EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of the
18th day of January, 2000 ("Effective Date"), by and between Ramtron
International Corporation, a Delaware corporation ("Employer"), and L. Xxxxx
Xxxxx, an individual having a mailing address hereinafter set forth
("Executive").
RECITALS
A. Executive is currently the Chairman and Chief Executive Officer of
Employer, and Executive and Employer are parties to that certain employment
agreement dated as of August 25, 1999 (the "Old Employment Agreement").
B. In order to induce Executive to continue to serve as Employer's Chairman
and Chief Executive Officer, Employer has agreed to replace and supercede
the Old Employment Agreement with this Agreement effective as of
January 18, 2000, and Executive has accepted this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants
set forth herein, and for other valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties hereby agree that as of
the Effective Date the Old Employment Agreement is replaced and superceded in
its entirety with the following:
1. Employment: Employment Term; Certain Covenants
1.1 Employer agrees to employ Executive, and Executive agrees to be employed
by Employer, under and pursuant to this Agreement for a term commencing on the
Effective Date and continuing, unless this Agreement is sooner terminated
pursuant to any provision hereof, until the close of business on December 31,
2001 (the "Employment Term"). If the Company and Executive are interested, in
their absolute discretion, in renewing this Agreement at the end of the
Employment Term, they shall negotiate in good faith regarding the terms and
conditions of such renewal, including the period of employment to be covered by
such renewal and the compensation to be paid to Executive, and, upon the
effectiveness of a renewal of this Agreement, in the absence of a contrary
agreement, the additional term of Executive's employment shall be included in
the Employment Term.
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1.2 Executive shall continue during the Employment Term to have the title of
Chairman and Chief Executive Officer of Employer. Subject to the supervision
and direction of Employer's Board of Directors (the "Board"), Executive's
primary duties and responsibilities shall include those typically performed by
the Chairman and Chief Executive Officer of a public corporation, including
without limitation responsibility for the overall business planning and day-to-
day management of Employer, and to carry out, together with such other duties
and responsibilities in regard to Employer's business as may be prescribed from
time to time by the Board, the overall policies and directives of the Board as
established and in effect from time to time.
1.3 Executive agrees to perform services as generally described in Section 1.2
and to perform Executive's responsibilities with respect thereto throughout the
Employment Term, and Executive shall devote his best efforts during one hundred
percent (100%) of his working time to performance of his duties hereunder and
to furthering the business interests of Employer.
1.4 Executive understands and acknowledges that various United States laws and
regulations, including without limitation Federal and state securities laws,
apply to Employer and Executive shall comply with, and shall take no action
which might cause Employer to contravene, any applicable laws and regulations.
1.5 The services to be rendered by Executive hereunder shall be furnished
primarily in and from Employer's offices in Colorado Springs, Colorado, and
from Executive's residence in either Colorado or California. Employer agrees
that Executive may perform his services from a residence either in Colorado or
in California.
2. Compensation
2.1 Salary. Employer agrees to pay Executive a salary at the rate of Three
Hundred Sixty Thousand United States Dollars ($360,000) per year, payable in
accordance with Employer's regular salary payroll policies and procedures.
Executive agrees that Employer may deduct and withhold from the payments to be
made to Executive hereunder, the amounts required to be deducted and withheld
by Employer under the provisions of any statute, law, regulation or ordinance
heretofore or hereafter enacted.
2.2 Incentive Bonus. In addition to the salary provided for above, Executive
shall be eligible to receive incentive and performance bonuses if, as, when,
and in such amounts, as may be determined by the Board. It is expressly agreed
that payment of any incentive or performance bonus is subject to the Board's
discretion, and Executive shall have no claim to payment of any bonus except to
the extent, if any, awarded by the Board.
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2.3 Warrants. In addition to any other stock options or warrants for the
purchase of Employer's stock held by Executive, Employer hereby grants to
Executive, effective on the date of execution of this Agreement, warrants in
the form of Exhibit A attached hereto for the purchase of 667,000 shares of the
Common Stock of Employer at a per-share price equal to the closing bid price of
Employer's Common Stock on the Effective Date (the "Warrants"). The Warrants
shall vest and become exercisable on December 31, 2002 if Executive is employed
by the Employer at that date; provided, however, that, so long as Executive
remains employed pursuant to this Agreement, (a) all of such warrants not
previously vested shall vest and become immediately exercisable upon the
occurrence of any of the following conditions and events on or before
December 31, 2001: (i) Employer or any subsidiary of Employer, or Employer
together with one or more of Employer's subsidiaries, sell securities in one or
a series of transactions by either a public offering or private placement
(including without limitation a placement or distribution of any subsidiary of
Employer) for gross proceeds from such sales of at least Seventy Million
Dollars ($70,000,000); or (ii) a "change of control" (as hereinafter defined)
of Employer occurs; or, (b) if none of the circumstances described in (a) above
has occurred, a portion of such warrants, such portion to be determined as
provided below, shall vest and become immediately exercisable upon the
occurrence of any of the following conditions and events on or before
December 31, 2001: (i) if more than fifty percent (50%) of the shares of any
subsidiary of Employer is sold or transferred, a percentage of such warrants
equal to the percentage the value of such subsidiary or portion of such
subsidiary transferred or sold bears to the total value of Employer on the date
of such sale or transfer shall vest and become exercisable; (ii) if any shares
of any subsidiary of Employer are distributed to Employer's stockholders, the
percentage of such warrants equal to the percentage the value of such
distributed shares bears to the value of all of the outstanding shares of
Employer including such subsidiary on the date of such distribution shall vest
and become exercisable; and (iii) if more than ten percent (10%) of Employer's
assets, whether tangible or intangible, is sold or transferred, a percentage of
such warrants equal to the percentage the value of such assets bears to the
total value of all of Employer's assets on the date of such sale or transfer
shall vest and become exercisable. Valuations of Employer and its subsidiaries
for purposes of the foregoing provisions shall be as reasonably determined by
Employer's Board of Directors. Any warrants which become vested and
exercisable shall be exercisable for a period of five (5) years from the date
of vesting; provided however, that in the event of termination of Executive's
employment for any reason prior to December 31, 2001, any vested and
exercisable warrants shall be exercisable only for a period of 90 days
following the effective date of termination. For purposes of this Agreement,
"change of control" means any of the following: (i) Any "person," as such term
is defined in Section 3(a)(9) and used in Section 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), who was not a beneficial
owner (as defined in Rule 13(d)-3 under the Exchange Act) on the date hereof,
becomes the beneficial owner, directly or indirectly, of securities of Employer
representing 40% or more of the combined voting power of Employer's then
outstanding securities; or (ii) the shareholders or Employer approve (A) a
merger of Employer with or into any other corporation of which Employer is not
the surviving corporation or in which Employer survives as a subsidiary of
another corporation, (B) a consolidation of Employer with any other
corporation, or (C) the sale or disposition of all or substantially all of
Employer's assets or a plan of complete liquidation.
