STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of December 23,
1997, between Ramtron International Corporation, a Delaware corporation (the
"Corporation"), and (name) whose name is set forth at the foot of this
Agreement (the "Purchaser").
The Corporation and the Purchaser hereby agree as follows:
SECTION 1
Authorization, Purchase and Sale of the Stock
1.1 Authorization of the Stock. The Corporation has authorized issuance and
sale of (number of) shares of its common stock (the "Stock") to Purchaser as
herein provided.
1.2 Sale and Purchase of the Stock. At the Closing, subject to the terms and
conditions hereof and in reliance upon the representations, warranties and
agreements contained herein, the Purchaser will purchase the Stock from the
Corporation at a purchase price of $4.93 per share, ($ amount) in total.
SECTION 2
Closing, Payment and Delivery
2.1 Closing Date and Place of Closing. The closing shall be held as soon as
practicable, and in no event more than 10 business days after execution of
this Agreement, on such date as the Corporation and the Purchaser may agree to
(the "Closing Date") and shall be held at the offices of (NAME AND ADDRESS).
2.2 Payment and Delivery. At the Closing, the Purchaser will pay or cause to
be paid to the Corporation by wire funds transfer the entire purchase price.
The Corporation will deliver in advance of the Closing to an institutional
custodian designated by the Purchaser a certificate or certificates,
registered in such name or names as Purchaser may designate, representing all
of the Stock, with instructions that such certificates are to be held for the
account of Purchaser upon payment of the purchase price.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
Purchaser agree to use their respective best efforts and to act in good faith
to cause to occur all conditions to Closing which are in their respective
control.
SECTION 3
Purchase Price Adjustment
3.1 Subsequent Sale at Lower Price. If during the twelve month period
following the Closing Date, the Corporation sells any shares of its common
stock for a selling price lower than the purchase price per share set forth in
Section 1.2 hereof, to anyone other than Purchaser or an entity advised by
Dimensional Fund Advisors Inc., the purchase price per share of the Stock sold
to Purchaser hereunder shall be adjusted downward to equal such lower selling
price. The Corporation shall give to the Purchaser prompt written notice of
any such sale.
3.2 Adjustment Mechanism. If an adjustment of the purchase price is required
pursuant to this Section the Corporation shall immediately deliver to
Purchaser such number of additional shares of common stock as will cause
(i) the total number of shares of common stock delivered to Purchaser
hereunder, multiplied by (ii) the adjusted purchase price per share, to equal
(iii) the total purchase price set forth in Section 1.2 hereof; provided
however, that the Corporation shall effect such adjustment in cash, in whole
or in part, to the extent required by the following subsection.
3.3 Limitation on Number of Shares. Purchaser and other entities advised by
Dimensional Fund Advisors Inc. shall not be required to accept, by way of any
such adjustment, a number of shares of the Corporation such that the total
number of such shares held by Purchaser and such other entities, which were
held by them on the date of this Agreement or acquired by them pursuant to
this Agreement or agreements of like tenor with such other entities, would
exceed 4.99% of the total outstanding stock of the Corporation. The
Corporation shall effect the adjustment required by this Section by cash
refund to the extent necessary to avoid causing the aforesaid limitation to be
exceeded.
3.4 Capital Adjustments. In case of any stock split or reverse stock split,
stock dividend, reclassification of the common stock, recapitalization, merger
or consolidation, or like capital adjustment affecting the common stock of the
Corporation, the provisions of this Section shall be applied as if such
capital adjustment event had occurred immediately prior to the Closing Date
and the original purchase price had been fairly allocated to the stock
resulting from such capital adjustment; and in other respects the provisions
of this Section shall be applied in a fair, equitable and reasonable manner so
as to give effect, as nearly as may be, to the purposes hereof.
3.5 Exclusions. Section 3.1 shall not apply to sales of shares by the
Corporation (i) upon conversion or exercise of any convertible securities,
options or warrants outstanding on the date hereof, if the conversion or
exercise price thereof is fixed at the date of this Agreement, or
(ii) pursuant to the provisions of any shareholder-approved employee benefit
or incentive plan heretofore or hereafter adopted by the Corporation.
