PREFERRED STOCK RECAPITALIZATION AGREEMENT
This Preferred Stock Recapitalization Agreement is dated as of July 30, 1999,
among Ramtron International Corporation ("Ramtron"), a Delaware corporation,
and the holders, severally, of Ramtron's Series A Convertible Preferred Stock
executing this Agreement (each a "Series A Stockholder" and together the
"Series A Stockholders").
RECITALS:
A. Each of the Series A Stockholders and Ramtron entered into a Preferred
Stock Investment Agreement dated as of February 25, 1998 (each an "Investment
Agreement" and together the "Investment Agreements"), pursuant to which the
Series A Stockholders purchased from Ramtron shares of Ramtron's Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Stock").
B. The Series A Stockholders and Ramtron wish to amend and restate the
Certificate of Designation, Preferences, Rights and Limitations (the
"Certificate of Designation") filed on February 12, 1998, with the Secretary
of State of Delaware, pursuant to which the preferences, rights and
limitations of the Series A Stock were established.
C. The Series A Stockholders and Ramtron wish to set forth in this Agreement
their respective rights and obligations concerning Ramtron's recapitalization
to be consummated in connection with the proposed amendment of the Certificate
of Designation.
NOW, THEREFORE, in consideration of the Recitals, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Amendment of Certificate of Incorporation and Termination of Investment
Agreements. Subject only to the satisfaction or waiver of the conditions set
forth in Section 3 of this Agreement:
(a) Ramtron and the Series A Stockholders, respectively, shall as soon as
practicable following the execution and delivery of this Agreement take all
necessary and appropriate actions (including executing, as may be appropriate,
written consents, certificates of amendment and other documents and
instruments) to cause Ramtron's Certificate of Incorporation to be amended so
as to amend and restate the Certificate of Designation and to have the form
and content of Exhibit A hereto (the "Certificate of Amendment").
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(b) By their execution hereof, Ramtron and the Series A Stockholders,
respectively, terminate each Investment Agreement.
2. The Closing. In order to co-ordinate the effective consummation of the
actions to be taken pursuant to this Agreement upon satisfaction or waiver of
the conditions set forth in Section 3 of this Agreement, representatives of
Ramtron and the Series A Stockholders shall conduct a closing (the "Closing")
at Ramtron's offices or at such other place as Ramtron and the Series A
Stockholders may agree on the later of the following: (a) the date on which
the last to be fulfilled or waived of the conditions set forth in Section 3
hereof shall be fulfilled or waived in accordance with this Agreement, and
(b) such other time and date as Ramtron and the Series A Stockholders may
agree. The date on which the Closing occurs is hereinafter called the
"Closing Date." Prior to or at the Closing, Ramtron and the Series A
Stockholders shall execute and deliver originals of any required consents,
instruments or documents as may not previously have been executed and
delivered, including without limitation the consents to the Certificate of
Amendment to be filed on the Closing Date in order to approve the Certificate
of Amendment provided in Section 1(a).
3. Conditions of Closing.
(a) The obligations of the Series A Stockholders set forth in this
Agreement are subject to the fulfillment or waiver, at or before the Closing,
of each of the following conditions:
(i) (A) Ramtron's common stockholders shall have approved Proposals
1A and 1B at a special meeting held on July 20, 1999, in
accordance with Ramtron's Notice of Special Meeting dated
June 21, 1999; (B) the purchasers (the "DFA Stockholders") of
Ramtron's Common Stock pursuant to Stock Purchase Agreements
dated as of December 23, 1997 (the "DFA Purchase Agreements"),
shall have entered into and closed, or shall enter into and
close concurrently with the Closing of this Agreement, the DFA
Stockholder Recapitalization Agreement with Ramtron providing
for, among other matters, the termination of the DFA Purchase
Agreements; (C) the holders of a majority of the shares of
Series A Stock shall have approved the amendment of Ramtron's
Certificate of Incorporation as provided in Section 1(a) and if
such approval is by written consent of less than all Series A
Stockholders, Ramtron shall have given written notice to each
Series A Stockholder who has not so consented; (D) Ramtron's
Board of Directors shall have approved and authorized the
execution and filing with the Delaware Secretary of State of the
Certificate of Amendment; and (E) NEBF and Ramtron shall have
amended the Loan Agreement dated August 31, 1995, or shall have
prepared and signed a separate document, to provide (among other
things) for (I) NEBF's irrevocable consent to the amendment of
Ramtron's Certificate of Incorporation as provided in Section
1(a), (II) the extension of the maturity date for the loan to a
date not earlier than March 15, 2002, and (III) the release of
certain categories of collateral pledged as security for
repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction
of certain performance milestones.
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(ii) Each of the representations and warranties of Ramtron contained
in Section 4 shall be true and correct in all material respects
on and as of the Closing Date with the same effect as though
such representations and warranties had been made as of the
Closing.
(iii) Ramtron shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before
the Closing and shall have obtained all approvals, consents and
qualifications necessary to completely perform its obligations
undertaken herein.
(iv) Ramtron shall have provided to each of the Series A
Stockholders or their representative a copy, certified by
Ramtron's Secretary, of the resolutions of the Board of
Directors of Ramtron providing for the authorization and
approval of this Agreement and the matters mentioned in
Section 3(a)(i)(D).
(v) Ramtron's Common Stock shall be listed on The Nasdaq SmallCap
Market ("Nasdaq") and trading in Ramtron's Common Stock shall
not have been suspended by Nasdaq, the Securities and Exchange
Commission (the "SEC") or other regulatory authority.
(vi) No action, suit, proceeding, inquiry or investigation before or
by any court, public board, governmental agency or authority
shall be known to Ramtron to have been filed against or
affecting Ramtron or Enhanced Memory Systems, Inc.("EMS"), a
Delaware corporation wholly owned by Ramtron, which seeks to
prevent, enjoin, alter or delay the transactions contemplated
by this Agreement or which if decided adversely to Ramtron
would affect the validity or enforceability of this Agreement
or the Series A Stock.
(vii) The Series A Stockholders shall have received an opinion of
counsel for the Company, dated as of the Closing Date, as to
the matters of Delaware law set forth in Exhibit B, subject to
such conditions and exceptions as are usual in such opinions.
(b) The obligations of Ramtron set forth in this Agreement are subject to
the fulfillment or waiver, at or before the Closing, of each of the following
conditions:
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(i) (A) Ramtron's common stockholders shall have approved Proposals
1A and 1B at a special meeting held on July 20, 1999, in
accordance with Ramtron's Notice of Special Meeting dated
June 21, 1999; (B) the DFA Stockholders shall have entered into
and closed, or shall enter into and close concurrently with the
Closing of this Agreement, the DFA Stockholder Recapitalization
Agreement with Ramtron providing for, among other matters, the
termination of the DFA Purchase Agreements; (C) the holders of a
majority of the shares of Series A Stock shall have approved the
amendment of Ramtron's Certificate of Incorporation as provided
in Section 1(a); and (D) NEBF and Ramtron shall have amended the
Loan Agreement dated August 31, 1995, or shall have prepared and
signed a separate document, to provide (among other things) for
(I) NEBF's irrevocable consent to the amendment of Ramtron's
Certificate of Incorporation as provided in Section 1(a),
(II) the extension of the maturity date for the loan to a date
not earlier than March 15, 2002, and (III) the release of
certain categories of collateral pledged as security for
repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction
of certain performance milestones.
(ii) All legal actions of any type filed against Ramtron by any of
the Series A Stockholders, or their respective transferees,
affiliates, associates, stockholders, partners members and other
related parties, and all legal actions of any type filed against
Ramtron by any of the DFA Stockholders, or their respective
affiliates, associates, stockholders, partners, members and
other related parties, shall have been dismissed with prejudice
or appropriate documents to effect such dismissal shall have
been delivered to Ramtron.
(iii) Each of the representations and warranties of the Series A
Stockholders contained in Section 5 shall be true and correct in
all material respects on and as of the Closing Date, with the
same effect as though such representations and warranties had
been made as of the Closing.
(iv) The Series A Stockholders shall have performed and complied with
all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by
the Series A Stockholders on or before the Closing and shall
have obtained all approvals, consents and qualifications
necessary to completely perform their obligations undertaken
herein.
4. Representations and Warranties of Ramtron. Ramtron represents and
warrants to the Series A Stockholders as of the date hereof and as of the
Closing Date:
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(a) Organization and Qualification. Each of Ramtron and EMS is a
corporation duly incorporated and existing in good standing under the laws of
Delaware and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Each of Ramtron and EMS is duly
qualified as a corporation authorized to do business, and is in good standing,
in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary other than those in
which the failure so to qualify would not have a Material Adverse Effect.
"Material Adverse Effect" means any adverse effect on the business,
operations, properties, or financial condition of Ramtron.
