AMENDED AND RESTATED
LOAN AGREEMENT
BETWEEN
RAMTRON INTERNATIONAL CORPORATION
AND
NATIONAL ELECTRICAL BENEFIT FUND
Page 127
TABLE OF CONTENTS
1. DEFINITIONS.
1.1 "Affiliate"
1.2 "Accounts Receivable"
1.3 "Agreement"
1.4 "Allonge"
1.5 "Amended Warrant"
1.6 "Automatic Acceleration Event"
1.7 "Borrower"
1.8 "Business Day"
1.9 "Capital Lease"
1.10 "Cash Equivalents"
1.11 "Closing Date"
1.12 "Closing Price"
1.13 "Code"
1.14 "Collateral"
1.15 "Common Stock"
1.16 "Commonly Controlled Entity"
1.17 "Consolidated Working Capital Assets"
1.18 "Consolidated-Current Liabilities"
1.19 "Consolidated Net Worth"
1.20 "Consolidated Subsidiaries"
1.21 "Contingent Obligation"
1.22 "Contractual Obligation"
1.23 "Control"
1.24 "Deere Park Litigation"
1.25 "Default Rate"
1.26 "EMS"
1.27 "EMS Stock Pledge Agreement"
1.28 "ERISA"
1.29 "Event of Default"
1.30 "Extension Warrant"
1.31 "Family Affiliate"
1.32 "Foreign Governmental Authority"
1.33 "GAAP"
1.34 "Governmental Authority"
1.35 "Indebtedness"
1.36 "Insolvency" or "Insolvent"
1.37 "Intellectual Property"
1.38 "Interest"
1.39 "Inventory"
1.40 "Knowledge"
1.41 "Lender"
1.42 "Lien"
1.43 "Loan"
1.44 "Loan Documents"
1.45 "Maturity Date"
1.46 "Mortgage"
1.47 "NEC Patent Infringement Litigation"
1.48 "Note"
1.49 "NTC Liquidating Trust Claim"
Page 128
1.50 "Operating Lease"
1.51 "Original Loan Agreement"
1.52 "Patent Litigation"
1.53 "Patent Security Agreement"
1.54 "Person"
1.55 "Plan"
1.56 "Potential Default"
1.57 "Prepayment Notice Date"
1.58 "Racom"
1.59 "Racom Stock Pledge Agreement"
1.60 "RAM 302 Patent Interference"
1.61 "RAM 302 Patent Interference Decision"
1.62 "Reorganization"
1.63 "Reportable Event"
1.64 "Requirement of Law"
1.65 "Responsible Officer"
1.66 "Scheduled Maturity Date"
1.67 "Security Agreement"
1.68 "Security Documents"
1.69 "Single Employer Plan"
1.70 "Stock Pledge Agreements"
1.71 "Subsidiary"
2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Existing Loan.
2.2 Promissory Note.
2.3 Interest Rate and Payment Dates.
2.4 Computation of Interest and Fees.
2.5 Prepayments.
2.5.1 Optional Prepayments.
2.5.2 Prepayment in Connection With Sale of EMS Stock.
2.6 Principal Repayment.
2.7 Delinquency.
2.8 Method of Payment.
2.9 Use of Proceeds.
2.10 Payments.
2.11 Lender's Conversion Option.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Financial Condition.
3.2 No Change.
3.3 Corporate Existence; Compliance with Law.
3.4 Corporate Power; Authorization; Enforceable Obligations.
3.5 No Legal Bar.
3.6 No Material Litigation.
3.7 No Default.
3.8 Ownership of Property; Liens.
3.9 No Burdensome Restrictions.
Page 129
3.10 Intellectual Property.
3.11 Taxes.
3.12 ERISA.
3.13 Investment Company Act; Other Regulations.
3.14 Licenses; Permits.
3.15 Party in Interest.
4. CONDITIONS PRECEDENT.
4.1 Conditions to Restatement.
4.1.2 Consents.
4.1.3 Acknowledgment.
4.1.4 Corporate Proceedings of the Borrower.
4.1.5 No Violation.
4.1.6 Legal Opinions.
4.1.7 Warrants.
4.1.8 Representations and Warranties.
4.1.9 No Default.
4.1.10 No Litigation.
4.1.11 No Change.
4.1.12 Additional Documents.
4.1.13 Additional Matters.
4.1.14 Borrowing Certificate.
5. AFFIRMATIVE COVENANTS.
5.1 Financial Statements.
5.2 Certificates; Other Information.
5.3 Payment of Obligations.
5.4 Conduct of Business and Maintenance of Existence.
5.5 Maintenance of Property; Insurance.
5.6 Inspection of Property; Books and Records; Discussions.
5.7 Notices.
5.8 Further Assurances.
6. NEGATIVE COVENANTS.
6.1 Limitation on Indebtedness.
6.2 Limitation on Liens.
6.3 Limitation on Contingent Obligation.
6.4 Limitations on Fundamental Changes.
6.5 Limitation on Sale of Assets.
6.6 Limitation on Negative Pledge Clauses.
6.7 Limitation on Investments, Loans and Advances.
6.8 Limitation on Prepayments.
6.9 No Amendments.
6.10 Limitation on Stock Issuance.
6.11 Corporate Documents.
6.12 Compliance with ERISA.
6.13 Financing Covenants.
7. EVENTS OF DEFAULT.
Page 130
8. MISCELLANEOUS.
8.1 Entire Agreement.
8.2 Counterparts.
8.3 Governing Law.
8.4 Severability.
8.5 Successors and Assigns.
8.6 Time of the Essence.
8.7 Notice.
8.8 Successive Remedies.
8.9 No Waiver; Cumulative Remedies.
8.10 Cross-Default.
8.11 Inconsistencies with Loan Documents.
8.12 Survival.
8.13 Negotiated Document.
8.14 Payment of Expenses and Taxes.
8.15 Action, Consents and Approvals.
8.16 Amendments, Modifications, etc.
8.17 Waivers.
8.18 Captions and References.
8.19 Gender and Plural Usages.
8.20 Termination of Prior Loan Facility.
8.21 Issues re EMS.
8.22 Release of Security.
EXHIBITS/SCHEDULES
Exhibit "A" -- Form of Allonge
Exhibit "B" -- Form of Borrowing Certificate
Exhibit "C" -- Form of Acknowledgment
Exhibit "D" -- Form of Amended Warrant
Schedule 3.1 -- List of Contingent obligations, taxes, leases,
commitments per Section 3.1
Schedule 3.10 -- List of Intellectual Property
Page 131
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT is dated as of August 6, 1999 (this
"Agreement") by and between RAMTRON INTERNATIONAL CORPORATION, a Delaware
corporation ("Borrower"), and the NATIONAL ELECTRICAL BENEFIT FUND (the
"Lender").