3.6 Definitions. For purposes of Section 3.1 hereof, a sale of shares shall
mean and include the sale or issuance of rights, options, warrants or
convertible securities under which the Corporation is or may become obligated
to issue shares of common stock, and the "selling price" of the common stock
covered thereby shall be the exercise or conversion price thereof plus the
consideration (if any) received by the Corporation upon such sale or issuance.
In case of any such security presently outstanding or issued within twelve
months after the Closing Date, if the conversion or exercise price is
variable, the "selling price" shall be deemed to be the lowest conversion or
exercise price of such security during its life after the Closing. If shares
are issued for a consideration other than cash, the "selling price" shall be
the fair value of the such consideration as determined in good faith by the
Board of Directors of the Corporation. The term "Stock" as used in this
Agreement shall include shares issued pursuant to this Section.
SECTION 4
Representations and Warranties of the Corporation
The Corporation hereby represents and warrants to the Purchaser that:
4.1 Corporate Power, Qualification and Standing. The Corporation and its
subsidiaries are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation and each of them is qualified to
transact business in each jurisdiction in which its ownership of property or
conduct of activities requires such qualification. The Corporation has all
requisite corporate power and authority to enter into this Agreement, to sell
the Stock and to carry out and perform its other obligations under this
Agreement.
4.2 S.E.C. Reports; Financial Statements. The common stock of the
Corporation is registered under Section 12(b) or (g) of the Securities
Exchange Act of 1934 and the Corporation is in full compliance with its
reporting and filing obligations under said Act. The Corporation has
delivered to Purchaser its Annual Reports to shareholders and its reports on
Form 10K for its last three fiscal years, and all its quarterly reports to
shareholders, quarterly reports on Form 10Q, and each other report,
registration statement, definitive proxy statement or other document filed
with the S.E.C. since the beginning of said three fiscal years (collectively,
the "SEC Reports"). The SEC Reports do not (as of their respective dates)
contain any untrue statement of a material fact or omit to state a 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. The audited and unaudited financial statements of the Corporation
included in the SEC Reports (the "Financial Statements") have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis (except as stated in such Financial Statements or the notes
thereto) and fairly present the financial position of the Corporation and its
consolidated subsidiaries as of the dates thereof and the results of their
operations and changes in financial position for the periods then ended.
Except as publicly disclosed by the Corporation in the SEC Reports or
otherwise, since the end of the most recent of said fiscal years there has
been no material adverse change in the business, financial condition, or
results of operations of the Corporation and its subsidiaries taken together,
and there is no existing condition, event or series of events which can
reasonably be expected to have a material adverse effect on the business,
financial condition or results of operations of the Corporation and its
subsidiaries taken together, or its ability to perform its obligations under
this Agreement.
4.3 Authorization; No Conflict. Execution and delivery of this Agreement and
issuance and sale of the Stock have been duly authorized by all necessary
corporate action of the Corporation, and the Stock when issued will be validly
issued, fully paid and non-assessable. Performance by the Corporation of its
obligations under this Agreement will not conflict with or violate (i) the
charter documents or bylaws of the Corporation, (ii) any indenture, loan
agreement, lease, mortgage or other material agreement binding on the
Corporation, (iii) any order of a court or administrative agency binding on
the Corporation, or (iv) any applicable law or governmental regulation; and
such performance does not and will not require the permission or approval of
any governmental agency other than the Securities and Exchange Commission in
connection with registration, and will not result in the imposition or
creation of any lien or charge against any assets of the Corporation. Except
as disclosed in the Financial Statements and SEC Reports (i) the Corporation
has no obligation to redeem or repurchase any of its equity securities,
(ii) no shareholder or other person has pre-emptive or other rights to acquire
equity securities of the Corporation, and (iii) the Corporation has no
obligation to register any of its securities otherwise than pursuant to
Section 8 of this Agreement or as disclosed on Exhibit A hereto.
4.4 Material Agreements; No Defaults. All material indentures, loan
agreements, leases, mortgages and other agreements binding on the Corporation
or its subsidiaries are identified in the list of exhibits contained in the
Corporation's most recent 10K report ("Other Agreements"), except agreements
entered into in the ordinary course which are not required to be so
identified. No material default on the part of the Corporation or any of its
subsidiaries (including any event which, with notice or the passage of time,
would constitute a default) exists under any of the Other Agreements.