(b) Authorization; Enforcement. (i) Ramtron has the requisite corporate
power and authority to enter into and perform this Agreement and to issue
shares of Common Stock upon conversion of the Series A Stock in accordance
with the terms of the Certificate of Amendment, (ii) the execution and
delivery of this Agreement by Ramtron and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, the required written notice has been given to the Series A
Stockholders who did not deliver a written consent approving the amendment to
Ramtron's Certificate of Incorporation, and no further consent or
authorization of Ramtron or its Board of Directors or stockholders is
required, (iii) this Agreement has been duly executed and delivered by
Ramtron, and (iv) this Agreement constitutes a valid and binding obligation of
Ramtron enforceable against Ramtron in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application. The Common Stock issuable
upon conversion of the Series A Stock will be duly authorized and reserved for
issuance and, upon conversion in accordance with the Certificate of Amendment
to be filed by Ramtron pursuant to Section 1(a) of this Agreement, will be
validly issued, fully paid and non-assessable and not subject to any
preemptive rights or adverse claims, and the holders shall be entitled to all
rights and preferences accorded to a holder of Common Stock. The Series A
Stock issuable as dividends on the Series A Stock, whether such dividends were
accrued before or after the effective date of the Certificate of Amendment,
will be fully paid and non-assessable and not subject to any preemptive rights
or adverse claims and the holders will be entitled to all rights and
preferences accorded to holders of Series A Stock.
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(c) Capitalization. The authorized capital stock of Ramtron consists of
75,000,000 shares of Common Stock and 10,000,000 shares of preferred stock;
there are approximately 62,759,301 shares of Common Stock and 8,878 shares of
preferred stock issued and outstanding. Ramtron's common stockholders
approved Proposals 1A and 1B at the common stockholders meeting held on
July 20, 1999. Upon the effectiveness of the 1:5 reverse stock split of
Ramtron's Common Stock, to be effected immediately following the effectiveness
of the Certificate of Amendment: Ramtron will have authorized capital of
60,000,000 shares, consisting of 50,000,000 shares of Common Stock and
10,000,000 shares of preferred stock, and there will be outstanding
approximately 12,551,860 shares of Common Stock and 8,878 shares of Series A
Stock, the conversion rights of which shall be adjusted pursuant to the
Certificate of Amendment to account for the reverse stock split. All of the
outstanding shares of Ramtron's Common Stock have been validly issued and are
fully paid and non-assessable. Except as described in the SEC Documents (as
hereinafter defined), except for the rights of the Series A Stockholders and
each of the DFA Stockholders and except for the right of NEBF to convert its
loan to Ramtron into Ramtron Common Stock and the registration rights of NEBF
with respect to shares of Ramtron's Common Stock held by, and to be issued to,
NEBF, no shares of Common Stock are entitled to preemptive rights or
registration rights and there are no outstanding options, convertible
securities, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatever relating to, or securities or rights convertible into,
any shares of capital stock of Ramtron, or contracts, commitments,
understandings, or arrangements by which Ramtron is or may become bound to
issue additional shares of capital stock or options, warrants, scrip, rights
to subscribe to, or commitments to purchase or acquire, any shares, or
securities or rights convertible into shares, of capital stock of Ramtron.
All of the rights to purchase Ramtron Common Stock described in the
immediately preceding sentence, and the conversion rights under the promissory
notes issued to the DFA Stockholders, are subject to adjustment to account for
the 1:5 reverse stock split to be effected pursuant to Proposal 1B approved on
July 20, 1999, by Ramtron's common stockholders. Ramtron has furnished or
made available to the Series A Stockholders true and correct copies of
Ramtron's Certificate of Incorporation as in effect on the date hereof, and
Ramtron's By-Laws, as in effect on the date hereof.
(d) No Conflicts. The execution, delivery and performance of this
Agreement by Ramtron and the consummation by Ramtron of the transactions
contemplated hereby do not and will not (i) result in a violation of EMS'
Certificate of Incorporation, in a violation of Ramtron's Certificate of
Incorporation as it shall be amended by the Certificate of Amendment; or in a
violation of the By-Laws of EMS or of Ramtron, (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which Ramtron or EMS is a party or (iii) result in a violation
of any Federal, state, local or foreign law, rule or regulation, order,
Page 22
judgment or decree (including Federal and state securities laws and
regulations) applicable to Ramtron or EMS or by which any property or asset of
Ramtron or EMS is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect);
provided that, for purposes of such representation as to Federal, state, local
or foreign law, rule or regulation, no representation is made herein with
respect to any of the same applicable solely to the Series A Stockholders and
not to Ramtron. Neither the business of Ramtron nor EMS is being conducted in
violation of any law, ordinance or regulations of any governmental entity,
except for violations which either singly or in the aggregate do not and will
not have a Material Adverse Effect. Ramtron is not required under Federal,
state or local law, rule or regulation in the United States to obtain any
consent, authorization or order of, or make any filing (other than the filing
of the Certificate of Amendment with the Delaware Secretary of State, as
required for the consummation of this Agreement pursuant to Section 3(a)(i))
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement (other
than any SEC or state securities filings which may be required to be made by
Ramtron in connection with any registration statement which may be filed
pursuant hereto and any notifications to the National Association of
Securities Dealers with respect to the shares of Common Stock to be issued
pursuant to the Certificate of Amendment); provided that, for purposes of the
representation made in this sentence, Ramtron is assuming and relying upon the
accuracy of the relevant representations and agreements of the Series A
Stockholders herein.
(e) SEC Documents, Financial Statements. The Common Stock of Ramtron is
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Ramtron has filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d), in addition to one or more
registration statements and amendments thereto heretofore filed by Ramtron
with the SEC (all of the foregoing including filings incorporated by reference
therein being referred to herein as the "SEC Documents"). As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted principles
Page 23
applied on a consistent basis during the periods (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or
(ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) fairly present in
all material respects the financial position of Ramtron as of the dates
thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(f) Absence of Litigation. Except as disclosed at the end of this Section
4(f), there is no action, suit, or proceeding before or by any court, public
board, governmental agency or authority, or self-regulatory organization
pending or, to the knowledge of Ramtron, threatened against Ramtron or any of
its respective directors or officers in their capacities as such, wherein an
unfavorable decision, ruling or finding could reasonably be expected to have a
Material Adverse Effect or would adversely affect the transactions
contemplated by this Agreement or any of the documents contemplated hereby or
which would adversely affect the validity or enforceability of, or the
authority or ability of Ramtron to perform its obligations under, this
Agreement or any of such other documents. To Ramtron's knowledge, there are no
facts which, if known by a potential claimant or governmental agency or
authority, could give rise to a claim or proceeding which, if asserted or
conducted with results unfavorable to Ramtron, could reasonably be expected to
have a Material Adverse Effect. Pursuant to the decision of the Nasdaq
Listing Qualification Panel provided to Ramtron in a letter dated June 18,
0000, Xxxxxxx'x Xxxxxx Stock will be delisted from the Nasdaq SmallCap Market
unless, by August 6, 1999, Ramtron evidences a closing bid price of not less
than $1.00 per share, and, thereafter, Ramtron continues to evidence a closing
bid price of at least $1.00 per share for a minimum of ten consecutive trading
days.
(g) No Anti-Takeover Plan. There is not in effect any shareholders
rights plan or other capital structure the intent of which is to prevent or
impede a future change of the current management of Ramtron.
(h) Nasdaq Status. Upon the effectiveness of the Certificate of
Amendment, (i) the shares of Series A Stock will not constitute a "future
priced security" for purposes of the Nasdaq proposed rule change entitled
"Interpretative Material Regarding Future Priced Securities"; (ii) Nasdaq Rule
4330 as interpreted in that Interpretative Material will not be violated by
the terms of the Certificate of Amendment; and (iii) the rights and
preferences of the Series A Stock pursuant to the Certificate of Amendment do
not constitute a change in financial structure requiring Ramtron to satisfy
Nasdaq's initial inclusion requirements.
(i) No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to Ramtron or EMS or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by Ramtron but which has not been so publicly announced or
disclosed.
Page 24
(j) No Material Adverse Change. Since the date through which the most
recent quarterly report of Ramtron on Form 10-Q has been filed with the SEC,
no event which would have a Material Adverse Effect has occurred or exists
with respect to Ramtron or EMS except as otherwise disclosed or reflected in
other SEC Documents prepared through or as of a date subsequent thereto.
(k) No Third Party Actions. Ramtron has no knowledge of any action,
suit, proceeding, inquiry or investigation, before or by any court, public
board, government agency or authority and has no notice that any party intends
to institute any of the foregoing, which seeks to prevent, enjoin, alter or
delay the transactions contemplated by this Agreement or which if decided
adversely to Ramtron would affect the validity or enforceability of the
Agreement or the Series A Stock.
5. Representations and Warranties of Series A Stockholders. Each Series A
Stockholder represents and warrants to Ramtron as of the date hereof and as of
the Closing Date, solely with respect to such stockholder and not with respect
to any other Series A Stockholder (and no Series A Stockholder shall be deemed
to make or have any liability for any representation or warranty made by any
other Series A Stockholder):
(a) Authorization, Enforcement. (i) The Series A Stockholder has the
requisite power and authority to enter into and perform this Agreement,
(ii) the execution and delivery of this Agreement by the Series A Stockholder
and the consummation by such stockholder of the transactions contemplated
hereby have been duly authorized (if applicable) by all necessary corporate or
partnership action, and (iii) this Agreement constitutes a valid and binding
obligation of the Series A Stockholder enforceable against the Series A
Stockholder in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable
principals of general application.