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2.4 Expense Reimbursement. It is recognized that during the Employment Term
Executive will be required to incur ordinary and necessary business promotion
and travel expenses in connection with the performance of his duties and
Executive shall be entitled to reimbursement for such expenses in accordance
with Employer's general reimbursement policies and procedures as may be
established from time to time by Employer. It is specifically acknowledged,
without limitation of the preceding sentence, that Executive will be required
to travel frequently between Employer's offices in Colorado and Executive's
residence in California (if and after it is established there), and Employer
accordingly agrees that the expenses of such travel shall be reimbursable
pursuant to this Agreement.
2.5. Health Insurance; Life Insurance. Employer shall provide Executive and
his wife medical insurance coverage under Employer's group medical plan
during the term of this Agreement and (if longer) until Executive and his wife
have each become eligible for Medicare coverage, and Employer shall provide
medical insurance coverage supplemental to Medicare coverage consistent with
the coverage of Employer's group medical plan until Executive reaches the age
of 65 years, subject to Executive's making of any reasonably required premiums
or contributions consistent with the requirements of Employer's group medical
plan. Employer shall also provide Executive a life insurance policy with a
death benefit of at least $500,000 to extend until Executive reaches the age of
65 years, the beneficiary or beneficiaries of such policy to be as specified by
Executive from time to time. The provisions of this Section 2.5 shall survive
the Employment Term and any termination of Executive by Employer except a
termination for "just cause" as defined in Section 3.3.
2.6 Moving Expense Reimbursement. Upon presentation of documentation thereof,
Employer will reimburse Executive (or pay on Executive's behalf) up to $50,000
of Executive's expenses (including without limitation real estate agents' fees,
travel expenses, temporary housing and the cost of moving personal property)
incurred in relocating Executive's residence to such location in California as
Executive may request.
2.7 Vacation. Executive shall be entitled to four (4) full weeks of vacation
during each calendar year of the Employment Term, commencing with calendar year
2000. Executive agrees that without the express prior written consent of the
Board such vacation periods shall not be accumulated, but shall be taken during
each calendar year or forfeited, and Executive agrees to schedule and take such
vacation at a time or times which do not unreasonably impair Employer's
operations.
3. Termination
3.1 Termination by Employer. Employer may terminate Executive's employment
under this Agreement at Employer's election by sending thirty (30) days'
written notice to Executive, notifying Executive that effective at the end of
such thirty-day period this Agreement and the Employment Term shall be
terminated. Upon the expiration of such thirty-day period Employer's
employment of Executive and the Employment Term shall cease and be at an end
and Employer shall have no further obligations whatever to Executive except as
expressly provided herein.
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3.2 Termination by Executive. Executive may terminate his employment with
Employer by giving sixty (60) days' written notice of termination to the Board,
and this Agreement and the Employment Term shall be terminated effective at the
close of business on said sixtieth (60th) day. Thereupon, the Employment Term
shall cease at the expiration of such sixty-day period, Executive shall have no
further obligations whatever to Employer, except that Executive's obligations
provided in Section 4 hereof shall survive any termination of this Agreement by
Employer or Executive and, notwithstanding any such termination the provisions
of Section 4 shall continue to be binding on Executive.