4.5 Material Liabilities. Except for liabilities disclosed in the Financial
Statements or the SEC Reports, and obligations under the Other Agreements, the
Corporation and its subsidiaries have no material liabilities or obligations,
absolute or contingent, other than liabilities arising in the ordinary course
of business subsequent to the date of the most recent of the Financial
Statements.
4.6 Properties. The Corporation and its subsidiaries (i) have good title to
the properties and assets reflected in the Financial Statements as owned by
them, (ii) have valid leasehold interests in the properties leased by them,
and (iii) own or have the right to use under valid license agreements all
trademarks, trade names, copyrights, patents and other intellectual property
rights regularly utilized by them; subject in each case to no material liens,
security interests or adverse claims except as disclosed in the Financial
Statements or SEC Reports.
4.7 Litigation. There are no material legal actions, arbitrations, or
administrative proceedings pending against the Corporation or its
subsidiaries, except for the matters disclosed in the SEC Reports or in
Exhibit A hereto.
4.8 Tax Matters. The Corporation and its subsidiaries have filed on a timely
basis all tax returns required to be filed by them and have paid their taxes
prior to delinquency, and have made adequate accruals for tax liabilities on
the Financial Statements in accordance with generally accepted accounting
principles.
4.9 ERISA Compliance. Neither the Corporation nor any of its subsidiaries
has incurred any material funding deficiency within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or any
material liability to the Pension Benefit Guarantee Corporation in connection
with any employee benefit plan. The Corporation and its subsidiaries are in
compliance in all material respects with all applicable provisions of ERISA,
and have no obligations with respect to any multi-employer plan. No
"reportable event" as such term is defined in ERISA, which may result in any
material liability, has occurred with respect to any employee benefit or other
plan maintained for employees of the Corporation or any subsidiary.
4.10 Environmental Matters. Except as disclosed in the SEC Reports, neither
the Corporation nor any of its subsidiaries (i) has been notified by any
governmental authority that it is, or may be, a Responsible Party with respect
to cleanup or remediation of any environmental condition or hazardous waste
site, (ii) has violated any law, regulation, order or requirement of
governmental authority with respect to Hazardous Substances, or (iii) has
incurred any material liability for violation or noncompliance with applicable
Environmental Regulations. The term "Environmental Regulations" means any
law, regulation, order or requirement relating to protection of the
environment, including without limitation, the Clean Air Act, the Clean Water
Act, the Comprehensive Environmental Response, Compensation and Liability Act,
the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act and the Toxic Substances Control Act. The term "Hazardous
Substance" means any substance defined or listed as such in any Environmental
Regulation.
4.11 Other Matters. The Corporation is not now and will not be after giving
effect to the receipt of the proceeds from the sale of the Stock an
"Investment Company" within the meaning of the Investment Company Act of 1940,
nor will it be controlled by or acting on behalf of any person which is such
an investment company. The Corporation is not selling the Stock "for the
purpose of purchasing or carrying any margin stock" within the meaning of
Regulation G of the Board of Governors of the Federal Reserve System. The
Corporation has not offered this Stock to any person other than the Purchaser.
SECTION 5
Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Corporation that:
5.1 Corporate Power and Authority. It is validly existing and in good
standing with all requisite power and authority to enter into this Agreement
and carry out its obligations hereunder and has taken all actions necessary to
authorize it to enter into this Agreement and carry out such obligations and
such performance will not violate any law, regulation or agreement binding on
Purchaser.
5.2 Investment. It is acquiring the Stock for investment and not with the
view to, or for resale in connection with, any distribution thereof. It is an
"accredited investor" within the meaning of the Securities Act of 1933 and the
rules thereunder. It understands that the Stock has not been registered under
the Securities Act of 1933 nor qualified under any State blue sky law by
reason of specified exemptions therefrom which depend upon, among other
things, the bona fide nature of its investment intent as expressed herein.
5.3 Rule 144. It acknowledges that the Stock must be held indefinitely
unless it is subsequently registered under the Securities Act of 1933 or an
exemption from such registration is available. It has been advised or is
aware of the provisions of Rule 144 promulgated under the Securities Act.
SECTION 6
Conditions to Obligations of the Purchaser
The obligation of the Purchaser to purchase the Stock is subject to the
fulfillment on or prior to the Closing Date of each of the following
conditions:
(a) Representations and Warranties. The representations and warranties of
the Corporation shall be true and correct in all material respects on the
Closing Date.
