EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
by and between
INFINEON TECHNOLOGIES AG
and
RAMTRON INTERNATIONAL CORPORATION
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Dated as of February 2, 2001
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TABLE OF CONTENTS
Section 1. Definitions .............................................2
Section 2. Registration Rights .....................................4
2.1 Demand Rights ...........................................4
2.2. "Piggy-Back" Rights .....................................6
2.3. Allocation of Securities Included in a Public Offering ..6
2.4. Requirements with Respect to Registration ...............7
2.5. Furnishing Information .................................11
Section 3. Registration Expenses ..................................11
Section 4. Representations, Warranties and Agreements .............12
(a) Company Representations, Warranties and Agreements .....12
(b) Infineon Representations, Warranties and Agreements ....13
Section 5. Survival of Representations and Agreements .............13
Section 6. Indemnification ........................................14
Section 7. Unregistered Offerings .................................16
Section 8. Miscellaneous ..........................................16
(a) Remedies ...............................................16
(b) Amendments and Waivers .................................17
(c) Notices ................................................17
(d) Interpretation .........................................18
(e) Counterparts ...........................................18
(f) Entire Agreement; No Third Party Beneficiaries .........18
(g) Governing Law ..........................................18
(h) Severability ...........................................18
(i) Assignment .............................................18
(j) Attorney's Fees ........................................19
(k) Use of Terms ...........................................19
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
February 2, 2001, and is being entered by and between Infineon Technologies AG,
a German stock corporation ("Infineon") and Ramtron International Corporation, a
Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company has agreed to issue, and Infineon has agreed to
subscribe for, up to 4,430,005 shares (the "Shares") of the Company's common
stock, par value $0.01 per share (the "Common Stock") pursuant to that certain
Share Purchase Agreement, dated December 14, 2000 (the "Purchase Agreement"), by
and between the Company and Infineon;
WHEREAS, Infineon has consented to certain restrictions on its right to
sell Shares; provided that Infineon is granted the right to cause such Shares to
be registered or qualified for trading under certain laws in order to permit a
public offering of such shares in the United States if deemed necessary or
appropriate by Infineon and certain other rights set forth herein; and
WHEREAS, the parties wish to make certain covenants and agreements
concerning, among other things, the registration of the Shares under the
Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein, the
parties agree as follows:
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Section 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" shall mean, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such Person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Blackout Periods" shall have the meaning set forth in Section 2.1(b).
"Commission" shall mean the United States Securities and Exchange
Commission or any other United States federal agency at the time administering
the Securities Act or the Exchange Act.
"Company" shall have the meaning set forth in the introductory paragraph to
this Agreement.
"Common Stock" shall have the meaning set forth in the Recitals.
"Demand Request" shall have the meaning set forth in Section 2.1(a).
"Effectiveness Period" shall have the meaning set forth in Section 2.4(b).
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended, or any United States federal statute then in effect that has
replaced such statute, and a reference to a particular section thereof shall be
deemed to include a reference to the comparable section, if any, of any such
replacement United States federal statute.
"Holder" shall mean Infineon, and shall also include any assignee or
transferee of a Registrable Security that directly or indirectly through one or
more intermediaries controls, is controlled by or is under common control with
Infineon and that agrees in writing at the time of such assignment or transfer
to be bound by the restrictions set forth herein.
"Indemnified Party" shall have the meaning set forth in Section 6(e).
"Indemnifying Party" shall have the meaning set forth in Section 6(e).
"Inspectors" shall have the meaning set forth in Section 2.4(f).
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"Joining Request" shall have the meaning set forth in Section 2.1(a).
"Maximum Number" shall have the meaning set forth in Section 2.1(b).
"Other Securities" shall have the meaning set forth in the definition of
Registrable Securities.
"Other Stockholders" shall have the meaning set forth in Section 2.2.
"Person" shall mean an individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business association,
firm or a government or agency or political subdivision thereof or other entity.
"Preliminary Prospectus" shall mean any preliminary prospectus that may be
included in any Registration Statement.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and by all other amendments
and supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Public Offering" shall mean the offer of Common Stock on a broadly
distributed basis, not limited to sophisticated investors, pursuant to a
firm-commitment or best-efforts underwriting arrangement.
"Records" shall have the meaning set forth in Section 2.4(f).