W I T N E S E T H
WHEREAS, the Borrower and the Lender are parties to that certain Loan
Agreement dated as of August 31, 1995, as amended by (i) that First Amendment
to Loan Agreement and other Loan Documents dated as of June 1, 1998,
(ii) that Second Amendment to Loan Agreement and other Loan Documents dated
as of September 29,1998, (iii) that Third Amendment to Loan Agreement and
other Loan Documents dated as of December 14, 1998, (iv) that Fourth
Amendment to Loan Agreement and other Loan Documents dated as of February 26,
1999; (v) that Fifth Amendment to Loan Agreement and other Loan Documents
dated as of April 30, 1999, (vi) that Sixth Amendment to Loan Agreement and
other Loan Documents dated as of June 29, 1999 and (vii) that Seventh
Amendment to Loan Agreement dated as of July 31, 1999 (the "Original Loan
Agreement");
WHEREAS, the Borrower has requested the Lender to amend certain terms and
provisions of the Original Loan Agreement; and
WHEREAS, the Borrower and the Lender have agreed to certain amendments to the
Original Loan Agreement and, for convenience, the Borrower and the Lender
have agreed to restate the Original Loan Agreement, as so amended, as of the
date first above written, to read in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises hereof and for other good
and valuable consideration the receipt and sufficiency of which are hereby
established, the Borrower and the Lender hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
1.1 "Affiliate" -- when used with reference to a specified Person, shall
mean (i) any other Person that directly or indirectly through one or more
intermediaries Controls, is Controlled by or is under common Control with the
specified Person, (ii) any other Person that is an officer of, partner in or
trustee of, or serves in a similar capacity with respect to, the specified
Person or of which the specified Person is an officer, partner or trustee, or
with respect to which the specified Person serves in a similar capacity,
(iii) any other Person that, directly or indirectly, is the beneficial owner
of ten percent (10%) or more of any class of equity securities of, or
otherwise has a substantial beneficial interest in, the specified Person or
of which the specified Person is directly or indirectly the owner of ten
percent (10%) or more of any class of equity securities or in which the
specified Person has a substantial beneficial interest, (iv) a Family
Affiliate, if such Person is a natural person, or (v) with respect to Lender,
any common trust fund, group trust or other entity affiliated with,
Controlled by or under common Control with Lender.
Page 132
1.2 "Accounts Receivable" -- of a Person, at any date, shall mean and
include all invoices, contract rights, "general intangibles" (as defined in
the Uniform Commercial Code), claims, instruments, leases, agreements and
accounts evidencing or representing indebtedness currently due for its own
account on account of goods sold or leased by such Person, or services
rendered or to be rendered by such Person, and which would otherwise, in
accordance with GAAP, be set forth opposite the caption "accounts receivable"
(or any like caption) on a balance sheet of such Person at such date.
1.3 "Agreement" -- shall mean this Amended and Restated Loan Agreement, as
amended, restated or otherwise modified from time to time in accordance with
its terms.
1.4 "Allonge" -- shall mean the Allonge described in Section 2.2 hereof.
1.5 "Amended Warrant" -- shall have the meaning assigned thereto in
Section 4.1.7 hereof.
1.6 "Automatic Acceleration Event" -- shall have the meaning assigned
thereto in Section 7 hereof.
1.7 "Borrower" -- shall mean Ramtron International Corporation, and its
successors and assigns.
1.8 "Business Day" -- shall mean a day other than a Saturday, Sunday,
scheduled federal holiday or other day on which commercial banks in
Washington, D.C. are authorized or required by law to close.
1.9 "Capital Lease" -- of a Person, shall mean (a) any lease of property,
real or personal, if the then present value of the minimum rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance sheet
of such Person, and (b) any other such lease the obligations under which are
capitalized on a balance sheet of such Person.
1.10 "Cash Equivalents" -- shall mean (i) securities issued or directly
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than six (6) months
from the date of acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than six (6) months from the date of
acquisition of any domestic commercial bank having capital and surplus in
excess of $500,000,000, (iii) repurchase obligations with a term of not more
than thirty (30) days for underlying securities of the types described in
clauses (i) and (ii) entered into with any bank meeting the qualifications
specified in clause (ii) above, and (iv) commercial paper rated at least
A-2 or the equivalent thereof by Standard & Poor's Corporation or P-2 or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in either case
maturing within six (6) months after the date of the acquisition.
1.11 "Closing Date" -- shall mean September 21, 1995.
Page 133
1.12 "Closing Price" -- with respect to the Common Stock, shall mean the
latest closing sale price as reported on a national securities exchange or by
a consolidated transaction reporting system with respect to such securities,
or in the instance of publicly traded securities not listed on a national
exchange or consolidated transaction reporting system, the Closing Price
shall mean the average of the closing bid and ask prices with respect to such
securities as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or a successor or similar organization. In
the event such securities are not listed on a national exchange or
consolidated transaction reporting system or reported on the National
Association of Securities Dealers, Inc. Automated Quotation System or a
successor or similar organization, the "Closing Price" with respect to such
securities shall mean the closing price as determined in good faith by the
Board of Directors of the Borrower and a representative of the Lender, which
determination shall be conclusive and binding.
1.13 "Code" -- shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.14 "Collateral" -- shall mean the collective reference to all of the
property and interests encumbered by the Security Documents.
1.15 "Common Stock" -- shall mean Common Stock of the Borrower, $0.01 par
value.
1.16 "Commonly Controlled Entity" -- shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA.
1.17 "Consolidated Working Capital Assets" -- at any date shall mean the
amount which, in conformity with GAAP, would be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries at such date.
