COMMON STOCK AND WARRANTS PURCHASE AGREEMENT
This Common Stock and Warrants Purchase Agreement (the "Agreement") is dated
and made effective December 13, 1999, by and among Ramtron International
Corporation, a Delaware corporation (the "Corporation"), and each of the
undersigned purchasers severally (a "Purchaser" and, cumulatively, the
"Purchasers").
The Corporation and the Purchasers hereby agree as follows:
Section 1. Authorization, Purchase and Sale of Shares of Common Stock and of
Warrants
1.1 Authorization of the Stock and Warrants. The Corporation has authorized
issuance and sale of up to 1,250,000 shares of its Common Stock (the "Stock")
and of 2,500,000 Common Stock Purchase Warrants (as hereinafter defined, the
"Warrants") to the Purchasers on the terms and conditions set forth herein.
1.2 Sale and Purchase of the Stock and Warrants. Subject to the terms of and
the satisfaction or waiver of the conditions set forth in this Agreement, the
issuance, sale and purchase of the Stock and the Warrants shall be consummated
in one closing (hereinafter referred to as the "Closing"). At the Closing,
subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements contained herein, the Corporation
shall issue and sell to each Purchaser and each Purchaser shall purchase from
the Corporation: (a) the number (the "Purchase Number") of shares of Stock set
forth under such Purchaser's name on the signature pages hereof for a purchase
price of $5.4066 per share (the "Share Purchase Price"), which is equal to the
average of the last recorded sale price for the Corporation's Common Stock on
The Nasdaq SmallCap Market on each of the five business days immediately
preceding the Closing Date (as hereinafter defined), (b) warrants having a
two-year exercise term to purchase the Purchase Number of shares of the
Corporation's Common Stock at an exercise price equal to two hundred percent
(200%) of the Share Purchase Price (the "A Warrants"), for a warrant purchase
price of $0.125 per warrant, and (c) warrants having a two-year exercise term
to purchase the Purchase Number of shares of the Corporation's Common Stock at
an exercise price equal to three hundred percent (300%) of the Share Purchase
Price (the "B Warrants"), for a warrant purchase price of $0.125 per warrant.
The A Warrants and the B Warrants are cumulatively herein called the
"Warrants." The shares of the Corporation's Common Stock issuable upon
exercise of the A Warrants and B Warrants are sometimes hereinafter
collectively called the "Warrant Shares." The Warrants will be in the form
and have the content of Exhibit A hereto, with the respective exercise prices
inserted in the A Warrants and the B Warrants.
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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 two (2) business days, after execution
of this Agreement, on such date as the Corporation and the Purchasers may
agree (the "Closing Date") and shall be held at the offices of the
Corporation, Ramtron International Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other place as the Corporation and the
Purchasers may agree.
2.2 Payment and Delivery; Unaffiliated Purchasers. At the Closing, each
Purchaser will pay or cause to be paid to the Corporation by wire funds
transfer in accordance with the Corporation's wiring instructions the entire
purchase price for the Stock and Warrants to be purchased by such Purchaser.
The Corporation will deliver in advance of the Closing to an institutional
custodian or other agent designated by the Purchasers, certificates,
registered in such name or names as each Purchaser shall respectively
designate in writing to the Corporation, or, if no designation is received
prior to the Closing Date, one certificate for all Stock and one certificate
each for the A Warrants and the B Warrants in each respective Purchaser's
name, representing all of the Stock and Warrants purchased with instructions
that such certificates are to be held for the respective accounts of the
Purchasers upon payment of the purchase price. The obligations in this
Agreement of each Purchaser shall be separate from the obligations of each
other Purchaser and shall relate solely to the Stock and Warrants to be
purchased by such Purchaser. The obligations of the Company with respect to
each Purchaser shall be separate from the obligations of the Company to each
other Purchaser and shall not be conditioned as to any Purchaser upon the
performance of the obligations of any other Purchaser.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
Purchasers 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. Representations and Warranties of the Corporation
The Corporation hereby represents and warrants to the Purchasers that:
3.1 (a) 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
Warrants and to carry out and perform its other obligations under
this Agreement and the Warrants.
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(b) Capital Structure. The authorized capital stock of Corporation
consists of 50,000,000 shares of Common Stock, $0.01 par value, and
10,000,000 shares of Preferred Stock, $0.01 par value, of which
there are 13,656,606 shares of Common Stock and 872 shares of
Preferred Stock issued and outstanding shares as of the date hereof.
All outstanding shares of the Corporation's Common Stock are duly
authorized, validly issued, fully paid and non-assessable and are
free of any liens or encumbrances other than any liens or
encumbrances created by or imposed upon the holders thereof, and are
not subject to preemptive rights or rights of first refusal created
by statute, the Certificate of Incorporation or Bylaws of the
Corporation or any agreement to which the Corporation is a party or
by which it is bound.
3.2 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, as amended (the "Exchange Act") and the Corporation is
in full compliance with its reporting and filing obligations under the
Exchange Act. The Corporation has delivered to each Purchaser its Annual
Reports to shareholders and its reports on Form 10K for its last two fiscal
years and all of 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. under the Exchange Act since
December 31, 1998 (collectively, the "SEC Reports"). All documents required
to be filed as exhibits the SEC Reports have been filed. 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") are complete as of their respective dates and correct
in all material respects and 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 December 31, 1998, 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 except as disclosed in the SEC Reports 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 the Corporation's
ability to perform its obligations under this Agreement.