"Registrable Securities" shall mean all or any portion of the
Ramtron Cash Shares (as defined in the Purchase Agreement)
beneficially owned by the Holder upon the Initial Closing (as defined
in the Purchase Agreement) under the Purchase Agreement and all or any
portion of the Ramtron Stock Shares (as defined in the Purchase
Agreement) beneficially owned by the Holder upon the Final Stock
Closing (as defined in the Purchase Agreement) under the Purchase
Agreement. As to any particular Registrable Securities, such Shares
shall cease to be Registrable Securities (a) when a Registration
Statement with respect to the sale of such Shares shall have become
effective under the Securities Act and such Shares shall have been
disposed of in accordance with such Registration Statement, (b) when
such Shares shall have been sold under Rule 144 (or any successor
provision) under the Securities Act, or (c) when such Shares shall
have ceased to be outstanding. If as a result of any reclassification,
stock split, stock dividend, bonus issue, business
combination,exchange offer or other transaction or event, any capital
stock, evidences of indebtedness, warrants, options, rights or other
securities (collectively "Other Securities") are issued or transferred
to a Holder in respect
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of Registrable Securities held by such Holder, references herein to
Registrable Securities shall be deemed to include such Other Securities.
"Registration Statement" shall mean any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities,
including the prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statements.
"Regulations" shall mean the General Rules and Regulation of the Commission
under the Securities Act.
"Rule 144" shall mean Rule 144 of the Regulations, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the Commission providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
"Securities Act" shall mean the United States Securities Act of 1933, as
amended, or any United States federal statute then in effect which has replaced
such statute, and a reference to a particular section thereof shall be deemed to
include a reference to the comparable section, if any, of any such replacement
statute.
"Seller" shall have the meaning set forth in Section 2.1(a).
"Shares" shall have the meaning set forth in the Recitals.
"underwritten registration or underwritten offering" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Section 2. Registration Rights.
2.1 Demand Rights. (a) Subject to Section 2.1(b) below, at any time, and
from time to time, on or after the date on which a Holder is first permitted to
sell any of the Shares pursuant to the Purchase Agreement, such Holder shall
have the right to require the Company to file up to three (3) Registration
Statements under the Securities Act for a Public Offering of all or part of the
portion of such Holder's Registrable Securities that such Holder is then
permitted to sell pursuant to Section 5.2 of the Purchase Agreement, in each
case, by delivering written notice thereof to the Company specifying the number
of Registrable Securities to be included in such registration and the intended
method of distribution thereof (the "Demand Request"). Thereupon the Company
shall prepare and file with the Commission as promptly as practicable following
the receipt of notice of the Demand Request, and in any event within 60 days
thereof, a Registration Statement covering,
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and shall use its best efforts to effect the registration under the Securities
Act of, (i) the Registrable Securities included in the Demand Request, for
disposition in accordance with the intended method of disposition stated in the
Demand Request and (ii) any other securities as to which the holders thereof
have a contractual right to register Common Stock in such a transaction and
shall have made a written request (a "Joining Request") to the Company for
registration thereof within ten days (or such other period as may be
contractually provided) after notice of such Demand Request, all to the extent
necessary to permit the sale or other disposition by such holders (each, a
"Seller" and, collectively, the "Sellers") of such Registrable Securities.
(b) The Company's obligations pursuant to Section 2.1(a) above are subject
to the following limitations and conditions: (i) the Company shall not be
obligated to fulfill the requirements or file the Registration Statement
referred to therein (A) during any period of time (not to exceed one hundred
twenty (120) days in the aggregate with respect to each request) when the
Company has determined to proceed with a Public Offering for its own account
and, in the good faith judgment of the managing underwriter thereof, the
fulfillment of such requirements or such filing would have an adverse effect on
such Public Offering, (B) during any period of time (not to exceed sixty (60)
days with respect to each request) when the Company is in possession of material
information that its board of directors (x) has determined, after advice of U.S.
