SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is dated the 14th day of
December 2000, by and between Infineon Technologies AG, a German stock
corporation (Aktiengesellschaft) ("Infineon"), having an address at St.-Martin-
Strasse 53, Munich, Germany, and Ramtron International Corporation, a Delaware
corporation ("Ramtron"), having an address at 1850 Ramtron Drive, Colorado
Springs, Colorado, 80921, United States of America.
WHEREAS, Ramtron desires to issue, and Infineon desires to subscribe for and
purchase for cash, certain securities of Ramtron, in accordance with the terms
hereof;
WHEREAS, Ramtron desires to issue, and Infineon desires to subscribe for,
additional securities of Ramtron, and, as the purchase price therefor, Infineon
desires to issue, and Ramtron desires to subscribe for, certain securities of
Infineon, in accordance with the terms hereof;
WHEREAS, contemporaneously with the execution of this Agreement, and as a
condition of the parties' willingness to enter into this Agreement, Infineon
and Ramtron have entered into a Technology License and Services Agreement,
dated as of the date hereof, and a Technology License Agreement, dated as of
the date hereof, each related to FRAM semiconductor technology (the "License
Agreements"), providing for the transactions contemplated thereby upon the
terms and conditions set forth in the License Agreements;
WHEREAS, the board of directors of Ramtron and the management board of Infineon
have approved this Agreement, the Transaction Agreements and the transactions
contemplated hereby and thereby;
WHEREAS, Infineon and Ramtron desire to make certain representations,
warranties, covenants and agreements in connection with this Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
conditions herein contained, Infineon and Ramtron, intending to be legally
bound, hereby agree as follows:
SECTION 1
DEFINITIONS
Unless the context otherwise requires, all capitalized terms used in the
Agreement and in the Exhibits (other than Exhibits 2.1 and A) and Annexes
thereto shall have the following meanings:
"AAA" shall have the meaning specified in Section 9.2 of the Agreement.
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"Accredited Investor" shall have the meaning specified in Rule 501(a) under the
Securities Act.
"Agreement" shall have the meaning specified in the Preamble.
"Articles of Incorporation" shall have the meaning specified in Section 2.1.
"Average Closing Price" shall mean the average of the per share closing prices
of Infineon Ordinary Shares or Ramtron Common Stock, as the case may be, as
reported on the Frankfurt Stock Exchange, using the Kassakurs price on the
relevant trading days (in the case of Infineon Ordinary Shares), or on The
Nasdaq SmallCap Market System (in the case of Ramtron Common Stock) (as
reported, as the case may be, in the New York City edition of The Wall Street
Journal, or the Frankfurter Allgemeine Zeitung, or if not reported thereby or
if manifestly erroneous, another authoritative source) for the five (5) trading
days prior to the date of this Agreement.
A Person shall be deemed the "Beneficial Owner," and to have "Beneficial
Ownership" of, and to "Beneficially Own," any securities as to which such
Person is or may be deemed to be the beneficial owner pursuant to Rule 13d-3
and 13d-5 under the Exchange Act, as such rules are in effect on the date of
this Agreement, as well as any securities as to which such Person has the right
to become the Beneficial Owner (whether such right is exercisable immediately
or only after the passage of time or the occurrence of conditions) pursuant to
any agreement, arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with respect to a bona
fide public offering of securities), or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise.
"Business Day" shall mean any day, other than a Saturday, a Sunday or a day on
which banks are authorized by law to close in New York, New York or Frankfurt,
Germany.
"Cash Closing" shall have the meaning specified in Section 2A.4 of the
Agreement.
"Cash Consideration" shall have the meaning specified in Section 2A.3 of the
Agreement.
"Change of Control" shall mean, with respect to any party, any transaction or
event in connection with a plan pursuant to which (i) all or substantially all
of the assets of or (ii) equity interests in such party that have the power to
cast at least 50% of the votes entitled to be cast in elections of directors
(or similar officials) of such party, shall be exchanged for, converted into or
acquired for or constitute the right to receive securities, cash or other
property (whether by means of a tender or exchange offer, reclassification,
consolidation, merger, sale or other disposition of such assets or such equity
interests, compulsory exchange of equity interests, liquidation or otherwise).
In the case of a Change in Control effected through a series of transactions or
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events, such Change in Control shall be deemed to have occurred when
(i) substantially all of the assets of such party or (ii) equity interests in
such party that have the power to cast at least 50% of the votes entitled to be
cast in elections of directors (or similar officials) of such party, shall be
exchanged for, converted into or acquired for or constitute the right to
receive securities, cash or other property.
"Claims and Liabilities" shall have the meaning specified in Section 8.2 of the
Agreement.
"Clearstream" shall mean Clearstream Banking AG.
"December Resolution" shall have the meaning specified in Section 2.1 of the
Agreement.
"Deductible Amount" shall have the meaning specified in Section 8.4 of the
Agreement.
"DOJ" shall have the meaning specified in Section 7.5 of the Agreement.
"EMS" shall have the meaning specified in Section 7.8 of the Agreement.
"Exchange Act" shall mean United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Exchange Ratio" shall have the meaning specified in Section 2.1 of the
Agreement.
"Final Closing Date" shall mean the date of the Final Stock Closing.
"Final Stock Closing" shall have the meaning specified in Section 2.5 of the
Agreement.
"First Offer Shares" shall have the meaning specified in Section 7.8 of the
Agreement.
"First Refusal Shares" shall have the meaning specified in Section 7.10 of the
Agreement.
"Frankfurt Stock Exchange" means Frankfurter Wertpapierborse, a stock exchange
located in Frankfurt, Germany.
"FTC" shall have the meaning specified in Section 7.5 of the Agreement.
"Grandfathered Entities" shall have the meaning specified in Section 7.5 of the
Agreement.
"Holding Period" shall have the meaning specified in Section 5.1 of the
Agreement.
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"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"HSR Clearance" shall mean expiration or earlier termination of the applicable
waiting period requirements in connection with filings required to be made
under the HSR Act.
"HSR Report" shall have the meaning specified in Section 7.5 of the Agreement.
"Infineon Director" shall have the meaning specified in Section 7.3 of the
Agreement.
"Infineon Ordinary Shares" shall have the meaning specified in Section 2.1 of
the Agreement.
"Infineon SEC Documents" shall have the meaning specified in Section 3.9 of the
Agreement.
"Infineon Share Certificate" shall have the meaning specified in Section 2.5(b)
of the Agreement.
"Infineon Shares" shall have the meaning specified in Section 2.2 of the
Agreement.
"Infineon Subscription" shall have the meaning specified in Section 2.3 of the
Agreement.
"Infineon Subscription Form" shall have the meaning specified in Section 2.3.
"Indemnifying Party" shall have the meaning specified in Section 8.5 of the
Agreement.
"Indemnitee" shall have the meaning specified in Section 8.5 of the Agreement.
"Initial Closing Date" shall mean the date of the Initial Closing.
"Initial Stock Closing" shall have the meaning specified in Section 2.3 of the
Agreement.
"Intellectual Property Rights" shall mean all worldwide industrial and
intellectual property rights, including, without limitation, patents, patent
applications, patent rights, trademarks, trademark applications, trade names,
service marks, service mark applications, copyright, copyright applications,
franchises, licenses, inventories, know-how, trade secrets, customer lists,
proprietary processes and formulae, all source and object code, algorithms,
architecture, structure, display screens, layouts, inventions, development
tools, software, databases and all documentation and media constituting,
describing or relating to the above, including, without limitation, manuals,
memoranda and records.
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"License Agreements" shall have the meaning specified in the Recitals hereto.
"Material Adverse Effect" shall mean a material adverse change, or any
development involving a material adverse change, in the financial condition or
in the earnings or business affairs of Infineon or Ramtron, as the case may be,
or any development reasonably likely to result in an adverse effect on
Infineon's or Ramtron's, as the case may be, ability to perform its obligations
under the Agreement, whether or not arising in the ordinary course of business.
"Material Transaction" means, in the case of an acquisition made by Ramtron of
another Person, the total consideration paid by Ramtron in connection therewith
does not exceed either (i) 20% of the Ramtron shares outstanding and eligible
to vote in the election of directors immediately prior to such transactions(s)
or (ii) 20% of the total gross assets of Ramtron immediately prior to such
transaction(s) or any combination thereof, and in the case of a merger,
consolidation or reorganization of Ramtron, a Change of Control (substituting
20% for 50% within the definition thereof) does not occur following the
consummation of such transaction(s)).
"NEBF" shall have the meaning specified in Section 4.4 of the Agreement.
"NEBF Loan Agreement" shall have the meaning specified in Section 4.4 of the
Agreement.
"Noon Buying Rate" shall have the meaning specified in Section 2.2 of the
Agreement.
"Outstanding Shares" shall mean, as of any date, the issued and outstanding
shares of Ramtron Common Stock.
"Person" shall mean any individual, corporation (including not-for-profit),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, governmental entity or other entity
of any kind or nature.
"Registration" shall have the meaning specified in Section 2.4 of the
Agreement.
"Registration Rights Agreement" shall have the meaning specified in Section 7.1
of the Agreement.
"Regulation S" shall mean Regulation S under the Securities Act, or any
successor rule thereto.
"Right of First Refusal Notice" shall have the meaning specified in Section
7.10 of the Agreement.
"Right of First Refusal Period" shall have the meaning specified in Section
7.10 of the Agreement.
"Right of Offer Refusal Notice" shall have the meaning specified in Section 7.8
of the Agreement.
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"Right of Offer Refusal Period" shall have the meaning specified in Section 7.8
of the Agreement.
"Ramtron" shall have the meaning specified in the Preamble.
"Ramtron Acceptance Notice" shall have the meaning specified in Section 7.10 of
the Agreement.
"Ramtron Cash Shares" shall have the meaning specified in Section 2A.2 of the
Agreement.
"Ramtron Common Stock" shall mean the common stock, par value $0.01 per share,
of Ramtron.
"Ramtron IP Rights" shall have the meaning specified in Section 4.13 of the
Agreement.
"Ramtron Preferred Stock" shall have the meaning specified in Section 4.3 of
the Agreement.
"Ramtron Products" shall have the meaning specified in Section 4.13 of the
Agreement.
"Ramtron Rights Agreement" shall have the meaning specified in Section 7.6 of
the Agreement.
"Ramtron SEC Documents" shall have the meaning specified in Section 4.12 of the
Agreement.
"Ramtron Shares" shall have the meaning specified in Section 2.2 of the
Agreement.
"Ramtron Stock Shares" shall have the meaning specified in Section 2.2 of the
Agreement.
"Ramtron Subscription" shall have the meaning specified in Section 2.3 of the
Agreement.
"Ramtron Subscription Form" shall have the meaning specified in Section 2.3 of
the Agreement.
"Rule 144" shall mean Rule 144 under the Securities Act, or any successor rule
thereto.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" shall mean United States Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Stock Limitation" shall have the meaning specified in Section 7.9.
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"Supervisory Board" shall mean the supervisory board (Aufsichtsrat) of
Infineon.
"Takeover Statute" shall mean any "fair price," "moratorium," "control share
acquisition" or other similar anti-takeover statute or regulation (including
Section 203 of the Delaware General Corporation Law).
"Transaction Agreements" shall mean the Registration Rights Agreement and the
License Agreements.
"Transfer" shall mean any direct or indirect sale, transfer, assignment,
pledge, hypothecation, mortgage, or other disposition or encumbrance, provided
that a Transfer shall not include any sale, transfer, assignment, or other
disposition by operation or succession of law, merger or otherwise.
"Transfer Price" shall be the proposed price per Share included in a Transfer
Notice, which price may be a price determined by application of a formula, such
as the average closing price for such Shares on the NYSE or the Frankfurt Stock
Exchange for a specified number of days prior to a sale date.
"U.S. GAAP" means U.S. Generally Accepted Accounting Principles.
SECTION 2A
SUBSCRIPTION AND ISSUANCE OF RAMTRON SHARES - CASH CONSIDERATION
2A.1 On December 1, 2000, the board of directors of Ramtron resolved at a duly
constituted meeting thereof to issue the Ramtron Cash Shares (as defined
below) to Infineon in exchange for the Cash Consideration (as defined
below).
2A.2 Offer to Subscribe for the Shares. Subject to satisfaction of the
conditions contained herein and in reliance upon the representations,
warranties and agreements of Ramtron and Infineon contained herein,
Ramtron hereby offers to Infineon to subscribe for 1,476,668 shares of
Ramtron Common Stock (each a "Ramtron Cash Share" and together, the
"Ramtron Cash Shares"). This number of Ramtron Cash Shares is equal to M
divided by N, rounded down to the nearest whole number, as follows:
where M is equal to U.S.$10,000,000 (ten million dollars), and
where N is equal to the Average Closing Price of Ramtron Common Stock.
2A.3 Cash Consideration. As consideration for the issuance of the Ramtron
Cash Shares to Infineon, Infineon shall pay to Ramtron U.S.$10,000,000
(ten million dollars) (the "Cash Consideration").
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2A.4 Initial Cash Closing; Acceptance. (a) The cash closing (the "Cash
Closing") shall take place contemporaneously with the Initial Stock
Closing (as defined below) (i) at the offices of Sullivan & Cromwell,
125 Broad Street, New York, New York at 9:00 A.M. not later than the
fifth Business Day after the conditions set forth in Sections 6.1 and 6.2
shall have been satisfied or waived in accordance with this Agreement
(other than those conditions that by their nature are to be satisfied at
the Cash Closing, but subject to the fulfillment or waiver of those
conditions) or (ii) at such other place and time and/or on such other
date as Infineon and Ramtron may agree in writing.
(b) At the Cash Closing, in reliance upon the representations, warranties
and agreements of Infineon contained herein, Ramtron hereby agrees to
issue the number of new Ramtron Cash Shares stated in Section 2A.2
above by delivering certificates representing the Ramtron Cash Shares
to Infineon.
(c) At the Cash Closing, in reliance upon the representations, warranties
and agreements of Ramtron contained herein, Infineon hereby agrees to
subscribe for the Ramtron Cash Shares:
(i) by duly and validly executing and delivering to Ramtron a
completed subscription form substantially in the form attached
hereto as Annex II (the "Ramtron Subscription Form") and
indicating the number of Ramtron Cash Shares to be subscribed for
(as stated in Section 2A.2); and
(ii) by paying the Cash Consideration to Ramtron in immediately
available funds by wire transfer to the account of Ramtron
specified in writing by Ramtron to Infineon not less than
two (2) Business Days before the Initial Closing Date.
SECTION 2
CAPITAL INCREASE, SUBSCRIPTION AND ISSUANCE - STOCK CONSIDERATION
2.1 Capital Increase and Issuance of the Shares.
(a) Following the execution of this Agreement, the management board (Vorstand)
of Infineon will resolve at a duly constituted meeting thereof (such
resolution, the "December Resolution") to increase Infineon's share
capital against a contribution of Ramtron Common Stock by the issuance of
new ordinary shares, without nominal value but with a notional value of
EUR 2 (two Euro) per share (the "Infineon Ordinary Shares"), and the
Supervisory Board (Aufsichtsrat) of Infineon acting through its Investment
and Finance Committee will approve such resolution. The December
Resolution will provide for the new Infineon Ordinary Shares to be offered
to Ramtron in exchange for the Ramtron Stock Shares (as defined in Section
2.2(b)) (the "Exchange Ratio"). The capital increase may be filed for
registration with the commercial register of the local court in Munich
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only if the entire Ramtron portion of the Exchange Ratio shall have been
paid in Ramtron Common Stock to Infineon. The existing shareholders of
Infineon have waived their pre-emptive rights to subscribe for the new
Infineon Ordinary Shares. The shares of Infineon Common Stock will have
the rights and are subject to the restrictions set forth in the articles
of incorporation (Satzung) of Infineon (the "Articles of Incorporation")
attached to this Agreement as Exhibit 2.1.
(b) On December 1, 2000, the board of directors of Ramtron resolved at a duly
constituted meeting thereof to issue the Ramtron Stock Shares in exchange
for the Infineon Shares (as defined below).
2.2 Offer to Subscribe for the Shares.
(a) Subject to satisfaction of the conditions contained herein and in reliance
upon the representations, warranties and agreements of Ramtron contained
herein, Infineon hereby offers to Ramtron to subscribe for 443,488 new
Infineon Ordinary Shares (each an "Infineon Share" and together, the
"Infineon Shares"). This number of Infineon Shares is equal to X divided
by Y, rounded down to the nearest whole number, as follows:
where X is equal to the amount in Euros equivalent to U.S.$20,000,000
(twenty million dollars), calculated based on the noon buying rate (the
"Noon Buying Rate") on the day prior to the date of this Agreement (or
the prior Business Day if such date is not a Business Day) in The City
of New York for cable transfers in Euros as certified for customs
purposes by the Federal Reserve Bank of New York and expressed in U.S.
dollars per Euro, and rounded down to the nearest Euro cent, and
where Y is equal to the Average Closing Price of Infineon Ordinary
Shares.
(b) Subject to satisfaction of the conditions contained herein and in reliance
upon the representations, warranties an d agreements of Infineon contained
herein, Ramtron hereby offers to Infineon to subscribe for 2,953,337
shares of Ramtron Common Stock (each a "Ramtron Stock Share" and together,
the "Ramtron Stock Shares", and together with the Ramtron Cash Shares, the
"Ramtron Shares"). This number of Ramtron Stock Shares is equal to W
divided by Z, rounded down to the nearest whole number, as follows:
where W is equal to U.S.$20,000,000 (twenty million dollars), and
where Z is equal to the Average Closing Price of Ramtron Common Stock.
2.3 Initial Closing; Acceptance.
(a) The first stock closing (the "Initial Stock Closing" and together with the
Initial Cash Closing, the "Initial Closing") shall take place
simultaneously with the Cash Closing (and each shall be a condition to the
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other) (i) at the offices of Sullivan & Cromwell, 125 Broad Street, New
York, New York at 9:00 A.M. not later than the fifth Business Day after
the conditions set forth in Sections 6.1 and 6.2 shall have been satisfied
or waived in accordance with this Agreement (other than those conditions
that by their nature are to be satisfied at the Initial Stock Closing, but
subject to the fulfillment or waiver of those conditions) or (ii) at such
other place and time and/or on such other date as Infineon and Ramtron may
agree in writing.
(b) At the Initial Stock Closing, in reliance upon the representations,
warranties and agreements of Infineon contained herein, Ramtron hereby
agrees to subscribe for the number of new Infineon Ordinary Shares stated
in Section 2.2(a) above:
(i) by duly and validly executing and delivering to Infineon a completed
subscription form substantially in the form attached hereto as Annex
I (the "Infineon Subscription Form") and indicating the number of
Infineon Shares to be subscribed for (as stated in Section 2.2(a))
(the completion and delivery of which shall constitute the "Infineon
Subscription"); and
(ii) by delivering certificates representing the Ramtron Stock Shares to
Infineon.
(c) At the Initial Stock Closing, in reliance upon the representations,
warranties and agreements of Ramtron contained herein, Infineon hereby
agrees to subscribe for the Ramtron Stock Shares:
(i) by duly and validly executing and delivering to Ramtron a completed
subscription form substantially in the form attached hereto as Annex
II (the "Ramtron Subscription Form") and indicating the number of
Ramtron Stock Shares to be subscribed for (as stated in Section
2.2(b) (the completion and delivery of which shall constitute the
"Ramtron Subscription"); and
(ii) by commencing the registration process contained in Section 2.4
hereof.
2.4 Registration of Capital Increase; Unwinding.
(a) Promptly following the satisfaction of the conditions set forth in Section
6.3, Infineon shall cause the capital increase and its consummation
(Durchfuhrung) to be registered in the commercial register of the local
court in Munich (the "Registration"). Infineon shall make all reasonable
efforts to ensure the Registration without undue delay (unverzuglich).