(b) Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Corporation on or prior
to the Closing Date shall have been performed or complied with in all material
respects.
(c) Opinion of Corporation's Counsel. The Purchaser shall have received
from counsel to the Corporation an opinion confirming the representations set
forth in the first sentence of Section 4.3 hereof, and on the basis of such
counsel's review of the Other Agreements and certificates of officers of the
Corporation as to factual matters, confirming the representations set forth in
the second and third sentences of Section 4.3 hereof.
(d) Legal Issuance. At the time of the Closing, the issuance and purchase
of the Stock shall be legally permitted by all laws and regulations to which
the Purchaser and the Corporation are subject.
(e) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be satisfactory in form and
substance to the Purchaser and its counsel.
(f) Satisfaction of Obligations to Broker. The Corporation shall have
furnished the Purchaser with assurances satisfactory to the Purchaser that the
Corporation has satisfied its obligations to any broker entitled to
compensation in connection with the sale of the Stock.
SECTION 7
Conditions to Obligations of the Corporation
The Corporation's obligation to sell the Stock is subject to the fulfillment
on or prior to the Closing Date of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
made by the Purchaser shall be true and correct in all material respects on
the Closing Date.
(b) Legal Issuance. At the time of the Closing, the issuance and purchase
of the Stock shall be legally permitted by all laws and regulations to which
the Purchaser and the Corporation are subject.
(c) Payment. The Corporation shall concurrently receive payment for the
Stock as provided in Section 2.
SECTION 8
Covenant to Register
(a) For purposes of this Section 8, the following definitions shall apply:
(i) The terms "register", "registered", and "registration" refer to a
registration under the Securities Act of 1933, as amended (the "Act") effected
by preparing and filing a registration statement or similar document in
compliance with the Act or an amendment thereto, and the declaration or
ordering of effectiveness of such registration statement, document or
amendment thereto.
(ii) The term "Registrable Securities" means the Stock and any
securities of the Corporation or securities of any successor corporation
issued as, or issuable upon the conversion or exercise of any warrant, right
or other security that is issued as, a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Stock.
(b) (i) At any time after one hundred and twenty (120) days after the
date of this Purchase Agreement and from time to time thereafter, Purchaser
shall have the right to require by notice in writing that the Corporation
register all or any part of the Registrable Securities held by Purchaser (a
"Demand Registration") and the Corporation shall thereupon effect such
registration in accordance herewith. As a separate covenant, the Corporation
agrees to file a registration statement on Form S-3 in order to register the
resale of the Stock and to cause such registration statement to be declared
effective within one hundred twenty (120) days of Closing. A 3% cash penalty
will accrue for every thirty (30) days after such date that the securities
remain unregistered. The penalty shall be pro-rated for periods of less than
thirty (30) days.
(ii) The Corporation shall not be obligated to effect Demand
Registration (i) if all of the Registrable Securities held by Purchaser which
are intended to be covered by the Demand Registration are, at the time of the
request of a Demand Registration, included in an effective registration
statement and the Corporation is in compliance with its obligations under
Subsection (d)(ii) through (v) hereof with respect to such registration
statement, or (ii) within 120 days after the effective date of any other
registration as to which Purchaser was given piggy-back rights pursuant to
subsection (c) hereof and in which Purchaser was able to register and sell at
least eighty percent (80%) of the Registrable Securities requested by
Purchaser to be included in such registration.
(c) If the Corporation proposes to register (including for this purpose a
registration effected by the Corporation for shareholders other than the
Purchaser) any of its stock or other securities under the Act in connection
with a public offering of such securities (other than a registration on Form
X-0, Xxxx X-0 or other limited purpose form) and the Registrable Securities
have not heretofore been included in a registration statement under
Subsection (b), which remains effective, the Corporation shall, at such time,
promptly give the Purchaser written notice of such registration. Upon the
written request of the Purchaser given within twenty (20) days after receipt
of such notice by the Purchaser, the Corporation shall cause to be registered
under the Act all of the Registrable Securities that the Purchaser has
requested to be registered. However, the Corporation shall have no obligation
under this Subsection (c) to the extent that, with respect to a public
offering registration, any underwriter of such public offering reasonably
requests that the Registrable Securities or a portion thereof be excluded
therefrom.