securities counsel, would be required to be disclosed in an offering registered
under the Securities Act and (y) reasonably deems is in the Company's best
interests not to publicly disclose, or (C) during the 90-day period following
the effectiveness of any previous Registration Statement (the periods of time
referred to in subclauses (A), (B) and (C) hereof being hereinafter referred to
as "Blackout Periods"); provided, that the aggregate period of time during which
the Company shall be relieved from its obligation to file such a Registration
Statement pursuant to this clause (i) shall in no event exceed ninety (90)
consecutive days with respect to each request; provided, further, that, in the
case of a Blackout Period pursuant to sub-clause (i)(A) above, the Blackout
Period shall earlier terminate upon the completion or abandonment of the
relevant Public Offering; provided, further, that in the case of a Blackout
Period pursuant to sub-clause (i)(B) above, the Blackout Period shall earlier
terminate upon public disclosure by the Company or public admission by the
Company of such material nonpublic information or such time as such material
nonpublic information shall be publicly disclosed without breach of the last
sentence of this subsection (b); and provided, further, that in the case of a
Blackout Period pursuant to sub-clauses (i)(A), (B) or (C) above, the Company
shall furnish to the Holder a certificate of the Company's Chief Executive
Officer to the effect that an event permitting a Blackout Period has occurred;
provided, further, that the Company shall not be entitled to exercise its rights
under sub-clause (i)(B) more than three (3) times in any twenty-four (24) month
period, and under sub-clause (i)(C) more than one (1) time in any twelve
(12)-month period; and provided, further, that if prior to the expiration of any
period of time referred to in this clause (i) the Holder withdraws its Demand
Request, such request shall not be considered a Demand Request for purposes of
this Section 2.1(b) and such Demand Request and any Joining Request related
thereto shall be of no further effect; (ii) the Company shall not be required to
maintain the effectiveness of a Registration Statement filed pursuant to Section
2.3(a) for a period in excess of one hundred twenty (120) days; (iii) the
minimum aggregate offering price of any such Public Offering, as estimated in
good faith by the managing underwriter thereof at the time such Demand Request
is made, shall be at least $10 mil-
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lion; provided, however that the limitation and condition contained in this
clause (iii) to Section 2.1(b) shall not be applicable to a Demand Request to
register all of the Registrable Securities issued to Infineon pursuant to the
Purchase Agreement; and (iv) the number of shares of Common Stock to be sold in
any such Public Offering shall not exceed the maximum number which the managing
underwriter thereof considers in good faith to be appropriate based on market
conditions and other relevant factors, including pricing, the identity of the
holders selling Shares and the proportion of Shares being sold by the Company
and by such holders (the "Maximum Number").
(c) Subject to Section 2.3, the Company may elect to include in any
Registration Statement filed pursuant to this Section 2.1 any treasury shares or
authorized but unissued shares of Common Stock; provided that such inclusion
shall be permitted only to the extent that it is pursuant to and subject to the
terms of any underwriting agreement or arrangements entered into by the Holders
making the Demand Request.
(d) A request by a Holder that the Company file a Registration Statement
shall not be considered a Demand Request if the Registration Statement relating
thereto does not become effective.
(e) All registration rights granted under this Section 2.1 shall terminate
and be of no further force and effect on the earlier of (i) the date on which
the Holders no longer hold Registrable Securities, and (ii) the date on which
all Registrable Securities held by the Holders may be sold under Rule 144(k)
during any single ninety (90) day period.
2.2. "Piggy-Back" Rights. If, after the Initial Closing (as defined in the
Purchase Agreement) of the Purchase Agreement, the Company proposes to register
any shares of Common Stock under the Securities Act on a registration statement
on Form S-1, Form S-2 or Form S-3 (or an equivalent general registration form
then in effect) for purposes of a Public Offering by the Company or any
registration statement filed by the Company for any other holder of Common Stock
holding registration rights with respect to such Common Stock (such other
selling stockholders are referred to herein as "Other Stockholders"), the
Company shall give written notice of such proposal at least thirty (30) days
before the anticipated filing date, which notice shall include the intended
method of distribution of such shares of Common Stock to each Holder. Such
notice shall specify at a minimum the number of shares of Common Stock proposed
to be registered, the proposed filing date of such registration statement, any
proposed means of distribution of such shares of Common Stock and the proposed
managing underwriter, if any. Subject to Section 2.3, upon the written request
of a Holder, given within fifteen (15) days after the transmittal of any such
written notice by facsimile confirmed by mail (which request shall specify the
Registrable Securities intended to be disposed of by a Holder), the Company will
use its best efforts to include in the registration statement with respect to
such Public Offering the number of the Registrable Securities referred to in
such Holder's request; provided that any participation in such Public Offering
by such Holder shall be on substantially the same terms as those applicable to
the participation therein by the Company or Other Stockholders; and provided,
further, that the number of Registrable Securities to be included in any such
Public Offering shall not exceed the Maximum Number. Any such Holder shall have
the right
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to withdraw a request to include Registrable Securities in any Public
Offering pursuant to this Section 2.2 by giving written notice to the Company of
its election to withdraw such request at least five (5) days prior to the
proposed effective date of such registration statement.