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3.3 Authorization; No Conflict. The Corporation's execution and delivery of
this Agreement and issuance and sale of the Stock and the Warrants to the
Purchasers, and the reservation for issuance and issuance in accordance with
the terms of the Warrants of the Warrant Shares, have been duly authorized by
all necessary corporate action of the Corporation, and the Stock and the
Warrant Shares when issued will be duly and validly issued, fully paid and
non-assessable, and free of all liens, claims and encumbrances other than any
liens or encumbrances created by or imposed upon the holders thereof. The
Corporation's execution and delivery of this Agreement and issuance and sale
of the Stock and the Warrants to the Purchasers, and the reservation for
issuance and issuance of the Warrant Shares in accordance with the terms of
the Warrants, does not and will not require the approval of the Corporation's
shareholders under Delaware law, or under the applicable rules of The Nasdaq
Stock Market or of the SEC. Performance by the Corporation of its obligations
under this Agreement will not conflict with or violate (i) the Certificate of
Incorporation 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 (A) the Securities and Exchange Commission
in connection with registration of the Purchasers' resale of the Stock and
Warrant Shares and (B) notice to The Nasdaq National Market of such issuance
as required pursuant to the Nasdaq Rules, and will not result in the
imposition or creation of any lien or charge against any assets of the
Corporation. Except (X) the agreement by the Corporation to pay to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇/ACI Research a placement agency fee of an amount equal to six percent
(6%) of the purchase price of the Stock paid by the Purchasers, and to issue
to ▇▇. ▇▇▇▇▇▇▇▇ that number of warrants equal to six percent (6%) of the
cumulative number of Warrants issued to the Purchasers introduced to the
Company by ▇▇. ▇▇▇▇▇▇▇▇; (Y) the agreement by the Corporation to issue Common
Stock and Warrants to another institutional investor (the "Contemporaneous
Investor") on substantially the same terms as the sale to the Purchasers
hereunder; and (Z) except as disclosed in the Financial Statements or 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 other than
pursuant to Section 7 of this Agreement or as disclosed on Exhibit B hereto.
3.4 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 or are exhibits to SEC Reports
subsequently filed (cumulatively, "Other Agreements"), except agreements
entered into in the ordinary course of business 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.
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3.5 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.
3.6 Properties. The Corporation owns all outstanding shares of its
subsidiaries, and the Corporation and its subsidiaries (i) have good and valid
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 and subject to the rights of the
parties in the Other Agreements.
Intellectual Property.
(a) The Corporation and its subsidiaries own, or are licensed or
otherwise possess legally enforceable and unencumbered rights to use,
all patents, trademarks, trade names, service marks, domain names,
database rights, copyrights, and any applications therefor,
maskworks, net lists, schematics, technology, know-how, trade
secrets, inventory, ideas, algorithms, processes, computer software
programs or applications (in both source code, except in
circumstances where Corporation only possesses a license to the
object code form, and object code form), and tangible or intangible
proprietary information or material ("Intellectual Property") that
are used in the respective businesses of Corporation and its
subsidiaries. The Corporation owns and possesses source code for all
software, if any, owned by Corporation and owns or has valid licenses
and possesses source code for any software embedded in any products
owned, distributed and presently supported by Corporation. Except as
disclosed in the SEC Reports and exhibits thereto and the
Corporation's public announcements and press releases made from time
to time, the Corporation has not (i) licensed any of its Intellectual
Property in source code form to any party or (ii) entered into any
exclusive agreements relating to its Intellectual Property.
(b) The SEC Reports and exhibits thereto and the Corporation's public
announcements and press releases made from time to time disclose
(i) all patents and patent applications and all registered
trademarks, trade names and service marks, registered copyrights, and
maskworks included in them Intellectual Property, including the
jurisdictions in which each such Intellectual Property right has been
issued or registered or in which any application for such issuance
and registration has been filed, (ii) all licenses, sublicenses and
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other agreements as to which Corporation is a party and pursuant to
which any person is authorized to use any Intellectual Property
(except for non-material licenses entered into by Corporation in the
ordinary course of business), and (iii) all licenses, sublicenses and
other agreements as to which Corporation is a party and pursuant to
which Corporation is authorized to use any third party patents,
trademarks or copyrights, including software ("Third Party
Intellectual Property Rights") which are incorporated in, are, or
form a part of any Corporation product, other than commercially
available, off-the-shelf software.
(c) The Corporation knows of no unauthorized use, disclosure,
infringement or misappropriation of any material Intellectual
Property rights of the Corporation or any of its subsidiaries, or of
any material Intellectual Property right of any third party to the
extent licensed by or through Corporation or any of its subsidiaries,
by any third party, including any employee or former employee of
Corporation or any of its subsidiaries. Neither the Corporation nor
any of its subsidiaries has entered into any agreement to indemnify
any other person against any charge of infringement of any
Intellectual Property, other than indemnification provisions
contained in purchase orders, license agreements and distribution and
other customer agreements disclosed in the SEC Reports and exhibits
thereto and the Corporation's public announcements and press releases
made from time to time or arising in the ordinary course of business.
