferences, or privileges of the Series A Preferred, (ii) authorize
or issue any other equity security senior to or ranking on parity with the
Series A Preferred, or (iii) pay any dividends in cash or property on, or
purchase or otherwise acquire for value, any Common Stock purchase or other
equity security of the Corporation either junior to or on a parity with the
Series A Preferred except from current or retained earnings or from the net
proceeds of sale of equity securities, except for purchases of Common Stock
from terminating or retiring employees pursuant to the terms of employee
benefit plans in an aggregate amount not greater than $1 million.
11. Voting Rights.
The Series A Preferred shall have no voting rights, except as otherwise
required by law and except in certain circumstances described herein,
including (i) amending certain rights of the holders of the Series A Preferred
and (ii) the issuance of any class of equity securities that ranks pari passu
with or senior to the Series A Preferred other than certain additional shares
of Series A Preferred.
12. Attorneys' Fees.
Any holder of Series A Preferred shall be entitled to recover from the
Corporation reasonable attorneys' fees and expenses incurred by such holder in
connection with enforcement by such holder of any obligation of the
Corporation hereunder, if such holder is the prevailing party in an action or
proceeding to compel such enforcement."
SECOND, that the proposed amendment has been duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware and that notice of the taking of such action by written consent has
been given as provided in Section 228 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. David Sikes, its Chairman of the
Board and Chief Executive Officer, or by Greg B. Jones, its President and
Chief Operating Officers, this XXX day of July 1999.
Ramtron International Corporation
By:
--------------------
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OPTIONAL ELECTION
By the Undersigned Holder of the Series A Preferred
in order to convert or exchange Series A Preferred
To: Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, CO 809821
Fax: (719) 481-9294
The undersigned (the "Holder") is the registered owner of shares of Series
A Convertible Preferred Stock ("Series A Preferred") of Ramtron International
Corporation ("Ramtron"). On the terms and subject to the conditions of the
Certificate of Amendment (the "Certificate of Amendment") of Ramtron's
Certificate of Incorporation which is to be filed with the Secretary of State
of Delaware, if approved by the holders of a majority of the outstanding
Series A Preferred shares, to effect the amendment and restatement of
Ramtron's Certificate of Designation governing the Series A Preferred, Holder
hereby makes the following election or elections:
[ ] Election A: To exchange Holder's shares of Series A Preferred
including accrued dividends for shares of Ramtron's Common Stock at an
exchange ratio of $0.75 liquidation value of Series A Preferred per share of
Ramtron's Common Stock ("Election A"). Holder makes the election indicated
above with respect to XXXXXXX shares of Series A Preferred owned by Holder,
plus accrued dividends thereon; or
[ ] Election B. To exchange Holder's shares of Series A Preferred
including accrued dividends for cash in the amount per Series A Preferred
share equal to 50% of the liquidation value thereof up to an aggregate of $6.4
million liquidation value for all holders of Series A Preferred electing to
receive cash for Series A Preferred shares ("Election B"). Holder makes the
election indicated above with respect to XXXXXXXX shares of Series A Preferred
owned by Holder, plus accrued dividends thereon. If Holder elects Election
B:
Election B-1 If the holders of more than $6.4 million liquidation value
of shares of Series A Preferred elect Election B and the shares of Series
A Preferred as to which Holder makes Election B are thus required to be
prorated as described in the Certificate of Amendment, with respect to
the remaining balance of Holder's shares not exchanged for cash, Holder
elects either:
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[ ] to exchange such shares of Series A Preferred for shares of
Ramtron's Common Stock at an exchange ratio of $0.75
liquidation value of Series A Preferred per share of Ramtron's
Common Stock, or
[ ] to receive shares of Series A Preferred governed by the
Certificate of Amendment.
If Holder makes no election under Election B-1 above, then Holder will
receive shares of Series A Preferred governed by the Certificate of Amendment.
If Ramtron does not receive this Election duly executed by the Holder as
prescribed below prior to the Post-Closing Date (which is the date 10 days
after the date of filing the Certificate of Amendment) as provided in the
Certificate of Amendment, Holder's shares of Series A shall remain outstanding
and be entitled to and governed by the preferences, rights and limitations of
the Certificate of Amendment.
Holder shall promptly surrender the certificate or certificates
representing the shares of Series A Preferred to be converted or exchanged,
duly endorsed, to Ramtron. Holder requests that: (i) in the case of Election
A, or, if applicable, in the case of Holder's election of Election B to
receive shares of Common Stock for any portion not exchangeable for cash,
certificates for shares of Ramtron's Common Stock be issued in Holder's name
set forth below, or (ii) in the case of Election B, a check for payment of the
cash amount to which the Holder is entitled be issued to Holder, and in each
instance sent to Holder at the address set forth below.
If Ramtron receives this Election prior to the Closing Date (which is the
date of the filing of the Certificate of Amendment), the election made will be
deemed to have occurred immediately prior to the close of business on the
Closing Date.
Note: If Holder wishes to continue to own shares of Series A Preferred
governed by Ramtron's new Certificate of Amendment, no election is necessary
and this form can be disregarded. If Holder does not make an election, then
Holder will own shares of Series A Preferred. Holder may make an election
even if Holder does not sign the "Written Consent of Holders of Series A
Convertible Preferred Stock, $0.01 Par Value Per Share, of Ramtron
International Corporation in Lieu of Special Preferred Stockholders Meeting,"
the "Preferred Stock Recapitalization Agreement" or the "Supplemental Exchange
Rights Agreement."
Dated: --------------------------- Signature: -----------------------------
Name: ---------------------------- Note: the above signature must
(Please Print or Typewrite) correspond with the name as
Address: ------------------------- written upon the face of the
(Street) of the certificate evidencing
------------------------- the Series A Preferred.
(City)(State)(Zip Code)
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DFA STOCKHOLDERS RECAPITALIZATION AGREEMENT
This DFA Stockholders Recapitalization Agreement is dated as of July 30, 1999,
among Ramtron International Corporation ("Ramtron"), a Delaware corporation,
and the holders, severally, of Ramtron's Common Stock executing this Agreement
(each a "DFA Stockholder" and together the "DFA Stockholders").
RECITALS:
A. Each of the DFA Stockholders and Ramtron entered into a Stock Purchase
Agreement dated as of December 23, 1997 (each a "Purchase Agreement" and
together the "Purchase Agreements"), pursuant to which each of the DFA
Stockholders purchased from Ramtron shares of Ramtron's Common Stock.
B. The DFA Stockholders and Ramtron wish to amend the Purchase Agreements.
C. The DFA Stockholders and Ramtron wish to set forth in this Agreement their
respective rights and obligations concerning Ramtron's recapitalization to be
consummated in connection with the proposed amendment of the Purchase
Agreements.
NOW, THEREFORE, in consideration of the Recitals, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Termination of Purchase Agreements. Subject only to the satisfaction or
waiver of the conditions set forth in Section 3 of this Agreement, by their
execution hereof, Ramtron and the DFA Stockholders, respectively, terminate
each Purchase Agreement.
2. The Closing. In order to coordinate the effective consummation of the
actions to be taken pursuant to this Agreement upon satisfaction or waiver of
the conditions set forth in Section 3 of this Agreement, representatives of
Ramtron and the DFA Stockholders shall conduct a closing (the "Closing") at
Ramtron's offices or in such other manner as Ramtron and the DFA Stockholders
may agree on the later of the following: (a) the date on which the last to be
fulfilled or waived of the conditions set forth in Section 3 hereof shall be
fulfilled or waived in accordance with this Agreement, and (b) such other time
and date as Ramtron and the DFA Stockholders may agree. The date on which the
Closing occurs is hereinafter called the "Closing Date." Prior to or at the
Closing:
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(a) Ramtron and the DFA Stockholders shall execute and deliver originals
of any required consents, instruments or documents as may not previously have
been executed and delivered in order to carry out and effectuate the
provisions of this Agreement.
(b) Ramtron shall deliver to each of the DFA Stockholders a promissory
note (each a "Convertible Promissory Note" and together the "Convertible
Promissory Notes"), having the substance and form of Exhibit A, in the
principal amount set forth opposite each DFA Stockholder's name below:
DFA Stockholder Dollar Amount
--------------- -------------
DFA GROUP TRUST -- SMALL COMPANY SUBTRUST $1,692,046
U.S. 9-10 SMALL COMPANY PORTFOLIO $883,297
DFA GROUP TRUST -- 6-10 SUBTRUST $648,369
3. Conditions of Closing.
(a) The obligations of the DFA Stockholders set forth in this Agreement
are subject to the fulfillment or waiver, at or before the Closing, of each of
the following conditions:
(i) (A) Ramtron's common stockholders shall have approved Proposals
1A and 1B at a special meeting held on July 20, 1999 in
accordance with Ramtron's Notice of Special Meeting dated
June 21, 1999; (B) the holders of at least a majority of
Ramtron's Series A Convertible Preferred Stock (the "Series
A Stockholders") shall have approved the amendment of Ramtron's
Certificate of Incorporation to amend and restate the Certificate
of Designation filed with the Delaware Secretary of State on
February 12, 1998, as set forth in Ramtron's Certificate of
Amendment of Certificate of Incorporation (the "Certificate of
Amendment") attached hereto as Exhibit B; (C) Ramtron's Board of
Directors shall have approved and authorized the execution and
filing with the Delaware Secretary of State of the Certificate of
Amendment; and (D) NEBF and Ramtron shall have amended the Loan
Agreement dated August 31, 1995, or shall have prepared and
signed a separate document, to provide (among other things) for
(I) NEBF's irrevocable consent to the Certificate of Amendment as
provided in Ramtron's Recapitalization Agreement with the Series
A Stockholders, (II) the extension of the maturity date for the
loan to a date not earlier than March 15, 2002, and (III) the
release of certain categories of collateral pledged as security
for repayment of NEBF's loan to Ramtron upon Ramtron's
satisfaction of certain performance milestones.
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(ii) Each of the representations and warranties of Ramtron contained in
Section 4 shall be true and correct in all material respects on
and as of the Closing Date with the same effect as though such
representations and warranties had been made as of the Closing.
(iii) Ramtron shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the
Closing and shall have obtained all approvals, consents and
qualifications necessary to completely perform its obligations
undertaken herein.
(iv) Ramtron shall have provided to each of the DFA Stockholders or
their representative a copy, certified by Ramtron's Secretary, of
the resolutions of the Board of Directors of Ramtron providing for
the authorization and approval of this Agreement and the matters
mentioned in Section 3(a)(i)(D).
(v) Ramtron's Common Stock shall be listed on The Nasdaq SmallCap
Market ("Nasdaq") and trading in Ramtron's Common Stock shall not
have been suspended by Nasdaq, the Securities and Exchange
Commission (the "SEC") or other regulatory authority.
(vi) No action, suit, proceeding, inquiry or investigation before or by
any court, public board, governmental agency or authority shall be
known to Ramtron to have been filed against or affecting Ramtron
or Enhanced Memory Systems, Inc. ("EMS"), a Delaware corporation
wholly owned by Ramtron, which seeks to prevent, enjoin, alter or
delay the transactions contemplated by this Agreement or which if
decided adversely to Ramtron would affect the validity or
enforceability of this Agreement or the Convertible Promissory
Note.
(b) The obligations of Ramtron set forth in this Agreement are subject to
the fulfillment or waiver, at or before the Closing, of each of the following
conditions:
(i) (A) Ramtron's common stockholders shall have approved Proposals 1A
and 1B at a special meeting called and held in accordance with
Ramtron's Notice of Special Meeting dated June 21, 1999; (B) the
Series A Stockholders shall have approved the Certificate of
Amendment; (C) Ramtron's Board of Directors shall have approved
and authorized the execution and filing with the Delaware
Secretary of State of Certificate of Amendment; and (D) NEBF and
Ramtron shall have amended the Loan Agreement dated August 31,
1995, or shall have prepared and signed a separate document, to
provide (among other things) for (I) NEBF's irrevocable consent to
the Certificate of Amendment as provided in Ramtron's
Recapitalization Agreement with the Series A Stockholders, (II)
the extension of the maturity date for the loan to a date not
earlier than March 15, 2002, and (III) the release of certain
categories of collateral pledged as security for repayment of
NEBF's loan to Ramtron upon Ramtron's satisfaction of certain
performance milestones.
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(ii) Ramtron and the Series A Stockholders shall have entered into and
closed, or shall enter into and close concurrently with the
Closing of this Agreement, the Preferred Stock Recapitalization
Agreement.
(iii) All legal actions of any type, if any, filed against Ramtron by
any of the DFA Stockholders, or their respective transferees,
affiliates, associates, stockholders, partners, members and other
related parties, and all legal actions of any type filed against
Ramtron by any of the Series A Stockholders, or their respective
transferees, affiliates, associates, stockholders, partners
members and other related parties, shall have been dismissed with
prejudice or appropriate documents to effect such dismissal shall
have been delivered to Ramtron.
(iv) Each of the representations and warranties of the DFA Stockholders
contained in Section 5 shall be true and correct in all material
respects on and as of the Closing Date, with the same effect as
though such representations and warranties had been made as of the
Closing.
(v) The DFA Stockholders shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement
that are required to be performed or complied with by the DFA
Stockholders on or before the Closing and shall have obtained all
approvals, consents and qualifications necessary to completely
perform their obligations undertaken herein.
4. Representations and Warranties of Ramtron. Ramtron represents and warrants
to the DFA Stockholders as of the date hereof and as of the Closing Date:
(a) Organization and Qualification. Each of Ramtron and EMS is a
corporation duly incorporated and existing in good standing under the laws of
Delaware and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Each of Ramtron and EMS is duly
qualified as a corporation authorized to do business, and is in good standing,
in every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary other than those in which the
failure so to qualify would not have a Material Adverse Effect. "Material
Adverse Effect" means any adverse effect on the business, operations,
properties, or financial condition of Ramtron.
(b) Authorization; Enforcement. (i) Ramtron has the requisite corporate
power and authority to enter into and perform this Agreement, to execute and
deliver the Convertible Promissory Notes to the DFA Stockholders pursuant to
Section 2(c) of this Agreement and to issue shares of Common Stock upon
conversion of the Convertible Promissory Notes in accordance with their terms,
(ii) the execution and delivery of this Agreement by Ramtron and the
consummation by it of the transactions contemplated hereby have been duly
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authorized by all necessary corporate action, and no further consent or
authorization of Ramtron or its Board of Directors or stockholders is required,
(iii) this Agreement has been duly executed and delivered by Ramtron, and
(iv) this Agreement constitutes a valid and binding obligation of Ramtron
enforceable against Ramtron in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application. The Common Stock issuable
upon conversion of the Convertible Promissory Notes will be duly authorized and
reserved for issuance and, upon conversion in accordance with the terms of the
Convertible Promissory Notes, will be validly issued, fully paid and non-
assessable and not subject to any preemptive rights or adverse claims, and the
holders shall be entitled to all rights and preferences accorded to a holder of
Common Stock.
(c) Capitalization. The authorized capital stock of Ramtron consists of
75,000,000 shares of Common Stock and 10,000,000 shares of preferred stock;
there are approximately 62,759,301 shares of Common Stock and 8,878 shares of
preferred stock issued and outstanding. Ramtron's common stockholders approved
proposals 1A and 1B at the common stockholders meeting on July 20, 1999. Upon
the effectiveness of the 1:5 reverse stock split of Ramtron's Common Stock to
be effected immediately following the effectiveness of the Certificate of
Amendment, Ramtron will have authorized capital of 60,000,000 shares consisting
of 50,000,000 shares of Common Stock and 10,000,000 shares of preferred stock,
and there will be outstanding approximately 12,551,860 shares of Common Stock
and 8,878 shares of Series A Stock, the conversion rights of which shall be
adjusted pursuant to the Certificate of Amendment to account for the reverse
stock split. All of the outstanding shares of Ramtron's Common Stock have been
validly issued and are fully paid and non-assessable. Except as described in
the SEC Documents (as hereinafter defined), except for the rights of the Series
A Stockholders and each of the DFA Stockholders, and except for the right of
NEBF to convert its loan to Ramtron into Ramtron Common Stock and the
registration rights of NEBF with respect to shares of Ramtron's Common Stock
held by, and to be issued to, NEBF, no shares of Common Stock are entitled to
preemptive rights or registration rights and there are no outstanding options,
convertible securities, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatever relating to, or securities or rights
convertible into, any shares of capital stock of Ramtron, or contracts,
commitments, understandings, or arrangements by which Ramtron is or may become
bound to issue additional shares of capital stock or options, warrants, scrip,
rights to subscribe to, or commitments to purchase or acquire, any shares, or
securities or rights convertible into shares, of capital stock of Ramtron. All
of the rights to purchase Ramtron Common Stock described in the immediately
preceding sentence, and the conversion rights under the Convertible Promissory
Notes issued to the DFA Stockholders, are subject to adjustment to account for
the 1:5 reverse stock split to be effected pursuant to Proposal 1B approved on
July 20, 1999, by Ramtron's common stockholders. Ramtron has furnished or made
available to the DFA Stockholders true and correct copies of Ramtron's
Certificate of Incorporation as in effect on the date hereof, and Ramtron's
By-Laws, as in effect on the date hereof.
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(d) No Conflicts. The execution, delivery and performance of this
Agreement by Ramtron and the consummation by Ramtron of the transactions
contemplated hereby do not and will not (i) result in a violation of EMS'
Certificate of Incorporation, in a violation of Ramtron's Certificate of
Incorporation as it shall be amended by the Certificate of Amendment, or in a
violation of the By-Laws of EMS or Ramtron, (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which Ramtron or EMS is a party, or (iii) result in a violation of any Federal,
state, local or foreign law, rule or regulation, order, judgment or decree
(including Federal and state securities laws and regulations) applicable to
Ramtron or EMS by which any property or asset of Ramtron or EMS is bound or
affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in
the aggregate, have a Material Adverse Effect); provided that, for purposes of
such representation as to Federal, state, local or foreign law, rule or
regulation, no representation is made herein with respect to any of the same
applicable solely to the Series A Stockholders and not to Ramtron. Neither the
business of Ramtron nor EMS is being conducted in violation of any law,
ordinance or regulations of any governmental entity, except for violations
which either singly or in the aggregate do not and will not have a Material
Adverse Effect. Ramtron is not required under Federal, state or local law,
rule or regulation in the United States to obtain any consent, authorization or
order of, or make any filing (other than the filing of the Certificate of
Amendment with the Delaware Secretary of State, as required for the
consummation of this Agreement pursuant to Section 3(a)(i)) or registration
with, any court or governmental agency in order for it to execute, deliver or
perform any of its obligations under this Agreement (other than any SEC or
state securities filings which may be required to be made by Ramtron in
connection with any registration statement which may be filed pursuant hereto
and any notifications to the , National Association of Securities Dealers with
respect to the shares of Common Stock); provided that, for purposes of the
representation made in this sentence, Ramtron is assuming and relying upon the
accuracy of the relevant representations and agreements of the DFA Stockholders
herein.
(e) SEC Documents, Financial Statements. The Common Stock of Ramtron is
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Ramtron has filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d), in addition to one or more
registration statements and amendments thereto heretofore filed by Ramtron with
the SEC (all of the foregoing including filings incorporated by reference
therein being referred to herein as the "SEC Documents"). As of their
respective dates, the SEC Documents complied in all material respects with the
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requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted principles
applied on a consistent basis during the periods (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or
(ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) fairly present in
all material respects the financial position of Ramtron as of the dates thereof
and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(f) Absence of Litigation. Except as disclosed at the end of this
Section 4(f), there is no action, suit or proceeding before or by any court,
public board, governmental agency or authority, or self-regulatory organization
pending or, to the knowledge of Ramtron, threatened against Ramtron, or any of
its respective directors or officers in their capacities as such, wherein an
unfavorable decision, ruling or finding could reasonably be expected to have a
Material Adverse Effect or would adversely affect the transactions contemplated
by this Agreement or any of the documents contemplated hereby or which would
adversely affect the validity or enforceability of, or the authority or ability
of Ramtron to perform its obligations under, this Agreement or any of such
other documents. To Ramtron's knowledge, there are no facts which, if known by
a potential claimant or governmental agency or authority, could give rise to a
claim or proceeding which, if asserted or conducted with results unfavorable to
Ramtron, could reasonably be expected to have a Material Adverse Effect.
Pursuant to the decision of the Nasdaq Listing Qualification Panel provided to
Ramtron in a letter dated June 18, 1999, Ramtron's Common Stock will be
delisted from the Nasdaq SmallCap Market unless, by August 6, 1999, Ramtron
evidences a closing bid price of not less than $1.00 per share, and,
thereafter, Ramtron continues to evidence a closing bid price of at least $1.00
per share for a minimum of ten consecutive trading days.
(g) No Anti-Takeover Plan. There is not in effect any shareholders rights
plan or other capital structure the intent of which is to prevent or impede a
future change of the current management of Ramtron.
(h) Nasdaq Status. Upon the effectiveness of the Certificate of
Amendment, (i) the shares of Series A Stock will not constitute a "future
priced security" for purposes of the Nasdaq proposed rule change entitled
"Interpretative Material Regarding Future Priced Securities"; (ii) Nasdaq Rule
4330 as interpreted in that Interpretative Material will not be violated by the
terms of the Certificate of Amendment; and (iii) the rights and preferences of
the Series A Stock pursuant to the Certificate of Amendment do not constitute a
change in financial structure requiring Ramtron to satisfy Nasdaq's initial
inclusion requirements.
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(i) No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to Ramtron or EMS or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by Ramtron but which has not been so publicly announced or
disclosed.
(j) No Third Party Actions. Ramtron has no knowledge of any action, suit,
proceeding, inquiry or investigation, before or by any court, public board,
government agency or authority and has no notice that any party intends to
institute any of the foregoing, which seeks to prevent, enjoin, alter or delay
the transactions contemplated by this Agreement or which if decided adversely
to Ramtron would affect the validity or enforceability of the Agreement or the
Convertible Promissory Notes.
5. Representations and Warranties of DFA Stockholders. Each DFA Stockholder
represents and warrants to Ramtron as of the date hereof and as of the Closing
Date, solely with respect to itself and not with respect to any other DFA
Stockholder (and no DFA Stockholder shall be deemed to make or have any
liability for any representation or warranty made by any other DFA
Stockholder):
(a) Authorization, Enforcement. (i) The DFA Stockholder has the requisite
power and authority to enter into and perform this Agreement, (ii) the
execution and delivery of this Agreement by the DFA Stockholder and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate or partnership action, and (iii) this
Agreement constitutes a valid and binding obligation of the DFA Stockholders
enforceable against the DFA Stockholder in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principals of general application.
(b) No Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the DFA Stockholder of the transactions
contemplated hereby do not and will not (i) result in a violation of the DFA
Stockholder's charter documents or By-Laws, (ii) conflict with any agreement,
indenture or instrument to which the DFA Stockholder is a party, or
(iii) result in a violation of any law, rule or regulation, or any order,
judgment or decree of any court or governmental agency applicable to the DFA
Stockholder. The business of the DFA Stockholder is not being conducted in
violation of any law or regulation of any governmental entity, except for
possible violations which either singly or in the aggregate do not and will not
have a Material Adverse Effect. The DFA Stockholder is not required to obtain
any consent or authorization of any governmental agency in order for it to
perform its obligations under this Agreement. The data to be provided by the
DFA Stockholder in connection with registering Registrable Securities (as
hereinafter defined) under the Securities Act of 1933, as amended (the "Act"),
will be true and accurate in all material respects.
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(c) Accredited Investor. The DFA Stockholder is an accredited investor as
defined in Rule 501 promulgated under the Act. The DFA Stockholder has such
knowledge and experience in financial and business matters in general, and
investments in particular, so that such DFA Stockholder is able to evaluate the
merits and risks of the transactions contemplated under this Agreement and to
protect its own interests in connection with its investment in the Common Stock
and Convertible Promissory Notes.
(d) Information. The DFA Stockholder acknowledges (but without limiting
the effect of Ramtron's representations and warranties contained herein), that
it has received such information as it considers necessary or appropriate for
deciding whether to execute this Agreement.
(e) Rule 144. The DFA Stockholder understands that there is no public
trading market for the Convertible Promissory Notes, that none is expected to
develop and that the Convertible Promissory Notes must be held indefinitely
unless such notes or securities into which the Convertible Promissory Notes are
converted are registered under the Act or an exemption from registration is
available. The Series A Stockholder has been advised or is aware of the
provisions of Rule 144 promulgated under the Act.
6. Covenants of Ramtron. Ramtron covenants and agrees as follows:
(a) Ramtron shall use its best efforts and shall act in good faith to
cause to occur all conditions to Closing which are in Ramtron's control.
(b) Ramtron shall file with the Delaware Secretary of State on the Closing
Date the Certificate of Amendment, and immediately thereafter, Ramtron shall
file with the Delaware Secretary of State a second Certificate of Amendment to
its Certificate of Incorporation, attached hereto as Exhibit C, effecting the
1:5 Reverse Stock Split pursuant to Proposal 1B approved on July 20, 1999, by
Ramtron's Common Stockholders.
(c) Ramtron shall file one or more registration statements as provided in,
and comply with its obligations undertaken in, Section 8.
7. Covenants of DFA Stockholders. Each DFA Stockholder severally, and not
jointly, covenants and agrees as follows:
(a) The DFA Stockholder shall use its best efforts and shall act in good
faith to cause to occur all conditions to Closing which are in the DFA
Stockholders' control.
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(b) Upon the consummation of the transactions contemplated by this
Agreement, the DFA Stockholder for itself, its predecessors, successors,
assigns, subsidiaries, affiliates, officers, directors, shareholders and agents
fully and unconditionally releases, discharges and covenants to hold harmless
Ramtron and its successors, assigns, subsidiaries, affiliates, officers,
directors, shareholders and agents from any and all causes of action, including
without limitation claims, demands, administrative complaints, lawsuits,
rights, judgments, liens, damages, debts and expenses (including attorneys'
fees and costs actually incurred), liabilities and obligations of any kind and
nature whatsoever, whether intentional or negligent, known or unknown,
suspected or unsuspected, in law or in equity, individually or as part of a
class action, including any and all known and unknown, foreseen or unforeseen,
injuries, damages and losses, arising from, relating or attributable in any
manner to the Purchase Agreements or the stock purchased thereunder and
occurring prior to the Closing Date, except that the foregoing will not affect
any rights arising under this Agreement, the Certificate of Amendment or any
other documents executed and delivered in connection with this Agreement. The
provisions of any laws providing in substance that releases shall not extend to
claims which are unknown or unsuspected at the time, to the person executing
such waiver or release, are hereby expressly waived. Each DFA Stockholder
certifies that it has not assigned or transferred, purported to assign or
transfer, and will not assign or transfer any matter herein released.
8. Covenant to Register Shares of Common Stock
(a) For purposes of this Section, the following definitions shall apply:
(i) The terms "register," "registered" and "registration" refer to a
registration under the Act, effected by preparing and filing a
registration statement in compliance with the Act, and the
declaration or ordering of effectiveness of such registration
statement or amendment thereto.
(ii) The term "Registrable Securities" means (A) the shares of Common
Stock held of record by the DFA Stockholders on the Closing Date
or (B) the shares of common stock issued or issuable upon
conversion in whole or in part of the Convertible Promissory
Notes issued to the DFA Stockholders pursuant to Section 2(c) of
this Agreement, which in either case (I) have not been resold
pursuant to an effective registration statement or pursuant to
Rule 144 under the Act or (II) may not be resold pursuant to
Rule 144(k) under the Act. For purposes of this Agreement,
securities will be considered ineligible for resale pursuant to
Rule 144(k) under the Act unless Ramtron's transfer agent has
accepted an instruction from Ramtron specifying that such
securities are eligible for sale pursuant to Rule 144(k).
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(iii) The term "holder of Registrable Securities" includes any person
who holds Registrable Securities or any person who holds by due
assignment a Convertible Promissory Note.
(b) (i) Ramtron shall, within ten (10) business days following the
Closing Date, file a registration statement on Form S-3, or if
Form S-3 is not then available, another appropriate form,
covering the resale of all the Registrable Securities under Rule
415 and, to the extent applicable, Rule 416. The number of
shares of Common Stock included in such registration statement
shall be not less than the aggregate number which would be
issuable upon conversion of all of the Convertible Promissory
Notes. Ramtron shall use its best efforts to cause such
registration statement to become effective by the 130th calendar
day after the Closing Date (the "Initial Registration"). In the
event such registration is not so declared effective or if at any
time thereafter it does not include all of the number of
Registrable Securities which would then be issuable upon
conversion of the Convertible Promissory Notes (or any successor
security), any holder of Registrable Securities shall have the
right to require by notice in writing that Ramtron register all
or any part of the Registrable Securities held by such holder (a
"Demand Registration") and Ramtron shall thereupon effect such
registration in accordance herewith (which may include adding
such shares to an existing shelf registration). The parties
agree that if the holder of Registrable Securities demands
registration of less than all of the Registrable Securities,
Ramtron, at its option, may nevertheless file a registration
statement covering all of the Registrable Securities. If such
registration statement is declared effective with respect to all
Registrable Securities, then so long as Ramtron is in compliance
with its obligations under Sections 8(c)(i) through (v), the
demand registration rights granted pursuant to this Sections
8(b)(i) shall not be applicable. Ramtron shall provide holders
of Registrable Securities reasonable opportunity to review any
such registration statement or amendment or supplement thereto
prior to the filing thereof.
(ii) Ramtron may suspend the effectiveness of any such registration
effected pursuant to this Section 8(b) in the event, and for such
period of time as, such a suspension is required by the rules and
regulations of the SEC, and may suspend use of the prospectus
included in the Registration Statement if such prospectus ceases
to meet the requirements of Section 10 of the Act. Ramtron will
immediately advise the holders of the registered securities of
any such suspension, and will use its best efforts to cause such
suspension to terminate at the earliest possible date. The DFA
Stockholder agrees that following receipt of any such notice, and
until such suspension is terminated, the DFA Stockholder will not
make use of the suspended prospectus and will make no sales
requiring delivery of such prospectus.
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(c) Whenever required under this Section to effect the registration of any
Registrable Securities, including, without limitation, the Initial
Registration, Ramtron shall, as expeditiously as reasonably possible:
(i) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts
to cause such registration to become effective as provided in
Section 8(b)(i), and keep such registration statement effective
for so long as any holder of Registrable Securities desires to
dispose of the securities covered by such registration statement,
or if earlier, until such Registrable Securities may be sold
under Rule 144(k) (provided that Ramtron's transfer agent has
accepted an instruction from Ramtron to such effect).
(ii) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of
all securities covered by such registration statement and notify
the holders of the filing and the effectiveness of such
Registration Statement and any amendments or supplements.
(iii) Furnish to each holder of Registrable Securities such numbers of
copies of a current prospectus conforming with the requirements
of the Act, copies of the registration statement, any amendment
or supplement thereto and any documents incorporated by reference
therein and such other documents as such holder of Registrable
Securities may reasonably require in order to facilitate the
disposition of Registrable Securities owned by such holder of
Registrable Securities.
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such securities or
"Blue Sky" laws of such jurisdictions as shall be reasonably
requested by a holder of Registrable Securities and keep such
registration or qualification effective as long as required to
permit sale of Registrable Securities thereunder, provided that
Ramtron shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions.
(v) Notify each holder of Registrable Securities immediately of the
happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances then existing, and use its best efforts to promptly
update and/or correct such prospectus.
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(vi) Upon request in writing to Ramtron, furnish to each holder of
Registrable Securities included therein (A) an opinion of counsel
to Ramtron covering compliance of the registration statement, as
to form with the requirements of the Act and the rules
thereunder, and covering the matters covered in the opinion filed
as an exhibit to the registration statement, and (B) a "cold
comfort" letter or letters of Ramtron's independent public
accountants in the form and of the substance customarily supplied
to underwriters in connection with a public offering.
(vii) Use its best efforts to list the Registrable Securities covered
by such registration statement with any national market or
securities exchange on which the Common Stock is then listed.
(viii) Make available for inspection by any holder of Registrable
Securities, upon request, all documents filed with the SEC
subsequent to the Closing Date and require Ramtron's
representatives to supply all information reasonably requested by
any holder of Registrable Securities in connection with such
registration statement.
(d) Each holder of Registrable Securities will furnish to Ramtron in
connection with any registration under this Section such information regarding
itself, the Registrable Securities and other securities of Ramtron held by it,
and the intended method of disposition of such securities as shall be
reasonably required to effect the registration of the Registrable Securities
held by such holder of Registrable Securities. Initially, and without
limitation of the preceding sentence, each holder of Registrable Securities
shall provide such data as of the Closing Date or a date not more than
five (5) days after the Closing Date. The intended method of disposition (Plan
of Distribution) of such securities as so provided by the holder of Registrable
Securities shall be included without alteration in the Registration Statement
covering the Registrable Securities and shall not be changed without written
consent of the holder of Registrable Securities.
(e) (i) Ramtron shall indemnify, defend and hold harmless each holder of
Registrable Securities which are included in the registration
statement pursuant to the provisions of Section 8(b) (each, a
"Selling Shareholder") and each of its officers, directors,
employees, agents, partners or controlling persons (within the
meaning of the Act) (each, for purposes of this Section 8(e)(i),
an "indemnified party") from and against, and shall reimburse
such indemnified party with respect to, any and all claims,
suits, demands, causes of action, losses, damages, liabilities,
costs or expenses ("Liabilities") to which such indemnified party
may become subject under the Act or otherwise, arising from or
relating to (A) any untrue statement or alleged untrue statement
of any material fact contained in such registration statement,
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any prospectus contained therein or any amendment or supplement
thereto, or (B) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading; provided, however, that
Ramtron shall not be liable in any such case to the extent that
any such Liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if (A) a Selling
Shareholder under an obligation to send or deliver a copy of the
prospectus with or prior to the delivery of written confirmation
of the sale of Registrable Securities to the person asserting
such Liability who purchased such Registrable Securities which
are the subject thereof from such Selling Shareholder failed to
do so and (B) the prospectus would have corrected such untrue
statement or omission; and, provided further, that Ramtron shall
not be liable in any such case to the extent that any Liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the
prospectus, if such untrue statement or alleged untrue statement,
omission or alleged omission corrected in an amendment or
supplement to the prospectus and if, having previously been
obligated to deliver such prospectus, the Selling Shareholder
thereafter failed to deliver such prospectus as so amended or
supplemented, prior to or concurrently with the sale of
Registrable Securities to the person asserting such Liability who
purchased such Registrable Securities which are the subject
thereof from such Selling Shareholder.
(ii) In the event of any registration under the Act of Registrable
Securities pursuant to Section 8(b), each holder of Registrable
Securities hereby severally agrees to indemnify, defend and hold
harmless Ramtron, and its officers, directors, employees, agents,
partners, or controlling persons (within the meaning of the Act)
(each, for purposes of this Section 8(e)(ii), an "indemnified
party") from and against, and shall reimburse such indemnified
party with respect to, any and all Liabilities to which such
indemnified party may become subject under the Act or otherwise,
arising from or relating to (A) any untrue statement or alleged
untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any
amendment or supplement thereto, or (B) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading;
provided that such holders of Registrable Securities will be
liable in any such case to the extent, and only to the extent,
that any such Liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in such registration statement, prospectus or
amendment or supplement thereto in reliance upon and in
conformity with written information furnished in an instrument
duly executed by such holder of Registrable Securities
specifically for use in the registration statement.