(b) No Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the Series A Stockholder of the transactions
contemplated hereby do not and will not (i) result in a violation of (if
applicable) the Series A Stockholder's charter documents or By-Laws,
(ii) conflict with any agreement, indenture or instrument to which the Series
A Stockholder is a party, or (iii) result in a violation of any law, rule or
regulation, or any order, judgment or decree of any court or governmental
agency applicable to the Series A Stockholder (except for such conflicts,
defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a material
adverse effect on the Series A Stockholder). The Series A Stockholder is not
required to obtain any consent or authorization of any governmental agency in
order for such stockholder to perform such stockholder's obligations under
this Agreement. The data to be provided by the Series A Stockholder in
connection with registering Registerable Securities (as hereinafter defined)
under the Securities Act of 1933, as amended (the "Act"), will be true and
accurate in all material respects.
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(c) Accredited Investor. The Series A Stockholder is an accredited
investor as defined in Rule 501 promulgated under the Act. The Series A
Stockholder has such knowledge and experience in financial and business
matters in general, and investments in particular, so that the Series A
Stockholder is able to evaluate the merits and risks of the transactions
contemplated under this Agreement and to protect such stockholder's own
interests in connection with such stockholder's investment in the Series A
Stock.
(d) Information. The Series A Stockholder acknowledges (but without
limiting the effect of Ramtron's representations and warranties contained
herein), that such stockholder has received such information as such
stockholder considers necessary or appropriate for deciding whether to execute
this Agreement.
(e) Rule 144. The Series A Stockholder understands that there is no
public trading market for Series A Stock, that none is expected to develop,
and that shares of the Series A Stock must be held indefinitely unless such
shares or securities into which the shares of Series A Stock are converted are
registered under the Act or an exemption from registration is available. The
Series A Stockholder has been advised or is aware of the provisions of Rule
144 promulgated under the Act.
6. Covenants of Ramtron. Ramtron covenants and agrees as follows:
(a) Ramtron shall use its best efforts and shall act in good faith to
cause to occur all conditions to Closing which are in Ramtron's control.
(b) Ramtron shall file with the Delaware Secretary of State on the
Closing Date the Certificate of Amendment in substance and form of Exhibit A,
and immediately thereafter, Ramtron also shall file with the Delaware
Secretary of State a second certificate of amendment to its Certificate of
Incorporation effecting the 1:5 reverse stock split pursuant to Proposal 1B
approved on July 20, 1999, by Ramtron's common stockholders.
(c) Ramtron acknowledges that irreparable damage would occur in the event
that the conversion rights provided for herein and in the Certificate of
Amendment were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Series A Stockholders
shall be entitled to an injunction or injunctions to prevent or cure breaches
of the conversion provisions of this Agreement and of the Certificate of
Amendment to enforce specifically the terms and provisions hereof and thereof,
this being in addition to any other remedy to which they may be entitled by
law or equity.
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(d) Ramtron shall file one or more registration statements as provided
in, and comply with its obligations undertaken in, Section 8.
(e) Ramtron shall determine the "fair market value of such fraction on
the date of conversion" provided in Section 6(j) of the Certificate of
Amendment in the same way as is provided in the penultimate sentence of
Article Fourth of the certificate of amendment, attached as Exhibit C to
Ramtron's Proxy Statement filed with the SEC on June 21, 1999, effecting the
1:5 reverse stock split, except that the "Effective Date" shall mean the day
on which the conversion is effected.
(f) Ramtron, for itself, and for its predecessors, successors, assigns,
subsidiaries, affiliates, officers, directors, shareholders and agents fully
and unconditionally releases, discharges and covenants to hold harmless each
Series A Stockholder and each of their successors, assigns, subsidiaries,
affiliates, officers, directors, shareholders and agents from any and all
causes of action, including without limitation claims, demands, administrative
complaints, lawsuits, rights, judgments, liens, damages, debts and expenses
(including attorneys' fees and costs actually incurred), liabilities and
obligations of any kind and nature whatsoever, whether intentional or
negligent, known or unknown, suspected or unsuspected, in law or in equity,
individually or as part of a class action, including any and all known and
unknown, foreseen or unforeseen, injuries, damages and losses, arising from,
relating or attributable in any manner to the Investment Agreements, the
Certificate of Designation or the Series A Stock and occurring prior to the
Closing Date, except that the foregoing will not affect any rights arising
under this Agreement, the Certificate of Amendment or any other documents
executed and delivered in connection with this Agreement. The provisions of
any laws providing in substance that releases shall not extend to claims which
are unknown or unsuspected at the time, to the person executing such waiver or
release, are hereby expressly waived. Ramtron certifies that it has not
assigned or transferred, purported to assign or transfer, and will not assign
or transfer any matter herein released.
(g) During such period as any of the shares of Series A Stock is
outstanding, Ramtron will cause the Common Stock (or other securities into
which the shares of Series A Stock are convertible) to continue to be
registered under Section 12(b) or 12(g) of the Exchange Act, will comply in
all respects with its reporting and filing obligations under said act, will
comply with all requirements related to any registration statement filed
pursuant to this Agreement and will not take any action or file any document
(whether or not permitted by the Act or the Exchange Act or the rules
thereunder) to terminate or suspend such registration or to terminate or
suspend its reporting and filing obligations under said acts, except as
permitted herein. During the time that the Series A Stock is outstanding,
Ramtron will use commercially reasonable efforts to continue the listing or
trading of its Common Stock (or other securities into which the shares of
Series A Stock are convertible) on Nasdaq and will comply in all respects with
Ramtron's reporting, filing and other obligations under the bylaws or rules of
Nasdaq.
Page 27
(h) Ramtron represents and warrants that on the date hereof, and Ramtron
covenants that at the time of any conversion made pursuant to Section 6(a) of
the Certificate of Amendment or upon the issuance of all accrued and unpaid
dividends pursuant to Section 9(b) of this Agreement, Ramtron shall have
sufficient surplus, as required by Delaware law, to effect lawfully such
conversion or issuance.
7. Covenants of Series A Stockholders. Each Series A Stockholder severally,
and not jointly, covenants and agrees as follows:
(a) The Series A Stockholder shall use its best efforts and shall act in
good faith to cause to occur all conditions to Closing which are in the Series
A Stockholder's control.
(b) The Series A Stockholder shall not be entitled to convert any Series
A Stock into Common Stock of Ramtron if following conversion of such Series A
Stock, the converting Series A Stockholder and its affiliates (within the
meaning of the Exchange Act) shall be the beneficial owners (as defined in
Rule 13d-3 under the Exchange Act) of 10% or more of Ramtron's Common Stock.
The provisions of this Section 7(b) cannot be amended.
(c) Upon the consummation of the transactions contemplated by this
Agreement, the Series A Stockholder acknowledges and agrees that Ramtron has
no obligation to honor any conversion requests except under the Certificate of
Amendment.
(d) Upon the consummation of the transactions contemplated by this
Agreement, the Series A Stockholder for itself, himself or herself and for
such stockholder's predecessors, successors, assigns, subsidiaries,
affiliates, officers, directors, shareholders and agents fully and
unconditionally releases, discharges and covenants to hold harmless Ramtron
and its successors, assigns, subsidiaries, affiliates, officers, directors,
shareholders and agents from any and all causes of action, including without
limitation claims, demands, administrative complaints, lawsuits, rights,
judgments, liens, damages, debts and expenses (including attorneys' fees and
costs actually incurred), liabilities and obligations of any kind and nature
whatsoever, whether intentional or negligent, known or unknown, suspected or
unsuspected, in law or in equity, individually or as part of a class action,
including any and all known and unknown, foreseen or unforeseen, injuries,
damages and losses, arising from, relating or attributable in any manner to
the Investment Agreements, the Certificate of Designation or the Series A
Stock and occurring prior to the Closing Date, except that the foregoing will
not affect (i) the rights of Series A Stockholders to receive accrued but
unpaid dividends, or (ii) any rights arising under this Agreement, the
Certificate of Amendment or any other documents executed and delivered in
connection with this Agreement. The provisions of any laws providing in
substance that releases shall not extend to claims which are unknown or
unsuspected at the time, to the person executing such waiver or release, are
hereby expressly waived. Each Series A Stockholder certifies that such
stockholder has not assigned or transferred, purported to assign or transfer,
and will not assign or transfer any matter herein released.
Page 28
(e) If a Series A Stockholder, or any of its transferees, affiliates,
associates, stockholders, partners, members and other related parties, has
filed any type of legal action against Ramtron, such Series A Stockholder
agrees to dismiss such action with prejudice, or to deliver to Ramtron
appropriate documents to effect such dismissal with prejudice, prior to or on
the Closing Date.
