Exhibit 4.23
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE
OFFERED FOR SALE, SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT
THERETO, OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER,
SALE OR TRANSFER.
Warrant to Purchase Issue Date: November 20, 2006
131,332 Shares
WARRANT TO PURCHASE COMMON STOCK
of
RAMTRON INTERNATIONAL CORPORATION
THIS CERTIFIES that X.X. Xxxxxxxxx, Towbin Xxxxx Xxxxxxxxx Investments
("Unterberg") or any subsequent holder hereof (the "Holder"), has the right
to purchase from RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation
(the "Company"), up to One Hundred Thirty-One Thousand Three Hundred Thirty-
Two (131,332) fully paid and nonassessable shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), subject to adjustment
as provided herein, at a price equal to the Exercise Price (as defined
below), at any time beginning on the date hereof (the "Issue Date") and
ending at 5:00 p.m., New York time, on March 28, 2008 (the "Expiration
Date"). This Warrant is being issued to the Holder pursuant to transfer
instructions provided Qimonda AG to the Company as a result of the Warrant
Purchase Agreement dated as of November 17, 2006, among Qimonda AG, X.X.
Xxxxxxxxx, Towbin Xxxxx Xxxxxxxxx Investment and Warrant Strategies Fund,
LLC.
1. Exercise.
(a) Right to Exercise; Exercise Price. The Holder shall have the right to
exercise this Warrant at any time and from time to time during the
period beginning on the Issue Date and ending on the Expiration Date as
to all or any part of the shares of Common Stock covered hereby (the
"Warrant Shares"). The "Exercise Price" payable by the Holder in
connection with the exercise of this Warrant shall be equal to $3.04
(subject to adjustment for the events specified in Section 6 below).
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(b) Exercise Notice. In order to exercise this Warrant, the Holder shall
send by facsimile transmission, at any time prior to 7:00 p.m., New York
time, on the Business Day on which the Holder wishes to effect such
exercise (the "Exercise Date"), to the Company and to its designated
transfer agent for the Common Stock (the "Transfer Agent") a copy of the
notice of exercise in the form attached hereto as Exhibit A (the
"Exercise Notice") stating the number of Warrant Shares as to which such
exercise applies and the calculation therefor. The Holder shall
thereafter deliver to the Company the original Exercise Notice, the
original Warrant and, in the case of a Cash Exercise (as defined below),
the Exercise Price. In the case of a dispute as to the calculation of
the Exercise Price or the number of Warrant Shares issuable hereunder
(including, without limitation, the calculation of any adjustment
pursuant to Section 6 below), the Company shall promptly issue to the
Holder the number of Warrant Shares that are not disputed and shall
submit the disputed calculations to the Company's independent accountant
of national recognition within two (2) Business Days following the date
on which the Exercise Notice is delivered to the Company. The Company
shall cause such accountant to calculate the Exercise Price and/or the
number of Warrant Shares issuable hereunder and to notify the Company
and the Holder of the results in writing no later than two (2) Business
Days following the day on which such accountant received the disputed
calculations (the "Dispute Procedure"). Such accountant's calculation
shall be deemed conclusive absent manifest error. The fees of any such
accountant shall be borne by the party whose calculations were most at
variance with those of such accountant.
(c) Holder of Record. The Holder shall, for all purposes, be deemed to have
become the holder of record of the Warrant Shares specified in an
Exercise Notice on the Exercise Date specified therein, irrespective of
the date of delivery of such Warrant Shares. Except as specifically
provided herein, nothing in this Warrant shall be construed as
conferring upon the Holder hereof any rights as a stockholder of the
Company prior to the Exercise Date.
(d) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall,
at the time that it delivers Warrant Shares to the Holder pursuant to
such exercise as provided herein, issue a new warrant, and deliver to
the Holder a certificate representing such new warrant, with terms
identical in all respects to this Warrant (except that such new warrant
shall be exercisable into the number of shares of Common Stock with
respect to which this Warrant shall remain unexercised); provided,
however, that the Holder shall be entitled to exercise all or any
portion of such new warrant at any time following the time at which this
Warrant is exercised, regardless of whether the Company has actually
issued such new warrant or delivered to the Holder a certificate
therefor.
