SUPPLEMENTAL EXCHANGE RIGHTS AGREEMENT
This Supplemental Exchange Rights 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").
RECITAL:
Each of the Series A Stockholders and Ramtron are concurrently herewith
entering into a Preferred Stock Recapitalization Agreement (the
"Recapitalization Agreement") pursuant to which, among other things, the
parties to that Agreement agree to amend Ramtron's Certificate of
Incorporation in the form and content of Exhibit A attached hereto (the
"Certificate of Amendment"), in order to amend and restate the Certificate
of Designation, Preferences, Rights and Limitations filed on February 12,
1998, with the Secretary of State of Delaware, establishing the preferences,
rights and limitations of Ramtron's Series A Convertible Preferred Stock,
$0.01 par value per share (the "Series A Stock").
NOW, THEREFORE, in consideration of the Recital, 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. Exchange Rights.
Notwithstanding that Section 7(a) of the Certificate of Amendment states that
the exchange rights to which the holders of Series A Stock are entitled
pursuant to such section are to be exercised "at any time prior to June 25,
1999," Ramtron agrees with and for the benefit of each Series A Stockholder to
exchange shares of Series A Stock of any holder of Series A Stock on the same
terms as set forth is Section 7(a) of the Certificate of Amendment, to the
extent funds are legally available therefor, at any time prior to the tenth
day after the Closing Date (as defined in the Recapitalization Agreement).
Ramtron makes this covenant for the benefit of the Series A Stockholders and
for the third-party benefit of all other holders of Series A Stock. Ramtron
represents and warrants that on the date hereof, and Ramtron covenants that at
the time of any exchange made pursuant to this Supplemental Exchange Rights
Agreement and the Certificate of Amendment, as applicable, Ramtron shall have
sufficient surplus, as required by Delaware law, to effect lawfully such
exchange.
Page 55
2. 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) 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 the same business day
if received prior to 5:00 p.m. Los Angeles time by facsimile or the next
business day if received after such time or if received on a non-business day.
Notice shall be 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 2(e).
Page 56
(f) 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 2(f) will be
binding upon Ramtron, the Series A Stockholders and their respective
successors and assigns.
(g) Entire Agreement. Except for the Recapitalization Agreement, and the
exhibits thereto, 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.
(h) 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.
(i) 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.
(j) 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.
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
Page 57
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
------------------------
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
Page 58
/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
/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
Page 59
/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
/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
Page 60
/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
/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
Page 61
/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 62
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 63
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 64
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.
(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
Page 65
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
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.
Page 66
(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.
(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).
Page 67
(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 68
(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.
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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:
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