2.3. Allocation of Securities Included in a Public Offering. If the
managing underwriter for any Public Offering to be effected pursuant to Section
2.1 or Section 2.2 of this Agreement shall advise the Company and the Sellers in
writing that the number of shares of Common Stock sought to be included in such
Public Offering (including shares of Common Stock sought to be offered by the
Company and those Shares or other shares of Common Stock to be offered by the
Holders or other Sellers) is not equivalent to the Maximum Number, the shares of
Common Stock to be included in such Public Offering shall be allocated pursuant
to the following procedures:
(a) if such registration or Public Offering is pursuant to Section 2.1
of this Agreement, and (x) if the total number of shares of Common Stock
included in the Demand Request and any Joining Request exceeds the Maximum
Number, first, the Registrable Securities included in the Demand Request
shall be included, and second, any shares of Common Stock requested to be
included in such registration pursuant to any Joining Request, pro rata
among such Sellers, shall be included, to the extent necessary to reduce
the total number of shares of Common Stock to be included in such Public
Offering to the Maximum Number and (y) if the total number of shares of
Common Stock included in the Demand Request and any Joining Request is less
than the Maximum Number, any additional shares of Common Stock sought to be
included at the request of the Company may be included, subject to not
exceeding the Maximum Number; provided, however, that, if the Company
desires to sell shares of Common Stock in such Public Offering and in the
good faith judgment of the managing underwriter of such Public Offering,
after consultation with the Holders, the failure to include shares of
Common Stock to be sold by the Company in such Public Offering would be
materially detrimental to the success of the Public Offering or to the
trading market in the Company's Common Stock, an amount of shares of Common
Stock to be sold by the Company equal to the lesser of (i) the minimum
number of shares of Common Stock recommended by such managing underwriter
to be sold by the Company and (ii) that amount sought to be included at the
request of the Company, will be included in the Public Offering and the
number of shares of Common Stock to be sold by the Sellers will be reduced,
applying clause (x) above to such Sellers' requests mutatis mutandis; or
(b) if such registration or Public Offering is pursuant to Section 2.2
of this Agreement, (x) first, securities sought to be included at the
request of the Company or any Other Stockholder making a demand
registration request shall be included, and (y) second, if the number of
securities to be registered under clause 2.1 exceeds the Maximum Number,
the amount of Registrable Securities proposed to be offered by Sellers
shall be reduced pro rata among such Sellers in accordance with the
respective amounts requested by each such Seller to the extent necessary to
reduce the total amount of securities to be included in such offering to
the Maximum Number; provided that Shares to be sold by the Sellers in the
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aggregate are not reduced to less than 25% of all shares of Common Stock to
be sold in such Public Offering.
2.4. Requirements with Respect to Registration. Subject to Section 3, if
and whenever the Company is required by the provisions hereof to use its best
efforts to register any Registrable Securities under the Securities Act, the
Company shall:
(a) As promptly as practicable (and in the case of a Demand Request,
in no event more than 60 days following such Demand Request) prepare and
file with the Commission a Registration Statement with respect to such
Registrable Securities and use its best efforts to cause such Registration
Statement to become and remain effective; provided, however, that, before
filing any Registration Statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford each Holder of
Registrable Securities covered by such Registration Statement, and the
managing underwriters, if any, a reasonable opportunity to review and
comment on copies of all such documents (including copies of any documents
to be incorporated by reference therein and all exhibits thereto) proposed
to be filed. In the event that any such Holder or managing underwriter does
not provide comments on any such documents within ten (10) days of receipt
thereof, such current drafts of the documents shall no longer be subject to
review and comment by such Holder or managing underwriter.
(b) As promptly as practicable, prepare and file with the Commission
such amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement current and effective and to comply with the
provisions of the Securities Act and the Regulations, with respect to the
sale or disposition of such Registrable Securities, but in no event shall
the Company be required to do so for a period of more than one hundred
twenty (120) days following the effective date of the Registration
Statement (the "Effectiveness Period").
(c) Promptly notify each Seller of any Registrable Securities covered
by such Registration Statement (A) when the Registration Statement or any
related prospectus or any amendment or supplement has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any request by the Commission for
amendments or supplements to the Registration Statement or the related
prospectus or for additional information, (C) of any order issued or
threatened by the Commission suspending the effectiveness of such
Registration Statement, or preventing or suspending the use of a prospectus
or (D) of the receipt by the Company of any notification or order with
respect to the suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceedings for such purpose. The
Company shall use its best efforts to prevent the issuance of any such
order referred to in (C) or (D) and, if any such order is issued, shall use
its best efforts to obtain the withdrawal of any such order at the earliest
possible moment.
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(d) Immediately upon becoming aware thereof, notify each Seller and
underwriter of such Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of
the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading and promptly make available to each Seller and underwriter any
such supplement or amendment.
(e) Use all reasonable best efforts to register or qualify the
Registrable Securities covered by such Registration Statement under such
securities or blue sky laws of such jurisdictions in the United States as
the Sellers participating in the Public Offering or the managing
underwriter thereof shall reasonably request, and do any and all other acts
and things that may be reasonably necessary to enable each participating
Seller or underwriter to consummate the disposition of the Registrable
Securities in such jurisdictions; provided that the Company 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.