8. Covenant to Register Shares of Common Stock
(a) For purposes of this Section, the following definitions shall apply:
(i) The terms "register," "registered" and "registration" refer to a
registration under the Act, effected by preparing and filing a
registration statement in compliance with the Act, and the
declaration or ordering of effectiveness of such registration
statement or amendment thereto.
(ii) The term "Registrable Securities" means (A) the shares of common
stock issued or issuable upon conversion of Series A Stock, or
(B) any securities of Ramtron or securities of any successor
corporation issued pursuant to the provisions of the Certificate
of Amendment or issuable upon the conversion or exercise of any
warrant, right or other security that is issued as a dividend or
other distribution with respect to, or in exchange for or in
replacement of, Series A Stock, which in either case (I) have
not been resold pursuant to an effective registration statement
or pursuant to Rule 144 under the Act or (II) may not be resold
pursuant to Rule 144(k) under the Act. For purposes of this
Agreement, securities will be considered ineligible for resale
pursuant to Rule 144(k) under the Act unless Ramtron's transfer
agent has accepted an instruction from Ramtron specifying that
such securities are eligible for sale pursuant to Rule 144(k).
(iii) The term "holder of Registrable Securities" includes any person
who holds Shares of Series A Stock which are convertible into
Registrable Securities.
(b) (i) Ramtron shall, within ten (10) business days after the Closing
Date, file a registration statement on Form S-3, or if Form S-3
is not then available, another appropriate form, covering the
resale of all the Registrable Securities under Rule 415 and, to
the extent applicable, Rule 416. The number of shares of Common
Stock included in such registration statement shall be not less
than the aggregate number which would be issuable upon
conversion of all outstanding Shares of Series A Stock,
including Shares of Series A Stock subject to the Series A
placement agents' warrants, if all thereof were to be converted
at the conversion price specified in Section 6(a)(i) or (ii), as
Page 29
applicable, of the Certificate of Amendment. Ramtron shall use
its best efforts to cause such registration statement to become
effective by the 130th calendar day after the Closing Date (the
"Initial Registration"). In the event such registration is not
so declared effective or if at any time thereafter it does not
include all of the number of Registrable Securities which would
then be issuable upon conversion of the shares of Series A Stock
(or any successor security), any holder of Registrable Securities
shall have the right to require by notice in writing that Ramtron
register all or any part of the Registrable Securities held by
such holder (a "Demand Registration") and Ramtron shall thereupon
effect such registration in accordance herewith (which may
include adding such shares to an existing shelf registration).
The parties agree that if the holder of Registrable Securities
demands registration of less than all of the Registrable
Securities, Ramtron, at its option, may nevertheless file a
registration statement covering all of the Registrable
Securities. If such registration statement is declared effective
with respect to all Registrable Securities, then so long as
Ramtron is in compliance with its obligations under Sections
8(c)(i) through (v), the demand registration rights granted
pursuant to this Section 8(b)(i) shall not be applicable.
Ramtron shall provide holders of Registrable Securities
reasonable opportunity to review any such registration statement
or amendment or supplement thereto prior to the filing thereof.
(ii) Ramtron may suspend the effectiveness of any such registration
effected pursuant to this Section 8(b) in the event, and for such
period of time as, such a suspension is required by the rules and
regulations of the SEC, and may suspend use of the prospectus
included in the Registration Statement if such prospectus ceases
to meet the requirements of Section 10 of the Act. Ramtron will
immediately advise the holders of the registered securities of
any such suspension, and will use its best efforts to cause such
suspension to terminate at the earliest possible date. The Series
A Stockholder agrees that following receipt of any such notice,
and until such suspension is terminated, the Series A Stockholder
will not make use of the suspended prospectus and will make no
sales requiring delivery of such prospectus.
(c) Whenever required under this Section to effect the registration of
any Registrable Securities, including, without limitation, the Initial
Registration, Ramtron shall, as expeditiously as reasonably possible:
Page 30
(i) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts
to cause such registration to become effective as provided in
Section 8(b)(i), and keep such registration statement effective
for so long as any holder of Registrable Securities desires to
dispose of the securities covered by such registration
statement, or if earlier, until such Registrable Securities may
be sold under Rule 144(k) (provided that Ramtron's transfer
agent has accepted an instruction from Ramtron to such effect).
(ii) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in
connection with such registration statement as may be necessary
to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration
statement and notify the holders of the filing and the
effectiveness of such Registration Statement and any amendments
or supplements.
(iii) Furnish to each holder of Registrable Securities such numbers of
copies of a current prospectus conforming with the requirements
of the Act, copies of the registration statement, any amendment
or supplement thereto and any documents incorporated by
reference therein and such other documents as such holder of
Registrable Securities may reasonably require in order to
facilitate the disposition of Registrable Securities owned by
such holder of Registrable Securities.
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such securities or
"Blue Sky" laws of such jurisdictions as shall be reasonably
requested by a holder of Registrable Securities and keep such
registration or qualification effective as long as required to
permit sale of Registrable Securities thereunder, provided that
Ramtron shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or
jurisdictions.
(v) Notify each holder of Registrable Securities immediately of the
happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing, and use its best efforts to
promptly update and/or correct such prospectus.
Page 31
(vi) Upon request in writing to Ramtron, furnish to each holder of
Registrable Securities included therein (A) an opinion of
counsel to Ramtron covering compliance of the registration
statement, as to form with the requirements of the Act and the
rules thereunder, and covering the matters covered in the
opinion filed as an exhibit to the registration statement, and
(B) a "cold comfort" letter or letters of Ramtron's independent
public accountants in the form and of the substance customarily
supplied to underwriters in connection with a public offering.
(vii) Use its best efforts to list the Registrable Securities covered
by such registration statement with any national market or
securities exchange on which the Common Stock is then listed.
(viii) Make available for inspection by any holder of Registrable
Securities, upon request, all documents filed with the SEC
subsequent to the Closing Date and require Ramtron's
representatives to supply all information reasonably requested
by any holder of Registrable Securities in connection with such
registration statement.
(d) Each holder of Registrable Securities will furnish to Ramtron in
connection with any registration under this Section such information regarding
itself, the Registrable Securities and other securities of Ramtron held by it,
and the intended method of disposition of such securities as shall be
reasonably required to effect the registration of the Registrable Securities
held by such holder of Registrable Securities. Initially, and without
limitation of the preceding sentence, each holder of Registrable Securities
shall provide such data as of the Closing Date or a date not more than five
(5) days after the Closing Date. The intended method of disposition (Plan of
Distribution) of such securities as so provided by the holder of Registrable
Securities shall be included without alteration in the Registration Statement
covering the Registrable Securities and shall not be changed without written
consent of the holder of Registrable Securities.
(e) (i) Ramtron shall indemnify, defend and hold harmless each holder of
Registrable Securities which are included in the registration
statement pursuant to the provisions of Section 8(b) (each, a
"Selling Shareholder") and each of its officers, directors,
employees, agents, partners or controlling persons (within the
meaning of the Act) (each, for purposes of this Section 8(e)(i),
an "indemnified party") from and against, and shall reimburse
such indemnified party with respect to, any and all claims,
suits, demands, causes of action, losses, damages, liabilities,
costs or expenses ("Liabilities") to which such indemnified
party may become subject under the Act or otherwise, arising
from or relating to (A) any untrue statement or alleged untrue
statement of any material fact contained in such registration
Page 32
statement, any prospectus contained therein or any amendment or
supplement thereto, or (B) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided,
however, that Ramtron shall not be liable in any such case to
the extent that any such Liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any preliminary prospectus if (A) a
Selling Shareholder under an obligation to send or deliver a
copy of the prospectus with or prior to the delivery of written
confirmation of the sale of Registrable Securities to the person
asserting such Liability who purchased such Registrable
Securities which are the subject thereof from such Selling
Shareholder failed to do so and (B) the prospectus would have
corrected such untrue statement or omission; and, provided
further, that Ramtron shall not be liable in any such case to
the extent that any Liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission in the prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission corrected
in an amendment or supplement to the prospectus and if, having
previously been obligated to deliver such prospectus, the
Selling Shareholder thereafter failed to deliver such prospectus
as so amended or supplemented, prior to or concurrently with the
sale of Registrable Securities to the person asserting such
Liability who purchased such Registrable Securities which are
the subject thereof from such Selling Shareholder.
(ii) In the event of any registration under the Act of Registrable
Securities pursuant to Section 8(b), each holder of Registrable
Securities hereby severally agrees to indemnify, defend and hold
harmless Ramtron, and its officers, directors, employees,
agents, partners, or controlling persons (within the meaning of
the Act) (each, for purposes of this Section 8(e)(ii), an
"indemnified party") from and against, and shall reimburse such
indemnified party with respect to, any and all Liabilities to
which such indemnified party may become subject under the Act or
otherwise, arising from or relating to (A) any untrue statement
or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or (B) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading; provided that such holders of Registrable Securities
will be liable in any such case to the extent, and only to the
extent, that any such Liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, prospectus
or amendment or supplement thereto in reliance upon and in
conformity with written information furnished in an instrument
duly executed by such holder of Registrable Securities
specifically for use in the registration statement.