1.18 "Consolidated-Current Liabilities" -- at any date shall mean the amount
which, in conformity with GAAP, would be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries at such date.
1.19 "Consolidated Net Worth" -- at any date, shall mean the amount which,
in conformity with GAAP, would be set forth opposite the caption
"stockholders' equity" (or any like caption) on a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries at such date.
1.20 "Consolidated Subsidiaries" -- shall mean the Subsidiaries of the
Borrower whose accounts are consolidated with those of the Borrower for
financial reporting purposes in accordance with GAAP.
Page 134
1.21 "Contingent Obligation" -- as to any Person shall mean any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness,
leases, dividends or other contractual obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation,
(b) to advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, or
(d) otherwise to assure or hold harmless the owner or holder of such primary
obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
1.22 "Contractual Obligation" -- shall mean, with respect to the Borrower or
any Subsidiary thereof, any provision of any security issued by the Borrower
or such Subsidiary, as applicable, or of any material agreement, instrument
or undertaking to which the Borrower, or such Subsidiary, as applicable, is a
party or by which it or any of its property is bound.
1.23 "Control" -- shall mean the possession, directly or indirectly, of the
power to influence, direct, or cause the direction of management and
policies, whether through the ownership of voting securities, general or
limited partnership interests or other manner of control.
1.24 "Deere Park Litigation" -- shall mean the Verified Complaint dated
November 18, 1998, filed by Deere Park Capital Management, L.L.C. against
Ramtron International Corporation, as the same may be amended, supplemented
or otherwise modified from time to time, and all matters relating thereto.
1.25 "Default Rate" -- shall have the meaning assigned thereto in Section
2.7 hereof.
1.26 "EMS" -- shall mean Enhanced Memory Systems, Inc., a Delaware
corporation.
1.27 "EMS Stock Pledge Agreement" -- shall mean the Stock Pledge Agreement
dated as of August 31, 1995 executed by the Borrower in favor of the Lender
with respect to the stock of EMS, as the same may be amended, restated or
otherwise modified from time to time.
1.28 "ERISA" -- shall mean the Employees Retirement Income Security Act of
1974, as amended from time to time.
1.29 "Event of Default" -- shall have the meaning assigned thereto in
Section 7 hereof.
1.30 "Extension Warrant" -- shall have the meaning assigned thereto in
Section 4.1.7 hereof.
Page 135
1.31 "Family Affiliate" -- when used with reference to a specified natural
Person, a parent, grandparent, sibling, spouse, aunt, uncle, child (whether
natural or adopted), nephew, niece, grandchild, parent-in-law, brother-in-
law, sister-in-law, son-in-law or daughter-in-law of such Person.
1.32 "Foreign Governmental Authority" -- shall mean the government of any
nation (or nations, including the European Union) other than the United
States of America, any state, municipality, any local government, or its
equivalent, and any other political subdivision of any of the above, and any
agency, department, commission, court or other instrumentality of any of them
(including any corporation or other entity owned or controlled by any of the
foregoing) exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
1.33 "GAAP" -- shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
1.34 "Governmental Authority" -- shall mean the United States of America,
any state, any municipality, any local government and any other political
subdivision of any state, and any agency, department, bureau, board,
commission, court or other instrumentality of any of them (including any
corporation or other entity owned or controlled by any of the foregoing)
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
1.35 "Indebtedness" -- of a Person, at a particular date, shall mean the sum
(without duplication) at such date of (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services or
which is evidenced by a note, bond, debenture or similar instrument, (b) all
obligations of such Person under Capital Leases and Operating Leases, (c) all
obligations (contingent or otherwise) of such Person in respect of letters of
credit, acceptances, or similar obligations issued or created for the account
of such Person, (d) all Contingent Obligations of such Person, and (e) all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof; provided, however, that Indebtedness shall not be deemed to include
(i) accounts payable or accrued expenses not evidenced by a note or similar
instrument of such Person, and (ii) installment-type sales contracts and
equipment leases entered into in the ordinary course of business.
1.36 "Insolvency" or "Insolvent" -- at any particular time, shall mean a
Multiemployer Plan which is insolvent within the meaning of Section 4245 of
ERISA.
1.37 "Intellectual Property" -- shall have the meaning assigned thereto in
Section 3.10 hereof.
1.38 "Interest" -- shall have the meaning assigned thereto in Section 2.3
hereof.
Page 136
1.39 "Inventory" -- of a particular Person at any date, shall mean and
include all merchandise intended for sale by such Person, together with all
raw materials, goods in process, finished goods, materials and supplies of
every nature used or usable in connection with the manufacture, packing,
shipping, advertising, leasing or sale of such merchandise, and which would
otherwise, in accordance with GAAP, be set forth opposite the caption
"inventory" (or any like caption) on a balance sheet of such Person at such
date.
1.40 "Knowledge" -- With respect to a specified Person, shall mean
(a) information appearing in documents in the custody or under the control of
such Person; (b) information actually known by such Person; (c) information
in documents in the custody or under the control of attorneys representing
such Person and other information actually known by such attorneys (but only
to the extent reflected in documents under the control of such attorneys or
actually known by such attorneys in connection with the transactions
contemplated by this Agreement); and (d) information reasonably inferable
from that described in clauses (a) through (c), above.
1.41 "Lender" -- shall mean the National Electrical Benefit Fund, its
successors and assigns.
1.42 "Lien" -- shall mean any charge, lien (including mechanics',
materialmen's, tax and other liens), mortgage, deed of trust, pledge,
hypothecation, collateral assignment, deposit arrangement, preference,
priority or other security agreement, or preferential arrangement of any kind
or nature whatsoever having substantially the same effect as any of the
foregoing, whether absolute or conditional, voluntary or involuntary, whether
created by agreement, assignment, statute, judicial proceedings or otherwise
(including, without limitation, any conditional sale or similar title
restriction agreement, any financing lease having substantially the same
effect of any of the foregoing, and the filing of any financing statement
under the Uniform Commercial Code or any comparable law of any jurisdiction).
1.43 "Loan" -- shall have the meaning assigned thereto in Section 2.1
hereof.