(d) So far as is known by the Corporation, except as disclosed in the SEC
Reports and exhibits thereto and the Corporation's public
announcements and press releases made from time to time, (i) all
patents, trademarks, service marks and copyrights held by Corporation
or its subsidiaries are valid and subsisting; (ii) neither the
Corporation or any of its subsidiaries (A) has been sued in any suit,
action or proceeding (or received any notice or, to the Corporation's
knowledge, threat) which involves a claim of infringement of any
patents, trademarks, service marks, copyrights or violation of any
trade secret or other proprietary right of any third party or (B) has
brought any action, suit or proceeding for infringement of
Intellectual Property or breach of any license or agreement involving
Intellectual Property against any third party; and (iii) the
manufacture, marketing, licensing or sale of Corporation's products
does not infringe any patent, trademark, service ▇▇▇▇, copyright,
trade secret or other proprietary right of any third party.
(e) The Corporation and its subsidiaries have taken all reasonably
necessary steps to protect and preserve the confidentiality of its
and their respective Intellectual Property not otherwise protected by
patents or patent applications or copyright ("Confidential
Information"). All use, disclosure or appropriation of any material
Confidential Information by or to a third party has been pursuant to
the terms of a written agreement between Corporation and such third
party.
Page 9
3.8 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 B hereto.
3.9 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.
3.10 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.
3.11 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 (as defined
in the "Environmental Regulations") 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 and any applicable equivalent state laws.
The term "Hazardous Substance" means any substance defined or listed as such
in any Environmental Regulation.
3.12 Compliance with Laws. Each of the Corporation and its subsidiaries has
complied with, is not in violation of, and has not received any notices of
violation with respect to, any federal, state, local or foreign statute, law
or regulation with respect to the conduct of its business, or the ownership or
operation of its business, except for such violations or failures to comply as
would not be reasonably expected to have a material adverse effect on the
Corporation.
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3.13 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 and Warrants
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 and
Warrants "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. Except for its offer to the Contemporaneous Investor, the Corporation
has not offered the Stock and Warrants to any person other than the
Purchasers.
3.14 Representations Complete. None of the representations or warranties made
by Corporation herein or in any Schedule hereto, or certificate furnished by
Corporation pursuant to this Agreement, or the SEC Reports, when all such
documents are read together in their entirety, contains or will contain any
untrue statement of a material fact, or omits or will omit to state any
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which made, not misleading.
Section 4. Representations and Warranties of the Purchasers
Each of the Purchasers represents and warrants to the Corporation that:
4.1 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
the execution, delivery and performance of this Agreement will not violate any
law, regulation or agreement binding on Purchaser.
4.2 Authorization; No Conflict. Execution and delivery of this Agreement and
performance of its obligations hereunder, including payment of the purchase
price for the Stock purchased by it, have been duly authorized by all
necessary corporate action and such execution, delivery and performance will
not conflict with or violate (i) its charter documents or bylaws, or other
constitutive documents, (ii) any indenture, loan agreement, lease, mortgage or
other material agreement binding on it, (iii) any order of a court or
administrative agency binding on it, or (iv) any applicable law or,
governmental. regulation; and such execution, delivery and performance does
not and will not require the permission or approval of any governmental agency
or other party.
Purchase for Investment only.
(a) It is acquiring the Stock and the Warrants solely for investment and
not with the view to, or for resale in connection with, any
distribution thereof. It is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933, as amended (the "Act"). It understands that
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the Stock has not been registered under the Act 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. It understands that its
investment in the Stock and Warrants involves a high degree of risk
and that the economic risk of its investment must be borne
indefinitely, unless the Stock or Warrant Shares are registered
pursuant to the Act and any applicable state securities laws or an
exemption from such registration is available, and that the Company
has no present intention of registering such securities other than as
contemplated by Section 7.
(b) It is not an affiliate (within the meaning of the Exchange Act) of
the Company or of any other Purchaser and is not acting in
association or concert with any other Purchaser in regard to its
purchase of Stock and Warrants or otherwise in regard to the Company.
Its investment in Shares and Warrants is not for the purpose of
acquiring, directly or indirectly, control of, and it has no intent
to acquire or exercise control of, the Company or to influence the
decisions or policies of the Company's Board of Directors. It
acknowledges and agrees that its ability to exercise Warrants is
conditioned on its ownership of the Company's Common Stock not
exceeding 15% of the Company's Common Stock outstanding at the time
of exercise.
4.4 Information. It has been furnished all materials relating to the
business, finances and operations of the Corporation and materials relating to
the offer and sale of the Shares and Warrants which it has requested.
Purchaser has been afforded the opportunity to ask questions of the
Corporation, and its officers, directors, employees and agents, and has
received what Purchaser believes to be complete and satisfactory answers to
any such inquiries.
4.5 No Trading in Common Stock. Neither Purchaser nor any person trading on
its behalf has engaged in any bids for, or purchases or sales of, the
Corporation's Common Stock during the period beginning six (6) trading days
prior to the Closing Date and ending on the trading day immediately preceding
the Closing Date.
4.6 Rule 144. It acknowledges that the Stock, Warrants and Warrant Shares
must be held indefinitely unless such securities are subsequently registered
under the Act or an exemption from such registration is available. It has
been advised or is aware of the provisions of Rule 144 promulgated under the
Act.