3.3 Severance Payments upon Employer's Termination. Notwithstanding any other
provision of this Agreement, Executive's employment may be terminated at any
time by Employer immediately, and without any obligation to pay Executive any
compensation or remuneration whatever other than the severance payment
hereinafter mentioned, for just cause. For purposes of this Agreement, "just
cause" means: (i) Executive's use of non-medically prescribed narcotic drugs or
alcohol rendering him unable to fulfill his duties under this Agreement;
(ii) the commission by Executive of an act of fraud or embezzlement against
Employer; (iii) administrative or court determined securities law violation;
(iv) any substantive and undisclosed conflict of interest exists or arises on
the part of the Executive; or (v) Executive's indictment for any crime
involving moral turpitude. Upon any termination for just cause Employer shall
pay Executive, in lieu of any other remuneration that might otherwise be earned
by Executive (including without limitation any incentive-performance bonus), an
amount equal to two weeks' salary. If none of the conditions or events
described in the following two sentences has occurred and (i) Employer should
terminate this Agreement for any reason other than for a reason constituting
just cause prior to December 31, 2001, Employer shall pay to Executive on the
effective date of such termination as Executive's total, complete compensation
and remuneration a lump sum payment equal to the sum of the remaining salary
that would be due to Executive through December 31, 2001 plus $360,000; or
(ii) Executive's employment is not extended by Employer at the end of the
Employment Term or Executive's employment is terminated by Employer at any time
prior to November 13, 2006 for any reason other than for a reason constituting
just cause after having been extended or continued at the end of the Employment
Term, Employer shall pay to Executive, on the effective date of such
termination and as Executive's total, complete compensation and remuneration a
lump sum payment of $360,000. In the event that during the continuation of
Executive's employment hereunder but before December 31, 2001: (i) Employer or
any subsidiary of Employer, or Employer together with one or more of Employer's
subsidiaries, sell securities in one or a series of transactions by either a
public offering or private placement (including without limitation a placement
or distribution of any subsidiary of Employer) for gross proceeds from such
sales of at least Seventy Million Dollars ($70,000,000); or (ii) a "change of
control" (as defined in Section 2.3) of Employer occurs, Employer shall be
required to continue to pay to Executive or his estate (as applicable) an
amount equal to $30,000 per month (the "Monthly Payment") to Executive from and
after the termination for any reason of Executive's employment hereunder
through November 13, 2006 (the "Payment Termination Date"). In the event that
the circumstances in the foregoing sentence have not occurred, and if during
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the continuation of Executive's employment hereunder but before December 31,
2001 any of the following conditions and events occur, a portion of the Monthly
Payment determined as provided below shall be paid by Employer to Executive or
his estate (as applicable) each month from and after the termination for any
reason of Executive's employment hereunder through the Payment Termination
Date: (x) if more than fifty percent (50%) of the shares of any subsidiary of
Employer is sold or transferred, a percentage of the Monthly Payment equal to
the percentage the value of such subsidiary or portion of such subsidiary
transferred or sold bears to the total value of Employer on the date of such
sale or transfer shall be payable; (y) if any shares of any subsidiary of
Employer are distributed to Employer's stockholders, the percentage of the
Monthly Payment equal to the percentage the value of such distributed shares
bears to the value of all of the outstanding shares of Employer including such
subsidiary on the date of such distribution shall be payable; and (z) if more
than ten percent (10%) of Employer's assets, whether tangible or intangible, is
sold or transferred, a percentage of the Monthly Payment equal to the
percentage the value of such assets bears to the total value of all of
Employer's assets on the date of such sale or transfer shall be payable.
Valuations of Employer and its subsidiaries for purposes of the foregoing
provisions shall be as reasonably determined by Employer's Board of Directors.
Executive and Employer agree that it is impossible to determine with any
reasonable accuracy the amount of prospective damages to Executive upon
Employer's termination other than for just cause of this Agreement; and, in
consideration thereof, Executive and Employer agree that the foregoing
severance payment provisions are reasonable, and do not constitute a penalty,
based upon facts and circumstances of the parties at the time of entering into
this Agreement, and with due regard to Executive's future expectations.
3.4 Death or Total Disability. Notwithstanding any other provision of this
Agreement, in addition to any Monthly Payment or portion thereof payable to
Executive's estate pursuant to Section 3.3, on the event of Executive's death
or total disability at any time during the Employment Term, this Agreement and
the Employment Term shall thereupon automatically terminate, and Employer shall
be obligated to pay to Executive's estate a lump sum equal to the full amount
of Executive's salary hereunder through December 31, 2001. Executive shall be
deemed to be "totally disabled" for purposes of this Section 3.4 if, during any
period of sixty (60) consecutive days or for a cumulative period of ninety (90)
days in any consecutive twelve-month period, he shall be unable, due to mental
or physical illness or injury, to perform his duties hereunder. Executive
shall be conclusively presumed to be permanently disabled on the sixtieth
(60th) such consecutive day or the 90th such cumulative day of such twelve-
month period, as applicable.
3.5 Taxes and Withholding. All amounts payable by Employer to Executive
hereunder shall be subject to, and reduced by the amount of any tax or other
withholdings determined by Employer to be applicable thereto.
4. Executive's Agreement Not to Compete With, and to Protect the Proprietary
Assets of, Employer
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4.1 During the Employment Term, Executive shall not directly or indirectly
engage, be involved, or have any financial interest, in any proprietorship,
partnership, company or other business which engages in competition with
Employer in any line of business in which Employer is or may be from time to
time engaged during such period of time, whether Executive does so as a
partner, officer, director, employee, consultant or holder of any beneficial
interest in any such business or activity. During, and for a period of two
years after, the Employment Term, Executive shall not divert nor attempt to
divert from Employer any business of any kind in which Employer is or may be
engaged. Furthermore, during, and for a period of two years after, the
Employment Term, Executive shall not induce or attempt to induce any person who
is an employee of Employer to leave the employ of Employer. Nothing contained
herein shall be construed as preventing Executive from (i) engaging in non-
competitive outside business interests, activities and investments which do not
require more than incidental amounts of Executive's time and energy,
(ii) investing in stock of business corporations listed on a national
securities exchange (or reported by a newspaper of general circulation in the
United States customarily published on each business day), (iii) investing in
real estate, and (iv) investing in private letter stock or limited partnership
interests, provided that such outside interests, investments or activities are
consistent with, and do not prevent the Executive from, fully and loyally
performing his duties hereunder, and do not create, directly or indirectly, any
conflict of interest with respect to his employment hereunder.