(f) Make available upon reasonable advance notice for inspection by
any Seller of such Registrable Securities, any underwriter participating in
any disposition pursuant to such Registration Statement and any attorney,
accountant or other professional retained by any such Seller or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively,
the "Records") as shall be reasonably necessary to enable them to conduct a
"reasonable" investigation for purposes of Section 11(a) of the Securities
Act and cause the Company's officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection with such
Registration Statement.
(g) Use all reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement to be (A) quoted on the
Nasdaq National Market or the Nasdaq SmallCap Market and (B) listed or
qualified for trading on any other stock exchange or quotation service on
which the Company's outstanding shares of Common Stock are listed or
qualified for trading.
(h) Furnish to each Seller and each underwriter of the Registrable
Securities covered by such Registration Statement such number of copies of
such Registration Statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including
each Preliminary Prospectus) and such other documents as such Seller or
underwriter may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such Seller.
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(i) In connection with an underwritten offering of Registrable
Securities, enter into an underwriting agreement in such form as is
customary in underwritten offerings made by selling security holders and
take all such other actions as are reasonably requested by the managing
underwriters for such underwritten offering in order to expedite or
facilitate the registration or the disposition of such Registrable
Securities, and in such connection, (A) make such representations and
warranties to the underwriters and the Sellers with respect to the business
of the Company and its subsidiaries, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings made by selling security holders,
and confirm the same on the settlement date for the offering; (B) cause
opinions of counsel to the Company (which counsel and opinions shall be
reasonably satisfactory to the managing underwriters), to be delivered to
the underwriters and the Sellers covering the matters customarily covered
in opinions requested in underwritten offerings by selling security
holders; (C) cause "cold comfort" letters and updates thereof (which
letters and updates shall be reasonably satisfactory to the managing
underwriters) from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired or
owned by the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement) to be
delivered to each of the underwriters and the Sellers of such Registrable
Securities included in such underwritten offering (if such accountants are
permitted under applicable law and accounting literature to so address
"cold comfort" letters), such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings by selling security holders; and (D)
if an underwriting agreement is entered into, the same shall contain
customary indemnification provisions and procedures from the Company in
favor of both the Sellers of such Registrable Securities and the
underwriters or selling agents. The delivery of certificates, opinions and
letters referred to above shall be done at each closing under such
underwriting agreement, as and to the extent required thereunder.
(j) Comply with all applicable rules and regulations of the Commission
and make generally available to security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
not later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (A)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a Public Offering and (B) if not sold to
underwriters in such an offering, commencing on the first day of the fiscal
quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(k) Cooperate with each Seller and the managing underwriter, if any,
participating in the disposition of such Registrable Securities in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
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(l) Use all reasonable best efforts to take all other steps reasonably
necessary to effect the registration, offering and sale of the Registrable
Securities covered by a Registration Statement contemplated hereby and
enter into any other customary agreements and take such other actions,
including participation in "roadshows", as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities.
2.5. Furnishing Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2.1 or 2.2
that each selling Holder shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be reasonably required to effect the
registration of the Registrable Securities.
Section 3. Registration Expenses.
The Company will bear the following fees and expenses incident to the
registration and sale of the Registrable Securities whether or not a
Registration Statement is filed or becomes effective: (i) fees and disbursements
of counsel for the Company, (ii) fees and disbursements of all independent
certified public accountants for the Company (including, without limitation, the
expenses of any "cold comfort" letters required by or incident to such
performance),(iii) the fees and expenses incurred in connection with the
quotation or listing of Shares on any securities exchange or automated
securities quotation system, (iv) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel for the Company or the
underwriters, or both, in connection with Blue Sky qualifications of the
Registrable Securities)), (v) the expenses and costs of any roadshow (including
travel, meals, accommodation and other arrangements for any investor
presentations or meetings); and (vi) the fees, expenses and costs of any public
relations, investor relations or other consultants retained by the Company in
connection with any roadshow (including travel and other arrangements for any
investor presentations or meetings); provided, however, that, with the exception
of (i) and (ii) above, the Company shall not be required to bear any expenses
related to any Demand Request that is withdrawn (other than a withdrawal
pursuant to Section 2.1(b)).
All other fees and expenses incident to the registration and sale of the
Registrable Securities shall be borne by the Holder whether or not a
Registration Statement is filed or becomes effective, including, without
limitation, (i) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company, printing Preliminary Prospectuses,
Prospectuses, and printing or preparing any underwriting agreement, agreement
among underwriters and related syndicate or selling group agreements, pricing
agreements and Blue Sky memoranda), (ii) the fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating in an
offering
11
pursuant to Section 3 of Rule 2720 of the Conduct Rules of the NASD and (iii)
fees and disbursements of any counsel for such Holder.