Page 33
(iii) Promptly after receipt by any indemnified party of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against another party
(the "indemnifying party") hereunder, notify such party in
writing thereof, but the omission so to notify shall not relieve
the indemnifying party from any Liability which it may have to
the indemnified party other than under this section and shall
only relieve it from any Liability which it may have to the
indemnified party under this section if and to the extent it is
actually prejudiced by such omission. In case any such action
shall be brought against any indemnified party and such
indemnified party shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled
to participate in and, to the extent it shall wish, to assume
and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from
the indemnifying party to the indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to the indemnified party under this
section for any legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof other
than reasonable costs of investigation and liaison with counsel
so selected; provided, however, that if the defendants in any
such action include both the indemnifying party and such
indemnified party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those
available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall
have the right to select a separate counsel and to assume such
legal defenses and otherwise to participate in the defense of
such action, with (subject to the following sentence) the
reasonable expenses and fees of such separate counsel and other
reasonable expenses related to such participation to be
reimbursed by the indemnifying party as incurred. If Ramtron is
the indemnifying party it shall pay the reasonable expenses and
fees of only one separate counsel whose selection is approved by
the largest group of similarly situated indemnified parties as
measured by the aggregate par value of such Registrable
Securities owned by such group. Any indemnified party who
chooses not to be represented by the foregoing separate counsel
shall be entitled, at its own expense, to be represented by
counsel of its own selection.
Page 34
(iv) If the indemnification provided for in this Section 8(e) is
unavailable or insufficient to hold harmless an indemnified
party, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other
hand in connection with statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to
this Section 8(e)(iv) were to be determined by pro rata
allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the
first sentence of this Section 8(e)(iv). The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section
8(e)(iv) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the
subject of this Section 8(e). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
Notwithstanding anything in this Section 8(e) to the contrary,
no indemnifying party (other than Ramtron) shall be required
pursuant to this Section 8(e) to indemnify for or contribute any
amount in excess of the proceeds received by such indemnifying
party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the
indemnified parties relate.
(f) (i) With respect to the inclusion of Registrable Securities in a
registration statement pursuant to Section 8(b), all fees, costs
and expenses of and incidental to such registration, inclusion
and public offering shall be borne by Ramtron; provided,
however, that any Selling Shareholders participating in such
registration shall bear their own share of the underwriting
discounts and commissions, and transfer taxes if any, incurred
by them in connection with such registration.
Page 35
(ii) Except as provided in Section 9(c) of this Agreement, the fees,
costs and expenses of registration to be borne by Ramtron as
provided in this Section 8(f) shall include, without limitation,
all registration, filing and Nasdaq fees, printing expenses,
fees and disbursements of counsel and accountants for Ramtron,
and all legal fees and disbursements and other expenses of
complying with state securities or Blue Sky laws of any
jurisdiction or jurisdictions in which securities to be offered
are to be registered and qualified. Subject to appropriate
agreements as to confidentiality, and upon reasonable advance
notice from the holder or its counsel, Ramtron shall make
available to counsel for the holders of Registrable Securities
its documents and personnel for due diligence purposes. Fees
and disbursements of counsel and accountants for the Selling
Shareholders shall be borne by the respective Selling
Shareholders. Nothing herein shall require Ramtron to postpone
filing the registration statement or delay its effectiveness.
(g) The rights to cause Ramtron to register all or any portion of
Registrable Securities pursuant to this Section may be assigned by a holder of
Registrable Securities to a transferee or assignee of all or a portion equal
to 20% or more, in the aggregate, of its Shares of Series A Stock or the
Registrable Securities derived from such Shares of Series A Stock. Any
transferee asserting registration rights hereunder shall agree to be bound by
the applicable provisions of this Agreement.
(h) From and after the date of this Agreement, Ramtron shall not agree to
allow any other holders of any securities of Ramtron (except the DFA
Stockholders) to include any of their securities in any registration statement
filed by Ramtron pursuant to Section 8(b) unless such inclusion will not
reduce the amount of the Registrable Securities included therein.
9. Specific Covenants
(a) Conversion Requests. Ramtron and each Series A Stockholder agree
that upon filing of the Certificate of Amendment all conversion requests with
respect to Series A Stock made under the terms of the prior Certificate of
Designation will be deemed withdrawn and Ramtron will honor conversion
requests only under the terms of the Certificate of Amendment.
(b) Accrued Dividends. On the Closing Date, Ramtron shall pay all
accrued and unpaid dividends on the shares of Series A Stock outstanding on
the Closing Date. Ramtron and the Series A Stockholders acknowledge that the
shares of Series A Stock issued on the Closing Date as dividends shall be
entitled to the rights and benefits of the Certificate of Amendment.
(c) Fees. Ramtron agrees to pay the fees and expenses of Xxxxx & Xxxxxxx
relating to the negotiation and consummation of the transactions contemplated
in this Agreement, including any amounts related to the registration of Common
Stock.
Page 36
(d) Issue Taxes. Ramtron shall pay any and all issue and other taxes,
excluding any income, franchise or similar taxes, that may be payable in
respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Stock pursuant to the Certificate of Amendment; provided,
however, that Ramtron shall not be obliged to pay any transfer taxes resulting
from any transfer requested by any holder in connection with any such
conversion.
10. Miscellaneous.
(a) Successors and Assigns. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
(b) Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware, without reference to
principles of conflict of laws or choice of laws.
(c) Consent to Jurisdiction. Ramtron and each Series A Stockholder
(i) hereby irrevocably submit to the exclusive jurisdiction of either the
United States District Court for the Southern District of New York and the
state courts for the State of New York or the United States District Court for
the District of Delaware and the state courts for the State of Delaware for
the purposes of any suit, action or proceeding arising out of or relating to
this Agreement and (ii) hereby waive, and agree not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in
an inconvenient forum or that the venue of the suit, action or proceeding is
improper. Ramtron and each of the Series A Stockholders consent to process
being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address in effect for notices to it under this Agreement
and agree that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this paragraph shall affect or limit
any right to serve process in any other manner permitted by law.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together, whether bearing original or facsimile signatures, will constitute
one and the same instrument.
(e) Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules will, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits attached hereto, all of which
exhibits are incorporated herein by this reference.
Page 37
(f) Notices. Any notice required or permitted under this Agreement shall
be given in writing, shall be effective when received, and shall in any event
be deemed received and effectively given upon personal delivery to the party
to be notified or three (3) business days after deposit with the United States
Post Office, by registered or certified mail, postage prepaid, or one (1)
business day after deposit with a nationally recognized courier service such
as Federal Express for next business day delivery under circumstances in which
such service guarantees next business day delivery, or one (1) business day
after facsimile with copy delivered by registered or certified mail, in any
case, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof or at such other address
as a Series A Stockholder or Ramtron may designate by giving at least ten (10)
days advance written notice pursuant to this Section 10(f).
(g) Amendments and Waivers. The provisions of this Agreement may not be
amended without the written consent of Ramtron and the Series A Stockholders,
which may be withheld in the sole and absolute discretion of such parties.
Any amendment or waiver effected in accordance with this Section 10(g) will be
binding upon Ramtron, the Series A Stockholders and their respective
successors and assigns.
(h) Severability. If any provision of this Agreement is held to be
unenforceable under applicable law, such provision will be excluded from this
Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its
terms.
(i) Entire Agreement. Except for the Supplemental Exchange Rights
Agreement, this Agreement, together with all exhibits hereto, constitutes the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between the parties with
respect to the subject matter hereof.
(j) Further Assurances. From and after the date of this Agreement upon
the request of Ramtron or any Series A Stockholder, Ramtron and the Series A
Stockholders will execute and deliver such instruments, documents or other
writings, and take such other actions, as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement, provided that Ramtron shall pay all filing fees,
recording fees, documentary stamp taxes and similar fees and taxes relating to
such instruments, documents or other writings.
(k) Meaning of Include and Including. Whenever in this Agreement the word
"include" or "including" is used, it shall be deemed to mean "include, without
limitation" or "including, without limitation," as the case may be, and the
language following "include" or "including" shall not be deemed to set forth
an exhaustive list.
Page 38
(l) Enforcement. Ramtron will pay the costs of the Series A Stockholders
in connection with the enforcement of this Agreement and the other documents
and agreements executed and delivered in connection with this Agreement.
(m) Survival. The agreements and covenants set forth in Section 6, 7, 8,
9 and 10 will survive the Closing and the representations and warranties of
Ramtron and the Series A Stockholders made in Sections 4 and 5, respectively,
will survive through the statute of limitations period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. Xxxxx Xxxxx
----------------------
L. Xxxxx Xxxxx
Chairman and Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
ACCEPTED AND AGREED:
THE FOLLOWING SERIES A PREFERRED STOCKHOLDERS:
/S/ Xxxxxxxxx X. Xxxxxxxx
-------------------------
Xx. Xxxxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Holder of 20 Shares of Series A Preferred Stock
/S/ Xxxxxx Xxxxxx
------------------------
Xx. Xxxxxx Xxxxxx
0 Xxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Holder of 15 Shares of Series A Preferred Stock
/S/ Xxxxxx X. Xxxxxxx, COO
--------------------------
Xxxxx Xxxxxxxx Non-Traditional
Investments, L.P.