Upon Registration, Ramtron shall become a shareholder of Infineon. Until
such Registration, Ramtron shall have no rights as a shareholder of
Infineon.
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(b) In the event that Infineon is unable to effect the Registration prior to
the termination of this Agreement by either party pursuant to Section 6.5
hereof, (i) Infineon shall promptly deliver to Ramtron all certificates
representing the Ramtron Stock Shares issued to Infineon pursuant to
Section 2.3 hereto, and (ii) such Ramtron Stock Shares shall be
immediately canceled.
2.5 Final Closing; Delivery of Extract and Shares. (a) The final stock
closing (the "Final Stock Closing") shall take place (i) at the offices of
Sullivan & Cromwell, 125 Broad Street, New York, New York at 9:00 A.M. not
later than the fifth Business Day after the conditions set forth in
Sections 6.4 shall have been satisfied or waived in accordance with this
Agreement (other than those conditions that by their nature are to be
satisfied at the Final Stock Closing, but subject to the fulfillment or
waiver of those conditions) or (ii) at such other place and time and/or on
such other date as Infineon and Ramtron may agree in writing.
(b) At the Final Stock Closing, in reliance upon the representations,
warranties and agreements of Ramtron contained herein, Infineon hereby
agrees to deliver to Ramtron at the address specified to Infineon by
Ramtron at least five (5) Business Days prior to the Final Stock Closing:
(i) a certified extract from the commercial register of Infineon
recording the number of new Infineon Ordinary Shares subscribed for
by Ramtron;
(ii) a certified excerpt from the stock register (Aktienbuch) of Infineon
identifying Ramtron as a shareholder of Infineon on the date of such
registration; and
(iii) the number of share certificates reasonably requested by Ramtron,
together representing the Infineon Shares subscribed for (each an
"Infineon Share Certificate"), each bearing the legend set forth in
Section 4.9.
2.6 Ramtron Issuance Mechanics. Prior to the execution of this Agreement, the
Board of Directors of Ramtron approved and authorized (i) the issuance of the
Ramtron Cash Shares, (ii) the issuance of the Ramtron Stock Shares and
(iii) the execution of this Agreement, the Transaction Agreements and the
transactions and agreements contemplated hereby and thereby. Promptly after
the execution of this Agreement, the Ramtron Shares will be filed for listing
on the Nasdaq SmallCap Market (or the Nasdaq National Market, if the Ramtron
Shares shall be listed thereupon at such time), and, upon completion of the
Initial Closing, certificates representing the Ramtron Shares will be executed
by the Chief Executive Officer and Secretary of Ramtron and issued in the
records of Ramtron's transfer agent.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF INFINEON
Infineon hereby represents and warrants as follows:
3.1 Organization. Infineon is a German stock corporation duly organized and
validly existing under the laws of the Federal Republic of Germany.
3.2 Corporate Power. Infineon has all requisite corporate power to enter into
this Agreement, the Transaction Agreements and all other documents, agreements
and instruments to be executed by Infineon and delivered to Ramtron in
connection with the Infineon Subscription and the Ramtron Subscription and the
performance by Infineon of its obligations hereunder, and will have on the
Final Closing Date all requisite corporate power to issue, sell and deliver the
Infineon Shares and to carry out and perform its obligations under the terms of
this Agreement. The Supervisory Board (Aufsichtsrat) of Infineon, acting
through its Investment and Finance Committee, has the requisite corporate power
and authority to approve the Management Board's (Vorstands) approval of the
December Resolution. This Agreement and the Transaction Agreements constitute
Infineon's valid and legally binding obligation, enforceable against Infineon
in accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and the execution, delivery and performance of this Agreement by
Infineon and, subject to satisfaction of the procedure/requirements of Section
2.4, the issuance, sale and delivery of the Infineon Shares have been duly
authorized by all necessary corporate action.
3.3 Infineon Ordinary Shares. As of the date hereof, Infineon's registered
share capital consists of 625,501,507 Infineon Ordinary Shares, corresponding
to EUR 1,251,003,014 (one billion two hundred fifty one million three thousand
and fourteen Euro). On October 2, 2000, the management board (Vorstand) of
Infineon resolved to increase Infineon's share capital by 704,000 Infineon
Ordinary Shares from Infineon's authorized but unissued and unregistered
capital. The number of shares and any authorized or contingent capital of
Infineon at the date hereof is set forth in the Articles of Incorporation
attached hereto as Exhibit 2.1. All outstanding Infineon Ordinary Shares have
been duly authorized and validly issued, fully paid and nonassessable. To the
best of Infineon's knowledge, there are no voting trusts or any other
agreements or understandings with respect to the voting of any Infineon
Ordinary Shares.
3.4 Valid Issuance of the Shares. The Infineon Shares, if and when delivered
in accordance with the terms hereof, will be duly and validly issued, fully
paid, and nonassessable and will rank equally with all of the outstanding
Infineon Ordinary Shares, and will be free and clear of any lien, pledge,
security interest or other encumbrance, except for restrictions under United
States federal or state securities laws. In accordance with the Articles of
Incorporation attached hereto as Exhibit 2.1, the Infineon Shares are not
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subject to any preemptive rights that have not been properly excluded pursuant
to German law and the Articles of Incorporation; subject to satisfaction of the
procedural requirements of Sections 2.1 and 2.4, all consents, approvals,
authorizations, orders, registrations and qualifications of or with any court
or governmental agency or body, if any, and all corporate approvals and
authorizations, required to be obtained or taken by Infineon for or in
connection with the authorization, issuance and delivery of all or any of the
Infineon Shares have been validly and sufficiently obtained or taken and are in
full force and effect.
3.5 No Breach, Violation or Default. The execution and delivery of this
Agreement and the Transaction Agreements by Infineon do not, and the compliance
with the terms and conditions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby by Infineon (including, without
limitation, the issuance and delivery of the Infineon Shares and the
subscription for and payment of the Ramtron Shares) will not, (i) conflict
with, or constitute a breach or violation of, or a default under, the Articles
of Incorporation, or (ii) conflict with, or constitute a breach or violation of
or a default (or an event which, with the giving of notice or the passage of
time, or both, would constitute a default) under, any law, rule or regulation,
any judgment, decree, order, governmental permit or license, or any contract,
agreement, deed, indenture or instrument of Infineon or to which Infineon or
any of its properties or assets is subject, the breach or violation or the
default under which would individually or in the aggregate have a material
adverse effect on the financial condition of Infineon taken as a whole or would
materially impair the realization of the objects contemplated by this Agreement
and the Transaction Agreements, and the consummation of the transactions
contemplated hereby and thereby will not require any consent or approval under
any such law, rule, regulation, judgment, decree, order, governmental permit or
license or the consent or approval of any other party to any such contract,
agreement, deed, indenture or instrument, other than such approvals or waivers
as are referred to in Section 6 of this Agreement.
3.6 No Consent or Approval Required. Other than (i) as required under the HSR
Act or any similar body of law of the European Union or any Member State
thereof in connection with the issuance and delivery of the Infineon Shares,
(ii) filings required under German securities laws in connection with the
Infineon Subscription and as contemplated by Section 2.4 and (iii) as required
to effect the listing of the Infineon Shares on the Frankfurt Stock Exchange as
contemplated by Section 7.2, no consent, approval or authorization of, or
filing with, any third party, including any governmental or regulatory
authority, is required for the valid authorization, execution and delivery by
Infineon of this Agreement or for the valid authorization, issuance, sale and
delivery of the Infineon Shares in accordance with the terms hereof.
3.7 No Shareholder Vote. No vote or approval of any class or series of
capital stock of Infineon is necessary to approve the issuance of the Infineon
Shares.
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3.8 Finders. Infineon represents and warrants that it has retained no finder
or broker in connection with the transactions contemplated by this Agreement.
3.9 SEC Documents. Infineon has made available to Ramtron or its counsel
correct and complete copies of each report, schedule, registration statement
and definitive proxy statement filed by Infineon or any of its subsidiaries
with the SEC on or after March 10, 2000 (the "Infineon SEC Documents"), which
are all the documents (other than preliminary material) that Infineon was
required to file with the SEC on or after such date. As of their respective
dates or, in the case of registration statements, their effective dates (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing), none of the Infineon SEC Documents (including all
exhibits and schedules thereto and documents incorporated by reference therein)
contained any untrue statement of a material fact or omitted to state a
material fact with respect to 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, and the Infineon SEC Documents complied when
filed in all material respects with the applicable requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations promulgated by the SEC thereunder. Infineon has filed all documents
and agreements which were required to be filed as exhibits to the Ramtron SEC
Documents. Infineon has also made available to Ramtron or its counsel correct
and complete copies of each report, schedule and registration statement filed
by Infineon with the Frankfurt Stock Exchange, if not filed with the SEC, on or
after March 13, 2000, which are all the documents (other than preliminary
material) that Infineon was required to file with the Frankfurt Stock Exchange
on or after such date.
3.10 Infineon not a U.S. Person. Infineon is not a U.S. Person (as defined in
Regulation S promulgated under the Securities Act).
3.11 Infineon Investment Purpose. Infineon is acquiring the Ramtron Shares
for its own account, for investment purposes, and not with a view to obtaining
control of the board of directors of Ramtron.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF RAMTRON
Ramtron represents and warrants to Infineon as follows:
4.1 Organization. Ramtron is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware.
4.2 Authorization. Ramtron has all requisite corporate power to enter into
this Agreement and the Transaction Agreements and all other documents,
agreements and instruments to be executed by Ramtron and delivered to Infineon
in connection with the Ramtron Subscription and the Infineon Subscription and
the performance by Ramtron of its obligations hereunder, and will have on the
Initial Closing Date all requisite corporate power to issue, sell and deliver
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the Ramtron Shares and to carry out and perform its obligations under the terms
of this Agreement. This Agreement and the Transaction Agreements constitute
Ramtron's valid and legally binding obligation, enforceable against Ramtron in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and the execution, delivery and performance of this Agreement and
the Transaction Agreements by Ramtron and the issuance, sale and delivery of
the Ramtron Shares have been duly authorized by all necessary corporate action.
4.3 Ramtron Shares. The authorized capital stock of Ramtron consists of
50,000,000 shares of Ramtron Common Stock and 10,000,000 shares, par value $.01
per share, of Preferred Stock (the "Ramtron Preferred Stock"). As of the date
hereof, 17,476,488 shares of Ramtron Common Stock were issued and outstanding
and 907 shares of Ramtron Preferred Stock were issued and outstanding. All
outstanding shares of Ramtron Common Stock are validly issued, fully paid and
nonassessable and not subject to preemptive rights. The shares of Ramtron
Common Stock issuable pursuant to the terms of this Agreement, if and when paid
for and delivered in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable and free and clear of
any lien, pledge, security interest, claim or other encumbrance, except for
restrictions under United States federal or state securities laws. Except as
disclosed on Schedule 4.3 hereto, there are no options, warrants, calls,
rights, commitments, conversion rights or agreements of any character to which
Ramtron or of any subsidiary of Ramtron is a party or by which Ramtron or any
of subsidiary of Ramtron is bound obligating Ramtron or any of subsidiary of
Ramtron to issue, deliver or sell, or cause to be issued, delivered or sold,
any shares of capital stock of Ramtron or any of subsidiary of Ramtron or
securities convertible into or exchangeable for shares of capital stock of
Ramtron or of any subsidiary of Ramtron, or obligating Ramtron or any
subsidiary of Ramtron to grant, extend or enter into any such option, warrant,
call, right, commitment, conversion right or agreement.
4.4 No Breach, Violation or Default. The execution and delivery of this
Agreement and the Transaction Agreements by Ramtron do not, and the compliance
with the terms and conditions hereof and the consummation of the transactions
contemplated hereby and thereby by Ramtron (including, without limitation, the
issuance and delivery of the Ramtron Shares and the subscription for and
payment of the Infineon Shares) will not, (i) conflict with, or constitute a
breach or violation of, or a default under, the Certificate of Incorporation or
By-Laws of Ramtron, or (ii) conflict with, or constitute a breach or violation
of or a default (or an event which, with the giving of notice or the passage of
time, or both, would constitute a default) under, any law, rule or regulation,
any judgment, decree, order, governmental permit or license, or any contract,
agreement, deed, indenture or instrument of Ramtron or to which Ramtron or any
of its properties or assets is subject, the breach or violation or the default
under which would individually or in the aggregate have a material adverse
effect on the financial condition of Ramtron taken as a whole or would
materially impair the realization of the objects contemplated by this Agreement
and the Transaction Agreements, and (iii) the consummation of the transactions
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contemplated hereby and thereby will not require any consent or approval under
any such law, rule, regulation, judgment, decree, order, governmental permit or
license or the consent or approval of any other party to any such contract,
agreement, deed, indenture or instrument, other than such approvals or waivers
as are referred to in Section 6 of this Agreement, including the consent of
National Electrical Benefit Fund ("NEBF") pursuant to the Amended and Restated
Loan Agreement between Ramtron and NEBF, dated August 6, 1999 (the "NEBF Loan
Agreement").
4.5 No Consent or Approval Required. Other than as required (i) under the HSR
Act or any similar body of law of the European Union or any Member State
thereof, and (ii) as required under German securities laws to effect the
listing of the Infineon Shares on the Frankfurt Stock Exchange as contemplated
by Section 7.2, in each case in connection with the sale and delivery of the
Ramtron Shares to Infineon, no consent, approval or authorization of, or filing
with, any third party, including any governmental or regulatory authority, is
required for the valid authorization, execution, delivery and performance by
Ramtron of this Agreement or for the valid authorization, issuance, sale and
delivery of the Ramtron Shares in accordance with the terms hereof.
4.6 No Shareholder Vote. No vote or approval of any class or series of
capital stock of Ramtron is necessary to approve the issuance of the Ramtron
Cash Shares and the Ramtron Stock Shares.
4.7 Investment Experience. Ramtron (i) has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Infineon Shares, and
has so evaluated the merits and risks of such investment; and (ii) is able to
bear the economic risk of an investment in the Infineon Shares.
4.8 Restricted Securities. (a) Ramtron is an Accredited Investor, (1) is
acquiring the Infineon Shares being issued to it for its own account, (2) is
not acquiring such securities with a view to any resale or distribution thereof
other than in accordance with the restrictions set forth below and (3) is not a
party to any agreement or arrangement to sell or transfer any of the Infineon
Shares to any person; and
(b) the Infineon Shares have not been registered under the Securities Act,
will be "restricted securities" under the Securities Act and under such
laws and applicable regulations such Shares may be resold without
registration under the Securities Act only in accordance with the
restrictions on transfer set forth on the legend set forth thereon.
4.9 Legends. (a) Each Infineon Share Certificate will bear a legend to the
following effect unless Infineon determines otherwise in compliance with
applicable law:
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THE ORDINARY SHARES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), HAVE BEEN ACQUIRED FOR INVESTMENT FOR RAMTRON'S OWN ACCOUNT AND NOT WITH
A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (2) WITHIN THE UNITED
STATES PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND, IN EACH CASE, IN COMPLIANCE
WITH ALL APPLICABLE SECURITIES LAWS OF ALL RELEVANT JURISDICTIONS.
Notwithstanding the foregoing, Ramtron shall have the right, upon written
request to Infineon on or after termination of all applicable limitations on
transfer with respect to any Shares, to receive from Infineon, without expense,
new Infineon Share Certificates omitting any legend if (i) the limitations have
terminated, (ii) Clearstream has rejected the Infineon Share Certificates for
deposit or for inclusion into the collective safe deposit and clearing system
(Girosammelverwahrung) or (iii) such legend adversely affects the due delivery
of the Infineon Shares in case of their transfer and sale on the Frankfurt
Stock Exchange (Borsenmstige Lieferbarkeit) in accordance with the transfer
restrictions set forth in the legend. Infineon agrees that Ramtron may deposit
the Infineon Share Certificates, and any new Infineon Share Certificates, with
Clearstream.
4.10 Finders. Ramtron represents and warrants that it has retained no finder
or broker in connection with the transactions contemplated by this Agreement.
4.11 SEC Documents. Ramtron has made available to Infineon or its counsel
correct and complete copies of each report, schedule, registration statement
and definitive proxy statement filed by Ramtron or any of its subsidiaries with
the SEC on or after December 14, 1997 (the "Ramtron SEC Documents"), which are
all the documents (other than preliminary material) that Ramtron was required
to file with the SEC on or after such date. As of their respective dates or,
in the case of registration statements, their effective dates (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing), none of the Ramtron SEC Documents (including all exhibits and
schedules thereto and documents incorporated by reference therein) 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, and the Ramtron SEC Documents complied when filed in all material
respects with the applicable requirements of the Securities Act or the Exchange
Act, as the case may be, and the rules and regulations promulgated by the SEC
thereunder. Ramtron has filed all documents and agreements that were required
to be filed as exhibits to the Ramtron SEC Documents.
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4.12 Intellectual Property.
(a) Except as disclosed in the Ramtron SEC Documents, Ramtron owns or has the
right to use all material Intellectual Property Rights necessary or
required for the operation of the business of Ramtron as currently
conducted or to manufacture products or to sell services currently under
development by Ramtron (collectively, "Ramtron IP Rights"), and has the
right to use, license, sublicense or assign the same without material
liability to, or any requirement of consent from, any other Person or
party. The Ramtron IP Rights constitute all Intellectual Property Rights
necessary for the conduct of its businesses in the manner conducted
immediately prior to the Initial Closing Date. Subject to NEBF's security
interest in the Ramtron IP Rights, all Ramtron IP Rights are either owned
by Ramtron free and clear of all liens and encumbrances or are used
pursuant to a license agreement; each such Ramtron IP Right, including
patents granted to Ramtron, has been validly granted to Ramtron or
properly registered by Ramtron; each such license agreement is valid and
enforceable and in full force and effect; Ramtron is not in material
default thereunder; and to the knowledge of Ramtron, no corresponding
licensor is in material default thereunder. Except as disclosed in the
Ramtron SEC Documents, none of the Ramtron IP Rights infringes or
otherwise conflicts with any Intellectual Property Rights or other right
of any Person; there is no pending or, to the knowledge of Ramtron,
threatened (in writing) litigation, adversarial proceeding, administrative
action or other challenge or claim relating to any Ramtron IP Rights;
there is no outstanding order relating to any Ramtron IP Rights; to the
knowledge of Ramtron, there is currently no infringement by any Person of
any Ramtron IP Rights; and the Ramtron IP Rights owned, used or possessed
by Ramtron are sufficient and adequate to conduct the business of Ramtron
to the full extent as such business is currently conducted.
(b) Ramtron has taken reasonable steps to protect, maintain and safeguard the
Ramtron IP Rights, including any Ramtron IP Rights for which improper or
unauthorized disclosure would impair its value or validity materially, and
has executed and required appropriate nondisclosure agreements and made
appropriate filings and registrations in connection with the foregoing.
(c) No material confidential or trade secret information of Ramtron has been
provided to any Person except subject to written confidentiality
agreements, except for any such disclosure which has not resulted and is
not reasonably likely to result in a Material Adverse Effect on Ramtron.
(d) Other than the contractual parties having agreements with Ramtron or EMS,
all of which have been disclosed in the Ramtron SEC Documents, and
licensed distributors of Ramtron Products acting in the ordinary course of
business, (i) no third party has any right to manufacture, reproduce,
distribute, sell, sublicense, market or exploit any of the products or
services offered by Ramtron (the "Ramtron Products") or any adaptations,
translations, or derivative works based on the Ramtron Products, or any
portion thereof; (ii) Ramtron has not granted to any third party any
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exclusive rights of any kind with respect to any of the Ramtron Products,
including territorial exclusivity or exclusivity with respect to
particular versions, implementations or translations of any of the Ramtron
Products; and (iii) Ramtron has not granted any third party any right to
market any product utilizing any Ramtron Product under any "private label"
arrangements pursuant to which Ramtron is not identified as the source of
such goods. No third party has any right to manufacture, reproduce,
distribute, sublicense, market or exploit any works or materials of which
any of the Ramtron Products are a derivative work.
