Exhibit 10.2
AGREEMENT TO PAY-OFF THE DEBENTURE
THIS AGREEMENT TO PAY-OFF THE DEBENTURE (this "Agreement") is effective as of
July 1, 2005, by and between INFINEON TECHNOLOGIES AG, a German stock
corporation ("Infineon"), and RAMTRON INTERNATIONAL CORPORATION, a Delaware
corporation (the "Company").
WITNESSETH
WHEREAS, Infineon and the Company entered into a Securities Purchase
Agreement dated as of March 14, 2002 (as amended, the "Securities Purchase
Agreement"), pursuant to which the Company issued to Infineon a 5% Secured
Convertible Debenture (the "Debenture");
WHEREAS, Infineon and the Company entered into a Waiver Agreement dated as of
August 18, 2003 and an Amendment to Security Agreement and Release of Certain
Intellectual Property dated as of March 30, 2004, pursuant to which certain
payments were made by the Company to Infineon as reductions of the principal
amount of the Debenture, such that the outstanding principal amount of the
Debenture as of the date hereof is US$1,560,000.00;
WHEREAS, the Company wishes to pay-off all of the amounts remaining due and
to become due to Infineon under the Debenture and Infineon wishes to accept
such pay-off, on the terms set forth herein, in satisfaction of all
obligations under the Debentures, the Securities Purchase Agreement and the
Transaction Documents (as defined in the Securities Purchase Agreement),
except as set forth herein;
WHEREAS, the Company has also entered into the Joint Investor Securities
Purchase Agreement (as defined in the Securities Purchase Agreement) with
other investors pursuant to which such investors were issued the Joint
Investor Debentures (as defined in the Securities Purchase Agreement) and the
Joint Investor Warrants (as defined in the Securities Purchase Agreement),
and the Company wishes to pay off all amounts due and to become due under the
Joint Investor Debentures concurrently with the pay-off of the Debenture
pursuant to the terms hereof;
WHEREAS, pursuant to Section 7.11 of the Securities Purchase Agreement, in
the event that the Company amends the Joint Investor Securities Purchase
Agreement, the Joint Investor Debentures or the Joint Investor Warrants or
otherwise modifies or changes any of the rights thereunder, Infineon has the
right to elect to receive the benefit of such amendment, modification or
change;
WHEREAS, Infineon wishes to waive any of its rights, and any obligation of
the Company, under Section 7.11 of the Securities Purchase Agreement in
connection with the Company's pay-off of all amounts due and to become due
under the Joint Investor Debentures concurrently with the pay-off of the
Debenture pursuant to the terms hereof;
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WHEREAS, the Company has granted to Infineon as security for its obligations
under the Debenture a security interest in certain collateral pursuant to a
Security Agreement dated as of March 28, 2002 (as amended, the "Security
Agreement"); and
WHEREAS, the parties wish to provide for the release of the security under
the Security Agreement upon pay-off of the Debenture;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and agreements herein contained, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Securities Purchase
Agreement.
2. Pay-off of Debenture. The Company agrees to pay, and Infineon agrees to
accept, the amount set out in Section 3 hereunder, as full pay-off of
Infineon's entitlement to any amounts due or owed under the Debenture.
3. Amounts to be Paid. The amount required to be paid to Infineon as full
pay-off of all amounts due and to become due under the Debenture is
US$1,696,553.42, ("Payoff Amount"), which represents the aggregate principal,
and the amount of any future interest payments which would have become due if
the Debenture were repaid on its Maturity Date. The Payoff Amount shall be
paid to Infineon on the effective date of this Agreement by wire transfer of
funds to the U.S. bank account designated by Infineon prior to the date of
this Agreement.
4. Acknowledgement of Early Repayment. Infineon acknowledges and agrees
that it has independently determined that the Payoff Amount is reasonable
consideration for early prepayment of the Debenture.
5. Satisfaction of Rights under the Transaction Documents. Infineon
acknowledges that payment of the Payoff Amount to Infineon provided for in
Section 3 hereunder shall be in full satisfaction of Infineon's rights under
the Debenture and the Transaction Documents to which it is a party, except
for (a) the Warrant, (b) to the extent provided in the Warrant, the
applicable defined terms in Section 1.2 of the Securities Purchase Agreement,
(c) with respect to any modifications, changes or amendments to Joint
Investor Warrants, Section 7.11 of the Securities Purchase Agreement, (d) the
definition of "Market Price" in the Debenture, and (e) Amendment No. 1,
provided that the definition of "Registrable Securities" contained therein
shall not include Conversion Shares or any shares of capital stock issued in
respect of Conversion Shares.
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6. Waiver. Infineon hereby waives (a) any and all of its rights to object
to a prepayment which is not in accordance with the original terms of the
Debenture and the Transaction Documents to which it is a party, and (b) any
of its rights, and any obligation of the Company, under Section 7.11 of the
Securities Purchase Agreement in connection with the Company's pay-off of all
amounts due and to become due under the Joint Investor Debentures
concurrently with the pay-off of the Debenture pursuant to the terms hereof.
In no event shall the Company pay-off all amounts due and to become due under
the Joint Investor Debentures without concurrently paying the Payoff Amount
to Infineon pursuant to this Agreement.