1.44 "Loan Documents" -- shall mean the collective reference to this
Agreement, the Note, the Security Documents and all other documents
evidencing or securing all or any portion of the Loan.
1.45 "Maturity Date" -- shall mean the earliest to occur of (i) the
Scheduled Maturity Date, (ii) the date of acceleration of the Scheduled
Maturity Date in accordance with Lender's right to accelerate the Scheduled
Maturity Date in connection with an Event of Default hereunder, under the
Note or any of the other Loan Documents, (iii) the date of the occurrence of
an Automatic Acceleration Event, (iv) the date indicated in a prepayment
notice delivered by the Borrower to the Lender as the date on which the
Borrower will prepay the Loan in full pursuant to the provisions of Section
2.5.1 hereof, and (v) the date of the conversion of the entire outstanding
principal amount of the Loan pursuant to Section 2.11 hereof.
Page 137
1.46 "Mortgage" -- shall mean the Mortgage and Security Agreement with
respect to the headquarters of the Borrower located in Colorado Springs,
Colorado and dated as of August 31, 1995, executed by Borrower in favor of
Lender, as the same may be amended, restated or otherwise modified from time
to time.
1.47 "NEC Patent Infringement Litigation" - - shall mean the lawsuit filed
by the Borrower against NEC Corporation, NEC Electronics, Inc., and NEC USA
in October of 1998, together with any and all counterclaims filed in
connection therewith.
1.48 "Note" -- shall have the meaning assigned thereto in Section 2.2
hereof.
1.49 "NTC Liquidating Trust Claim" - shall mean that certain lawsuit filed
on October 9, 1997 in the United States Bankruptcy Court, District of
Colorado (Case No. 95-11642 CEM) by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee for the NTC
Liquidating Trust, naming as defendants the Borrower, Citibank (Borrower's
stock transfer agent which it has indemnified), and ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇
and Company in regard to claims of wrongful transfer of certain Common Stock
related to ▇▇▇▇ ▇▇▇▇▇▇'▇ bankruptcy proceedings which claims seek relief in
the form of: (1) money damages in an amount not less than the proceeds that
were generated by the transfer (allegedly not less than $5.9 million);
(2) actual and consequential damages, pre-judgement interest at the legal
rate, punitive damages, and costs and expenses (including attorneys' fees);
and, (3) in the alternative, 523,137 shares of Common Stock.
1.50 "Operating Lease" -- shall have the meaning provided therefor in GAAP.
1.51 "Original Loan Agreement" -- shall have the meaning assigned thereto in
the first Whereas clause hereto.
1.52 "Patent Litigation" -- shall mean any adverse claim by any Person or
any litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority or Foreign Governmental Authority relating to U.S. or
foreign patents, U.S. or foreign applications for patents, technology, know-
how, or processes necessary or useful for the conduct of Borrower's present
or reasonably foreseeable future business including, but not limited to, the
RAM 302 Patent Interference.
1.53 "Patent Security Agreement" -- shall mean the Patent Security Agreement
dated as of August 31, 1995 and/or March 2, 1995 (pursuant to Section 8.20
hereof) executed by Borrower in favor of Lender in form and substance
satisfactory to the Lender in its sole and absolute discretion, as the same
(i) has been amended by that First Amendment to Patent Security Agreement
dated as of January 15, 1999 and made by the Borrower in favor of Lender, and
(ii) may be further amended, restated or otherwise modified from time to
time.
1.54 "Person" -- shall mean any natural person, partnership, joint venture,
trust, corporation, limited liability company, Governmental Authority,
Foreign Governmental Authority, or other entity.
Page 138
1.55 "Plan" -- at a particular time, shall mean any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be), an "employer" as defined in
Section 3(5) of ERISA.
1.56 "Potential Default" -- shall mean any of the events specified in
Section 7 hereof, whether or not any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been satisfied which
would result in such event being deemed to be an "Event of Default".
1.57 "Prepayment Notice Date" -- shall mean (i) a day on which the Lender
receives written notice from the Borrower that it will prepay the Loan, in
whole or in part, pursuant to Section 2.5.1 hereof; (ii) a day on which the
Lender shall approve in writing Borrower's sale of all or a portion of the
stock of EMS pursuant to Section 8.21(i) hereof; or (iii) a day on which the
Lender shall approve in writing the liquidation of EMS pursuant to Section
8.21(iii) hereof.
1.58 "Racom" -- shall mean Racom Systems, Inc., a Delaware corporation.
1.59 "Racom Stock Pledge Agreement" -- shall mean the Stock Pledge Agreement
dated as of August 31, 1995 executed by the Borrower in favor of the Lender
with respect to the stock of Racom Systems, Inc.
1.60 "RAM 302 Patent Interference" -- shall mean those certain patent
interference proceedings described in Borrower's latest 10-K filing with the
Securities and Exchange Commission prior to the date hereof which are
captioned: ▇▇▇▇▇, et al. ▇. ▇▇▇▇▇ (Patent Interference No. 102,723); ▇▇▇▇▇,
et al. ▇. ▇▇▇▇▇ (Patent Interference No. 102, 724); ▇▇▇▇▇, et al. ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇ (Patent Interference No. 102, 725); ▇▇▇▇▇, et al. ▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (Patent Interference No. 102, 726); and ▇▇▇▇▇, et al. ▇. ▇▇▇▇▇
(Patent Interference No. 102, 727).
1.61 "RAM 302 Patent Interference Decision" -- shall mean the "Decision at
Final Hearing" issued on May 6, 1997 by the Board of Patent Appeals and
Interferences of the United States Patent and Trademark Office in regard to
the RAM 302 Patent Interference.
1.62 "Reorganization" -- with respect to any Multiemployer Plan, shall mean
the condition that such plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
1.63 "Reportable Event" -- shall mean any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
Page 139
1.64 "Requirement of Law" -- shall mean, as to any Person, the certificate
or articles of incorporation, bylaws, partnership agreement, limited
partnership agreement, certificate of limited partnership and/or other
organizational or governing documents of such Person, and any and all present
and future laws, rules, regulations, statutes, codes or ordinances of any
Governmental Authority (including, but not limited to, all federal and state
securities laws) or Foreign Governmental Authority, and all judgments,
decrees, injunctions, rulings, decisions, determinations and interpretations
issued by any arbitrator, Governmental Authority, or Foreign Governmental
Authority, in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.