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2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to paragraph 1 above, the Company shall, (A) in the case of a
Cashless Exercise (as defined below), no later than the close of business on
the third (3rd) Business Day following the Exercise Date set forth in such
Exercise Notice, (B) in the case of a Cash Exercise (as defined below) no
later than the close of business on the later to occur of (i) the third (3rd)
Business Day following the Exercise Date set forth in such Exercise Notice
and (ii) such later date on which the Company shall have received payment of
the Exercise Price, and (C) with respect to Warrant Shares which are the
subject of a Dispute Procedure, the close of business on the third (3rd)
Business Day following the determination made pursuant to paragraph 1(b) (the
"Delivery Date"), issue and deliver or caused to be delivered to the Holder
the number of Warrant Shares as shall be determined as provided herein. The
Company shall effect delivery of Warrant Shares to the Holder by, as long as
the Transfer Agent participates in the Depository Trust Company ("DTC") Fast
Automated Securities Transfer program ("FAST") and no legend is required to
appear on any physical certificate if issued,, crediting the account of the
Holder or its nominee at DTC (as specified in the applicable Exercise Notice)
with the number of Warrant Shares required to be delivered, no later than the
close of business on such Delivery Date. In the event that the Transfer Agent
is not a participant in FAST, or if the Warrant Shares are not otherwise
eligible for delivery through FAST, or if the Holder so specifies in an
Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the Holder
or its nominee physical certificates representing such Warrant Shares, no
later than the close of business on such Delivery Date. Warrant Shares
delivered to the Holder shall not contain any restrictive legend as long as
(x) the resale, transfer, pledge or other disposition of such shares is
covered by an effective registration statement, (y) such shares have been
publicly sold pursuant to Rule 144, or (z) such shares can be sold pursuant
to Rule 144(k), or any successor rule or provision.
3. Failure to Deliver Warrant Shares.
In the event that the Holder has not received certificates (without any
restrictive legend in the circumstances described in clause (x), (y) or (z)
of paragraph 2 above) representing the number of Warrant Shares specified in
the applicable Exercise Notice on or before the Delivery Date therefor (an
"Exercise Default"), the Holder shall have the following rights:
(a) the right to receive from the Corporation an amount equal to (i) "N/365"
multiplied by (ii) the aggregate Exercise Price of the Warrant Shares
which are the subject of such Exercise Default (such amount, the
"Exercise Default Amount") multiplied by (iii) twenty four percent
(24%), where "N" equals the number of days elapsed between the Delivery
Date and the date on which such Exercise Default has been cured; and, at
the Holder's option, either of the following:
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(b) (1) the right to receive from the Corporation an amount equal to (A)
the aggregate amount paid by the Holder for shares of Common Stock
purchased by the Holder in order to make delivery on a sale
effected in anticipation of receiving Warrant Shares upon such
exercise minus (B) the aggregate Exercise Price for such Warrant
Shares; or
(2) the right to require the Corporation to reinstate the Warrant by an
amount equal to the Exercise Default Amount and deem the exercise
resulting in such Exercise Default rescinded, null and void.
In addition to its right to receive the foregoing amounts, the Holder shall
have the right to pursue all other remedies available to it at law or in
equity (including, without limitation, a decree of specific performance
and/or injunctive relief). Amounts payable under this paragraph 3 shall be
paid to the Holder in immediately available funds on or before the fifth
(5th) Business Day following written notice from the Holder to the Company
specifying the amount owed to it by the Company pursuant to this paragraph 3.
4. Exercise Limitations.
Subject to the terms of the Rights Agreement, dated as of April 19, 2001,
between the Corporation and Citibank, N.A., in no event shall the Holder be
permitted to exercise this Warrant, or part thereof, with respect to Warrant
Shares in excess of the number of such shares, upon the issuance of which,
(x) the number of shares of Common Stock beneficially owned by the Holder
(other than shares which would otherwise be deemed beneficially owned except
for being subject to a limitation on conversion or exercise analogous to the
limitation contained in this paragraph 4) plus (y) the number of shares of
Common Stock issuable upon such exercise would be equal to or exceed 49.9% of
the number of shares of Common Stock then issued and outstanding. As used
herein, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and the rules
thereunder. To the extent that the limitation contained in this paragraph 4
applies, the submission of an Exercise Notice by the Holder shall be deemed
to be the Holder's representation that this Warrant is exercisable pursuant
to the terms hereof and the Company shall be entitled to rely on such
representation without making any further inquiry as to whether this
Section 4 applies. Nothing contained herein shall be deemed to restrict the
right of a Holder to exercise this Warrant, or part thereof, at such time as
such exercise will not violate the provisions of this Section 4.