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(iii) Promptly after receipt by any indemnified party of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against another party (the
"indemnifying party") hereunder, notify such party in writing
thereof, but the omission so to notify shall not relieve the
indemnifying party from any Liability which it may have to the
indemnified party other than under this section and shall only
relieve it from any Liability which it may have to the
indemnified party under this section if and to the extent it is
actually prejudiced by such omission. In case any such action
shall be brought against any indemnified party and such
indemnified party shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from
the indemnifying party to the indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to the indemnified party under this
section for any legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof other
than reasonable costs of investigation and liaison with counsel
so selected; provided, however, that if the defendants in any
such action include both the indemnifying party and such
indemnified party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to
select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with
(subject to the following sentence) the reasonable expenses and
fees of such separate counsel and other reasonable expenses
related to such participation to be reimbursed by the
indemnifying party as incurred. If Ramtron is the indemnifying
party it shall pay the reasonable expenses and fees of only one
separate counsel whose selection is approved by the largest group
of similarly situated indemnified parties as measured by the
aggregate par value of such Registrable Securities owned by such
group. Any indemnified party who chooses not to be represented
by the foregoing separate counsel shall be entitled, at its own
expense, to be represented by counsel of its own selection.
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(iv) If the indemnification provided for in this Section 8(e) is
unavailable or insufficient to hold harmless an indemnified
party, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other hand
in connection with statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this
Section 8(e)(iv) were to be determined by pro rata allocation or
by any other method of allocation which does not take account of
the equitable considerations referred to in the first sentence of
this Section 8(e)(iv). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 8(e)(iv) shall
be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any action or claim which is the
subject of this Section 8(e). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything in this Section 8(e) to the contrary, no
indemnifying party (other than Ramtron) shall be required
pursuant to this Section 8(e) to contribute any amount in excess
of the proceeds received by such indemnifying party from the sale
of Registrable Securities in the offering to which the losses,
claims, damages or liabilities of the indemnified parties relate.
(f) (i) With respect to the inclusion of Registrable Securities in a
registration statement pursuant to Section 8(b), all fees, costs
and expenses of and incidental to such registration, inclusion
and public offering shall be borne by Ramtron; provided, however,
that any Selling Shareholders participating in such registration
shall bear their own share of the underwriting discounts and
commissions, and transfer taxes if any, incurred by them in
connection with such registration.
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(ii) The fees, costs and expenses of registration to be borne by
Ramtron as provided in this Section 8(f) shall include, without
limitation, all registration, filing and Nasdaq fees, printing
expenses, fees and disbursements of counsel and accountants for
Ramtron, and all legal fees and disbursements and other expenses
of complying with state securities or Blue Sky laws of any
jurisdiction or jurisdictions in which securities to be offered
are to be registered and qualified. Subject to appropriate
agreements as to confidentiality, and upon reasonable advance
notice from the holder or its counsel, Ramtron shall make
available to counsel for the holders of Registrable Securities
its documents and personnel for due diligence purposes. Fees and
disbursements of counsel and accountants for the Selling
Shareholders shall be borne by the respective Selling
Shareholders. Nothing herein shall require Ramtron to postpone
filing the registration statement or delay its effectiveness.
(g) The rights to cause Ramtron to register all or any portion of
Registrable Securities pursuant to this Section may be assigned by a holder of
Registrable Securities to a transferee or assignee of all or a portion equal to
20% or more, in aggregate principal amount, of a Convertible Promissory Note.
Any transferee asserting registration rights hereunder shall agree to be bound
by the applicable provisions of this Agreement.
(h) From and after the date of this Agreement, Ramtron shall not agree to
allow any other holders of any securities of Ramtron (except the holders of
Ramtron's Series A Convertible Preferred Stock) to include any of their
securities in any registration statement filed by Ramtron pursuant to Section
8(b) unless such inclusion will not reduce the amount of the Registrable
Securities included therein.
9. Miscellaneous
(a) Successors and Assigns. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
(b) Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware, without reference to
principles of conflict of laws or choice of laws.
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(c) Consent to Jurisdiction. Ramtron and each DFA Stockholder (i) hereby
irrevocably submit to the exclusive jurisdiction of either the United States
District Court for the Southern District of New York and the state courts for
the State of New York or the United States District Court for the District of
the State of Delaware and the state courts of the State of Delaware for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement and (ii) hereby waive, and agree not to assert in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in
an inconvenient forum or that the venue of the suit, action or proceeding is
improper. Ramtron and each of the DFA Stockholders consent to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address in effect for notices to it under this Agreement and agree
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing in this paragraph shall affect or limit any right to
serve process in any other manner permitted by law.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together, whether bearing original or facsimile signatures, will constitute one
and the same instrument.
(e) Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules will, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits attached hereto, all of which exhibits are
incorporated herein by this reference.
(f) Notices. Any notice required or permitted under this Agreement shall
be given in writing, shall be effective when received, and shall in any event
be deemed received and effectively given upon personal delivery to the party to
be notified or three (3) business days after deposit with the United States
Post Office, by registered or certified mail, postage prepaid, or one (1)
business day after deposit with a nationally recognized courier service such as
Federal Express for next business day delivery under circumstances in which
such service guarantees next business day delivery, or one (1) business day
after facsimile with copy delivered by registered or certified mail, in any
case, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof or at such other address
as a DFA Stockholder or Ramtron may designate by giving at least ten (10) days
advance written notice pursuant to this Section 9(f).
(g) Amendments and Waivers. The provisions of this Agreement may not be
amended without the written consent of Ramtron and the DFA Stockholders, which
may be withheld in the sole and absolute discretion of such parties. Any
amendment or waiver effected in accordance with this Section 9(g) will be
binding upon Ramtron, the DFA Stockholders and their respective successors and
assigns.
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(h) Severability. If any provision of this Agreement is held to be
unenforceable under applicable law, such provision will be excluded from this
Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its
terms.
(i) Entire Agreement. This Agreement, together with all exhibits hereto,
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings duties or obligations between the
parties with respect to the subject matter hereof.
(j) Further Assurances. From and after the date of this Agreement upon
the request of Ramtron or any DFA Stockholder, Ramtron and the DFA Stockholders
will execute and deliver such instruments, documents or other writings, and
take such other actions, as may be reasonably necessary or desirable to confirm
and carry out and to effectuate fully the intent and purposes of this
Agreement.
(k) Meaning of Include and Including. Whenever in this Agreement the word
"include" or "including" is used, it shall be deemed to mean "include, without
limitation" or "including, without limitation," as the case may be, and the
language following "include" or "including" shall not be deemed to set forth an
exhaustive list.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
- ------------------------
L. David Sikes
Chairman and Chief Executive Officer
Address: 1850 Ramtron Drive
Colorado Springs, CO 80921
DFA GROUP TRUST
SMALL COMPANY SUBTRUST
By: /S/ Irene R. Diamant
- --------------------------
Name: Irene R. Diamant
Title: Vice President and Secretary
Address: c/o Dimensional Fund Advisors Inc.
1299 Ocean Avenue, 11th Floor
Santa Monica, CA 90401
U.S. 9-10 SMALL COMPANY PORTFOLIO
By: /S/ Irene R. Diamant
- --------------------------
Name: Irene R. Diamant
Title: Vice President and Secretary
Address: c/o Dimensional Fund Advisors Inc.
1299 Ocean Avenue, 11th Floor
Santa Monica, CA 90401
DFA GROUP TRUST - 6-10 SUBTRUST
By: /S/ Irene R. Diamant
- --------------------------
Name: Irene R. Diamant
Title: Vice President and Secretary
Address: c/o Dimensional Fund Advisors Inc.
1299 Ocean Avenue, 11th Floor
Santa Monica, CA 90401
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EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
UNDER SUCH ACT OR AN EXEMPTION THEREFROM.
$X,000,000
Convertible Note
Due July XX, 2000
Dated as of: July XX, 1999
1. General.
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation ("Borrower"), for
value received, hereby promises to pay to the order of [DFA Group Trust - Small
Company Subtrust], an Illinois trust, or its designee (the "Holder"), the
principal amount of XX Million United States Dollars and no cents
(US$X,000,000.00) on July XX, 2000 (the "Maturity Date"), and interest,
computed on the basis of a 360-day year of twelve 30-day months, on the unpaid
and unconverted principal balance hereof from the date hereof until paid at the
rate of eight per cent (8%) per annum in accordance with Section 3 hereof.
Both principal and interest are payable to the Holder at its account, as
designated in the attached delivery instructions, such other account as the
Holder designates in writing, in lawful money of the United States and in same
day funds.
2. Prepayments.
At any time and from time to time, Borrower may prepay the balance outstanding
hereunder, in whole or in part, without premium or penalty, upon not less than
thirty (30) days' written notice to Holder, which notice shall specify the date
and amount of prepayment. If such prepayment notice is given, the prepayment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued and unpaid interest to the date of such
prepayment on the amount so prepaid. Notwithstanding the foregoing, no such
notice of prepayment shall be deemed to modify Holder's right to convert all or
any portion of the outstanding amounts due hereunder into Common Stock pursuant
to Section 3 hereof. The Holder shall be entitled to exercise such conversion
rights with respect to such outstanding amounts at any time prior to any such
prepayment.
3. Conversion of Note.
(a) Subject to and upon compliance with the provisions hereof, the Holder
shall have the right, at the Holder's option, to convert all or any part of the
unpaid principal amount of this Note plus the accrued and unpaid interest
thereon into the Common Stock, par value $0.01 per share, of Borrower ("Common
Stock") at a price equal to One United States Dollar ($1.00) per share (the
"Conversion Price"). The Conversion Price shall be subject to adjustment in
certain events as set forth in Section 5 hereof.
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(b) In order to exercise the conversion privilege, the Holder shall
surrender this Note, appropriately endorsed, to Borrower at its principal
office and provide written notice to Borrower (i) stating that the Holder
elects to convert this Note or a stated portion thereof and (ii) setting forth
the name or names (with address) in which the certificate or certificates for
the shares of Common Stock issuable on such conversion shall be issued. Such
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which such notice shall have been received by
Borrower and the person in whose name the certificate for the shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder of record of the shares of Common Stock represented thereby at such time
on such date. As soon as reasonably possible after, and in any event within
fifteen (15) business days following, the receipt of such notice, Borrower
shall issue and deliver to the Holder a certificate or certificates for the
shares of Common Stock issuable upon the conversion of this Note. Upon
conversion of this Note in part, (A) the amount converted shall be deemed to
consist of, first, accrued interest including default interest, and second,
principal; and (B) the Borrower shall execute and deliver to or on the order of
the Holder at the expense of the Borrower a new Note having a principal amount
equal to the unconverted and unpaid principal and interest of this Note. Such
new Note shall have the same terms and provisions (other than principal amount)
as the Note surrendered for conversion. The Borrower will pay any and all
issue and transfer taxes or other similar governmental charges that may be
payable in respect of the issue or delivery of Common Stock on conversion of
this Note pursuant hereto.
(c) The right of the Holder to subscribe for and purchase shares of Common
Stock pursuant to the conversion privilege granted herein shall commence upon
the date hereof and shall continue until this Note is repaid in full, including
interest.
4. Interest.
The Borrower promises to pay interest on the principal amount of this Note from
time to time outstanding at the rate of eight per cent (8%) per annum. Such
interest will be payable together with principal at the maturity of this Note.
The Borrower shall pay on demand interest on overdue principal and, to the
fullest extent permitted by law, overdue interest at the rate of ten per cent
(10%) per annum.
5. Antidilution Provisions.
5.1 Adjustments in Certain Events. The Conversion Price shall be adjusted
in each of the following events as follows:
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(a) In case Borrower, at any time or from time to time, shall pay or make
a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or options by way of
dividend or spinoff, reclassification, recapitalization, merger or
consolidation in which Borrower is the continuing or resulting corporation, or
similar corporate rearrangement) on the Common Stock, then, and in each such
case, the Conversion Price in effect immediately prior to the close of business
on the record date fixed for the determination of the persons entitled to
receive such dividend or distribution shall be adjusted, effective as of the
close of business on such record date, to a price (calculated to the nearest
cent) determined by multiplying such Conversion Price by a fraction:
(i) the numerator of which shall be the Current Market Price (as
defined below) in effect on such record date less the amount of
such dividend or distribution (as determined in good faith by the
Board of Directors of Borrower in consultation with the
Borrower's accountants) applicable to one share of Common Stock,
and
(ii) the denominator of which shall be such Current Market Price.
"Current Market Price" on any date of determination shall mean
the average of the Market Price (as defined below) per share of
Common Stock on each day of the period of 20 consecutive days on
which national securities exchanges were open for trading
immediately preceding the earlier of such date of determination
or the "ex" date with respect to the dividend or other
distribution. "Market Price" per share of Common Stock on any
date of determination shall mean (A) the last sale price, on such
date or, if no such sale takes place on such date, the average
closing bid and asked prices on such date, in each case as
officially reported on the principal national securities exchange
on which the Common Stock is then listed or admitted to trading
or (B) if the Common Stock is not then listed or admitted to
trading on any national securities exchange, the average of the
reported closing bid and asked prices on such date as shown by
the National Association of Securities Dealers automated
quotation system, or, if such prices are not at the time so
shown, as determined in good faith by any member of the National
Association of Securities Dealers, Inc. selected by Borrower and
reasonably satisfactory to the Holder; provided, however, that if
and so long as there shall be no exchange or over-the-counter
market for the Common Stock, the Market Price shall be deemed to
be the lesser of the Conversion Price on the date of
determination and such price, if any, at which the most recent
issue and sale by Borrower of Common Stock has been effected.
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(b) In case Borrower, at any time or from time to time, shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification other than by payment of a dividend
in Common Stock), then, and in each such case, the Conversion Price in effect
immediately prior to such subdivision shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased to reflect such
transaction (such decrease to be determined by the Board of Directors of
Borrower in consultation with Borrower's accountants).
(c) In case the outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser number of shares
of Common Stock, the Conversion Price in effect immediately prior to such
combination or consolidation shall, concurrently with the effectiveness of such
combination or consolidation, be proportionately increased to reflect such
transaction, as determined by the Board of Directors of Borrower in
consultation with Borrower's accountant.
(d) All determinations by the Board of Directors of Borrower under the
provisions of this Note shall be made in good faith with due regard to the
interests of the Holder, and in accordance with good financial practice.
(e) If Borrower
(i) shall consolidate with or merge into another person and shall not
be the continuing or surviving corporation in such consolidation
or merger, or
(ii) shall permit any other person to consolidate with or merge into
Borrower and Borrower shall be the continuing or surviving person
but, in connection with such consolidation or merger, the Common
Stock shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property, or
(iii) shall transfer all or substantially all of its properties or
assets to any other person, or
(iv) shall effect a capital reorganization or reclassification of the
Common Stock,
then, and in each such case, proper provision shall be made so that, upon the
basis and the terms and in the manner provided in this Section 5.1, the Holder,
upon the exercise of any conversion privilege provided herein at any time after
the consummation of such consolidation, merger, transfer, reorganization or
reclassification, shall be entitled to receive, at the aggregate Conversion
Price in effect at the time of such consummation for all Common Stock issuable
upon such conversion immediately prior to such consummation, in lieu of the
Common Stock issuable upon such conversion prior to such consummation, the
stock and other securities, cash and property to which the Holder would have
been entitled upon such consummation if the Holder had exercised its conversion
privilege hereunder immediately prior thereto.
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(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least one per cent in
such price; provided, however, that any adjustments which by reason of this
Section 5.1 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this section
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.
(g) Borrower will not, by amendment of its Certificate of Incorporation or
through any consolidation, merger, reorganization, transfer of assets,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Note, but will at all times in good faith carry out all such terms and take all
such actions as may be necessary or appropriate in order to protect the
conversion rights of the Holder against impairment.
5.2 Notice of Adjustment. In the case of any adjustment or readjustment in
the shares of Common Stock issuable upon the conversion of this Note, Borrower
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Note and prepare a report setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. Borrower will forthwith mail a copy of
each such report to the Holder, and will, upon the written request at any time
of the Holder, furnish to the Holder a like report setting forth the Conversion
Price at the time in effect and showing how it was calculated. Borrower will
also keep copies of all such reports at its principal office and will cause the
same to be available for inspection at such office during normal business hours
by the Holder.
6. Stock to be Issued.
6.1 Stock Fully Paid. The Borrower covenants and agrees that all shares of
Common Stock which may be issued pursuant to the terms hereof will, upon
issuance in accordance with the terms hereof, be duly authorized, validly
issued, fully paid and nonassessable, free and clear of any and all
encumbrances, claims, security interests or any other rights or interests of
third parties whatsoever (other than encumbrances, claims, security interests
or rights or interests created or granted by the Holder), and of all transfer
taxes and similar charges (except for taxes, if any, upon the income of the
Holder) with respect to the issue thereof, and that the issuance thereof shall
not give rise to any preemptive rights on the part of the other stockholders of
Borrower or any other person.
6.2 Taxes. The Borrower shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock of Borrower pursuant to the terms hereof.
6.3 Reservation of Shares. Borrower shall, until this Note is paid in full,
reserve and maintain, out of its authorized but unissued shares of capital
stock, sufficient shares of Common Stock to provide for the conversion of this
Note.
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6.4 Fractional Shares. No fractional shares of Common Stock will be issued in
connection with the conversion of this Note but in lieu of such fractional
shares, the Borrower shall make a cash payment therefor equal in amount to the
product of the applicable fraction multiplied by the Conversion Price.
7. Registration Rights.
The Holder of this Note, upon conversion of all or part of amounts owing
hereunder, is entitled to all the rights and benefits provided in the DFA
Stockholders Recapitalization Agreement pursuant to which this Note is issued,
including without limitation Borrower's registration rights covenants in
Section 8 thereof. Reference is hereby made to the DFA Stockholders
Recapitalization Agreement for a statement of such rights and benefits.
8. Transfer.
This Note is registered on the books of Borrower and is transferable only by
surrender hereof for registration of transfer at the principal office of
Borrower duly endorsed or accompanied by a written instrument of transfer duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
Holder. All transfers are subject to, and shall be made in accordance with,
applicable securities laws.
9. Governing Law.
This Note shall be governed by and construed under the internal laws of the
State of Delaware, without regard to principles of conflict of laws or choice
of laws.
RAMTRON INTERNATIONAL CORPORATION
a Delaware corporation
By:-------------------
Name: L. David Sikes
Title: Chairman and Chief Executive Officer
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EXHIBIT B
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
RAMTRON INTERNATIONAL CORPORATION (hereafter called the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, hereby certifies:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that the Corporation's Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 Par
Value ("Certificate of Designation"), filed on February 12, 1998, with the
Secretary of State of the State of Delaware is hereby amended and restated in
its entirety to read as follows:
"1. Authorized Shares.
There shall be a series of shares of the Preferred Stock of the Corporation
designated "Series A Convertible Preferred Stock". The number of authorized
shares of such series shall be 29,000 and the rights and preferences of such
series (the "Series A Preferred") and the limitations or restrictions thereon,
shall be as set forth herein.
2. Dividends.
The holders of the Series A Preferred shall be entitled to receive cumulative
dividends at a rate equal to 11% per annum of the liquidation preference per
share per annum, payable semi-annually on December 31 and June 30, with the
first payment being payable on December 31, 1999, when and as declared by the
Board of Directors. Prior to the first anniversary of the date of filing of
this Certificate of Amendment (the "Closing Date"), all dividends shall be
paid in Series A Preferred. On and after the first anniversary of the Closing
Date, dividends may be paid, at the Corporation's option, on any dividend
payment date, either in cash or by the issuance of additional shares of Series
A Preferred (and payment of cash in lieu of fractional shares) having an
aggregate liquidation preference equal to the amount of such dividends. In
the event that on or after the first anniversary of the Closing Date,
dividends are paid in additional shares of Series A Preferred, the dividend
rate shall increase by 2% for such dividend payment period. In the event that
a registration statement is not effective within 130 days after the Closing
Date with respect to the conversion rights set forth in Section 6 and the cash
exchange rights set forth in Section 7, the Series A Preferred shall accrue
dividends from and after the end of such 130 day period at a rate of 18% per
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annum until such time as the registration statement is declared effective.
Dividends as provided by this Section 2 shall accrue on any given share from
the Closing Date, or from the date of original issuance of such share,
whichever is later, and shall accrue from day to day whether or not declared.
Dividends not theretofore paid shall be paid upon conversion of any shares of
the Series A Preferred and shares of Series A Preferred issued in payment of
such dividends shall be simultaneously converted into Common Stock together
with the shares on which such dividends have accrued. Dividends accrued in
accordance with the terms of the Series A Preferred prior to the Closing Date
shall not be affected by this Section 2.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of the Series A
Preferred shall be entitled to receive, prior and in preference to any
distribution of any assets of the Corporation to the holders of the Common
Stock or any other class or series of shares except any class or series which
is entitled to priority over the Series A Preferred, the amount of $1,000 per
share plus any accrued but unpaid dividends (the "Liquidation Preference").
(b) Subject to the last sentence of this Section 3(b), a consolidation or
merger of the Corporation with or into any other corporation or corporations,
or a sale of all or substantially all of the assets of the Corporation, shall,
at the option of the holders of the Series A Preferred, be deemed a
liquidation, dissolution or winding up within the meaning of this Section 3 if
the shares of stock of the Corporation (along with all derivative securities)
outstanding immediately prior to such transaction represent immediately after
such transaction less than a majority of the voting power of the surviving
corporation (or of the acquirer of the Corporation's assets in the case of a
sale of assets). Such option may be exercised by the vote or written consent
of holders of a majority of the Series A Preferred at any time within thirty
calendar days after written notice of the essential terms of such transaction
shall have been given to the holders of the Series A Preferred as provided in
Section 8 hereof. Such notice shall be given by the Corporation immediately
following determination of such essential terms. If such option is exercised,
the holders of the Series A Preferred shall be entitled to receive, in cash,
immediately upon the occurrence of such transaction, an amount per share equal
to the Liquidation Preference. This Section shall not apply to a business
combination in which substantially all the Common Stock of the Corporation is
converted into or exchanged for voting common stock of the corporation
surviving such business combination, if (i) such common stock of the surviving
corporation is listed and traded on The Nasdaq Stock Market or the New York
Stock Exchange, and (ii) the Board of Directors of the Corporation determines
in good faith that the conversion rights and other rights and preferences of
the Series A Preferred are preserved and not rendered of less value by the
terms of such business combination.
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4. Mandatory Redemption.
All of the Series A Preferred outstanding on July 31, 2002 shall be redeemed
by the Corporation at a redemption price equal to 100% of the Liquidation
Preference thereof plus, without duplication, accumulated and unpaid dividends
to the date of redemption.
5. Optional Redemption.
The Series A Preferred shall be redeemable, at the option of the Corporation
and subject to the consent of its lenders, in whole or in part, at any time on
or after July 31, 2000 at an amount equal to its Liquidation Preference plus,
without duplication, accumulated and unpaid dividends to the date of
redemption.
6. Conversion.
The holders of the Series A Preferred shall have optional conversion rights as
follows:
(a) Conversion Rights.
(i) At any time prior to 10 days after the Closing Date (the "Post-
Closing Date"), the Series A Preferred shall be exchangeable at the option of
the holder for shares of Common Stock at an exchange ratio of $.75 face value
of Series A Preferred per share of Common Stock plus accrued and unpaid
dividends to the date of conversion.
(ii) Each holder of record of Series A Preferred shares shall be
entitled to convert Series A Preferred into shares of Common Stock on or after
the Post-Closing Date at the conversion rate of 1,000 shares of Common Stock
per share of Series A Preferred (i.e., $1.00 per share of Common Stock) (such
rate of exchange, and the rate of exchange set forth in paragraph (i), as
applicable, being hereinafter referred to as the "Conversion Rate").
(b) Restriction on Right to Convert. A share of Series A Preferred shall
not be converted into Common Stock if following such conversion the holder
thereof together with affiliates of such holder would be the beneficial owners
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of 10% or
more of the Common Stock of the Corporation. A share which may not be
converted because of the preceding sentence will thereafter be convertible by
any holder if at the time such share is submitted for conversion the preceding
sentence is inapplicable.
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(c) Mechanics of Conversion. To convert shares of Series A Preferred
into shares of Common Stock, the holder shall give written notice to the
Corporation (which notice may be given by facsimile transmission) that such
holder elects to convert the same and shall state therein the number of shares
to be converted and the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. Promptly
thereafter the holder shall surrender the certificate or certificates
representing the shares to be converted, duly endorsed, at the office of the
Corporation or of any transfer agent for such shares, or at such other place
designated by the Corporation. The Corporation shall, immediately upon
receipt of such notice, issue and deliver to or upon the order of such holder,
against delivery of the certificates representing the shares which have been
converted, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled, and a certificate representing
the shares of Series A Preferred not so converted, if any. The Corporation
shall effect such issuance immediately and shall transmit the certificates by
messenger or overnight delivery service to reach the address designated by
such holder within three trading days after the receipt of such notice.
Notice of conversion may be given by a holder at any time of day up to 5:00
p.m. Los Angeles time, and such conversion shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Conversion Date"). The person or persons entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock at the close of business on the Conversion Date.
(d) Determination of Conversion Rate. In the event that the Corporation
shall declare or pay any dividend on the Common Stock payable in Common Stock
or in rights to acquire Common Stock, or shall effect a stock split or reverse
stock split, or a combination, consolidation or reclassification of the Common
Stock, then the Conversion Rate shall be proportionately decreased or
increased, as appropriate, to give effect to such event, and like adjustment
shall be made in any price per share specified elsewhere herein.
(e) Distributions. In the event the Corporation shall at any time or
from time to time make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in securities of the Corporation or any of its subsidiaries or other
property, other than cash dividends from earnings, then in each such event
provision shall be made so that the holders of Series A Preferred shall
receive, upon the conversion thereof, the securities or other property which
they would have received had they been the owners on the date of such event of
the number of shares of Common Stock issuable to them upon conversion.
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(f) Certificates as to Adjustments. Upon the occurrence of any
adjustments or readjustment of the Conversion Rate pursuant to Section 6(d)
hereof, or any provision for distribution pursuant to Section 6(e) hereof, or
any adjustment of the cash per-share prices specified herein, the Corporation
at its expense shall promptly compute such adjustment, readjustment or
provision in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred a certificate setting forth such adjustment,
readjustment or provision and showing in detail the facts upon which such
adjustment, readjustment or provision is based. The Corporation shall, upon
the written request at any time of any holder of Series A Preferred, furnish
or cause to be furnished to such holder a like certificate prepared by the
Corporation setting forth (i) such adjustments and readjustments, and (ii) the
number of other securities and the amount, if any, of other property which at
the time would be received upon the conversion of Series A Preferred with
respect to each share of Common Stock received upon such conversion. If any
holder disputes the computation of such adjustment or provision the
Corporation shall cause independent public accountants selected by the
Corporation to verify and, if necessary, correct such computation.
(g) Notice of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend) or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional shares
of Common Stock, or any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall give notice to each holder of
Series A Preferred at least 10 days prior to such date specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution, security or right and the amount and character of such dividend,
distribution, security or right.
(h) Issue Taxes. The Corporation shall pay any and all issue and other
taxes, excluding any income, franchise or similar taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Preferred pursuant hereto; provided, however, that the
Corporation shall not be obligated to pay any transfer taxes resulting from
any transfer requested by any holder in connection with any such conversion.
(i) Reservation of Stock Issuable Upon Conversion. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series A
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in best efforts to
obtain the requisite shareholder approval as promptly as practicable.
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(j) Fractional Shares. No fractional shares shall be issued upon the
conversion of any share or shares of Series A Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Series A Preferred by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of a fraction of a share of Common
Stock, the Corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors of the Corporation).
(k) Reorganization or Merger. In case of any reorganization or any
reclassification of the capital stock of the Corporation or any consolidation
or merger of the Corporation with or into any other corporation or
corporations or a sale of all or substantially all of the assets of the
Corporation to any other person, and the holders of Series A Preferred do not
elect to treat such transaction as a liquidation, dissolution or winding up as
provided in Section 3, then, as part of such reorganization, consolidation,
merger or sale, provision shall be made so that each share of Series A
Preferred shall thereafter be convertible into the number of shares of stock
or other securities or property (including cash) to which a holder of the
number of shares of Common Stock deliverable upon conversion of such share of
Series A Preferred would have been entitled upon the record date of (or date
of, if no record date is fixed) such event and, in any case, appropriate
adjustment (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series A Preferred, to the end that
the provisions set forth herein shall thereafter be applicable, as nearly as
equivalent as is practicable, in relation to any shares of stock or the
securities or property (including cash) thereafter deliverable upon the
conversion of the shares of Series A Preferred. The Corporation shall have no
obligation to obtain the prior consent of the holders of the Series A
Preferred, individually or as a class, except as expressly provided herein or
as provided by applicable law.
7. Cash Exchange Rights.
(a) Exchange Rights. At any time prior to June 25, 1999, the Series A
Preferred shall be exchangeable at the option of a holder for cash in amount
per share equal to 50% of the face value of the Series A Preferred Share plus
all accrued but unpaid dividends on the Series A Preferred Share, up to an
aggregate amount of $6.4 million face value and accrued and unpaid dividends
to the date of exchange. If, in the judgment of the Board of Directors of the
Corporation, the Corporation's financial condition and results of operations
permit the Corporation to permit the exchange for cash of more than $6.4
million face value (plus accrued dividends) of the Series A Preferred, the
terms of the Series A Preferred will permit the exchange for cash of up to
$8.0 million face value (plus accrued and unpaid dividends) of the Series A
Preferred. To the extent that holders of Series A Preferred desire to
exchange in the aggregate a greater face value (plus accrued and unpaid
dividends) of the Series A Preferred than is permitted under the terms of the
Series A Preferred, Series A Preferred will be accepted for exchange by the
Corporation for cash on a pro rata basis based upon the aggregate face value
(plus accrued and unpaid dividends) of the Series A Preferred validly tendered
for exchange.
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(b) Mechanics of Exchange. To exercise the exchange right set forth in
Section 7(a), the holder shall give written notice to the Corporation (which
notice may be given by facsimile transmission) that such holder elects to
exercise such right and shall state therein the number of shares to be
converted and the name or names in which such holder wishes the payment to be
received. Promptly thereafter the holder shall surrender the certificate or
certificates representing the shares to be exchanged, duly endorsed, at the
office of the Corporation or of any transfer agent for such shares, or at such
other place designated by the Corporation. The Corporation shall, immediately
upon receipt of such notice, issue and deliver to or upon the order of such
holder, against delivery of the certificates representing the shares which
have been converted, a check for payment of the cash amount to which such
holder shall be entitled, and a certificate representing the shares of Series
A Preferred not so exchanged, if any. The Corporation shall effect such
payment immediately and shall transmit the check by messenger or overnight
delivery service to reach the address designated by such holder within three
trading days after the receipt of such notice. Notice of the exercise of
exchange rights may be given by a holder at any time of day up to 5:00 p.m.
Los Angeles time, and such exercise shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Exchange Date"). The person or persons entitled to
receive payment upon such exchange shall be treated for all purposes as the
record holder or holders of such shares of Common Stock at the close of
business on the Exchange Date.
8. Notices.
Any notice to be given to the holders of the Series A Preferred shall be
(i) mailed by first class mail postage prepaid to each holder of Series A
Preferred at the address shown on the records of the Corporation for such
holder, (ii) transmitted by telecopy or facsimile transmission to any holder
which has supplied a telecopy or facsimile address to the Corporation, and
(iii) unless receipted for by telecopy or facsimile on the date such notice is
given, shall be transmitted by an overnight delivery service or courier
service for delivery at the address shown on the records of the Corporation
for such holder on the first business day following the date such notice is
given, or if delivery in one business day to such address cannot be effected
by such delivery service, then on the earliest day on which such delivery can
be made.
9. Registration Rights.
The corporation shall use its best efforts to file and cause to become
effective as of no later than 130 days after June 15th a registration
statement for Common Stock of the Corporation issuable upon exchange or
conversion of the Series A Preferred, to the extent such shares of Common
Stock are not then freely tradable under the federal securities laws.
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10. Restrictions and Limitations.
The Corporation shall not undertake the following actions without the consent
of the holders of a majority of the Series A Preferred: (i) modify its
Certificate of Incorporation or Bylaws so as to amend or change any of the
rights, preferences, or privileges of the Series A Preferred, (ii) authorize
or issue any other equity security senior to or ranking on parity with the
Series A Preferred, or (iii) pay any dividends in cash or property on, or
purchase or otherwise acquire for value, any Common Stock purchase or other
equity security of the Corporation either junior to or on a parity with the
Series A Preferred except from current or retained earnings or from the net
proceeds of sale of equity securities, except for purchases of Common Stock
from terminating or retiring employees pursuant to the terms of employee
benefit plans in an aggregate amount not greater than $1 million.
11. Voting Rights.
The Series A Preferred shall have no voting rights, except as otherwise
required by law and except in certain circumstances described herein,
including (i) amending certain rights of the holders of the Series A Preferred
and (ii) the issuance of any class of equity securities that ranks pari passu
with or senior to the Series A Preferred other than certain additional shares
of Series A Preferred.
12. Attorneys' Fees.
Any holder of Series A Preferred shall be entitled to recover from the
Corporation reasonable attorneys' fees and expenses incurred by such holder in
connection with enforcement by such holder of any obligation of the
Corporation hereunder, if such holder is the prevailing party in an action or
proceeding to compel such enforcement."
SECOND, that the proposed amendment has been duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware and that notice of the taking of such action by written consent has
been given as provided in Section 228 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. David Sikes, its Chairman of the
Board and Chief Executive Officer, or by Greg B. Jones, its President and
Chief Operating Officers, this XXX day of July 1999.
Ramtron International Corporation
By:
--------------------
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<PAGE>
EXHIBIT C
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
Ramtron International Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that Article FOURTH of the Certificate of Incorporation, as amended,
is hereby amended to read in full as follows:
"FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is 60,000,000, consisting of 50,000,000 shares
of common stock, par value $0.01 per share (the "Common Stock"), and
10,000,000 shares of preferred stock, par value $0.01 per shares (the
"Preferred Stock").
Immediately upon the filing of this Amendment to the Certificate of
Incorporation (the "Effective Time"), each 5 shares of the Common Stock,
issued and outstanding immediately prior to the Effective Time (the "Old
Common Stock"), shall automatically, without further action on the part of the
Corporation or any holder of Old Common Stock, be combined, converted and
changed into one (1) fully paid and nonassessable share of Common Stock (the
"New Common Stock" and the "Reverse Stock Split"), subject to the treatment of
fractional share interests as described below. The conversion of the Old
Common Stock into New Common Stock will be deemed to occur at the Effective
Time regardless of when the certificates representing such Old Common Stock
are physically surrendered to the Corporation in exchange for certificates
representing New Common Stock. After the Effective Time, certificates
representing the Old Common Stock will, until surrendered to the Corporation
in exchange for New Common Stock, represent the number of shares of New Common
Stock into which such Old Common Stock shall have been converted pursuant to
this Amendment and the right to receive cash in lieu of any fractional share
interest. No certificates representing fractional shares of New Common Stock
shall be issued in connection with the Reverse Stock Split. Holders who
otherwise would be entitled to receive fractional share interests of New
Common Stock shall be entitled to receive in lieu of fractional shares and
upon surrender to the Corporation's transfer agent of their certificates
representing Old Common Stock, duly endorsed, a cash payment in an amount
equal to the product calculated by multiplying (i) the closing sales price of
the Corporation's Common Stock on the Effective Date as reported on The Nasdaq
Stock Market or, if no such sales price exists, the mid-range between the last
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<PAGE>
bid and asked price on the Effective Date by (ii) the number of shares of Old
Common Stock held by such holder that would otherwise have been converted into
a fractional share interest. Upon surrender by a holder of Old Common Stock
of a certificate or certificates for Old Common Stock, duly endorsed, to the
Corporation's transfer agent, the Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder of Old Common Stock, or to the
nominee or nominees of such holder, a certificate or certificates for the
number of shares of New Common Stock to which such holder shall be entitled as
aforesaid together with cash in lieu of any fractional share interest."