4.2 Executive acknowledges that in the performance of his duties as Chairman
and Chief Executive Officer of Employer he will have access to Employer's
existing or potential trade secrets and proprietary information, including, but
not limited to, any idea or concept, compilation of information, or investment
product used or to be used in Employer's or Employer's affiliates' businesses,
any marketing and product research and development plans, pricing plans,
financial data and projections of sales, expenses, etc., and other confidential
information, which allows Employer or Employer's affiliates' to obtain an
advantage over others, including competitors, who do not know or use such trade
secrets (cumulatively, "Trade Secrets"); and, confidential market information,
including, but not limited to, customer, marketing and sales, financial,
administrative, production, operational and other information used in
Employer's or Employer's affiliates' businesses (cumulatively, "Confidential
Information"), which are confidential and proprietary to Employer.
Accordingly, during and after the Employment Term, Executive shall keep in
confidence at all times and not disclose to any person, firm or corporation,
and not make any use of, except as expressly authorized by Employer, any Trade
Secrets or Confidential Information which are made available to Executive and
identified as proprietary or which, from the circumstances involved, Executive
should recognize as proprietary. Executive further agrees that all Trade
Secrets and Confidential Information shall remain the exclusive property of
Employer and shall not be removed from Employer's premises under any
circumstances whatever, except as expressly authorized by Employer.
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4.3 Executive agrees that, during the Employment Term and thereafter, any
direct or indirect use of Employer's client lists or solicitation of Employer's
clients and customers, other than to further Employer's interests, is use of
confidential information that is not readily accessible to Employer's
competitors, is use intended to injure Employer, and is solicitation of
preferred clients and customers whose relationship to Employer is profitable.
Executive further acknowledges that the established business relationship
between Employer and its clients and customers and Employer would normally
continue unless interfered with.
4.4 If Executive at any time should have any question about Executive's use or
disclosure of Trade Secrets or Confidential Information or whether any ideas,
procedures, information, documentation, materials or representations are Trade
Secrets or Confidential Information, Executive shall promptly discuss the
question with the Board, whose determination shall be binding on Executive.
4.5 Upon termination of Executive's employment with Employer, Executive shall
return to Employer all originals and copies of any and all documents, drawings,
notes, samples, flowcharts, spreadsheets, memoranda or other matters and
writings relating to the business of Employer, or that of its customers,
acquired during the Employment Term, and Executive shall not retain any copy,
draft, duplicate, representation or extract thereof unless expressly authorized
by Employer's Chairman.
4.6 Executive acknowledges and agrees that his covenants and undertakings
contained in this Section 4 relate to matters which are of a special and unique
character, which gives them a special value impossible of replacement by
Employer and for the loss of which Employer cannot be reasonably or adequately
compensated by monetary damages. Accordingly, any breach by Executive of the
provisions of this Section 4 would cause Employer irreparable injury and
damages and Executive therefore expressly agrees that Employer shall be
entitled to injunctive and other equitable relief to prevent a breach or a
continuing breach of any of the provisions of this Section 4, and to secure the
enforcement of any of these provisions, in addition to any other legal or
equitable remedy that may be available to Employer. Further, Executive agrees
that the provisions of this Section 4 shall survive any termination of
Executive's employment by Employer, and that those provisions shall not be
construed to limit any of Executive's obligations and duties to Employer which
may be provided by law.
5. Notices
Any and all notices and other communications required or permitted hereunder
shall be given in writing and delivered personally, sent by registered or
certified mail or transmitted by telecopy, with confirmation of receipt, and
shall be effective when so delivered (or in the case of a telecopy, when
confirmation is received) to the party designated to receive such notice at the
following address or telecopy number (or to such other address or telecopy
number as may hereafter be designated by such party in a notice in writing
given to the other party in accordance with the provisions of this Section 5):
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if to Employer to:
Ramtron International Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: President/Chief Operating Officer
Telecopy: 719.481.9294
if to Executive to:
L. Xxxxx Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Telecopy: 719.481.9294
6. Governing Law and Jurisdiction.
6.1 Choice of Law. The validity, construction, interpretation, and legal
effect of this Agreement shall be determined and governed by the substantive
laws and judicial decisions of the State of Colorado applicable to contracts
entered into and performed entirely within the State of Colorado.
6.2 Forum. Employer and Executive expressly agree that any legal action or
proceeding with respect to any of the obligations arising under or relating to
this Agreement may be brought in any court of the State of Colorado or any
Federal court of the United States of America located in Colorado, and each of
the parties hereby submits to the jurisdiction of the aforesaid courts and
irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in the State of
Colorado and hereby further irrevocably waives any claim that any such court in
the State of Colorado is not a convenient forum for any such suit, action or
proceeding.
6.3 Attorneys' Fees. In the event of any legal action relating to this
Agreement, the prevailing party in such action as determined by the court will
be entitled to recover from the other party its court costs and reasonable fees
and expenses of attorneys, accountants, experts, and other professionals
incurred in connection with the action, including such costs, fees and expenses
upon appeal.
7. General Provisions
7.1. Merger and Severability. This Agreement shall constitute the entire
Agreement between Employer and Executive with respect to the subject matter
hereof. If any provision of this Agreement should be found to be invalid or
unenforceable, it shall be replaced by a provision which comes as close as
possible to the intended result of the invalid provision, and the economic
purpose thereof, and which is valid and enforceable. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
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7.2. Amendments. The terms and provisions of this Agreement may not be
amended or modified except by a written instrument by each of Employer and
Executive.