Xx. Xxxxxxx Xxxxxx
By:-----------------------
0000 Xxxxxx xx xxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Holder of 332 Shares of Series A Preferred Stock
Page 39
------------------------
CC Investments, LDC
Xx. Xxxx Xxxxxxxxx
By: ----------------------
Castle Creek Partners
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Holder of ------ Shares of Series A Preferred Stock
/S/ Xxxx X. Xxxxxx
------------------------
Anvil Investment Partners, L.P.
Xx. Xxxx X. Xxxxxx
By: ---------------------
000 Xxxxxxxx Xxxx., 00xx
Xxxxx Xxxxxx, XX 00000
Holder of 88 Shares of Series A Preferred Stock
------------------------
Xxxxxxxxxx X. Xxxxxx Trust Dated 6/8/93
Xx. Xxxxxxxxxx X. Xxxxxx, Trustee
By: --------------------
P.O. Box 9248
00000 Xxxxx Xxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
Holder of ------ Shares of Series A Preferred Stock
/S/ Xxxxxxx X. Xxxxxxx
------------------------
Deere Park Capital Management, LLC
Xx. Xxxxxxx X. Xxxxxxx
By:----------------------
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Holder of 2,450 Shares of Series A Preferred Stock
/S/ Xxxx X. Xxxxx, Xx.
------------------------
Xx. Xxxx X. Xxxxx, Xx.
0000 X. Xxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Holder of 70 Shares of Series A Preferred Stock
/S/ Real X. Xxxxxxxxx
------------------------
Mr. Real X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Holder of 60 Shares of Series A Preferred Stock
Page 40
/S/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------
Fayerweather Associates
Xx. Xxxxxx X. Xxxxxxxx, Xx.
By:------------------------
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Holder of 158 Shares of Series A Preferred Stock
/S/ Xxxxxx X. Xxxxxxxx
------------------------
Xx. Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Holder of 20 Shares of Series A Preferred Stock
------------------------
Mr. Xxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Holder of ------ Shares of Series A Preferred Stock
/S/ Xxxxxxxx Xxxxxx
------------------------
JMG Capital Partners, L.P.
Xx. Xxxxxxxx Xxxxxx
By: ---------------------
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Holder of 300 Shares of Series A Preferred Stock
/S/ Xxx Xxxxxxxxx
------------------------
KEYWAY Investments, Ltd.
Xx. Xxx Xxxxxxxxx
By: ----------------------
00 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxx xx Xxx 0X0 0XX
Xxxxxx Xxxxxxx
and Xx. Xxxxxxx X. Xxxxxx
Mr. Xxxxxx Xxxxxx
Holder of 800 Shares of Series A Preferred Stock
/S/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------
Laredo Capital Partners
Xx. Xxxxxxxx X. Xxxxxxxxxx
By: ----------------------
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Holder of 40 Shares of Series A Preferred Stock
Page 41
/S/ Xxxxxxxx Xxxxxx & Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxxx Xxxxxx & Xxxxxxx Xxxxxx, X.X.
00 Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Holder of 18 Shares of Series A Preferred Stock
/S/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xx. Xxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Holder of 50 Shares of Series A Preferred Stock
/S/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------
LICAP Partners
Xx. Xxxxxxxx X. Xxxxxxxxxx
By: --------------------------
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Holder of 70 Shares of Series A Preferred Stock
/S/ Xxxx X. Xxxxx
------------------------
Xx. Xxxx X. Xxxxx
0000 Xxxxxxx Xxx, #000
Xxxxx Xxxxxx, XX 00000
Holder of 13 Shares of Series A Preferred Stock
------------------------
Xx. Xxxxxxx Xxxxx Shine
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Holder of ------- Shares of Series A Preferred Stock
/S/ Xxxxx X. Xxxxxx
------------------------
Xx. Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx #0
Xxx Xxxxxxx, XX 00000
Holder of 8 Shares of Series A Preferred Stock
/S/ Xxxxxx X. Xxxxxxx, COO
------------------------
Offense Group Associates, L.P.
Xx. Xxxxxxx Xxxxxx
By: ----------------------
0000 Xxxxxx xx xxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Holder of 350 Shares of Series A Preferred Stock
Page 42
/S/ Xxxx Xxxxxxxx
------------------------
Xx. Xxxx Xxxxxxxx
0 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxxx, XX 00000
Holder of 68 Shares of Series A Preferred Stock
------------------------
Xx. Xxxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxxxx 000, Xxxxx 000
Xxxxxxxxxx, XX 00000
Holder of ------ Shares of Series A Preferred Stock
/S/ Xxxxxx X. Means
------------------------
Xx. Xxxxxx X. Means
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Holder of 32 Shares of Series A Preferred Stock
------------------------
Xx. Xxxxxx X. Xxxx
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Holder of ------ Shares of Series A Preferred Stock
------------------------
SIL Nominees, Ltd.
c/o Slome Capital Corporation
Xx. Xxxxx X. Xxxxx
By: ----------------------
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Holder of ------ Shares of Series A Preferred Stock
/S/ Xxxxxxx X. Xxxxxx
------------------------
Xx. Xxxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Holder of 18 Shares of Series A Preferred Stock
/S/ Xxxxxxxx Xxxxxx
------------------------
Triton Capital Holdings, Ltd.
Xx. Xxxxxxxx Xxxxxx
By: ----------------------
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Holder of 300 Shares of Series A Preferred Stock
/S/ Xxxx Xxxxxxx
------------------------
Xx. Xxxx Xxxxxxx
0000 Xxxxxxx Xxx
Xxxxxxxxx, XX 00000
Holder of 50 Shares of Series A Preferred Stock
Page 43
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
RAMTRON INTERNATIONAL CORPORATION
RAMTRON INTERNATIONAL CORPORATION (hereafter called the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, hereby certifies:
FIRST, that the Corporation's Board of Directors has duly adopted the
following resolution:
RESOLVED, that the Corporation's Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 Par
Value ("Certificate of Designation"), filed on February 12, 1998, with the
Secretary of State of the State of Delaware is hereby amended and restated in
its entirety to read as follows:
"1. Authorized Shares.
There shall be a series of shares of the Preferred Stock of the Corporation
designated "Series A Convertible Preferred Stock". The number of authorized
shares of such series shall be 29,000 and the rights and preferences of such
series (the "Series A Preferred") and the limitations or restrictions thereon,
shall be as set forth herein.
2. Dividends.
The holders of the Series A Preferred shall be entitled to receive cumulative
dividends at a rate equal to 11% per annum of the liquidation preference per
share per annum, payable semi-annually on December 31 and June 30, with the
first payment being payable on December 31, 1999, when and as declared by the
Board of Directors. Prior to the first anniversary of the date of filing of
this Certificate of Amendment (the "Closing Date"), all dividends shall be
paid in Series A Preferred. On and after the first anniversary of the Closing
Date, dividends may be paid, at the Corporation's option, on any dividend
payment date, either in cash or by the issuance of additional shares of Series
A Preferred (and payment of cash in lieu of fractional shares) having an
aggregate liquidation preference equal to the amount of such dividends. In
the event that on or after the first anniversary of the Closing Date,
dividends are paid in additional shares of Series A Preferred, the dividend
rate shall increase by 2% for such dividend payment period. In the event that
a registration statement is not effective within 130 days after the Closing
Date with respect to the conversion rights set forth in Section 6 and the cash
exchange rights set forth in Section 7, the Series A Preferred shall accrue
Page 44
dividends from and after the end of such 130 day period at a rate of 18% per
annum until such time as the registration statement is declared effective.
Dividends as provided by this Section 2 shall accrue on any given share from
the Closing Date, or from the date of original issuance of such share,
whichever is later, and shall accrue from day to day whether or not declared.
Dividends not theretofore paid shall be paid upon conversion of any shares of
the Series A Preferred and shares of Series A Preferred issued in payment of
such dividends shall be simultaneously converted into Common Stock together
with the shares on which such dividends have accrued. Dividends accrued in
accordance with the terms of the Series A Preferred prior to the Closing Date
shall not be affected by this Section 2.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of the Series A
Preferred shall be entitled to receive, prior and in preference to any
distribution of any assets of the Corporation to the holders of the Common
Stock or any other class or series of shares except any class or series which
is entitled to priority over the Series A Preferred, the amount of $1,000 per
share plus any accrued but unpaid dividends (the "Liquidation Preference").