7. Termination of Transaction Documents. Infineon further acknowledges and
confirms that, upon its receipt of the Payoff Amount, (a) all amounts due and
payable by the Company to Infineon under the Debenture and the Transaction
Documents to which it is a party have been paid and satisfied in full as of
the date of the payment of the Payoff Amount; (b) all obligations of the
Company under the Debenture and the Transaction Documents to which it is a
party shall be deemed fulfilled; and (c) its Debenture and the Transaction
Documents to which it is a party shall be deemed terminated and of no further
force or effect, except, in each case, for (AA) the Warrant, (BB) to the
extent provided in the Warrant, the applicable defined terms in Section 1.2
of the Securities Purchase Agreement, (CC) with respect to any modifications,
changes or amendments to Joint Investor Warrants, Section 7.11 of the
Securities Purchase Agreement, (DD) the definition of "Market Price" in the
Debenture, and (EE) Amendment No. 1, provided that the definition of
"Registrable Securities" contained therein shall not include Conversion
Shares or any shares of capital stock issued in respect of Conversion Shares.
8. Release of Liens. Infineon, upon its receipt of the Payoff Amount shall
(a) immediately discharge its lien on, charge over and security interest in
any assets of the Company, and all other collateral created under the
Security Agreement, and take all action necessary on the part of Infineon to
release the lien on the assets of the Company granted pursuant to the
Security Agreement and any financing statements or other filings related
thereto, and (b) grant, reassign, transfer, set over and convey by quitclaim
to the Company all of Infineon's right, title and interest in the Collateral
(as defined in the Security Agreement). Infineon further agrees, at the
Company's sole cost and expense, to execute and/or deliver to the Company and
any other applicable parties, promptly upon request, all documents,
instruments and fees necessary to effectuate a release of such lien, charge
or security interest. Infineon hereby authorizes the Company to record any
UCC or other termination statements to evidence the agreements set forth in
this Agreement with any applicable governmental or other authority, including
without limitation, the U.S. Copyright Office. Infineon shall promptly
provide to Ramtron copies of all such recorded documents.
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9. Mutual Release.
(a) The Company, for and on behalf of itself and its agents,
representatives, successors and assigns, hereby fully and completely
releases and forever discharges Infineon, from and against, and on
account of, any and all claims, demands, actions, causes of action,
liabilities, obligations, debts, damages, costs, expenses,
attorney's fees and payments of any and every kind and nature
whatsoever, whether express or implied, known or unknown, matured or
contingent, suspected or unsuspected which the Company has, has had
or may hereafter have against Infineon arising out of or relating to
the Debentures and the Transaction Documents, the transactions
contemplated therein, the execution thereof or the conduct of the
parties relating thereto, excepting only (AA) the Warrant held by
Infineon (BB) to the extent provided in the Warrant, the applicable
defined terms in Section 1.2 of the Securities Purchase Agreement,
(CC) with respect to any modifications, changes or amendments to
Joint Investor Warrants, Section 7.11 of the Securities Purchase
Agreement, (DD) the definition of "Market Price" in the Debenture,
and (EE) Amendment No. 1, provided that the definition of
"Registrable Securities" contained therein shall not include
Conversion Shares or any shares of capital stock issued in respect
of Conversion Shares.
(b) Infineon, for and on behalf of itself and its agents,
representatives, successors and assigns, hereby fully and completely
releases and forever discharges the Company, from and against, and
on account of, any and all claims, demands, actions, causes of
action, liabilities, obligations, debts, damages, costs, expenses,
attorney's fees and payments of any and every kind and nature
whatsoever, whether express or implied, known or unknown, matured or
contingent, suspected or unsuspected which Infineon has, has had or
may hereafter have against the Company, arising out of or relating
to the Debentures and the Transaction Documents, the transactions
contemplated therein, the execution thereof or the conduct of the
parties relating thereto, excepting only (AA) the Warrant held by
Infineon (BB) to the extent provided in the Warrant, the applicable
defined terms in Section 1.2 of the Securities Purchase Agreement,
(CC) with respect to any modifications, changes or amendments to
Joint Investor Warrants, Section 7.11 of the Securities Purchase
Agreement, (DD) the definition of "Market Price" in the Debenture,
and (EE) Amendment No. 1, provided that the definition of
"Registrable Securities" contained therein shall not include
Conversion Shares or any shares of capital stock issued in respect
of Conversion Shares.
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10. Miscellaneous.
(a) Transfer of Interest. Infineon represents and warrants that (a) it
has not transferred to a third party any interest in the Warrant or
the Debenture issued to it under the Securities Purchase Agreement,
and (b) it has not assigned its rights under the Security Agreement
or its security interest created pursuant to the Security
Agreement, and it has not created, incurred, assumed or permitted
to exist any lien or encumbrance on its rights or security interest
created pursuant to the Security Agreement.
(b) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, provided
that, Section 8 and any matters relating to the Security Agreement
or the Collateral described therein will be governed by, and
construed in accordance with, the laws of the jurisdiction
applicable thereto pursuant to Section 19 of the Security Agreement.
(c) Counterparts. This Agreement, and any and all consents hereto, may
be signed in any number of counterparts. Any single counterpart or
set of counterparts signed, in either case, by all the parties
hereto shall constitute a full and original agreement for all
purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
INFINEON TECHNOLOGIES AG
/s/ Xxxxx Xxxxx
-------------------------
By: Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Director Capital Markets
/s/ Xx. Xxxxxxxxx Xxxxxx
-------------------------
By: Xx. Xxxxxxxxx Xxxxxx
Name: Xx. Xxxxxxxxx Xxxxxx
Title: Corporate Legal Counsel
RAMTRON INTERNATIONAL CORPORATION
/s/ Xxxx X. Xxxxxx
---------------------------
By: Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: CFO
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