(e) Except as is not reasonably likely to have a Material Adverse Effect on
Ramtron, each of the Ramtron Products: (i) substantially complies with all
specifications set forth therefor in any contract, agreement,
advertisement or other promotional material for such products and with all
other warranty requirements, other than bugs or fixes required or expected
in the ordinary course of business and not otherwise material to Ramtron's
business; and (ii) can be recreated from its associated source code and
related documentation by reasonably experienced technical personnel
without undue burden.
4.13 Takeover Statutes. No Takeover Statute, other than Section 203 of the
Delaware General Corporation Law, or any anti-takeover provision in Ramtron's
Certificate of Incorporation or Bylaws, is applicable to Infineon or the
transactions contemplated by this Agreement or the Transaction Agreements.
SECTION 5
COVENANTS
5.1 Ramtron Transfer Restrictions. (a) Ramtron shall not Transfer or otherwise
dispose of any interest in any of the Infineon Shares (i) at any time in
violation of the legend appearing on the face thereof and (ii) for a period of
six (6) months following the Initial Closing Date (the "Holding Period").
(b) Subject to the other transfer restrictions set forth herein, Ramtron may:
(i) commencing on the date six (6) months from the Initial Closing Date,
Transfer up to 25% of the Infineon Shares acquired hereunder;
(ii) commencing on the date nine (9) months from the Initial Closing Date,
Transfer up to an additional 25% of the Infineon Shares acquired
hereunder;
(iii) commencing on the date twelve (12) months from the Initial Closing
Date, Transfer up to an additional 25% of the Infineon Shares
acquired hereunder; and
(iv) commencing on the date eighteen (18) months from the Initial Closing
Date, Transfer the remaining 25% of the Infineon Shares acquired
hereunder.
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(c) Ramtron agrees that:
(i) Ramtron is an Accredited Investor, (1) acquiring the Infineon Shares
being issued to it for its own account, (2) is not acquiring such
securities with a view to any resale or distribution thereof other
than in accordance with the restrictions set forth in this Agreement
and (3) is not a party to any agreement or arrangement to Transfer
any of the Infineon Shares to any person; and
(ii) the Infineon Shares have not been registered under the Securities
Act, will be "restricted securities" under the Securities Act and
under such laws and applicable regulations it will resell such
Infineon Shares without registration under the Securities Act only in
accordance with the restrictions on transfer set forth on the legend
set forth thereon, or in accordance with the restrictions on transfer
that would have been set forth on the legend thereon but for the
removal of all or part of the legend in accordance with Section 4.9;
(d) Notwithstanding anything to the contrary contained in Section 5.1(a),
Ramtron may transfer all or a portion of the Infineon Shares to any
majority-owned subsidiary of Ramtron provided such subsidiary agrees to be
bound by the terms and conditions of this Agreement as if it were Ramtron.
Any such transfer shall not release Ramtron from any of the obligations
undertaken hereunder.
(e) Within ten (10) Business Days after any transfer by Ramtron of the
Infineon Shares, Ramtron shall furnish Infineon with a certificate of its
duly authorized representative to the effect set forth in Annex III
certifying on behalf of Ramtron that such transfer of Infineon Shares has
been effected in accordance with the restrictions on transfer set forth in
the legend contained in Section 4.9.
5.2 Infineon Transfer Restrictions. (a) Infineon shall not Transfer or
otherwise dispose of any interest in any of the Ramtron Shares at any time in
violation of the legend appearing thereon. In addition, from the Initial
Closing Date until the earlier of (i) the date that is twelve (12) months
following the Initial Closing Date, (ii) the date on which (A) a Change of
Control of Ramtron shall have occurred, (B) Ramtron shall have publicly
announced, directly or indirectly, its recommendation or support for a
transaction that would constitute a Change of Control of Ramtron, or (C) a
third party shall have publicly announced, directly or indirectly, its
intention to launch an unsolicited bid or offer or transaction that would
result in a Change of Control of Ramtron or (iii) the date on which Ramtron
settles, without the consent of Infineon, in a manner that would be materially
adverse to Ramtron, as a whole, or Ramtron's rights to or ability to license
and use the Ramtron Intellectual Property, or receives an adverse final and
nonappealable judgment in its patent interference proceeding between Ramtron,
National Semiconductor Corporation, and the United States Department of the
Navy, Infineon shall not Transfer or otherwise dispose of any interest in any
of the Ramtron Shares.
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(b) Subject to the other transfer restrictions set forth herein, Infineon may:
(i) commencing on the date twelve (12) months from the Initial Closing
Date, Transfer up to 50% of the Ramtron Shares acquired hereunder;
and
(ii) commencing on the date eighteen (18) months from the Initial Closing
Date, Transfer the remaining 50% of the Ramtron Shares acquired
hereunder.
(c) Notwithstanding anything to the contrary contained in Section 5.2(a),
Infineon may transfer all or a portion of the Ramtron Shares to any
majority-owned subsidiary of Infineon provided such subsidiary agrees to
be bound by the terms and conditions of this Agreement as if it were
Infineon. Any such transfer shall not release Infineon from any of the
obligations undertaken hereunder.
5.3 HSR Act. Ramtron and Infineon agree to take all reasonable efforts to
effect any and all necessary registrations and filings including, but not
limited to, any filings under the HSR Act or any similar body of law of the
European Union or any Member State thereof, and submissions of information
requested by governmental authorities, and to obtain early termination of any
applicable waiting period under the HSR Act.
5.4 Resales in Germany. Subject to the transfer restrictions set forth in
Section 5.1, Ramtron shall have the right to resell the Infineon Shares and to
demand that Infineon register the Infineon Shares pursuant to Section 45 No. 3b
of the German Exchange Admission Act (Borsenzulassungsverordnung), which demand
Infineon shall honor in accordance with Section 7.2.
5.5 Notification of Non-Clearance. In the event that either party receives
formal notification from the FTC, the DOJ or comparable regulatory authority in
Europe that HSR Clearance or analogous clearance in Europe will not be
forthcoming on terms reasonably acceptable to such party, such party will
provide prompt notice to the other party. Following receipt of such
notification, either party (provided such party is not in breach of Section
5.3) may terminate the Agreement on five (5) Business Days' notice to the other
party.
SECTION 6
CONDITIONS
6.1 Conditions to Ramtron's Obligations. Ramtron's obligations to effect the
Initial Closing is subject to the satisfaction or waiver of each of the
following conditions:
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(a) The representations and warranties of Infineon contained in this Agreement
shall be true and correct in all material respects on and as of the
Initial Closing Date with the same force and effect as though made on and
as of the Initial Closing Date (except that to the extent that any such
representation or warranty relates to a particular date, such
representation or warranty shall be true and correct in all material
respects as of that particular date); and Ramtron shall have received a
signed certificate of Infineon to the foregoing effect.
(b) Infineon shall have performed or complied in all material respects with
all covenants required under this Agreement to be performed or complied
with by Infineon at or prior to Infineon Subscription; and Ramtron shall
have received a signed certificate of Infineon to the foregoing effect.
(c) At Ramtron Subscription, there shall be no injunction, restraining order
or decree of any nature of any court or government authority of competent
jurisdiction that is in effect that restrains or prohibits the
consummation of the transactions contemplated hereby and by the
Transaction Agreements.
(d) All filings required under the HSR Act and under any similar body of law
of the European Union or any Member State thereof shall have been made and
HSR Clearance and any analogous clearance required in Europe shall have
been obtained.
(e) Ramtron shall have received the Ramtron Subscription Form duly executed
and delivered by Infineon in accordance with Section 2.3.
(f) Each of the Transaction Agreements entered into concurrently herewith
shall have been duly authorized, executed and delivered by Infineon, shall
constitute a valid and legally binding obligation of Infineon and are in
full force and effect in accordance with their respective terms and not
subject to termination except in accordance with their respective terms.
(g) Ramtron shall have received the opinion of counsel to Infineon to the
effect that, assuming that the Registration has been effected and the
Infineon Shares have been listed on the Frankfurt Stock Exchange, the
Infineon Shares will be validly issued Infineon Ordinary Shares, and
freely tradeable on the Frankfurt Stock Exchange.
(h) Ramtron shall have obtained the consent of NEBF to Ramtron's entering into
this Agreement and the transactions contemplated hereby.
6.2 Conditions to Infineon's Obligations. Infineon's obligation to effect the
Initial Closing is subject to the satisfaction or waiver of each of the
following conditions:
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(a) The representations and warranties of Ramtron contained in this Agreement
shall be true and correct in all material respects on and as of the
Initial Closing Date with the same force and effect as though made on and
as of the Initial Closing Date (except that to the extent that any such
representation or warranty relates to a particular date, such
representation or warranty shall be true and correct in all material
respects as of that particular date); and Infineon shall have received a
signed certificate of Ramtron to the foregoing effect.
(b) Ramtron shall have performed or complied in all material respects with all
covenants required under this Agreement to be performed or complied with
by Ramtron at or prior to Infineon Subscription; and Infineon shall have
received a signed certificate of Ramtron to the foregoing effect.
(c) At Infineon Subscription, there shall be no injunction, restraining order
or decree of any nature of any court or government authority of competent
jurisdiction that is in effect that restrains or prohibits the
consummation of the transactions contemplated hereby.
(d) All filings required under the HSR Act or under any similar body of law of
the European Union or any Member State thereof shall have been made and
HSR Clearance and any analogous clearance required in Europe shall have
been obtained.
(e) Infineon shall have received the Infineon Subscription Form duly executed
and delivered by Ramtron in accordance with Section 2.3.
(f) Each of the Transaction Agreements entered into concurrently herewith
shall have been duly authorized, executed and delivered by Ramtron, shall
constitute a valid and legally binding obligation of Ramtron and are in
full force and effect in accordance with their respective terms and not
subject to termination except in accordance with their respective terms.
(g) Infineon shall have received one or more opinions of counsel to Ramtron
substantially in the form attached hereto as Exhibit B.
(h) Ramtron shall have obtained, and Infineon shall have received a copy
thereof, the consent of NEBF to Ramtron's entering into this Agreement and
the transactions contemplated hereby.
(i) Ramtron shall have obtained, and Infineon shall have received a copy
thereof, the written confirmation of the National Association of
Securities Dealers to the effect that, based on the terms of transactions
contemplated by this Agreement, Infineon's acquisition of the Ramtron Cash
Shares and the Ramtron Stock Shares shall not constitute a change of
control for purposes of Rule 4350(i)(1)(B) of the NASD Manual and shall
not require Ramtron Shareholder approval under Rule 4350(i)(1)(C) and Rule
4350(i)(1)(D) of the NASD Manual.
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6.3 Obligations to Effect Registration. The obligations of Infineon to effect
the Registration shall be subject to satisfaction or waiver of each of the
following conditions:
(a) The Initial Closing shall have occurred.
(b) Infineon shall have received a written confirmation
(Werthaltigkeitsbescheinigung) by an independent auditor that the Ramtron
Stock Shares contributed to Infineon in accordance with this Agreement
have an aggregate value of at least 2 EUR (two EURO) per Infineon Share
to be issued in accordance with this Agreement.
(c) Each of the Transaction Agreements shall be in full force and effect in
accordance with their respective terms and not subject to termination
except in accordance with their terms.
6.4 Conditions to Infineon's and Ramtron's Obligations to Effect the Final
Stock Closing. The respective obligations of Infineon and Ramtron to effect
the Final Stock Closing are subject to the satisfaction or waiver of each of
the following conditions:
(a) The Registration shall have been effected.
(b) The listing of the Infineon Shares on the Frankfurt Stock Exchange and the
information relating to the listing of the Infineon Shares shall have been
published in Germany as required by applicable law.
(c) There shall be no injunction, restraining order or decree of any nature of
any court or government authority of competent jurisdiction that is in
effect that restrains or prohibits the consummation of the transactions
contemplated hereby and by the Transaction Agreements.
6.5 Final Date. If the Final Stock Closing has not occurred on or before
March 15, 2001, either party may terminate its obligations to effect the Final
Stock Closing.
SECTION 7
ADDITIONAL AGREEMENTS
7.1 Registration Rights Agreement. Prior to or concurrently with the Initial
Closing, Infineon and Ramtron shall enter into a Registration Rights Agreement
in the form of Exhibit A hereto (the "Registration Rights Agreement").
7.2 Listing of Infineon Shares. Infineon shall use all reasonable best
efforts to cause the Infineon Shares to be acquired hereunder by Ramtron to be
listed on the Frankfurt Stock Exchange promptly following the Registration.
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7.3 Infineon Board Representation. (a) As long as Infineon Beneficially Owns a
number of shares of Ramtron Common Stock equal to or greater than ten percent
(10%) of the Outstanding Shares as of the Initial Closing Date, Infineon shall
be entitled to designate two individuals (each, an "Infineon Director") to be a
member of the board of directors of Ramtron. In the event that Infineon shall
at any time cease to Beneficially Own a number of shares of Ramtron Common
Stock equal to or greater than ten percent (10%) of the Outstanding Shares as
of the Initial Closing Date, but continues to Beneficially Own a number of
shares of Ramtron Common Stock equal to or greater than five percent (5%) of
the Outstanding Shares as of the Initial Closing Date, Infineon shall
thenceforth be entitled to designate one Infineon Director under this Section
7.3 and one Infineon Director shall immediately resign from the board of
directors of Ramtron. In the event that Infineon shall at any time cease to
Beneficially Own a number of shares of Ramtron Common Stock at least equal to
five percent (5%) of the Outstanding Shares as of the Initial Closing Date,
Infineon shall thenceforth not be entitled to designate any Infineon Directors
under this Section 7.3 and any incumbent Infineon Director shall immediately
resign from the board of directors of Ramtron.
(b) Prior to each meeting of Ramtron's stockholders for the election of
directors to the board of directors of Ramtron at which the term of the
incumbent Infineon Directors is to expire, Infineon shall give reasonable
advance written notice to Ramtron prior to the mailing of the proxy
statement relating to such matters requesting that Ramtron include, and
Ramtron shall include, the Infineon Director or Infineon Directors, as the
case may be, as nominees for the slate of directors to be elected to the
Board.
(c) Ramtron shall nominate and use its reasonable best efforts to take and
cause to be taken all necessary action (corporate and other) to cause the
election to the board of directors of Ramtron of the Infineon Directors.
(d) At Infineon's request, Ramtron shall cause at least one of the Infineon
Directors to be elected to serve on each committee of the board of
directors of Ramtron.
7.4 Infineon Consent Rights. For so long as Infineon Beneficially Owns a
number of shares of Ramtron Common Stock at least equal to five percent (5%) of
the Outstanding Shares as of the Initial Closing Date, Ramtron shall not, and
shall cause its affiliates not to, without the prior written consent of
Infineon (which may be withheld for any reason):
(a) materially encumber or permit to be materially encumbered (subject to
continuation of the existing security interest and lien of NEBF) any of
its (x) any intellectual property or other intangible assets or (y) any
tangible assets which exceed 20% of the gross tangible assets of Ramtron
except in the ordinary course of its business or with respect to Ramtron's
headquarters at 1850 Ramtron Drive, Colorado Springs, Colorado;
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(b) make a disposition of (x) any material intellectual property or other
intangible assets or (y) any tangible assets which exceed 20% of the gross
tangible assets of Ramtron, except in the ordinary course of business
consistent with past practice or with respect to Ramtron's headquarters at
1850 Ramtron Drive, Colorado Springs, Colorado;
(c) make any material change in accounting practices, except for any such
change required by reason of a concurrent change in U.S. GAAP;
(d) issue shares (or warrants or other convertible or derivative equity
securities) in one or a series of related issuances which represent 20% or
more of the total shares outstanding and eligible to vote in the election
of directors immediately prior to such transaction(s);
(e) merge, consolidate or reorganize with, or acquire any entity in one or
more transactions which together constitute a Material Transaction;
(f) amend its Certificate of Incorporation or amend its Bylaws in a manner
that would adversely affect the rights of Infineon hereunder;
(g) declare an extraordinary dividend;
(h) incur indebtedness or make guarantees in an amount in excess of 20% of the
gross tangible assets of Ramtron, other than in the ordinary course of
business or with respect to Ramtron's headquarters at 1850 Ramtron Drive,
Colorado Springs, Colorado;
(i) increase the number of directors which shall constitute the board of
directors of Ramtron above eight (8); or
(j) agree to do, or enter into negotiations with respect to, any of the things
described in the preceding clauses in this Section 7.4.
7.5 Pre-emptive Rights. (a) Notice; Exercise; Closing. Subject to Section
7.5(c), if Ramtron proposes to issue, grant or sell shares of Ramtron Common
Stock, Ramtron shall give to Infineon a written notice (a "Top Up Notice")
setting forth in reasonable detail the per share consideration (including, in
the case of any convertible or derivative security, the issue consideration
pro rated per share for such security) and other terms on which such shares of
Ramtron Common Stock are proposed to be issued, granted or sold and the amount
thereof proposed to be issued, granted or sold. Infineon shall thereafter have
the preemptive right, exercisable by notice to Ramtron no later than 15 days
after Ramtron's notice is given, to purchase up to such number of shares of
Ramtron Common Stock so that, after giving effect to such issuance, grant or
sale and the preemptive subscription by Infineon, Infineon, together with its
affiliates and associates, will Beneficially Own in the aggregate the same
proportion of the Outstanding Shares of Ramtron Common Stock Beneficially Owned
as of the date of the immediately preceding Top Up Notice (or the date of this
Agreement, if no Top Up Notice has yet been required to be delivered), for the
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consideration in cash and on the other terms set forth in Ramtron's notice.
Any written notice by Infineon exercising the right to purchase shares of
Ramtron Common Stock pursuant to this Section shall constitute an irrevocable
commitment to purchase from Ramtron the shares specified in such notice,
subject to the maximum set forth in the preceding sentence. The closing of the
purchase of shares by Infineon shall, to the extent legally practicable, take
place at the same time and place as the closing of such issuance, grant or sale
to the Persons giving rise to the preemptive rights set forth in this Section
7.5 and if not at the same time shall take place as soon thereafter as is
practicable; provided that such closing shall, to the extent applicable, be
conditioned upon the expiration or termination of any waiting period under the
HSR Act or under any similar body of law of the European Union or any Member
State thereof, and the making of any necessary filings with and obtaining of
any approvals from any governmental entities except those that the failure to
make or obtain are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on Ramtron. At such closing, (i) Ramtron shall
deliver to Infineon certificates representing the shares being subscribed, and
such shares will be validly issued, fully paid and nonassessable, (ii) Infineon
shall deliver to Ramtron the consideration to be paid for such shares and
(iii) Infineon and Ramtron shall execute such other documents and take such
other action as shall be reasonably necessary to consummate the subscription of
such shares.
(b) Non-Exercise. From the expiration of the 15-day period first referred to
in the foregoing paragraph (a) and for a period of 90 days thereafter,
Ramtron may offer, issue, grant and sell to any Person up to the amount of
shares set forth in Ramtron's notice relating to such shares for a price
and other terms no less favorable to Ramtron, and including no less cash,
than those set forth in such notice; provided, however, that Ramtron may
not issue, grant or sell shares in an amount greater than the amount set
forth in such notice minus the amount purchased or committed to be
purchased by Infineon upon exercise of its preemptive rights without
granting Infineon the preemptive rights in this Section 7.5 with respect
to such greater amount of shares.