Section 4. Representations, Warranties and Agreements.
(a) Company Representations, Warranties and Agreements. The Company
--------------------------------------------------
represents and warrants to, and agrees with, Infineon that:
(i) The Company has all requisite corporate power and authority to
execute, deliver, and perform this Agreement. This Agreement has been duly
authorized, executed, and delivered by the Company. No consent,
authorization, approval, order, license, certificate, or permit of or from,
or declaration or filing with, any United States federal, state, local, or
other governmental authority or any court or other tribunal is required by
the Company for the execution, delivery or performance of this Agreement by
the Company (except filings under the Securities Act which will be made and
any consents under Blue Sky or state securities laws which will be
obtained).
(ii) The Company shall not enter into any transaction involving the
issuance or transfer by any other Person of Other Securities to a Holder,
or any merger or consolidation in which it is not the surviving Person, or
any sale, lease or other transfer of all or substantially all the assets of
the Company, unless effective provision is made for the assumption by such
other Person, jointly and severally with the Company if the Company shall
remain in existence, of all of the obligations of the Company hereunder,
and in the case of any such issuance or transfer, the registration of such
Other Securities on the same basis as the registration of the other
Registrable Securities hereunder.
(iii) The execution and delivery of this Agreement by the Company do
not, and the performance of the Company's obligations hereunder will not,
violate, conflict with, or result in a breach of any provision of, or
constitute a default (with or without notice or lapse of time or both)
under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination, cancellation, or
acceleration of any obligation or the loss of a material benefit under, or
result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets (any such violation,
conflict, breach, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation") of the Company or any of its
subsidiaries pursuant to any provisions of (i) the articles of
incorporation, by-laws or similar governing documents of the Company or any
of its subsidiaries, (ii) any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of any
governmental authority applicable to the Company or any of its subsidiaries
or any of their respective properties or assets or (iii) any note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument, obligation or agreement of any kind to
which the Company or any of its
12
subsidiaries is a party or by which it or any of its properties or assets
may be bound or affected.
(iv) The Company covenants that it will file any reports required to
be filed by it under the Securities Act and the Exchange Act, that it will
make available "adequate current public information concerning the Company
within the meaning of paragraph (c) of Rule 144" and that it will take such
further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act pursuant to the
exemptions provided by Rule 144. Upon the request of any Holder, the
Company will deliver to it a written statement as to whether it has
complied with such requirements.
(v) The Company shall not grant to any Person the right to request a
registration of securities of the Company under the Securities Act or the
right to be included as a selling stockholder in connection with any
registration of Registrable Securities if the rights so granted would be in
conflict with or adversely affect the rights granted to Infineon hereunder
without the prior written consent of Infineon, which consent may be
withheld in Infineon's sole discretion.
(b) Infineon Representations, Warranties and Agreements. Infineon
---------------------------------------------------
represents and warrants to, and agrees with, the Company, that:
(i) It is duly organized, validly existing, and in good standing under
the laws of the Federal Republic of Germany. Infineon has all requisite
power and authority to execute, deliver, and perform this Agreement. This
Agreement has been duly authorized by Infineon and has been duly executed
and delivered by it.
(ii) Neither Infineon nor any of its affiliates will take, directly or
indirectly, during the term of this Agreement, any action designed to
stabilize (except as may be permitted by applicable law) or manipulate the
price of any security of the Company.
(iii) Infineon shall promptly furnish to the Company upon the
Company's request any and all information as may be required by, or as may
be necessary or advisable to comply with the provisions of, the Securities
Act, the Regulations, the Exchange Act, and the rules and regulations of
the Commission thereunder in connections with the preparation and filing of
any Registration Statement pursuant hereto, or any amendment or supplement
thereto, or any Preliminary Prospectus or Prospectus included therein.
13
Section 5. Survival of Representations and Agreements.
All representations, warranties, covenants and agreements contained in this
Agreement shall be deemed to be representations, warranties, covenants and
agreements at the effective date of each Registration Statement contemplated by
this Agreement, and such representations, warranties, covenants and agreements
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Holder, or any other
Person and shall survive termination of this Agreement.
Section 6. Indemnification.
(a) The Company shall agree to indemnify and hold harmless each Holder and
any underwriter participating in any distribution hereunder and each of their
respective officers, directors or employees and each person, if any, who
controls such Holder or any such underwriter within the meaning of either
section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities and any actions in
respect thereof (including, without limitation, any legal or other expenses
incurred in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus, Preliminary Prospectus or
form of prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, except insofar as such losses, claims, damages or liabilities or
actions in respect thereof are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon (i) any information relating
to any underwriter furnished to the Company by such underwriter expressly for
use therein and (ii) any information relating to any Holder furnished to the
Company by or on behalf of such Holder expressly for use therein. The foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of any such underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased securities (or any person who
controls such underwriter) if a copy of any Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of such securities to such person and if any Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability.