5. Payment of the Exercise Price; Cashless Exercise. The Holder may pay the
Exercise Price in either of the following forms or, at the election of
Holder, a combination thereof:
(a) through a cash exercise (a "Cash Exercise") by delivering immediately
available funds, or
(b) if all of the Warrant Shares issuable hereunder are not then eligible
for resale pursuant to an effective Registration Statement, through a
cashless exercise (a "Cashless Exercise") by surrendering this Warrant
to the Company and noting on the Exercise Notice that the Holder wishes
to effect a Cashless Exercise, in which event the Company shall issue to
the Holder the number of Warrant Shares determined as follows:
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X = Y x (A-B)/A
where: X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised;
A = the Market Price (as defined in the Debenture) on the
Exercise Date; and
B = the Exercise Price.
For purposes of Rule 144, it is intended and acknowledged that the Warrant
Shares issued in a Cashless Exercise transaction shall be deemed to have been
acquired by the Holder, and the holding period for the Warrant Shares
required by Rule 144 shall be deemed to have been commenced, on the Issue
Date.
6. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 6. In the event
that any adjustment of the Exercise Price or the number of Warrant Shares as
required herein results in a fraction of a cent or fraction of a share, as
applicable, such Exercise Price or number of Warrant Shares shall be rounded
up or down to the nearest cent or share, as applicable.
(a) Adjustment of Exercise Price upon Certain Issuances of Common Stock. In
the event that the Company (A) issues Common Stock, whether upon the
exercise of rights, warrants, securities convertible or exercisable into
Common Stock ("Convertible Securities") or otherwise, at a price per
share that is lower than the Exercise Price then in effect, or (B)
issues Convertible Securities with a conversion price, exercise price or
exchange ratio, that is lower than the Exercise Price, the Exercise
Price shall be reduced to such lower price. In the event that the
Company (A) issues Common Stock, whether upon the exercise of
Convertible Securities or otherwise, or (B) issues Convertible
Securities with a conversion price, exercise price or exchange ratio, in
the case of either (A) or (B), that is lower than the Market Price (but
not lower than the Exercise Price, in which case the immediately
preceding sentence shall apply), the Exercise Price shall be reduced to
a price determined by multiplying the Exercise Price in effect
immediately prior to such issuance by a fraction, (i) the numerator of
which is an amount equal to the sum of (x) the number of shares of
outstanding (not including any shares of Common Stock held in the
treasury of the Company) immediately prior to the such issuance, plus
(y) the quotient of the aggregate consideration (if any) received by the
Company upon such issuance divided by the Market Price in effect
immediately prior to such issuance, and (ii) the denominator of which is
the total number of shares of Common Stock Deemed Outstanding
immediately after such issuance. "Common Stock Deemed Outstanding"
shall mean the number of shares of Common Stock actually outstanding
excluding any shares of Common Stock held in the treasury of the
Company, but which shall include, in the case where any such issuance
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comprises the issuance of Convertible Securities, the maximum total
number of shares of Common Stock issuable upon the exercise of the
Convertible Securities for which the adjustment is required. No further
adjustment of the Exercise Price shall be made pursuant to this
paragraph (a) upon the actual issuance of Common Stock pursuant to such
Convertible Securities, unless the price at which such issuance is
effected is less than the price used to make such adjustment, in which
case the Exercise Price shall be adjusted as though such lesser price
had been in effect as of the date on which such Convertible Securities
were issued.
(b) Subdivision or Combination of Common Stock. If the Company, at any time
after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its
shares of Common Stock into a greater number of shares, then after the
date of record for effecting such subdivision, the Exercise Price in
effect immediately prior to such subdivision will be proportionately
reduced. If the Company, at any time after the initial issuance of this
Warrant, combines (by reverse stock split, recapitalization,
reorganization, reclassification or otherwise) its shares of Common
Stock into a smaller number of shares, then, after the date of record
for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionally increased.