(c) Threshold. The requirement of this Section 7.5 shall not apply until such
time as any sale, grant or issuance of shares of Ramtron Common Stock
that, together with any previous sales, grants or issuances occurring
since the date of the immediately preceding Top-Up Notice (or the date of
this Agreement, if no Top-Up Notice has yet been required to be delivered)
was provided to Infineon pursuant to Section 7.5(a), excluding sales,
grants or issuances of shares of Ramtron Common Stock pursuant to the
grant or exercise of employee, management or director stock options in
accordance with Ramtron's past practices and issuances of shares of
Ramtron Common Stock pursuant to the convertible securities listed on
Schedule 4.3 of this Agreement, exceeds 3% of the Outstanding Shares as of
the date on which such immediately preceding Top-Up Notice was last
delivered (or the date of this Agreement, if no Top-Up Notice has yet been
required to be delivered).
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(d) Non-Cash Valuation. In the event that any offer, issue, grant or sale
includes or is proposed to include any non-cash consideration, Ramtron and
Infineon shall in good faith seek to agree upon the value of such non-cash
consideration. If Ramtron and Infineon fail to agree on such value during
the 15-day period contemplated by paragraph (a) of this Section, then
Ramtron shall refer the items in dispute to a nationally recognized
investment banking firm that is selected by Ramtron's board of directors
and that shall make a final and binding determination within 10 days. The
value of any securities shall be the fair market value of such securities
and the value of any property other than securities shall be the fair
market value of such property. If a determination under this paragraph
(d) is required, any deadline for acceptance provided for in this Section
shall be postponed until the fifth Business Day after the date of such
determination. Whichever of Infineon or Ramtron whose last estimate
differed the most from that finally decided by the investment banking firm
shall be responsible for and pay all of the expenses of such investment
banking firm. All determinations made pursuant to this paragraph (d)
shall be final and binding on Infineon and Ramtron.
(e) HSR Condition. If in the reasonable judgment of Infineon, Infineon's
acquisition of shares of Ramtron Common Stock upon exercise of its rights
under this Section would require a filing under the HSR Act or under any
similar body of law of the European Union or any Member State thereof,
Ramtron and Infineon each will take such actions as may be required
promptly to comply with the requirements of the HSR Act or under any
similar body of law of the European Union or any Member State thereof
relating to the filing and furnishing of information (an "HSR Report") to
the Federal Trade Commission ("FTC") and the Antitrust Division of the
Department of Justice ("DOJ") or the appropriate governmental authority,
such actions to include (i) preparing and cooperating with each other in
preparing the HSR Report to be filed by or on behalf of each of them so as
to avoid errors or inconsistencies between their HSR Reports in the
description of the reported transaction and to permit the filing of their
HSR Reports in a timely fashion, (ii) complying with any request for
additional documents or information made by the FTC, the DOJ or any other
governmental entity or by any court and assisting the other in so
complying and (iii) causing all Persons which are part of the same
"person" (as defined for purposes of the HSR Act) as such party to
cooperate and assist in such compliance. Ramtron and Infineon each will
pay any costs that it incurs in complying with the obligations set forth
in this paragraph. It will be a condition precedent to the acquisition of
shares of Ramtron Common Stock by Infineon that either (i) no filing
under the HSR Act or under any similar body of law of the European Union
or any Member State thereof by Infineon is required in connection with
such acquisition or (ii) any applicable waiting period under the HSR Act
or under any similar body of law of the European Union or any Member State
thereof has expired or been terminated. If the applicable waiting period
under the HSR Act or under any similar body of law of the European Union
or any Member State thereof has not expired or been terminated within 180
days after filing of the HSR Report or if Infineon and Ramtron agree to
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withdraw the HSR Report, then Ramtron will use its reasonable best efforts
to afford to Infineon the benefits intended to be provided by this Section
by granting to Infineon the right to acquire, on the same terms as the
securities originally to be acquired, other securities of Ramtron having
substantially the same rights, privileges and preferences as the
securities originally to be acquired, except that such other securities
will not possess voting rights and will be convertible into the shares
that Infineon was to acquire pursuant to this Section 7.5.
7.6 Ramtron Shareholder Rights Agreement. At a duly called meeting of the
board of directors of Ramtron held within three (3) months from the date of
this Agreement, the board of directors of Ramtron shall consider adopting a
Stockholder Protection Rights Agreement (the "Ramtron Rights Agreement"), in
light of the fiduciary duties of the board and whether the adoption of a
Ramtron Rights Agreement is fair to, advisable and in the best interests of the
Ramtron and its stockholders. In the event that Ramtron adopts a Ramtron
Rights Agreement, it shall be in a form reasonably acceptable to Infineon, and
shall, among other things, provide for an exception to the definition of
"Acquiring Person" to exclude therefrom Infineon and its affiliates (together,
the "Grandfathered Entities"). In addition, from and after the date of any
adoption, Ramtron shall not (i) amend or supplement the Ramtron Rights
Agreement in any manner which would adversely affect the rights of the
Grandfathered Entities thereunder or (ii) adopt or implement any other
stockholder protection rights agreement or any similar plan or arrangement
unless such agreement, plan or arrangement is in no way less favorable to the
Grandfathered Entities than the Ramtron Rights Agreement.
7.7 Takeover Statute. If any Takeover Statute is or may become applicable to
the transactions contemplated by this Agreement, Ramtron and its board of
directors shall grant such approvals and take such actions as are necessary so
that such transactions may be consummated as promptly as practicable on the
terms contemplated by this Agreement and otherwise act to eliminate or minimize
the effects of such statute or regulation on such transactions.
7.8 EMS Right of First Offer. (a) Right of First Offer. For so long as
Infineon Beneficially Owns a number of shares of Ramtron Common Stock equal to
or greater than five percent (5%) of the Outstanding Shares as of the Initial
Closing Date, (the "Right of First Offer Period"), if Ramtron or any of its
affiliates propose to Transfer Beneficial Ownership of any shares of capital
stock of Enhanced Memory Systems, Inc., a Delaware corporation and majority-
owned subsidiary of Ramtron ("EMS"), Ramtron shall give Infineon the
opportunity, in the following manner, to purchase such shares of capital stock
of EMS and shall not effect any proposed Transfer without complying with the
following procedures:
(b) Notice; Consultation. Ramtron shall give written notice (the "Right of
First Offer Notice") to Infineon of its or any of its affiliates' intent
to Transfer such shares of capital stock of EMS, (the "First Offer
Shares") and, if known, the identity of proposed transferees. For a period
of 30 days following Infineon's receipt of a First Offer Notice, Ramtron
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or such affiliate shall discuss in good faith with Infineon the
possibility of effecting such a transaction with Infineon, and during such
30-day period, Ramtron or such affiliate shall negotiate in good faith and
exclusively with Infineon to determine whether it is possible to agree to
such a transaction with Infineon, but neither party shall be obligated to
enter into any agreement to do so.
(c) Infineon Offer; Acceptance. In the event that Ramtron or such affiliate
and Infineon shall not have agreed on the terms of a transaction with
respect to the First Offer Shares, Infineon shall, at or prior to the
conclusion of such 15-day period, deliver to Ramtron either (i) a
statement of Infineon's final offer price with respect to the First Offer
Shares (an "Infineon First Offer Notice"), which notice shall constitute a
bona fide offer by Infineon to Ramtron or such affiliate to acquire all of
the First Offer Shares at such price, or (ii) a written notice stating
that Infineon is not interested in making a final offer for the First
Offer Shares (an "Infineon First Offer Rejection Notice"). In the event
that Ramtron or such Affiliate elects to sell the First Offer Shares to
Infineon pursuant to the Infineon Offer Notice, it shall provide written
notice to such effect (a "Ramtron Acceptance Notice") to Infineon within
10 days of receipt of the Infineon First Offer Notice. The closing of any
purchase by and sale to Infineon of the First Refusal Shares shall take
place, to the extent legally practicable, on such date that is no less
than 5 and no more than 30 days following the date of the Infineon
Acceptance Notice, as Infineon and Ramtron shall mutually agree. At such
closing: (i) Ramtron shall deliver to Infineon certificates representing
the First Offer Shares being sold, free and clear of any lien; (ii)
Infineon shall deliver to Ramtron the consideration to be paid for such
First Offer Shares in accordance with Section 7.8(b); and (iii) Ramtron
and Infineon shall execute or cause to be executed such other documents
and take or cause to be taken such other actions as shall be reasonably
necessary to consummate the purchase and sale of the First Offer Shares on
the terms contemplated by the Offer Terms and the other terms and
conditions set forth in this Section 7.8. Infineon and Ramtron each will
pay any costs that it incurs in complying with the obligations set forth
in this paragraph. In the event that Ramtron or such affiliate elects not
to sell the First Offer Shares to Infineon pursuant to the Infineon Offer
Notice, it shall provide written notice to such effect (an "Ramtron
Rejection Notice") within 10 days of receipt of the Infineon Offer Notice.
(d) Transfers to Third Parties. In the event that the First Offer Shares are
not acquired by Infineon pursuant to Section 7.9(b), for a period of one
hundred twenty (120) days from the date of delivery of either (i) a
Ramtron Rejection Notice or (ii) an Infineon Rejection Notice, Ramtron or
such affiliate shall be free to negotiate and to initiate and hold
discussions with other potential purchasers, and to consummate a sale of
any or all of the First Offer Shares to one or more third parties;
provided, however, that if Infineon has delivered a Infineon Offer Notice,
the purchase price of such First Offer Shares payable by each such third
party must be at least equal to the purchase price thereof set forth in
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such Infineon Offer Notice, with non-cash consideration valued by the
Ramtron board of directors in good faith, and all other terms and
conditions shall not be materially less favorable to Ramtron or such
affiliate than those contained in the Infineon Offer Notice; provided,
further, that if the closing of any such purchase is subject to the making
of any necessary filings with, the expiration of any applicable waiting
periods imposed by, or obtaining any approvals from, any governmental
entities, such purchase may be consummated at any time prior to 15 days
after the expiration of such waiting period or the granting of such
consent or approval, as the case may be.
(e) Subsequent Application. If Ramtron or such Affiliate shall not have
consummated the Transfer of all of the First Offer Shares prior to the
expiration of the period specified in the foregoing paragraph (c), then
the provisions of this Section 7.9 shall again apply, and Ramtron or such
Affiliate shall not Transfer any of such shares of capital stock of EMS
without again complying with this Section.
7.9 Infineon Standstill. (a) From the Initial Closing Date until the earlier
of (i) the date eighteen (18) months after the Initial Closing Date, (ii) the
date on which (A) a Change of Control of Ramtron shall have occurred,
(B) Ramtron shall have publicly announced, directly or indirectly, its
willingness to recommend or support a transaction that would constitute a
Change of Control of Ramtron, or (C) a third party shall have publicly
announced, directly or indirectly, its intention to launch or commence an
unsolicited bid or offer or transaction that would result in a Change of
Control of Ramtron, or (iii) the date on which Ramtron settles, without the
consent of Infineon, in a manner that would be materially adverse to Ramtron,
as a whole, or Ramtron's rights to or ability to license and use the Ramtron
Intellectual Property, or receives an adverse, final and nonappealable judgment
in its patent interference proceeding between Ramtron, National Semiconductor
Corporation, and the United States Department of the Navy, Infineon, without
the prior written consent of Ramtron, shall not, and shall not suffer or permit
any subsidiaries of Infineon to, whether acting alone or in concert with
others, except for the Ramtron Shares issued to Infineon in connection with
this Agreement, acquire, offer to acquire or agree to acquire, directly or
indirectly, by purchase, gift or otherwise, Beneficial Ownership of any shares
of Ramtron Common Stock (the "Stock Limitation").
(b) No violation of Section 7.9 shall be deemed to occur as a result of the
acquisition by Infineon, or any affiliate or associate of Infineon, of
Beneficial Ownership of shares of Ramtron Common Stock in excess of the
Stock Limitation (i) as a result of (A) any stock repurchase or similar
transaction undertaken by Ramtron or its affiliates that shall cause
Infineon's percentage ownership in the Outstanding Shares to exceed the
Stock Limitation even though the number of Shares Beneficially Owned by
Infineon and its affiliates and associates remains unchanged; (B) any
acquisition of voting securities of another corporation by Infineon or any
affiliate or associate of Infineon in a bona fide acquisition of a
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business, the primary purpose of which is not to acquire shares of Ramtron
Common Stock, which results in Infineon or any such affiliate or associate
becoming the Beneficial Owner of additional shares of Ramtron Common
Stock; (C) any stock split, stock dividend or other distribution relating
to shares of Ramtron Common Stock; or (D) pursuant to Section 7.5 of this
Agreement; or (ii) in the event that Ramtron invites, requests or
otherwise solicits Infineon or any of its affiliates or associates to
acquire, offer to acquire or agree to acquire, by purchase or otherwise,
Beneficial Ownership of such shares of Ramtron Common Stock.
7.10 Ramtron Right of First Refusal.
(a) For so long as Infineon Beneficially Owns a number of shares of Ramtron
Common Stock equal to or greater than five percent (5%) of the Outstanding
Shares, if Infineon proposes to Transfer Beneficial Ownership of an amount
Ramtron Shares (the "First Refusal Shares") greater than 1% of the
Outstanding Shares to a Person other than an Affiliate of an Infineon,
Infineon shall give Ramtron three (3) Business Days advance written notice
(the "First Refusal Notice") of its intent to make such Transfer and the
amount of First Refusal Shares to be Transferred.
(b) Ramtron may elect, in its sole discretion, to purchase the First Refusal
Shares specified in such notice, by providing written notice to Infineon
of its intent to do so within three Business Days of its receipt of the
First Refusal Notice (the "Ramtron Acceptance Notice"), which shall state
that Ramtron is electing to purchase all of such First Refusal Shares, at
a price equal to the Average Closing Price of such First Refusal Shares as
of the date on which the First Refusal Notice was sent. If Ramtron elects
to purchase such Shares, the closing for such purchase shall be on the
third Business Day following delivery of the Ramtron Acceptance Notice, at
which time Ramtron shall pay for the First Refusal Shares and Infineon
shall deliver the First Refusal Shares to Ramtron.
(c) If Ramtron fails to elect to purchase all the First Refusal Shares
specified in the First Refusal Notice within the three (3) day time period
specified in paragraph (a) of this Section 7.10, then Infineon (i) shall
be under no obligation to sell any of the First Refusal Shares to Ramtron,
unless Infineon so elects, and (ii) may, within a period of 120 days from
and after the date of the First Refusal Notice, Transfer up to all of the
First Refusal Shares.
(d) Subsequent Application. If Ramtron does not elect to purchase all the
First Refusal Shares at a price equal to the Average Closing Price of such
First Refusal Shares as of the date on which the First Refusal Notice was
sent and Infineon shall not have consummated the Transfer of all of the
First Refusal Shares to a third party or third parties prior to the
expiration of the 120-day period specified in the foregoing paragraph (d),
then the provisions of this Section 7.10 shall again apply, and Infineon
shall not Transfer any of such First Refusal Shares not so Transferred
without again complying with this Section 7.10.
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SECTION 8
INDEMNIFICATION
8.1 Survival of Representations, Warranties and Covenants. The
representations, warranties, and covenants contained herein and in any
certificate or other writing delivered pursuant hereto shall survive for a
period of two (2) years following the execution and delivery hereof, whereupon
such representations, warranties and covenants will expire (except for
covenants that by their terms survive for a longer period).
8.2 Indemnification of Ramtron. Subject to the limitations contained in this
Section 8, Infineon shall defend, indemnify and hold harmless Ramtron and its
respective officers, directors, stockholders, employees and agents from and
against any and all losses, claims, judgments, liabilities, demands, charges,
suits, penalties, costs or expenses, including court costs and attorneys' fees
("Claims and Liabilities") with respect to or arising from (i) the breach of
any warranty or any inaccuracy of any representation made by Infineon in this
Agreement, or (ii) the breach of any covenant or agreement made by Infineon in
this Agreement.
8.3 Indemnification of Infineon. Subject to the limitations contained in this
Section 8, Ramtron shall defend, indemnify and hold harmless Infineon and its
respective officers, directors, stockholders, employees and agents from and
against any and all Claims and Liabilities with respect to or arising from
(i) the breach of any warranty or any inaccuracy of any representation made by
Ramtron in this Agreement, or (ii) the breach of any covenant or agreement made
by Ramtron in this Agreement.
8.4 Limitations on Indemnification. (a) Notwithstanding anything to the
contrary contained herein, neither Infineon, on the one hand, nor Ramtron, on
the other hand, shall indemnify the other, as applicable, or any of their
respective subsidiaries or any directors, officers, employees or agents of any
of the foregoing, as applicable, for any Claims and Liabilities which such
party(ies) would otherwise be entitled to indemnification pursuant to Section
8.2 or 8.3, unless the aggregate amount of all such Claims and Liabilities
incurred by such party(ies) exceeds $500,000 (the "Deductible Amount"), in
which event such party(ies) shall be liable only for the amount of such Claims
and Liabilities which exceeds the Deductible Amount; provided, that the
aggregate liability of Infineon, on the one hand, and Ramtron, on the other
hand, under this Section 8 (other than with respect to any intentional or
willful breach or failure to perform) shall in no event exceed $15,000,000.
(b) Anything to the contrary notwithstanding, neither Infineon, on the one
hand, nor Ramtron, on the other hand, shall indemnify the other, as
applicable, or any of their respective subsidiaries or any directors,
officers, employees or agents of any of the foregoing, as applicable, in
respect of any Claims and Liabilities which are covered by insurance owned
by such party(ies) to the extent that any net loss is reduced by such
insurance. To the extent quantifiable, the parties shall make appropriate
adjustments to take into account the tax benefits or costs in determining
the amount of indemnification to be provided hereunder.
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8.5 Claims Procedure. In respect of any third-party claims for which
indemnification is sought hereunder, promptly after the receipt by any
indemnified party (the "Indemnitee") of notice of the commencement of any
action or proceeding against such Indemnitee, such Indemnitee shall, if a claim
with respect thereto is or may be made against any indemnifying party (the
"Indemnifying Party") pursuant to this Section 8, give such Indemnifying Party
written notice of the commencement of such action or proceeding and give such
Indemnifying Party a copy of such claim and/or process and all legal pleadings
in connection therewith. The failure to give such notice shall not relieve any
Indemnifying Party of any of its indemnification obligations contained in this
Section 8, except where, and solely to the extent that, such failure actually
and materially prejudices the rights of such Indemnifying Party. Such
Indemnifying Party shall have, upon request within thirty (30) days after
receipt of such notice, but not in any event after the settlement or compromise
of such claim, the right to defend, at his or its own expense and by his or its
own counsel reasonably acceptable to the Indemnitee, any such matter involving
the asserted liability of the Indemnitee. In any event, the Indemnitee, such
Indemnifying Party and its counsel shall cooperate in the defense against, or
compromise of, any such asserted liability, and in cases where the Indemnifying
Party shall have assumed the defense, the Indemnitee shall have the right to
participate in the defense of such asserted liability at the Indemnitee's own
expense. In the event that such Indemnifying Party shall decline to
participate in or assume the defense of such action, prior to paying or
settling any claim against which such Indemnifying Party is, or may be,
obligated under this Section 8 to indemnify an Indemnitee, the Indemnitee shall
first supply such Indemnifying Party with a copy of a final court judgment or
decree holding the Indemnitee liable on such claim or, failing such judgment or
decree, the terms and conditions of the settlement or compromise of such claim.