Section 5. Conditions to Obligations of the Purchasers
The obligation of each Purchaser to purchase the Stock and Warrants is subject
to the fulfillment or waiver on or prior to the Closing Date of each of the
following conditions:
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(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 3.3 hereof
and to the effect that prior approval of the Corporation's
stockholders of the sale to the purchasers of the Stock and Warrants
is not required under Delaware law.
(d) Legal Issuance. At the time of the Closing, the issuance, sale and
purchase of the Stock and the Warrants 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.
At and as part of the Closing, and subject to the satisfaction or
waiver of each of the conditions in Section 6, the Corporation shall
deliver to or for the account of the Purchasers certificates as
provided in Section 2.2; officers' "bring-down" and incumbency
certificates; good-standing certificate; counsel's opinion; and other
documents and instruments as are reasonably requested by Purchasers
and usual in private placement transactions.
(f) Due Diligence. Purchasers shall have been provided the opportunity
to conduct such due diligence investigation of the Corporation and
its subsidiaries as they reasonably determine is necessary in
connection with their purchase of the Stock and the Warrants, the
Corporation shall have cooperated as reasonably requested to
facilitate such due diligence investigation, and such due diligence
investigation shall not have uncovered any material adverse and
previously undisclosed information about the Corporation or its
subsidiaries.
(g) 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 and
Warrants.
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Section 6. Conditions to Obligations of the Corporation
The Corporation's obligation to sell the Stock and Warrants is subject to the
fulfillment or waiver on or prior to the Closing Date of each of the following
conditions:
(a) Representations and Warranties. The representations and warranties
made by each 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, sale and
purchase of the Stock and Warrants shall be legally permitted by all
laws and regulations to which each Purchaser and the Corporation are
subject, and the Corporation's placement agent in connection with the
placement of the securities sold to the Purchasers shall have
delivered a certification with respect to the non-public offering
characteristics of such transactions.
(c) Payment. The Corporation shall concurrently receive payment for the
Stock and Warrants as provided in Section 2.
(d) 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 Corporation and its
counsel. At and as part of the Closing, and subject to the
satisfaction or waiver of each of the conditions in Section 5, each
Purchaser shall deliver to the Corporation payment for the Stock and
Warrants purchased; an accredited investor certification with respect
to the status of the Purchaser; officers' "bring-down," and
incumbency certificates; good-standing certificate; and, if
reasonably requested by the Corporation, counsel's opinion; and other
documents and instruments as are reasonably requested by Purchasers
and usual in private placement transactions.
Section 7. Covenant to Register Resale of the Stock and Warrant Shares
(a) For purposes of this Section 7, the following definitions shall
apply:
(i) The terms "register," "registered" and "registration" refer to a
registration under 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.
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(ii) The term "Registrable Securities" means the Stock and the
Warrant Shares 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 or the Warrant Shares.
(b) (i) At any time after the ninety-first (91st) day following the
Closing Date (the "Registration Date"), and from time to time
thereafter, any Purchaser shall have the right to require by
notice in writing that the Corporation register all or any part
of such 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 use its best efforts to file a
registration statement on Form S-3 in order to register the
Purchasers' respective resales of the Stock and the Warrant
Shares and to cause such registration statement to be declared
effective not later than the Registration Date.
(ii) The Corporation shall not be obligated to effect Demand
Registration pursuant to subsection (i): (A) if all of the
Registrable Securities held by a 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 (B) within 180
days after the effective date of any other registration as to
which a Purchaser was given piggy-back rights pursuant to
subsection (c) hereof and in which the Purchaser was able to
register and sell at least eighty percent (80%) of the
Registrable Securities requested by such 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
a 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 ▇-▇, ▇▇▇▇ ▇-▇ or other limited purpose form)
after the Registration Date and such 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 Purchasers written notice of such registration.
Upon the written request of one or more Purchasers given within
twenty (20) days after receipt of such notice by such Purchaser or
Purchasers, the Corporation shall cause to be registered under the
Act all of the Registrable Securities that such Purchaser or
Page 15
Purchasers have 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 7 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 any Purchaser, keep such registration statement
effective for so long such Purchaser desires to dispose of the
securities covered by such registration statement (but not after
such 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 each Purchaser whose Registrable Securities are
included in a registration statement 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 such Purchaser may reasonably request in order to facilitate
the disposition of Registrable Securities owned such 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 each Purchaser whose Registrable
Securities are included in a registration statement, 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 each Purchaser whose Registrable Securities are included
in a registration statement, 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.
Page 16
(vi) Furnish, at the request of each Purchaser whose Registrable
Securities are included in a registration statement, 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) Each Purchaser whose Registrable Securities are included in a
registration statement shall furnish to the Corporation in connection
with any registration under this Section 7 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 (singly, "Liability" and collectively, "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 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
Page 17
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 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.
Page 18
(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.
(h) The rights to cause the Corporation to register all or any portion of
Registrable Securities pursuant to this Section 7 may be assigned by
any Purchaser to a transferee or assignee of 20% or more of the Stock
and Warrants originally purchased by such Purchaser hereunder.
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 7.
(i) 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 7 (b) unless the inclusion
of such securities will not reduce the amount of the Registrable
Securities included therein.