(c) Distributions. If the Company or any of its Subsidiaries shall at any
time distribute to holders of Common Stock (or to a holder, other than
the Company, of the common stock of any such Subsidiary) cash, evidences
of indebtedness or other securities or assets including any dividend or
distribution in shares of capital stock of a Subsidiary of the Company
(collectively, a "Distribution") then, in any such case, the Holder of
this Warrant shall be entitled to receive, at the same time as such
assets are received by a holder of such stock, at the option of the
Holder, (A) an amount and type of such Distribution as though the Holder
were a holder on the record date therefor of a number of shares of
Common Stock into which this Warrant is exercisable as of such record
date (such number of shares to be determined at the Exercise Price then
in effect and without regard to any limitation on exercise of this
Warrant that may exist pursuant to the terms hereof or otherwise) and
(B) a reduction in the Exercise Price as of the record date for such
Distribution, such reduction to be effected by reducing the Exercise
Price in effect on the Business Day immediately preceding such record
date by an amount equal to the fair market value of the assets so
distributed divided by the number of shares of Common Stock to which
such Distribution is made, such fair market value to be reasonably
determined in good faith by the Company's Board of Directors.
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(d) Major Transactions. In the event of a merger, consolidation, business
combination, tender offer, exchange of shares, recapitalization,
reorganization, redemption or other similar event, as a result of which
shares of Common Stock of the Company shall be changed into the same or
a different number of shares of the same or another class or classes of
stock or securities or other assets of the Company or another entity or
the Company shall sell all or substantially all of its assets (each of
the foregoing being a "Major Transaction"), then the holder of this
Warrant may, at its option, either (a) in the event that the Common
Stock remains outstanding or holders of Common Stock receive any common
stock or substantially similar equity interest, in each of the foregoing
cases which is publicly traded, retain this Warrant and this Warrant
shall continue to apply to such Common Stock or shall apply, as nearly
as practicable, to such other common stock or equity interest, as the
case may be, or (b) receive consideration, in exchange for this Warrant
upon the surrender thereof (without payment of any exercise price
hereunder), equal to the greater of, as determined in the sole
discretion of the Holder, (i) the number of shares of stock or
securities or property of the Company, or of the entity resulting from
such Major Transaction (the "Major Transaction Consideration"), to which
a holder of the number of shares of Common Stock delivered upon the
exercise of this Warrant (pursuant to the Cashless Exercise feature
hereof) would have been entitled upon such Major Transaction had the
Holder so exercised this Warrant (without regard to any limitations on
exercise herein or elsewhere contained) on the Trading Date immediately
preceding the public announcement of the transaction resulting in such
Major Transaction and had the Holder been the holder of record of such
Common Stock at the time of the consummation of such Major Transaction,
and (ii) cash paid by the Company in immediately available funds in an
amount equal to the product of the (x) Market Price (as defined in the
Debenture) calculated as of the date of the public announcement of the
transaction resulting in such Major Transaction, and (y) the maximum
number of Warrant Shares issuable to the Holder upon a Cashless Exercise
of the Warrant as of such date (without regard to any limitations on
exercise herein contained), and the Company shall make lawful provision
for the foregoing as a part of such Major Transaction.
(e) Adjustments; Additional Shares, Securities or Assets. In the event that
at any time, as a result of an adjustment made pursuant to this
paragraph 6, the Holder of this Warrant shall, upon exercise of this
Warrant, become entitled to receive securities or assets (other than
Common Stock) then, wherever appropriate, all references herein to
shares of Common Stock shall be deemed to refer to and include such
shares and/or other securities or assets; and thereafter the number of
such shares and/or other securities or assets shall be subject to
adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this paragraph 6. Any
adjustment made herein that results in a decrease in the Exercise Price
shall also effect a proportional increase in the number of shares of
Common Stock into which this Warrant is exercisable.
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(f) Exceptions to Adjustment of Exercise Price. No adjustment to the
Exercise Price will be made pursuant to this Section 6 (i) upon the
exercise of any warrants, options or convertible securities granted,
issued and outstanding on the date hereof (except in the case where the
price at which such warrant, option or security is exercised has
decreased since the date hereof as a result of a reset, anti-dilutive
adjustment or similar occurrence); (ii) upon the grant or exercise of
any stock or options which may hereafter be granted or exercised under
any employee benefit plan, stock option plan or restricted stock plan of
the Company now existing or to be implemented in the future, so long as
the issuance of such stock or options is approved by a majority of the
Board of Directors of the Company; (iii) upon the exercise of this
Warrant or any portion thereof by any holder; (iv) upon the issuance of
securities pursuant to a firm-commitment, fixed-price underwritten
offering; and (v) upon the issuance of securities in connection with a
strategic investment made by the Company or a third party, the primary
purpose of which is not the raising of equity capital; provided, that
any and all such issuances do not exceed, in the aggregate, five percent
(5%) of the Common Stock outstanding as of the Issue Date.