(d) Whenever required under this Section 8 to effect the registration of
any Registrable Securities, the Corporation shall, as expeditiously as
reasonably possible:
(i) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration to become effective and, upon the request of the Purchaser, keep
such registration statement effective for so long as Purchaser desires to
dispose of the securities covered by such registration statement (but not
after Purchaser in the reasonable opinion of its counsel is free to sell such
securities under the provisions of Rule 144(k) under the Act).
(ii) Prepare and file with the SEC such amendments and supplements to
such registration statements and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement.
(iii) Furnish to the Purchaser such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as the Purchaser may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by Purchaser.
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by Purchaser,
provided that the Corporation 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 and process in any such states or jurisdictions.
(v) Notify Purchaser of the happening of any event as a result of
which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(vi) Furnish, at the request of Purchaser, an opinion of counsel of
the Corporation, dated the effective date of the registration statement, as to
the due authorization and issuance of the securities being registered and
compliance with securities laws by the Corporation in connection with the
authorization and issuance thereof.
(e) The Purchaser will furnish to the Corporation in connection with any
registration under this Section 8 such information regarding itself, the
Registrable Securities and other securities of the Corporation held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of the Registrable Securities held by Purchaser.
(f) (i) The Corporation shall indemnify, defend and hold harmless each
holder of Registrable Securities which are included in a registration
statement pursuant to the provisions of Subsections (b) or (c), any
underwriter (as defined in the Act) for such holder, and the directors,
officers and controlling persons of such holder or underwriter from and
against, and shall reimburse all of them with respect to, any and all claims,
suits, demands, causes of action, losses, damages, liabilities, costs or
expenses ("Liabilities") to which any of them may become subject under the Act
or otherwise, arising from or relating to (A) any untrue statement or alleged
untrue statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or supplement
thereto, or (B) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; provided, however, that the Corporation shall not be liable in any
such case to the extent that any such Liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by such person in
writing specifically for use in the preparation thereof.
(ii) Each holder of Registrable Securities included in a registration
pursuant to the provisions of Subsection (b) or (c) shall indemnify, defend,
and hold harmless the Corporation, its directors, officers and controlling
persons, and shall reimburse the Corporation, its directors, officers and
controlling persons with respect to, any and all Liabilities to which any of
them may become subject under the Act or otherwise, arising from or relating
to (A) any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or (B) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was so made in reliance upon and in strict conformity with written
information furnished by or on behalf of such holder specifically for use in
the preparation thereof.
(iii) Promptly after receipt by an indemnified party pursuant to the
provisions of Subsection (f) (i) or (f) (ii) of notice of the commencement of
any action involving the subject matter of the foregoing indemnity provisions,
such indemnified party shall, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of Subsection (f)(i) or (f)(ii),
promptly notify the indemnifying party of the commencement thereof; provided,
however, that the failure to so notify the indemnifying party shall not
relieve it from its indemnification obligations hereunder except to the extent
that the indemnifying party is materially prejudiced by such failure. If such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses different from or in addition to
those available to the indemnifying party, or if there is conflict of interest
which would prevent counsel for the indemnifying party from also representing
the indemnified party, the indemnified party shall have the right to select
separate counsel to participate in the defense of such action on behalf of
such indemnified party. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party pursuant to
Subsection (f)(i) or (f)(ii) for any expense of counsel subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless (A) the indemnified party shall have
employed counsel in accordance with the provisions of the preceding sentence,
or (B) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after the notice of the commencement of the action. An indemnifying party
shall not be responsible for amounts paid in settlement without its consent,
provided that its consent may not be unreasonably withheld.
(g) (i) With respect to the inclusion of Registrable Securities in a
registration statement pursuant to subsections (b) or (c), all fees, costs and
expenses of and incidental to such registration, inclusion and public offering
shall be borne by the Corporation; provided, however, that any securityholders
participating in such registration shall bear their pro rata share of the
underwriting discounts and commissions, if any.