(b) In connection with any Registration Statement in which a Holder is
participating, such Holder shall agree to indemnify and hold harmless any
underwriter participating in the distribution and their respective officers,
directors or employees and each person, if any, who controls any such
underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
14
damages and liabilities and any actions in respect thereof (including, without
limitation, any legal or other expenses incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, or any Prospectus, Preliminary Prospectus or
form of prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
respect to any information relating to such Holder furnished to the Company by
or on behalf of such Holder expressly for use therein.
(c) In the event a claim arises pursuant to subsections (a) or (b), any
person in respect of which indemnification may be sought (the "Indemnified
Party") shall notify the party against whom the claim for indemnification is
made of such claim and the facts constituting the basis for such claim in
reasonable detail. The party against whom the claim for indemnification is made
is hereinafter referred to as the "Indemnifying Party". Failure to notify an
Indemnifying Party shall not relieve such Indemnifying Party from its
obligations hereunder to the extent it is not materially prejudiced as a result
thereof.
(d) Counsel to the Indemnified Party shall be selected by the Indemnifying
Party and shall be reasonably satisfactory to the Indemnified Party; provided,
however, that counsel to the Indemnified Party shall not (except with the
consent of the relevant Indemnified Party) also be counsel to the Indemnifying
Party. The Indemnifying Party may participate at its own expense in the defense
of any claim arising pursuant to subsection (a) or (b) and, to the extent it
shall wish and be legally permitted, assume the defense thereof, jointly with
any other Indemnifying Party similarly notified, provided, however, that in the
event the Indemnified Party shall have reasonably concluded that there may be
defenses available to it which are different from or additional to those
available to the Indemnifying Party, the Indemnifying Party shall not have the
right to direct the defense of such action as it relates to such defenses on
behalf of such Indemnified Party and the fees and expenses of separate counsel
(selected by the Indemnified Party and reasonably satisfactory to the
Indemnifying Party) relating to such defenses for such Indemnified Party shall
be borne by the Indemnifying Party. After notice from the Indemnifying Party to
such Indemnified Party of its election to assume the defense of any such claim
and after election of counsel to the Indemnified Party as set forth above, the
Indemnifying Party shall not be liable for any legal expenses of other counsel
(except for separate counsel, but not more than the costs of one such separate
counsel for all Indemnified Parties, in the circumstances described above)
subsequently incurred by such Indemnified Party. Except as provided in the
preceding sentences, the Indemnifying Party shall not be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its own counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No Indemnifying
Party shall, without the prior written consent of the Indemnified Parties,
settle or compromise or consent to the entry of any judgement with respect to
any litigation or any investigation or proceeding by any
15
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification could be sought under this Section 6 (whether
or not the Indemnified Parties are actual or potential parties thereto), unless
such settlement, compromise or consent (A) includes an unconditional release of
each Indemnified Party from all liability arising out of such litigation or
claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Party.
(e) If at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse the Indemnified Party for fees and expenses of
counsel, such Indemnifying Party agrees that it shall be liable for any
settlement effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Party of the
aforesaid request, (ii) such Indemnifying Party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement taking
effect and (iii) such Indemnifying Party shall not have reimbursed such
Indemnified Party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel, an Indemnifying Party shall
not be liable for any settlement effected without its consent if such
Indemnifying Party (i) reimburses such Indemnified Party in accordance with such
request to the extent it considers such request to be reasonable and (ii)
provides written notice to the Indemnified Party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
(f) The indemnity, contribution and expense reimbursement obligations under
this Section 6 shall be in addition to any liability each indemnifying person
may otherwise have and shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any indemnified party.
(g) In the event of any conflict between the indemnification and
contribution terms as herein set forth and as set forth in any underwriting
agreement entered pursuant hereto, the underwriting agreement shall control.
Section 7. Unregistered Offerings.
The parties hereto hereby agree that, in the event that the Company or one
or more Holders propose to make an underwritten offering of shares of Common
Stock (which may or may not include Shares) that is exempt from, or not subject
to, the registration requirements of the Securities Act, the relevant notice
provisions of Section 2.1 or 2.2 will apply and the required notice will state
that the offering is proposed to be made on an unregistered basis. In that
event, the parties agree to proceed with such an offering on an unregistered
basis in good faith as and to the extent provided herein with respect to a
registered offering and that the provisions of this Agreement will apply mutatis
mutandis to such unregistered offering, including, without limitation,
provisions relating to Joining Notices, the Company's ability to delay an
offering, "piggy-back" rights, allocations of
16
securities included in an offering, the Company's obligations with respect to an
offering (including indemnification provisions and procedures), selection of
underwriters, hold-back agreements, expenses associated with an offering and
representations and warranties.