Section 8. Affirmative Covenants of the Corporation
The Corporation hereby covenants that, during such time as a Purchaser owns
any Stock, or for two years following the Closing Date, whichever period is
shorter:
Page 19
8.1 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 make Rule 144 available
and 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, and each other report, registration statement,
definitive proxy statement or other document filed with the S.E.C.
pursuant to the Exchange Act and each press release or other public
announcement issued by the Corporation.
8.2 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.
8.3 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 Exchange Act, and (iv) retain independent public
accountants of recognized national standing as auditors of the Corporation's
annual financial statements.
8.4 Assignment of Rights. The rights of the Purchaser hereunder may be
assigned by any Purchaser in connection with the transfer or assignment to a
single transferee of not less than 25% of the Stock originally purchased by
such Purchaser hereunder. Any transferee asserting rights under this Agreement
shall be bound by its provisions.
8.5 Effect of Covenants. The covenants in Sections 8.1 and 8.3 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.
Page 20
Section 9. Legend on Stock and Warrants; Removal of Legend; Transfer Agent
Instructions
Each certificate representing the Stock, the Warrants and the Warrant Shares
shall be stamped or otherwise imprinted with a legend substantially in the
following form (the "Legend") (in addition to any legend required under any
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE 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 in writing of a holder of Stock or Warrant Shares, the
Corporation shall remove the foregoing legend or issue to such holder a new
certificate therefor free of any such legend, if, unless otherwise required by
applicable state securities laws, (a) the sale of such security is registered
under the Act, (b) such holder provides the Corporation with an opinion of
counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions, and reasonably satisfactory to the Corporation (the
cost of which shall be borne by such holder), to the effect that a public sale
or transfer of such security may be made without registration under the Act or
(c) such security can be sold pursuant to Rule 144. Such holder agrees to sell
all securities, including those represented by a certificate from which the
Legend has been removed, or which were originally issued without the Legend,
(i) pursuant to an effective registration statement and to deliver a
prospectus in connection with such sale or (ii) in compliance with an
exemption from the registration requirements of the Act. In the event the
Legend is removed from any security or any security is issued without the
Legend and thereafter the effectiveness of a registration statement covering
the resale of such security is suspended or a supplement or amendment thereto
is required by applicable securities laws, then upon reasonable advance notice
to the holder of such security, the Corporation may require that the Legend be
placed on any such security that cannot then be sold pursuant to an effective
registration statement or Rule 144 or with respect to which the opinion
referred to in clause (b) next above has not been rendered, which Legend shall
be removed when such security may be sold pursuant to an effective
registration statement or Rule 144 or such holder provides the opinion with
respect thereto described in clause (b) next above.
The Corporation shall instruct its transfer agent to issue certificates,
registered in the name of each respective Purchaser or its nominee, for the
Stock and Warrant Shares in such amounts as specified from time to time by
such Purchaser to the Corporation. Such certificates shall bear a legend only
in the form of the Legend and only to the extent permitted by this Section 9.
Page 21
The Corporation warrants that no instruction other than instructions
consistent with the provisions of this Section 9, and no stop transfer
instructions other than stop transfer instructions to give effect to the
Legend as provided in this Section 9 and to comply with the Corporation's
duties in a situation giving rise to the duty of notice pursuant to Section
7(d)(v) hereof will be given by the Corporation to its transfer agent and that
the Stock, Warrants and Warrant Shares shall otherwise be freely transferable
on the books and records of the Corporation.
Section 10. Miscellaneous
10.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado. The Corporation and the
Purchasers (i) hereby irrevocably submit to the exclusive jurisdiction of the
United States District Court for the District of Colorado and the state courts
for the State of Colorado and (ii) hereby waive, and agree not to assert in
any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such court, that the suit, action or proceeding
is improper. The Corporation and each of the Purchasers consent to process
being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address in effect for notices to it under this Agreement
and agree that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this paragraph shall affect or limit
any right to serve process in any other manner permitted by law.
10.2 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
10.3 Entire Agreement; Amendment. This Agreement (including any Exhibits
hereto) and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. Neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated except by a written instrument
signed by the Corporation and the Purchaser.
10.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be mailed by first-class mail, postage prepaid, or
delivered either by hand or by messenger, addressed (a) if to a Purchaser,
to such Purchaser's address, indicated below the Purchaser's signature below,
or at such other address as the Purchaser shall have furnished to the
Corporation in writing, or (b) if to any other holder of any Stock, at the
address of such holder as shown on the records of the Corporation, or (c) if
to the Corporation, at its address set forth below or at such other address as
the Corporation shall have furnished to the Purchasers and each such other
holder in writing. All such notices or communications shall be deemed given
when actually delivered by hand, messenger, facsimile or mailgram or, if
mailed, three days after deposit in the U.S. mail.
Page 22
10.5 Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party to this Agreement (including any holder of
Stock), upon any breach or default of another party under this Agreement,
shall impair any such right, power or remedy of such party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. All remedies,
either under this Agreement or by law or otherwise afforded to any party,
shall be cumulative and not alternative.
10.6 Publicity. The Company shall not disclose nor include in any public
announcement the name or names of Purchaser or its related entities, except as
required by law or applicable regulation and then only to the extent of such
requirement.
10.7 Severability. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
10.8 Titles and Subtitles. The titles of the Sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their duly authorized officers as of the day and year first
written above.