7.3. Assignment. Neither Employer nor Executive shall be entitled to assign
its or his rights, duties or obligations under this Agreement. Employer,
nonetheless, shall be entitled to transfer its rights pursuant to this
Agreement to any affiliate of Employer, provided that the transferee, in
writing, shall assume the full performance of all the terms and provisions
hereof on Employer's part to be performed with the same force and effect as if
such transferee had been Employer herein.
7.4. No Continuing Waiver. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach thereof.
7.5. Headings. The headings of the Sections of this Agreement are inserted
for convenience of reference only and shall not be deemed to constitute a part
hereof.
7.6. Counterparts. More than one counterpart of this Agreement may be
executed by the parties hereto, and any single counterpart or a set of
counterparts signed, in either case, by each of the parties hereto shall
constitute and full and original agreement for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
day and year first above written.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ Xxxx X. Xxxxx /S/ L. Xxxxx Xxxxx
------------------------ ---------------------------
Name: Xxxx X. Xxxxx L. Xxxxx Xxxxx
Title: President and COO
Page-189
Exhibit A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE AFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrants to Purchase
Shares of Common Stock
RAMTRON INTERNATIONAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THE WARRANTS evidenced by this Warrant Certificate have been issued as of the
18th day of January, 2000, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
THIS CERTIFICATE evidences the right of L. Xxxxx Xxxxx or his nominee
("Holder") to purchase, for the Exercise Price (as defined below), during the
Exercise Term (as defined below), 667,000 shares of Common Stock (the "Shares")
of Ramtron International Corporation, a Delaware corporation (the "Company"),
subject to the terms and conditions hereinafter set forth.
1. Definitions. As used in this Certificate:
(a) "Aggregate Exercise Price" shall mean with respect to any exercise under
this Warrant Certificate the Exercise Price multiplied by the number of
shares of Common Stock as to which the Warrant Certificate is exercised,
as set forth in the Subscription Agreement.
(b) "Date of Issuance" shall mean the date set forth in the preamble of this
Warrant Certificate.
(c) "Employment Agreement" shall mean that certain employment agreement
entered into between Holder and Company dated as of January --, 2000.
(d) "Exercise Price" shall mean ----- Dollars and ----- Cents ($------) per
Share. [Must equal closing bid price of the Company's stock on the Date
of Issuance, i.e., the Employment Agreement is effective.]
(e) "Exercise Term" shall mean the five (5) year period commencing on the
first date that the Warrants, or any portion thereof, vest and become
exercisable pursuant to Section 2(a) of this Warrant Certificate and
ending on the date that is five years from the date of such vesting;
provided however, that in the event of termination of Holder's employment
with the Company for any reason prior to December 31, 2001, any vested and
exercisable warrants shall be exercisable only for a period of 90 days
following the effective date of termination.
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(f) "Registrable Shares" shall mean all Shares that may not be resold pursuant
to Rule 144 under the Act as of the date on which the Company notifies
Holder, in accordance with Section 7(a) of this Warrant Certificate, of
its intent to file a registration statement.
(g) "Subscription Agreement" shall mean the Subscription Agreement attached
hereto as Exhibit A.
(h) "Warrants" shall mean the rights evidenced by this Warrant Certificate.
2. Exercise of Warrants.
(a) Right to Exercise. These Warrants shall vest and become exercisable on
December 31, 2002 if the Holder is employed by the Company at that date;
provided, however, that, so long as Holder remains employed by the Company
pursuant to the Employment Agreement, (i) all of the Warrants not
previously vested shall vest and become immediately exercisable upon the
occurrence of any of the following conditions and events on or before
December 31, 2001: (x) the Company or any subsidiary of the Company, or
Company together with one or more of the Company's subsidiaries, sell
securities in one or a series of transactions by either a public offering
or private placement (including without limitation a placement or
distribution of any subsidiary of the Company) for gross proceeds from
such sales of at least Seventy Million Dollars ($70,000,000); or (y) a
"change of control" (as hereinafter defined) of the Company occurs; or,
(ii) if none of the circumstances described in (i) above has occurred, a
portion of the Warrants, such portion to be determined as provided below,
shall vest and become immediately exercisable upon the occurrence of any
of the following conditions and events on or before December 31, 2001: (x)
if more than fifty percent (50%) of the shares of any subsidiary of the
Company is sold or transferred, a percentage of the total number of
Warrants equal to the percentage that the value of such subsidiary or
portion of such subsidiary transferred or sold bears to the total value of
the Company on the date of such sale or transfer shall vest and become
exercisable; (y) if any shares of any subsidiary of the Company are
distributed to the Company's stockholders, a percentage of the total
number of Warrants equal to the percentage that the value of such
distributed shares bears to the value of all of the outstanding shares of
the Company including such subsidiary on the date of such distribution
shall vest and become exercisable; and (z) if more than ten percent (10%)
of the Company's assets, whether tangible or intangible, is sold or
transferred, a percentage of the total number of Warrants equal to the
percentage that the value of such assets bears to the total value of all
of the Company's assets on the date of such sale or transfer shall vest
and become exercisable. Valuations of the Company and its subsidiaries for
purposes of the foregoing provisions shall be as reasonably determined by
the Company's Board of Directors. For purposes of this Warrant
Certificate, "change of control" means any of the following: (i) Any
"person," as such term is defined in Section 3(a)(9) and used in Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
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Act"), who was not a beneficial owner(as defined in Rule 13(d)-3 under the
Exchange Act) on the date hereof, becomes the beneficial owner, directly
or indirectly, of securities of the Company representing 40% or more of
the combined voting power of the Company's then outstanding securities; or
(ii) the shareholders or Company approve (A) a merger of the Company with
or into any other corporation of which the Company is not the surviving
corporation or in which the Company survives as a subsidiary of another
corporation, (B) a consolidation of the Company with any other
corporation, or (C) the sale or disposition of all or substantially all of
the Company's assets or a plan of complete liquidation.