An Indemnity's failure to supply such final court judgment or decree or the
terms and conditions of a settlement or compromise to such Indemnifying Party
shall not relieve such Indemnifying Party of any of its indemnification
obligations contained in this Section 8, except where, and solely to the extent
that, such failure actually and materially prejudices the rights of such
Indemnifying Party. If the Indemnitee is defending the claim as set forth
above, the Indemnitee shall have the right to settle or compromise any claim
against it after consultation with, but without the prior approval of, any
Indemnifying Party; provided, however, that such settlement or compromise shall
not, unless consented to in writing by such Indemnifying Party, which shall not
be unreasonably withheld, be conclusive as to the liability of such
Indemnifying Party to the Indemnitee. If the Indemnifying Party is defending
the claim as set forth above, the Indemnifying Party shall have the right to
settle the claim only with the consent of the Indemnitee; provided, however,
that if the Indemnitee shall fail to consent to the settlement of such a claim
by the Indemnifying Party, which settlement (i) the claimant has indicated it
will accept, and (ii) includes an unconditional release of the Indemnitee and
its affiliates by the claimant and imposes no material restrictions on the
future activities of the Indemnitee and its affiliates, the Indemnifying Party
shall have no liability with respect to any payment required to be made to such
claimant in respect of such claim in excess of the proposed amount of
settlement.
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8.6 Treatment of Indemnity Payments. Any payments pursuant to this Section 8
shall be made by wire transfer of immediately available funds.
8.7 Exclusive Remedy. Each of the parties hereto acknowledges and agrees
that, from and after the Closing Date, its sole and exclusive monetary remedy
with respect to any and all claims relating to the subject matter of this
Agreement shall be pursuant to the indemnification provisions set forth in this
Section 8, except that nothing in this Agreement shall be deemed, to constitute
a waiver of (A) any injunctive or other equitable remedies or (B) any tort
claims of, or causes of action arising from, intentional or fraudulent
misrepresentation or deceit.
SECTION 9
MISCELLANEOUS
9.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York, except with respect to matters relating to the
authorization and issuance of the Infineon Shares and the Ramtron Shares, which
shall be governed by the relevant laws of the Federal Republic of Germany and
Delaware, respectively.
9.2 Jurisdiction. (a) Infineon and Ramtron agree that any dispute based on
any matter arising out of or in connection with this Agreement or the
transactions contemplated hereby shall first be submitted to the following
dispute settlement procedure:
(i) the party wishing to resolve such dispute shall provide written notice
to the other party outlining the nature of such dispute and a date,
not less than fourteen (14) Business Days after the date of such
notice, at which a Senior Director or more senior officer of Infineon
and a Vice President or more senior officer of Ramtron shall meet at a
mutually convenient location in order to attempt to resolve such
dispute;
(ii) if the senior management referred to in clause (i) above do not
resolve the dispute, either party may make a written request within
ten (10) Business Days following the meeting thereof for formal
dispute resolution and specify the scope of the dispute in such
request;
(iii) within twenty (20) days after such written request, the parties agree
that a Senior Director or more senior officer of Infineon and a Vice
President or more senior officer of Ramtron shall meet for one day
with an impartial mediator and consider dispute resolution
alternatives; and
(iv) if an alternative method of dispute resolution is not agreed upon
within twenty (20) days after the one (1) day mediation, either party
may proceed as set forth in Sub-sections (b) and (c) of this Section
9.
Page-35
<PAGE>
The language of any proceedings under this Sub-section (a) shall be the English
language.
(b) Subject to exhaustion of the remedies set forth in Sub-section (a) of this
Section 9.2, any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall be resolved
by final and binding arbitration administered by the American Arbitration
Association ("AAA") in The City of New York, in accordance with the
International Arbitration Rules of the AAA. Any dispute hereunder shall
be resolved by majority decision of a panel of three arbitrators, one to
be chosen by each party and the third to be chosen by mutual agreement of
the parties. Either party shall have the option, in its sole discretion,
to elect that the arbitration be conducted under the AAA Expedited
Procedures in accordance with such rules. Judgment on the award rendered
by the arbitrators may be entered in the United States federal district
court for the Southern District of New York.
(c) The parties shall bear their own costs in connection with any actions
under Sub-Section (a) of this Section 9.2 and, save where there is a
mediator or arbitrator ruling to the contrary, any reasonable expenses
incurred by the prevailing party in connection with any mediated or
arbitration-determined proceedings arising under this Agreement or the
transactions contemplated hereby shall be reimbursed to such prevailing
party by the losing party.
9.3 Specific Enforcement. Infineon and Ramtron acknowledge and agree that
irreparable damage would occur in the event that the provisions of Section 5.1
or 5.2 were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of Section 5.1 and to enforce specifically the terms and provisions
thereof in the United States federal district court for the Southern District
of New York.
9.4 Successors and Administrators. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors and administrators of the parties hereto. This Agreement
may not be assigned by either party without the prior written consent of the
other party.
9.5 Third-Party Beneficiaries. Except as otherwise expressly provided herein,
this Agreement will not confer any rights or remedies upon any person other
than the parties to this Agreement and their respective successors and
permitted assigns.
9.6 Entire Agreement; Amendment. This Agreement (including the Exhibits,
Schedule and Annexes hereto), the Transaction Agreements and the other
documents delivered pursuant hereto or incorporated herein constitute the full
and entire understanding and agreement between the parties and supercedes all
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<PAGE>
other prior agreements, understandings, representations and warranties, both
written and oral, among the parties, with respect to the subject matter hereof.
The parties expressly acknowledge that in entering this agreement, they have
not relied on any representations, written or unwritten, other than those
expressly set forth herein. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument
signed on behalf of all parties hereto by their duly authorized
representatives.
9.7 Notices, Etc. All notices and other communications required or permitted
hereunder shall be in writing and shall be sent by prepaid recognized
international courier, delivered either by hand or by messenger, or transmitted
by electronic telecopy (fax) addressed:
If to Ramtron, at:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
USA
Attn: Chief Executive Officer
Fax: 719 481 9294
with a copy to:
Coudert Brothers
950 Seventeenth Street
Suite 1800
Denver, Colorado 80202
USA
Attn: John A. St. Clair
Fax: 303 607 1080
If to Infineon, at:
Infineon Technologies AG
Attn.: Arno Paetzold
M&A Department
St.-Martin-Strasse 53
D-81541 Munich
Germany
Fax: 49 89 234 8 5872
with copies to:
Infineon Technologies AG
Attn: General Counsel
St.-Martin-Strasse 53
D-81541 Munich
Germany
Fax: 49 89 234 2 6583
Page-37
<PAGE>
And,
Sullivan & Cromwell
Attn: David B. Rockwell
Neue Mainzer Strasse 52
60311 Frankfurt am Main
Germany
Fax: 49 69 7191 2610
or at such other address as either party shall have furnished to the other in
writing in the manner set forth herein. All such notices and other written
communications shall be conclusively deemed to have been duly given (i) if sent
by an internationally recognized overnight courier, three (3) Business Days
after dispatch, (ii) if delivered by hand, on the next Business Day, or
(iii) if faxed, within one Business Day after confirmation of the successful
transmission thereof.
9.8 Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to either party hereto upon any breach or default of the other
party under this Agreement shall impair any such right, power or remedy of such
party nor shall it be construed to be a waiver of any such breach or default,
or any acquiescence therein, or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party hereto of any breach or default under this Agreement or any waiver on the
part of any party hereto of any provisions or conditions of this Agreement must
be made in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
9.9 Severability. In case any provision of the Agreement or any other
agreement between the parties shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and the parties shall cooperate in good
faith to amend this Agreement in order to give effect to the original agreement
contemplated hereby.
9.10 Confidential Information. Each party acknowledges that the information
received by it pursuant hereto may be confidential and proprietary to the other
party. Disclosures and exchange of confidential information between Infineon
and Ramtron with respect to performance of this Agreement and the existence of
this Agreement and its terms shall be governed by the terms of the Non-
Disclosure Agreement (NDA) dated October 11, 2000.
9.11 Press Releases, Etc. It is currently intended that on or before the next
trading day after the date of this Agreement, Infineon and Ramtron may issue a
joint press release in a form to be agreed to by the parties disclosing that
Infineon has invested in Ramtron. Other press announcements regarding Ramtron
or Infineon with respect to the investment made by Infineon hereby shall only
be made with both Ramtron's and Infineon's prior written consent, such consent
not to be unreasonably withheld.
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<PAGE>
9.12 Expenses. Except as otherwise expressly provided herein, each of
Infineon and Ramtron shall bear its own costs and expenses incurred in
connection with the execution of this Agreement and the transactions
contemplated hereby.
9.13 Titles and Subtitles. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
9.14 Definitions. All references to "Infineon" in Section 3 shall be deemed
to mean "Infineon and its subsidiaries, collectively and singly" unless the
context clearly requires the reference to mean "Infineon" singly. All
references to "Ramtron" in Section 4 shall be deemed to mean "Ramtron and its
subsidiaries, collectively and singly" unless the context clearly requires the
reference to mean "Ramtron" singly.
9.15 Scope. To the extent legally possible, each party hereto shall be
responsible for the actions of all entities under its control and shall cause
such entities to comply with the terms of this Agreement wherever applicable.
9.16 Counterparts. This Agreement may be executed in two or more counterparts
any of which may be delivered by facsimile transmission, each of which shall be
an original, and all of which together shall constitute one instrument.
EXECUTION PAGE
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
date first above written.
INFINEON TECHNOLOGIES AG
By: /S/ Harald Eggers
Name: Harald Eggers
Title: Sr. Vice President & General Manager
By: /S/ Klaus Fleischmann
Name: Klaus Fleischmann
Title: Sr. Director, Business Development and Relations
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. David Sikes
Name: L. David Sikes
Title: Chairman and CEO
Page-39
<PAGE>
Schedule 4.3
RAMTRON INTERNATIONAL CORPORATION
Convertible Securities
Number of Common
Stock Shares Issued
Name and Address Instrument Upon Conversion
--------------------------------- ------------------- -------------------
Mr. Edwin Hill, Trustee $7M Promissory Note 1,400,000
National Electrical Benefit Fund @ $5.00
1125 15th Street, Suite 1202
Washington, DC 20005
Mr. Edwin Hill, Trustee Warrant @ $2.25 805,697
National Electrical Benefit Fund Warrant @ $2.25 100,000
1125 15th Street, Suite 1202
Washington, DC 20005
Lawrence Fleischman Warrant @ $5.00 8,059
Capital Vision Group, Inc.
350 Vanderbilt Motor Parkway
Suite 404
Hauppauge, NY 11788
Mr. Brad A. Gordon Warrant @ $5.00 12,088
Kim Enterprises, LP
101 E. Kennedy Boulevard, Suite 3300
Tampa, FL 33602
Morgan Frank Warrant @ $10.813 70,000
Hollis Capital Partners Warrant @ $16.220 70,000
One Sansome Street, 39th Floor
San Francisco, CA 94104
Morton Cohen Warrant @ $10.813 53,035
Clarion Capital Corporation Warrant @ $16.220 43,035
1801 East 9th Street, Suite 1120
Cleveland, OH 44144
Morton Cohen Warrant @ $10.813 25,103
Clarion Partners,LP Warrant @ $16.220 18,003
1801 East 9th Street, Suite 1120
Cleveland, OH 44144
Morton Cohen Warrant @ $10.813 10,254
Clarion Offshore Fund Warrant @ $16.220 7,354
1801 East 9th Street, Suite 1120
Cleveland, OH 44144
Page-40
<PAGE>
Mr. Howard Sutton Warrant @ $10.813 50,000
Tera Capital LP Warrant @ $16.220 50,000
366 Adelaide Street, East
Suite 337
Toronto, Ontario M5A 3X9
Canada
Mr. Howard Sutton Warrant @ $10.813 50,000
Brant Investments Ltd. Warrant @ $16.220 50,000
366 Adelaide Street, East
Suite 337
Toronto, Ontario M5A 3X9
Canada
Robert W. Ledoux Warrant @ $10.813 22,098
Venture Growth Associates Warrant @ $16.220 22,098
Embarcadero Corporate Center
2479 E. Bayshore, Suite 710
Palo Alto, CA 94303
Patricia E. Mudge Warrant @ $16.220 22,098
2234 Del Mar Heights Road
Del Mar, CA 92014
Mr. Jeb Besser Warrant @ $16.220 30,000
JEB Partners, LP Warrant @ $5.00 124,000
2 International Place, 24th Floor
Boston, MA 02110
Mr. Jeb Besser Warrant @ $16.220 22,500
JEB Investments, Ltd. Warrant @ $5.00 96,000
2 International Place, 24th Floor
Boston, MA 02110
Alan R. Brudos Warrant @ $10.813 44,196
Jupiter Partners Warrant @ $16.220 44,196
c/o Bryan & Edwards
600 Montgomery Street
35th Floor
San Francisco, CA 94111
James R. Berdell Warrant @ $10.813 100,000
Venture Growth Associates Warrant @ $16.220 100,000
Embarcadero Corporate Center
2479 E. Bayshore, Suite 710
Palo Alto, CA 94303
Mr. Tom Frye Warrant @ $10.813 353,569
Castle Creek Technologies Warrant @ $16.220 353,569
77 W. Wacker Drive, Suite 4040
Chicago, IL 60601
Page-41
<PAGE>
Mr. Edward A. Zabitsky Warrant @ $10.813 35,957
ACI Research Warrant @ $16.220 35,957
476 Spadina Road
Toronto, Ontario M5P 2W8
Canada
L. David Sikes Warrant @ $6.88 667,000
1850 Ramtron Drive
Colorado Springs, CO 80921
Jan-Charles Fine Warrant @ $17.00 25,000
c/o Pro Tem Partners Inc.
18 Page Road
Weston, MA 02493
Crisostomo B. Garcia, Trustee Series A Preferred 39,670
Crisostomo B. Garcia Trust Stock - 193 shares
Dated 6/8/93 @ $5.00
P.O. Box 9248
17950 Circa Oriente
Rancho Santa Fe, CA 92067
Jonathan Glaser Series A Preferred 73,380
JMG Capital Partners, LP Stock - 357 shares
1999 Avenue of the Stars @ $5.00
Suite 2530
Los Angeles, CA 90067
Jonathan Glaser Series A Preferred 73,380
Triton Capital Holdings, Ltd. Stock - 357 shares
1999 Avenue of the Stars @ $5.00
Suite 2530
Los Angeles, CA 90067
Additionally, Ramtron International Corporation has 3,238,691 employee stock
options, convertible into 3,238,691 shares of Ramtron Common Stock,outstanding.
Page-42
<PAGE>
EXHIBIT 2.1
Version as of June 2000
Articles of Association
of
Infineon Technologies AG
I. General Provisions
SECTION 1
Company Name, Registered Place of Business and Fiscal Year
----------------------------------------------------------
(1) The business name of the company is
Infineon Technologies AG.
(2) The company's registered place of business is Munich.
(3) The business year runs from October 1, of each year until September 30, of
the following year.
SECTION 2
Object of the Enterprise
------------------------
(1) The object of the enterprise is direct or indirect activity in the area of
research, development, manufacture and marketing of electronic components,
electronic systems and software, as well as the performance of services
related thereto.
(2) The company is entitled to perform all acts and take all steps which
appear likely to directly or indirectly promote the achievement of the
company's aims.
(3) The company may establish subsidiaries and branches in Germany and abroad,
and can participate in other enterprises. The company can buy or sell
enterprises, combine them under single management and conclude enterprise
agreements with them or restrict itself to managing the participation. It
is entitled to spin off its operations - as a whole or in part- into
affiliated enterprises.
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<PAGE>
SECTION 3
Announcements
-------------
Announcements of the company shall be made by publication in the Federal
Gazette.
II. Registered Capital and Shares
SECTION 4
Amount and Division of the Registered Capital
---------------------------------------------
(1) The registered capital of the company is EUR 1,251,003,014 (in words: one
billion two hundred fifty one million three thousand and fourteen Euro).
It is divided into 625,501,507 registered individual non-par value bearer
shares.
(2) The management board is authorized to increase the registered capital in
the period until March 31, 2004, once or in partial amounts, with the
consent of the supervisory board, by up to a total of EUR 120,000,000
through the issue of new shares in return for contributions in cash
(authorized capital I). The shareholders shall be granted a subscription
right. The subscription rights of the shareholders may be excluded,
(a) to the extent that fractional residual amounts must be balanced out;
(b) to the extent which it is necessary to grant a subscription right to
new shares to the holders of subscription warrants or the holders of
convertible bonds issued by the company or its subsidiaries, as they
would be entitled to after the exercise of the option or conversion
rights or after the fulfillment of conversion duties.
(c) if the proportion of the registered capital represented by the new
shares exceeds neither a total of ten percent of the registered
capital existing at the time this authorized capital is registered,
nor a total of ten percent of the registered capital existing at the
time of the issue of new shares, and the issue price of the new
shares is not considerably less (within the meaning of paragraph 1
and 2 of Section 203 of the Stock Corporation Act, and paragraph 3,
sentence 4 of Section 186 of the Stock Corporation Act) less than the
stock exchange price.
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<PAGE>
(3) The management board is authorized to increase the registered capital in
the period until March 31, 2004, once or in partial amounts, with the
consent of the supervisory board, by up to a total of EUR 120,000,000
through the issue of new shares in return for contributions in cash for
the purpose of issuing shares to employees of the company (authorized
capital II). In this context, the subscription rights of the shareholders
are excluded. The management board shall decide on the further content of
the share rights and the conditions of the share issue with the consent of
the supervisory board.
(4) The management board is authorized to increase the registered capital of
the company at any time until March 31, 2004, once or in partial amounts,
with the consent of the supervisory board, by up to a total of EUR
237,581,846 through the issue of new shares in return for contributions in
kind (authorized capital III). In this context, the subscription rights
of the shareholders are excluded. The management board shall decide on
the further content of the share rights and the conditions of the share
issue with the consent of the supervisory board.
(5) The management board shall specify the form and the content of share
certificates and any dividend coupons and renewal coupons with the consent
of the supervisory board.
(6) A claim of the shareholders for the certification of their shares and
their dividend rights is excluded to the extent permissible by statute,
unless a certification is required by the rules of an exchange on which
the shares are listed. The company is entitled to issue share
certificates which represent individual shares (single share certificates)
or several shares (collective shares).
(7) The registered capital is contingently increased up to a nominal amount of
EUR 96,000,000. The contingent capital increase shall be implemented
exclusively by the issue of up to 48,000,000 new registered non-par value
bearer shares with entitlement to profits as of the beginning of the
fiscal year of their issue and only to the extent that the holders of
subscription rights granted under the share option plan of Infineon
Technologies AG for 1999 on the basis of the authorization issued on
October 18, 1999 and February 16, 2000, exercise their subscription rights
("Contingent Capital I").
(8) The registered capital is contingently increased by up to 50,000,000
through the issue of up to 25,000,000 new shares. This contingent capital
increase is implemented only to the extent that
a) the holders or creditors of conversion rights or subscription warrants
which are attached to the convertible bonds or bonds with warrants to
be issued by the company or its direct or indirect majority holding
companies by November 30, 2004, exercise their conversion or option
rights,
or that
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<PAGE>
b) the holders or creditors of the convertible bonds to be issued by
November 30, 2004 by the company or its direct or indirect majority
holding companies, who are obliged to convert their convertible bonds,
meet this obligation.
The new shares provide for the entitlement to profits as of the beginning
of the fiscal year as of which they are created as a result of the
exercise of conversion or option rights or of the fulfillment of
obligations to convert convertible bonds ("Contingent Capital II").
III. The Management Board
SECTION 5
Composition and Rules of Procedure
----------------------------------
(1) The management board consists of at least two persons. The supervisory
board shall determine their number. The supervisory board appoints the
members of the management board. It can appoint a chairman and a deputy
chairman of the management board.
(2) The company is legally represented by two members of the management board
or by one member of the management board and one procurist. Deputy
members of the management board are equal to ordinary members in this
respect.