SECOND, that said Amendment was duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. David Sikes, its Chairman of the
Board and Chief Executive Officer, or by Greg B. Jones, its President and
Chief Operating Officers, this XXX day of July 1999.
Ramtron International Corporation
By:
--------------------
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<PAGE>
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
UNDER SUCH ACT OR AN EXEMPTION THEREFROM.
$648,369
Convertible Note
Due July 31, 2000
Dated as of: July 30, 1999
1. General.
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation ("Borrower"), for
value received, hereby promises to pay to the order of DFA Group Trust - 6-10
Subtrust, an Illinois trust, or its designee (the "Holder"), the principal
amount of Six Hundred Forty-Eight Thousand Three Hundred Sixty-Nine United
States Dollars and no cents (US$648,369.00) on July 31, 2000 (the "Maturity
Date"), and interest, computed on the basis of a 360-day year of twelve 30-day
months, on the unpaid and unconverted principal balance hereof from the date
hereof until paid at the rate of eight per cent (8%) per annum in accordance
with Section 3 hereof. Both principal and interest are payable to the Holder
at its account, as designated in the attached delivery instructions, such other
account as the Holder designates in writing, in lawful money of the United
States and in same day funds.
2. Prepayments.
At any time and from time to time, Borrower may prepay the balance outstanding
hereunder, in whole or in part, without premium or penalty, upon not less than
thirty (30) days' written notice to Holder, which notice shall specify the date
and amount of prepayment. If such prepayment notice is given, the prepayment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued and unpaid interest to the date of such
prepayment on the amount so prepaid. Notwithstanding the foregoing, no such
notice of prepayment shall be deemed to modify Holder's right to convert all or
any portion of the outstanding amounts due hereunder into Common Stock pursuant
to Section 3 hereof. The Holder shall be entitled to exercise such conversion
rights with respect to such outstanding amounts at any time prior to any such
prepayment.
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<PAGE>
3. Conversion of Note.
(a) Subject to and upon compliance with the provisions hereof, the Holder
shall have the right, at the Holder's option, to convert all or any part of the
unpaid principal amount of this Note plus the accrued and unpaid interest
thereon into the Common Stock, par value $0.01 per share, of Borrower ("Common
Stock") at a price equal to One United States Dollar ($1.00) per share (the
"Conversion Price"). The Conversion Price shall be subject to adjustment in
certain events as set forth in Section 5 hereof.
(b) In order to exercise the conversion privilege, the Holder shall
surrender this Note, appropriately endorsed, to Borrower at its principal
office and provide written notice to Borrower (i) stating that the Holder
elects to convert this Note or a stated portion thereof and (ii) setting forth
the name or names (with address) in which the certificate or certificates for
the shares of Common Stock issuable on such conversion shall be issued. Such
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which such notice shall have been received by
Borrower and the person in whose name the certificate for the shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder of record of the shares of Common Stock represented thereby at such time
on such date. As soon as reasonably possible after, and in any event within
fifteen (15) business days following, the receipt of such notice, Borrower
shall issue and deliver to the Holder a certificate or certificates for the
shares of Common Stock issuable upon the conversion of this Note. Upon
conversion of this Note in part, (A) the amount converted shall be deemed to
consist of, first, accrued interest including default interest, and second,
principal; and (B) the Borrower shall execute and deliver to or on the order of
the Holder at the expense of the Borrower a new Note having a principal amount
equal to the unconverted and unpaid principal and interest of this Note. Such
new Note shall have the same terms and provisions (other than principal amount)
as the Note surrendered for conversion. The Borrower will pay any and all
issue and transfer taxes or other similar governmental charges that may be
payable in respect of the issue or delivery of Common Stock on conversion of
this Note pursuant hereto.
(c) The right of the Holder to subscribe for and purchase shares of Common
Stock pursuant to the conversion privilege granted herein shall commence upon
the date hereof and shall continue until this Note is repaid in full, including
interest.
4. Interest.
The Borrower promises to pay interest on the principal amount of this Note from
time to time outstanding at the rate of eight per cent (8%) per annum. Such
interest will be payable together with principal at the maturity of this Note.
The Borrower shall pay on demand interest on overdue principal and, to the
fullest extent permitted by law, overdue interest at the rate of ten per cent
(10%) per annum.
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<PAGE>
5. Antidilution Provisions.
5.1 Adjustments in Certain Events. The Conversion Price shall be adjusted
in each of the following events as follows:
(a) In case Borrower, at any time or from time to time, shall pay or make
a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or options by way of
dividend or spinoff, reclassification, recapitalization, merger or
consolidation in which Borrower is the continuing or resulting corporation, or
similar corporate rearrangement) on the Common Stock, then, and in each such
case, the Conversion Price in effect immediately prior to the close of business
on the record date fixed for the determination of the persons entitled to
receive such dividend or distribution shall be adjusted, effective as of the
close of business on such record date, to a price (calculated to the nearest
cent) determined by multiplying such Conversion Price by a fraction:
(i) the numerator of which shall be the Current Market Price (as
defined below) in effect on such record date less the amount of
such dividend or distribution (as determined in good faith by the
Board of Directors of Borrower in consultation with the
Borrower's accountants) applicable to one share of Common Stock,
and
(ii) the denominator of which shall be such Current Market Price.
"Current Market Price" on any date of determination shall mean
the average of the Market Price (as defined below) per share of
Common Stock on each day of the period of 20 consecutive days on
which national securities exchanges were open for trading
immediately preceding the earlier of such date of determination
or the "ex" date with respect to the dividend or other
distribution. "Market Price" per share of Common Stock on any
date of determination shall mean (A) the last sale price, on such
date or, if no such sale takes place on such date, the average
closing bid and asked prices on such date, in each case as
officially reported on the principal national securities exchange
on which the Common Stock is then listed or admitted to trading
or (B) if the Common Stock is not then listed or admitted to
trading on any national securities exchange, the average of the
reported closing bid and asked prices on such date as shown by
the National Association of Securities Dealers automated
quotation system, or, if such prices are not at the time so
shown, as determined in good faith by any member of the National
Association of Securities Dealers, Inc. selected by Borrower and
reasonably satisfactory to the Holder; provided, however, that if
and so long as there shall be no exchange or over-the-counter
market for the Common Stock, the Market Price shall be deemed to
be the lesser of the Conversion Price on the date of
determination and such price, if any, at which the most recent
issue and sale by Borrower of Common Stock has been effected.
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<PAGE>
(b) In case Borrower, at any time or from time to time, shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification other than by payment of a dividend
in Common Stock), then, and in each such case, the Conversion Price in effect
immediately prior to such subdivision shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased to reflect such
transaction (such decrease to be determined by the Board of Directors of
Borrower in consultation with Borrower's accountants).
(c) In case the outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser number of shares
of Common Stock, the Conversion Price in effect immediately prior to such
combination or consolidation shall, concurrently with the effectiveness of such
combination or consolidation, be proportionately increased to reflect such
transaction, as determined by the Board of Directors of Borrower in
consultation with Borrower's accountant.
(d) All determinations by the Board of Directors of Borrower under the
provisions of this Note shall be made in good faith with due regard to the
interests of the Holder, and in accordance with good financial practice.
(e) If Borrower
(i) shall consolidate with or merge into another person and shall not
be the continuing or surviving corporation in such consolidation
or merger, or
(ii) shall permit any other person to consolidate with or merge into
Borrower and Borrower shall be the continuing or surviving person
but, in connection with such consolidation or merger, the Common
Stock shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property, or
(iii) shall transfer all or substantially all of its properties or
assets to any other person, or
(iv) shall effect a capital reorganization or reclassification of the
Common Stock,
then, and in each such case, proper provision shall be made so that, upon the
basis and the terms and in the manner provided in this Section 5.1, the Holder,
upon the exercise of any conversion privilege provided herein at any time after
the consummation of such consolidation, merger, transfer, reorganization or
reclassification, shall be entitled to receive, at the aggregate Conversion
Price in effect at the time of such consummation for all Common Stock issuable
upon such conversion immediately prior to such consummation, in lieu of the
Common Stock issuable upon such conversion prior to such consummation, the
stock and other securities, cash and property to which the Holder would have
been entitled upon such consummation if the Holder had exercised its conversion
privilege hereunder immediately prior thereto.
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<PAGE>
(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least one per cent in
such price; provided, however, that any adjustments which by reason of this
Section 5.1 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this section
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.
(g) Borrower will not, by amendment of its Certificate of Incorporation or
through any consolidation, merger, reorganization, transfer of assets,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Note, but will at all times in good faith carry out all such terms and take all
such actions as may be necessary or appropriate in order to protect the
conversion rights of the Holder against impairment.
5.2 Notice of Adjustment. In the case of any adjustment or readjustment in
the shares of Common Stock issuable upon the conversion of this Note, Borrower
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Note and prepare a report setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. Borrower will forthwith mail a copy of
each such report to the Holder, and will, upon the written request at any time
of the Holder, furnish to the Holder a like report setting forth the Conversion
Price at the time in effect and showing how it was calculated. Borrower will
also keep copies of all such reports at its principal office and will cause the
same to be available for inspection at such office during normal business hours
by the Holder.
6. Stock to be Issued.
6.1 Stock Fully Paid. The Borrower covenants and agrees that all shares of
Common Stock which may be issued pursuant to the terms hereof will, upon
issuance in accordance with the terms hereof, be duly authorized, validly
issued, fully paid and nonassessable, free and clear of any and all
encumbrances, claims, security interests or any other rights or interests of
third parties whatsoever (other than encumbrances, claims, security interests
or rights or interests created or granted by the Holder), and of all transfer
taxes and similar charges (except for taxes, if any, upon the income of the
Holder) with respect to the issue thereof, and that the issuance thereof shall
not give rise to any preemptive rights on the part of the other stockholders of
Borrower or any other person.
6.2 Taxes. The Borrower shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock of Borrower pursuant to the terms hereof.
6.3 Reservation of Shares. Borrower shall, until this Note is paid in full,
reserve and maintain, out of its authorized but unissued shares of capital
stock, sufficient shares of Common Stock to provide for the conversion of this
Note.
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<PAGE>
6.4 Fractional Shares. No fractional shares of Common Stock will be issued in
connection with the conversion of this Note but in lieu of such fractional
shares, the Borrower shall make a cash payment therefor equal in amount to the
product of the applicable fraction multiplied by the Conversion Price.
7. Registration Rights.
The Holder of this Note, upon conversion of all or part of amounts owing
hereunder, is entitled to all the rights and benefits provided in the DFA
Stockholders Recapitalization Agreement pursuant to which this Note is issued,
including without limitation Borrower's registration rights covenants in
Section 8 thereof. Reference is hereby made to the DFA Stockholders
Recapitalization Agreement for a statement of such rights and benefits.
8. Transfer.
This Note is registered on the books of Borrower and is transferable only by
surrender hereof for registration of transfer at the principal office of
Borrower duly endorsed or accompanied by a written instrument of transfer duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
Holder. All transfers are subject to, and shall be made in accordance with,
applicable securities laws.
9. Governing Law.
This Note shall be governed by and construed under the internal laws of the
State of Delaware, without regard to principles of conflict of laws or choice
of laws.
RAMTRON INTERNATIONAL CORPORATION
a Delaware corporation
By: /S/ L. David Sikes
- -----------------------
Name: L. David Sikes
Title: Chairman and Chief Executive Officer
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<PAGE>
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
UNDER SUCH ACT OR AN EXEMPTION THEREFROM.
$1,692,046
Convertible Note
Due July 31, 2000
Dated as of: July 30, 1999
1. General.
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation ("Borrower"), for
value received, hereby promises to pay to the order of DFA Group Trust-Small
Company Subtrust, an Illinois trust, or its designee (the "Holder"), the
principal amount of One Million Six Hundred Ninety-Two Thousand Forty-Six
United States Dollars and no cents (US$1,692,046.00) on July 31, 2000 (the
"Maturity Date"), and interest, computed on the basis of a 360-day year of
twelve 30-day months, on the unpaid and unconverted principal balance hereof
from the date hereof until paid at the rate of eight per cent (8%) per annum in
accordance with Section 3 hereof. Both principal and interest are payable to
the Holder at its account, as designated in the attached delivery instructions,
such other account as the Holder designates in writing, in lawful money of the
United States and in same day funds.
2. Prepayments.
At any time and from time to time, Borrower may prepay the balance outstanding
hereunder, in whole or in part, without premium or penalty, upon not less than
thirty (30) days' written notice to Holder, which notice shall specify the date
and amount of prepayment. If such prepayment notice is given, the prepayment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued and unpaid interest to the date of such
prepayment on the amount so prepaid. Notwithstanding the foregoing, no such
notice of prepayment shall be deemed to modify Holder's right to convert all or
any portion of the outstanding amounts due hereunder into Common Stock pursuant
to Section 3 hereof. The Holder shall be entitled to exercise such conversion
rights with respect to such outstanding amounts at any time prior to any such
prepayment.
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<PAGE>
3. Conversion of Note.
(a) Subject to and upon compliance with the provisions hereof, the Holder
shall have the right, at the Holder's option, to convert all or any part of the
unpaid principal amount of this Note plus the accrued and unpaid interest
thereon into the Common Stock, par value $0.01 per share, of Borrower ("Common
Stock") at a price equal to One United States Dollar ($1.00) per share (the
"Conversion Price"). The Conversion Price shall be subject to adjustment in
certain events as set forth in Section 5 hereof.
(b) In order to exercise the conversion privilege, the Holder shall
surrender this Note, appropriately endorsed, to Borrower at its principal
office and provide written notice to Borrower (i) stating that the Holder
elects to convert this Note or a stated portion thereof and (ii) setting forth
the name or names (with address) in which the certificate or certificates for
the shares of Common Stock issuable on such conversion shall be issued. Such
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which such notice shall have been received by
Borrower and the person in whose name the certificate for the shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder of record of the shares of Common Stock represented thereby at such time
on such date. As soon as reasonably possible after, and in any event within
fifteen (15) business days following, the receipt of such notice, Borrower
shall issue and deliver to the Holder a certificate or certificates for the
shares of Common Stock issuable upon the conversion of this Note. Upon
conversion of this Note in part, (A) the amount converted shall be deemed to
consist of, first, accrued interest including default interest, and second,
principal; and (B) the Borrower shall execute and deliver to or on the order of
the Holder at the expense of the Borrower a new Note having a principal amount
equal to the unconverted and unpaid principal and interest of this Note. Such
new Note shall have the same terms and provisions (other than principal amount)
as the Note surrendered for conversion. The Borrower will pay any and all
issue and transfer taxes or other similar governmental charges that may be
payable in respect of the issue or delivery of Common Stock on conversion of
this Note pursuant hereto.
(c) The right of the Holder to subscribe for and purchase shares of Common
Stock pursuant to the conversion privilege granted herein shall commence upon
the date hereof and shall continue until this Note is repaid in full, including
interest.
4. Interest.
The Borrower promises to pay interest on the principal amount of this Note from
time to time outstanding at the rate of eight per cent (8%) per annum. Such
interest will be payable together with principal at the maturity of this Note.
The Borrower shall pay on demand interest on overdue principal and, to the
fullest extent permitted by law, overdue interest at the rate of ten per cent
(10%) per annum.
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<PAGE>
5. Antidilution Provisions.
5.1 Adjustments in Certain Events. The Conversion Price shall be adjusted
in each of the following events as follows:
(a) In case Borrower, at any time or from time to time, shall pay or make
a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or options by way of
dividend or spinoff, reclassification, recapitalization, merger or
consolidation in which Borrower is the continuing or resulting corporation, or
similar corporate rearrangement) on the Common Stock, then, and in each such
case, the Conversion Price in effect immediately prior to the close of business
on the record date fixed for the determination of the persons entitled to
receive such dividend or distribution shall be adjusted, effective as of the
close of business on such record date, to a price (calculated to the nearest
cent) determined by multiplying such Conversion Price by a fraction:
(i) the numerator of which shall be the Current Market Price (as
defined below) in effect on such record date less the amount of
such dividend or distribution (as determined in good faith by the
Board of Directors of Borrower in consultation with the
Borrower's accountants) applicable to one share of Common Stock,
and
(ii) the denominator of which shall be such Current Market Price.
"Current Market Price" on any date of determination shall mean
the average of the Market Price (as defined below) per share of
Common Stock on each day of the period of 20 consecutive days on
which national securities exchanges were open for trading
immediately preceding the earlier of such date of determination
or the "ex" date with respect to the dividend or other
distribution. "Market Price" per share of Common Stock on any
date of determination shall mean (A) the last sale price, on such
date or, if no such sale takes place on such date, the average
closing bid and asked prices on such date, in each case as
officially reported on the principal national securities exchange
on which the Common Stock is then listed or admitted to trading
or (B) if the Common Stock is not then listed or admitted to
trading on any national securities exchange, the average of the
reported closing bid and asked prices on such date as shown by
the National Association of Securities Dealers automated
quotation system, or, if such prices are not at the time so
shown, as determined in good faith by any member of the National
Association of Securities Dealers, Inc. selected by Borrower and
reasonably satisfactory to the Holder; provided, however, that if
and so long as there shall be no exchange or over-the-counter
market for the Common Stock, the Market Price shall be deemed to
be the lesser of the Conversion Price on the date of
determination and such price, if any, at which the most recent
issue and sale by Borrower of Common Stock has been effected.
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<PAGE>
(b) In case Borrower, at any time or from time to time, shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification other than by payment of a dividend
in Common Stock), then, and in each such case, the Conversion Price in effect
immediately prior to such subdivision shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased to reflect such
transaction (such decrease to be determined by the Board of Directors of
Borrower in consultation with Borrower's accountants).
(c) In case the outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser number of shares
of Common Stock, the Conversion Price in effect immediately prior to such
combination or consolidation shall, concurrently with the effectiveness of such
combination or consolidation, be proportionately increased to reflect such
transaction, as determined by the Board of Directors of Borrower in
consultation with Borrower's accountant.
(d) All determinations by the Board of Directors of Borrower under the
provisions of this Note shall be made in good faith with due regard to the
interests of the Holder, and in accordance with good financial practice.
(e) If Borrower
(i) shall consolidate with or merge into another person and shall not
be the continuing or surviving corporation in such consolidation
or merger, or
(ii) shall permit any other person to consolidate with or merge into
Borrower and Borrower shall be the continuing or surviving person
but, in connection with such consolidation or merger, the Common
Stock shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property, or
(iii) shall transfer all or substantially all of its properties or
assets to any other person, or
(iv) shall effect a capital reorganization or reclassification of the
Common Stock,
then, and in each such case, proper provision shall be made so that, upon the
basis and the terms and in the manner provided in this Section 5.1, the Holder,
upon the exercise of any conversion privilege provided herein at any time after
the consummation of such consolidation, merger, transfer, reorganization or
reclassification, shall be entitled to receive, at the aggregate Conversion
Price in effect at the time of such consummation for all Common Stock issuable
upon such conversion immediately prior to such consummation, in lieu of the
Common Stock issuable upon such conversion prior to such consummation, the
stock and other securities, cash and property to which the Holder would have
been entitled upon such consummation if the Holder had exercised its conversion
privilege hereunder immediately prior thereto.
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(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least one per cent in
such price; provided, however, that any adjustments which by reason of this
Section 5.1 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this section
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.
(g) Borrower will not, by amendment of its Certificate of Incorporation or
through any consolidation, merger, reorganization, transfer of assets,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Note, but will at all times in good faith carry out all such terms and take all
such actions as may be necessary or appropriate in order to protect the
conversion rights of the Holder against impairment.
5.2 Notice of Adjustment. In the case of any adjustment or readjustment in
the shares of Common Stock issuable upon the conversion of this Note, Borrower
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Note and prepare a report setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. Borrower will forthwith mail a copy of
each such report to the Holder, and will, upon the written request at any time
of the Holder, furnish to the Holder a like report setting forth the Conversion
Price at the time in effect and showing how it was calculated. Borrower will
also keep copies of all such reports at its principal office and will cause the
same to be available for inspection at such office during normal business hours
by the Holder.
6. Stock to be Issued.
6.1 Stock Fully Paid. The Borrower covenants and agrees that all shares of
Common Stock which may be issued pursuant to the terms hereof will, upon
issuance in accordance with the terms hereof, be duly authorized, validly
issued, fully paid and nonassessable, free and clear of any and all
encumbrances, claims, security interests or any other rights or interests of
third parties whatsoever (other than encumbrances, claims, security interests
or rights or interests created or granted by the Holder), and of all transfer
taxes and similar charges (except for taxes, if any, upon the income of the
Holder) with respect to the issue thereof, and that the issuance thereof shall
not give rise to any preemptive rights on the part of the other stockholders of
Borrower or any other person.
6.2 Taxes. The Borrower shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock of Borrower pursuant to the terms hereof.
6.3 Reservation of Shares. Borrower shall, until this Note is paid in full,
reserve and maintain, out of its authorized but unissued shares of capital
stock, sufficient shares of Common Stock to provide for the conversion of this
Note.
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6.4 Fractional Shares. No fractional shares of Common Stock will be issued in
connection with the conversion of this Note but in lieu of such fractional
shares, the Borrower shall make a cash payment therefor equal in amount to the
product of the applicable fraction multiplied by the Conversion Price.
7. Registration Rights.
The Holder of this Note, upon conversion of all or part of amounts owing
hereunder, is entitled to all the rights and benefits provided in the DFA
Stockholders Recapitalization Agreement pursuant to which this Note is issued,
including without limitation Borrower's registration rights covenants in
Section 8 thereof. Reference is hereby made to the DFA Stockholders
Recapitalization Agreement for a statement of such rights and benefits.
8. Transfer.
This Note is registered on the books of Borrower and is transferable only by
surrender hereof for registration of transfer at the principal office of
Borrower duly endorsed or accompanied by a written instrument of transfer duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
Holder. All transfers are subject to, and shall be made in accordance with,
applicable securities laws.
9. Governing Law.
This Note shall be governed by and construed under the internal laws of the
State of Delaware, without regard to principles of conflict of laws or choice
of laws.
RAMTRON INTERNATIONAL CORPORATION
a Delaware corporation
By: /S/ L. David Sikes
- -----------------------
Name: L. David Sikes
Title: Chairman and Chief Executive Officer
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
UNDER SUCH ACT OR AN EXEMPTION THEREFROM.
$883,297
Convertible Note
Due July 31, 2000
Dated as of: July 30, 1999
1. General.
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation ("Borrower"), for
value received, hereby promises to pay to the order of U.S. 9-10 Small Company
Portfolio, an Illinois trust, or its designee (the "Holder"), the principal
amount of Eight Hundred Eighty-Three Thousand Two Hundred Ninety-Seven United
States Dollars and no cents (US$883,297.00) on July 31, 2000 (the "Maturity
Date"), and interest, computed on the basis of a 360-day year of twelve 30-day
months, on the unpaid and unconverted principal balance hereof from the date
hereof until paid at the rate of eight per cent (8%) per annum in accordance
with Section 3 hereof. Both principal and interest are payable to the Holder
at its account, as designated in the attached delivery instructions, such other
account as the Holder designates in writing, in lawful money of the United
States and in same day funds.
2. Prepayments.
At any time and from time to time, Borrower may prepay the balance outstanding
hereunder, in whole or in part, without premium or penalty, upon not less than
thirty (30) days' written notice to Holder, which notice shall specify the date
and amount of prepayment. If such prepayment notice is given, the prepayment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued and unpaid interest to the date of such
prepayment on the amount so prepaid. Notwithstanding the foregoing, no such
notice of prepayment shall be deemed to modify Holder's right to convert all or
any portion of the outstanding amounts due hereunder into Common Stock pursuant
to Section 3 hereof. The Holder shall be entitled to exercise such conversion
rights with respect to such outstanding amounts at any time prior to any such
prepayment.
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3. Conversion of Note.
(a) Subject to and upon compliance with the provisions hereof, the Holder
shall have the right, at the Holder's option, to convert all or any part of the
unpaid principal amount of this Note plus the accrued and unpaid interest
thereon into the Common Stock, par value $0.01 per share, of Borrower ("Common
Stock") at a price equal to One United States Dollar ($1.00) per share (the
"Conversion Price"). The Conversion Price shall be subject to adjustment in
certain events as set forth in Section 5 hereof.
(b) In order to exercise the conversion privilege, the Holder shall
surrender this Note, appropriately endorsed, to Borrower at its principal
office and provide written notice to Borrower (i) stating that the Holder
elects to convert this Note or a stated portion thereof and (ii) setting forth
the name or names (with address) in which the certificate or certificates for
the shares of Common Stock issuable on such conversion shall be issued. Such
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which such notice shall have been received by
Borrower and the person in whose name the certificate for the shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder of record of the shares of Common Stock represented thereby at such time
on such date. As soon as reasonably possible after, and in any event within
fifteen (15) business days following, the receipt of such notice, Borrower
shall issue and deliver to the Holder a certificate or certificates for the
shares of Common Stock issuable upon the conversion of this Note. Upon
conversion of this Note in part, (A) the amount converted shall be deemed to
consist of, first, accrued interest including default interest, and second,
principal; and (B) the Borrower shall execute and deliver to or on the order of
the Holder at the expense of the Borrower a new Note having a principal amount
equal to the unconverted and unpaid principal and interest of this Note. Such
new Note shall have the same terms and provisions (other than principal amount)
as the Note surrendered for conversion. The Borrower will pay any and all
issue and transfer taxes or other similar governmental charges that may be
payable in respect of the issue or delivery of Common Stock on conversion of
this Note pursuant hereto.
(c) The right of the Holder to subscribe for and purchase shares of Common
Stock pursuant to the conversion privilege granted herein shall commence upon
the date hereof and shall continue until this Note is repaid in full, including
interest.
4. Interest.
The Borrower promises to pay interest on the principal amount of this Note from
time to time outstanding at the rate of eight per cent (8%) per annum. Such
interest will be payable together with principal at the maturity of this Note.
The Borrower shall pay on demand interest on overdue principal and, to the
fullest extent permitted by law, overdue interest at the rate of ten per cent
(10%) per annum.
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5. Antidilution Provisions.
5.1 Adjustments in Certain Events. The Conversion Price shall be adjusted
in each of the following events as follows:
(a) In case Borrower, at any time or from time to time, shall pay or make
a dividend or other distribution (including, without limitation, any
distribution of stock or other securities or property or options by way of
dividend or spinoff, reclassification, recapitalization, merger or
consolidation in which Borrower is the continuing or resulting corporation, or
similar corporate rearrangement) on the Common Stock, then, and in each such
case, the Conversion Price in effect immediately prior to the close of business
on the record date fixed for the determination of the persons entitled to
receive such dividend or distribution shall be adjusted, effective as of the
close of business on such record date, to a price (calculated to the nearest
cent) determined by multiplying such Conversion Price by a fraction:
(i) the numerator of which shall be the Current Market Price (as
defined below) in effect on such record date less the amount of
such dividend or distribution (as determined in good faith by the
Board of Directors of Borrower in consultation with the
Borrower's accountants) applicable to one share of Common Stock,
and
(ii) the denominator of which shall be such Current Market Price.
"Current Market Price" on any date of determination shall mean
the average of the Market Price (as defined below) per share of
Common Stock on each day of the period of 20 consecutive days on
which national securities exchanges were open for trading
immediately preceding the earlier of such date of determination
or the "ex" date with respect to the dividend or other
distribution. "Market Price" per share of Common Stock on any
date of determination shall mean (A) the last sale price, on such
date or, if no such sale takes place on such date, the average
closing bid and asked prices on such date, in each case as
officially reported on the principal national securities exchange
on which the Common Stock is then listed or admitted to trading
or (B) if the Common Stock is not then listed or admitted to
trading on any national securities exchange, the average of the
reported closing bid and asked prices on such date as shown by
the National Association of Securities Dealers automated
quotation system, or, if such prices are not at the time so
shown, as determined in good faith by any member of the National
Association of Securities Dealers, Inc. selected by Borrower and
reasonably satisfactory to the Holder; provided, however, that if
and so long as there shall be no exchange or over-the-counter
market for the Common Stock, the Market Price shall be deemed to
be the lesser of the Conversion Price on the date of
determination and such price, if any, at which the most recent
issue and sale by Borrower of Common Stock has been effected.
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(b) In case Borrower, at any time or from time to time, shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification other than by payment of a dividend
in Common Stock), then, and in each such case, the Conversion Price in effect
immediately prior to such subdivision shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased to reflect such
transaction (such decrease to be determined by the Board of Directors of
Borrower in consultation with Borrower's accountants).
(c) In case the outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser number of shares
of Common Stock, the Conversion Price in effect immediately prior to such
combination or consolidation shall, concurrently with the effectiveness of such
combination or consolidation, be proportionately increased to reflect such
transaction, as determined by the Board of Directors of Borrower in
consultation with Borrower's accountant.
(d) All determinations by the Board of Directors of Borrower under the
provisions of this Note shall be made in good faith with due regard to the
interests of the Holder, and in accordance with good financial practice.
(e) If Borrower
(i) shall consolidate with or merge into another person and shall not
be the continuing or surviving corporation in such consolidation
or merger, or
(ii) shall permit any other person to consolidate with or merge into
Borrower and Borrower shall be the continuing or surviving person
but, in connection with such consolidation or merger, the Common
Stock shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property, or
(iii) shall transfer all or substantially all of its properties or
assets to any other person, or
(iv) shall effect a capital reorganization or reclassification of the
Common Stock,
then, and in each such case, proper provision shall be made so that, upon the
basis and the terms and in the manner provided in this Section 5.1, the Holder,
upon the exercise of any conversion privilege provided herein at any time after
the consummation of such consolidation, merger, transfer, reorganization or
reclassification, shall be entitled to receive, at the aggregate Conversion
Price in effect at the time of such consummation for all Common Stock issuable
upon such conversion immediately prior to such consummation, in lieu of the
Common Stock issuable upon such conversion prior to such consummation, the
stock and other securities, cash and property to which the Holder would have
been entitled upon such consummation if the Holder had exercised its conversion
privilege hereunder immediately prior thereto.
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<PAGE>
(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least one per cent in
such price; provided, however, that any adjustments which by reason of this
Section 5.1 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this section
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.
(g) Borrower will not, by amendment of its Certificate of Incorporation or
through any consolidation, merger, reorganization, transfer of assets,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Note, but will at all times in good faith carry out all such terms and take all
such actions as may be necessary or appropriate in order to protect the
conversion rights of the Holder against impairment.
5.2 Notice of Adjustment. In the case of any adjustment or readjustment in
the shares of Common Stock issuable upon the conversion of this Note, Borrower
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Note and prepare a report setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. Borrower will forthwith mail a copy of
each such report to the Holder, and will, upon the written request at any time
of the Holder, furnish to the Holder a like report setting forth the Conversion
Price at the time in effect and showing how it was calculated. Borrower will
also keep copies of all such reports at its principal office and will cause the
same to be available for inspection at such office during normal business hours
by the Holder.
6. Stock to be Issued.
6.1 Stock Fully Paid. The Borrower covenants and agrees that all shares of
Common Stock which may be issued pursuant to the terms hereof will, upon
issuance in accordance with the terms hereof, be duly authorized, validly
issued, fully paid and nonassessable, free and clear of any and all
encumbrances, claims, security interests or any other rights or interests of
third parties whatsoever (other than encumbrances, claims, security interests
or rights or interests created or granted by the Holder), and of all transfer
taxes and similar charges (except for taxes, if any, upon the income of the
Holder) with respect to the issue thereof, and that the issuance thereof shall
not give rise to any preemptive rights on the part of the other stockholders of
Borrower or any other person.
6.2 Taxes. The Borrower shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock of Borrower pursuant to the terms hereof.
6.3 Reservation of Shares. Borrower shall, until this Note is paid in full,
reserve and maintain, out of its authorized but unissued shares of capital
stock, sufficient shares of Common Stock to provide for the conversion of this
Note.
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6.4 Fractional Shares. No fractional shares of Common Stock will be issued in
connection with the conversion of this Note but in lieu of such fractional
shares, the Borrower shall make a cash payment therefor equal in amount to the
product of the applicable fraction multiplied by the Conversion Price.
7. Registration Rights.
The Holder of this Note, upon conversion of all or part of amounts owing
hereunder, is entitled to all the rights and benefits provided in the DFA
Stockholders Recapitalization Agreement pursuant to which this Note is issued,
including without limitation Borrower's registration rights covenants in
Section 8 thereof. Reference is hereby made to the DFA Stockholders
Recapitalization Agreement for a statement of such rights and benefits.
8. Transfer.
This Note is registered on the books of Borrower and is transferable only by
surrender hereof for registration of transfer at the principal office of
Borrower duly endorsed or accompanied by a written instrument of transfer duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
Holder. All transfers are subject to, and shall be made in accordance with,
applicable securities laws.
9. Governing Law.
This Note shall be governed by and construed under the internal laws of the
State of Delaware, without regard to principles of conflict of laws or choice
of laws.
RAMTRON INTERNATIONAL CORPORATION
a Delaware corporation
By: /S/ L. David Sikes
- -----------------------
Name: L. David Sikes
Title: Chairman and Chief Executive Officer
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AMENDED AND RESTATED
LOAN AGREEMENT
BETWEEN
RAMTRON INTERNATIONAL CORPORATION
AND
NATIONAL ELECTRICAL BENEFIT FUND
Page 127
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS.
1.1 "Affiliate"
1.2 "Accounts Receivable"
1.3 "Agreement"
1.4 "Allonge"
1.5 "Amended Warrant"
1.6 "Automatic Acceleration Event"
1.7 "Borrower"
1.8 "Business Day"
1.9 "Capital Lease"
1.10 "Cash Equivalents"
1.11 "Closing Date"
1.12 "Closing Price"
1.13 "Code"
1.14 "Collateral"
1.15 "Common Stock"
1.16 "Commonly Controlled Entity"
1.17 "Consolidated Working Capital Assets"
1.18 "Consolidated-Current Liabilities"
1.19 "Consolidated Net Worth"
1.20 "Consolidated Subsidiaries"
1.21 "Contingent Obligation"
1.22 "Contractual Obligation"
1.23 "Control"
1.24 "Deere Park Litigation"
1.25 "Default Rate"
1.26 "EMS"
1.27 "EMS Stock Pledge Agreement"
1.28 "ERISA"
1.29 "Event of Default"
1.30 "Extension Warrant"
1.31 "Family Affiliate"
1.32 "Foreign Governmental Authority"
1.33 "GAAP"
1.34 "Governmental Authority"
1.35 "Indebtedness"
1.36 "Insolvency" or "Insolvent"
1.37 "Intellectual Property"
1.38 "Interest"
1.39 "Inventory"
1.40 "Knowledge"
1.41 "Lender"
1.42 "Lien"
1.43 "Loan"
1.44 "Loan Documents"
1.45 "Maturity Date"
1.46 "Mortgage"
1.47 "NEC Patent Infringement Litigation"
1.48 "Note"
1.49 "NTC Liquidating Trust Claim"
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1.50 "Operating Lease"
1.51 "Original Loan Agreement"
1.52 "Patent Litigation"
1.53 "Patent Security Agreement"
1.54 "Person"
1.55 "Plan"
1.56 "Potential Default"
1.57 "Prepayment Notice Date"
1.58 "Racom"
1.59 "Racom Stock Pledge Agreement"
1.60 "RAM 302 Patent Interference"
1.61 "RAM 302 Patent Interference Decision"
1.62 "Reorganization"
1.63 "Reportable Event"
1.64 "Requirement of Law"
1.65 "Responsible Officer"
1.66 "Scheduled Maturity Date"
1.67 "Security Agreement"
1.68 "Security Documents"
1.69 "Single Employer Plan"
1.70 "Stock Pledge Agreements"
1.71 "Subsidiary"
2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Existing Loan.