RAMTRON INTERNATIONAL CORPORATION
By: -----------------------------
L. ▇▇▇▇▇ ▇▇▇▇▇, Chairman and
Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Purchaser: -----------------
(NAME)
No. of Units of Stock and Warrants
Purchased: XXXXXXX UNITS
By: -----------------------
(SIGNATURE)
Name: ---------------------
Title: --------------------
Address: ------------------
Page 23
EXHIBIT A
Form of Warrant
RAMTRON INTERNATIONAL CORPORATION
Warrant to Purchase Shares
of Common Stock
December 13, 1999
Warrant No. XXXXXX
XXXXXXX Shares
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"),
hereby certifies that, for value received, ---------- or its assigns (the
"Holder") is entitled to purchase from the Company, during the period
commencing on the date hereof and ending at 5:00 p.m. Eastern Time on the
Expiration Date (as hereinafter defined) (the "Warrant Exercise Period"),
subject to the terms and conditions hereinafter set forth, the number of
shares of the Common Stock, par value $0.01, of the Company determined in
accordance with Section 1.
Capitalized terms used herein and not otherwise defined shall have the
meanings defined in the Common Stock and Warrants Purchase Agreement dated
December 13, 1999 (the "Purchase Agreement"), by and among Company, the Holder
and certain other parties.
1. Number of Warrant Shares. Subject to adjustment as provided in Sections 4
and 11, and subject to the conditions to exercise provided in Section 5, the
number of shares of Common Stock for which this Warrant may, at any given time
during the Warrant Exercise Period, be exercised (such total number of
underlying unissued shares as may, from time to time, be issuable upon the
exercise hereof being hereinafter referred to as the "Warrant Shares") shall
be XXXXXXX.
2. Exercise Price. This Warrant is exercisable for Warrant Shares at a price
per share (the "Warrant Price") equal to [$10.813 for A Warrants; $16.220 for
B Warrants].
3. Expiration Date. Except as otherwise provided herein, this Warrant shall
expire on the earlier to occur of (a) the date on which this Warrant is fully
exercised and (b) 5:00 p.m. Mountain Daylight Time, on December 13, 2001, or,
if such day is not a Business Day, then at 5:00 p.m. Mountain Daylight Time on
the next succeeding Business Day (the "Expiration Date").
Page 24
4. Procedure for Exercise. Subject to the conditions provided in Section 5,
the Holder may exercise this Warrant by presenting and surrendering it to the
Company at the office specified in Section 12 between the hours of 9:00 a.m.
and 5:00 p.m. on any Business Day during the Warrant Exercise Period,
accompanied by (a) payment in cash of the aggregate Warrant Price of the
Warrant Shares to be purchased and (b) a subscription form duly executed by
the Holder in substantially the form attached hereto as Annex A. The number
of Warrant Shares shall be reduced immediately upon any partial exercise by
the number of shares so purchased, and a new Warrant, of like tenor and effect
herewith, for the remaining Warrant Shares shall be issued to the Holder.
5. Conditions to Exercise.
(a) It shall be a condition precedent to any exercise of this Warrant to
purchase shares of Common Stock that the Holder shall have obtained,
prior to such exercise, all regulatory approvals, if any, required to
lawfully acquire such shares.
(b) Holder shall not be entitled to exercise this Warrant, and this
Warrant may not be exercised, to the extent that following such
exercise Holder and its affiliates (within the meaning of the
Exchange Act) shall be the owners (as that term is defined in Rule
13D and Rule 13G of the Exchange Act) of 15% or more of the
outstanding Common Stock of the Company, or if a lesser percentage is
set forth after the name of the Investor on the signature page
hereof, such lesser percentage. The provisions of this Section
cannot be amended [except upon the explicit authorization by the
Company's Board of Directors] and the Company shall have no
obligation whatever to give any effect to any notice of exercise or
subscription for Warrant Shares if the issuance of such Warrant
Shares would result in a contravention of the foregoing limitation on
beneficial ownership of the Company's Common Stock.
6. Covenants. The Company covenants and agrees with the Holder as follows:
(a) All Warrant Shares shall, upon delivery to the Holder, be duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock.
(b) The Company shall pay when due and payable any and all federal and
state original issue stock taxes, if any, that may be payable in
respect of the issuance of Warrant Shares upon whole or partial
exercise of this Warrant.
(c) The Company shall at all times on or after the issuance of this
Warrant and prior to the expiration of the Warrant Exercise Period
reserve and keep available a number of authorized but unissued shares
of Common Stock sufficient to permit the full exercise of this
Warrant. If at any time the number of authorized but unissued shares
of Common Stock is not sufficient for this purpose, the Company shall
take such corporate action as may be necessary to increase the
authorized but unissued shares of Common Stock to a number that is
sufficient for this purpose.
Page 25
(d) The Company shall cooperate fully with the Holder in obtaining any
regulatory approvals referred to in Section 5 hereof.
7. Loss, Theft, Destruction or Mutilation. Upon delivery by the Holder to
the Company of evidence reasonably satisfactory to the Company of the
ownership and loss, theft, destruction or mutilation of this Warrant, and (a)
in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company, and (b) in the case of mutilation, of this
Warrant for cancellation, the Company shall execute and deliver, in lieu
thereof, a new Warrant of like tenor and effect herewith; provided, however,
that the Company may require as an additional condition to issuance of any
such substitute Warrant payment of a sum sufficient to reimburse it for any
stamp tax, other governmental charge or out-of-pocket expense connected
therewith.