1.65 "Responsible Officer" -- shall mean the Chief Executive Officer or the
President of the Borrower, or, with respect to financial matters, the Chief
Financial Officer of the Borrower.
1.66 "Scheduled Maturity Date" -- shall mean March 15, 2002.
1.67 "Security Agreement" -- shall mean the Security Agreement dated as of
August 31, 1995, executed by Borrower in favor of Lender with respect to all
of the personal property of the Borrower, as the same may be amended,
restated or otherwise modified from time to time.
1.68 "Security Documents" -- shall mean the collective reference to the
Mortgage, the Security Agreement, the Patent Security Agreement(s) (including
such agreements dated March 2, 1995 and August 31, 1995 as appropriate
pursuant to Section 8.20 hereof), the Stock Pledge Agreements and the Uniform
Commercial Code filings contemplated by the Security Agreement.
1.69 "Single Employer Plan" -- shall mean any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
1.70 "Stock Pledge Agreements" -- shall mean the collective reference to the
EMS Stock Pledge Agreement and the Racom Stock Pledge Agreement.
1.71 "Subsidiary" -- shall mean a corporation or other entity in which
Borrower owns, directly or indirectly, stock or other ownership interests in
sufficient number to elect a majority of the directors (or persons performing
similar functions) of such corporation or entity.
2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Existing Loan. The Borrower and Lender acknowledge and agree that, as
of the date hereof and immediately prior to the making of the partial
prepayment provided for in Section 4.1.16 below (i) the principal amount of
"Loans" outstanding under and as defined in the Original Loan Agreement is
Five Million Five Hundred Thousand Dollars ($5,500,000); and (ii) the
interest accrued and unpaid under the Original Loan Agreement is
approximately Two Million Fifteen Thousand Three Hundred Two and 57/100
Dollars ($2,015,302.57) (such amounts, collectively, the "Original Loan
Amounts"). Upon the partial prepayment provided for in Section 4.1.16,
below, the principal amount of the Original Loan Amounts as of the date
hereof is Seven Million Dollars ($7,000,000) (such amount being deemed the
"Loan" hereunder), and no further advances shall be made to the Borrower
hereunder or under the Original Loan Agreement.
Page 140
2.2 Promissory Note. The Loans made by the Lender under the Original Loan
Agreement have been evidenced by the promissory note dated August 31, 1995.
An Allonge to that note, dated as of the date hereof, substantially in the
form of Exhibit "A" hereto shall modify such note to (i) evidence the
obligation of the Borrower to pay to the Lender a principal amount equal to
Seven Million Dollars ($7,000,000); (ii) evidence that such note shall be due
as of the Maturity Date; and (iii) state that interest on the Note shall be
payable as provided in Section 2.3 hereof. Such note, as modified by the
Allonge, as the same may be amended, supplemented, endorsed or otherwise
modified from time to time is herein referred to as the "Note."
2.3 Interest Rate and Payment Dates. From and after the date hereof, the
principal amount of the Loan outstanding shall bear interest at a fixed rate
per annum equal to Eight Percent (8%) (the "Interest"), which accrued
interest shall be due and payable quarterly, in arrears, on the last day of
each calendar quarter, provided, that the first such payment shall occur on
January 31, 2000, with the next such payment being due on March 31, 2000 and
on the last day of each calendar quarter thereafter, and provided further,
that the Borrower may make a prepayment in whole or in part of accrued but
unpaid Interest at any time upon sixty (60) Business Days notice without
premium or penalty. Notwithstanding the foregoing, no such notice of
prepayment shall be deemed to modify Lender's right to convert all or a
portion of the outstanding principal amount of the Loan advanced hereunder
together with accrued but unpaid Interest on such Loan into Common Stock
pursuant to Section 2.11 hereof. Lender shall be entitled to exercise such
conversion rights with respect to all amounts due Lender pursuant to this
Agreement including, but not limited to, accrued but unpaid Interest at any
time prior to any such prepayment of such Interest.
2.4 Computation of Interest and Fees. Interest on the outstanding principal
amount of the Loan shall be calculated based upon a year of three hundred
sixty (360) days over the actual number of days in the applicable year.
Accrued and unpaid Interest shall not be subject to compounding.
2.5 Prepayments.
2.5.1 Optional Prepayments. At any time and from time to time, the
Borrower may prepay the Loan, in whole or in part, without premium or
penalty, upon no less than ninety (90) Business Days' written notice to
the Lender, which notice shall specify the date and amount of
prepayment. If such notice is given, the prepayment amount specified in
such notice shall be due and payable on the date specified therein,
together with accrued and unpaid Interest to the date of such prepayment
on the amount so prepaid. Amounts so optionally prepaid may not be
re-borrowed. Notwithstanding the foregoing, no such notice of
prepayment shall be deemed to modify Lender's right to convert all or a
portion of the outstanding principal amount of the Loan advanced by it
together with accrued but unpaid Interest on such Loan into Common Stock
pursuant to Section 2.11 hereof. Lender shall be entitled to exercise
such conversion rights with respect to such principal and Interest at
any time prior to any such prepayment.
Page 141
2.5.2 Prepayment in Connection With Sale of EMS Stock. If the Borrower
shall sell or transfer any of the stock of EMS or liquidate EMS, as
contemplated in Section 8.21 hereof, the proceeds thereof shall, at the
election of the Lender by written notice to the Borrower, be immediately
applied by the Borrower to a prepayment of the amounts outstanding under
the Loan Documents (in such order of priority as provided in Section 3
of the Note).
2.6 Principal Repayment. The entire outstanding principal amount of the
Loan, together with all accrued and unpaid Interest and all other sums due to
the Lender hereunder, under the Note or under any of the other Loan
Documents, shall be due and payable on the Maturity Date.