2.2 Promissory Note.
2.3 Interest Rate and Payment Dates.
2.4 Computation of Interest and Fees.
2.5 Prepayments.
2.5.1 Optional Prepayments.
2.5.2 Prepayment in Connection With Sale of EMS Stock.
2.6 Principal Repayment.
2.7 Delinquency.
2.8 Method of Payment.
2.9 Use of Proceeds.
2.10 Payments.
2.11 Lender's Conversion Option.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Financial Condition.
3.2 No Change.
3.3 Corporate Existence; Compliance with Law.
3.4 Corporate Power; Authorization; Enforceable Obligations.
3.5 No Legal Bar.
3.6 No Material Litigation.
3.7 No Default.
3.8 Ownership of Property; Liens.
3.9 No Burdensome Restrictions.
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3.10 Intellectual Property.
3.11 Taxes.
3.12 ERISA.
3.13 Investment Company Act; Other Regulations.
3.14 Licenses; Permits.
3.15 Party in Interest.
4. CONDITIONS PRECEDENT.
4.1 Conditions to Restatement.
4.1.2 Consents.
4.1.3 Acknowledgment.
4.1.4 Corporate Proceedings of the Borrower.
4.1.5 No Violation.
4.1.6 Legal Opinions.
4.1.7 Warrants.
4.1.8 Representations and Warranties.
4.1.9 No Default.
4.1.10 No Litigation.
4.1.11 No Change.
4.1.12 Additional Documents.
4.1.13 Additional Matters.
4.1.14 Borrowing Certificate.
5. AFFIRMATIVE COVENANTS.
5.1 Financial Statements.
5.2 Certificates; Other Information.
5.3 Payment of Obligations.
5.4 Conduct of Business and Maintenance of Existence.
5.5 Maintenance of Property; Insurance.
5.6 Inspection of Property; Books and Records; Discussions.
5.7 Notices.
5.8 Further Assurances.
6. NEGATIVE COVENANTS.
6.1 Limitation on Indebtedness.
6.2 Limitation on Liens.
6.3 Limitation on Contingent Obligation.
6.4 Limitations on Fundamental Changes.
6.5 Limitation on Sale of Assets.
6.6 Limitation on Negative Pledge Clauses.
6.7 Limitation on Investments, Loans and Advances.
6.8 Limitation on Prepayments.
6.9 No Amendments.
6.10 Limitation on Stock Issuance.
6.11 Corporate Documents.
6.12 Compliance with ERISA.
6.13 Financing Covenants.
7. EVENTS OF DEFAULT.
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8. MISCELLANEOUS.
8.1 Entire Agreement.
8.2 Counterparts.
8.3 Governing Law.
8.4 Severability.
8.5 Successors and Assigns.
8.6 Time of the Essence.
8.7 Notice.
8.8 Successive Remedies.
8.9 No Waiver; Cumulative Remedies.
8.10 Cross-Default.
8.11 Inconsistencies with Loan Documents.
8.12 Survival.
8.13 Negotiated Document.
8.14 Payment of Expenses and Taxes.
8.15 Action, Consents and Approvals.
8.16 Amendments, Modifications, etc.
8.17 Waivers.
8.18 Captions and References.
8.19 Gender and Plural Usages.
8.20 Termination of Prior Loan Facility.
8.21 Issues re EMS.
8.22 Release of Security.
EXHIBITS/SCHEDULES
Exhibit "A" -- Form of Allonge
Exhibit "B" -- Form of Borrowing Certificate
Exhibit "C" -- Form of Acknowledgment
Exhibit "D" -- Form of Amended Warrant
Schedule 3.1 -- List of Contingent obligations, taxes, leases,
commitments per Section 3.1
Schedule 3.10 -- List of Intellectual Property
Page 131
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT is dated as of August 6, 1999 (this
"Agreement") by and between RAMTRON INTERNATIONAL CORPORATION, a Delaware
corporation ("Borrower"), and the NATIONAL ELECTRICAL BENEFIT FUND (the
"Lender").
W I T N E S E T H
WHEREAS, the Borrower and the Lender are parties to that certain Loan
Agreement dated as of August 31, 1995, as amended by (i) that First Amendment
to Loan Agreement and other Loan Documents dated as of June 1, 1998,
(ii) that Second Amendment to Loan Agreement and other Loan Documents dated
as of September 29,1998, (iii) that Third Amendment to Loan Agreement and
other Loan Documents dated as of December 14, 1998, (iv) that Fourth
Amendment to Loan Agreement and other Loan Documents dated as of February 26,
1999; (v) that Fifth Amendment to Loan Agreement and other Loan Documents
dated as of April 30, 1999, (vi) that Sixth Amendment to Loan Agreement and
other Loan Documents dated as of June 29, 1999 and (vii) that Seventh
Amendment to Loan Agreement dated as of July 31, 1999 (the "Original Loan
Agreement");
WHEREAS, the Borrower has requested the Lender to amend certain terms and
provisions of the Original Loan Agreement; and
WHEREAS, the Borrower and the Lender have agreed to certain amendments to the
Original Loan Agreement and, for convenience, the Borrower and the Lender
have agreed to restate the Original Loan Agreement, as so amended, as of the
date first above written, to read in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises hereof and for other good
and valuable consideration the receipt and sufficiency of which are hereby
established, the Borrower and the Lender hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
1.1 "Affiliate" -- when used with reference to a specified Person, shall
mean (i) any other Person that directly or indirectly through one or more
intermediaries Controls, is Controlled by or is under common Control with the
specified Person, (ii) any other Person that is an officer of, partner in or
trustee of, or serves in a similar capacity with respect to, the specified
Person or of which the specified Person is an officer, partner or trustee, or
with respect to which the specified Person serves in a similar capacity,
(iii) any other Person that, directly or indirectly, is the beneficial owner
of ten percent (10%) or more of any class of equity securities of, or
otherwise has a substantial beneficial interest in, the specified Person or
of which the specified Person is directly or indirectly the owner of ten
percent (10%) or more of any class of equity securities or in which the
specified Person has a substantial beneficial interest, (iv) a Family
Affiliate, if such Person is a natural person, or (v) with respect to Lender,
any common trust fund, group trust or other entity affiliated with,
Controlled by or under common Control with Lender.
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1.2 "Accounts Receivable" -- of a Person, at any date, shall mean and
include all invoices, contract rights, "general intangibles" (as defined in
the Uniform Commercial Code), claims, instruments, leases, agreements and
accounts evidencing or representing indebtedness currently due for its own
account on account of goods sold or leased by such Person, or services
rendered or to be rendered by such Person, and which would otherwise, in
accordance with GAAP, be set forth opposite the caption "accounts receivable"
(or any like caption) on a balance sheet of such Person at such date.
1.3 "Agreement" -- shall mean this Amended and Restated Loan Agreement, as
amended, restated or otherwise modified from time to time in accordance with
its terms.
1.4 "Allonge" -- shall mean the Allonge described in Section 2.2 hereof.
1.5 "Amended Warrant" -- shall have the meaning assigned thereto in
Section 4.1.7 hereof.
1.6 "Automatic Acceleration Event" -- shall have the meaning assigned
thereto in Section 7 hereof.
1.7 "Borrower" -- shall mean Ramtron International Corporation, and its
successors and assigns.
1.8 "Business Day" -- shall mean a day other than a Saturday, Sunday,
scheduled federal holiday or other day on which commercial banks in
Washington, D.C. are authorized or required by law to close.
1.9 "Capital Lease" -- of a Person, shall mean (a) any lease of property,
real or personal, if the then present value of the minimum rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance sheet
of such Person, and (b) any other such lease the obligations under which are
capitalized on a balance sheet of such Person.
1.10 "Cash Equivalents" -- shall mean (i) securities issued or directly
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than six (6) months
from the date of acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than six (6) months from the date of
acquisition of any domestic commercial bank having capital and surplus in
excess of $500,000,000, (iii) repurchase obligations with a term of not more
than thirty (30) days for underlying securities of the types described in
clauses (i) and (ii) entered into with any bank meeting the qualifications
specified in clause (ii) above, and (iv) commercial paper rated at least
A-2 or the equivalent thereof by Standard & Poor's Corporation or P-2 or the
equivalent thereof by Moody's Investors Service, Inc. and in either case
maturing within six (6) months after the date of the acquisition.
1.11 "Closing Date" -- shall mean September 21, 1995.
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1.12 "Closing Price" -- with respect to the Common Stock, shall mean the
latest closing sale price as reported on a national securities exchange or by
a consolidated transaction reporting system with respect to such securities,
or in the instance of publicly traded securities not listed on a national
exchange or consolidated transaction reporting system, the Closing Price
shall mean the average of the closing bid and ask prices with respect to such
securities as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or a successor or similar organization. In
the event such securities are not listed on a national exchange or
consolidated transaction reporting system or reported on the National
Association of Securities Dealers, Inc. Automated Quotation System or a
successor or similar organization, the "Closing Price" with respect to such
securities shall mean the closing price as determined in good faith by the
Board of Directors of the Borrower and a representative of the Lender, which
determination shall be conclusive and binding.
1.13 "Code" -- shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.14 "Collateral" -- shall mean the collective reference to all of the
property and interests encumbered by the Security Documents.
1.15 "Common Stock" -- shall mean Common Stock of the Borrower, $0.01 par
value.
1.16 "Commonly Controlled Entity" -- shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA.
1.17 "Consolidated Working Capital Assets" -- at any date shall mean the
amount which, in conformity with GAAP, would be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries at such date.
1.18 "Consolidated-Current Liabilities" -- at any date shall mean the amount
which, in conformity with GAAP, would be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries at such date.
1.19 "Consolidated Net Worth" -- at any date, shall mean the amount which,
in conformity with GAAP, would be set forth opposite the caption
"stockholders' equity" (or any like caption) on a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries at such date.
1.20 "Consolidated Subsidiaries" -- shall mean the Subsidiaries of the
Borrower whose accounts are consolidated with those of the Borrower for
financial reporting purposes in accordance with GAAP.
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1.21 "Contingent Obligation" -- as to any Person shall mean any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness,
leases, dividends or other contractual obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation,
(b) to advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, or
(d) otherwise to assure or hold harmless the owner or holder of such primary
obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
1.22 "Contractual Obligation" -- shall mean, with respect to the Borrower or
any Subsidiary thereof, any provision of any security issued by the Borrower
or such Subsidiary, as applicable, or of any material agreement, instrument
or undertaking to which the Borrower, or such Subsidiary, as applicable, is a
party or by which it or any of its property is bound.
1.23 "Control" -- shall mean the possession, directly or indirectly, of the
power to influence, direct, or cause the direction of management and
policies, whether through the ownership of voting securities, general or
limited partnership interests or other manner of control.
1.24 "Deere Park Litigation" -- shall mean the Verified Complaint dated
November 18, 1998, filed by Deere Park Capital Management, L.L.C. against
Ramtron International Corporation, as the same may be amended, supplemented
or otherwise modified from time to time, and all matters relating thereto.
1.25 "Default Rate" -- shall have the meaning assigned thereto in Section
2.7 hereof.
1.26 "EMS" -- shall mean Enhanced Memory Systems, Inc., a Delaware
corporation.
1.27 "EMS Stock Pledge Agreement" -- shall mean the Stock Pledge Agreement
dated as of August 31, 1995 executed by the Borrower in favor of the Lender
with respect to the stock of EMS, as the same may be amended, restated or
otherwise modified from time to time.
1.28 "ERISA" -- shall mean the Employees Retirement Income Security Act of
1974, as amended from time to time.
1.29 "Event of Default" -- shall have the meaning assigned thereto in
Section 7 hereof.
1.30 "Extension Warrant" -- shall have the meaning assigned thereto in
Section 4.1.7 hereof.
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1.31 "Family Affiliate" -- when used with reference to a specified natural
Person, a parent, grandparent, sibling, spouse, aunt, uncle, child (whether
natural or adopted), nephew, niece, grandchild, parent-in-law, brother-in-
law, sister-in-law, son-in-law or daughter-in-law of such Person.
1.32 "Foreign Governmental Authority" -- shall mean the government of any
nation (or nations, including the European Union) other than the United
States of America, any state, municipality, any local government, or its
equivalent, and any other political subdivision of any of the above, and any
agency, department, commission, court or other instrumentality of any of them
(including any corporation or other entity owned or controlled by any of the
foregoing) exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
1.33 "GAAP" -- shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
1.34 "Governmental Authority" -- shall mean the United States of America,
any state, any municipality, any local government and any other political
subdivision of any state, and any agency, department, bureau, board,
commission, court or other instrumentality of any of them (including any
corporation or other entity owned or controlled by any of the foregoing)
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
1.35 "Indebtedness" -- of a Person, at a particular date, shall mean the sum
(without duplication) at such date of (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services or
which is evidenced by a note, bond, debenture or similar instrument, (b) all
obligations of such Person under Capital Leases and Operating Leases, (c) all
obligations (contingent or otherwise) of such Person in respect of letters of
credit, acceptances, or similar obligations issued or created for the account
of such Person, (d) all Contingent Obligations of such Person, and (e) all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof; provided, however, that Indebtedness shall not be deemed to include
(i) accounts payable or accrued expenses not evidenced by a note or similar
instrument of such Person, and (ii) installment-type sales contracts and
equipment leases entered into in the ordinary course of business.
1.36 "Insolvency" or "Insolvent" -- at any particular time, shall mean a
Multiemployer Plan which is insolvent within the meaning of Section 4245 of
ERISA.
1.37 "Intellectual Property" -- shall have the meaning assigned thereto in
Section 3.10 hereof.
1.38 "Interest" -- shall have the meaning assigned thereto in Section 2.3
hereof.
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1.39 "Inventory" -- of a particular Person at any date, shall mean and
include all merchandise intended for sale by such Person, together with all
raw materials, goods in process, finished goods, materials and supplies of
every nature used or usable in connection with the manufacture, packing,
shipping, advertising, leasing or sale of such merchandise, and which would
otherwise, in accordance with GAAP, be set forth opposite the caption
"inventory" (or any like caption) on a balance sheet of such Person at such
date.
1.40 "Knowledge" -- With respect to a specified Person, shall mean
(a) information appearing in documents in the custody or under the control of
such Person; (b) information actually known by such Person; (c) information
in documents in the custody or under the control of attorneys representing
such Person and other information actually known by such attorneys (but only
to the extent reflected in documents under the control of such attorneys or
actually known by such attorneys in connection with the transactions
contemplated by this Agreement); and (d) information reasonably inferable
from that described in clauses (a) through (c), above.
1.41 "Lender" -- shall mean the National Electrical Benefit Fund, its
successors and assigns.
1.42 "Lien" -- shall mean any charge, lien (including mechanics',
materialmen's, tax and other liens), mortgage, deed of trust, pledge,
hypothecation, collateral assignment, deposit arrangement, preference,
priority or other security agreement, or preferential arrangement of any kind
or nature whatsoever having substantially the same effect as any of the
foregoing, whether absolute or conditional, voluntary or involuntary, whether
created by agreement, assignment, statute, judicial proceedings or otherwise
(including, without limitation, any conditional sale or similar title
restriction agreement, any financing lease having substantially the same
effect of any of the foregoing, and the filing of any financing statement
under the Uniform Commercial Code or any comparable law of any jurisdiction).
1.43 "Loan" -- shall have the meaning assigned thereto in Section 2.1
hereof.
1.44 "Loan Documents" -- shall mean the collective reference to this
Agreement, the Note, the Security Documents and all other documents
evidencing or securing all or any portion of the Loan.
1.45 "Maturity Date" -- shall mean the earliest to occur of (i) the
Scheduled Maturity Date, (ii) the date of acceleration of the Scheduled
Maturity Date in accordance with Lender's right to accelerate the Scheduled
Maturity Date in connection with an Event of Default hereunder, under the
Note or any of the other Loan Documents, (iii) the date of the occurrence of
an Automatic Acceleration Event, (iv) the date indicated in a prepayment
notice delivered by the Borrower to the Lender as the date on which the
Borrower will prepay the Loan in full pursuant to the provisions of Section
2.5.1 hereof, and (v) the date of the conversion of the entire outstanding
principal amount of the Loan pursuant to Section 2.11 hereof.
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1.46 "Mortgage" -- shall mean the Mortgage and Security Agreement with
respect to the headquarters of the Borrower located in Colorado Springs,
Colorado and dated as of August 31, 1995, executed by Borrower in favor of
Lender, as the same may be amended, restated or otherwise modified from time
to time.
1.47 "NEC Patent Infringement Litigation" - - shall mean the lawsuit filed
by the Borrower against NEC Corporation, NEC Electronics, Inc., and NEC USA
in October of 1998, together with any and all counterclaims filed in
connection therewith.
1.48 "Note" -- shall have the meaning assigned thereto in Section 2.2
hereof.
1.49 "NTC Liquidating Trust Claim" - shall mean that certain lawsuit filed
on October 9, 1997 in the United States Bankruptcy Court, District of
Colorado (Case No. 95-11642 CEM) by David J. Beckman, as trustee for the NTC
Liquidating Trust, naming as defendants the Borrower, Citibank (Borrower's
stock transfer agent which it has indemnified), and Brown Brothers Harriman
and Company in regard to claims of wrongful transfer of certain Common Stock
related to Oren Benton's bankruptcy proceedings which claims seek relief in
the form of: (1) money damages in an amount not less than the proceeds that
were generated by the transfer (allegedly not less than $5.9 million);
(2) actual and consequential damages, pre-judgement interest at the legal
rate, punitive damages, and costs and expenses (including attorneys' fees);
and, (3) in the alternative, 523,137 shares of Common Stock.
1.50 "Operating Lease" -- shall have the meaning provided therefor in GAAP.
1.51 "Original Loan Agreement" -- shall have the meaning assigned thereto in
the first Whereas clause hereto.
1.52 "Patent Litigation" -- shall mean any adverse claim by any Person or
any litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority or Foreign Governmental Authority relating to U.S. or
foreign patents, U.S. or foreign applications for patents, technology, know-
how, or processes necessary or useful for the conduct of Borrower's present
or reasonably foreseeable future business including, but not limited to, the
RAM 302 Patent Interference.
1.53 "Patent Security Agreement" -- shall mean the Patent Security Agreement
dated as of August 31, 1995 and/or March 2, 1995 (pursuant to Section 8.20
hereof) executed by Borrower in favor of Lender in form and substance
satisfactory to the Lender in its sole and absolute discretion, as the same
(i) has been amended by that First Amendment to Patent Security Agreement
dated as of January 15, 1999 and made by the Borrower in favor of Lender, and
(ii) may be further amended, restated or otherwise modified from time to
time.
1.54 "Person" -- shall mean any natural person, partnership, joint venture,
trust, corporation, limited liability company, Governmental Authority,
Foreign Governmental Authority, or other entity.
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1.55 "Plan" -- at a particular time, shall mean any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be), an "employer" as defined in
Section 3(5) of ERISA.
1.56 "Potential Default" -- shall mean any of the events specified in
Section 7 hereof, whether or not any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been satisfied which
would result in such event being deemed to be an "Event of Default".
1.57 "Prepayment Notice Date" -- shall mean (i) a day on which the Lender
receives written notice from the Borrower that it will prepay the Loan, in
whole or in part, pursuant to Section 2.5.1 hereof; (ii) a day on which the
Lender shall approve in writing Borrower's sale of all or a portion of the
stock of EMS pursuant to Section 8.21(i) hereof; or (iii) a day on which the
Lender shall approve in writing the liquidation of EMS pursuant to Section
8.21(iii) hereof.
1.58 "Racom" -- shall mean Racom Systems, Inc., a Delaware corporation.
1.59 "Racom Stock Pledge Agreement" -- shall mean the Stock Pledge Agreement
dated as of August 31, 1995 executed by the Borrower in favor of the Lender
with respect to the stock of Racom Systems, Inc.
1.60 "RAM 302 Patent Interference" -- shall mean those certain patent
interference proceedings described in Borrower's latest 10-K filing with the
Securities and Exchange Commission prior to the date hereof which are
captioned: Evans, et al. v. Eaton (Patent Interference No. 102,723); Evans,
et al. v. Eaton (Patent Interference No. 102, 724); Evans, et al. v. Schwee
v. Eaton (Patent Interference No. 102, 725); Evans, et al. v. Schwee v.
Eaton (Patent Interference No. 102, 726); and Evans, et al. v. Eaton
(Patent Interference No. 102, 727).
1.61 "RAM 302 Patent Interference Decision" -- shall mean the "Decision at
Final Hearing" issued on May 6, 1997 by the Board of Patent Appeals and
Interferences of the United States Patent and Trademark Office in regard to
the RAM 302 Patent Interference.
1.62 "Reorganization" -- with respect to any Multiemployer Plan, shall mean
the condition that such plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
1.63 "Reportable Event" -- shall mean any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
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1.64 "Requirement of Law" -- shall mean, as to any Person, the certificate
or articles of incorporation, bylaws, partnership agreement, limited
partnership agreement, certificate of limited partnership and/or other
organizational or governing documents of such Person, and any and all present
and future laws, rules, regulations, statutes, codes or ordinances of any
Governmental Authority (including, but not limited to, all federal and state
securities laws) or Foreign Governmental Authority, and all judgments,
decrees, injunctions, rulings, decisions, determinations and interpretations
issued by any arbitrator, Governmental Authority, or Foreign Governmental
Authority, in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.
1.65 "Responsible Officer" -- shall mean the Chief Executive Officer or the
President of the Borrower, or, with respect to financial matters, the Chief
Financial Officer of the Borrower.
1.66 "Scheduled Maturity Date" -- shall mean March 15, 2002.
1.67 "Security Agreement" -- shall mean the Security Agreement dated as of
August 31, 1995, executed by Borrower in favor of Lender with respect to all
of the personal property of the Borrower, as the same may be amended,
restated or otherwise modified from time to time.
1.68 "Security Documents" -- shall mean the collective reference to the
Mortgage, the Security Agreement, the Patent Security Agreement(s) (including
such agreements dated March 2, 1995 and August 31, 1995 as appropriate
pursuant to Section 8.20 hereof), the Stock Pledge Agreements and the Uniform
Commercial Code filings contemplated by the Security Agreement.
1.69 "Single Employer Plan" -- shall mean any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
1.70 "Stock Pledge Agreements" -- shall mean the collective reference to the
EMS Stock Pledge Agreement and the Racom Stock Pledge Agreement.
1.71 "Subsidiary" -- shall mean a corporation or other entity in which
Borrower owns, directly or indirectly, stock or other ownership interests in
sufficient number to elect a majority of the directors (or persons performing
similar functions) of such corporation or entity.
2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Existing Loan. The Borrower and Lender acknowledge and agree that, as
of the date hereof and immediately prior to the making of the partial
prepayment provided for in Section 4.1.16 below (i) the principal amount of
"Loans" outstanding under and as defined in the Original Loan Agreement is
Five Million Five Hundred Thousand Dollars ($5,500,000); and (ii) the
interest accrued and unpaid under the Original Loan Agreement is
approximately Two Million Fifteen Thousand Three Hundred Two and 57/100
Dollars ($2,015,302.57) (such amounts, collectively, the "Original Loan
Amounts"). Upon the partial prepayment provided for in Section 4.1.16,
below, the principal amount of the Original Loan Amounts as of the date
hereof is Seven Million Dollars ($7,000,000) (such amount being deemed the
"Loan" hereunder), and no further advances shall be made to the Borrower
hereunder or under the Original Loan Agreement.
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2.2 Promissory Note. The Loans made by the Lender under the Original Loan
Agreement have been evidenced by the promissory note dated August 31, 1995.
An Allonge to that note, dated as of the date hereof, substantially in the
form of Exhibit "A" hereto shall modify such note to (i) evidence the
obligation of the Borrower to pay to the Lender a principal amount equal to
Seven Million Dollars ($7,000,000); (ii) evidence that such note shall be due
as of the Maturity Date; and (iii) state that interest on the Note shall be
payable as provided in Section 2.3 hereof. Such note, as modified by the
Allonge, as the same may be amended, supplemented, endorsed or otherwise
modified from time to time is herein referred to as the "Note."
2.3 Interest Rate and Payment Dates. From and after the date hereof, the
principal amount of the Loan outstanding shall bear interest at a fixed rate
per annum equal to Eight Percent (8%) (the "Interest"), which accrued
interest shall be due and payable quarterly, in arrears, on the last day of
each calendar quarter, provided, that the first such payment shall occur on
January 31, 2000, with the next such payment being due on March 31, 2000 and
on the last day of each calendar quarter thereafter, and provided further,
that the Borrower may make a prepayment in whole or in part of accrued but
unpaid Interest at any time upon sixty (60) Business Days notice without
premium or penalty. Notwithstanding the foregoing, no such notice of
prepayment shall be deemed to modify Lender's right to convert all or a
portion of the outstanding principal amount of the Loan advanced hereunder
together with accrued but unpaid Interest on such Loan into Common Stock
pursuant to Section 2.11 hereof. Lender shall be entitled to exercise such
conversion rights with respect to all amounts due Lender pursuant to this
Agreement including, but not limited to, accrued but unpaid Interest at any
time prior to any such prepayment of such Interest.
2.4 Computation of Interest and Fees. Interest on the outstanding principal
amount of the Loan shall be calculated based upon a year of three hundred
sixty (360) days over the actual number of days in the applicable year.
Accrued and unpaid Interest shall not be subject to compounding.
2.5 Prepayments.
2.5.1 Optional Prepayments. At any time and from time to time, the
Borrower may prepay the Loan, in whole or in part, without premium or
penalty, upon no less than ninety (90) Business Days' written notice to
the Lender, which notice shall specify the date and amount of
prepayment. If such notice is given, the prepayment amount specified in
such notice shall be due and payable on the date specified therein,
together with accrued and unpaid Interest to the date of such prepayment
on the amount so prepaid. Amounts so optionally prepaid may not be
re-borrowed. Notwithstanding the foregoing, no such notice of
prepayment shall be deemed to modify Lender's right to convert all or a
portion of the outstanding principal amount of the Loan advanced by it
together with accrued but unpaid Interest on such Loan into Common Stock
pursuant to Section 2.11 hereof. Lender shall be entitled to exercise
such conversion rights with respect to such principal and Interest at
any time prior to any such prepayment.
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2.5.2 Prepayment in Connection With Sale of EMS Stock. If the Borrower
shall sell or transfer any of the stock of EMS or liquidate EMS, as
contemplated in Section 8.21 hereof, the proceeds thereof shall, at the
election of the Lender by written notice to the Borrower, be immediately
applied by the Borrower to a prepayment of the amounts outstanding under
the Loan Documents (in such order of priority as provided in Section 3
of the Note).
2.6 Principal Repayment. The entire outstanding principal amount of the
Loan, together with all accrued and unpaid Interest and all other sums due to
the Lender hereunder, under the Note or under any of the other Loan
Documents, shall be due and payable on the Maturity Date.
2.7 Delinquency. In addition to any other rights the Lender may have upon
the occurrence of a Potential Default or an Event of Default as provided
herein or in any of the other Loan Documents, or as provided at law or
equity, in the event of a default in the payment of principal, Interest, or
any other sums due to the Lender hereunder, under the Note or under any of
the other Loan Documents, any such sum shall bear interest from and after
such due date until paid in full, without notice, at an annual rate equal to
the lesser of (a) Sixteen Percent (16%), and (b) the maximum rate permitted
by law (such rate in effect from time to time, the "Default Rate"), it being
expressly intended that delinquent payments shall bear interest at the
Default Rate until paid in full, whether before or after any judgment or the
occurrence of an Automatic Acceleration Event. In addition, if Borrower
shall fail to make payment when and as due of any amounts due hereunder or
under any of the other Loan Documents (whether at the stated date for
payment, at maturity or by acceleration), Borrower shall, automatically and
without notice, be subject to a late payment charge of two percent (2%) of
the amount so unpaid, it being expressly understood and agreed that such
charge is not in the nature of a penalty but a charge to defray costs
incurred by Lender in the collection of such defaulted payment.
2.8 Method of Payment. All sums payable to Lender under this Agreement, the
Note or any of the other Loan Documents of every nature including, without
limitation, payments on account of principal, interest, late charges, fees,
expenses and the like, shall be paid in United States Dollars by wire
transfer of immediately available federal funds to a bank account designated
by the Lender in writing from time to time. If any payment hereunder becomes
due and payable on a day other than a Business Day, such payment date shall
be extended to the next succeeding Business Day, and with respect to payments
of principal, Interest shall be payable thereon to the date of such actual
payment.
2.9 Use of Proceeds. The proceeds of the Loan shall be used by the Borrower
solely for working capital purposes.
2.10 Payments. All payments (including prepayments) to be made by the
Borrower on account of principal, interest, and fees shall be made without
set off or counterclaim of any nature or with respect to any Person
whatsoever and shall be made to the Lender in lawful money of the United
States of America and in immediately available funds by wire transfer into
the bank account designated to the Borrower in writing by the Lender.
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2.11 Lender's Conversion Option.
2.11.1 At any time during: (i) one hundred and twenty (120) Business
Days prior to the Scheduled Maturity Date, (ii) Eighty-Nine (89)
Business Days following a Prepayment Notice Date, or (iii) one hundred
and twenty (120) Business Days following a day on which an Event of
Default occurs, Lender may elect through written notice to Borrower to
convert all or any portion (but not less than Five Hundred Thousand
Dollars ($500,000)) of the outstanding obligations of Borrower to the
Lender hereunder (whether on account of Interest, principal or
otherwise; such amount to be so converted by Lender hereunder, the
"Conversion Amount") into Common Stock as provided below. Such
conversion shall be deemed effective as of the day on which Lender
gives notice to Borrower of its intention to convert hereunder (the
"Conversion Date"). The amount of Common Stock the Lender shall be
entitled to receive hereunder shall be determined in accordance with
the following formula:
Total Number of = Conversion Amount
-----------------
Shares of Common Stock to
be received 1
If Lender shall have elected to convert less than the entire amount of
indebtedness outstanding to Lender hereunder, the Conversion Amount
shall be deemed to consist of (i) first, accrued and unpaid Interest
(including, if applicable, default interest), (ii) second, any
applicable late charges, and (iii) then, principal. Lender may exercise
the conversion rights set forth herein as often as it may elect and each
Conversion Amount shall be in the amount selected by Lender.
2.11.2 The Borrower shall pay any and all issue and other taxes that
may be payable in respect of any issue or delivery of shares of Common
Stock upon conversion hereunder.
2.11.3 The Borrower shall at all times use its best efforts to reserve
and keep available, out of its authorized but unissued Common Stock,
solely for the purpose of effecting the potential conversions provided
for herein, the full number of shares of Common Stock potentially
deliverable hereunder. The Borrower shall from time to time (subject to
obtaining necessary director and stockholder approval), in accordance
with the laws of the State of Delaware, if necessary, use its best
efforts to increase the authorized amounts of its Common Stock if at any
time the authorized number of shares of its Common Stock remaining
unissued shall not be sufficient to permit the maximum conversion
available hereunder. Notwithstanding the prior two (2) sentences,
Lender hereby acknowledges that the number of authorized but unissued
shares of Common Stock of the Borrower may be insufficient now and on
future dates to cover the amount of shares of Common Stock which may be
issued upon a conversion pursuant hereto. In the event that the number
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of shares of Common Stock to be issued to Lender by conversion of the
Conversion Amount pursuant to Section 2.11.1 hereof is more than the
number of authorized but unissued shares of Common Stock of the Borrower
as of the Conversion Date, then that portion of the Conversion Amount
that can be converted into Common Stock based on the then-available
number of authorized but unissued shares of Common Stock (including such
amounts as may be reserved for the exercise of warrants or options held
by the Lender) shall be converted as of the Conversion Date. That
portion of the stated Conversion Amount that cannot be converted because
of a shortfall in the number of authorized but unissued shares of Common
Stock shall be referred to as the "Remnant Conversion Amount".
Thereafter, Borrower shall use its best efforts to increase the number
of authorized but unissued shares of Common Stock in an amount necessary
to permit the Borrower to reserve a sufficient amount of authorized but
unissued shares of Common Stock to effectuate the conversion of the
Remnant Conversion Amount and any additional potential conversions
provided for herein.
2.11.4 All shares of Common Stock which may be issued upon conversion
hereunder will upon issuance by the Borrower be validly issued, fully-
paid and non-assessable and free from all taxes, liens and charges with
respect to the issuance thereof.
2.11.5 In connection with each such conversion provided for hereunder,
and upon the request of Lender (such request not to be made more than
once during each ninety (90) day period measured from the date hereof),
the Borrower shall use its best efforts to register, at Borrower's sole
expense (including, but not limited to, payment by Borrower of not more
than ten thousand dollars ($10,000) of Lender's legal expenses actually
incurred and related thereto) under the Securities Act of 1933, as
amended, within a reasonable period of time after the date of such
conversion, the resale of the Common Stock issued pursuant to such
conversion.
2.11.6 The number and kind of securities which are to be received under
this Section 2.11 upon the exercise of the conversion rights set forth
herein shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
2.11.6.1 If the Borrower at any time shall consolidate with or
merge into any other corporation, or sell all or substantially all
of its assets to another corporation, or reclassify or in any
manner change the Common Stock receivable upon the exercise of the
conversion rights set forth herein (any of which shall constitute
a "Reorganization"), then lawful and adequate provision shall be
made whereby the conversion rights set forth herein shall
thereafter evidence the right to purchase such number and kind of
securities and other property as would have been issuable or
distributable on account of such Reorganization upon or with
respect to the Common Stock which were receivable or would have
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become receivable under the conversion rights set forth herein
immediately prior to such Reorganization. The Borrower shall not
effect any such Reorganization unless prior to or simultaneously
with the consummation thereof the successor corporation (if other
than the Borrower) resulting from such Reorganization shall assume
by written instrument executed and mailed or delivered to the
Lender, at the last address of the Lender appearing herein, the
obligation to deliver to Lender such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the
Lender may be entitled to receive hereunder.
2.11.6.2 If the Borrower at any time while any Loans remain
outstanding shall subdivide or combine its Common Stock, the
conversion price set forth herein (i.e., $1.00) shall be adjusted
to a price determined by multiplying such conversion price by a
fraction (i) the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to such
subdivision or combination, and (ii) the denominator of which
shall be the total number of shares of Common Stock outstanding
immediately after such subdivision or combination.
2.11.6.3 If the Borrower at any time the Loan is outstanding
shall take a record of the holders of its Common Stock for the
purposes of:
(a) Entitling them to receive a dividend payable in, or to
receive any other distribution without consideration of, Common
Stock, then the conversion price set forth herein shall be
adjusted to the price determined by multiplying such conversion
price by a fraction (x) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution, and (y) the denominator
of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution; or
(b) Making any distribution without consideration with respect
to its Common Stock (other than a cash dividend) payable
otherwise than in its Common Stock, then Lender shall, upon the
exercise of the conversion rights set forth herein, be entitled
to receive, in addition to the number of shares receivable
hereunder, and without payment of any additional consideration
therefor, such assets or securities as would have been payable
to the Lender as owner of that number of shares on the record
date for such distribution; and an appropriate provision
therefor shall be made a part of any such distribution.