Otherwise, the company is represented by procurists or other authorized
signatories subject to further specification by the management board.
(3) The management board shall pass rules of procedure for itself by unanimous
resolution of all members of the management board; these rules of
procedure require the consent of the supervisory board.
IV. Supervisory Board
SECTION 6
Composition, Term of Office, Resignation from Office
----------------------------------------------------
(1) The supervisory board consists of sixteen members, of whom eight members
are elected by the shareholders and of whom eight members are elected by
the employees. The election of the supervisory board members is for a
period not exceeding the end of the general meeting of the shareholders
which decides on the formal approval of conduct for the fourth business
year after the beginning of the term of office. The business year in
which the term of office begins is not included in this calculation. The
general meeting of the shareholders may specify a shorter term of office
for shareholders' supervisory board members when they are elected.
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<PAGE>
(2) Replacement members may be elected for several or all of the shareholders'
supervisory board members to take the place of shareholders' supervisory
board members who have left office prior to the end of their term or who
can no longer take up office because their election was challenged. This
replacement takes effect in the order laid down when the replacement
members were elected. If a replacement member takes the place of a member
who has left office, then the office of the replacement member shall
expire at the end of the general meeting of the shareholders at which a
replacement election takes place, but at the latest upon the expiry of the
term of office of the supervisory board member who has left. The election
of the replacement members of the supervisory board elected by the
employees is governed by the provisions of Co-Determination Act.
(3) Each supervisory board member may resign from office with four weeks prior
notice, even without cause, by means of written notification to the
chairman of the supervisory board. The chairman of the supervisory board
or, in case the chairman resigns, his deputy, can consent to this period
of notice being shortened.
SECTION 7
Chairman, Deputy Chairman
-------------------------
(1) Immediately after the general meeting of the shareholders at which the
supervisory board members to be elected by the general meeting of the
shareholders have been newly elected, a supervisory board meeting shall
take place which does not have to be specially convened, at which the
supervisory board elects a chairman and a deputy chairman from its midst
for the duration of the relevant period in office, in accordance with the
provisions of the Co-Determination Act. In addition, the supervisory board
elects a second deputy chairman. One of the deputy chairmen shall take the
chairman's place in all cases in which the latter is prevented from
attending, unless otherwise stipulated in these articles of association.
In all cases in which he acts as deputy for the chairman, he has the same
rights as the chairman, with the exception of the second vote to which the
chairman is entitled under the terms of the Co-Determination Act.
(2) If the chairman or a deputy chairman leave office before the end of their
term, a new election for the remaining period of office of the person who
has left shall take place without delay.
SECTION 8
Committees of the Supervisory Board
-----------------------------------
To the extent to which statute or the articles of association permit, the
supervisory board can transfer its duties and rights to its chairman, to
individual members or to committees formed from its midst. If the chairman of
the supervisory board belongs to a committee and if there is a tie in the
voting of the committee, then he - but not his deputy - has two votes if voting
is carried out a second time and once again ends in a tie.
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<PAGE>
SECTION 9
Convocation and Passing of the Resolutions
------------------------------------------
(1) The chairman shall convene the meetings of the supervisory board in
writing, by facsimile or E-mail with a period of notice of at least two
weeks. The day on which the notice of the meeting is sent out and the day
of the meeting itself are not included in this period of notice. In case
of urgency, he can shorten the period of notice to three days and can also
convene the meeting orally or by telephone. The provisions in paragraph 1
and 2 of Section 110 of the Stock Corporation Act remain unaffected.
(2) Notice of the meeting must be accompanied by information about the items
on the agenda and the proposed resolutions. If a matter on the agenda was
not properly announced, resolutions may only be passed on it if no member
of the supervisory board opposes the passing of the resolution.
(3) The chairman heads the meetings of the supervisory board. He determines
the order in which the items on the agenda are dealt with, as well as the
manner and order of voting.
(4) The supervisory board has a quorum if at least half of its members as
required by statute participate in passing resolutions in person or by
written casting of votes.
(5) Resolutions are passed with a simple majority of the votes cast, unless
statute otherwise requires. This also applies to elections. In case of
a tie in the voting, the chairman of the supervisory board has two votes
if voting is carried out a second time on the same item and again results
in a tie.
(6) An absent member can have his written vote handed in by another member of
the supervisory board
(7) Resolutions can be passed outside meetings in writing, by facsimile or by
E-Mail, unless a member of the supervisory board objects to this procedure
without delay.
(8) Minutes shall be taken of the meetings and resolutions of the supervisory
board. They shall be signed by the chairman and sent to all supervisory
board members in copy.
(9) The chairman shall act for the supervisory board if declarations to the
implementation of resolutions must be given or received. The documents
and announcements of the supervisory board shall be signed by the
chairman.
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<PAGE>
SECTION 10
Duties and Powers of the Supervisory Board
------------------------------------------
(1) The supervisory board shall appoint the management board and shall
supervise its management.
(2) The management board shall report to the supervisory board to the extent
specified by statute. In addition, the supervisory board can require
reports about all matters of the company, about its legal and business
relations with affiliated companies and about business transactions at
these enterprises which may be of material importance for the situation of
the company.
(3) The supervisory board shall establish rules of procedure for itself.
(4) The supervisory board is entitled to alter the articles of association if
such alterations only relate to its wording.
(5) The members of the supervisory board must maintain silence about
confidential information and secrets of the company, namely trade or
business secrets, which become known to the supervisory board members
through their membership in the supervisory board. If a member of the
supervisory board intends to disclose to a third party, confidential
information and secrets, in particular information about the contents and
course of supervisory board meetings and about the contents of submissions
to and resolutions of the supervisory board, he must first inform the
chairman of the supervisory board in order to resolve any differences in
opinion relative to any duty of confidence.
SECTION 11
Remuneration
------------
(1) Each member of the supervisory board shall receive a fixed remuneration
payable at the end of the company's fiscal year in the amount of EUR
25,000 per full fiscal year. Supervisory board members who join the
supervisory board during the current fiscal year or who leave the
supervisory board shall receive a corresponding pro rata portion of this
remuneration. The chairman of the supervisory board shall receive two
times that amount and each deputy chairman and each other member of any
committee of the supervisory board, with the exception of the members of
committees of the supervisory board which have to be created due to
statutory provisions, shall receive one and a half time this amount. In
addition, each member of the supervisory board shall receive 1500
appreciation rights (Wertsteigerungsrechte) per year to be granted and
exercised in accordance with the provisions of the share option plan
approved by the general meeting of the shareholders applicable in the year
of the granting of the appreciation rights. Such appreciation rights
include not the entitlement to subscribe to shares but only to receive
compensation in cash.
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<PAGE>
(2) The company shall reimburse the members of the supervisory board for their
cash expenses and the value added tax on their remuneration, if they can
and do invoice these separately.
V. General Meeting of the Shareholders
SECTION 12
Ordinary General Meeting of the Shareholders
--------------------------------------------
The ordinary general meeting of the shareholders shall take place within the
first eight months of the business year. Its agenda shall include regularly
(a) the submission of the annual financial statements with the situation
report of the management board and the report of the supervisory board;
(b) the passing of a resolution on the appropriation of the balance sheet
profit;
(c) the formal approval of conduct of the management board and the supervisory
board
(d) the election of the auditor
SECTION 13
Place and Convocation
---------------------
(1) The general meeting of the shareholders shall be convened by the
management board or the supervisory board. It shall take place at the
company's registered place of business in a German city with a stock
exchange. As far as legally permissible, the general meeting of the
shareholders may also take place at other places where a stock exchange on
which the company's shares are admitted for trading is located.
(2) The convocation must be announced at least one month before the end of the
day by which the shareholders must register. The day on which the
convocation of the meeting is announced and the day by which the
shareholders must register for the meeting shall not be included in the
calculation of the required period.
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<PAGE>
SECTION 14
Conditions for Participation and the Exercise of Voting Rights
--------------------------------------------------------------
Shareholders are entitled to participate in the general meeting of the
shareholders, and to exercise their voting rights, if they are entered in the
register of shareholders and have registered for the meeting in good time.
They must register for the meeting in writing, by facsimile or E-Mail with the
management board at the company's registered place of business. There must be
at least two days between the day of registration and the day of the general
meeting of the shareholders
SECTION 15
Direction and Course
--------------------
(1) The chairman of the supervisory board shall preside over the general
meeting of the shareholders. If he is unable to attend, this function
shall be assumed by a member of the supervisory board named by him. If no
such member has been named by him, this function shall be assumed by the
member chosen by the shareholders' supervisory board members in accordance
with paragraph 3 of Section 27 of the Co-Determination Act. If none of
these has appeared at this meeting or is willing to chair the meeting, the
shareholders' supervisory board members who are present shall elect a
person as chairman of the meeting.
(2) The chairman of the meeting shall regulate the course of the general
meeting of the shareholders. He can make use of assistants for this, in
particular in the exercise of the right to supervise internal meetings.
He determines the order in which speakers take the floor and can order a
restriction of the time allowed for speaking, or the end of the debate on
individual items on the agenda, if this is necessary for the proper
conduct of the general meeting of the shareholders.
(3) The chairman of the meeting determines the order of items to be discussed
and the voting, as well as the voting procedure. If voting cards or other
data carriers are used, he can stipulate that several votes may be
collected together.
(4) Shareholders who do not wish to participate in the voting must notify the
chairman of the meeting of this before the start of the voting, in the
form specified by the chairman; in order to calculate the results of
voting, only the votes against and the abstentions will be counted; votes
of shareholders present or represented who have not declared their non-
participation in the voting, have not voted no and have not abstained,
will be counted as a yes.
(5) The chairman of the meeting can change the voting procedures laid out in
(3) and (4) and can also order other procedures, especially by allowing
votes through "calling out" or through a show of hands.
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SECTION 16
Voting Right
------------
(1) Each share carries one vote.
(2) The voting right may be exercised by written authorized proxies.
SECTION 17
Passing Resolutions
-------------------
(1) Resolutions shall be passed with a simple majority of the votes cast and,
in so far as a capital majority is necessary, with a simple majority of
the represented registered capital, unless a higher majority is required
by compulsory statutory provisions or by these articles of association.
(2) In case of elections, the nomination which attracts the most votes is
considered as having been approved, with the exception of supplementary
elections to the supervisory board as specified in paragraph 2, sentence 3
of Section 6; In case of a tie in the voting, the lot drawn by the
chairman of the meeting shall decide.
VI. Annual Financial Statements and Appropriation of Profits
SECTION 18
Annual Financial Statements
---------------------------
In the first three months of the business year, the management board shall
prepare the annual financial statements and the situation report for the past
business year and shall submit them to the auditors. The management board
shall submit to the supervisory board the auditor's report together with the
annual financial statements, the situation report, and a proposal for the
appropriation of the balance sheet profit, immediately upon completion of the
auditors' report.
SECTION 19
Appropriation of Profits
------------------------
(1) The general meeting of the shareholders shall resolve the appropriation of
the balance sheet profit.
(2) The shareholders' shares in the profits are determined in proportion to
their shares of the registered capital.
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(3) In case of an increase in the registered capital, the participation of the
new shares in the profits can be determined in divergence from paragraph 2
of Section 60 of the Stock Corporation Act.
SECTION 20
Determinations of Contributions in Kind
---------------------------------------
(1) The incorporator company, Siemens AG, with registered places of business
in Munich and Berlin, contributes to the company, with economic effect on
April 1, 1999, as a contribution in kind, all of the assets which
exclusively belong to its semiconductor division, in particular:
a) its unincorporated division internally referred to as Halbleiter,
including all assets and liabilities pertaining thereto;
b) all of its shares in the German and foreign companies listed below and
belonging to the semiconductor division, in each case including the
profit or loss for the current financial year:
- interests in the nominal value of DM 240,000,000 in Siemens
Microelectronics Center GmbH & Co. OHG, Dresden, registered in the
commercial register of Dresden Local Court under HRA 1769,
- shares in the nominal value of DM 50,000 in Siemens
Microelectronics Center Verwaltungsgesellschaft mbH, Dresden,
registered in the commercial register of Dresden Local Court under
HRA 9982,
- interests in the nominal value of DM 55,300,000 in EUPEC
Europaische Gesellschaft fur Leistungshalbleiter mbH & Co., KG,
Warstein-Belecke, registered in the commercial register of Warstein
Local Court under HRA 346,
- shares in the nominal value of DM 60,000 in EUPEC Europaische
Verwaltungsgesellschaft fur Leistungshalbleiter mbH & Co., KG,
Warstein-Belecke, registered in the commercial register of Warstein
Local Court under HRA 273,
- interests in the nominal value of DM 4,279,068 in Osram Opto
Semiconductors GmbH & Co OHG, Regensburg, registered in the
commercial register of Regensburg Local Court under HRA 6036,
- shares in the nominal value of DM 24,500 in Osram
Unternehmensverwaltung Gesellschaft mit beschrankter Haftung ,
Munich, registered in the commercial register of Munich Local Court
under HRA 123984,
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- interests in the nominal value of DM 100,000 in Siemens Halbleiter
GmbH & Co. OHG, Munich, registered in the commercial register of
Munich Local Court under HRA 73932,
- shares in the nominal value of DM 50,000 in Siemens Halbleiter
Verwaltungsgesellschaft mbH, Munich, registered in the commercial
register of Munich Local Court under HRB 118186,
- interests in the nominal value of DM 15,030,000 in Semiconductor
300 GmbH & Co. KG, Dresden, registered in the commercial register
of Dresden Local Court under HRA 3104,
- shares in the nominal value of DM 25,100 in Semiconductor 300
Verwaltungsgesellschaft mbH, Dresden, registered in the commercial
register of Dresden Local Court under HRB 15763,
- interests in the nominal value of DM 2,000,000 in Epos GmbH & Co.
KG, Duisburg, registered in the commercial register of Duisburg
Local Court under HRB 6429,
- shares in the nominal value of DM 25,000 in Epos
Verwaltungsgesellschaft mbH, Duisburg, registered in the commercial
register of Duisburg Local Court under HRB 7688,
- shares in the nominal value of DM 125,000 in Freiberger Compound
Material GmbH, Freiberg/Sachsen, registered in the commercial
register of Chemnitz Local Court under HRB 11609,
- Shares (721,500,000 individual shares) in the nominal value of TWD
7,215,000,000 in ProMos Technologies, Inc., Hsin-Chu, Taiwan.
Profits from earlier financial years (that is, profits carried forward
or profits of earlier financial years on the allocation of which no
resolution has been passed) also belong exclusively to the Company.
The incorporator, Siemens AG, guarantees in relation to the
contributions in kind listed above and to be contributed, that the
value of the assets of the contributors in kind exceeds the
liabilities relating to the contributions in kind by EUR 161,825,088
and receives in consideration of its contributions in kind a total of
80,912,544 individual shares, with an aggregate nominal value of EUR
161,825,088
(2) The incorporator Siemens Netherlands N.V., with its registered place of
business in the Hague, contributes to the company, with economic effect on
April 1, 1999, all of its shares in the aggregate nominal value of EUR
1,000,000 in Infineon Technologies Holding B.V., the Hague, as a
contribution in kind, with the rights to participate in profit as from the
incorporation of such company.
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The incorporator Siemens Netherlands N.V. guarantees, for this
contribution in kind, a value of EUR 238,174,912 and receives in
consideration of its contributions in kind a total of 119,087,456
individual shares, with an aggregate nominal value of EUR 238,174,912.
SECTION 21
Costs of Formation
------------------
The company bears the costs of incorporation (notary's and registration fees as
well as costs of publication), estimated at DM 100,000.
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EXHIBIT A
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
December XX, 2000, and is being entered by and between Infineon Technologies
AG, a German stock corporation ("Infineon") and Ramtron International
Corporation, a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company has agreed to issue, and Infineon has agreed to subscribe
for, up to 4,430,005 shares (the "Shares") of the Company's common stock, par
value $0.01 per share (the "Common Stock") pursuant to that certain Share
Purchase Agreement, dated December 14, 2000 (the "Purchase Agreement"), by and
between the Company and Infineon;
WHEREAS, Infineon has consented to certain restrictions on its right to sell
Shares; provided that Infineon is granted the right to cause such Shares to be
registered or qualified for trading under certain laws in order to permit a
public offering of such shares in the United States if deemed necessary or
appropriate by Infineon and certain other rights set forth herein; and
WHEREAS, the parties wish to make certain covenants and agreements concerning,
among other things, the registration of the Shares under the Securities Act of
1933, as amended;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants,
representations, warranties and agreements contained herein, the parties agree
as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" shall mean, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such Person. For purposes of
this definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such person
whether by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Blackout Periods" shall have the meaning set forth in Section 2.1(b).
"Commission" shall mean the United States Securities and Exchange Commission or
any other United States federal agency at the time administering the Securities
Act or the Exchange Act.
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"Company" shall have the meaning set forth in the introductory paragraph to
this Agreement.
"Common Stock" shall have the meaning set forth in the Recitals.
"Demand Request" shall have the meaning set forth in Section 2.1(a).
"Effectiveness Period" shall have the meaning set forth in Section 2.4(b).
"Exchange Act" shall mean the United States Securities Exchange Act of 1934, as
amended, or any United States federal statute then in effect that has replaced
such statute, and a reference to a particular section thereof shall be deemed
to include a reference to the comparable section, if any, of any such
replacement United States federal statute.
"Holder" shall mean Infineon, and shall also include any assignee or transferee
of a Registrable Security that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with
Infineon and that agrees in writing at the time of such assignment or transfer
to be bound by the restrictions set forth herein.
"Indemnified Party" shall have the meaning set forth in Section 6(e).
"Indemnifying Party" shall have the meaning set forth in Section 6(e).
"Inspectors" shall have the meaning set forth in Section 2.4(f).
"Joining Request" shall have the meaning set forth in Section 2.1(a).
"Maximum Number" shall have the meaning set forth in Section 2.1(b).
"Other Securities" shall have the meaning set forth in the definition of
Registrable Securities.
"Other Stockholders" shall have the meaning set forth in Section 2.2.
"Person" shall mean an individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business association,
firm or a government or agency or political subdivision thereof or other
entity.
"Preliminary Prospectus" shall mean any preliminary prospectus that may be
included in any Registration Statement.
"Prospectus" shall mean the prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
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of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and by all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Public Offering" shall mean the offer of Common Stock on a broadly distributed
basis, not limited to sophisticated investors, pursuant to a firm-commitment or
best-efforts underwriting arrangement.
"Records" shall have the meaning set forth in Section 2.4(f).
"Registrable Securities" shall mean all or any portion of the Ramtron Cash
Shares (as defined in the Purchase Agreement) beneficially owned by the Holder
upon the Initial Closing (as defined in the Purchase Agreement) under the
Purchase Agreement and all or any portion of the Ramtron Stock Shares (as
defined in the Purchase Agreement) beneficially owned by the Holder upon the
Final Stock Closing (as defined in the Purchase Agreement) under the Purchase
Agreement. As to any particular Registrable Securities, such Shares shall
cease to be Registrable Securities (a) when a Registration Statement with
respect to the sale of such Shares shall have become effective under the
Securities Act and such Shares shall have been disposed of in accordance with
such Registration Statement, (b) when such Shares shall have been sold under
Rule 144 (or any successor provision) under the Securities Act, or (c) when
such Shares shall have ceased to be outstanding. If as a result of any
reclassification, stock split, stock dividend, bonus issue, business
combination, exchange offer or other transaction or event, any capital stock,
evidences of indebtedness, warrants, options, rights or other securities
(collectively "Other Securities") are issued or transferred to a Holder in
respect of Registrable Securities held by such Holder, references herein to
Registrable Securities shall be deemed to include such Other Securities.
"Registration Statement" shall mean any registration statement of the Company
under the Securities Act that covers any of the Registrable Securities,
including the prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statements.