Section 8. Miscellaneous.
(a) Remedies. In the event of breach by any party of any of its obligations
--------
under this Agreement, the other parties, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company and Infineon agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by the Company
or Infineon, as the case may be, of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, the Company or Infineon, as the case may be, shall
waive the defense that a remedy at law would be adequate. No failure or delay on
the part of the Company or Infineon in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
(b) Amendments and Waivers. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
without the written consent of the Company and Infineon.
(c) Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed given if delivered personally, by telecopier
(receipt of which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to Infineon, to:
Infineon Technologies AG
M&A Xxxxxxxxxx
Xx.Xxxxxx-Xxxxxxx 00
X-00000 Xxxxxx
Fax: 00 00 000 0 0000
Attention: Xxxx Xxxxxxxx
with copies to:
Infineon Technologies XX
Xx.Xxxxxx-Xxxxxxx 00
00
X-00000 Xxxxxx
Fax: 00 00 000 0 0000
Attention: Finanzvorstand and General Counsel
and,
Xxxxxxxx & Xxxxxxxx
Neue Mainzer Xxxxxxx 00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Fax: 00 00 0000 0000
Attention: Xxxxx X. Xxxxxxxx
if to the Company, to:
Ramtron International Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
XXX
Fax: 000 000 0000
Attention: Chief Executive Officer
with a copy to:
Coudert Brothers
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Fax: 000 000 0000
Attention: Xxxx X. St. Clair
(d) Interpretation. When a reference is made in this Agreement to a
--------------
Section, such reference shall beto a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(e) Counterparts. This Agreement may be executed in two or more
------------
counterparts, all of which shall beconsidered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(f) Entire Agreement; No Third Party Beneficiaries. This Agreement
----------------------------------------------
(including the documents and theinstruments referred to herein) (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with
18
respect to the subject matter hereof and, with respect to the provisions of
Section 6, indemnified Persons other than the parties hereto, and (ii) except as
contemplated by the definition of "Holder" in Section 1 hereof and, with respect
to the provisions of Section 6, indemnified Persons, other than the parties
hereto, is not intended to confer upon any Person other than the parties hereto
any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed and construed in
-------------
accordance with the laws of the State of New York, USA,
applicable to contracts made and to be performed entirely within the State of
New York.
(h) Severability. Wherever possible, each provision hereof shall be
------------
interpreted in such a manner as to be valid, legal and enforceable under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
or rendering unenforceable the remainder of this Agreement, unless such a
construction would be unreasonable or materially impair the rights or any party
hereto.
(i) Assignment. Neither this Agreement not any of the rights, interests or
----------
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without prior written consent of the other
parties, except as may otherwise occur by operation of the definition of
"Holder" in Section 1 hereof. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
(j) Attorney's Fees. As between parties to this Agreement, in any action or
---------------
proceeding brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorney's fees in addition to its costs and
expenses and any other available remedy.
(k) Use of Terms. This Agreement contemplates the filing of Registration
------------
Statements under the Securities Act on numerous occasions involving various
offers of securities. In connection with such Registration Statements, there may
be identified therein one or more underwriters through which securities are to
be offered on behalf of the Company or the Holder, or both, pursuant to either a
"firm-commitment" or "best-efforts" arrangement, and, in the case where there is
more than one underwriter, one or more of the underwriters may be designated as
the "manager" or "representative" or the "co-managers" or "representatives" of
the several underwriters. Accordingly, all references herein to an "underwriter"
or "underwriters" are intended to refer to a "principal underwriter" (as defined
in Rule 405 of the Regulations) and to provide for those transactions in which
securities may be offered by or through one or more underwriters, and not to
imply that any of the transactions contemplated hereby is conditioned in any
manner whatsoever on the participation therein by one or more underwriters on
behalf of any party. Nothing contained herein relating to the Company's
obligation to enter into an underwriting agreement at any time
19
or from time to time in the future shall impair, alter, restrict or otherwise
affect in any manner whatsoever the duties of the directors of the Company under
applicable law in approving the form, terms and provisions thereof.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INFINEON TECHNOLOGIES AG
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Corporate Legal Counsel
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Corporate Legal Counsel
RAMTRON INTERNATIONAL CORPORATION
By: /s/ L. Xxxxx Xxxxx
------------------
Name: L. Xxxxx Xxxxx
Title: Chairman
21