3. REPRESENTATIONS AND WARRANTIES.
To induce the Lender to enter into this Agreement and to make the Loan, the
Borrower hereby represents and warrants to Lender that:
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3.1 Financial Condition. The consolidated balance sheet of the Borrower and
its consolidated Subsidiaries at December 31, 1998 and the related
consolidated statements of income and retained earnings and changes in
financial position for the fiscal year ended on such date, reported on by
Arthur Andersen, LLP, copies of which have heretofore been furnished to
Lender, are complete and correct and present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries at such
date, and the consolidated results of their operations and changes in
financial position for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
at March 31, 1999, and the related unaudited consolidated statements of
income and cash flows for the three month period ended on such date,
certified by a Responsible Officer, copies of which have heretofore been
furnished to Lender, are complete and correct and present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their
operations and changes in financial position for the three month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as
the case may be, and as disclosed therein). Neither the Borrower nor any of
its consolidated Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Contingent Obligation, contingent
liabilities or liability for taxes, long-term lease or unusual forward or
long-term commitment, which is not reflected in the foregoing statements, in
the notes thereto, in filings made with the Securities and Exchange
Commission (including the exhibits thereto), or in Schedule 3.1.
3.2 No Change. Since December 31, 1998, (a) (subject to the consummation of
the preferred stock restructuring program) there has been no material adverse
change in the business, operations, property or financial or other condition
of the Borrower or any of its Subsidiaries, in regard to which Lender hereby
acknowledges the RAM 302 Patent Interference Decision and deems that such
decision is not, in and of itself, a material adverse change under this
subsection but may, in conjunction with other further developments or lack of
action in regard to other aspects of Borrower or its Subsidiaries, including
future action or inaction regarding Patent Litigation, be determined by
Lender (in its sole discretion) to constitute a material adverse change under
this subsection, and (b) no dividends or other distributions have been
declared (with the exception of such 6% dividends payable in Series A
Convertible Preferred Stock ("Series A Stock") to holders of Series A Stock
and declared by the Board of Directors of Ramtron prior to the date hereof),
paid or made upon any shares of capital stock of the Borrower nor have any
shares of capital stock of the Borrower been redeemed, retired, purchased or
otherwise acquired for value by the Borrower or any of its Subsidiaries
(other than with respect to Ramtron Series A Preferred Stock previously held
by Talisman Capital Opportunity Fund and surrendered as described on Schedule
3.1 hereto).
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3.3 Corporate Existence; Compliance with Law. The Borrower and each of its
Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, and (d) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith could not,
in the aggregate, have a material adverse effect on the business, operations,
property or financial or other condition of the Borrower or any such
Subsidiary, as applicable, and could not materially adversely affect the
ability of the Borrower to perform its obligations under the Loan Documents.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Borrower
has the corporate power and authority, and the legal right, to make, deliver
and perform the Loan Documents and to borrow hereunder and has taken all
necessary corporate action to authorize (i) the borrowings on the terms and
conditions of this Agreement, the Note, and the Acknowledgment (as described
in Section 4.1.3 hereof), (ii) the execution, delivery and performance of the
Loan Documents and, (iii) the delivery of the Amended Warrants, Extension
Warrants, and Common Stock contemplated herein. No consent or authorization
of, filing with or other act by or in respect of any Governmental Authority
or Foreign Governmental Authority is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents. This Agreement and each other Loan
Document has been duly executed and delivered on behalf of the Borrower.
This Agreement constitutes, and each other Loan Document (including, without
limitation, the Note as amended by the Allonge) constitutes and will continue
to constitute, a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents, the borrowings hereunder and the use of the proceeds thereof, does
not violate any Requirement of Law or any Contractual Obligation of the
Borrower, and will not result in, or require, the creation or imposition of
any Lien on any of its properties or revenues pursuant to any Requirement of
Law or Contractual Obligation (other than to the Lender pursuant to the
provisions of the Loan Documents).
3.6 No Material Litigation. Other than the Deere Park Litigation, the RAM
302 Patent Interference, and the NEC Patent Infringement Litigation, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority or Foreign Governmental Authority, is pending or, to
the Knowledge of the Borrower, threatened by or against the Borrower, any of
its Subsidiaries, or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower or any such Subsidiary. As of the date
hereof, the NTC Liquidating Trust Claim has been settled and there is no
further pending or threatened litigation with respect to the matters which
was the subject thereof.
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3.7 No Default. None of the Borrower or any Subsidiary thereof is in
default under or with respect to any Contractual Obligation in any respect
which could be materially adverse to the business, operations, property or
financial or other condition of the Borrower or any such Subsidiary or which
could materially adversely affect the ability of the Borrower to perform its
obligations under the Loan Documents. No Potential Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. The Borrower and each Subsidiary has good
record title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to all its other property. The Mortgage and each
other Security Document constitutes a valid and enforceable first priority
Lien against the respective property purported to be encumbered thereby and
none of such property is subject to any Lien except for such first priority
lien created by the Mortgage and each other Security Document.
3.9 No Burdensome Restrictions. No Contractual Obligation of the Borrower
or any of its Subsidiaries and no Requirement of Law materially adversely
affects, or insofar as the Borrower may reasonably foresee may so affect, the
business, operations, property or financial or other condition of the
Borrower or any of its Subsidiaries.
3.10 Intellectual Property. To the Borrower's Knowledge, the Borrower and
each Subsidiary thereof owns (individually or on a joint basis), or is
licensed to use, all trademarks, tradenames, copyrights, U.S. or foreign
patents, technology, know-how and processes necessary or useful for the
conduct of its current or reasonably foreseeable future business that are
material to the condition (financial or other), business, or operations of
the Borrower or such Subsidiary, as applicable (the "Intellectual Property").
Other than the RAM 302 Patent Interference and the NEC Patent Infringement
Litigation, no claim has been asserted and is pending by any Person with
respect to the use of any such Intellectual Property, or challenging or
questioning the validity or effectiveness of any such Intellectual Property
and the Borrower does not know of any valid basis for any such claim. The
Patent Security Agreement, as amended as provided in Section 4.1.1,
constitutes a valid and enforceable first priority Lien against the
Borrower's Intellectual Property and none of such Intellectual Property is
subject to any Lien except for such first priority lien created by the Patent
Security Agreement and each other Security Document. Schedule 3.10 hereto is
a complete and accurate list of all Intellectual Property owned by the
Borrower.
3.11 Taxes. The Borrower and each Subsidiary thereof has filed or cause to
be filed all tax returns which to the Knowledge of the Borrower are required
to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority or Foreign Governmental Authority (other than any
amount the validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrower or such Subsidiary, as
applicable); and no tax lien has been filed and, to the Knowledge of the
Borrower, no claim is being asserted with respect to any such tax, fee or
other charge.
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3.12 ERISA. No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. The present value of all
benefits vested under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date, exceed the value of the
assets of such Plan allocable to such vested benefits. Neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan and the liability to which the Borrower or any
Commonly Controlled Entity would become subject under ERISA if the Borrower
or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date
hereof is not in excess of $0. No such Multiemployer Plan is in
Reorganization or Insolvent.
3.13 Investment Company Act; Other Regulations. None of the Borrower or any
Subsidiary thereof is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. The Borrower is not subject to regulation under any
Federal or State statute or regulation which limits its ability to incur
Indebtedness.
3.14 Licenses; Permits. To the Borrower's Knowledge, Borrower and each
Subsidiary thereof has received all licenses, permits or consents necessary
or advisable under any Requirement of Law in order to conduct the business in
which it is currently engaged.
3.15 Party in Interest. The Borrower is not a party in interest (as defined
in Section 3(14) of ERISA) with respect to the Lender as the Borrower is not:
(i) a fiduciary (including but not limited to any administrator,
officer, trustee or custodian), counsel or employee of the
Lender;
(ii) an individual or entity providing services to the Lender;
(iii) an employer any of whose employees are covered by the Lender;
(iv) an employee organization any of whose members are covered by the
Lender;
(v) an owner, direct or indirect, of fifty percent (50%) or more of
an entity described in subclauses (iii) or (iv), above;
(vi) a spouse, ancestor, lineal descendant or spouse of a lineal
descendant of any individual described in subclauses (i), (ii),
(iii) or (v), above;
(vii) a corporation, partnership or trust or estate of which fifty
percent (50%) or more is owned, directly or indirectly, or held
by persons described in subclauses (i), (ii), (iii), (iv) or
(v), above;
(viii) an employee, officer, director or a ten percent (10%) or more
shareholder, directly or indirectly, of a person described in
subclauses (iii), (iv), (v) or (vii), above, or of the Lender;
or
(ix) a ten percent (10%) or more partner or joint venturer of a
person described in subclauses (ii), (iii), (iv), (v) or (vii),
above.
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4. CONDITIONS PRECEDENT.
4.1 Conditions to Restatement. The agreement of Lender to enter into this
Amended and Restated Agreement is subject to the satisfaction, or waiver by
Lender, immediately prior to or concurrently with the execution of this
Agreement, of the following conditions precedent:
4.1.1 Loan Documents. Lender shall have received an original
counterpart of (i) this Agreement, and (ii) the Allonge, in each case
executed and delivered by a duly authorized officer of the Borrower.
4.1.2 Consents. Lender shall have received an original counterpart of
a certificate of a Responsible Officer stating that no consents,
licenses or approvals are required or advisable in connection with the
Borrower's execution and delivery of the Loan Documents and its
performance thereunder.
4.1.3 Acknowledgment. Lender shall have received an Acknowledgment
made by the Borrower which shall be executed by the duly authorized and
Responsible Officer of the Borrower and delivered substantially in the
form of Exhibit "C" hereto, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
4.1.4 Corporate Proceedings of the Borrower. Lender shall have
received an original counterpart of the resolutions in form and
substance reasonably satisfactory to the Lender, of the Board of
Directors of the Borrower authorizing (i) the execution, delivery and
performance of this Agreement, the Acknowledgment and any other
documents required hereby, and (ii) the issuance and authorization of
the Amended Warrant, the Extension Warrant, and such Common Stock as may
underlie the Amended Warrant, and Extension Warrant and such Common
Stock as may reasonably be required to satisfy Lender's conversion
rights under Section 2.11 herein, in each case certified by the
Secretary of the Borrower as of the date hereof, which certificate shall
state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded as of the date of such certificate.
4.1.5 No Violation. The consummation of the transactions contemplated
hereby shall not contravene, violate or conflict with, nor involve
Lender in a violation of, any Requirement of Law.
4.1.6 Legal Opinions. Lender shall have received an original
counterpart of the executed legal opinions of satisfactory outside
counsel to the Borrower addressing such matters as the Lender may
request and otherwise in form and substance satisfactory to the Lender.
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4.1.7 Warrants. Borrower shall amend the Warrant to purchase up to
4,028,485 shares of Common Stock dated as of August 31, 1995, expiring
on August 31, 2000, and in favor of Lender, to provide for a new
expiration date of September 30, 2008 and otherwise substantially
conforming with Exhibit "E" attached hereto (the "Amended Warrant"). In
addition, Borrower shall issue a warrant to purchase up to 500,000
shares of Common Stock at the Closing Price of the Common Stock on
July 31, 1999, such warrant to be exerciseable as of the date hereof and
expiring ten years from the date hereof and substantially conforming
with Exhibit E attached hereto (the "Extension Warrant"). The Extension
Warrant and Amended Warrant shall each contain a clause providing that,
from time to time, the exercise price of the warrant shall be adjusted
downward to equal the lowest price of any (i) warrant for common stock
issued by the Company to any employee, investor, or other Person, or
(ii) stock option granted to any officer of the Borrower, provided, that
such price adjustment shall not apply to warrants issued to Capello
Capital Corp. or CEA Montgomery as a result of the capital restructuring
of the Borrower which is the subject of the July 20, 1999 Proxy
Statement of the Borrower, as such restructuring has been approved by
the National Electrical Benefit Fund in its capacity as a shareholder of
the Borrower.
4.1.7.1 The Amended Warrant and Extension Warrant shall be issued
in a transaction not requiring registration under the Securities
Act of 1933, and the Lender shall have received, as a part of the
legal opinions provided for in Section 4.1.6, an opinion to such
effect.
4.1.8 Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of the date
hereof, as if made on and as of such date.
4.1.9 No Default. No Potential Default or Event of Default shall have
occurred and be continuing on the date hereof.
4.1.10 No Litigation. (i) No litigation, investigation or proceeding
before or by any arbitrator or Governmental Authority or Foreign
Governmental Authority shall be pending or threatened against the
Borrower or any Subsidiary of the Borrower or any of the officers or
directors of any thereof or involving the collateral (or any part
thereof) which, in the sole discretion of the Lender, is deemed
material. Nonetheless, Lender acknowledges the existence of the Deere
Park Litigation, the NEC Patent Infringement Litigation and the RAM 302
Patent Interference, and has agreed to the execution hereof
notwithstanding the existence of such litigation. Borrower acknowledges
that Lender may deem these litigation matters material at some future
time with respect to its determination that an Event of Default or
Potential Default has occurred, and the execution hereof by Lender with
the awareness of such litigation shall not be deemed to prejudice Lender
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with respect to any such determination. Specifically, in regard to the
NEC Patent Infringement Litigation and the RAM 302 Patent Interference,
Lender hereby acknowledges the RAM 302 Patent Interference Decision and
deems that such decision is not, in and of itself, material under this
subsection but may, in conjunction with other further developments or
lack of action in regard to other aspects of Borrower or its
Subsidiaries, including future action or inaction regarding Patent
Litigation, be determined by Lender (in its sole discretion) to be
material under this subsection or otherwise.
(ii) no injunction, writ, restraining order or other order of any
nature materially adverse, in the sole discretion of Lender, to the
Borrower and its Subsidiaries or the conduct of its or their
respective business or inconsistent with the due consummation of
transactions contemplated hereby shall have been issued by any
Governmental Authority or Foreign Governmental Authority.
4.1.11 No Change. Since December 31, 1998, there shall have been no
material adverse change, in the sole discretion of the Lender, in the
business, operations, property or financial condition of the Borrower or
its Subsidiaries taken as a whole, in regard to which Lender hereby
acknowledges the RAM 302 Patent Interference Decision and deems that
such decision is not, in and of itself, a material adverse change under
this subsection but may, in conjunction with other further developments
or lack of action in regard to other aspects of Borrower or its
Subsidiaries, including future action or inaction regarding Patent
Litigation, be determined by Lender (in its sole discretion) to
constitute a material adverse change under this subsection.
4.1.12 Additional Documents. The Lender shall have received each
additional document, instrument, legal opinion or item of information
reasonably requested by the Lender, including, without limitation, a
copy of any debt instrument, security agreement or other material
contract to which the Borrower may be a party.
4.1.13 Additional Matters. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with
the Loan and the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Lender, and the Lender shall
have received such other documents, legal opinions and other opinions in
respect of any aspect or consequence of the Loan and the transactions
contemplated hereby as it shall reasonably request.
4.1.14 Borrowing Certificate. The Borrower shall have delivered to
Lender a certificate in substantially the form of Exhibit "B" hereto,
executed by the Responsible Officer, stating that the conditions set
forth in Sections 4.1.5, 4.1.8, 4.1.9, 4.1.10, 4.1.11, 4.1.12, and
4.1.13, above, have been satisfied as of the date hereof.
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4.1.15 Endorsement to Title Policy. The Lender shall have received an
endorsement to its current title insurance policy, in form and substance
acceptable to the Lender, confirming the continuing first priority
status of the Mortgage, which shall be paid for by the Borrower.
4.1.16 Partial Prepayment of Loan. The Borrower shall pay to the
Lender, on the date hereof, such amount as shall be necessary to reduce
the outstanding amounts under the Original Loan Agreement to Seven
Million Dollars ($7,000,000).
5. AFFIRMATIVE COVENANTS.
The Borrower hereby agrees that, so long as any portion of the Note remains
outstanding and unpaid or any other amount is owing to Lender hereunder, the
Borrower shall:
5.1 Financial Statements. Furnish to Lender:
5.1.1 as soon as available, but in any event within one hundred and
twenty (120) days after the end of each fiscal year of the Borrower, a
copy of the audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of operations, changes in stockholders'
equity and changes in cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, by
independent certified public accountants of nationally recognized
standing setting forth in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects when considered in relation to the consolidated
financial statements of the Borrower and its Consolidated Subsidiaries;
and
5.1.2 as soon as available, but in any event not later than sixty (60)
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries, as at the end of each
such quarter and the related unaudited consolidated statements of
operations and cash flows of the Borrower and its Consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
such date, setting forth in each case in comparative form the figures
for the previous year for such statements, certified by a Responsible
Officer (subject to normal year-end audit adjustments); all such
financial statements to be complete and correct in all material respects
and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
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5.2 Certificates; Other Information. Furnish to Lender:
5.2.1 concurrently with the delivery of the financial statements
referred to in Sections 5.1.1 and 5.1.2, above, a certificate of a
Responsible Officer (i) stating that, after inquiry and investigation
and to such officer's Knowledge, the Borrower during such period has
observed, performed or complied with all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and in the Note and the other Loan Documents to be observed, performed
or satisfied by it, and that such officer has obtained no Knowledge of
any Potential Default or Event of Default except as specified in such
certificate; and (ii) setting forth, in detail acceptable to the Lender,
the Borrower's compliance with the financial covenants set forth in
Section 6.13 hereof, including, without limitations, the calculation of
Consolidated Net Worth, the Current Ratio, the Quick Ratio and the Debt
to Equity Ratio, in each case calculated as set forth in Section 6.13.
5.2.2 concurrently with the submission by the Borrower or its
Subsidiaries of any and all filings with the Securities and Exchange
Commission, a copy thereof;
5.2.3 concurrently with the release, copies of any and all press
releases;
5.2.4 promptly, any documents or filings submitted to the Securities
and Exchange Commission relating to the Borrower, its Subsidiaries or
EMS and received or obtained by the Borrower;
5.2.5 immediately upon receipt, notice to Lender of any information
(and copies of any written material related thereto) of any actual or
planned sale, purchase, transfer, gift, exercise, conversion, or pledge
of securities of the Borrower, its Subsidiaries or EMS by any Person or
group who beneficially owns four and one-half percent (4.5%) or more of
the common stock (or other voting securities) of the Borrower, its
Subsidiaries or EMS, respectively;
5.2.6 promptly, copies of any license or similar agreements or
modifications thereof relating to Intellectual Property and entered into
by Borrower or its Subsidiaries;
5.2.7 concurrent with filing with a court or administrative agency,
upon transmission to another Person, or promptly upon receipt, as
applicable, copies of any pleadings, offers of settlement, demand
letters, orders, decisions, or other documents which may materially
affect the development or outcome of any Patent Litigation.
5.2.8 promptly, such additional financial and other information as
Lender may from time to time request in its sole and absolute
discretion.
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5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be,
and cause each Subsidiary to so pay, discharge or satisfy, all its
respective obligations of whatever nature, except when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or such Subsidiary, as the case
may be.
5.4 Conduct of Business and Maintenance of Existence. Continue to (and
cause each of its Subsidiaries to) engage in business of the same general
type as conducted by it as of the date hereof and preserve, renew and keep in
full force and effect its corporate existence and take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business (including, but not limited to, Borrower's
zealous defense of its intellectual property rights which shall include an
active defense and prosecution of any Patent Litigation (including, but not
limited to, the RAM 302 Patent Interference); and comply (and cause each of
its Subsidiaries to comply) with all Contractual Obligations and Requirements
of Law applicable thereto except to the extent that the failure to comply
therewith could not, in the aggregate, have a material adverse effect on the
business, operations, property or financial or other condition of the
Borrower or any such Subsidiary, as applicable.
5.5 Maintenance of Property; Insurance. Keep (and cause each Subsidiary to
keep) all property useful and necessary in its respective business in good
working order and condition; maintain (and cause each Subsidiary to maintain)
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but
including in any event public liability, product liability, and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to Lender,
upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep (and cause
each Subsidiary to keep) proper books of records and account in which full,
true, and correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business
and activities; and permit representatives of Lender to visit and inspect any
of its properties and examine and make abstracts from any of such books and
records at any time during normal business hours and as often as may be
desired, upon reasonable notice, and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries and with its independent certified public accountants, provided
that, with respect to any such inspection of the books and records, the
Borrower shall remove therefrom prior to Lender's review any non-public
material information.
5.7 Notices. Promptly (and in any event within five (5) days) give notice
to Lender:
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5.7.1 of the occurrence of any Potential Default or Event of Default;
5.7.2 of any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority or Foreign Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could
reasonably be likely to have a material adverse effect on the business,
operations, property or financial or other condition of the Borrower or
any of its Subsidiaries;
5.7.3 of any litigation or proceeding affecting the Borrower or any
Subsidiary in which the amount involved is $100,000 or more and not
covered by insurance or in which injunctive or similar relief is sought,
or any material changes in matters as to which the Lender has been
previously notified; and
5.7.4 of a material adverse change in the business, operations,
property or financial or other condition of the Borrower or any of its
Subsidiaries.
Each notice pursuant to this Section 5.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take
with respect thereto. Notwithstanding anything in this Agreement to the
contrary, in no event shall Borrower disclose to the Lender, in its capacity
as a lender, any material, non-public information. Any information so
withheld shall, once public, be promptly delivered to the Lender.
5.8 Further Assurances. From time to time hereafter, the Borrower will
execute and deliver, or will cause to be executed and delivered, such
additional instruments, certificates or documents, and will take all such
actions, as Lender may reasonably request, for the purposes of implementing
or effectuating the provisions of this Agreement, the Security Documents, and
the Note, or of more fully perfecting or renewing the Lender's rights with
respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by the Borrower) pursuant hereto or thereto. Upon
the exercise of any power, right, privilege or remedy pursuant to this
Agreement or the Security Documents which requires any consent, approval,
recording, qualification, or authorization of any Governmental Authority or
Foreign Governmental Authority, the Borrower will execute and deliver, or
will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that Lender may be required to
obtain from the Borrower for such governmental consent, approval, recording,
qualification or authorization.
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6. NEGATIVE COVENANTS.
The Borrower hereby agrees that, so long as any portion of the Note remains
outstanding and unpaid or any other amount is owing to Lender hereunder or
under any of the Loan Documents, the Borrower shall not (unless expressly
approved in writing by the Lender, in its sole and absolute discretion),
directly or indirectly:
6.1 Limitation on Indebtedness. Create, incur, assume or suffer to exist
(or permit any Subsidiary to create, incur, assume or suffer to exist) any
Indebtedness in excess of $100,000 in the aggregate, except:
6.1.1 Indebtedness in respect of the Loan, the Note, and other
obligations of the Borrower under the Loan Documents and such other
Indebtedness as the Lender shall approve from time to time (which may
include an unsecured promissory note issued to Dimensional Fund Advisors
("DFA") in connection with the pending capital restructuring of the
Borrower described in the July 20, 1999 Proxy Statement of the Borrower
as expressly approved by the National Electrical Benefit Fund in its
capacity as a shareholder of the Borrower).
6.2 Limitation on Liens. Create, incur, assume or suffer to exist (or
permit any Subsidiary to create, incur, assume or suffer to exist) any Lien
upon any of its (or a Subsidiary's) property, assets or revenues, whether now
owned or hereafter acquired, except for:
6.2.1 Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or such
Subsidiary, as the case may be, in conformity with GAAP;
6.2.2 carriers', warehousemen's, mechanics', materialmen's,
repairmen's, or other like Liens arising in the ordinary course of
business and not overdue for a period of more than sixty (60) days or
which are being contested in good faith by appropriate proceedings in a
manner which will not jeopardize or diminish the interest of the
Lender's in any of the Collateral;
6.2.3 pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
6.2.4 deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
6.2.5 easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any such Subsidiary;
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6.2.6 Liens in favor of the Lender created pursuant to the Security
Documents; and
6.2.7 Such other Liens as the Lender shall approve from time to time.
6.3 Limitation on Contingent Obligation. Create, incur, assume or suffer to
exist (or permit any Subsidiary to create, incur, assume or suffer to exist)
any Contingent Obligation (with the exception of Borrower's guarantee of
EMS's accounts payable in EMS's ordinary course of business).
6.4 Limitations on Fundamental Changes. Enter into (or permit any
Subsidiary to enter into) any transaction of acquisition or merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or any material part of its property,
business or assets (other than in the ordinary course of its business), or
make any material change in the present method of conducting business.
6.5 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of, any of its property, business or assets (including,
without limitation, intellectual property, receivables and leasehold
interests) (or permit any Subsidiary to do any of the foregoing) whether now
owned or hereafter acquired whose value exceeds $100,000 in the aggregate
except:
6.5.1 the sale of inventory in the ordinary course of business; and
6.5.2 the sale or other disposition of any property in the ordinary
course of business;
provided, that in the event the Borrower desires to enter into a
sale/leaseback or similar transaction with respect to its plant located in
Colorado Springs, Colorado, the Lender hereby agrees to review the terms of
such proposed transaction in good faith and provide its prompt approval or
disapproval thereof, it being understood that any such approval or
disapproval shall be made in Lender's sole but good faith discretion, and any
approval thereof may require a prepayment of the Loan in the amount of the
proceeds of such transaction received by Borrower.
6.6 Limitation on Negative Pledge Clauses. Enter into (or permit any
Subsidiary to enter into) any agreement with any Person other than the Lender
pursuant hereto which prohibits or limits the ability of the Borrower or any
of its Subsidiaries to create, incur, assume or suffer to exist any Lien in
favor of the Lender, upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
6.7 Limitation on Investments, Loans and Advances. The Borrower will not,
and will not permit any of its Subsidiaries to, make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of, or make any other investment in,
any Person, except:
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6.7.1 loans, advances and extensions of credit to employees of the
Borrower or its Subsidiaries for travel, entertainment and relocation
expenses (including, without limitation, bridge loans associated
therewith) incurred in the ordinary course of business;
6.7.2 investments in Cash Equivalents;
6.7.3 extensions of trade credit in the ordinary course of business;
6.7.4 other investments, loans, advances, extensions of credit and
capital contributions in an aggregate amount not to exceed $100,000 at
any time.
6.8 Limitation on Prepayments. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any optional payment on account
of any principal of, interest on, or premium payable in connection with the
optional prepayment, redemption or retirement of any of its Indebtedness,
except for the Loan.
6.9 No Amendments. The Borrower will not (a) permit the modification or
waiver of or any change in any provisions of any agreement relating to
Indebtedness or license agreements or similar agreements relating to
Intellectual Property of the Company or any of its Subsidiaries if such
modification, waiver or change could have a material adverse effect on the
ability of the Company or any such Subsidiary to perform its obligations
under this Agreement, the Notes, or the Loan Documents (such effect to be
determined by the Lender in its sole discretion),or (b) fail to give prior
written notice to Lender of each proposed modification, waiver or change to
any of the agreements referred to in clause (a) above.
6.10 Limitation on Stock Issuance. Unless otherwise expressly agreed to by
the Lender, the Borrower will not, nor will it permit its Subsidiaries to,
issue any additional shares of equity securities except:
(a) in the case of the Borrower,
(i) to Lender in connection with this Agreement;
(ii) to any Person pursuant to a warrant, option or convertible
security issued by Borrower to that Person prior to July 31,
1999;
(iii) pursuant to a Plan established prior to July 31, 1999 and as
described in the Borrower's latest 10-K or 10-Q filed with
the Securities and Exchange Commission prior to the date
hereof; and
(b) in the case of the Subsidiaries of the Company, to their respective
parents or the Borrower provided that all such securities are pledged to
the Lender as collateral for the Obligations.
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6.11 Corporate Documents. Amend its Certificate of Incorporation (except to
increase the number of authorized shares of Common Stock), without the prior
written consent of the Lender.
6.12 Compliance with ERISA. (a) Terminate any Plan so as to result in any
material liability to Lender, (b) engage in any "prohibited transaction", as
defined in Section 4975 of the Code, (c) incur or suffer to exist any
material "accumulated funding deficiency", as defined in Section 302 of
ERISA, whether or not waived involving any Plan, or (d) allow or suffer to
exist any event or condition, which presents a material risk of incurring a
material liability to Lender by reason of termination of any such Plan.
6.13 Financing Covenants.
6.13.1 Maintenance of Net Worth. Permit the Borrower's Consolidated
Net Worth at any time to be less than Seven Million Dollars
($7,000,000).
6.13.2 Maintenance of Working Capital Ratio. Permit the ratio of
Consolidated Working Capital Assets to Consolidated Current Liabilities
to be less than 1.5 to 1.0.
6.13.3 Maintenance of Debt to Equity Ratio. Permit the ratio of long-
term Indebtedness of the Borrower to the Consolidated Net Worth of the
Borrower to be more than 1.0 to 1.0.
7. EVENTS OF DEFAULT. Upon the occurrence of the following events (each
such event being referred to herein as an "Event of Default"):
7.1 The Borrower shall fail to pay any principal, interest or other amount
payable hereunder or under the other Loan Documents when due, and such
default shall continue for a period of five (5) days from the date Borrower
shall have received notice of such default; or
7.2 Any representation or warranty made or deemed made by the Borrower
herein or in the other Loan Documents or which is contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement or any such other Loan Document
shall prove to be materially and adversely incorrect; or
7.3 The Borrower shall materially default in observance or performance of
any covenants or agreements contained in Section 6 hereof; or
7.4 The Borrower shall fail to provide Lender notice as required by Sections
5.2.5 or 5.2.7 hereof; or
7.5 The Borrower shall materially default in the observance or performance
of any other agreement contained in this Agreement or any of the other Loan
Documents, and such default shall continue unremedied for a period of thirty
(30) days after written notice thereof from Lender; or
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7.6 (i) Any of the Security Documents shall cease, for any reason, to be in
full force and effect, or the Borrower shall so assert, or (ii) any of the
Liens purported to be created by the Security Documents shall cease to be (or
shall not have been from the date hereof) a valid and perfected first
priority enforceable Lien; or
7.7 The Borrower or any of its Subsidiaries shall (i) default in any payment
of principal of or interest of any Indebtedness (other than the Note), or in
the payment of any Contingent Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness or Contingent Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition relating to
any such Indebtedness or Contingent Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Contingent Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Contingent
Obligation to become payable; or
7.8 (i) Any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency", as defined in Section 302 of
ERISA, whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Lender, likely to result in termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Lender is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan, or (vi) any other
event or condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could subject the Borrower
or any of its Subsidiaries to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial or other condition of the Borrower or any of its Subsidiaries; or
7.9 The termination, liquidation or dissolution or the commencement of
proceedings toward the liquidation or dissolution of Borrower or any
Subsidiary (other than to the extent expressly provided for in Section 8.21)
thereof; or
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7.10 (i) Borrower or any Subsidiary thereof shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its respective debts, or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial part
of its respective assets, or Borrower shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against Borrower
or any Subsidiary thereof any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment, or (B) remains
undismissed, undischarged or unbonded for a period of sixty (60) days; or
(iii) there shall be commenced against Borrower or any Subsidiary thereof any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its respective assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or (iv)
Borrower or any Subsidiary thereof shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii) or (iii) above; or
7.11 One or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving in the aggregate a liability (not paid
or fully covered by insurance) of $1,000,000 or more and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 20 days from the entry thereof; or
7.12 The Aggregate Actual/Potential Litigation Liabilities shall, at any
time, exceed Three Million Dollars ($3,000,000). For purposes hereof, the
term "Aggregate Actual/Potential Litigation Liabilities" shall mean the sum
of, without duplication, (i) the aggregate of all unpaid judgments, awards or
decrees entered against the Borrower to the extent not covered by insurance,
plus (ii) the amount the Lender has determined, in its sole and absolute
discretion, to be the potential liability of the Borrower under any pending
or threatened suit, action, investigation, inquiry or other proceeding
(including, without limitation, the NEC Patent Infringement Litigation, any
other Patent Litigation, the RAM 302 Interference proceeding or the Deere
Park Litigation); plus (iii) the amount of any unpaid settlement payable by
the Borrower with respect to any actual or threatened suit, action,
investigation, inquiry or other proceeding, then, and in any such event
(A) if such event is an Event of Default specified in Section 7.9 or 7.10
above with respect to the Borrower (any such event, an "Automatic
Acceleration Event"), automatically the Loan hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement, the Note and the
other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, Lender may, by written notice to
the Borrower declare the Loan hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement, the Note and the other Loan
Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above in
this Section 7, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
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8. MISCELLANEOUS.
8.1 Entire Agreement. This Agreement taken together with all of the other
Loan Documents and all certificates and other documents delivered by Borrower
to Lender, embodies the entire agreement with respect to the subject matter
hereof, and supersedes or incorporates all prior negotiations or agreements
written and oral.
8.2 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the parties hereto had signed the
same document. All such counterparts shall be deemed to constitute one
instrument.
8.3 Governing Law. This Agreement and the other Loan Documents are to be
governed by, and construed and enforced in accordance with the laws of the
State of Colorado.
8.4 Severability. If any of the terms and provisions specified herein or in
the other Loan Documents is held by a court of law to be in violation of any
applicable law, state or federal ordinance, statute, law, administrative or
judicial decision, or public policy, and if a court should declare such term
or provision to be illegal, invalid, unlawful, void, voidable, or
unenforceable as written, then such provision shall be given full force and
effect to the fullest possible extent that it is legal, valid and
enforceable, and the remainder of the terms and provisions herein shall be
construed as if such illegal, invalid, unlawful, void, voidable or
unenforceable term or provision was not contained herein, and the rights,
obligations and interests of Borrower and Lender under the remainder of this
Agreement or of the other Loan Documents, as applicable, shall continue in
full force and effect.
8.5 Successors and Assigns. All covenants and agreements herein shall bind
the respective successors and assigns of Borrower and Lender, provided that
Borrower shall not be permitted to transfer or assign its rights and
obligations hereunder.
8.6 Time of the Essence. Time is of the essence with regard to Borrower's
performance under the terms and provisions of this Agreement, the other Loan
Documents and any amendment, modification, restatement, or revision hereof or
thereof, subject, however, to the applicable grace periods, if any, set forth
in the Loan Documents. No extension of time for the payment of the Loan or
any installment thereof made by agreement with any Person now or hereafter
liable for payment of the Loan shall operate to release, discharge, modify,
change or affect the original liability of Borrower under this Agreement,
either in whole or in part.
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8.7 Notice. Any notice, demand, consent, authorization, request, approval
or other communication given or required hereunder shall contain a clear and
concise statement of the purpose of such notice, shall reference this
Agreement and shall be effective and valid only if in writing, signed by the
party giving such notice and delivered in person by a commercial messenger
service regularly retaining receipts for such delivery, a reputable overnight
express courier or delivery service from whom a receipt is obtained, by
facsimile transmission (to be followed immediately by an original sent by one
of the other means enumerated herein), or, if mailed, sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
To the Lender:
National Electrical Benefit Fund
1125 15th Street, N.W., Suite 1202
Washington, D.C. 20005
Attention: Mr. Edwin D. Hill, Trustee
Facsimile No. (202) 728-6009
With a mandatory copy to:
Counts & Kanne, Chartered
1125 15th Street, N.W., Suite 444
Washington, D.C. 20005
Attention: Jeffrey J. Kanne, Esq.
Facsimile No. (202) 223-3868
To Borrower:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
Facsimile No. (719) 481-9294
All such notices shall be considered given on the date when delivered
(refusal of delivery shall constitute delivery), or if mailed, upon the date
of receipt of such notice as evidenced by the return receipt with respect to
such notice received by the sender thereof, addressed to the parties to be
notified at the addresses set forth above or to any other addresses as any
party may hereafter specify to the others by like notice.
8.8 Successive Remedies. No power or remedy herein conferred is exclusive
of or shall prejudice any other power or remedy of Lender given by law,
equity, the terms of any of the Loan Documents or otherwise. Each such power
or remedy may be exercised by Lender from time to time as often as they deem
necessary.