2.7 Delinquency. In addition to any other rights the Lender may have upon
the occurrence of a Potential Default or an Event of Default as provided
herein or in any of the other Loan Documents, or as provided at law or
equity, in the event of a default in the payment of principal, Interest, or
any other sums due to the Lender hereunder, under the Note or under any of
the other Loan Documents, any such sum shall bear interest from and after
such due date until paid in full, without notice, at an annual rate equal to
the lesser of (a) Sixteen Percent (16%), and (b) the maximum rate permitted
by law (such rate in effect from time to time, the "Default Rate"), it being
expressly intended that delinquent payments shall bear interest at the
Default Rate until paid in full, whether before or after any judgment or the
occurrence of an Automatic Acceleration Event. In addition, if Borrower
shall fail to make payment when and as due of any amounts due hereunder or
under any of the other Loan Documents (whether at the stated date for
payment, at maturity or by acceleration), Borrower shall, automatically and
without notice, be subject to a late payment charge of two percent (2%) of
the amount so unpaid, it being expressly understood and agreed that such
charge is not in the nature of a penalty but a charge to defray costs
incurred by Lender in the collection of such defaulted payment.
2.8 Method of Payment. All sums payable to Lender under this Agreement, the
Note or any of the other Loan Documents of every nature including, without
limitation, payments on account of principal, interest, late charges, fees,
expenses and the like, shall be paid in United States Dollars by wire
transfer of immediately available federal funds to a bank account designated
by the Lender in writing from time to time. If any payment hereunder becomes
due and payable on a day other than a Business Day, such payment date shall
be extended to the next succeeding Business Day, and with respect to payments
of principal, Interest shall be payable thereon to the date of such actual
payment.
2.9 Use of Proceeds. The proceeds of the Loan shall be used by the Borrower
solely for working capital purposes.
2.10 Payments. All payments (including prepayments) to be made by the
Borrower on account of principal, interest, and fees shall be made without
set off or counterclaim of any nature or with respect to any Person
whatsoever and shall be made to the Lender in lawful money of the United
States of America and in immediately available funds by wire transfer into
the bank account designated to the Borrower in writing by the Lender.
Page 142
2.11 Lender's Conversion Option.
2.11.1 At any time during: (i) one hundred and twenty (120) Business
Days prior to the Scheduled Maturity Date, (ii) Eighty-Nine (89)
Business Days following a Prepayment Notice Date, or (iii) one hundred
and twenty (120) Business Days following a day on which an Event of
Default occurs, Lender may elect through written notice to Borrower to
convert all or any portion (but not less than Five Hundred Thousand
Dollars ($500,000)) of the outstanding obligations of Borrower to the
Lender hereunder (whether on account of Interest, principal or
otherwise; such amount to be so converted by Lender hereunder, the
"Conversion Amount") into Common Stock as provided below. Such
conversion shall be deemed effective as of the day on which Lender
gives notice to Borrower of its intention to convert hereunder (the
"Conversion Date"). The amount of Common Stock the Lender shall be
entitled to receive hereunder shall be determined in accordance with
the following formula:
Total Number of = Conversion Amount
-----------------
Shares of Common Stock to
be received 1
If Lender shall have elected to convert less than the entire amount of
indebtedness outstanding to Lender hereunder, the Conversion Amount
shall be deemed to consist of (i) first, accrued and unpaid Interest
(including, if applicable, default interest), (ii) second, any
applicable late charges, and (iii) then, principal. Lender may exercise
the conversion rights set forth herein as often as it may elect and each
Conversion Amount shall be in the amount selected by Lender.
2.11.2 The Borrower shall pay any and all issue and other taxes that
may be payable in respect of any issue or delivery of shares of Common
Stock upon conversion hereunder.
2.11.3 The Borrower shall at all times use its best efforts to reserve
and keep available, out of its authorized but unissued Common Stock,
solely for the purpose of effecting the potential conversions provided
for herein, the full number of shares of Common Stock potentially
deliverable hereunder. The Borrower shall from time to time (subject to
obtaining necessary director and stockholder approval), in accordance
with the laws of the State of Delaware, if necessary, use its best
efforts to increase the authorized amounts of its Common Stock if at any
time the authorized number of shares of its Common Stock remaining
unissued shall not be sufficient to permit the maximum conversion
available hereunder. Notwithstanding the prior two (2) sentences,
Lender hereby acknowledges that the number of authorized but unissued
shares of Common Stock of the Borrower may be insufficient now and on
future dates to cover the amount of shares of Common Stock which may be
issued upon a conversion pursuant hereto. In the event that the number
Page 143
of shares of Common Stock to be issued to Lender by conversion of the
Conversion Amount pursuant to Section 2.11.1 hereof is more than the
number of authorized but unissued shares of Common Stock of the Borrower
as of the Conversion Date, then that portion of the Conversion Amount
that can be converted into Common Stock based on the then-available
number of authorized but unissued shares of Common Stock (including such
amounts as may be reserved for the exercise of warrants or options held
by the Lender) shall be converted as of the Conversion Date. That
portion of the stated Conversion Amount that cannot be converted because
of a shortfall in the number of authorized but unissued shares of Common
Stock shall be referred to as the "Remnant Conversion Amount".
Thereafter, Borrower shall use its best efforts to increase the number
of authorized but unissued shares of Common Stock in an amount necessary
to permit the Borrower to reserve a sufficient amount of authorized but
unissued shares of Common Stock to effectuate the conversion of the
Remnant Conversion Amount and any additional potential conversions
provided for herein.
2.11.4 All shares of Common Stock which may be issued upon conversion
hereunder will upon issuance by the Borrower be validly issued, fully-
paid and non-assessable and free from all taxes, liens and charges with
respect to the issuance thereof.
2.11.5 In connection with each such conversion provided for hereunder,
and upon the request of Lender (such request not to be made more than
once during each ninety (90) day period measured from the date hereof),
the Borrower shall use its best efforts to register, at Borrower's sole
expense (including, but not limited to, payment by Borrower of not more
than ten thousand dollars ($10,000) of Lender's legal expenses actually
incurred and related thereto) under the Securities Act of 1933, as
amended, within a reasonable period of time after the date of such
conversion, the resale of the Common Stock issued pursuant to such
conversion.