"Regulations" shall mean the General Rules and Regulation of the Commission
under the Securities Act.
"Rule 144" shall mean Rule 144 of the Regulations, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144A) or regulation
hereafter adopted by the Commission providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
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"Securities Act" shall mean the United States Securities Act of 1933, as
amended, or any United States federal statute then in effect which has replaced
such statute, and a reference to a particular section thereof shall be deemed
to include a reference to the comparable section, if any, of any such
replacement statute.
"Seller" shall have the meaning set forth in Section 2.1(a).
"Shares" shall have the meaning set forth in the Recitals.
"underwritten registration or underwritten offering" shall mean a registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
Section 2. Registration Rights.
2.1 Demand Rights. (a) Subject to Section 2.1(b) below, at any time, and from
time to time, on or after the date on which a Holder is first permitted to sell
any of the Shares pursuant to the Purchase Agreement, such Holder shall have
the right to require the Company to file up to three (3) Registration
Statements under the Securities Act for a Public Offering of all or part of the
portion of such Holder's Registrable Securities that such Holder is then
permitted to sell pursuant to Section 5.2 of the Purchase Agreement, in each
case, by delivering written notice thereof to the Company specifying the number
of Registrable Securities to be included in such registration and the intended
method of distribution thereof (the "Demand Request"). Thereupon the Company
shall prepare and file with the Commission as promptly as practicable following
the receipt of notice of the Demand Request, and in any event within 60 days
thereof, a Registration Statement covering, and shall use its best efforts to
effect the registration under the Securities Act of, (i) the Registrable
Securities included in the Demand Request, for disposition in accordance with
the intended method of disposition stated in the Demand Request and (ii) any
other securities as to which the holders thereof have a contractual right to
register Common Stock in such a transaction and shall have made a written
request (a "Joining Request") to the Company for registration thereof within
ten days (or such other period as may be contractually provided) after notice
of such Demand Request, all to the extent necessary to permit the sale or other
disposition by such holders (each, a "Seller" and, collectively, the "Sellers")
of such Registrable Securities.
(b) The Company's obligations pursuant to Section 2.1(a) above are subject to
the following limitations and conditions: (i) the Company shall not be
obligated to fulfill the requirements or file the Registration Statement
referred to therein (A) during any period of time (not to exceed one hundred
twenty (120) days in the aggregate with respect to each request) when the
Company has determined to proceed with a Public Offering for its own account
and, in the good faith judgment of the managing underwriter thereof, the
fulfillment of such requirements or such filing would have an adverse effect on
such Public Offering, (B) during any period of time (not to exceed sixty (60)
days with respect to each request) when the Company is in possession of
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material information that its board of directors (x) has determined, after
advice of U.S. securities counsel, would be required to be disclosed in an
offering registered under the Securities Act and (y) reasonably deems is in the
Company's best interests not to publicly disclose, or (C) during the 90-day
period following the effectiveness of any previous Registration Statement (the
periods of time referred to in subclauses (A), (B) and (C) hereof being
hereinafter referred to as "Blackout Periods"); provided, that the aggregate
period of time during which the Company shall be relieved from its obligation
to file such a Registration Statement pursuant to this clause (i) shall in no
event exceed ninety (90) consecutive days with respect to each request;
provided, further, that, in the case of a Blackout Period pursuant to sub-
clause (i)(A) above, the Blackout Period shall earlier terminate upon the
completion or abandonment of the relevant Public Offering; provided, further,
that in the case of a Blackout Period pursuant to sub-clause (i)(B) above, the
Blackout Period shall earlier terminate upon public disclosure by the Company
or public admission by the Company of such material nonpublic information or
such time as such material nonpublic information shall be publicly disclosed
without breach of the last sentence of this subsection (b); and provided,
further, that in the case of a Blackout Period pursuant to sub-clauses (i)(A),
(B) or (C) above, the Company shall furnish to the Holder a certificate of the
Company's Chief Executive Officer to the effect that an event permitting a
Blackout Period has occurred; provided, further, that the Company shall not be
entitled to exercise its rights under sub-clause (i)(B) more than three (3)
times in any twenty-four (24) month period, and under sub-clause (i)(C) more
than one (1) time in any twelve (12)-month period; and provided, further, that
if prior to the expiration of any period of time referred to in this clause
(i) the Holder withdraws its Demand Request, such request shall not be
considered a Demand Request for purposes of this Section 2.1(b) and such Demand
Request and any Joining Request related thereto shall be of no further effect;
(ii) the Company shall not be required to maintain the effectiveness of a
Registration Statement filed pursuant to Section 2.3(a) for a period in excess
of one hundred twenty (120) days; (iii) the minimum aggregate offering price of
any such Public Offering, as estimated in good faith by the managing
underwriter thereof at the time such Demand Request is made, shall be at least
$10 million; provided, however that the limitation and condition contained in
this clause (iii) to Section 2.1(b) shall not be applicable to a Demand Request
to register all of the Registrable Securities issued to Infineon pursuant to
the Purchase Agreement; and (iv) the number of shares of Common Stock to be
sold in any such Public Offering shall not exceed the maximum number which the
managing underwriter thereof considers in good faith to be appropriate based on
market conditions and other relevant factors, including pricing, the identity
of the holders selling Shares and the proportion of Shares being sold by the
Company and by such holders (the "Maximum Number").
(c) Subject to Section 2.3, the Company may elect to include in any
Registration Statement filed pursuant to this Section 2.1 any treasury shares
or authorized but unissued shares of Common Stock; provided that such inclusion
shall be permitted only to the extent that it is pursuant to and subject to the
terms of any underwriting agreement or arrangements entered into by the Holders
making the Demand Request.
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(d) A request by a Holder that the Company file a Registration Statement shall
not be considered a Demand Request if the Registration Statement relating
thereto does not become effective.
(e) All registration rights granted under this Section 2.1 shall terminate and
be of no further force and effect on the earlier of (i) the date on which the
Holders no longer hold Registrable Securities, and (ii) the date on which all
Registrable Securities held by the Holders may be sold under Rule 144(k) during
any single ninety (90) day period.
2.2. "Piggy-Back" Rights. If, after the Initial Closing (as defined in the
Purchase Agreement) of the Purchase Agreement, the Company proposes to register
any shares of Common Stock under the Securities Act on a registration statement
on Form S-1, Form S-2 or Form S-3 (or an equivalent general registration form
then in effect) for purposes of a Public Offering by the Company or any
registration statement filed by the Company for any other holder of Common
Stock holding registration rights with respect to such Common Stock (such other
selling stockholders are referred to herein as "Other Stockholders"), the
Company shall give written notice of such proposal at least thirty (30) days
before the anticipated filing date, which notice shall include the intended
method of distribution of such shares of Common Stock to each Holder. Such
notice shall specify at a minimum the number of shares of Common Stock proposed
to be registered, the proposed filing date of such registration statement, any
proposed means of distribution of such shares of Common Stock and the proposed
managing underwriter, if any. Subject to Section 2.3, upon the written request
of a Holder, given within fifteen (15) days after the transmittal of any such
written notice by facsimile confirmed by mail (which request shall specify the
Registrable Securities intended to be disposed of by a Holder), the Company
will use its best efforts to include in the registration statement with respect
to such Public Offering the number of the Registrable Securities referred to in
such Holder's request; provided that any participation in such Public Offering
by such Holder shall be on substantially the same terms as those applicable to
the participation therein by the Company or Other Stockholders; and provided,
further, that the number of Registrable Securities to be included in any such
Public Offering shall not exceed the Maximum Number. Any such Holder shall have
the right to withdraw a request to include Registrable Securities in any Public
Offering pursuant to this Section 2.2 by giving written notice to the Company
of its election to withdraw such request at least five (5) days prior to the
proposed effective date of such registration statement.
2.3. Allocation of Securities Included in a Public Offering. If the managing
underwriter for any Public Offering to be effected pursuant to Section 2.1 or
Section 2.2 of this Agreement shall advise the Company and the Sellers in
writing that the number of shares of Common Stock sought to be included in such
Public Offering (including shares of Common Stock sought to be offered by the
Company and those Shares or other shares of Common Stock to be offered by the
Holders or other Sellers) is not equivalent to the Maximum Number, the shares
of Common Stock to be included in such Public Offering shall be allocated
pursuant to the following procedures:
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(a) if such registration or Public Offering is pursuant to Section 2.1 of this
Agreement, and (x) if the total number of shares of Common Stock included in
the Demand Request and any Joining Request exceeds the Maximum Number, first,
the Registrable Securities included in the Demand Request shall be included,
and second, any shares of Common Stock requested to be included in such
registration pursuant to any Joining Request, pro rata among such Sellers,
shall be included, to the extent necessary to reduce the total number of shares
of Common Stock to be included in such Public Offering to the Maximum Number
and (y) if the total number of shares of Common Stock included in the Demand
Request and any Joining Request is less than the Maximum Number, any additional
shares of Common Stock sought to be included at the request of the Company may
be included, subject to not exceeding the Maximum Number; provided, however,
that, if the Company desires to sell shares of Common Stock in such Public
Offering and in the good faith judgment of the managing underwriter of such
Public Offering, after consultation with the Holders, the failure to include
shares of Common Stock to be sold by the Company in such Public Offering would
be materially detrimental to the success of the Public Offering or to the
trading market in the Company's Common Stock, an amount of shares of Common
Stock to be sold by the Company equal to the lesser of (i) the minimum number
of shares of Common Stock recommended by such managing underwriter to be sold
by the Company and (ii) that amount sought to be included at the request of the
Company, will be included in the Public Offering and the number of shares of
Common Stock to be sold by the Sellers will be reduced, applying clause (x)
above to such Sellers' requests mutatis mutandis; or
(b) if such registration or Public Offering is pursuant to Section 2.2 of this
Agreement, (x) first, securities sought to be included at the request of the
Company or any Other Stockholder making a demand registration request shall be
included, and (y) second, if the number of securities to be registered under
clause 2.1 exceeds the Maximum Number, the amount of Registrable Securities
proposed to be offered by Sellers shall be reduced pro rata among such Sellers
in accordance with the respective amounts requested by each such Seller to the
extent necessary to reduce the total amount of securities to be included in
such offering to the Maximum Number; provided that Shares to be sold by the
Sellers in the aggregate are not reduced to less than 25% of all shares of
Common Stock to be sold in such Public Offering.
2.4. Requirements with Respect to Registration. Subject to Section 3, if and
whenever the Company is required by the provisions hereof to use its best
efforts to register any Registrable Securities under the Securities Act, the
Company shall:
(a) As promptly as practicable (and in the case of a Demand Request, in no
event more than 60 days following such Demand Request) prepare and file with
the Commission a Registration Statement with respect to such Registrable
Securities and use its best efforts to cause such Registration Statement to
become and remain effective; provided, however, that, before filing any
Registration Statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to and afford each Holder of Registrable Securities
covered by such Registration Statement, and the managing underwriters, if any,
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a reasonable opportunity to review and comment on copies of all such documents
(including copies of any documents to be incorporated by reference therein and
all exhibits thereto) proposed to be filed. In the event that any such Holder
or managing underwriter does not provide comments on any such documents within
ten (10) days of receipt thereof, such current drafts of the documents shall no
longer be subject to review and comment by such Holder or managing underwriter.
(b) As promptly as practicable, prepare and file with the Commission such
amendments and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement current and effective and to comply with the provisions of the
Securities Act and the Regulations, with respect to the sale or disposition of
such Registrable Securities, but in no event shall the Company be required to
do so for a period of more than one hundred twenty (120) days following the
effective date of the Registration Statement (the "Effectiveness Period").
(c) Promptly notify each Seller of any Registrable Securities covered by such
Registration Statement (A) when the Registration Statement or any related
prospectus or any amendment or supplement has been filed, and, with respect to
the Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the Commission for amendments or
supplements to the Registration Statement or the related prospectus or for
additional information, (C) of any order issued or threatened by the Commission
suspending the effectiveness of such Registration Statement, or preventing or
suspending the use of a prospectus or (D) of the receipt by the Company of any
notification or order with respect to the suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceedings for such purpose. The
Company shall use its best efforts to prevent the issuance of any such order
referred to in (C) or (D) and, if any such order is issued, shall use its best
efforts to obtain the withdrawal of any such order at the earliest possible
moment.
(d) Immediately upon becoming aware thereof, notify each Seller and
underwriter of such Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
occurrence of an event requiring the preparation of a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and promptly make
available to each Seller and underwriter any such supplement or amendment.
(e) Use all reasonable best efforts to register or qualify the Registrable
Securities covered by such Registration Statement under such securities or blue
sky laws of such jurisdictions in the United States as the Sellers
participating in the Public Offering or the managing underwriter thereof shall
reasonably request, and do any and all other acts and things that may be
reasonably necessary to enable each participating Seller or underwriter to
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consummate the disposition of the Registrable Securities in such jurisdictions;
provided that the Company 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.
(f) Make available upon reasonable advance notice for inspection by any Seller
of such Registrable Securities, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney,
accountant or other professional retained by any such Seller or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to conduct a "reasonable"
investigation for purposes of Section 11(a) of the Securities Act and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any Inspectors in connection with such Registration
Statement.
(g) Use all reasonable best efforts to cause all Registrable Securities
covered by such Registration Statement to be (A) quoted on the Nasdaq National
Market or the Nasdaq SmallCap Market and (B) listed or qualified for trading on
any other stock exchange or quotation service on which the Company's
outstanding shares of Common Stock are listed or qualified for trading.
(h) Furnish to each Seller and each underwriter of the Registrable Securities
covered by such Registration Statement such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including
each Preliminary Prospectus) and such other documents as such Seller or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Seller.
(i) In connection with an underwritten offering of Registrable Securities,
enter into an underwriting agreement in such form as is customary in
underwritten offerings made by selling security holders and take all such other
actions as are reasonably requested by the managing underwriters for such
underwritten offering in order to expedite or facilitate the registration or
the disposition of such Registrable Securities, and in such connection, (A)
make such representations and warranties to the underwriters and the Sellers
with respect to the business of the Company and its subsidiaries, and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings made by
selling security holders, and confirm the same on the settlement date for the
offering; (B) cause opinions of counsel to the Company (which counsel and
opinions shall be reasonably satisfactory to the managing underwriters), to be
delivered to the underwriters and the Sellers covering the matters customarily
covered in opinions requested in underwritten offerings by selling security
holders; (C) cause "cold comfort" letters and updates thereof (which letters
and updates shall be reasonably satisfactory to the managing underwriters) from
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the independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired or owned by the Company for which financial
statements and financial data are, or are required to be, included in the
registration Statement) to be delivered to each of the underwriters and the
Sellers of such Registrable Securities included in such underwritten offering
(if such accountants are permitted under applicable law and accounting
literature to so address "cold comfort" letters), such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings by selling security
holders; and (D) if an underwriting agreement is entered into, the same shall
contain customary indemnification provisions and procedures from the Company in
favor of both the Sellers of such Registrable Securities and the underwriters
or selling agents. The delivery of certificates, opinions and letters referred
to above shall be done at each closing under such underwriting agreement, as
and to the extent required thereunder.
(j) Comply with all applicable rules and regulations of the Commission and
make generally available to security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) not later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (A) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a Public
Offering and (B) if not sold to underwriters in such an offering, commencing on
the first day of the fiscal quarter of the Company after the effective date of
a Registration Statement, which statements shall cover said 12-month periods.
(k) Cooperate with each Seller and the managing underwriter, if any,
participating in the disposition of such Registrable Securities in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD").
(l) Use all reasonable best efforts to take all other steps reasonably
necessary to effect the registration, offering and sale of the Registrable
Securities covered by a Registration Statement contemplated hereby and enter
into any other customary agreements and take such other actions, including
participation in "roadshows", as are reasonably required in order to expedite
or facilitate the disposition of such Registrable Securities.
2.5. Furnishing Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2.1 or 2.2
that each selling Holder shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them and the intended
method of disposition of such securities as shall be reasonably required to
effect the registration of the Registrable Securities.
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Section 3. Registration Expenses.
The Company will bear the following fees and expenses incident to the
registration and sale of the Registrable Securities whether or not a
Registration Statement is filed or becomes effective: (i) fees and
disbursements of counsel for the Company, (ii) fees and disbursements of all
independent certified public accountants for the Company (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance),(iii) the fees and expenses incurred in connection with
the quotation or listing of Shares on any securities exchange or automated
securities quotation system, (iv) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel for the Company or the
underwriters, or both, in connection with Blue Sky qualifications of the
Registrable Securities)), (v) the expenses and costs of any roadshow (including
travel, meals, accommodation and other arrangements for any investor
presentations or meetings); and (vi) the fees, expenses and costs of any public
relations, investor relations or other consultants retained by the Company in
connection with any roadshow (including travel and other arrangements for any
investor presentations or meetings); provided, however, that, with the
exception of (i) and (ii) above, the Company shall not be required to bear any
expenses related to any Demand Request that is withdrawn (other than a
withdrawal pursuant to Section 2.1(b)).
All other fees and expenses incident to the registration and sale of the
Registrable Securities shall be borne by the Holder whether or not a
Registration Statement is filed or becomes effective, including, without
limitation, (i) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company, printing Preliminary Prospectuses,
Prospectuses, and printing or preparing any underwriting agreement, agreement
among underwriters and related syndicate or selling group agreements, pricing
agreements and Blue Sky memoranda), (ii) the fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Rule 2720 of the Conduct
Rules of the NASD and (iii) fees and disbursements of any counsel for such
Holder.
Section 4. Representations, Warranties and Agreements.
(a) Company Representations, Warranties and Agreements. The Company
represents and warrants to, and agrees with, Infineon that:
(i) The Company has all requisite corporate power and authority to
execute, deliver, and perform this Agreement. This Agreement has
been duly authorized, executed, and delivered by the Company. No
consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any United States
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federal, state, local, or other governmental authority or any court
or other tribunal is required by the Company for the execution,
delivery or performance of this Agreement by the Company (except
filings under the Securities Act which will be made and any consents
under Blue Sky or state securities laws which will be obtained).
(ii) The Company shall not enter into any transaction involving the
issuance or transfer by any other Person of Other Securities to a
Holder, or any merger or consolidation in which it is not the
surviving Person, or any sale, lease or other transfer of all or
substantially all the assets of the Company, unless effective
provision is made for the assumption by such other Person, jointly
and severally with the Company if the Company shall remain in
existence, of all of the obligations of the Company hereunder, and in
the case of any such issuance or transfer, the registration of such
Other Securities on the same basis as the registration of the other
Registrable Securities hereunder.
(iii) The execution and delivery of this Agreement by the Company do not,
and the performance of the Company's obligations hereunder will not,
violate, conflict with, or result in a breach of any provision of, or
constitute a default (with or without notice or lapse of time or
both) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination,
cancellation, or acceleration of any obligation or the loss of a
material benefit under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties
or assets (any such violation, conflict, breach, default, right of
termination, cancellation or acceleration, loss or creation, a
"Violation") of the Company or any of its subsidiaries pursuant to
any provisions of (i) the articles of incorporation, by-laws or
similar governing documents of the Company or any of its
subsidiaries, (ii) any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of any
governmental authority applicable to the Company or any of its
subsidiaries or any of their respective properties or assets or
(iii) any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or other instrument,
obligation or agreement of any kind to which the Company or any of
its subsidiaries is a party or by which it or any of its properties
or assets may be bound or affected.
(iv) The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act, that it
will make available "adequate current public information concerning
the Company within the meaning of paragraph (c) of Rule 144" and that
it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the
Securities Act pursuant to the exemptions provided by Rule 144. Upon
the request of any Holder, the Company will deliver to it a written
statement as to whether it has complied with such requirements.
