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EXHIBIT 3.3
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement"), dated as of
June 6, 1996, is made by and between RF MICRO DEVICES, INC., a North Carolina
corporation (the "Company"), and TRW INC., an Ohio corporation ("TRW").
RECITALS:
WHEREAS, pursuant to that certain Securities Purchase
Agreement of even date herewith (the "Purchase Agreement"), and in
consideration of the execution, delivery and performance by TRW of that certain
License and Technical Assistance Agreement between TRW and the Company of even
date herewith (the "License Agreement"), concurrent with the execution of this
Agreement the Company is issuing to TRW 2,683,930 shares (the "TRW Shares") of
its Common Stock, no par value (the "Common Stock"); and
WHEREAS, the parties agree as a condition of the issuance
thereof that the TRW Shares shall be subject to certain restrictions as more
fully set out herein; and
WHEREAS, capitalized terms not otherwise defined herein shall
have the meaning given them in the License Agreement;
NOW, THEREFORE, the parties agree as follows:
1. SHARE CERTIFICATES.
Concurrent with the execution of the Purchase Agreement, the
License Agreement and this Agreement, a certificate representing the TRW Shares
is being issued in the name of TRW, and the TRW Shares represented by such
certificate shall be considered to be issued and outstanding for all purposes.
Such certificate (or any replacement therefor) shall also bear the following
(or a similar) legend:
"THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING
REDEMPTION) CONTAINED IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE
ISSUER AND TRW INC. DATED AS OF JUNE 6, 1996, A COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE ISSUER'S PRINCIPAL EXECUTIVE OFFICE.
FURTHERMORE, SUCH RESTRICTED STOCK AGREEMENT CONTAINS AN IRREVOCABLE
PROXY COUPLED WITH AN INTEREST WHICH PROVIDES FOR THE VOTING OF SUCH
SHARES IN A CERTAIN MANNER PRIOR TO THE EXPIRATION OF SUCH AGREEMENT."
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2. DIVIDENDS AND VOTING RIGHTS.
(a) TRW shall be entitled to receive on the same basis as
all other holders of Common Stock any cash dividends declared and paid by the
Company on the Common Stock. Any securities of the Company distributed as a
dividend on or in exchange or replacement of the TRW Shares (collectively, the
"New Securities"), shall bear the legend described in Section 1 above and the
provisions of this Agreement shall apply mutatis mutandis to the New
Securities.
(b) During the term of this Agreement, the parties agree
that this Agreement shall serve as TRW's proxy to Xxxxx X. Xxxxxxx (or his
successor in the office of President of the Company, in either case, "Proxy
Holder") who, by his execution hereof, agrees to vote the TRW Shares in any
vote of the holders of the Company's Common Stock for any proposal approved by
a vote (as provided in the Company's Bylaws) of the Company's Board of
Directors. Any attempt to revoke this proxy shall result in the immediate
right of the Company to redeem any or all of the TRW Shares for an aggregate
purchase price of $1.00. The Proxy Holder shall have full power of
substitution provided any such substitute shall be bound by the provisions of
this Agreement and shall vote the TRW Shares in the manner herein specified.
THE FOREGOING PROXY APPOINTMENT IS IRREVOCABLE AND SHALL BE DEEMED COUPLED WITH
AN INTEREST.
3. TRANSFERABILITY.
During the term of this Agreement, no TRW Share, nor any
right, title or interest therein, may be sold, transferred, pledged,
encumbered, assigned or otherwise disposed of (a "Transfer") without the prior
written consent of the Company, which consent may be given or withheld in the
Company's sole discretion. Any purported Transfer in violation of this Section
3 shall be null and void, shall not be recognized in the stock transfer records
of the Company and shall result in the immediate right of the Company to redeem
any or all of the TRW Shares attempted to be so Transferred for an aggregate
purchase price of $1.00. Notwithstanding the foregoing, the provisions of this
Section 3 shall not apply to any Transfer (i) in connection with a merger
transaction to which the Company is party and in which the Company is not the
surviving entity or (ii) to an entity in which TRW owns at least 50% of the
outstanding voting securities provided TRW or the transferee shall comply with
Section 6(g) of the Purchase Agreement.
4. FORFEITURE OF TRW SHARES.
(a) If by March 1, 1997 (the "Funding Date"), the
Financing has not been secured or committed, or the Company has not entered
into a definitive sublicense agreement with a third party for the manufacture
of Licensed Products, then the Company shall have the immediate right to redeem
any or all of the TRW Shares for an aggregate purchase price of $1.00.
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(b) If the Foundry is not an Operational Foundry on or
before December 31, 1998 (or such other date as to which the parties mutually
agree pursuant to Section 8.2.2 of the License Agreement) (the "Target Date"),
the Company shall have the immediate right to redeem as much as one-half of the
TRW Shares for an aggregate purchase price of $1.00.
(c) Upon the exercise by the Company of the redemption
rights provided in Sections 2 or 3 above or this Section 4, TRW agrees to
execute any stock power or other documentation necessary to transfer the TRW
Shares being redeemed to the Company and the Company agrees promptly to issue a
new certificate representing the balance, if any, of the TRW Shares not so
redeemed. Until surrendered, each outstanding certificate representing any TRW
Share to be redeemed shall represent only the right to receive the cash
redemption consideration provided herein and no interest will be paid or
accrued thereon upon the surrender of the certificate or certificates
representing such TRW Shares. With respect to any certificate for TRW Shares
that has been lost or destroyed, TRW shall provide an indemnity reasonably
satisfactory to the Company. After the date fixed for redemption of any TRW
Shares, no transfer thereof shall be made on the stock transfer books of the
Company and such shares shall not be considered outstanding for any purpose.
5. COMPLIANCE WITH LAW.
Upon the request of either party hereto based on the advice of
its counsel, the parties agree to cooperate in good faith with one another to
determine whether compliance with the provisions of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), is required
prior to the date any TRW Share ceases to be subject to redemption in
accordance with Section 4 above. If action is taken by the Federal Trade
Commission or the United States Department of Justice to enjoin TRW's retention
of any TRW Share, the Company agrees to reasonably cooperate with TRW, at TRW's
request and expense, to contest such enjoinment.
6. MISCELLANEOUS.
(a) This Agreement, together with the Purchase Agreement
and the other documents attached or referred to therein (including the License
Agreement), constitute the entire agreement between the parties with respect to
the subject matter hereof.
(b) This Agreement may not be modified or amended except
by an instrument in writing signed by the Company and TRW. The consent of the
Proxy Holder shall not be required to amend this Agreement unless this Section
6(b) is being amended or additional duties are required of such Proxy Holder
pursuant to such amendment, in which case the consent of the Proxy Holder shall
be required for such an amendment.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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(d) This Agreement shall terminate on March 31, 1997 if
by the Funding Date, the Financing has not been secured or committed, or the
Company has not entered into a definitive sublicense agreement with a third
party for the manufacture of Licensed Products or if not then terminated, 30
days after the Target Date.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina, without regard to its
provisions regarding conflicts of law.
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IN WITNESS WHEREOF, this Restricted Stock Agreement has been executed
in behalf of the Company and TRW as the date set forth above.
RF MICRO DEVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
TRW INC.
By: /s/ X.X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Executive Vice President
PROXY HOLDER:
/s/ Xxxxx X. Xxxxxxx (SEAL)
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Xxxxx X. Xxxxxxx
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