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8.9 No Waiver; Cumulative Remedies. No delay by Lender in exercising any
right, power or privilege under this Agreement or any of the other Loan
Documents and no failure by Lender to insist, or election by Lender not to
insist, upon the strict performance of any of the terms, provisions, or
conditions of this Agreement or any of the other Loan Documents shall be
deemed to be a waiver of the same or any other term, provision, or condition
thereof and Lender shall have the right at any time thereafter to insist upon
strict performance of any and all of the same. If Lender advances any
portion of the Loan in the absence of strict compliance with any or all of
the conditions of Lender's obligations to make such advance, the same shall
be deemed to have been made pursuant to this Agreement and not to be a
modification hereof and Lender reserves the right to insist upon strict
compliance with respect to any and all future Loans. The rights, remedies,
powers and privileges of Lender provided herein or in each of the other Loan
Documents shall be cumulative and not exclusive of any rights, remedies,
powers, or privileges provided in any of the other Loan Documents or provided
by law.
8.10 Cross-Default. Any Event of Default under this Agreement shall be
deemed to be an Event of Default under each of the other Loan Documents,
entitling Lender to exercise any or all remedies available to Lender under
the terms of any or all Loan Documents.
8.11 Inconsistencies with Loan Documents. In the event of any conflict
between this Agreement and the provisions of any of the other Loan Documents,
the provisions of this Agreement shall control; provided, however, that any
provision of any other Loan Document which imposes additional burdens on
Borrower or restricts the rights of Borrower or gives Lender additional
rights or remedies shall not be deemed to be in conflict or inconsistent with
this Agreement and shall be given full force and effect.
8.12 Survival. All of the representations, warranties, terms, covenants,
agreements and conditions contained in this Agreement shall specifically
survive the execution and delivery of this Agreement and the other Loan
Documents and the advance of the Loan and shall, unless otherwise expressly
provided, continue in full force and effect until the Loan, together with
interest thereon and all other costs, charges and other sums payable
hereunder or thereunder, are paid in full.
8.13 Negotiated Document. Lender and Borrower acknowledge that the
provisions and the language of this Agreement and the other Loan Documents
have been negotiated by commercially sophisticated parties, and agree that no
provision of this Agreement or any other Loan Document shall be construed
against Lender or Borrower by reason of Lender or Borrower having drafted
such provision, this Agreement or any other Loan Document.
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8.14 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse Lender for all of its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the Note and any of the other Loan Documents, including, without
limitation, fees and disbursements of counsel to the Lender, and (b) to pay,
indemnify, and hold Lender harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
by the Borrower in paying, stamp, excise, and other taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under
or in respect of, the Agreement, the Note and any such other documents, and
(c) to pay, indemnify, and hold Lender harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the enforcement, performance and administration of
this Agreement, the Note and any such other documents (all the foregoing,
collectively, the "indemnified liabilities"), provided, that the Borrower
shall have no obligation hereunder to a Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of
Lender. The agreements in this Section 8.14 shall survive the repayment of
the Note and all other amounts payable hereunder.
8.15 Action, Consents and Approvals. Borrower acknowledges and agrees that,
except as expressly stated to the contrary in the Agreement or any other Loan
Document, any consent, approval, determination (including without limitation
any determination of whether a document, action or state of facts is
satisfactory to Lender), or action required or requested of Lender pursuant
to the Agreement or any other Loan Document, may be granted or withheld by
Lender, as the case may be, in its sole discretion.
8.16 Amendments, Modifications, etc.. Neither the Agreement nor any of the
terms or conditions hereof may be amended, supplemented, or otherwise
modified except by a written instrument signed by Borrower and Lender
expressly referencing the terms and conditions to be amended or modified.
8.17 Waivers. BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,
AND, ON THE ADVICE OF SEPARATE COUNSEL OF BORROWER, UNCONDITIONALLY WAIVES
THE FOLLOWING WITH RESPECT TO ANY ACTION BROUGHT UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS:
(a) PERSONAL SERVICE OF ANY AND ALL PROCESS on Borrower, and consents
that all such service of process be made by certified or registered mail
directed to Borrower at the address set forth in this Agreement and
agrees that such service shall be deemed sufficient upon receipt by
Borrower; provided that nothing contained herein shall affect the right
of Lender to serve legal process in any other manner permitted by law;
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(b) ANY OBJECTION TO JURISDICTION OR VENUE of any action instituted
hereunder or under any of the other Loan Documents and agrees not to
attempt to transfer any action instituted hereunder or under any of the
other Loan Documents and agrees not to assert any defense based on lack
of jurisdiction or venue; provided that nothing contained herein shall
affect the right of Lender to bring any action or proceeding against
Borrower in the courts of any other jurisdiction;
(c) THE RIGHT TO TRIAL BY JURY as Borrower acknowledges and agrees that
any controversy which may arise under the Agreement or the other Loan
Documents or the relationship established hereby would be based upon
difficult and complex issues, and, therefore, Borrower agrees that any
lawsuit arising out of any such controversy will be tried by a court of
competent jurisdiction by a judge sitting without a jury.
8.18 Captions and References. The captions of this Agreement are for
convenience and reference only and in no way define, describe, extend, or
limit the scope, meaning, or intent of the Agreement. Unless otherwise
expressly provided, any reference in the Agreement to any section,
subsection, paragraph, exhibit or schedule is a reference to a section,
subsection, paragraph, exhibit or schedule of the Agreement.
8.19 Gender and Plural Usages. Whenever the context may require, any
pronoun used in the Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular forms of nouns, pronouns and verbs
shall include the plural and vice versa.
8.20 Termination of Prior Loan Facility. It is hereby acknowledged and
agreed that the Loan Agreement dated as of March 2, 1995 between the Borrower
and the Lender, together with each of the loan documents executed in
connection therewith (with the exception of the Patent Security Agreement of
March 2, 1995 by and between Borrower and Lender which Borrower hereby
acknowledges and agrees shall continue in full force and effect until
replaced by Lender's perfected and first priority security interest in all
Borrower's patents secured thereby and references in such Patent Security
Agreement to the "Loan Agreement" shall be deemed to refer to this Amended
and Restated Loan Agreement), shall be deemed terminated and of no further
force or effect as of the Closing Date.
8.21 Issues re EMS. Notwithstanding anything herein to the contrary,
nothing in this Agreement or the other Loan Documents shall be deemed to
(i) prohibit the Borrower from selling all or a portion of the stock of EMS
provided that any such sale shall be reasonably approved by the Lender in
writing at least sixty (60) Business Days prior to such sale and the proceeds
thereof shall be subject to the provisions of Section 2.5.2 hereof;
(ii) prohibit the Borrower from transferring certain assets to EMS provided
that any such transfer shall be reasonably approved by the Lender in writing,
any assets so transferred shall continue to be subject to first priority
Liens held by the Lender and Borrower and EMS shall have executed and
delivered to the Lender such documents consistent with the foregoing as
Lender shall reasonably request; or (iii) prohibit the liquidation of EMS
provided that any such liquidation shall be approved by Lender in writing at
least sixty (60) Business Days prior to such liquidation. Such Lender
approval to be based upon its reasonable determination that any such
liquidation shall not adversely affect the value of the Collateral taken as a
whole or Lender's first priority Liens therein.
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8.22 Release of Security.
8.22.1 Racom Stock. Promptly following the consummation of the loan
restructuring contemplated hereby, the Lender will take such steps as
shall be reasonably necessary to release its security interests in the
stock of Racom, including a termination of the Racom Stock Pledge
Agreement and return of the stock certificates held by the Lender
pursuant thereto.
8.22.2 Release of Accounts Receivable. In the event that the Borrower
shall obtain a working capital facility from a third-party lender, which
lender requires a security interest to be granted with respect to the
Released Receivables (as defined below), upon reasonable written notice
to the Lender, the Lender shall take such steps as shall be reasonably
necessary to release from the Lien of the Security Agreement all
Accounts of the Borrower other than Accounts relating to licensing or
royalty fees and payments payable to the Borrower (such released
Accounts, the "Released Receivables").
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the
day and year first above written.
BORROWER:
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
--------------------
L. David Sikes
Chief Executive Officer
and Chairman of the Board of Directors
9:15 a.m., 06 August 1999
LENDER:
NATIONAL ELECTRICAL BENEFIT FUND
By: /S/ Edwin D. Hill
-------------------
Edwin D. Hill
Trustee
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EXHIBIT "A"
FIRST ALLONGE
This First Allonge (this "Allonge") is dated as of XXXXX XX, 1999 and is made
by and between RAMTRON INTERNATIONAL CORPORATION (the "Maker") and the NATIONAL
ELECTRICAL BENEFIT FUND (the "Lender).
W I T N E S S E T H:
WHEREAS. Maker has outstanding to the Lender a loan in the principal amount
of Seven Million Dollars ($7,000,000) as of the date hereof which is
evidenced by that certain promissory note of Maker dated August 31, 1995
(such promissory note, the "Note"); and
WHEREAS. Maker has requested that Lender extend certain terms and provisions
of the Note and Lender has agreed to do so in accordance with that certain
Amended and Restated Loan Agreement dated as of the date hereof by and
between the Maker and Lender (the "Loan Agreement") and this Allonge.
NOW THEREFORE, in consideration of the premises hereof and for other good and
valuable consideration the receipt and sufficiency of which are hereby
established, the Maker and the Lender hereby agree as follows:
1. Establishment of Outstanding Principal Amount. It is hereby irrevocably
established that the outstanding principal amount of the Note as of the date
hereof is Seven Million Dollars ($7,000,000).
2. No Other Amendments. Other than as expressly modified hereby and in the
Loan Agreement, the Note shall continue to be in full force and effect.
3. Attachment to Note. Upon its execution by the Maker and the Lender, this
Allonge shall be attached to the Note and be deemed to be a part hereof.
4. Amendments to the Note. The Note shall be amended as follows:
(a) The first line of the Note listing the amount of "$12,000,000" shall
be deleted and replaced with "$7,000,000."
(b) The ninth and tenth lines of Section 1 of the Note: "below)) the
maximum principal sum of TWELVE MILLION DOLLARS ($12,000,000), or so
much thereof as may be advanced pursuant to "shall be deleted and
replaced with "below )) the maximum principal sum of SEVEN MILLION
DOLLARS ($7,000,000), or so much thereof as may be advanced pursuant
to."
(c) The phrase "Section 2.13 of" contained in the twelfth line of
Section 1 of the Note shall be deleted.
(d) The fourth line of Subsection 2(a) of the Note: "provided in Section
2.5 of the Loan Agreement" shall be deleted and replaced with
"provided in Section 2.3 of the Loan Agreement."
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(e) The third line of Subsection 2(b) of the Note: "other Loan
Documents, at the rate provided for in Section 2.9 of" shall be
deleted and replaced with "other Loan Documents, at the rate
provided for in Section 2.7 of."
(f) The fifth line of Subsection 2(b) of the Note: "payment shall bear
interest as provided in Section 2.9 of the Loan" shall be deleted
and replaced with "payment shall bear interest as provided in
Section 2.7 of the Loan."
(g) The address listed for notices to the "Payee" in Section 17: "If to
Payee: National Electrical Benefit Fund 1125 Fifteenth Street, N.W.
Room 1202 Washington, D.C. 20005 Attention: Jack F. Moore, Trustee
Facsimile No. (202) 728-7654" shall be deleted and replaced with "If
to Payee: National Electrical Benefit Fund 1125 Fifteenth Street,
N.W. Room 1202 Washington, D.C. 20005 Attention: Edwin D. Hill,
Trustee Facsimile No. (202) 728-6009."
IN WITNESS WHEREOF, the Maker and the Lender have executed this Allonge as of
the date set forth above.
WITNESS: MAKER:
RAMTRON INTERNATIONAL CORPORATION
- ------------------- By: -----------------------------
L. David Sikes
Chief Executive Officer
and Chairman of the Board
of Directors
LENDER:
NATIONAL ELECTRICAL BENEFIT FUND
By: ------------------------
Edwin D. Hill
Trustee
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EXHIBIT "B"
[Form of Borrowing Certificate]
BORROWING CERTIFICATE
Pursuant to subsection 4.1.3 of the Amended and Restated Loan Agreement dated
as of XXXXXXX XX, 1999 (as amended, supplemented, restated, or otherwise
modified from time to time, the "Loan Agreement") (terms defined therein
being used herein as so defined), between RAMTRON INTERNATIONAL CORPORATION
(the "Borrower") and the NATIONAL ELECTRICAL BENEFIT FUND (the "Lender"), the
undersigned in such person's capacity as Chief Executive Officer of the
Borrower, hereby certifies as follows:
1. Representations and Warranties. The representations and warranties of
the Borrower set forth in the Loan Agreement and any other Loan Document to
which it is a party or which are contained in any certificate, document or
financial or other statement furnished pursuant to or in connection with the
Loan Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof;
2. No Default. No Default or Event of Default has occurred and is
continuing as of the date hereof after giving effect to the Loan requested to
be made on the date hereof;
3. Conditions Precedent. The conditions precedent set forth in subsections
4.1, 4.2, and 4.3 of the Loan Agreement have been satisfied; and
4. Incumbency. Richard L. Mohr is and at all time since July 1, 1994, has
been the duly elected and qualified Executive Vice President and Chief
Financial Officer of the Borrower and the signature set forth on the
signature line for such officer below is such officer's true and genuine
signature;
and the undersigned Executive Vice President and Chief Financial Officer of
the Borrower hereby certifies as follows:
5. Corporate Existence. There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Borrower or any of its
Subsidiaries, nor has any other event occurred affecting or threatening the
corporate existence of the Borrower or any of its Subsidiaries taken as a
whole;
6. Good Standing. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware;
7. Corporate Documents. Attached hereto as Exhibit "A" is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower on XXXXXXXXX, 1999; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in full force and
effect since their adoption to and including the date hereof and are now in
full force and effect, and such resolutions are the only corporate
proceedings of the Borrower now in force relating to or affecting the matters
referred to therein; attached hereto as Exhibit "B" is a true and complete
copy of the Certificate of Incorporation of the Borrower as in effect at all
times since XXXXXXXXX, 19XX, to and including the date hereof; and
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8. Incumbency. The following persons are now duly elected and qualified
officers of the Borrower, holding the offices indicated next to their
respective names below, and such officers have held such offices with the
Borrower at all times since XXXXXXXXX, 19XX, to and including the date
hereof, and the signatures appearing opposite their respective names below
are the true and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf of the Borrower
the Loan Agreement, the Note, the Security Documents and the other Loan
Documents to which the Borrower is a party and any certificate or other
document to be delivered by the Borrower pursuant to the Loan Agreement or
any other Loan Document:
Name, Office, Signature
- --------------------, Chief Executive Officer, --------------------
- --------------------, President, ---------------------
- --------------------, Executive Vice President, -------------------
IN WITNESS WHEREOF, the undersigned have hereunto set our names.
RAMTRON INTERNATIONAL RAMTRON INTERNATIONAL
CORPORATION CORPORATION
- ---------------------------- ---------------------------
[Name] L. David Sikes
Title: Executive Vice President Title: Chief Executive Officer
and Chief Financial Officer and Chairman of the Board
of Directors
Date: XXXXXXXXX, 19XX
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EXHIBIT "C"
ACKNOWLEDGMENT
As of XXXXXXXXX, 1999, the undersigned Ramtron International Corporation
("Borrower") and the National Electrical Benefit Fund (the "Lender") being
the parties to the original Loan Agreement dated as of August 31, 1995 (the
"Original Loan Agreement"), hereby acknowledge and agree that the Original
Loan Agreement has been duly amended and restated in full by the Amended and
Restated Loan Agreement dated as of July 31, 1999 (as amended, supplemented,
restated, or otherwise modified from time to time, the "Restated Loan
Agreement") by and between Borrower and Lender and agree that from and after
the date hereof, all references in the Loan Documents or to the Loan
Agreement (as defined in the Restated Loan Agreement) shall be deemed to be,
and shall be, references to the Restated Loan Agreement, and each reference
to the Note shall be deemed a reference to the Note as defined in the
Restated Loan Agreement.
RAMTRON INTERNATIONAL CORPORATION
By: ----------------------------
L. David Sikes
Chief Executive Officer
and Chairman of the Board of Directors
NATIONAL ELECTRICAL BENEFIT FUND
By:-----------------------------
Edwin D. Hill
Trustee
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EXHIBIT "D"
Form of Amended Warrant
RAMTRON INTERNATIONAL CORPORATION
Warrant to Purchase Shares
of Common Stock
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"),
hereby certifies that, for value received and the cancellation of that certain
warrant dated August 31, 1995 for 4,028,485 shares of Common Stock, the
NATIONAL ELECTRICAL BENEFIT FUND or its assigns (the "Holder") is entitled to
purchase from the Company, during the period commencing on the date hereof and
ending at 5:00 p.m. Eastern Time on the Expiration Date (as hereinafter
defined) (the "Warrant Exercise Period"), subject to the terms and conditions
hereinafter set forth, the number of shares of the Common Stock, par value
$0.01, of the Company determined in accordance with Section 1.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Loan Agreement by and between the Holder and
the Company dated effective as of XXXXXXXX, 1999 (the "Loan Agreement").
1. Number of Warrant Shares. Subject to adjustment as provided in Section 4,
the number of shares of Common Stock for which this Warrant may, at any given
time during the Warrant Exercise Period, be exercised (such total number of
underlying unissued shares as may, from time to time, be issuable upon the
exercise hereof being hereinafter referred to as the "Warrant Shares") shall
be 4,028,485.
2. Exercise Price. This Warrant is exercisable for Warrant Shares at a price
per share (the "Warrant Price") equal to $1.00.
3. Expiration Date. Except as otherwise provided herein, this Warrant shall
expire on the earlier to occur of (a) the date on which this Warrant is fully
exercised and (b) 5:00 p.m. Eastern Time, on September 30, 2008, or, if such
day is not a Business Day, then at 5:00 p.m. Eastern Time on the next
succeeding Business Day (the "Expiration Date").
4. Procedure for Exercise. Subject to Section 5, the Holder may exercise
this Warrant by presenting and surrendering it to the Company at the office
specified in Section 12 between the hours of 9:00 a.m. and 5:00 p.m. on any
Business Day during the Warrant Exercise Period, accompanied by (a) payment in
cash of the aggregate Warrant Price of the Warrant Shares to be purchased and
(b) a subscription form duly executed by the Holder in substantially the form
attached hereto as Annex A. The number of Warrant Shares shall be reduced
immediately upon any partial exercise by the number of shares so purchased,
and a new Warrant, of like tenor and effect herewith, for the remaining
Warrant Shares shall be issued to the Holder.
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5. Conditions to Exercise. It shall be a condition precedent to any exercise
of this Warrant to purchase shares of Common Stock that the Holder shall have
obtained, prior to such exercise, all regulatory approvals, if any, required
to lawfully acquire such shares.
6. Covenants. The Company covenants and agrees with the Holder as follows:
(a) All Warrant Shares shall, upon delivery to the Holder, be duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock.
(b) The Company shall pay when due and payable any and all federal and
state original issue stock taxes, if any, that may be payable in
respect of the issuance of Warrant Shares upon whole or partial
exercise of this Warrant.
(c) The Company shall at all times on or after the issuance of this
Warrant and prior to the expiration of the Warrant Exercise Period
reserve and keep available a number of authorized but unissued shares
of Common Stock sufficient to permit the full exercise of this
Warrant. If at any time the number of authorized but unissued shares
of Common Stock is not sufficient for this purpose, the Company shall
take such corporate action as may be necessary to increase the
authorized but unissued shares of Common Stock to a number that is
sufficient for this purpose.
(d) The Company shall cooperate fully with the Holder in obtaining any
regulatory approvals referred to in Section 5 hereof.
7. Loss, Theft, Destruction or Mutilation. Upon delivery by the Holder to
the Company of evidence reasonably satisfactory to the Company of the
ownership and loss, theft, destruction or mutilation of this Warrant, and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company, and (b) in the case of mutilation, of this
Warrant for cancellation, the Company shall execute and deliver, in lieu
thereof, a new Warrant of like tenor and effect herewith; provided, however,
that the Company may require as an additional condition to issuance of any
such substitute Warrant payment of a sum sufficient to reimburse it for any
stamp tax, other governmental charge or out-of-pocket expense connected
therewith.
8. Rights of Holder.
(a) The Holder of this Warrant or of any portion thereof shall not,
solely as such, be entitled to vote or receive dividends or be deemed
the holder of Common Stock for any purpose nor shall anything
contained in this Warrant be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon a merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until this Warrant shall have
been exercised and the Warrant Shares shall have become deliverable.
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(b) Regardless of the date of issue and delivery of certificates
representing such shares, the Holder shall for all purposes be deemed
to have become the holder of record of all shares purchased upon
exercise of this Warrant as of the close of business on the date on
which the Company has received, with respect to such purchase,
(a) this Warrant, (b) the Warrant Price and (c) a duly executed
subscription form.
9. Transfer of Warrant. The Company shall, upon surrender to it of this
Warrant, accompanied by one or more duly executed certificates of transfer in
substantially the form attached hereto as Annex B, execute and deliver in lieu
hereof (a) to and in the name of each assignee or transferee, a new Warrant,
of like tenor and effect herewith, representing the right to purchase, on the
same terms and conditions as set forth herein, such number of the Warrant
Shares as shall have been so assigned or transferred; and (b) to the Holder,
in case the right to purchase some portion of the Warrant Shares shall have
been retained by the Holder, a new Warrant, of like tenor and effect herewith,
representing the right to purchase, on the same terms and conditions as set
forth herein, such number of Warrant Shares.
10. Disposition of Shares.
(a) Each Holder understands and agrees that this Warrant and the Warrant
Shares have not been registered under either the Securities Act of
1933, as amended (the "Act") or any applicable state securities laws
(the "State Acts") and may not lawfully be sold or otherwise disposed
of for value except upon registration of such transfer in accordance
with the securities registration requirements of the Act and any
applicable State Acts, or pursuant to an exemption from such
registration requirements.
(b) Any certificates evidencing shares purchased upon exercise hereof
shall be imprinted with a conspicuous legend in substantially the
following form:
The securities represented by this certificate have not been registered
under either the Securities Act of 1933, as amended (the "Act") or
applicable state securities laws (the "State Acts") and shall not be sold
or otherwise disposed of for value by the Holder except upon registration
of such sale or disposition in accordance with the securities
registration requirements of the Act and any applicable State Acts, or
pursuant to exemption from such registration requirements.
(c) In connection with the exercise of this Warrant and the issuance of
the Warrant Shares, and upon the request of Holder, Borrower shall
register under the Securities Act of 1933, as amended, within a
reasonable period of time after the date of such exercise and
issuance, the resale of the Warrant Shares issued pursuant to such
exercise.
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11. Adjustment of Purchase Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of the Warrants and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company at any
time while the Warrants remain outstanding and unexpired shall
consolidate with or merge into any other corporation, or sell all or
substantially all of its assets to another corporation, or reclassify
or in any manner change the securities then purchasable upon the
exercise of the Warrants (any of which shall constitute a
"Reorganization"), then lawful and adequate provision shall be made
whereby this Warrant certificate shall thereafter evidence the right
to purchase such number and kind of securities and other property as
would have been issuable or distributable on account of such
Reorganization upon or with respect to the securities which were
purchasable or would have become purchasable under the Warrants
immediately prior to such Reorganization. The Company shall not
effect any such Reorganization unless prior to or simultaneously with
the consummation thereof the successor corporation (if other than the
Company) resulting from such Reorganization shall assume by written
instrument executed and mailed or delivered to the Holder, at the
last address of the Holder appearing on the books of the Company, the
obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder
may be entitled to purchase. Notwithstanding anything in this
Section 11(a) to the contrary, the prior two sentences shall be
inoperative and of no force and effect if upon the completion of any
such Reorganization the stockholders of the Company immediately prior
to such event do not own at least fifty percent (50%) of the equity
interest of the corporation resulting from such Reorganization and
those Warrants which are unexercised shall expire on the completion
of such Reorganization if the notice required by Section 11(e) hereof
has been given.
(b) Subdivision or Combination of Shares. If the Company at any time
while the Warrants remain outstanding and unexpired shall subdivide
or combine its Common Stock, the Warrant Price shall be adjusted to a
price determined by multiplying the Warrant Price in effect
immediately prior to such subdivision or combination by a fraction
(i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such subdivision or
combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such
subdivision or combination.
(c) Certain Dividends and Distribution. If the Company at any time prior
to the expiration of the Warrant Exercise Period shall take a record
of the holders of its Common Stock for the purposes of:
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(i) Stock Dividends. Entitling them to receive a dividend payable
in, or to receive any other distribution without consideration
of, Common Stock, then the Warrant Price shall be adjusted to
the price determined by multiplying the Warrant Price in effect
immediately prior to each dividend or distribution by a fraction
(A) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend
or distribution, and (B) the denominator of which shall be the
total number of shares of Common Stock outstanding immediately
after such dividend or distribution; or
(ii) Distribution of Assets, Securities, etc. Making any
distribution without consideration with respect to its Common
Stock (other than a cash dividend) payable otherwise than in
its Common Stock, then the Holder shall, upon the exercise
hereof, be entitled to receive, in addition to the number of
Shares receivable thereupon, and without payment of any
additional consideration therefor, such assets or securities as
would have been payable to the Holder as owner of that number
of Shares on the record date for such distribution; and an
appropriate provision therefor shall be made a part of any such
distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Warrant
Price pursuant to Subsections (b) or (c)(i) of this Section 11, the
number of shares purchasable under the Warrants represented by this
certificate shall be adjusted to that number determined by
multiplying the number of Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment by a fraction, the
numerator of which shall be the Warrant Price immediately prior to
such adjustment and the denominator of which shall be the Warrant
Price immediately following such adjustment.
(e) Notice. In case at any time:
(i) The Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution, excluding a cash
dividend, to the holders of its Common Stock.
(ii) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of
any class or other rights;
(iii) There shall be any reclassification of the Common Stock of the
Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another
corporation; or
(iv) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
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then, in any one or more of such cases, the Company shall give to the
Holder at least ten (10) days prior written notice (or, in the event of notice
pursuant to Section 11(e)(iii), at least thirty (30) days prior written
notice) of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect to any such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up. Such
notice in accordance with the foregoing clause shall also specify, in the case
of any such dividend, distribution or subscription rights, the date on which
the holder of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause shall also specify the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the
case may be. Each such written notice shall be given by first-class mail,
postage prepaid, addressed to the Holder at the address of the Holder as shown
on the books of the Company.
(f) No Change in Certificate. The form of this Warrant certificate need
not be changed because of any adjustment in the Warrant Price or in
the number of Warrant Shares purchasable on its exercise. The
Warrant Price or the number of Warrant Shares shall be considered to
have been so changed as of the close of business on the date of
adjustment.
(g) Purchase Price Adjustment. The exercise price of the Warrant shall
be adjusted downward, from time to time, to equal the lowest price of
any (i) warrant for common stock issued by the Company to any
employee, investor, or other Person or entity, or (ii) stock option
granted to any officer of the Company, provided, that such price
adjustment shall not apply to warrants issued to Cappello Capital
Corp. or CEA Montgomery as a result of the capital restructuring of
the Company, which is the subject of the July 20, 1999 Proxy
Statement of the Company, as such restructuring has been approved by
the Holder in its capacity as a shareholder of the Company.
12. Notices. All notices and other communications pursuant hereto shall be
in writing and shall be deemed given if delivered in person or sent by United
States registered mail, postage prepaid:
If to the Company at:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
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If to the Holder at:
The National Electrical Benefit Fund
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
with copies to:
Jeffrey J. Kanne, Esq.
Counts & Kanne, Chartered
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
or at such other address as either party may designate in writing by
notice to the other party as provided above.
13. Termination. This Warrant shall automatically and immediately terminate,
without any further action by the Company or the Holder, upon the occurrence
of any of the following:
(i) any voluntary or involuntary proceeding shall be commenced with
respect to the Holder in a court of competent jurisdiction seeking
relief under any applicable bankruptcy, insolvency or similar law;
(ii) a receiver, custodian, sequestrator or similar official for the
Holder or for any substantial part of its property shall be
appointed or elected;
(iii) the Holder shall commence any winding-up or liquidation, voluntary
or involuntary, of the Holder;
(iv) the Holder shall make a general assignment for the benefit of its
creditors or become unable generally, or admit in writing its
inability, to pay its debts as they become due; or
(v) the Holder shall take any corporate or similar action for the
purpose of effecting any of the foregoing.
14. Miscellaneous. This Warrant contains the entire agreement between the
parties with respect to the matters set forth herein and may not be modified,
supplemented or amended except in a writing signed by both parties. This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware.
WITNESS the following signature effective as of the XX day of XXXXXXX 1999.
RAMTRON INTERNATIONAL CORPORATION
By: ------------------------------
L. David Sikes, Chairman and CEO
Page 180
<PAGE>
ANNEX A
SUBSCRIPTION FORM
To Be Executed if Holder Desires
To Exercise Warrant
The undersigned hereby exercises, according to the terms and conditions
hereof, all or part (as indicated below) of this Warrant and herewith makes
payment of the applicable Warrant Price in full.
Name(s) ----------------------
Address ----------------------
No. of Shares ----------------
Dated --------------
Signature(s) ------------------------------
- ------------------------------
Social Security Number or
Employer Identification Number
Page 181
<PAGE>
ANNEX B
CERTIFICATE OF TRANSFER
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
Date: --------------------
Gentlemen:
With reference to the Warrant to Purchase Shares of Common Stock dated ------
(the "Warrant"), issued by Ramtron International Corporation (the "Company")
to -------------------------- (the "Holder"), representing as of the date
hereof the right to purchase, on the terms and subject to the conditions
herein set forth, -------------- shares of the Common Stock, par value $0.01,
of the Company (the "Warrant Shares"), the undersigned Holder hereby
transfers, conveys and assigns to -----------------------, subject to the
terms and conditions of the Warrant, the right to purchase -------------- of
such Warrant Shares. By this transfer, all rights of the undersigned Holder
with respect to such number of the Warrant Shares are transferred to the
transferee.
Enclosed herewith is the original Warrant so that the Company may issue in
lieu thereof (a) to the transferee, a new Warrant, of like tenor and effect
therewith, for the number of Warrant Shares with respect to which the
undersigned Holder's rights under the Warrant are hereby transferred, conveyed
and assigned, and (b) if the undersigned Holder has retained its rights under
the Warrant with respect to some portion of the Warrant Shares, a new Warrant,
of like tenor and effect therewith, for such number of the Warrant Shares.
- ----------------------------
as Holder
By: ------------------------
Title: ---------------------
Page 182
<PAGE>
SCHEDULE 3.1
List of Contingent obligations, taxes, leases, commitments per Section 3.1
Agreement with CIBC Oppenheimer
===============================
Letter Agreement between Ramtron International Corporation (the "Company")
and CIBC Oppenheimer ("CIBC") dated November 9, 1998.
2. Compensation and Expense Reimbursement. In consideration of the
obligations of CIBC hereunder, the Company agrees to pay CIBC in
cash, the following amounts:
(a) A monthly fee of $75,000 in cash payable on the first day of
each month, with payments commencing on November 9, 1998, and
ending on the earlier of the Date of Termination of this
Agreement or the payment of the fee provided for in paragraph
(b) below (each a "Monthly Fee").
(b) If the Company consummates a Restructuring Transaction, CIBC
shall be entitled to a fee equal to $700,000 (the "Transaction
Fee") payable in cash upon the closing of such Transaction.
The Monthly Fees for the first one, two, or three months shall
be credited against the Transaction Fee, depending on the month
in which the Transaction is consummated.
Settlement Agreement
====================
Settlement Agreement dated as of April 7, 1999 between Talisman Capital
Opportunity Fund Ltd. ("Talisman") and Ramtron International Corporation
("Ramtron").
(1) Upon execution of this Settlement Agreement, Ramtron shall pay
Talisman by wire transfer the following sums:
(a) $475,000, in return for which Talisman shall immediately and
irrevocably surrender for cancellation to Ramtron its remaining
1000 shares (including rights to accrued dividends) of Ramtron
Series A Preferred Stock, which were issued to Elara Ltd.
pursuant to the February 25, 1998 Preferred Stock Investment
Agreement; and
(b) $75,000.00, representing reimbursement of Talisman's legal fees
and related costs and expenses.
The foregoing amounts will be in full satisfaction of all of Talisman's
actual or potential claims against Ramtron.
Page 183
<PAGE>
Operating Leases
- ----------------
1. Comdisco - Teradyne Tester
Monthly payment $2,628
Total remaining obligation $51,816
Payments Remaining:
August - December 1999 $13,140
Year 2000 31,536
Year 2001 13,140
2. Comdisco - Jeol SEM
Monthly payment $4,336
Total remaining obligation $95,392
Payments Remaining:
August - December 1999 $21,680
Year 2000 52,032
Year 2001 21,680
3. Comdisco - Advantest Tester
Monthly payment $26,906
Total remaining obligation $95,392
Payments Remaining:
August - December 1999 $134,530
Year 2000 322,872
Year 2001 322,872
Year 2002 242,154
4. Pitney Bowes
Monthly payment $1,187
Total remaining obligation $2,375
Payments Remaining:
August - December 1999 $2,375
5. LAC
Monthly payment $2,938
Total remaining obligation $105,768
Payments Remaining:
August - December 1999 $14,690
Year 2000 35,256
Year 2001 35,256
Year 2002 20,566
6. Lewan
Monthly payment $1,129
Total remaining obligation $30,483
Payments Remaining:
August - December 1999 $ 5,645
Year 2000 13,548
Year 2001 11,290
Page 184
<PAGE>
7. Leasetec
Monthly payment $996
Total remaining obligation $4,982
Payments Remaining:
August - December 1999 $ 4,982
8. Leasetec
Monthly payment $1,128
Total remaining obligation $9,022
Payments Remaining:
August - December 1999 $5,639
Year 2000 3,383
9. AT&T Leasing
Monthly payment $821
Total remaining obligation $17,245
Payments Remaining:
August - December 1999 $4,106
Year 2000 9,854
Year 2001 3,285
10. AT&T Leasing
Monthly payment $1,811
Total remaining obligation $16,299
Payments Remaining:
August - December 1999 $9,055
Year 2000 7,244
Page 185
<PAGE>
SCHEDULED 3.10
List of Intellectual Property
Issued Patents
RIC Company Confidential
Total Issued Patents 162
<TABLE>
Tech Patent
RAM No. Type Title No. Issued Expires Inventor
- ------- ---- ---------------------- --------- ------- ------- --------------------
<S> <C> <C> <C> <C> <C> <C>
United States 89
===================
RAM407 FRAM PARTIALLY OR COMPLETELY 5,920,453 7/6/99 8/20/16 EVANS, THOMAS A., ET AL
ENCAPSULATED TOP ELECTRODE
OF A FERROELECTRIC CAPACITOR
RAM402 FRAM SERIAL FRAM ARCHITECTURE 5,912,846 6/15/99 2/28/17 TAYLOR, CRAIG
TO EQUALIZE COLUMN ACCESS
RAM368 FRAM INTEGRATION OF HIGH VALUE CAPACITOR 5,909,624 6/1/99 2/10/14 YEAGER, MICHAEL W., ET AL.
DIV RF/ID
RAM415 FRAM DUAL-LEVEL METALIZATION METHOD FOR 5,902,131 5/11/99 5/11/17 ARGOS, GEORGE, ET AL.