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(v) The Company shall not grant to any Person the right to request a
registration of securities of the Company under the Securities Act or
the right to be included as a selling stockholder in connection with
any registration of Registrable Securities if the rights so granted
would be in conflict with or adversely affect the rights granted to
Infineon hereunder without the prior written consent of Infineon,
which consent may be withheld in Infineon's sole discretion.
(b) Infineon Representations, Warranties and Agreements. Infineon represents
and warrants to, and agrees with, the Company, that:
(i) It is duly organized, validly existing, and in good standing
under the laws of the Federal Republic of Germany. Infineon has
all requisite power and authority to execute, deliver, and
perform this Agreement. This Agreement has been duly authorized
by Infineon and has been duly executed and delivered by it.
(ii) Neither Infineon nor any of its affiliates will take, directly or
indirectly, during the term of this Agreement, any action
designed to stabilize (except as may be permitted by applicable
law) or manipulate the price of any security of the Company.
(iii) Infineon shall promptly furnish to the Company upon the Company's
request any and all information as may be required by, or as may
be necessary or advisable to comply with the provisions of, the
Securities Act, the Regulations, the Exchange Act, and the rules
and regulations of the Commission thereunder in connections with
the preparation and filing of any Registration Statement pursuant
hereto, or any amendment or supplement thereto, or any
Preliminary Prospectus or Prospectus included therein.
Section 5. Survival of Representations and Agreements.
All representations, warranties, covenants and agreements contained in this
Agreement shall be deemed to be representations, warranties, covenants and
agreements at the effective date of each Registration Statement contemplated by
this Agreement, and such representations, warranties, covenants and agreements
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Holder, or any other
Person and shall survive termination of this Agreement.
Section 6. Indemnification.
(a) The Company shall agree to indemnify and hold harmless each Holder and any
underwriter participating in any distribution hereunder and each of their
respective officers, directors or employees and each person, if any, who
controls such Holder or any such underwriter within the meaning of either
section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities and any actions in
respect thereof (including, without limitation, any legal or other expenses
incurred in connection with defending or investigating any such action or
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claim) caused by any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus, Preliminary
Prospectus or form of prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, except insofar as such losses, claims, damages or
liabilities or actions in respect thereof are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
(i) any information relating to any underwriter furnished to the Company by
such underwriter expressly for use therein and (ii) any information relating to
any Holder furnished to the Company by or on behalf of such Holder expressly
for use therein. The foregoing indemnity agreement with respect to any
Preliminary Prospectus shall not inure to the benefit of any such underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased securities (or any person who controls such underwriter) if a copy of
any Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of such
securities to such person and if any Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) In connection with any Registration Statement in which a Holder is
participating, such Holder shall agree to indemnify and hold harmless any
underwriter participating in the distribution and their respective officers,
directors or employees and each person, if any, who controls any such
underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities and any actions in respect thereof (including, without
limitation, any legal or other expenses incurred in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, or any Prospectus, Preliminary Prospectus
or form of prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
respect to any information relating to such Holder furnished to the Company by
or on behalf of such Holder expressly for use therein.
(c) In the event a claim arises pursuant to subsections (a) or (b), any person
in respect of which indemnification may be sought (the "Indemnified Party")
shall notify the party against whom the claim for indemnification is made of
such claim and the facts constituting the basis for such claim in reasonable
detail. The party against whom the claim for indemnification is made is
hereinafter referred to as the "Indemnifying Party". Failure to notify an
Indemnifying Party shall not relieve such Indemnifying Party from its
obligations hereunder to the extent it is not materially prejudiced as a result
thereof.
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(d) Counsel to the Indemnified Party shall be selected by the Indemnifying
Party and shall be reasonably satisfactory to the Indemnified Party; provided,
however, that counsel to the Indemnified Party shall not (except with the
consent of the relevant Indemnified Party) also be counsel to the Indemnifying
Party. The Indemnifying Party may participate at its own expense in the defense
of any claim arising pursuant to subsection (a) or (b) and, to the extent it
shall wish and be legally permitted, assume the defense thereof, jointly with
any other Indemnifying Party similarly notified, provided, however, that in the
event the Indemnified Party shall have reasonably concluded that there may be
defenses available to it which are different from or additional to those
available to the Indemnifying Party, the Indemnifying Party shall not have the
right to direct the defense of such action as it relates to such defenses on
behalf of such Indemnified Party and the fees and expenses of separate counsel
(selected by the Indemnified Party and reasonably satisfactory to the
Indemnifying Party) relating to such defenses for such Indemnified Party shall
be borne by the Indemnifying Party. After notice from the Indemnifying Party to
such Indemnified Party of its election to assume the defense of any such claim
and after election of counsel to the Indemnified Party as set forth above, the
Indemnifying Party shall not be liable for any legal expenses of other counsel
(except for separate counsel, but not more than the costs of one such separate
counsel for all Indemnified Parties, in the circumstances described above)
subsequently incurred by such Indemnified Party. Except as provided in the
preceding sentences, the Indemnifying Party shall not be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its own counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No Indemnifying
Party shall, without the prior written consent of the Indemnified Parties,
settle or compromise or consent to the entry of any judgement with respect to
any litigation or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification could be sought under this Section 6 (whether or not the
Indemnified Parties are actual or potential parties thereto), unless such
settlement, compromise or consent (A) includes an unconditional release of each
Indemnified Party from all liability arising out of such litigation or claim
and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Party.
(e) If at any time an Indemnified Party shall have requested an Indemnifying
Party to reimburse the Indemnified Party for fees and expenses of counsel, such
Indemnifying Party agrees that it shall be liable for any settlement effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such Indemnifying Party of the aforesaid request,
(ii) such Indemnifying Party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement taking effect and
(iii) such Indemnifying Party shall not have reimbursed such Indemnified Party
in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel, an Indemnifying Party shall
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not be liable for any settlement effected without its consent if such
Indemnifying Party (i) reimburses such Indemnified Party in accordance with
such request to the extent it considers such request to be reasonable and
(ii) provides written notice to the Indemnified Party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
(f) The indemnity, contribution and expense reimbursement obligations under
this Section 6 shall be in addition to any liability each indemnifying person
may otherwise have and shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any indemnified party.
(g) In the event of any conflict between the indemnification and contribution
terms as herein set forth and as set forth in any underwriting agreement
entered pursuant hereto, the underwriting agreement shall control.
Section 7. Unregistered Offerings.
The parties hereto hereby agree that, in the event that the Company or one or
more Holders propose to make an underwritten offering of shares of Common Stock
(which may or may not include Shares) that is exempt from, or not subject to,
the registration requirements of the Securities Act, the relevant notice
provisions of Section 2.1 or 2.2 will apply and the required notice will state
that the offering is proposed to be made on an unregistered basis. In that
event, the parties agree to proceed with such an offering on an unregistered
basis in good faith as and to the extent provided herein with respect to a
registered offering and that the provisions of this Agreement will apply
mutatis mutandis to such unregistered offering, including, without limitation,
provisions relating to Joining Notices, the Company's ability to delay an
offering, "piggy-back" rights, allocations of securities included in an
offering, the Company's obligations with respect to an offering (including
indemnification provisions and procedures), selection of underwriters, hold-
back agreements, expenses associated with an offering and representations and
warranties.
Section 8. Miscellaneous.
(a) Remedies. In the event of breach by any party of any of its obligations
under this Agreement, the other parties, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company and Infineon agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by the
Company or Infineon, as the case may be, of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, the Company or Infineon, as the
case may be, shall waive the defense that a remedy at law would be adequate.
No failure or delay on the part of the Company or Infineon in exercising any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.
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(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
without the written consent of the Company and Infineon.
(c) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, by telecopier
(receipt of which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
if to Infineon, to:
Infineon Technologies AG
M&A Department
St.Martin-Strasse 53
D-81541 Munich
Fax: 49 89 234 8 5872
Attention: Arno Paetzold
with copies to:
Infineon Technologies AG
St.Martin-Strasse 53
D-81541 Munich
Fax: 49 89 234 2 6583
Attention: Finanzvorstand and General Counsel
and,
Sullivan & Cromwell
Neue Mainzer Strasse 52
60311 Frankfurt am Main
Germany
Fax: 49 69 7191 2610
Attention: David B. Rockwell
if to the Company, to:
Ramtron International Corporation
1850 Ramtron Drive
Colorado Springs, Colorado 80921
USA
Fax: 719 481 9294
Attention: Chief Executive Officer
with a copy to:
Coudert Brothers
950 Seventeenth Street
Suite 1800
Denver, Colorado 80202
Fax: 303 607 1080
Attention: John A. St. Clair
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(d) Interpretation. When a reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(e) Counterparts. This Agreement may be executed in two or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when two or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
(f) Entire Agreement; No Third Party Beneficiaries. This Agreement (including
the documents and the instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and, with respect to the provisions of Section 6, indemnified Persons other
than the parties hereto, and (ii) except as contemplated by the definition of
"Holder" in Section 1 hereof and, with respect to the provisions of Section 6,
indemnified Persons, other than the parties hereto, is not intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, USA, applicable to contracts
made and to be performed entirely within the State of New York.
(h) Severability. Wherever possible, each provision hereof shall be
interpreted in such a manner as to be valid, legal and enforceable under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
or rendering unenforceable the remainder of this Agreement, unless such a
construction would be unreasonable or materially impair the rights or any party
hereto.
(i) Assignment. Neither this Agreement not any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without prior written consent of the other
parties, except as may otherwise occur by operation of the definition of
"Holder" in Section 1 hereof. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns.
(j) Attorney's Fees. As between parties to this Agreement, in any action or
proceeding brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the successful party shall
be entitled to recover reasonable attorney's fees in addition to its costs and
expenses and any other available remedy.
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(k) Use of Terms. This Agreement contemplates the filing of Registration
Statements under the Securities Act on numerous occasions involving various
offers of securities. In connection with such Registration Statements, there
may be identified therein one or more underwriters through which securities are
to be offered on behalf of the Company or the Holder, or both, pursuant to
either a "firm-commitment" or "best-efforts" arrangement, and, in the case
where there is more than one underwriter, one or more of the underwriters may
be designated as the "manager" or "representative" or the "co-managers" or
"representatives" of the several underwriters. Accordingly, all references
herein to an "underwriter" or "underwriters" are intended to refer to a
"principal underwriter" (as defined in Rule 405 of the Regulations) and to
provide for those transactions in which securities may be offered by or through
one or more underwriters, and not to imply that any of the transactions
contemplated hereby is conditioned in any manner whatsoever on the
participation therein by one or more underwriters on behalf of any party.
Nothing contained herein relating to the Company's obligation to enter into an
underwriting agreement at any time or from time to time in the future shall
impair, alter, restrict or otherwise affect in any manner whatsoever the duties
of the directors of the Company under applicable law in approving the form,
terms and provisions thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INFINEON TECHNOLOGIES AG
By: -----------------------
Name:
Title:
By: -----------------------
Name:
Title:
RAMTRON INTERNATIONAL CORPORATION
By: -----------------------
Name:
Title:
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EXHIBIT B
Form of Ramtron Legal Opinion
Date
Ignition Technologies AG
M&A Department
St.-Martin-Strasse 53
D-81541 Munich
Germany
Re: Issuance of Certain Shares of Common Stock of Rocket International
Corporation
Ladies and Gentlemen:
We have acted as special counsel to Rocket International Corporation, a
Delaware corporation (the "Company"), in connection with the issuance to you of
a cumulative total of XXXXXX shares of the Company's Common Stock, par value
$0.01 per share (the "Shares"), pursuant to the Share Purchase Agreement dated
December 14, 2000 (the "Agreement"), by and between the Company and Ignition
Technologies AG ("Ignition").
This opinion is rendered to Ignition pursuant to Section 6.2(g) of the
Agreement. Capitalized terms used herein shall, unless otherwise defined
herein or unless the context otherwise requires, have the same meanings
assigned to them in the Agreement.
As special counsel to the Company, we have made such legal and factual
examinations and inquiries as we have deemed advisable or necessary for the
purpose of rendering this opinion and have examined, among other things, the
Agreement executed by the parties thereto and originals, photostatic or
certified copies, or copies otherwise identified to our satisfaction as being
true copies of the originals, of the following:
i. The Company's Certificate of Incorporation, as amended to date (the
"Certificate of Incorporation"), as certified by the Secretary of the Company;
ii. The Bylaws of the Company, as amended, as certified by the Secretary of
the Company (the "Bylaws");
iii. Resolutions certified by the Company's Secretary as having been adopted
by the Company's Board of Directors at a meeting held on December 1, 2000,
authorizing and approving the Agreement and the issuance and sale of the
Shares;
iv. A Specimen of the certificate to be used to evidence the Shares;
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v. A certificate from the Company's Secretary (the "Secretary's Certificate"),
which was addressed to us and dated as of the date hereof; and
vi. A certificate of good standing from the Delaware Secretary of State dated
XXXXXXXX (the "Good Standing Certificate").
In examining the foregoing and other documents, we have assumed for the purpose
of this opinion the authenticity of all documents submitted to us as originals
and the conformity with originals of all of the documents submitted to us as
certified, photostatic or conformed copies, and the genuineness, authenticity
and completeness of all signatures thereon. As to various questions of fact
relevant to this opinion, we have, when relevant facts were not independently
established, relied, to the extent deemed proper by us, upon, and made no
inquiry beyond, the Company's minute book, certificates and statements of
officers and representatives of the Company, including without limitation the
Secretary's Certificate, public officials and others, and the representations
and warranties of the Company and Ignition set forth in the Agreement.
Except to the extent expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of any fact,
and no inference as to our knowledge of the existence or absence of any fact
should be drawn from our representation of the Company or the rendering of the
opinion set forth below.
For the purposes of this opinion, we have assumed that Ignition has all
requisite power and authority, and has taken any and all necessary corporate
action, to execute and deliver the Agreement, that Ignition has executed and
delivered the Agreement, which constitutes Ignition's valid, legally binding
and enforceable obligation, and that Ignition is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation. We are assuming also that the representations and
warranties made by Ignition in or pursuant to the Agreement are true and
correct. We are assuming further that Ignition has purchased the Shares for
value, in good faith and without notice of any adverse claims within the
meaning of the Uniform Commercial Code.
The opinions hereinafter expressed are subject to the following qualifications:
A. We are members of the Bar of the State of Colorado and our opinion is
expressed only with respect to the General Corporation Law of the State of
Delaware.
B. Our opinion in paragraph 1 below as to the good standing of the Company in
the State of Delaware is based solely upon the Good Standing Certificate.
C. We have assumed that there are no agreements, understandings or
negotiations among the parties to the Agreement that would modify the terms of
the Agreement or the respective rights or obligations of the parties thereunder
and, based upon the Secretary's Certificate, we have not been made aware of
any.
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D. The authorization of the Company's execution, delivery and performance of
the Agreement and the transactions contemplated thereby may be subject to
various judicial and statutory provisions imposing fiduciary duties upon a
board of directors or committee thereof in authorizing corporate transactions,
and we express no opinion as to the satisfaction of such duties by the
Company's Board of Directors in making such authorizations.
Subject to and based on the foregoing assumptions and qualifications, we are of
the opinion that:
1. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power
and authority to conduct its business as, to the best of our actual knowledge,
such business is presently conducted and to own its properties and assets.
2. The Company has all requisite corporate power to execute and deliver the
Agreement, to issue and sell the Shares and to carry out and perform its
obligations under the terms of the Agreement. The execution, delivery and
performance of the Agreement, including the issuance and sale of the Shares
pursuant to the Agreement, have been authorized by all necessary corporate
action. When certificates representing the Shares are duly executed and
delivered and the price for the Shares is paid in accordance with the
provisions of the Agreement, the Shares will be validly issued, fully paid and
non-assessable.
This opinion is rendered as of the date of this letter, and we have no
obligation to amend or update this opinion for any event occurring thereafter.
This opinion is furnished by us as counsel to the Company and may be relied
upon only by Ignition, is solely for Ignition's benefit and is not to be
otherwise used, circulated, quoted or referred to without our prior written
consent.
Very truly yours,
COUDERT BROTHERS
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ANNEX I
FORM OF CERTIFICATE OF SUBSCRIPTION
The management board of Infineon Technologies AG, according to Section 4 para.
4 of the articles of incorporation as of June 2000, is authorized to increase
the registered capital of the company with the approval of the supervisory
board in the period until Mach 31, 2004, once or in partial amounts, by up to a
total of EUR 237.581.846,00 through the issuance of new shares against
contributions in kind (authorized capital III). In this regard, the
subscription rights of the shareholders are excluded.
On the basis of this authorization, the management board of Infineon
Technologies AG, consisting of Messrs. Dr. Ulrich Schumacher (chairman),
Peter Bauer, Peter J. Fischl, Dr. Sonke Mehrgardt and Dr. Andreas von
Zitzewitz, unanimously passed, subject to the consent of the investment and
finance committee of the supervisory board which is authorized under Section 7
para. 4 (iv) of the Rules of Procedure of the Supervisory Board dated as of
January 20, 2000, the following resolution on [date]:
"1. The registered capital of the company shall be increased by Euro [XXX]
through the issuance of [XXXXX] new individual registered no-par value shares
with a proportional amount of the registered capital of Euro 2 per share.
2. The new shares are ranking for dividend as from October 1, 2000.
3. [number] new shares shall be subscribed to by Ramtron International
Corporation, a corporation incorporated under the laws of Delaware with its
registered office at 1850 Ramtron Drive, Colorado Springs, Colorado, 80921,
USA. Ramtron International Corporation shall in return contribute to the
company [number] no-par value ordinary shares of in Ramtron International
Corporation as a contribution in kind.
4. The above provisions shall be included in the respective certificate of
subscription.
As a precaution, all members of the management board waived the observance of
all requirements as to form and time with regard to the passing of resolutions
by the management board."
The investment and finance committee of the supervisory board of Infineon
Technologies AG, exercising its authorization under Section 7 para. 4 (iv) of
the Rules of Procedure of the Supervisory Board dated as of January 20, 2000,
approved the resolution of the management board on [date].
Ramtron International Corporation hereby subscribes to [number] individual
registered no-par value shares with a proportional amount of the registered
capital of Euro 2 per share and in return contributes to the company [number]
no-par value shares of ordinary shares in Ramtron International Corporation, a
corporation incorporated under the laws of Delaware with its registered office
at 1850 Ramtron Drive, Colorado Springs, Colorado, 80921, USA, as a
contribution in kind.
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The subscription shall cease to be binding if the implementation of the
increase of the registered capital has not been entered in the commercial
register by [date].
----------------------
[Name]
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ANNEX II
Form of Ramtron Subscription Form
Infineon Technologies AG, a German stock corporation ("Infineon"), hereby
subscribes for [number] shares of common stock, par value $0.01 per share, of
Ramtron International Corporation, a Delaware corporation ("Ramtron"), pursuant
to Section 2.3 of the Share Purchase Agreement, dated as of December 14, 2000,
by and between Infineon and Ramtron.
INFINEON TECHNOLOGIES AG
By: -------------------------
Name: -----------------------
Title: ----------------------
By: -------------------------
Name: -----------------------
Title: ----------------------
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ANNEX III
Form of Transfer Certificate
Ramtron International Corporation hereby certifies that its transfer of
XXXXXXXX Ordinary Shares, without nominal value but with a notional value
EUR 2 each, of Infineon Technologies AG has been made either (1) outside the
United States in an offshore transaction meeting the requirements of Rule 903
or Rule 904 of Regulation S under the United States Securities Act of 1933 (the
"Securities Act") or (2) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available) and, in each
case, in compliance with all applicable securities laws of all relevant
jurisdictions.
RAMTRON INTERNATIONAL CORPORATION
------------------------------
By: -------------------------
Name: -----------------------
Title: ----------------------
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