(b) Method of Exercise. The vested Warrants may be exercised by the Holder
during the Exercise Term:
(i) Cash Exercise. By the surrender of this Warrant Certificate at the
principal office of the Company, along with the properly completed
Subscription Agreement indicating the election of the Holder to
effect a cash exercise, and the payment to the Company by certified
or cashier's check of the Aggregate Exercise Price; or
(ii) Cashless Exercise. By the surrender of this Warrant Certificate at
the principal office of the Company, along with the properly
completed Subscription Agreement indicating the election of the
Holder to effect a cashless exercise pursuant to the provisions of
this Section 2(b)(ii) ("Cashless Exercise"). Such surrender shall be
deemed a waiver of the Holder's obligation to tender cash payment of
the Aggregate Exercise Price. In the event of a Cashless Exercise,
in lieu of paying the Exercise Price in cash, the Holder shall
exchange its Warrants for that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock of
Company to which it would otherwise be entitled by a fraction, the
numerator of which shall be the difference between the then current
market price per share of the Common Stock and the Exercise Price,
and the denominator of which shall be the then current market price
per share of Common Stock. For purposes of any computation under
this Section 2(b)(ii), the then current market price per share of
Common Stock at any date shall be deemed to be the closing sale price
of the Common Stock for the trading day preceding the date of the
Cashless Exercise as reported by the Nasdaq Stock Market ("Nasdaq")
or, if no reported sale takes place on such day, the representative
closing bid price of the Common Stock for such day as reported by
Nasdaq.
(c) Issuance of Share Certificate and/or New Warrant Certificate. In the
event of any exercise of the Warrants, certificates for the Shares so
purchased shall be delivered to Holder within a reasonable time after the
Warrants shall have been so exercised, and unless the Warrants have
expired, a new certificate representing the right to purchase the number
of Shares, if any, with respect to which this Warrant Certificate shall
not then have been exercised shall also be issued to Holder within such
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time. All such new warrant certificates shall be dated the date hereof
and shall be identical to this Warrant Certificate except as to the number
of Shares issuable pursuant thereto. The Company shall pay all
documentary, stamp or other transactional taxes (other than transfer
taxes), if any, attributable to the issuance or delivery of shares of
Common Stock of the Company upon exercise of the Warrants.
(d) Restrictions on Exercise. The Warrants may not be exercised if the
issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or
regulations. As a condition to the exercise of the Warrants, the Company
may require Holder to make such representations and warranties to the
Company as may be required by applicable law or regulation.
3. Stock Fully Paid; Reservation of Shares. The Company covenants and agrees
that all Shares will, upon issuance and payment in accordance herewith, be
fully paid, validly issued and nonassessable. The Company further covenants
and agrees that during the Exercise Term the Company will at all times have
authorized and reserved for the purpose of the issue upon exercise of the
Warrants at least the maximum number of shares of the Company's Common Stock as
are issuable upon the exercise of the Warrants.
4. Adjustment of Purchase Price and Number of Shares. The number and kind of
securities purchasable upon the exercise of the Warrants and the Exercise Price
shall be subject to adjustment from time to time upon the happening of certain
events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company at any time
while the Warrants remain outstanding and unexpired shall consolidate with
or merge into any other corporation, or sell all or substantially all of
its assets to another corporation, or reclassify or in any manner change
the securities then purchasable upon the exercise of the Warrants (any of
which shall constitute a "Reorganization"), then lawful and adequate
provision shall be made whereby this Warrant Certificate shall thereafter
evidence the right to purchase such number and kind of securities and
other property as would have been issuable or distributable on account of
such Reorganization upon or with respect to the securities which were
purchasable under the Warrants immediately prior to the Reorganization.
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation (if
other than the Company) resulting from such Reorganization shall assume by
written instrument executed and mailed or delivered to Holder, at the last
address of Holder appearing on the books of the Company, the obligation to
deliver to Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, Holder may be entitled to
purchase.
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(b) Subdivision or Combination of Shares. If the Company at any time while
the Warrants remain outstanding and unexpired shall subdivide or combine
its Common Stock, the Exercise Price shall be adjusted to that price
determined by multiplying the Exercise Price in effect immediately prior
to such subdivision or combination by a fraction (i) the numerator of
which shall be the total number of shares of Common Stock outstanding
immediately prior to such subdivision or combination and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such subdivision or combination.