(b) Subject to the last sentence of this Section 3(b), a consolidation or
merger of the Corporation with or into any other corporation or corporations,
or a sale of all or substantially all of the assets of the Corporation, shall,
at the option of the holders of the Series A Preferred, be deemed a
liquidation, dissolution or winding up within the meaning of this Section 3 if
the shares of stock of the Corporation (along with all derivative securities)
outstanding immediately prior to such transaction represent immediately after
such transaction less than a majority of the voting power of the surviving
corporation (or of the acquirer of the Corporation's assets in the case of a
sale of assets). Such option may be exercised by the vote or written consent
of holders of a majority of the Series A Preferred at any time within thirty
calendar days after written notice of the essential terms of such transaction
shall have been given to the holders of the Series A Preferred as provided in
Section 8 hereof. Such notice shall be given by the Corporation immediately
following determination of such essential terms. If such option is exercised,
the holders of the Series A Preferred shall be entitled to receive, in cash,
immediately upon the occurrence of such transaction, an amount per share equal
to the Liquidation Preference. This Section shall not apply to a business
combination in which substantially all the Common Stock of the Corporation is
converted into or exchanged for voting common stock of the corporation
surviving such business combination, if (i) such common stock of the surviving
corporation is listed and traded on The Nasdaq Stock Market or the New York
Stock Exchange, and (ii) the Board of Directors of the Corporation determines
in good faith that the conversion rights and other rights and preferences of
the Series A Preferred are preserved and not rendered of less value by the
terms of such business combination.
Page 45
4. Mandatory Redemption.
All of the Series A Preferred outstanding on July 31, 2002 shall be redeemed
by the Corporation at a redemption price equal to 100% of the Liquidation
Preference thereof plus, without duplication, accumulated and unpaid dividends
to the date of redemption.
5. Optional Redemption.
The Series A Preferred shall be redeemable, at the option of the Corporation
and subject to the consent of its lenders, in whole or in part, at any time on
or after July 31, 2000 at an amount equal to its Liquidation Preference plus,
without duplication, accumulated and unpaid dividends to the date of
redemption.
6. Conversion.
The holders of the Series A Preferred shall have optional conversion rights as
follows:
(a) Conversion Rights.
(i) At any time prior to 10 days after the Closing Date (the "Post-
Closing Date"), the Series A Preferred shall be exchangeable at the option of
the holder for shares of Common Stock at an exchange ratio of $.75 face value
of Series A Preferred per share of Common Stock plus accrued and unpaid
dividends to the date of conversion.
(ii) Each holder of record of Series A Preferred shares shall be
entitled to convert Series A Preferred into shares of Common Stock on or after
the Post-Closing Date at the conversion rate of 1,000 shares of Common Stock
per share of Series A Preferred (i.e., $1.00 per share of Common Stock) (such
rate of exchange, and the rate of exchange set forth in paragraph (i), as
applicable, being hereinafter referred to as the "Conversion Rate").
(b) Restriction on Right to Convert. A share of Series A Preferred shall
not be converted into Common Stock if following such conversion the holder
thereof together with affiliates of such holder would be the beneficial owners
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of 10% or
more of the Common Stock of the Corporation. A share which may not be
converted because of the preceding sentence will thereafter be convertible by
any holder if at the time such share is submitted for conversion the preceding
sentence is inapplicable.
Page 46
(c) Mechanics of Conversion. To convert shares of Series A Preferred
into shares of Common Stock, the holder shall give written notice to the
Corporation (which notice may be given by facsimile transmission) that such
holder elects to convert the same and shall state therein the number of shares
to be converted and the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. Promptly
thereafter the holder shall surrender the certificate or certificates
representing the shares to be converted, duly endorsed, at the office of the
Corporation or of any transfer agent for such shares, or at such other place
designated by the Corporation. The Corporation shall, immediately upon
receipt of such notice, issue and deliver to or upon the order of such holder,
against delivery of the certificates representing the shares which have been
converted, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled, and a certificate representing
the shares of Series A Preferred not so converted, if any. The Corporation
shall effect such issuance immediately and shall transmit the certificates by
messenger or overnight delivery service to reach the address designated by
such holder within three trading days after the receipt of such notice.
Notice of conversion may be given by a holder at any time of day up to 5:00
p.m. Los Angeles time, and such conversion shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Conversion Date"). The person or persons entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock at the close of business on the Conversion Date.
(d) Determination of Conversion Rate. In the event that the Corporation
shall declare or pay any dividend on the Common Stock payable in Common Stock
or in rights to acquire Common Stock, or shall effect a stock split or reverse
stock split, or a combination, consolidation or reclassification of the Common
Stock, then the Conversion Rate shall be proportionately decreased or
increased, as appropriate, to give effect to such event, and like adjustment
shall be made in any price per share specified elsewhere herein.
(e) Distributions. In the event the Corporation shall at any time or
from time to time make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in securities of the Corporation or any of its subsidiaries or other
property, other than cash dividends from earnings, then in each such event
provision shall be made so that the holders of Series A Preferred shall
receive, upon the conversion thereof, the securities or other property which
they would have received had they been the owners on the date of such event of
the number of shares of Common Stock issuable to them upon conversion.
(f) Certificates as to Adjustments. Upon the occurrence of any
adjustments or readjustment of the Conversion Rate pursuant to Section 6(d)
hereof, or any provision for distribution pursuant to Section 6(e) hereof, or
any adjustment of the cash per-share prices specified herein, the Corporation
at its expense shall promptly compute such adjustment, readjustment or
provision in accordance with the terms hereof and prepare and furnish to each
Page 47
holder of Series A Preferred a certificate setting forth such adjustment,
readjustment or provision and showing in detail the facts upon which such
adjustment, readjustment or provision is based. The Corporation shall, upon
the written request at any time of any holder of Series A Preferred, furnish
or cause to be furnished to such holder a like certificate prepared by the
Corporation setting forth (i) such adjustments and readjustments, and (ii) the
number of other securities and the amount, if any, of other property which at
the time would be received upon the conversion of Series A Preferred with
respect to each share of Common Stock received upon such conversion. If any
holder disputes the computation of such adjustment or provision the
Corporation shall cause independent public accountants selected by the
Corporation to verify and, if necessary, correct such computation.
(g) Notice of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend) or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional shares
of Common Stock, or any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall give notice to each holder of
Series A Preferred at least 10 days prior to such date specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution, security or right and the amount and character of such dividend,
distribution, security or right.
(h) Issue Taxes. The Corporation shall pay any and all issue and other
taxes, excluding any income, franchise or similar taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of
shares of Series A Preferred pursuant hereto; provided, however, that the
Corporation shall not be obligated to pay any transfer taxes resulting from
any transfer requested by any holder in connection with any such conversion.
(i) Reservation of Stock Issuable Upon Conversion. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series A
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in best efforts to
obtain the requisite shareholder approval as promptly as practicable.
Page 48
(j) Fractional Shares. No fractional shares shall be issued upon the
conversion of any share or shares of Series A Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Series A Preferred by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of a fraction of a share of Common
Stock, the Corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors of the Corporation).
(k) Reorganization or Merger. In case of any reorganization or any
reclassification of the capital stock of the Corporation or any consolidation
or merger of the Corporation with or into any other corporation or
corporations or a sale of all or substantially all of the assets of the
Corporation to any other person, and the holders of Series A Preferred do not
elect to treat such transaction as a liquidation, dissolution or winding up as
provided in Section 3, then, as part of such reorganization, consolidation,
merger or sale, provision shall be made so that each share of Series A
Preferred shall thereafter be convertible into the number of shares of stock
or other securities or property (including cash) to which a holder of the
number of shares of Common Stock deliverable upon conversion of such share of
Series A Preferred would have been entitled upon the record date of (or date
of, if no record date is fixed) such event and, in any case, appropriate
adjustment (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series A Preferred, to the end that
the provisions set forth herein shall thereafter be applicable, as nearly as
equivalent as is practicable, in relation to any shares of stock or the
securities or property (including cash) thereafter deliverable upon the
conversion of the shares of Series A Preferred. The Corporation shall have no
obligation to obtain the prior consent of the holders of the Series A
Preferred, individually or as a class, except as expressly provided herein or
as provided by applicable law.
7. Cash Exchange Rights.
(a) Exchange Rights. At any time prior to June 25, 1999, the Series A
Preferred shall be exchangeable at the option of a holder for cash in amount
per share equal to 50% of the face value of the Series A Preferred Share plus
all accrued but unpaid dividends on the Series A Preferred Share, up to an
aggregate amount of $6.4 million face value and accrued and unpaid dividends
to the date of exchange. If, in the judgment of the Board of Directors of the
Corporation, the Corporation's financial condition and results of operations
permit the Corporation to permit the exchange for cash of more than $6.4
million face value (plus accrued dividends) of the Series A Preferred, the
terms of the Series A Preferred will permit the exchange for cash of up to
$8.0 million face value (plus accrued and unpaid dividends) of the Series A
Preferred. To the extent that holders of Series A Preferred desire to
exchange in the aggregate a greater face value (plus accrued and unpaid
dividends) of the Series A Preferred than is permitted under the terms of the
Series A Preferred, Series A Preferred will be accepted for exchange by the
Corporation for cash on a pro rata basis based upon the aggregate face value
(plus accrued and unpaid dividends) of the Series A Preferred validly tendered
for exchange.