(ii) The fees, costs and expenses of registration to be borne by the
Corporation as provided in this Subsection (g) shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees
and disbursements of counsel and accountants for the Corporation, and all
legal fees and disbursements and other expenses of complying with state
securities or Blue Sky laws of any jurisdiction or jurisdictions in which
securities to be offered are to be registered and qualified. Fees and
disbursements of counsel and accountants for the selling securityholders
shall, however, be borne by the respective selling securityholder.
(e) The rights to cause the Corporation to register all or any portion of
Registrable Securities pursuant to this Section 8 may be assigned by Purchaser
to a transferee or assignee of 20% or more of the Stock. Within a reasonable
time after such transfer the Purchaser shall notify the Corporation of the
name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned. Such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted
under the Act. Any transferee asserting registration rights hereunder shall
be bound by the provisions of this Section 8.
(f) From and after the date of this Agreement, the Corporation shall not
agree to allow the holders of any securities of the Corporation to include any
of their securities in any registration statement filed by the Corporation
pursuant to Subsection (b) unless the inclusion of such securities will not
reduce the amount of the Registrable Securities included therein.
SECTION 9
Affirmative Covenants of the Corporation
The Corporation hereby covenants that, during such time as the Purchaser (or
one of its affiliates) owns any Stock, or for four years, whichever period is
shorter:
9.1 Reports and Financial Statements.
(a) The Corporation will cause its common stock to continue to be
registered under Sections 12(b) or 12(g) of the Securities Exchange Act of
1934, will comply in all respects with its reporting and filing obligations
under said Act, and will not take any action or file any document (whether or
not permitted by said Act or the rules thereunder) to terminate or suspend
such registration or to terminate or suspend its reporting and filing
obligations under said Act. The Corporation will take all action necessary to
continue the listing or trading of its common stock on any national securities
exchange or the Automated Quotation System of the National Association of
Securities Dealers on which such common stock is listed or traded, and will
comply in all respects with its reporting, filing and other obligations under
the bylaws or rules of said exchange or Association.
(b) The Corporation will furnish to the Purchaser, concurrently with the
distribution or filing thereof, each annual and quarterly report to its
shareholders, its reports on Form 10K and 10Q, and each other report,
registration statement, definitive proxy statement or other document filed
with the S.E.C., and each press release or other public announcement issued by
the Corporation.
9.2 Maintenance of Office. The Corporation will maintain an office or agency
in the United States at such address as may be designated in writing from time
to time to the registered holders of the Stock, where notices, presentations
and demands to or upon the Corporation in respect of the Stock may be given or
made. Unless or until another office or agency is designated by the
Corporation, such office shall be at the address set forth adjacent to the
name of the Corporation at the foot of this Agreement.
9.3 Maintenance and Compliance. The Corporation will (i) maintain its
corporate existence, rights, powers and privileges in good standing,
(ii) comply in all material respects with all laws and governmental
regulations and restrictions applicable to its business or properties,
(iii) keep records and books of account and maintain a system of internal
accounting controls in accordance with generally accepted accounting
principles and in compliance with Section 13(b)(2) of the Securities Exchange
Act of 1934, and (iv) retain independent public accountants of recognized
national standing as auditors of the Corporation's annual financial
statements.
9.4 Assignment of Rights. The rights of the Purchaser hereunder may be
assigned by the Purchaser in connection with the transfer or assignment to a
single transferee of not less than 20% of the Stock originally purchased by
the Purchaser hereunder, and such rights may be further reassigned by such
transferee to another such single transferee. Any transferee asserting rights
under this Agreement shall be bound by its provisions.
9.5 Effect of Covenants. The covenants in Sections 9.1 and 9.3 shall not be
deemed to prohibit a merger, sale of all assets or other corporate
reorganization if (i) the entity surviving or succeeding to the Corporation is
bound by this Agreement with respect to its securities issued in exchange for
or replacement of the Stock, or (ii) the consideration received in exchange
for or replacement of the Stock is cash.
SECTION 10
Legend on Stock
Each certificate representing the Stock shall be stamped or otherwise
imprinted with a legend substantially in the following form (in addition to
any legend required under any applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Upon request of a holder of Stock the Corporation shall remove the foregoing
legend or issue to such holder a new certificate therefor free of any such
legend, if the Corporation shall have received either an opinion of counsel or
a "no-action" letter of the S.E.C., in either case reasonably satisfactory in
substance to the Corporation and its counsel, to the effect that such legend
is no longer required.