(c) Certain Dividends and Distributions. If the Company at any time while the
Warrants are outstanding and unexpired shall take a record of the holders
of its Common Stock for the purpose of:
(i) Stock Dividends. Entitling them to receive a dividend payable in, or
other distribution without consideration of, Common Stock, then the
Exercise Price shall be adjusted to that price determined by
multiplying the Exercise Price in effect immediately prior to each
dividend or distribution by a fraction (A) the numerator of which
shall be the total number of shares of Common Stock outstanding
immediately prior to such dividend or distribution, and (B) the
denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution; or
(ii) Distribution of Assets, Securities, etc. Making any distribution
without consideration with respect to its Common Stock (other than a
cash dividend) payable otherwise than in its Common Stock, Holder
shall, upon the exercise of the Warrants, be entitled to receive, in
addition to the number of Shares receivable thereupon, and without
payment of any additional consideration therefor, such assets or
securities as would have been payable to him or her as owner of that
number of Shares receivable by exercise of the Warrants had he or she
been the holder of record of such Shares on the record date for such
distribution, and an appropriate provision therefor shall be made a
part of any such distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price pursuant to Subsections (b) or (c) (i) of this Section 4, the number
of Shares purchasable hereunder shall be adjusted to that number
determined by multiplying the number of such Shares purchasable upon the
exercise of the Warrants immediately prior to such adjustment by a
fraction, the numerator of which shall be the Exercise Price immediately
prior to such adjustment and the denominator of which shall be the
Exercise Price immediately following such adjustment. Any determination
that the Company or the Board of Directors must make pursuant to
subsections (a), (b) or (c) of this Section 4 shall be final and
conclusive.
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(e) Notice. In case at any time:
(i) The Company shall pay any dividend payable in stock upon its Common
Stock or make any distribution, excluding a cash dividend, to the
holders of its Common Stock;
(ii) The Company shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or other
rights;
(iii) There shall be any reclassification of the Common Stock of the
Company, or consolidation or merger of the Company with, or sale of
all or substantially all of its assets to, another corporation; or
(iv) There shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder
at least 10 days' prior written notice (or, in the event of notice
pursuant to Section 4(e)(iii), at least 30 days' prior written notice) of
the date on which the books of the Company shall close or a record shall
be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect to any such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up. Such
notice in accordance with the foregoing clause shall also specify, in the
case of any such dividend, distribution or subscription rights, the date
on which the holders of Common Stock shall be entitled thereto, and such
notice in accordance with the foregoing clause shall also specify the date
on which the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be. Each such written notice shall be given
by first-class mail, postage prepaid, addressed to Holder at the address
of Holder as shown on the books of the Company.
(f) No Change in Warrant Certificate. The form of this Warrant Certificate
need not be changed because of any adjustment in the Exercise Price or in
the number of Shares purchasable on its exercise. The Exercise Price or
the number of Shares shall be considered to have been so changed as of the
close of business on the date of adjustment.
5. Fractional Shares. No fractional Shares will be issued in connection with
any subscription hereunder but, in lieu of such fractional Shares, the Company
shall make a cash payment therefor upon the basis of the fair market value of
the Shares.
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6. Restrictions on Transfer. The Warrants are restricted from sale, transfer,
assignment or hypothecation by operation of law. The Warrants have not been
registered under the Act or any applicable state securities laws, and may not
be offered for sale, sold, transferred, pledged or hypothecated without an
effective registration statement under the Act and under any applicable state
securities law, or an opinion of counsel, satisfactory to the Company, that an
exemption from such registration is available. By accepting this Warrant
Certificate, the Holder acknowledges his or her understanding that because the
Warrants are not registered, the Holder must hold the Warrants indefinitely
unless they are registered under the Act and any applicable state securities
laws or must obtain exemptions from registration. In addition, by accepting
this Warrant Certificate, the Holder represents and warrants that the Holder is
acquiring the Warrants for his or her own account for investment and not with
the view to distribution, assignment, resale or other transfer of the Warrants.
Except as specifically stated herein, no other person has a direct or indirect
beneficial interest in the Warrants.
7. Registration Under Securities Act of 1933.
(a) Piggyback Registration Rights. The Company agrees that if, at any time
and from time to time while the Holder holds the Warrants or any
Registrable Shares, the Board of Directors of the Company shall authorize
the filing of a registration statement under the Act (other than a
registration statement on Form X-0, Xxxx X-0 or any other form which does
not include substantially the same information as would be required in a
form for the general registration of securities such as the Shares
purchasable hereunder), in connection with the proposed offer of any of
its securities by it or any of its shareholders, the Company will (i)
notify the Holder of the Warrants and/or the Registrable Shares that such
registration statement will be filed and that the Registrable Shares which
are then held, and/or may be acquired upon exercise of the Warrants by the
Holder, will be included in such registration statement at the Holder's
written request, (ii) cause such registration statement to cover all of
such Registrable Shares which it has been so requested to include, and
(iii) take all other action that the Company and its counsel deem
necessary under any Federal or state law or regulation of any governmental
authority to permit all such Registrable Shares which it has been so
requested to include in such registration statement to be sold or
otherwise disposed of, and will maintain such compliance with each such
Federal and state law and regulation of any governmental authority for the
period, not in excess of six months, necessary for the Holder to effect
the proposed sale or other disposition; provided, however, that the
Company shall have no obligation under this Section 7 to the extent that,
with respect to a registration statement filed in connection with a public
offering or private placement, the managing underwriter of such offering,
or placement agent for such placement, determines that the Registrable
Shares requested to be registered under this Section 7, or a portion
thereof, should be excluded from such registration statement.
(b) Prospectus Delivery and Qualification in Colorado. Whenever the Company
is required pursuant to the provisions of this Section 7 to include in a
registration statement Registrable Shares held by Holder, the Company
shall (i) furnish the Holder of any such Registrable Shares with copies of
the prospectus conforming to the Act in order to facilitate the sale or
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distribution of such Registrable Shares, (ii) use its best efforts to
register or qualify such Registrable Shares under the blue sky laws (to
the extent applicable) of the State of Colorado, and (iii) take such other
actions that the Company and its counsel deem necessary to consummate the
sale or distribution of such Registrable Shares in the State of Colorado.