8. Rights of Holder.
(a) The Holder of this Warrant or of any portion thereof shall not,
solely as such, be entitled to vote, to receive dividends or to be
deemed the holder of Common Stock for any purpose nor shall anything
contained in this Warrant be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon a merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until this Warrant shall have
been exercised and the Warrant Shares shall have become deliverable.
(b) Regardless of the date of issue and delivery of certificates
representing such shares, the Holder shall for all purposes be deemed
to have become the holder of record of all shares purchased upon
exercise of this Warrant as of the close of business on the date on
which the Company has received, with respect to such purchase, (a)
this Warrant, (b) the Warrant Price and (c) a duly executed
subscription form.
9. Transfer of Warrant. The Company shall, upon surrender to it of this
Warrant, accompanied by one or more duly executed certificates of transfer in
substantially the form attached hereto as Annex B, execute and deliver in lieu
hereof (a) to and in the name of each assignee or transferee, a new Warrant,
of like tenor and effect herewith, representing the right to purchase, on the
same terms and conditions as set forth herein, such number of the Warrant
Shares as shall have been so assigned or transferred; and (b) to the Holder,
in case the right to purchase some portion of the Warrant Shares shall have
been retained by the Holder, a new Warrant, of like tenor and effect herewith,
representing the right to purchase, on the same terms and conditions as set
forth herein, such number of Warrant Shares.
Page 26
10. Disposition of Shares.
(a) Each Holder understands and agrees that this Warrant and the Warrant
Shares have not been registered under either the Securities Act of
1933, as amended (the "Act") or any applicable state securities laws
(the "State Acts") and may not lawfully be sold or otherwise disposed
of for value except upon registration of such transfer in accordance
with the securities registration requirements of the Act and any
applicable State Acts, or pursuant to an exemption from such
registration requirements.
(b) Any certificates evidencing shares purchased upon exercise hereof
shall be imprinted with a conspicuous legend in substantially the
following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE 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 COUNSELSATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
In connection with the purchase of this Warrant the Company has undertaken to
register the Holder's resale of Warrant Shares under certain conditions and
upon the effectiveness of such registration and such resale in accordance with
the applicable requirements of the Act the certificates representing the
Warrant Shares so resold shall be reissued without the foregoing legend.
11. Adjustment of Purchase Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of the Warrants and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company at any
time while the Warrants remain outstanding and unexpired shall
consolidate with or merge into any other corporation, or sell all or
substantially all of its assets to another corporation, or reclassify
or in any manner change the securities then purchasable upon the
exercise of the Warrants (any of which shall constitute a
"Reorganization"), then lawful and adequate provision shall be made
whereby this Warrant certificate shall thereafter evidence the right
to purchase such number and kind of securities and other property as
would have been issuable or distributable on account of such
Reorganization upon or with respect to the securities which were
purchasable or would have become purchasable under the Warrants
immediately prior to such Reorganization. The Company shall not
effect any such Reorganization unless prior to or simultaneously with
the consummation thereof the successor corporation (if other than the
Company) resulting from such Reorganization shall assume by written
instrument executed and mailed or delivered to the Holder, at the
last address of the Holder appearing on the books of the Company, the
obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder
may be entitled to purchase.
Page 27
(b) Subdivision or Combination of Shares. If the Company at any time
while the Warrants remain outstanding and unexpired shall subdivide
or combine its Common Stock, the Warrant Price shall be adjusted to a
price determined by multiplying the Warrant Price in effect
immediately prior to such subdivision or combination by a fraction
(i) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such subdivision or
combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such
subdivision or combination.
(c) Certain Dividends and Distribution. If the Company at any time prior
to the expiration of the Warrant Exercise Period shall take a record
of the holders of its Common Stock for the purposes of:
(i) Stock Dividends. Entitling them to receive a dividend payable
in, or to receive any other distribution without consideration
of, Common Stock, then the Warrant Price shall be adjusted to
the price determined by multiplying the Warrant Price in effect
immediately prior to each dividend or distribution by a fraction
(A) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend
or distribution, and (B) the denominator of which shall be the
total number of shares of Common Stock outstanding immediately
after such dividend or distribution; or
(ii) Distribution of Assets, Securities, etc. Making any
distribution without consideration with respect to its Common
Stock (other than a cash dividend) payable otherwise than in its
Common Stock, then the Holder shall, upon the exercise hereof,
be entitled to receive, in addition to the number of Shares
receivable thereupon, and without payment of any additional
consideration therefor, such assets or securities as would have
been payable to the Holder as owner of that number of Shares on
the record date for such distribution; and an appropriate
provision therefor shall be made a part of any such
distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Warrant
Price pursuant to Subsections (b) or (c)(i) of this Section 11, the
number of shares purchasable under the Warrants represented by this
certificate shall be adjusted to that number determined by
multiplying the number of Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment by a fraction, the
numerator of which shall be the Warrant Price immediately prior to
such adjustment and the denominator of which shall be the Warrant
Price immediately following such adjustment.
(e) Notice. In case at any time:
(i) The Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution, excluding a cash
dividend, to the holders of its Common Stock.