INTEGRATED CIRCUIT FERROELECTRIC
DEVICES
RAM418 EDRAM FIRST-IN, FIRST-OUT INTEGRATED 5,901,100 5/4/99 4/1/17 TAYLOR, CRAIG
DRAM CIRCUIT MEMORY DEVICE UTILIZING A
DYNAMIC RANDOM ACCESS MEMORY ARRAY FOR
DATA STORAGE IMPLEMENTED IN CONJUNCTION
WITH AN ASSOCIATED STATIC RANDOM
ACCESS MEMORY CACHE
RAM427 FRAM SENSE AMPLIFIER UTILIZING A BALANCING 5,901,088 5/4/99 2/11/18 KRAUS, WILLIAM F.
RESISTOR
RAM437 FRAM COLUMN DECODER CONFIGURATION FOR 5,892,728 4/6/99 11/14/17 ALLEN, J., ET AL.
A 1T/1C FERROELECTRIC MEMORY
RAM406 FRAM DATA PROCESSOR INCORPORATING A 5,890,199 3/30/99 10/21/10 DOWNS, JEFFERY E.
FERROELECTRIC MEMORY ARRAY SELECTABLY
CONFIGURABLE AS READ/WRITE AND READ
ONLY MEMORY
RAM386 FRAM LOW LOSS, REGULATED CHARGE PUMP WITH 5,889,428 3/30/99 6/6/15 YOUNG, DENNIS
INTEGRATED FERROELECTRIC CAPACITORS
Page 186
<PAGE>
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 5,887,272 3/23/99 1/22/12 SARTORE, RONALD H., ET AL.
DIV
RAM414 FRAM SENSING METHODOLOGY FOR A 1T/1C 5,880,989 3/9/99 11/14/17 WILSON, D., ET AL.
FERROELECTRIC MEMORY
RAM389 EDRAM COMPUTER HYBRID MEMORY INCLUDING DRAM 5,875,451 2/23/99 3/14/16 JOSEPH, JAMES DEAN
AND EDRAM MEMORY COMPONENTS, WITH
SECONDARY CACHE IN EDRAM FOR DRAM
RAM405 FRAM BANDGAP REFERENCED BASED POWER-ON 5,867,047 2/2/99 8/23/16 KRAUSE, WILLIAM F.
CON DETECT CIRCUIT
RAM357 FRAM FERROELECTRIC MEMORY DEVICE WITH 5,866,926 2/2/99 2/2/16 TANENAKA, K.
FWC CAPACITOR ELECTRODE IN DIRECT CONTACT
WITH SOURCE REGION
RAM407 FRAM PARTIALLY OR COMPLETELY ENCAPSULATED 5,864,932 2/2/99 8/20/16 EVANS, THOMAS A., ET AL.
CIP TOP ELECTRODE OF A FERROELECTRIC
CAPACITOR
RAM424 FRAM VOLTAGE BOOST CIRCUIT AND OPERATION 5,854,568 12/29/98 8/20/17 MOSCALUK, GARY P.
THEREOF AT LOW POWER SUPPLY VOLTAGES
RAM405 FRAM BANDGAP REFERENCE BASED POWER-ON 5,852,376 12/22/98 8/23/16 KRAUS, WILLIAM F.
DETECT CIRCUIT INCLUDING A SUPPRESSION
CIRCUIT
RAM398 FRAM IRIDIUM OXIDE LOCAL INTERCONNECT 5,838,605 11/17/98 3/20/16 BAILEY, RICHARD A.
RAM393 EDRAM EDRAM WITH INTEGRATED GENERATION AND 5,835,442 11/10/98 3/22/16 JOSEPH, JAMES DEAN, ET AL.
CONTROL OF WRITE ENABLE AND COLUMN
LATCH SIGNALS AND METHOD OF MAKING SAME
RAM371 FRAM A VOLTAGE REFERENCE FOR A FERRO- 5,822,237 10/13/98 9/16/14 WILSON, DENNIS R. ET AL.
DIV ELECTRIC 1T/1C BASED MEMORY
RAM409 DRAM SEMICONDUCTOR MEMORY DEVICE 5,818,771 10/6/98 9/30/16 YASU, YOSHIKO, ET AL.
RAM384 FRAM CIRCUIT AND METHOD FOR REDUCING 5,815,430 9/29/98 4/10/15 VERHAEGHE, DONALD J., ET AL.
DIV COMPENSATION OF A FERROELECTRIC
CAPACITOR BY MULTIPLE PULSING OF
THE PLATE LINE FOLLOWING A WRITE
OPERATION
RAM412 FRAM LOW-POWER, NON-RESETABLE TEST MODE 5,804,996 9/8/98 2/13/17 VERHAEGHE, DONALD J., ET AL.
CIRCUIT
RAM410 FRAM SYSTEM AND METHOD PROVIDING SELECTIVE 5,802,583 9/1/98 10/30/16 YEAGER, ET AL.
DRAM WRITE PROTECTION FOR INDIVIDUAL
BLOCKS OF MEMORY IN A NON-VOLATILE
MEMORY DEVICE
Page 187
<PAGE>
RAM390 EDRAM MULTIBUS CACHED MEMORY SYSTEM 5,802,560 9/1/98 8/30/15 JOSEPH, JAMES D., ET AL.
RAM396 FRAM USE OF CALCIUM AND STRONTIUM DOPANTS 5,800,683 9/1/98 3/15/16 KAMMERDINER, LEE, ET AL.
DIV TO IMPROVE RETENTION PERFORMANCE IN
A PZT FERROELECTRIC FILM
RAM385 FRAM FABRICATION OF METAL-FERROELECTRIC- 5,789,323 8/4/98 4/25/15 TAYLOR, THOMAS C.
METAL CAPACITORS WITH A TWO-STEP
PATTERNING SEQUENCE
RAM388 FRAM BOOTSTRAPPING CIRCUIT UTILIZING A 5,774,392 6/30/98 3/28/16 KRAUS, WILLIAM F, ET AL.
FERROELECTRIC CAPACITOR
RAM403 FRAM SYSTEM AND METHOD FOR MITIGATING 5,745,403 4/28/98 2/28/17 TAYLOR, CRAIG
IMPRINT EFFECT IN FERROELECTRIC
RANDOM ACCESS MEMORIES UTILIZING
A COMPLEMENTARY DATA PATH
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 5,721,862 2/24/98 2/24/15 SARTORE, RONALD H., ET AL.
CON
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 5,699,317 12/16/97 1/22/12 SARTORE, RONALD H., ET AL.
CIP
RAM404 FRAM SAME STATE AND OPPOSITE STATE 5,661,730 8/26/97 9/27/16 MITRA, SANJAY, ET AL.
DIAGNOSTIC TEST FOR FERROELECTRIC
MEMORIES
RAM321 DRAM PROCESS FOR FABRICATING TRANSISTORS 5,610,099 3/11/97 6/28/14 LARSON, WILLIAM L.
USING COMPOSITE NITRIDE STRUCTURE
RAM368 FRAM INTEGRATION OF HIGH VALUE CAPACITOR 5,608,246 3/4/97 3/4/14 YEAGER, MICHAEL W., ET AL.
FWC WITH RF/ID FERROELECTRIC MEMORY
RAM387 FRAM FERROELECTRIC NONVOLATILE RANDOM 5,598,366 1/28/97 8/16/15 KRAUS, WILLIAM F., ET AL.
ACCESS MEMORY UTILIZING SELF-
BOOTSTRAPPING PLATE LINE SEGMENT
DRIVERS
RAM384 FRAM CIRCUIT AND METHOD FOR REDUCING 5,592,410 1/7/97 4/10/15 VERHAEGHE, DONALD J.; ET AL.
COMPENSATION OF A FERROELECTRIC
CAPACITOR BY MULTIPLE PULSING OF
THE PLATE LINE FOLLOWING A WRITE
OPERATION
RAM332 FRAM STACKED FERROELECTRIC MEMORY CELL 5,580,814 12/3/96 5/29/11 LARSON, WILLIAM L.
DIV AND METHOD
Page 188
<PAGE>
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 5,578,867 11/26/96 3/11/14 ARGOS, GEORGE, ET AL.
DIV USING HARD CERAMIC MATERIALS OR
THE LIKE
RAM371 FRAM VOLTAGE REFERENCE FOR A FERROELECTRIC 5,572,459 11/5/96 9/16/14 WILSON, DENNIS R., ET AL.
1T/1C BASED MEMORY
RAM381 EDRAM CIRCUIT WITH A SINGLE ADDRESS 5,566,318 10/15/96 8/2/14 JOSEPH, JAMES D.
REGISTER THAT AUGMENTS A MEMORY
CONTROLLER BY ENABLING CACHE READS
AND PAGE-MODE WRITES
RAM382 FRAM FERROELECTRIC MEMORY SENSING METHOD 5,532,953 7/2/96 3/29/15 RUESCH, RODNEY A., ET AL.
USING DISTINCT READ AND WRITE
VOLTAGES
RAM370 FRAM FERROELECTRIC MEMORY SENSING SCHEME 5,530,668 6/25/96 4/12/15 CHERN, WEN-FOO, ET AL.
USING BIT LINES PRECHARGED TO A
LOGIC ONE VOLTAGE
RAM374 FRAM FERROELECTRIC CAPACITOR RENEWAL 5,525,528 6/11/96 6/6/14 PERINO, STANLEY, ET AL.
METHOD
RAM352 FRAM SEMICONDUCTOR DEVICE HAVING A 5,523,595 6/4/96 6/4/13 TAKENAKA, KAZUHIRO, ET AL.
FWC TRANSISTOR A FERROELECTRIC CAPACITOR
AND A HYDROGEN BARRIER FILM
RAM377 FRAM FILM HAVING FERROELECTRIC BISMUTH 5,519,566 5/21/96 6/15/14 PERINO, STANLEY C., ET AL.
CON OXIDES
RAM378 FRAM LAYERED LOCAL INTERCONNECT COMPATIBLE 5,498,569 3/12/96 8/22/14 EASTEP, BRIAN
WITH INTEGRATED CIRCUIT FERROELECTRIC
CAPACITORS
RAM332 FRAM STACKED FERROELECTRIC MEMORY CELL 5,495,117 2/27/96 2/27/13 LARSON, WILLIAM L.
FWC2 AND METHOD
RAM376 FRAM NOISE AND GLITCH SUPPRESSING FILTER 5,479,132 12/26/95 6/6/14 VERHAEGHE, DONALD, ET AL.
WITH FEEDBACK
RAM358 FRAM SEMICONDUCTOR DEVICE WITH A 5,475,248 12/12/95 12/12/12 TANENAKA, K.
FWC2 CONDUCTIVE REACTION-PREVENTING FILM
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE FOR 5,438,023 8/1/95 3/11/14 ARGOS, GEORGE, ET AL.
A FERROELECTRIC INTEGRATED CIRCUIT
USING HARD CERAMIC MATERIALS OR THE LIKE
RAM375 RFID SYSTEM AND METHOD FOR INITIATING 5,434,572 7/18/95 6/7/14 SMITH, GREGORY M.
COMMUNICATIONS BETWEEN A CONTROLLER
AND A SEECTED SUBSET OF MULTIPLE
TRANSPONDERS IN A COMMON RF FIELD
Page 189
<PAGE>
RAM377 FRAM A METHOD OF MANUFACTURING 5,426,075 6/20/95 6/15/14 PERINO, STANLEY C., ET AL.
FERROELECTRIC BISMUTH LAYERED OXIDES
RAM380 FRAM SYSTEM AND METHOD FOR WRITE- 5,394,367 2/28/95 3/18/14 JEFFERY E. DOWNS, ET AL.
PROTECTING PREDETERMINED PORTIONS
OF A MEMORY ARRAY
RAM322 DRAM SEALED SELF ALIGNED CONTACT PROCESS 5,385,634 1/31/95 1/31/12 BUTLER, DOUGLAS B.
DIV2
RAM365 FRAM FERROELECTRIC-BASED RAM SENSING 5,381,364 1/10/95 6/24/13 CHERN, WEN-FOO, ET AL.
SCHEME INCLUDING BIT-LINE
CAPACITANCE ISOLATION
RAM329 FRAM OZONE GAS PROCESSING FOR 5,374,578 12/20/94 2/25/12 PATEL, DIVYESH N., ET AL.
FWC FERROELECTRIC MEMORY CIRCUITS
RAM360 FRAM NON-VOLATILE FERROELECTRIC MEMORY 5,371,699 12/6/94 11/17/12 LARSON, WILLIAM L.
WITH FOLDED BIT LINES AND METHOD
OF MAKING THE SAME
RAM348 FRAM SEMICONDUCTOR DEVICE HAVING A 5,369,296 11/29/94 5/12/12 KATO, K.
FWC FERROELECTRIC FILM IN A THROUGH-HOLE
RAM335 FRAM STRUCTURE OF HIGH DIELECTRIC CONSTANT 5,338,951 8/16/94 11/6/11 ARGOS, GEORGE, ET AL.
METAL
RAM338 FRAM SEMICONDUCTOR DEVICE WITH 5,293,510 3/8/94 12/20/11 TAKENAKA, KAZUHIRO
FERROELECTRIC AND METHOD OF
MANUFACTURING SAME
RAM326 DRAM OUTPUT CONTROL CIRCUIT HAVING 5,255,222 10/19/93 1/23/11 EATON, S. SHEFFIELD
CONTINUOUSLY VARIABLE DRIVE CURRENT
RAM340 FRAM METHOD OF MANUFACTURING SEMICONDUCTOR 5,229,309 7/20/93 2/24/12 KATO, KOJI
DEVICE USING A FERROELECTRIC FILM
OVER A SOURCE REGION
RAM341 FRAM STRUCTURE AND METHOD FOR INCREASING 5,216,572 6/1/93 3/19/12 LARSON, WILLIAM L., ET AL.
THE DIELECTRIC CONSTANT OF INTEGRATED
FERROELECTRIC CAPACITORS
RAM322 DRAM SELF-SEALED ALIGNED CONTACT 5,216,281 6/1/93 6/1/10 BUTLER, DOUGLAS B.
CIP
RAM240 FRAM MONOLITHIC SEMICONDUCTOR INTEGRATED 5,214,300 5/25/93 5/25/10 ROHRER, GEORGE A., ET AL.
DIV2 CIRCUIT FERROELECTRIC MEMORY DEVICE
Page 190
<PAGE>
RAM336 FRAM SERIES FERROELECTRIC CAPACITOR 5,206,788 4/27/93 12/12/11 LARSON, WILLIAM, ET AL.
STRUCTURE FOR MONOLITHIC INTEGRATED
CIRCUITS AND METHOD
RAM337 FRAM USE OF PALLADIUM AS AN ADHESION 5,191,510 3/2/93 4/29/12 HUFFMAN, MARIA
LAYER AND AS AN ELECTRODE IN
FERROELECTRIC MEMORY DEVICES
RAM319 DRAM REACTION BARRIER FOR A MULTI-LAYER 5,170,242 12/8/92 12/8/09 STEVENS, E. HENRY
CON STRUCTURE IN AN INTEGRATED CIRCUIT
RAM317 DRAM STACKED CAPACITOR WITH SIDEWALL 5,162,890 11/10/92 7/30/10 BUTLER, DOUGLAS B.
DIV INSULATION
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 5,142,437 8/25/92 6/13/11 KAMMERDINER, L. ET AL.
FERROELECTRIC CAPACITORS IN
INTEGRATED CIRCUITS AND METHOD
RAM324 DRAM CURRENT SUPPLY CIRCUIT FOR DRIVING 5,134,310 7/28/92 1/23/11 MOBLEY, KENNETH J., ET AL.
HIGH CAPACITANCE LOAD IN AN
INTEGRATED CIRCUIT
RAM325 DRAM REFERENCE GENERATOR FOR AN 5,117,177 5/26/92 1/23/11 EATON, S. SHEFFIELD
INTEGRATED CIRCUIT
RAM310 FRAM MEMORY CELL AND METHOD OF OPERATION 5,109,357 4/28/92 3/9/10 EATON, S. SHEFFIELD, ET AL.
CON THEREOF FOR TRANSFERRING INCREASED
AMOUNT OF CHARGE TO A BIT LINE
RAM317 DRAM METHOD FOR CREATING SELF-ALIGNED, 5,104,822 4/14/92 7/30/10 BUTLER, DOUGLAS B.
NON-PATTERNED CONTACT AREAS AND
STACKED CAPACITORS USING THE METHOD
RAM320 DRAM TRENCH CAPACITOR FOR LARGE SCALE 5,075,817 12/24/91 6/22/10 BUTLER, DOUGLAS B.
INTEGRATED MEMORY
RAM322 DRAM SEALED SELF ALIGNED CONTACT PROCESS 5,043,790 8/27/91 4/5/10 BUTLER, DOUGLAS B.
RAM240 FRAM MONOLITHIC SEMICONDUCTOR INTEGRATED 5,024,964 6/18/91 6/18/08 ROHRER, GEORGE A., ET AL.
CIRCUIT FERROELECTRIC MEMORY DEVICE
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 5,005,102 4/2/91 6/20/09 LARSON, WILLIAM L.
CIRCUIT CAPACITORS
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 4,918,654 4/17/90 7/2/07 EATON, S. SHEFFIELD, ET AL.
DIV1
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 4,914,627 4/3/90 7/2/07 EATON, S. SHEFFIELD, ET AL.
DIV3
Page 191
<PAGE>
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 4,910,708 3/20/90 7/2/07 EATON, S. SHEFFIELD, ET AL.
DIV2
RAM309 FRAM FERROELECTRIC RETENTION METHOD 4,893,272 1/9/90 4/22/08 EATON, S. SHEFFIELD, ET AL.
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 4,888,733 12/19/89 9/12/08 MOBLEY, KENNETH
312 METHOD
RAM302 FRAM SELF-RESTORING FERROELECTRIC MEMORY 4,873,664 10/10/89 2/12/07 EATON, S. SHEFFIELD
RAM305 DRAM DATA STORAGE DEVICE AND METHOD OF 4,853,893 8/1/89 7/2/07 EATON, S. SHEFFIELD, ET AL.
USING A FERROELECTRIC CAPACITANCE
DIVIDER
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 4,809,225 2/28/89 7/2/07 DIMMLER, K., ET AL.
NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM304 FRAM TIMEPIECE COMMUNICATION SYSTEM 4,800,543 1/24/89 12/3/07 LYNDON-JAMES, ROSS, ET AL.
RF/ID
RAM220 FRAM COMBINED INTEGRATED CIRCUIT/ 4,713,157 12/15/87 5/14/05 MCMILLAN, LARRY, ET AL.
FERROELECTRIC MEMORY DEVICE, AND
ION BEAM METHODS OF CONSTRUCTING SAME
RAM145 FRAM MONOLITHIC SEMICONDUCTOR INTEGRATED 4,707,897 11/24/87 11/24/04 ROHRER, GEORGE A., ET AL.
CIRCUIT FERROELECTRIC MEMORY DEVICE
United Kingdom 18
===================
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE FOR 0671765 9/30/98 12/9/14 ARGOS, GEORGE ET AL.
GB A FERROELECTRIC INTEGRATED CIRCUIT
USING HARD CERAMIC MATERIALS OR THE LIKE
RAM360 FRAM NON-VOLATILE FERROELECTRIC MEMORY 0598596 9/10/97 11/16/13 LARSON, WILLIAM L.
UK WITH FOLDED BIT LINES AND METHOD
OF MAKING SAME
RAM335 FRAM STRUCTURE OF HIGH DIELECTRIC 0540994 3/15/95 10/28/12 ARGOS, GEORGE, ET AL.
GB CONSTANT METAL/DIELECTRIC/SEMI-
CONDUCTOR CAPACITOR FOR USE AS THE
STORAGE CAPACITOR IN MEMORY DEVICES
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 0530928 6/22/88 6/22/08 DIMMLER, K., ET AL.
DIV NON-VOLATILE PORTIONS HAVING
GB FERROELECTRIC CAPACITORS
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 0518117 7/12/95 5/26/12 KAMMERDINER, LEE, ET AL.
GB FERROELECTRIC CAPACITORS IN INTEGRATED
CIRCUITS AND METHOD
Page 192
<PAGE>
RAM352 FRAM SEMICONDUCTOR DEVICE HAVING A 0514547 8/20/91 8/20/11 TAKENAKA, KAZUHIRO, ET AL.
UK TRANSISTOR, A FERROELECTRIC CAPACITOR
AND A HYDROGEN BARRIER FILM
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 TAKENAKA, KAZUHIRO
GB
RAM348 FRAM SEMICONDUCTOR DEVICE HAVING A 0497982 7/19/95 7/24/11 KATO, KOJI
GB FERROELECTRIC FILM IN A THROUGH-HOLE
RAM326 DRAM OUTPUT CONTROL CIRCUIT HAVING A 0496320 1/20/92 1/20/12 EATON, S. SHEFFIELD
UK CONTINUOUSLY VARIABLE DRIVE CURRENT
RAM340 FRAM METHOD OF MANUFACTURING SEMICONDUCTOR 0487739 12/11/96 5/31/11 KATO, KOJI
UK DEVICE USING A FERROELECTRIC FILM
OVER A SOURCE REGION
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 TAKENAKA, KAZUHIRO
GB
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 LARSON, WILLIAM L., ET AL.
UK CIRCUIT CAPACITORS
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 0396221 9/27/95 2/6/10 GNADINGER, A. P., ET AL.
GB
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 0359404 11/17/94 8/15/09 MOBLEY, KENNETH J.
312 GB METHOD
RAM309 FRAM FERROELECTRIC RETENTION METHOD 0338158 1/12/94 9/21/08 EATON, S. SHEFFIELD, ET AL.
GB
RAM305 DRAM DRAM WITH PROGRAMMABLE CAPACITANCE 0299633 12/8/93 6/22/08 EATON, S. SHEFFIELD, ET AL.
GB DIVIDER
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 0297777 12/29/93 6/22/08 DIMMLER, K., ET AL.
GB NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 EATON, S. SHEFFIELD
GB
Netherlands 4
===============
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 TAKENAKA, KAZUHIRO
NL
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 TAKENAKA, KAZUHIRO
NL
Page 193
<PAGE>
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 LARSON, WILLIAM L., ET AL.
NL CIRCUIT CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 EATON, S. SHEFFIELD
NL
Japan 14
==========
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 2851503 11/13/98 1/21/13 SARTORE, RONALD H., ET AL.
JPN
RAM317 DRAM SELF ALIGN CONTACT PROCESS 2673615 7/18/97 7/30/11 BUTLER, DOUGLAS B.
JPN
RAM320 DRAM IMPROVED TRENCH CAPACITOR FOR LARGE 2089169 12/6/95 12/6/15 BUTLER, DOUGLAS B.
JPN SCALE INTEGRATED MEMORY
RAM319 DRAM REACTION BARRIER FOR A MULTILAYER 2075540 10/11/95 10/11/15 STEVENS, E. HENRY
JPN STRUCTURE
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 2,921,556 4/30/99 3/13/15 ARGOS, GEORGE, ET AL.
JPN FOR A FERROELECTRIC INTEGRATED
CIRCUIT USING HARD CERAMIC MATERIALS
OR THE LIKE
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 2,918,284 4/23/99 2/26/10 GNADINGER, A. P., ET AL.
JPN
RAM309 FRAM FERROELECTRIC RETENTION METHOD 2,771,551 4/17/98 10/5/08 EATON, S. SHEFFIELD, ET AL.
JPN
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 2,736,072 1/9/98 EATON, S. SHEFFIELD, ET AL.
JPN
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 2,693,967 9/5/97 7/1/08 DIMMLER, K., ET AL.
JPN NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 2,674,775 6/18/97 2/12/08 EATON, S. SHEFFIELD
JPN
RAM342 FRAM STRUCTURE AND FABRICATION OF HIGH 2,065,956 6/24/96 11/3/12 ARGOS, GEORGE JR., ET AL.
JPN TRANSCONDUCTANCE MOS FIELD EFFECT
TRANSISTOR USING A BUFFER
LAYER/FERROELECTRIC/BUFFER LAYER STACK
AS THE GATE DIELECTRIC
RAM322 DRAM SEALED SELF ALIGNED CONTRACT 2,005,865 3/29/95 3/29/15 BUTLER, DOUGLAS B.
JPN INCORPORATING A DOPANT SOURCE
Page 194
<PAGE>
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 2,004,044 12/20/95 9/11/09 MOBLEY, KENNETH J.
312 JPN METHOD
RAM100A2 DRAM PROCESS FOR MANUFACTURING A 1,380,979 5/28/87 2/15/97 ROHRER, GEORGE A.
JPN FERROELECTRIC DEVICE AND DEVICES
MANUFACTURED THEREBY
Italy 4
=========
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 TAKENAKA, KAZUHIRO
IT
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 TAKENAKA, KAZUHIRO
IT
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 LARSON, WILLIAM L., ET AL.
IT CIRCUIT CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 EATON, S. SHEFFIELD
IT
Germany 18
============
RAM303 FRAM MEMORY CELL WITH VOLATILE AND P3855877.7-08 6/22/88 6/22/08 DIMMLER, K., ET. AL.
DIV NON-VOLATILE PORTIONS HAVING
DE FERROELECTRIC CAPACITORS
RAM360 FRAM NON-VOLATILE FERROELECTRIC 69313785.1-08 9/10/97 11/16/13 LARSON, WILLIAM L.
DE MEMORY WITH FOLDED BIT LINES
AND METHOD OF MAKING SAME
RAM326 DRAM OUTPUT CONTROL CIRCUIT HAVING A 69218270.5 1/20/92 1/20/12 EATON, S. SHEFFIELD
DE CONTINUOUSLY VARIABLE DRIVE CURRENT
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 69203395.5-8 7/12/95 5/26/12 KAMMERDINER, LEE, ET AL.
DE FERROELECTRIC CAPACITORS IN
INTEGRATED CIRCUITS AND METHOD
RAM335 FRAM STRUCTURE OF HIGH DIELECTRIC 69201713.5-8 3/15/95 10/28/12 ARGOS, GEORGE, ET AL.
DE CONSTANT METAL / DIELECTRIC /
SEMICONDUCTOR CAPACITOR FOR USE
AS THE STORAGE CAPACITOR IN MEMORY
DEVICES
RAM352 FRAM SEMICONDUCTOR DEVICE HAVING A 69124994.6-08 8/20/91 8/20/11 TAKENAKA, KAZUHIRO, ET AL.
DE TRANSISTOR, A FERROELECTRIC
CAPACITOR AND A HYDROGEN BARRIER FILM
RAM357 FRAM SEMICONDUCTOR DEVICE 69124086.8-08 9/26/91 9/26/11 TAKENAKA, KAZUHIRO
DE
Page 195
<PAGE>
RAM340 FRAM METHOD OF MANUFACTURING 69123557.0 12/11/96 5/31/11 KATO, KOJI
DE SEMICONDUCTOR DEVICE USING A
FERROELECTRIC FILM OVER A
SOURCE REGION
RAM348 FRAM SEMICONDUCTOR DEVICE HAVING A 69111413.7-8 7/19/95 7/24/11 KATO, KOJI
DE FERROELECTRIC FILM IN A
THROUGH-HOLE
RAM314 FRAM MULTILAYER ELECTRODES FOR 69030843.4-08 3/21/90 3/21/10 LARSON, WILLIAM L., ET AL.
DE INTEGRATED CIRCUIT CAPACITORS
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 69022621.2-8 9/27/95 2/6/10 GNADINGER, A. P., ET AL.
DE
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND 68919393.9-8 11/17/94 8/15/09 MOBLEY, KENNETH J.
312 DE SENSING METHOD
RAM309 FRAM FERROELECTRIC RETENTION METHOD 3887130.0-08 1/21/994 9/21/08 EATON, S. SHEFFIELD, ET AL.
DE
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 3886600.5-08 12/29/93 6/22/08 DIMMLER, K., ET AL.
DE NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 3886112.7-08 12/8/93 6/22/08 EATON, S. SHEFFIELD, ET AL.
DE
RAM302 FRAM SELF RESTORING FERROELECTRIC 3751171.8-08 3/15/95 12/11/07 EATON, S. SHEFFIELD
DE MEMORY
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 0671765 9/30/98 12/9/14 ARGOS, GEORGE ET AL.
DE FOR A FERROELECTRIC INTEGRATED
CIRCUIT USING HARD CERAMIC
MATERIALS OR THE LIKE
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 TAKENAKA, KAZUHIRO
DE
France 6
==========
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 0671765 9/30/98 12/9/94 ARGOS, GEORGE ET AL.
FR FOR A FERROELECTRIC INTEGRATED
CIRCUIT USING HARD CERAMIC MATERIALS
OR THE LIKE
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 0518117 7/12/95 5/26/12 KAMMERDINER, LEE, ET AL.
FR FERROELECTRIC CAPACITORS IN
INTEGRATED CIRCUITS AND METHOD
Page 196
<PAGE>
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 TANENAKA, KAZUHIRO
FR
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 TAKENAKA, KAZUHIRO
FR
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 LARSON, WILLIAM L., ET AL.
FR CIRCUIT CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 EATON, S. SHEFFIELD
FR
Australia 9
=============
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 640934 6/19/90 6/19/06 LARSON, WILLIAM L., ET AL.
AUS CIRCUIT CAPACITORS
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 622317 5/1/90 5/1/06 GNADINGER, ALFRED P., ET AL.
AUS
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 600370 7/1/88 7/1/04 EATON, S. SHEFFIELD, ET AL.
AUS
RAM304 FRAM TIMEPIECE COMMUNICATION SYSTEM 599523 12/1/88 12/1/04 LYNDON-JAMES, ROSS, ET AL.
AUS RF/ID
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 595147 3/1/89 3/1/05 MOBLEY, KENNETH J.
312 AUS METHOD
RAM309 FRAM FERROELECTRIC RETENTION METHOD 594587 9/29/88 9/29/04 EATON, S. SHEFFIELD, ET AL.
AUS
RAM246/ DRAM METHOD OF MAKING AN INTEGRATED 588856 1/24/86 1/24/02 MCMILLAN, LARRY D., ET AL.
202 AUS FERROELECTRIC DEVICE, AND DEVICE
PRODUCED THEREBY
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 588505 5/4/88 5/4/04 DIMMLER, K., ET AL.
AUS NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC 581820 9/7/87 9/7/03 EATON, S. SHEFFIELD
AUS MEMORY
7/20/99
Page 197
<PAGE>
</TABLE>
RAMTRON INTERNATIONAL CORPORATION
Warrant to Purchase Shares
of Common Stock
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"),
hereby certifies that, for value received and the cancellation of that certain
warrant dated August 31, 1995 for 4,028,485 shares of Common Stock, the
NATIONAL ELECTRICAL BENEFIT FUND or its assigns (the "Holder") is entitled to
purchase from the Company, during the period commencing on the date hereof and
ending at 5:00 p.m. Eastern Time on the Expiration Date (as hereinafter
defined) (the "Warrant Exercise Period"), subject to the terms and conditions
hereinafter set forth, the number of shares of the Common Stock, par value
$0.01, of the Company determined in accordance with Section 1.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Loan Agreement by and between the Holder and
the Company dated effective as of August 6, 1999 (the "Loan Agreement").
1. Number of Warrant Shares. Subject to adjustment as provided in Section 4,
the number of shares of Common Stock for which this Warrant may, at any given
time during the Warrant Exercise Period, be exercised (such total number of
underlying unissued shares as may, from time to time, be issuable upon the
exercise hereof being hereinafter referred to as the "Warrant Shares") shall
be 4,028,485.
2. Exercise Price. This Warrant is exercisable for Warrant Shares at a price
per share (the "Warrant Price") equal to $1.00.
3. Expiration Date. Except as otherwise provided herein, this Warrant shall
expire on the earlier to occur of (a) the date on which this Warrant is fully
exercised and (b) 5:00 p.m. Eastern Time, on September 30, 2008, or, if such
day is not a Business Day, then at 5:00 p.m. Eastern Time on the next
succeeding Business Day (the "Expiration Date").
4. Procedure for Exercise. Subject to Section 5, the Holder may exercise
this Warrant by presenting and surrendering it to the Company at the office
specified in Section 12 between the hours of 9:00 a.m. and 5:00 p.m. on any
Business Day during the Warrant Exercise Period, accompanied by (a) payment in
cash of the aggregate Warrant Price of the Warrant Shares to be purchased and
(b) a subscription form duly executed by the Holder in substantially the form
attached hereto as Annex A. The number of Warrant Shares shall be reduced
immediately upon any partial exercise by the number of shares so purchased,
and a new Warrant, of like tenor and effect herewith, for the remaining
Warrant Shares shall be issued to the Holder.
Page 198
<PAGE>
5. Conditions to Exercise. It shall be a condition precedent to any exercise
of this Warrant to purchase shares of Common Stock that the Holder shall have
obtained, prior to such exercise, all regulatory approvals, if any, required
to lawfully acquire such shares.
6. Covenants. The Company covenants and agrees with the Holder as follows:
(a) All Warrant Shares shall, upon delivery to the Holder, be duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock.
(b) The Company shall pay when due and payable any and all federal and
state original issue stock taxes, if any, that may be payable in
respect of the issuance of Warrant Shares upon whole or partial
exercise of this Warrant.
(c) The Company shall at all times on or after the issuance of this
Warrant and prior to the expiration of the Warrant Exercise Period
reserve and keep available a number of authorized but unissued shares
of Common Stock sufficient to permit the full exercise of this
Warrant. If at any time the number of authorized but unissued shares
of Common Stock is not sufficient for this purpose, the Company shall
take such corporate action as may be necessary to increase the
authorized but unissued shares of Common Stock to a number that is
sufficient for this purpose.
(d) The Company shall cooperate fully with the Holder in obtaining any
regulatory approvals referred to in Section 5 hereof.
7. Loss, Theft, Destruction or Mutilation. Upon delivery by the Holder to
the Company of evidence reasonably satisfactory to the Company of the
ownership and loss, theft, destruction or mutilation of this Warrant, and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company, and (b) in the case of mutilation, of this
Warrant for cancellation, the Company shall execute and deliver, in lieu
thereof, a new Warrant of like tenor and effect herewith; provided, however,
that the Company may require as an additional condition to issuance of any
such substitute Warrant payment of a sum sufficient to reimburse it for any
stamp tax, other governmental charge or out-of-pocket expense connected
therewith.
8. Rights of Holder.
(a) The Holder of this Warrant or of any portion thereof shall not,
solely as such, be entitled to vote or receive dividends or be deemed
the holder of Common Stock for any purpose nor shall anything
contained in this Warrant be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon a merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until this Warrant shall have
been exercised and the Warrant Shares shall have become deliverable.
Page 199
<PAGE>
(b) Regardless of the date of issue and delivery of certificates
representing such shares, the Holder shall for all purposes be deemed
to have become the holder of record of all shares purchased upon
exercise of this Warrant as of the close of business on the date on
which the Company has received, with respect to such purchase,
(a) this Warrant, (b) the Warrant Price and (c) a duly executed
subscription form.
9. Transfer of Warrant. The Company shall, upon surrender to it of this
Warrant, accompanied by one or more duly executed certificates of transfer in
substantially the form attached hereto as Annex B, execute and deliver in lieu
hereof (a) to and in the name of each assignee or transferee, a new Warrant,
of like tenor and effect herewith, representing the right to purchase, on the
same terms and conditions as set forth herein, such number of the Warrant
Shares as shall have been so assigned or transferred; and (b) to the Holder,
in case the right to purchase some portion of the Warrant Shares shall have
been retained by the Holder, a new Warrant, of like tenor and effect herewith,
representing the right to purchase, on the same terms and conditions as set
forth herein, such number of Warrant Shares.
10. Disposition of Shares.
(a) Each Holder understands and agrees that this Warrant and the Warrant
Shares have not been registered under either the Securities Act of
1933, as amended (the "Act") or any applicable state securities laws
(the "State Acts") and may not lawfully be sold or otherwise disposed
of for value except upon registration of such transfer in accordance
with the securities registration requirements of the Act and any
applicable State Acts, or pursuant to an exemption from such
registration requirements.