Page 49
(b) Mechanics of Exchange. To exercise the exchange right set forth in
Section 7(a), the holder shall give written notice to the Corporation (which
notice may be given by facsimile transmission) that such holder elects to
exercise such right and shall state therein the number of shares to be
converted and the name or names in which such holder wishes the payment to be
received. Promptly thereafter the holder shall surrender the certificate or
certificates representing the shares to be exchanged, duly endorsed, at the
office of the Corporation or of any transfer agent for such shares, or at such
other place designated by the Corporation. The Corporation shall, immediately
upon receipt of such notice, issue and deliver to or upon the order of such
holder, against delivery of the certificates representing the shares which
have been converted, a check for payment of the cash amount to which such
holder shall be entitled, and a certificate representing the shares of Series
A Preferred not so exchanged, if any. The Corporation shall effect such
payment immediately and shall transmit the check by messenger or overnight
delivery service to reach the address designated by such holder within three
trading days after the receipt of such notice. Notice of the exercise of
exchange rights may be given by a holder at any time of day up to 5:00 p.m.
Los Angeles time, and such exercise shall be deemed to have been made
immediately prior to the close of business on the date such notice of
conversion is given (the "Exchange Date"). The person or persons entitled to
receive payment upon such exchange shall be treated for all purposes as the
record holder or holders of such shares of Common Stock at the close of
business on the Exchange Date.
8. Notices.
Any notice to be given to the holders of the Series A Preferred shall be
(i) mailed by first class mail postage prepaid to each holder of Series A
Preferred at the address shown on the records of the Corporation for such
holder, (ii) transmitted by telecopy or facsimile transmission to any holder
which has supplied a telecopy or facsimile address to the Corporation, and
(iii) unless receipted for by telecopy or facsimile on the date such notice is
given, shall be transmitted by an overnight delivery service or courier
service for delivery at the address shown on the records of the Corporation
for such holder on the first business day following the date such notice is
given, or if delivery in one business day to such address cannot be effected
by such delivery service, then on the earliest day on which such delivery can
be made.
9. Registration Rights.
The corporation shall use its best efforts to file and cause to become
effective as of no later than 130 days after June 15th a registration
statement for Common Stock of the Corporation issuable upon exchange or
conversion of the Series A Preferred, to the extent such shares of Common
Stock are not then freely tradable under the federal securities laws.
Page 50
10. Restrictions and Limitations.
The Corporation shall not undertake the following actions without the consent
of the holders of a majority of the Series A Preferred: (i) modify its
Certificate of Incorporation or Bylaws so as to amend or change any of the
rights, preferences, or privileges of the Series A Preferred, (ii) authorize
or issue any other equity security senior to or ranking on parity with the
Series A Preferred, or (iii) pay any dividends in cash or property on, or
purchase or otherwise acquire for value, any Common Stock purchase or other
equity security of the Corporation either junior to or on a parity with the
Series A Preferred except from current or retained earnings or from the net
proceeds of sale of equity securities, except for purchases of Common Stock
from terminating or retiring employees pursuant to the terms of employee
benefit plans in an aggregate amount not greater than $1 million.
11. Voting Rights.
The Series A Preferred shall have no voting rights, except as otherwise
required by law and except in certain circumstances described herein,
including (i) amending certain rights of the holders of the Series A Preferred
and (ii) the issuance of any class of equity securities that ranks pari passu
with or senior to the Series A Preferred other than certain additional shares
of Series A Preferred.
12. Attorneys' Fees.
Any holder of Series A Preferred shall be entitled to recover from the
Corporation reasonable attorneys' fees and expenses incurred by such holder in
connection with enforcement by such holder of any obligation of the
Corporation hereunder, if such holder is the prevailing party in an action or
proceeding to compel such enforcement."
SECOND, that the proposed amendment has been duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware and that notice of the taking of such action by written consent has
been given as provided in Section 228 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Ramtron International Corporation has caused this
Certificate of Amendment to be executed by L. Xxxxx Xxxxx, its Chairman of the
Board and Chief Executive Officer, or by Xxxx X. Xxxxx, its President and
Chief Operating Officers, this XXX day of July 1999.
Ramtron International Corporation
By:
--------------------
Page 51
EXHIBIT B
DRAFT 7-28-88
=============
[Letterhead of Morris, Nichols, Arsht and Xxxxxxx]
August XXX, 1999
To the holders of Series A Convertible
Preferred Stock, par value $.01 per share
(the "Series A Preferred Stock") of Ramtron
International Corporation, a Delaware
corporation (the "Company") that have
executed the Preferred Stock Recapitalization
Agreement dated and made effective July 20,
1999 among the Company and such holders (the
"Preferred Stock Recapitalization Agreement")
c/o Foley & Lardner
[address]
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section 3(b) of the
Preferred Stock Recapitalization Agreement.
In connection with rendering this opinion, we have reviewed the Company's
certificate of incorporation, as amended to date, as filed with the Secretary
of State of the State of Delaware, including the Certificate of Amendment to
the Certificate of Incorporation of the Company filed today with the Secretary
of State of the State of Delaware (the "Certificate of Amendment") setting
forth certain amendments to the Certificate of Designation, Preferences,
Rights and Limitations of Series A Convertible Preferred Stock, $0.01 par
value, filed on February 12, 1998 with the Delaware Secretary of State (the
"Amendments") and copies of the Preferred Stock Recapitalization Agreement and
the Agreement dated July 30, 1999 among the Company and certain holders of the
Series A Preferred Stock (the "Cash Exchange Agreement") that have provided to
us by the Company. We have not reviewed any other agreements or documents of
or relating to the Company and we have assumed that nothing contained in any
such document that we have not reviewed is contrary to or inconsistent with
the opinions expressed herein. We have also assumed the due authorization,
execution and delivery of the Preferred Stock Recapitalization Agreement and
the Cash Exchange Agreement by each of the parties hereto and the due
authorization of the Amendments by all requisite corporate action of the
Company. Finally, we have assumed that the Board of Directors of the Company
satisfied its fiduciary duties in authorizing the Preferred Stock
Recapitalization Agreement and the Cash Exchange Agreement and in approving
the Amendments.
Page 52
Based upon and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that:
(1) the Amendments became effective today upon the filing of the Certificate
of Amendment and that, upon such filing, the powers, preferences and rights,
and the qualifications, limitations or restrictions of the Series A Preferred
Stock were amended as provided for in the Amendments: provided, however, that
we express no opinion with respect to the effectiveness of (A) the
obligations of the Company to pay dividends or redeem shares to the extent
that such provisions would require the Company to do so when and if funds are
not legally available therefor under the Delaware General Corporation Law (and
we note that this exception will apply, inter alia, to the following
paragraphs set forth in the Amendments, each of which purports to require the
Company to make payments to holders of the Series A Preferred Stock but does
not specifically refer to such payments as constituting dividends or payment
upon redemption: 3(b) (option to treat certain transactions as a liquidation,
dissolution or winding up), 6(a)(i) (to the extent a payment of accrued and
unpaid dividends is required), 6(e) (requiring, in some circumstances, the
"conversion" of shares for "property"), 6(h), 6(k) (requiring conversion for
"property" including cash in certain circumstances), 7(a) ("exchange" for
cash), 12 (to the extent such provision is valid)); (B) the penultimate
sentence of paragraph 2 of the Amendments and (C) paragraph 12. In addition,
we express no opinion with respect to how a court applying Delaware law would
interpret (A) the pro rata treatment of holders of shares of Series A Preferred
Stock pursuant to paragraph 7(a) of the Amendments, especially in light of the
requirement in Section 7(b) that the Company "immediately" issue and deliver
payment as provided for in that section and, further, we express no opinion
with respect to the effectiveness of the requirement of such pro rata treatment
if and to the extent such provision is interpreted as requiring pro rata
treatment on any basis other than the aggregation of all requests by the
holders of Series A Preferred Stock to exchange the Series A Preferred Stock;
(B) paragraph 3(b) of the Amendments, but we have assumed, for purposes of this
opinion, that such a court would interpret it to require the Company to redeem
shares of Series A Preferred Stock in connection with a "deemed" liquidation,
dissolution or winding up, on the terms provided for therein; and (C) the
phrase "plus accrued and unpaid dividends to the date of conversion" in
paragraph 6(a)(i) of the Amendments, but we have assumed a court applying
Delaware law would treat the phrase as a requirement that such amount of
dividends be added to the exchange ratio. Finally, the Amendments may be
limited by (i) bankruptcy, insolvency, receivership, fraudulent conveyance,
reorganization, moratorium, statutory lien or other laws, rules or regulations
of general application relating to or affecting the enforcement of creditors'
rights and remedies, as from time to time in effect and (ii) application of
equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
Page 53
(2) the Cash Exchange Agreement is a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency, receivership,
fraudulent conveyance, reorganization, moratorium, statutory lien or other
laws, rules or regulations of general application relating to or affecting the
enforcement of creditors' rights and remedies, as from time to time in effect
and (ii) application of equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
This opinion is being provided to you in connection with the transactions
provided for in the Preferred Stock Recapitalization Agreement and may not be
relied upon by any other person or for any other purpose.
Very truly yours,
Page 54