Notwithstanding the foregoing, no adjustment to the Exercise Price shall
be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in such price; provided, however, that any
adjustments to the Exercise Price by reason of this clause that are not
made shall be carried forward and taken into account in any subsequent
adjustment of the Exercise Price that is required to be made under this
Warrant.
7. Fractional Interests.
No fractional shares or scrip representing fractional shares shall be
issuable upon the exercise of this Warrant, but on exercise of this Warrant,
the Holder hereof may purchase only a whole number of shares of Common Stock.
If, on exercise of this Warrant, the Holder hereof would be entitled to a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, such fractional share shall be disregarded and the number of
shares of Common Stock issuable upon exercise shall be rounded up or down to
the nearest whole number of shares of Common Stock.
8. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose of this
Warrant, in whole or in part, as long as such sale or other disposition is
made in the pursuant to an effective registration statement or an exemption
to the registration requirements of the Securities Act. Upon such transfer
or other disposition, the Holder shall deliver a written notice to the
Company, substantially in the form of the Transfer Notice attached hereto as
Exhibit B (the "Transfer Notice"), indicating the person or persons to whom
this Warrant shall be transferred and, if less than all of this Warrant is
transferred, the number of Warrant Shares to be covered by the part of this
Warrant to be transferred to each such person. Within three (3) Business Days
of receiving a Transfer Notice and the original of this Warrant, the Company
shall deliver to the each transferee designated by the Holder a Warrant or
Warrants of like tenor and terms for the appropriate number of Warrant Shares
and, if less than all this Warrant is transferred, shall deliver to the
Holder a Warrant for the remaining number of Warrant Shares.
Page-8
9. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the Holder of
this Warrant and nothing in this Warrant shall be construed to confer upon
any person other than the Holder of this Warrant any legal or equitable
right, remedy or claim hereunder.
10. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction)
of indemnity reasonably satisfactory to the Company, and upon surrender of
this Warrant, if mutilated, the Company shall execute and deliver a new
Warrant of like tenor and date.
11. Notice or Demands.
Any notice, demand or request required or permitted to be given by the
Company or the Holder pursuant to the terms of this Warrant shall be in
writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that
is not a Business Day, in which case such delivery will be deemed to be made
on the next succeeding Business Day and (ii) on the next Business Day after
timely delivery to an overnight courier, addressed as follows:
If to the Company:
Ramtron International Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx Day
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. St. Clair, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to the Holder, to such address as shall be designated by the Holder in
writing to the Company.
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12. Applicable Law.
This Warrant is issued under and shall for all purposes be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within the State of New York.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the 20th
day of November 2006.
RAMTRON INTERNATIONAL CORPORATION
/s/ Xxxx X. Xxxxxx
---------------------------------
By: Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
Page-10
EXHIBIT A to WARRANT
EXERCISE NOTICE
The undersigned Holder hereby irrevocably exercises the right to purchase
----------------- of the shares of Common Stock ("Warrant Shares") of RAMTRON
INTERNATIONAL CORPORATION evidenced by the attached Warrant (the "Warrant").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Warrant.
1. Form of Exercise Price. The Holder intends that payment of the Exercise
Price shall be made as:
------ a Cash Exercise with respect to ---------------- Warrant Shares;
and/or
------ a Cashless Exercise with respect to ------------------ Warrant
Shares, as permitted by Section 5(b) of the attached Warrant.
2. Payment of Exercise Price. In the event that the Holder has elected a
Cash Exercise with respect to some or all of the Warrant Shares to be issued
pursuant hereto, the Holder shall pay the sum of $----------------- to the
Company in accordance with the terms of the Warrant.
Date:
------------------------------------
Name of Registered Holder
By: -------------------------------
Name:
Title:
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EXHIBIT B to WARRANT
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby
sells, assigns and transfers unto the person or persons named below the right
to purchase ----------- shares of the Common Stock of RAMTRON INTERNATIONAL
CORPORATION evidenced by the attached Warrant.
Date: ------------------------
-------------------------------
Name of Registered Holder
By: --------------------------
Name:
Title:
Transferee Name and Address:
----------------------------
----------------------------
----------------------------
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