(c) Expenses. The Company shall pay all expenses incurred in connection with
any registration statement or other action pursuant to the provisions of
this Section 7, other than underwriting discounts and commissions,
compliance with the blue-sky laws of any state other than Colorado,
applicable transfer taxes, and fees and expenses of counsel to the Holder.
8. No Rights as Shareholder. Holder, as holder of the Warrants, shall not be
entitled to vote or receive dividends or be considered a shareholder of the
Company for any purpose, nor shall anything in this Warrant Certificate be
construed to confer on Holder, as such, any rights of a shareholder of the
Company or any right to vote, give or withhold consent to any corporate action,
to receive notice of meetings of shareholders, to receive dividends or
subscription rights or otherwise.
9. Notices. All demands, notices, consents and other communications to be
given hereunder shall be in writing and shall be deemed duly given when
delivered personally or five days after being mailed by first class mail,
postage prepaid, properly addressed, if to the Company at Ramtron International
Corporation, 0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx Xxxxxxxx 00000, or if to
Holder at the last address appearing on the records of the Company. The
Company and Holder may change such address at any time or times by notice
hereunder to the other.
10. Amendments; Waivers, Terminations, Governing Law; Headings. The Warrants
and any term hereof may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought. The Warrants shall be
governed by and construed and interpreted in accordance with the laws of the
State of Delaware. The headings in this Warrant Certificate are for convenience
of reference only and are not part of the Warrants.
Dated as of January --, 2000.
RAMTRON INTERNATIONAL CORPORATION
By: ------------------------
Name: ----------------------
Title: ---------------------
Attest:
-----------------------------
RECEIPT ACKNOWLEDGED BY HOLDER:
-----------------------------
L. Xxxxx Xxxxx
Address: 00 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Page-197
EXHIBIT A
RAMTRON INTERNATIONAL CORPORATION
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Subscription Agreement for the Exercise of Warrants
(To be completed and signed only upon exercise of the Warrants)
The undersigned, the holder and registered owner of the attached Warrants,
hereby irrevocably and unconditionally elects to exercise such Warrants and
subscribes for the purchase of -----------* shares of Ramtron International
Corporation (the "Company") common stock (the "Common Stock") pursuant to and
in accordance with the terms and conditions of the Warrant Certificate attached
hereto, and
(1) elects to effect a cash exercise and herewith tenders a check in the
amount of $-----------, or
(2) by initialing the space that follows -------, elects to effect a Cashless
Exercise and herewith tenders the requisite number of Warrants pursuant to
the Cashless Exercise provisions of the Warrants in Section 2(b)(ii) of
the attached Warrant Certificate in exchange for the Common Stock which should
be delivered to the undersigned at the address stated below, and, if said
number of shares of Common Stock shall not be all of the Common Stock
purchasable hereunder, a new Warrant of like tenor for the balance of the
remaining Common Stock purchasable hereunder should be delivered to the
undersigned at the address stated below.
The undersigned agrees that:
(1) the undersigned will not offer, sell, transfer or otherwise dispose of any
of the Common Stock unless either (a) a registration statement, or post-
effective amendment thereto, covering the Common Stock has been filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), such sale, transfer or other disposition is accompanied by
a prospectus meeting the requirements of Section 10 of the Act forming a part
of such registration statement, or post-effective amendment thereto, which is
in effect under the Act covering the Common Stock to be so sold, transferred or
otherwise disposed of, and all applicable state securities laws have been
complied with, or (b) the undersigned has delivered to the Company a written
opinion of counsel, addressed to the Company, which opinion is reasonably
acceptable to the Company and its counsel, that such proposed offer, sale,
transfer or other disposition of the Common Stock is exempt from the provisions
of Section 5 of the Act in view of the circumstances of such proposed offer,
sale, transfer or other disposition;
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(2) the Company may notify the transfer agent for Common Stock that the
certificates for the Common Stock acquired by the undersigned are not to be
transferred unless the transfer agent receives advice from the Company that one
or both of the conditions referred to in (1)(a) and (1)(b) above have been
satisfied; and
(3) the Company may affix the following legend to the certificates for the
Common Stock hereby subscribed for, if such legend is applicable:
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES OR BLUE SKY LAWS OF ANY STATE
AND MAY NOT BE OFFERED AND SOLD UNLESS REGISTERED AND/OR QUALIFIED PURSUANT TO
THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES OR BLUE SKY LAWS OR AN
EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION IS APPLICABLE. THEREFORE, NO
SALE OR TRANSFER OF THIS SECURITY SHALL BE MADE, NO ATTEMPTED SALE OR TRANSFER
SHALL BE VALID, AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE ANY EFFECT TO ANY
SUCH TRANSACTION UNLESS (A) SUCH TRANSACTION SHALL HAVE BEEN DULY REGISTERED
UNDER THE ACT AND QUALIFIED OR APPROVED UNDER APPROPRIATE STATE OR BLUE SKY
LAWS, OR (B) THE ISSUER SHALL HAVE FIRST RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT SUCH REGISTRATION, QUALIFICATION OR APPROVAL IS NO
REQUIRED.
Dated: ------------- Signed: ------------------------------
Name: L. Xxxxx Xxxxx
Address: --------------------
--------------------
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