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(ii) The Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class
or other rights;
(iii) There shall be any reclassification of the Common Stock of the
Company, or consolidation or merger of the Company with, or sale
of all or substantially all of its assets to, another
corporation; or
(iv) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or
more of such cases, the Company shall give to the Holder at
least ten (10) days prior written notice (or, in the event of
notice pursuant to Section 11(e)(iii), at least thirty (30) days
prior written notice) of the date on which the books of the
Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining
rights to vote in respect to any such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up. Such notice in accordance with the foregoing clause shall
also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holder of Common
Stock shall be entitled thereto, and such notice in accordance
with the foregoing clause shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Each such
written notice shall be given by first-class mail, postage
prepaid, addressed to the Holder at the address of the Holder as
shown on the books of the Company.
(f) No Change in Certificate. The form of this Warrant certificate need
not be changed because of any adjustment in the Warrant Price or in
the number of Warrant Shares purchasable on its exercise. The
Warrant Price or the number of Warrant Shares shall be considered to
have been so changed as of the close of business on the date of
adjustment.
12. Notices. All notices and other communications pursuant hereto shall be
in writing and shall be deemed given if delivered in person or sent by United
States registered mail, postage prepaid:
If to the Company at:
Ramtron International Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Page 29
If to the Holder at its address set forth in the Purchase Agreement. or at
such other address as either party may designate in writing by notice to the
other party as provided above.
13. Termination. This Warrant shall automatically and immediately terminate,
without any further action by the Company or the Holder, upon the occurrence
of any of the following:
(a) any voluntary or involuntary proceeding shall be commenced with
respect to the Holder in a court of competent jurisdiction seeking
relief under any applicable bankruptcy, insolvency or similar law;
(b) a receiver, custodian, sequestrator or similar official for the
Holder or for any substantial part of its property shall be appointed
or elected;
(c) the Holder shall commence any winding-up or liquidation, voluntary or
involuntary, of the Holder;
(d) the Holder shall make a general assignment for the benefit of its
creditors or become unable generally, or admit in writing its
inability, to pay its debts as they become due; or
(e) the Holder shall take any corporate or similar action for the purpose
of effecting any of the foregoing.
14. Miscellaneous. This Warrant contains the entire agreement between the
parties with respect to the matters set forth herein and may not be modify
supplemented or amended except in a writing signed by both parties. This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware.
WITNESS the following signature effective as of the 13th day of December,
1999.
RAMTRON INTERNATIONAL CORPORATION
By: ----------------------------
L. ▇▇▇▇▇ ▇▇▇▇▇, Chairman and
Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Page 30
ANNEX A
SUBSCRIPTION FORM
To Be Executed if Holder Desires To Exercise Warrant
The undersigned hereby exercises, according to the terms and conditions
hereof, all or part (as indicated below) of this Warrant and herewith makes
payment of the applicable Warrant Price in full.
Name ---------------------------------
Address ------------------------------
No. of Shares ------------------------
Dated --------------------------------
Signature ----------------------------
Title --------------------------------
------------------------------
Social Security Number or
Employer Identification Number
Page 31
ANNEX B
CERTIFICATE OF TRANSFER
Ramtron International Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Date:----------------
Gentlemen:
With reference to the Warrant to Purchase Shares of Common Stock dated
December 13, 1999 (the "Warrant"), issued by Ramtron International Corporation
(the "Company") to -------- (the "Holder"), representing as of the date hereof
the right to purchase, on the terms and subject to the conditions herein set
forth, ------- shares of the Common Stock, par value $0.01, of the Company (the
"Warrant Shares"), the undersigned Holder hereby transfers, conveys and assigns
to ----------, subject to the terms and conditions of the Warrant, the right to
purchase --------- of such Warrant Shares. By this transfer, all rights of
the undersigned Holder with respect to such number of the Warrant Shares are
transferred to the transferee.
Enclosed herewith is the original Warrant so that the Company may issue in
lieu thereof (a) to the transferee, a new Warrant, of like tenor and effect
therewith, for the number of Warrant Shares with respect to which the
undersigned Holder's rights under the Warrant are hereby transferred, conveyed
and assigned, and (b) if the undersigned Holder has retained its rights under
the Warrant with respect to some portion of the Warrant Shares, a new Warrant,
of like tenor and effect therewith, for such number of the Warrant Shares.
-----------------------------------
as Holder
By: -------------------------------
Name: -----------------------------
Title: ----------------------------
Page 32
EXHIBIT B
Disclosure Schedule
1. (A) Conversion option held by the National Electrical Benefit Fund
("NEBF") to convert into Common Stock all or any portion of Ramtron
International Corporation's outstanding obligations under a Loan Agreement
dated August 31, 1995 between Ramtron International Corporation ("Ramtron")
and NEBF (the "Loan Agreement") as amended on August 7, 1999, into Common
Stock of Ramtron pursuant to Section 2.14 of the Loan Agreement; and (B)
Conversion option held by three entities advised by Dimensional Fund Advisors
Inc. to convert into Common Stock all or any portion of Ramtron International
Corporation's outstanding obligations under promissory notes dated as of
July 30, 1999, to such entities.
2. Registration rights held by NEBF in connection with NEBF's conversion
option described above and registration rights held by the Dimensional Fund
Advisors Inc. advisees in connection with their conversion option described
above.
(Foregoing instruments are disclosed in SEC Reports but set forth herein for
reference purposes only.)
* * * *
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