2.11.6 The number and kind of securities which are to be received under
this Section 2.11 upon the exercise of the conversion rights set forth
herein shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
2.11.6.1 If the Borrower at any time 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 Common Stock receivable upon the exercise of the
conversion rights set forth herein (any of which shall constitute
a "Reorganization"), then lawful and adequate provision shall be
made whereby the conversion rights set forth herein 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 Common Stock which were receivable or would have
Page 144
become receivable under the conversion rights set forth herein
immediately prior to such Reorganization. The Borrower shall not
effect any such Reorganization unless prior to or simultaneously
with the consummation thereof the successor corporation (if other
than the Borrower) resulting from such Reorganization shall assume
by written instrument executed and mailed or delivered to the
Lender, at the last address of the Lender appearing herein, the
obligation to deliver to Lender such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the
Lender may be entitled to receive hereunder.
2.11.6.2 If the Borrower at any time while any Loans remain
outstanding shall subdivide or combine its Common Stock, the
conversion price set forth herein (i.e., $1.00) shall be adjusted
to a price determined by multiplying such conversion price 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.
2.11.6.3 If the Borrower at any time the Loan is outstanding
shall take a record of the holders of its Common Stock for the
purposes of:
(a) Entitling them to receive a dividend payable in, or to
receive any other distribution without consideration of, Common
Stock, then the conversion price set forth herein shall be
adjusted to the price determined by multiplying such conversion
price by a fraction (x) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution, and (y) the denominator
of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution; or
(b) Making any distribution without consideration with respect
to its Common Stock (other than a cash dividend) payable
otherwise than in its Common Stock, then Lender shall, upon the
exercise of the conversion rights set forth herein, be entitled
to receive, in addition to the number of shares receivable
hereunder, and without payment of any additional consideration
therefor, such assets or securities as would have been payable
to the Lender 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.
3. REPRESENTATIONS AND WARRANTIES.
To induce the Lender to enter into this Agreement and to make the Loan, the
Borrower hereby represents and warrants to Lender that:
Page 145
3.1 Financial Condition. The consolidated balance sheet of the Borrower and
its consolidated Subsidiaries at December 31, 1998 and the related
consolidated statements of income and retained earnings and changes in
financial position for the fiscal year ended on such date, reported on by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, copies of which have heretofore been furnished to
Lender, are complete and correct and present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries at such
date, and the consolidated results of their operations and changes in
financial position for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
at March 31, 1999, and the related unaudited consolidated statements of
income and cash flows for the three month period ended on such date,
certified by a Responsible Officer, copies of which have heretofore been
furnished to Lender, are complete and correct and present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their
operations and changes in financial position for the three month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as
the case may be, and as disclosed therein). Neither the Borrower nor any of
its consolidated Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Contingent Obligation, contingent
liabilities or liability for taxes, long-term lease or unusual forward or
long-term commitment, which is not reflected in the foregoing statements, in
the notes thereto, in filings made with the Securities and Exchange
Commission (including the exhibits thereto), or in Schedule 3.1.
3.2 No Change. Since December 31, 1998, (a) (subject to the consummation of
the preferred stock restructuring program) there has been no material adverse
change in the business, operations, property or financial or other condition
of the Borrower or any of its Subsidiaries, in regard to which Lender hereby
acknowledges the RAM 302 Patent Interference Decision and deems that such
decision is not, in and of itself, a material adverse change under this
subsection but may, in conjunction with other further developments or lack of
action in regard to other aspects of Borrower or its Subsidiaries, including
future action or inaction regarding Patent Litigation, be determined by
Lender (in its sole discretion) to constitute a material adverse change under
this subsection, and (b) no dividends or other distributions have been
declared (with the exception of such 6% dividends payable in Series A
Convertible Preferred Stock ("Series A Stock") to holders of Series A Stock
and declared by the Board of Directors of Ramtron prior to the date hereof),
paid or made upon any shares of capital stock of the Borrower nor have any
shares of capital stock of the Borrower been redeemed, retired, purchased or
otherwise acquired for value by the Borrower or any of its Subsidiaries
(other than with respect to Ramtron Series A Preferred Stock previously held
by Talisman Capital Opportunity Fund and surrendered as described on Schedule
3.1 hereto).
Page 146
3.3 Corporate Existence; Compliance with Law. The Borrower and each of its
Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, and (d) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith could not,
in the aggregate, have a material adverse effect on the business, operations,
property or financial or other condition of the Borrower or any such
Subsidiary, as applicable, and could not materially adversely affect the
ability of the Borrower to perform its obligations under the Loan Documents.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Borrower
has the corporate power and authority, and the legal right, to make, deliver
and perform the Loan Documents and to borrow hereunder and has taken all
necessary corporate action to authorize (i) the borrowings on the terms and
conditions of this Agreement, the Note, and the Acknowledgment (as described
in Section 4.1.3 hereof), (ii) the execution, delivery and performance of the
Loan Documents and, (iii) the delivery of the Amended Warrants, Extension
Warrants, and Common Stock contemplated herein. No consent or authorization
of, filing with or other act by or in respect of any Governmental Authority
or Foreign Governmental Authority is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents. This Agreement and each other Loan
Document has been duly executed and delivered on behalf of the Borrower.
This Agreement constitutes, and each other Loan Document (including, without
limitation, the Note as amended by the Allonge) constitutes and will continue
to constitute, a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents, the borrowings hereunder and the use of the proceeds thereof, does
not violate any Requirement of Law or any Contractual Obligation of the
Borrower, and will not result in, or require, the creation or imposition of
any Lien on any of its properties or revenues pursuant to any Requirement of
Law or Contractual Obligation (other than to the Lender pursuant to the
provisions of the Loan Documents).
3.6 No Material Litigation. Other than the Deere Park Litigation, the RAM
302 Patent Interference, and the NEC Patent Infringement Litigation, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority or Foreign Governmental Authority, is pending or, to
the Knowledge of the Borrower, threatened by or against the Borrower, any of
its Subsidiaries, or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower or any such Subsidiary. As of the date
hereof, the NTC Liquidating Trust Claim has been settled and there is no
further pending or threatened litigation with respect to the matters which
was the subject thereof.