(b) Any certificates evidencing shares purchased upon exercise hereof
shall be imprinted with a conspicuous legend in substantially the
following form:
The securities represented by this certificate have not been registered
under either the Securities Act of 1933, as amended (the "Act") or
applicable state securities laws (the "State Acts") and shall not be sold
or otherwise disposed of for value by the Holder except upon registration
of such sale or disposition in accordance with the securities
registration requirements of the Act and any applicable State Acts, or
pursuant to exemption from such registration requirements.
(c) In connection with the exercise of this Warrant and the issuance of
the Warrant Shares, and upon the request of Holder, Borrower shall
register under the Securities Act of 1933, as amended, within a
reasonable period of time after the date of such exercise and
issuance, the resale of the Warrant Shares issued pursuant to such
exercise.
Page 200
<PAGE>
11. Adjustment of Purchase Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of the Warrants and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company at any
time while the Warrants remain outstanding and unexpired shall
consolidate with or merge into any other corporation, or sell all or
substantially all of its assets to another corporation, or reclassify
or in any manner change the securities then purchasable upon the
exercise of the Warrants (any of which shall constitute a
"Reorganization"), then lawful and adequate provision shall be made
whereby this Warrant certificate shall thereafter evidence the right
to purchase such number and kind of securities and other property as
would have been issuable or distributable on account of such
Reorganization upon or with respect to the securities which were
purchasable or would have become purchasable under the Warrants
immediately prior to such Reorganization. The Company shall not
effect any such Reorganization unless prior to or simultaneously with
the consummation thereof the successor corporation (if other than the
Company) resulting from such Reorganization shall assume by written
instrument executed and mailed or delivered to the Holder, at the
last address of the Holder appearing on the books of the Company, the
obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder
may be entitled to purchase. Notwithstanding anything in this
Section 11(a) to the contrary, the prior two sentences shall be
inoperative and of no force and effect if upon the completion of any
such Reorganization the stockholders of the Company immediately prior
to such event do not own at least fifty percent (50%) of the equity
interest of the corporation resulting from such Reorganization and
those Warrants which are unexercised shall expire on the completion
of such Reorganization if the notice required by Section 11(e) hereof
has been given.
(b) Subdivision or Combination of Shares. If the Company at any time
while the Warrants remain outstanding and unexpired shall subdivide
or combine its Common Stock, the Warrant Price shall be adjusted to a
price determined by multiplying the Warrant Price in effect
immediately prior to such subdivision or combination by a fraction
(i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such subdivision or
combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such
subdivision or combination.
(c) Certain Dividends and Distribution. If the Company at any time prior
to the expiration of the Warrant Exercise Period shall take a record
of the holders of its Common Stock for the purposes of:
Page 201
<PAGE>
(i) Stock Dividends. Entitling them to receive a dividend payable
in, or to receive any other distribution without consideration
of, Common Stock, then the Warrant Price shall be adjusted to
the price determined by multiplying the Warrant Price in effect
immediately prior to each dividend or distribution by a fraction
(A) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend
or distribution, and (B) the denominator of which shall be the
total number of shares of Common Stock outstanding immediately
after such dividend or distribution; or
(ii) Distribution of Assets, Securities, etc. Making any
distribution without consideration with respect to its Common
Stock (other than a cash dividend) payable otherwise than in
its Common Stock, then the Holder shall, upon the exercise
hereof, be entitled to receive, in addition to the number of
Shares receivable thereupon, and without payment of any
additional consideration therefor, such assets or securities as
would have been payable to the Holder as owner of that number
of Shares on the record date for such distribution; and an
appropriate provision therefor shall be made a part of any such
distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Warrant
Price pursuant to Subsections (b) or (c)(i) of this Section 11, the
number of shares purchasable under the Warrants represented by this
certificate shall be adjusted to that number determined by
multiplying the number of Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment by a fraction, the
numerator of which shall be the Warrant Price immediately prior to
such adjustment and the denominator of which shall be the Warrant
Price immediately following such adjustment.
(e) Notice. In case at any time:
(i) The Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution, excluding a cash
dividend, to the holders of its Common Stock.
(ii) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of
any class or other rights;
(iii) There shall be any reclassification of the Common Stock of the
Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another
corporation; or
(iv) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
Page 202
<PAGE>
then, in any one or more of such cases, the Company shall give to the
Holder at least ten (10) days prior written notice (or, in the event of notice
pursuant to Section 11(e)(iii), at least thirty (30) days prior written
notice) of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect to any such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up. Such
notice in accordance with the foregoing clause shall also specify, in the case
of any such dividend, distribution or subscription rights, the date on which
the holder of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause shall also specify the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the
case may be. Each such written notice shall be given by first-class mail,
postage prepaid, addressed to the Holder at the address of the Holder as shown
on the books of the Company.
(f) No Change in Certificate. The form of this Warrant certificate need
not be changed because of any adjustment in the Warrant Price or in
the number of Warrant Shares purchasable on its exercise. The
Warrant Price or the number of Warrant Shares shall be considered to
have been so changed as of the close of business on the date of
adjustment.
(g) Purchase Price Adjustment. The exercise price of the Warrant shall
be adjusted downward, from time to time, to equal the lowest price of
any (i) warrant for common stock issued by the Company to any
employee, investor, or other Person or entity, or (ii) stock option
granted to any officer of the Company, provided, that such price
adjustment shall not apply to warrants issued to Cappello Capital
Corp. or CEA Montgomery as a result of the capital restructuring of
the Company, which is the subject of the July 20, 1999 Proxy
Statement of the Company, as such restructuring has been approved by
the Holder in its capacity as a shareholder of the Company.
12. Notices. All notices and other communications pursuant hereto shall be
in writing and shall be deemed given if delivered in person or sent by United
States registered mail, postage prepaid:
If to the Company at:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
Page 203
<PAGE>
If to the Holder at:
The National Electrical Benefit Fund
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
with copies to:
Jeffrey J. Kanne, Esq.
Counts & Kanne, Chartered
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
or at such other address as either party may designate in writing by
notice to the other party as provided above.
13. Termination. This Warrant shall automatically and immediately terminate,
without any further action by the Company or the Holder, upon the occurrence
of any of the following:
(i) any voluntary or involuntary proceeding shall be commenced with
respect to the Holder in a court of competent jurisdiction seeking
relief under any applicable bankruptcy, insolvency or similar law;
(ii) a receiver, custodian, sequestrator or similar official for the
Holder or for any substantial part of its property shall be
appointed or elected;
(iii) the Holder shall commence any winding-up or liquidation, voluntary
or involuntary, of the Holder;
(iv) the Holder shall make a general assignment for the benefit of its
creditors or become unable generally, or admit in writing its
inability, to pay its debts as they become due; or
(v) the Holder shall take any corporate or similar action for the
purpose of effecting any of the foregoing.
14. Miscellaneous. This Warrant contains the entire agreement between the
parties with respect to the matters set forth herein and may not be modified,
supplemented or amended except in a writing signed by both parties. This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware.
WITNESS the following signature effective as of the 6th day of August 1999.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
- -----------------------
L. David Sikes, Chairman and CEO
9:15 a.m., 06 August 1999
Page 204
<PAGE>
ANNEX A
SUBSCRIPTION FORM
To Be Executed if Holder Desires
To Exercise Warrant
The undersigned hereby exercises, according to the terms and conditions
hereof, all or part (as indicated below) of this Warrant and herewith makes
payment of the applicable Warrant Price in full.
Name(s) ----------------------
Address ----------------------
No. of Shares ----------------
Dated --------------
Signature(s) ------------------------------
- ------------------------------
Social Security Number or
Employer Identification Number
Page 205
<PAGE>
ANNEX B
CERTIFICATE OF TRANSFER
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
Date: --------------------
Gentlemen:
With reference to the Warrant to Purchase Shares of Common Stock dated ------
(the "Warrant"), issued by Ramtron International Corporation (the "Company")
to -------------------------- (the "Holder"), representing as of the date
hereof the right to purchase, on the terms and subject to the conditions
herein set forth, -------------- shares of the Common Stock, par value $0.01,
of the Company (the "Warrant Shares"), the undersigned Holder hereby
transfers, conveys and assigns to -----------------------, subject to the
terms and conditions of the Warrant, the right to purchase -------------- of
such Warrant Shares. By this transfer, all rights of the undersigned Holder
with respect to such number of the Warrant Shares are transferred to the
transferee.
Enclosed herewith is the original Warrant so that the Company may issue in
lieu thereof (a) to the transferee, a new Warrant, of like tenor and effect
therewith, for the number of Warrant Shares with respect to which the
undersigned Holder's rights under the Warrant are hereby transferred, conveyed
and assigned, and (b) if the undersigned Holder has retained its rights under
the Warrant with respect to some portion of the Warrant Shares, a new Warrant,
of like tenor and effect therewith, for such number of the Warrant Shares.
- ----------------------------
as Holder
By: ------------------------
Title: ---------------------
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<PAGE>
RAMTRON INTERNATIONAL CORPORATION
Warrant to Purchase Shares
of Common Stock
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"),
hereby certifies that, for value received, the NATIONAL ELECTRICAL BENEFIT FUND
or its assigns (the "Holder") is entitled to purchase from the Company, during
the period commencing on the date hereof and ending at 5:00 p.m. Eastern Time
on the Expiration Date (as hereinafter defined) (the "Warrant Exercise
Period"), subject to the terms and conditions hereinafter set forth, the number
of shares of the Common Stock, par value $0.01, of the Company determined in
accordance with Section 1.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Loan Agreement by and between the Holder and
the Company dated effective as of August 6, 1999 (the "Loan Agreement").
1. Number of Warrant Shares. Subject to adjustment as provided in Section 4,
the number of shares of Common Stock for which this Warrant may, at any given
time during the Warrant Exercise Period, be exercised (such total number of
underlying unissued shares as may, from time to time, be issuable upon the
exercise hereof being hereinafter referred to as the "Warrant Shares") shall
be 500,000.
2. Exercise Price. This Warrant is exercisable for Warrant Shares at a price
per share (the "Warrant Price") equal to $0.469.
3. Expiration Date. Except as otherwise provided herein, this Warrant shall
expire on the earlier to occur of (a) the date on which this Warrant is fully
exercised and (b) 5:00 p.m. Eastern Time, on August 6, 2009, or, if such
day is not a Business Day, then at 5:00 p.m. Eastern Time on the next
succeeding Business Day (the "Expiration Date").
4. Procedure for Exercise. Subject to Section 5, the Holder may exercise
this Warrant by presenting and surrendering it to the Company at the office
specified in Section 12 between the hours of 9:00 a.m. and 5:00 p.m. on any
Business Day during the Warrant Exercise Period, accompanied by (a) payment in
cash of the aggregate Warrant Price of the Warrant Shares to be purchased and
(b) a subscription form duly executed by the Holder in substantially the form
attached hereto as Annex A. The number of Warrant Shares shall be reduced
immediately upon any partial exercise by the number of shares so purchased,
and a new Warrant, of like tenor and effect herewith, for the remaining
Warrant Shares shall be issued to the Holder.
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<PAGE>
5. Conditions to Exercise. It shall be a condition precedent to any exercise
of this Warrant to purchase shares of Common Stock that the Holder shall have
obtained, prior to such exercise, all regulatory approvals, if any, required
to lawfully acquire such shares.
6. Covenants. The Company covenants and agrees with the Holder as follows:
(a) All Warrant Shares shall, upon delivery to the Holder, be duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock.
(b) The Company shall pay when due and payable any and all federal and
state original issue stock taxes, if any, that may be payable in
respect of the issuance of Warrant Shares upon whole or partial
exercise of this Warrant.
(c) The Company shall at all times on or after the issuance of this
Warrant and prior to the expiration of the Warrant Exercise Period
reserve and keep available a number of authorized but unissued shares
of Common Stock sufficient to permit the full exercise of this
Warrant. If at any time the number of authorized but unissued shares
of Common Stock is not sufficient for this purpose, the Company shall
take such corporate action as may be necessary to increase the
authorized but unissued shares of Common Stock to a number that is
sufficient for this purpose.
(d) The Company shall cooperate fully with the Holder in obtaining any
regulatory approvals referred to in Section 5 hereof.
7. Loss, Theft, Destruction or Mutilation. Upon delivery by the Holder to
the Company of evidence reasonably satisfactory to the Company of the
ownership and loss, theft, destruction or mutilation of this Warrant, and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company, and (b) in the case of mutilation, of this
Warrant for cancellation, the Company shall execute and deliver, in lieu
thereof, a new Warrant of like tenor and effect herewith; provided, however,
that the Company may require as an additional condition to issuance of any
such substitute Warrant payment of a sum sufficient to reimburse it for any
stamp tax, other governmental charge or out-of-pocket expense connected
therewith.
8. Rights of Holder.
(a) The Holder of this Warrant or of any portion thereof shall not,
solely as such, be entitled to vote or receive dividends or be deemed
the holder of Common Stock for any purpose nor shall anything
contained in this Warrant be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon a merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until this Warrant shall have
been exercised and the Warrant Shares shall have become deliverable.
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<PAGE>
(b) Regardless of the date of issue and delivery of certificates
representing such shares, the Holder shall for all purposes be deemed
to have become the holder of record of all shares purchased upon
exercise of this Warrant as of the close of business on the date on
which the Company has received, with respect to such purchase,
(a) this Warrant, (b) the Warrant Price and (c) a duly executed
subscription form.
9. Transfer of Warrant. The Company shall, upon surrender to it of this
Warrant, accompanied by one or more duly executed certificates of transfer in
substantially the form attached hereto as Annex B, execute and deliver in lieu
hereof (a) to and in the name of each assignee or transferee, a new Warrant,
of like tenor and effect herewith, representing the right to purchase, on the
same terms and conditions as set forth herein, such number of the Warrant
Shares as shall have been so assigned or transferred; and (b) to the Holder,
in case the right to purchase some portion of the Warrant Shares shall have
been retained by the Holder, a new Warrant, of like tenor and effect herewith,
representing the right to purchase, on the same terms and conditions as set
forth herein, such number of Warrant Shares.
10. Disposition of Shares.
(a) Each Holder understands and agrees that this Warrant and the Warrant
Shares have not been registered under either the Securities Act of
1933, as amended (the "Act") or any applicable state securities laws
(the "State Acts") and may not lawfully be sold or otherwise disposed
of for value except upon registration of such transfer in accordance
with the securities registration requirements of the Act and any
applicable State Acts, or pursuant to an exemption from such
registration requirements.
(b) Any certificates evidencing shares purchased upon exercise hereof
shall be imprinted with a conspicuous legend in substantially the
following form:
The securities represented by this certificate have not been registered
under either the Securities Act of 1933, as amended (the "Act") or
applicable state securities laws (the "State Acts") and shall not be sold
or otherwise disposed of for value by the Holder except upon registration
of such sale or disposition in accordance with the securities
registration requirements of the Act and any applicable State Acts, or
pursuant to exemption from such registration requirements.
(c) In connection with the exercise of this Warrant and the issuance of
the Warrant Shares, and upon the request of Holder, Borrower shall
register under the Securities Act of 1933, as amended, within a
reasonable period of time after the date of such exercise and
issuance, the resale of the Warrant Shares issued pursuant to such
exercise.
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<PAGE>
11. Adjustment of Purchase Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of the Warrants and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company at any
time while the Warrants remain outstanding and unexpired shall
consolidate with or merge into any other corporation, or sell all or
substantially all of its assets to another corporation, or reclassify
or in any manner change the securities then purchasable upon the
exercise of the Warrants (any of which shall constitute a
"Reorganization"), then lawful and adequate provision shall be made
whereby this Warrant certificate shall thereafter evidence the right
to purchase such number and kind of securities and other property as
would have been issuable or distributable on account of such
Reorganization upon or with respect to the securities which were
purchasable or would have become purchasable under the Warrants
immediately prior to such Reorganization. The Company shall not
effect any such Reorganization unless prior to or simultaneously with
the consummation thereof the successor corporation (if other than the
Company) resulting from such Reorganization shall assume by written
instrument executed and mailed or delivered to the Holder, at the
last address of the Holder appearing on the books of the Company, the
obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder
may be entitled to purchase. Notwithstanding anything in this
Section 11(a) to the contrary, the prior two sentences shall be
inoperative and of no force and effect if upon the completion of any
such Reorganization the stockholders of the Company immediately prior
to such event do not own at least fifty percent (50%) of the equity
interest of the corporation resulting from such Reorganization and
those Warrants which are unexercised shall expire on the completion
of such Reorganization if the notice required by Section 11(e) hereof
has been given.
(b) Subdivision or Combination of Shares. If the Company at any time
while the Warrants remain outstanding and unexpired shall subdivide
or combine its Common Stock, the Warrant Price shall be adjusted to a
price determined by multiplying the Warrant Price in effect
immediately prior to such subdivision or combination by a fraction
(i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such subdivision or
combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such
subdivision or combination.
(c) Certain Dividends and Distribution. If the Company at any time prior
to the expiration of the Warrant Exercise Period shall take a record
of the holders of its Common Stock for the purposes of:
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<PAGE>
(i) Stock Dividends. Entitling them to receive a dividend payable
in, or to receive any other distribution without consideration
of, Common Stock, then the Warrant Price shall be adjusted to
the price determined by multiplying the Warrant Price in effect
immediately prior to each dividend or distribution by a fraction
(A) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend
or distribution, and (B) the denominator of which shall be the
total number of shares of Common Stock outstanding immediately
after such dividend or distribution; or
(ii) Distribution of Assets, Securities, etc. Making any
distribution without consideration with respect to its Common
Stock (other than a cash dividend) payable otherwise than in
its Common Stock, then the Holder shall, upon the exercise
hereof, be entitled to receive, in addition to the number of
Shares receivable thereupon, and without payment of any
additional consideration therefor, such assets or securities as
would have been payable to the Holder as owner of that number
of Shares on the record date for such distribution; and an
appropriate provision therefor shall be made a part of any such
distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Warrant
Price pursuant to Subsections (b) or (c)(i) of this Section 11, the
number of shares purchasable under the Warrants represented by this
certificate shall be adjusted to that number determined by
multiplying the number of Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment by a fraction, the
numerator of which shall be the Warrant Price immediately prior to
such adjustment and the denominator of which shall be the Warrant
Price immediately following such adjustment.
(e) Notice. In case at any time:
(i) The Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution, excluding a cash
dividend, to the holders of its Common Stock.
(ii) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of
any class or other rights;
(iii) There shall be any reclassification of the Common Stock of the
Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another
corporation; or
(iv) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
Page 211
<PAGE>
then, in any one or more of such cases, the Company shall give to the
Holder at least ten (10) days prior written notice (or, in the event of notice
pursuant to Section 11(e)(iii), at least thirty (30) days prior written
notice) of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect to any such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up. Such
notice in accordance with the foregoing clause shall also specify, in the case
of any such dividend, distribution or subscription rights, the date on which
the holder of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause shall also specify the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the
case may be. Each such written notice shall be given by first-class mail,
postage prepaid, addressed to the Holder at the address of the Holder as shown
on the books of the Company.
(f) No Change in Certificate. The form of this Warrant certificate need
not be changed because of any adjustment in the Warrant Price or in
the number of Warrant Shares purchasable on its exercise. The
Warrant Price or the number of Warrant Shares shall be considered to
have been so changed as of the close of business on the date of
adjustment.
(g) Purchase Price Adjustment. The exercise price of the Warrant shall
be adjusted downward, from time to time, to equal the lowest price of
any (i) warrant for common stock issued by the Company to any
employee, investor, or other Person or entity, or (ii) stock option
granted to any officer of the Company, provided, that such price
adjustment shall not apply to warrants issued to Cappello Capital
Corp. or CEA Montgomery as a result of the capital restructuring of
the Company, which is the subject of the July 20, 1999 Proxy
Statement of the Company, as such restructuring has been approved by
the Holder in its capacity as a shareholder of the Company.
12. Notices. All notices and other communications pursuant hereto shall be
in writing and shall be deemed given if delivered in person or sent by United
States registered mail, postage prepaid:
If to the Company at:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
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<PAGE>
If to the Holder at:
The National Electrical Benefit Fund
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
with copies to:
Jeffrey J. Kanne, Esq.
Counts & Kanne, Chartered
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
or at such other address as either party may designate in writing by
notice to the other party as provided above.
13. Termination. This Warrant shall automatically and immediately terminate,
without any further action by the Company or the Holder, upon the occurrence
of any of the following:
(i) any voluntary or involuntary proceeding shall be commenced with
respect to the Holder in a court of competent jurisdiction seeking
relief under any applicable bankruptcy, insolvency or similar law;
(ii) a receiver, custodian, sequestrator or similar official for the
Holder or for any substantial part of its property shall be
appointed or elected;
(iii) the Holder shall commence any winding-up or liquidation, voluntary
or involuntary, of the Holder;
(iv) the Holder shall make a general assignment for the benefit of its
creditors or become unable generally, or admit in writing its
inability, to pay its debts as they become due; or
(v) the Holder shall take any corporate or similar action for the
purpose of effecting any of the foregoing.
14. Miscellaneous. This Warrant contains the entire agreement between the
parties with respect to the matters set forth herein and may not be modified,
supplemented or amended except in a writing signed by both parties. This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware.
WITNESS the following signature effective as of the 6th day of August 1999.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
- -----------------------
L. David Sikes, Chairman and CEO
9:15 a.m., 06 August 1999
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<PAGE>
ANNEX A
SUBSCRIPTION FORM
To Be Executed if Holder Desires
To Exercise Warrant
The undersigned hereby exercises, according to the terms and conditions
hereof, all or part (as indicated below) of this Warrant and herewith makes
payment of the applicable Warrant Price in full.
Name(s) ----------------------
Address ----------------------
No. of Shares ----------------
Dated --------------
Signature(s) ------------------------------
- ------------------------------
Social Security Number or
Employer Identification Number
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<PAGE>
ANNEX B
CERTIFICATE OF TRANSFER
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
Attention: Chief Executive Officer
Date: --------------------
Gentlemen:
With reference to the Warrant to Purchase Shares of Common Stock dated ------
(the "Warrant"), issued by Ramtron International Corporation (the "Company")
to -------------------------- (the "Holder"), representing as of the date
hereof the right to purchase, on the terms and subject to the conditions
herein set forth, -------------- shares of the Common Stock, par value $0.01,
of the Company (the "Warrant Shares"), the undersigned Holder hereby
transfers, conveys and assigns to -----------------------, subject to the
terms and conditions of the Warrant, the right to purchase -------------- of
such Warrant Shares. By this transfer, all rights of the undersigned Holder
with respect to such number of the Warrant Shares are transferred to the
transferee.
Enclosed herewith is the original Warrant so that the Company may issue in
lieu thereof (a) to the transferee, a new Warrant, of like tenor and effect
therewith, for the number of Warrant Shares with respect to which the
undersigned Holder's rights under the Warrant are hereby transferred, conveyed
and assigned, and (b) if the undersigned Holder has retained its rights under
the Warrant with respect to some portion of the Warrant Shares, a new Warrant,
of like tenor and effect therewith, for such number of the Warrant Shares.
- ----------------------------
as Holder
By: ------------------------
Title: ---------------------
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<PAGE>
NEWS FOR RELEASE: IMMEDIATE CONTACT: Lee A. Brown
Ramtron
719-481-7213
RAMTRON COMPLETES PREFERRED STOCK RESTRUCTURING,
EFFECTS ONE-FOR-FIVE REVERSE STOCK SPLIT
COLORADO SPRINGS, CO, August 6, 1999 - Ramtron International Corporation
(Nasdaq: RMTCD) announced today that it has consummated an agreement with a
majority of the Company's preferred stockholders to restate the terms of the
Company's Series A Convertible Preferred Stock ("Preferred"). The preferred
stockholders have ten days to select from three options presented in the
restructuring agreement. Details of the options presented can be found in the
Company's proxy statement dated June 21, 1999. Additionally, the Company has
secured an agreement to amend the scheduled maturity date of an August 31, 1995
Loan Agreement between the Company and the National Electrical Benefit Fund to
March 15, 2002.
The Company also announced that a one-for-five reverse stock split of the
Company's common stock would be effective prior to the beginning of trading on
August 8, 1999. Subsequent to the reverse stock split, Ramtron will have
approximately 12.6 million common shares outstanding. Stockholders will be
notified and requested to submit their certificates representing shares of
common stock to the Company's transfer agent, Citibank N.A., in exchange for
new certificates representing post-reverse split common stock. One share of
new common stock will be issued in exchange for each five presently outstanding
shares of common stock.
As of August 8, 1999, the Company's common stock will trade temporarily under
ticker symbol "RMTCD". Ramtron's common stock symbol will revert back to its
original listing under "RMTR" provided that the Company satisfies Nasdaq's
$1.00 minimum closing bid requirement for 10 consecutive trading days
subsequent to August 8th. The Company plans to announce any changes to the
trading symbol as they occur.
For additional information regarding Ramtron, contact Communications
Department, 1850 Ramtron Drive, Colorado Springs, Colorado USA, 80921.
Telephone 800-545-FRAM (3726); fax 719-488-9095; e-mail [email protected]; Web
page http://www.ramtron.com.
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The unaudited Pro Forma Condensed Consolidated Statements of Operations of the
Company for the fiscal year ended December 31, 1998 and the six-month period
ended June 30, 1999 (the "Pro Forma Statements of Operations"), and the
Unaudited Pro Forma Condensed Consolidated Balance Sheet of the Company as of
June 30, 1999 (the "Pro Forma Balance Sheet" and, together with the Pro Forma
Statements of Operations, the "Pro Forma Financial Statements"), have been
prepared to illustrate the estimated effect of the Company's capital
restructuring transactions with its Series A Convertible Preferred
stockholders, the entities advised by Dimensional Fund Advisors, Inc. and the
National Electrical Benefit Fund. Because the Series A Convertible Preferred
Stock was issued during the period (February 25, 1998), the Pro Forma
Statements of Operations give pro forma effect to the Company's capital
restructuring as if the restructured terms had been in place for all periods
presented. The Pro forma Balance Sheet gives pro forma effect to
the Company's capital restructuring as if it had occurred on June 30, 1999.
The Pro Forma Financial Statements do not purport to be indicative of the
results of operations or financial position of the Company that would have
actually been obtained had such transactions been completed as of the assumed
dates and for the periods presented, or which may be obtained in the future.
The pro forma adjustments are described in the accompanying notes and are based
upon available information and certain assumptions that the Company believes
are reasonable. The Pro Forma Financial Statements should be read in
conjunction with the separate historical consolidated financial statements of
the Company and the notes thereto and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" filed with the Securities and
Exchange Commission on Form 10-K/A for the year ended December 31, 1998 and
Form 10-Q for the period ended June 30, 1999.
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<PAGE>
RAMTRON INTERNATIONAL CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
For the six months ended June 30, 1999
(in thousands, except per share data)
Six-Month
Period Ended Pro Forma Pro Forma
June 30, 1999(1) Adjustments Combined(2)
------------- ----------- ---------
Revenue $10,866 -- $10,866
Costs and expenses 14,989 -- 14,989
--------- --------- ---------
Operating loss (4,123) -- (4,123)
Other expense, net (184) -- (184)
--------- --------- ---------
Net loss $(4,307) -- $(4,307)
========= ========= =========
Income (loss) per common share:
Net loss $(4,307) -- $(4,307)
Dividends and accretion of
discount on convertible
preferred stock (768) 642 (3) (126)
Gain on preferred stock settlement 579 -- (5) 579
--------- --------- ---------
Net income (loss) applicable to
common shares $(4,496) $642 $(3,854)
========= ========= =========
Net income (loss) per share $(0.37) $(0.29)
========= =========
Weighted average shares outstanding 12,140 1,105 (5) 13,245
========= ========= =========
See Notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.
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<PAGE>
RAMTRON INTERNATIONAL CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
For the year ended December 31, 1998
(in thousands, except per share data)
Year Ended Pro Forma Pro Forma
Dec. 31, 1998(1) Adjustments Combined(2)
------------- ----------- ---------
Revenue $18,554 -- $18,554
Costs and expenses 31,539 -- 31,539
--------- --------- ---------
Operating loss (12,985) -- (12,985)
Other expense, net (3,446) -- (3,446)
--------- --------- ---------
Net loss $(16,431) -- $(16,431)
========= ========= =========
Income (loss) per common share:
Net loss $(16,431) -- $(16,431)
Dividends and accretion of
discount on convertible
preferred stock (2,710) 1,417 (4) (1,293)
Gain on preferred stock settlement -- -- (5) --
--------- --------- ---------
Net income (loss) applicable to
common shares $(19,141) $1,417 $(17,724)
========= ========= =========
Net income (loss) per share $(2.23) $(1.86)
========= =========
Weighted average shares outstanding 8,572 938 9,510
========= ========= =========
See Notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.
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<PAGE>
RAMTRON INTERNATIONAL CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
June 30, 1999
(in thousands, except per share data)
Pro Forma Pro Forma
June 30, 1999(1) Adjustments Combined
------------- ----------- ---------
ASSETS
Current Assets:
Cash and cash equivalents $ 7,347 $(2,290)(6) $5,057
Accounts receivable, net 4,044 -- 4,044
Inventories 4,848 -- 4,848
Other current assets 280 -- 280
--------- --------- ---------
Total current assets 16,519 (2,290) 14,229
Property, plant and equipment, net 6,607 -- 6,607
Intangible assets, net 5,088 -- 5,088
--------- --------- ---------
$28,214 $(2,290) $25,924
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable & accrued
liabilities $ 5,250 $ -- $ 5,250
Common stock price adjustment 3,224 (3,224)(7) --
Promissory notes -- 3,224 (7) 3,224
Promissory note and accrued
interest, related party 7,458 (7,000)(8) 458
--------- --------- ---------
Total current liabilities 15,932 (7,000) 8,932
Long-term promissory note, related
party -- 7,000 (8) 7,000
--------- --------- ---------
15,932 -- 15,932
--------- --------- ---------
Convertible preferred stock -- 869 (9) 869
--------- --------- ---------
Stockholders' Equity
Convertible preferred stock 8,726 (8,726)(10) --
Common stock 126 11 (11) 137
Additional paid-in capital 166,446 5,556 (12) 172,002
Accumulated deficit (163,016) -- (163,016)
--------- --------- ---------
Total stockholders' equity 12,282 (3,159) 9,123
--------- --------- ---------
$28,214 $(2,290) $25,924
========= ========= =========
See Notes to Unaudited Pro Forma Condensed Consolidated Financial Statements.
Page 220
<PAGE>
- --------------
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) Represents historical results of operations and balance sheet information
derived from financial statements included in the Company's 1998 Form
10-K/A and June 30, 1999 Form 10-Q, as applicable. Amounts shown in
Stockholders' Equity have been adjusted to reflect the Company's 1-for-5
reverse stock split which became effective at the close of market trading
on August 6, 1999. See "Item 5 - Other Events" of this Form 8-K of which
this exhibit is incorporated therein for terms of the Capital
Restructuring pertaining to the Pro Forma Financial Statements presented
herein.
(2) The Pro Forma Statements of Operations assume the Capital Restructuring
of the Company that was completed on August 16, 1999 was in effect for all
periods presented because the Series A Convertible Preferred stock was
issued during the period (February 25, 1998).
(3) Represents the reversal of dividends and accretion of discount recorded
for the six month period ended June 30, 1999 on the face amount of
Series A Preferred ($8,006,000) that elected the $3.75 exchange option
and the 50% of liquidation value exchange option.
(4) Represents the reversal of dividends and accretion of discount recorded
for the year ended December 31, 1998 on the face amount of Series A
Preferred ($8,006,000) that elected the $3.75 exchange option and the 50%
of liquidation value exchange option.
(5) A combined gain on the preferred stock settlement totaling approximately
$3.2 million resulted from (i) the exchange of outstanding Series A
Preferred shares plus accrued dividends for shares of the Company's common
stock at an exchange ratio of $3.75 of liquidation value of Series A
Preferred per share of common stock, and (ii) the exchange of preferred
stock plus accrued dividends for cash in the amount per Series A Preferred
share equal to 50% of the liquidation value thereof. The non-recurring
gain resulted directly from the restructuring transaction and thus is not
reflected as a component of net income (loss) applicable to common shares
in the accompanying unaudited pro forma condensed consolidated statements
of operations. The gain, which represents approximately $0.24 per share,
will be reflected in the Company's net income (loss) applicable to common
shares for the three month period ended September 30, 1999. The
calculation of the gain on the Capital Restructuring transaction is
calculated as follows:
(Amounts shown are in thousands except for per share amounts and reflect
the Company's 1-for-5 reverse stock split which was effected on
August 6, 1999.)
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(i) Carrying amount and accrued dividends on
Series A Preferred shares electing the $3.75
exchange option $3,745
Less market value of shares upon exchange (2,417)
--------
Net gain on settlement from the $3.75
exchange option $1,328
========
The market value of the shares of common stock issued was
calculated by multiplying the number of shares of common stock
issued, totaling 1,105, by the closing price of the Company's
common stock as reported on The Nasdaq Stock Market on August 16,
1999 ($2.1875 post-split), which totals $2,417.
(ii) Carrying amount and accrued dividends on
Series A Preferred shares electing the 50%
of liquidation value exchange option $4,112
Less cash paid to holders electing 50% of
Liquidation value exchange option (2,290)
--------
Net gain pursuant to 50% of liquidation value
exchange option $1,822
========
The combined gains from the preferred stock settlement resulting
from the $3.75 exchange option and the 50% of liquidation value
exchange option total $3,150.
(6) Represents the amount paid to Series A Preferred stockholders who elected
the 50% of liquidation value exchange option pursuant to the terms of the
Restructuring.
(7) Pursuant to the terms of the Capital Restructuring, the Company issued to
certain affiliates of Dimensional Fund Advisors, Inc (the "DFA
Affiliates") one-year unsecured promissory notes, bearing interest at 8%
per annum and maturing on July 31, 2000, in consideration of the
termination of certain Common Stock purchase rights of the DFA Affiliates.
(8) Pursuant to the terms of the Capital Restructuring, the Company entered
into an agreement with the National Electrical Benefit Fund (the "Fund")
to extend to March 15, 2002 from the amended maturity date of August 31,
1999, the scheduled maturity date of Ramtron's August 31, 1995, Loan
Agreement between the Company and the Fund. The agreement called for the
extension of $7 million of principal and accrued interest and any
additional accrued interest was to be paid in cash by the Company to the
Fund.
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(9) Represents the carrying value of Series A Preferred stock and accrued
dividends for Series A Preferred stockholders who chose to continue to own
shares of the Series A Preferred stock pursuant to the terms of the
Capital Restructuring. Because the restated terms of the Series A
Preferred stock include a mandatory redemption feature upon the three-year
maturity of the instrument, the Series A Preferred stock is not included
as a component of Stockholders' Equity and is therefore classified between
Long-term Debt and Stockholders' Equity on the Unaudited Pro Forma
Condensed Consolidated Balance Sheet.
(10) Pursuant to the terms of the Restructuring, all previously issued shares
of Series A Preferred were either amended (see Note (9)), converted to
common stock or redeemed.
(11) Represents 1.1 million shares of common stock, $.01 par value, issued
pursuant to the Capital Restructuring to the Series A Preferred
stockholders who elected the $3.75 exchange option.
(12) Represents the residual adjustment for the transactions represented in
notes (5) and (11) above as follows:
Market value of common shares issued (less par value) $2,406
Gain on redemption of Series A Convertible Preferred stock 3,150
------
$5,556
======
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