Page 147
3.7 No Default. None of the Borrower or any Subsidiary thereof is in
default under or with respect to any Contractual Obligation in any respect
which could be materially adverse to the business, operations, property or
financial or other condition of the Borrower or any such Subsidiary or which
could materially adversely affect the ability of the Borrower to perform its
obligations under the Loan Documents. No Potential Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. The Borrower and each Subsidiary has good
record title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to all its other property. The Mortgage and each
other Security Document constitutes a valid and enforceable first priority
Lien against the respective property purported to be encumbered thereby and
none of such property is subject to any Lien except for such first priority
lien created by the Mortgage and each other Security Document.
3.9 No Burdensome Restrictions. No Contractual Obligation of the Borrower
or any of its Subsidiaries and no Requirement of Law materially adversely
affects, or insofar as the Borrower may reasonably foresee may so affect, the
business, operations, property or financial or other condition of the
Borrower or any of its Subsidiaries.
3.10 Intellectual Property. To the Borrower's Knowledge, the Borrower and
each Subsidiary thereof owns (individually or on a joint basis), or is
licensed to use, all trademarks, tradenames, copyrights, U.S. or foreign
patents, technology, know-how and processes necessary or useful for the
conduct of its current or reasonably foreseeable future business that are
material to the condition (financial or other), business, or operations of
the Borrower or such Subsidiary, as applicable (the "Intellectual Property").
Other than the RAM 302 Patent Interference and the NEC Patent Infringement
Litigation, no claim has been asserted and is pending by any Person with
respect to the use of any such Intellectual Property, or challenging or
questioning the validity or effectiveness of any such Intellectual Property
and the Borrower does not know of any valid basis for any such claim. The
Patent Security Agreement, as amended as provided in Section 4.1.1,
constitutes a valid and enforceable first priority Lien against the
Borrower's Intellectual Property and none of such Intellectual Property is
subject to any Lien except for such first priority lien created by the Patent
Security Agreement and each other Security Document. Schedule 3.10 hereto is
a complete and accurate list of all Intellectual Property owned by the
Borrower.
3.11 Taxes. The Borrower and each Subsidiary thereof has filed or cause to
be filed all tax returns which to the Knowledge of the Borrower are required
to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority or Foreign Governmental Authority (other than any
amount the validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrower or such Subsidiary, as
applicable); and no tax lien has been filed and, to the Knowledge of the
Borrower, no claim is being asserted with respect to any such tax, fee or
other charge.
Page 148
3.12 ERISA. No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. The present value of all
benefits vested under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date, exceed the value of the
assets of such Plan allocable to such vested benefits. Neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan and the liability to which the Borrower or any
Commonly Controlled Entity would become subject under ERISA if the Borrower
or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date
hereof is not in excess of $0. No such Multiemployer Plan is in
Reorganization or Insolvent.
3.13 Investment Company Act; Other Regulations. None of the Borrower or any
Subsidiary thereof is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. The Borrower is not subject to regulation under any
Federal or State statute or regulation which limits its ability to incur
Indebtedness.
3.14 Licenses; Permits. To the Borrower's Knowledge, Borrower and each
Subsidiary thereof has received all licenses, permits or consents necessary
or advisable under any Requirement of Law in order to conduct the business in
which it is currently engaged.
3.15 Party in Interest. The Borrower is not a party in interest (as defined
in Section 3(14) of ERISA) with respect to the Lender as the Borrower is not:
(i) a fiduciary (including but not limited to any administrator,
officer, trustee or custodian), counsel or employee of the
Lender;
(ii) an individual or entity providing services to the Lender;
(iii) an employer any of whose employees are covered by the Lender;
(iv) an employee organization any of whose members are covered by the
Lender;
(v) an owner, direct or indirect, of fifty percent (50%) or more of
an entity described in subclauses (iii) or (iv), above;
(vi) a spouse, ancestor, lineal descendant or spouse of a lineal
descendant of any individual described in subclauses (i), (ii),
(iii) or (v), above;
(vii) a corporation, partnership or trust or estate of which fifty
percent (50%) or more is owned, directly or indirectly, or held
by persons described in subclauses (i), (ii), (iii), (iv) or
(v), above;
(viii) an employee, officer, director or a ten percent (10%) or more
shareholder, directly or indirectly, of a person described in
subclauses (iii), (iv), (v) or (vii), above, or of the Lender;
or
(ix) a ten percent (10%) or more partner or joint venturer of a
person described in subclauses (ii), (iii), (iv), (v) or (vii),
above.
Page 149
4. CONDITIONS PRECEDENT.
4.1 Conditions to Restatement. The agreement of Lender to enter into this
Amended and Restated Agreement is subject to the satisfaction, or waiver by
Lender, immediately prior to or concurrently with the execution of this
Agreement, of the following conditions precedent:
4.1.1 Loan Documents. Lender shall have received an original
counterpart of (i) this Agreement, and (ii) the Allonge, in each case
executed and delivered by a duly authorized officer of the Borrower.
4.1.2 Consents. Lender shall have received an original counterpart of
a certificate of a Responsible Officer stating that no consents,
licenses or approvals are required or advisable in connection with the
Borrower's execution and delivery of the Loan Documents and its
performance thereunder.
4.1.3 Acknowledgment. Lender shall have received an Acknowledgment
made by the Borrower which shall be executed by the duly authorized and
Responsible Officer of the Borrower and delivered substantially in the
form of Exhibit "C" hereto, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
4.1.4 Corporate Proceedings of the Borrower. Lender shall have
received an original counterpart of the resolutions in form and
substance reasonably satisfactory to the Lender, of the Board of
Directors of the Borrower authorizing (i) the execution, delivery and
performance of this Agreement, the Acknowledgment and any other
documents required hereby, and (ii) the issuance and authorization of
the Amended Warrant, the Extension Warrant, and such Common Stock as may
underlie the Amended Warrant, and Extension Warrant and such Common
Stock as may reasonably be required to satisfy Lender's conversion
rights under Section 2.11 herein, in each case certified by the
Secretary of the Borrower as of the date hereof, which certificate shall
state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded as of the date of such certificate.
4.1.5 No Violation. The consummation of the transactions contemplated
hereby shall not contravene, violate or conflict with, nor involve
Lender in a violation of, any Requirement of Law.
4.1.6 Legal Opinions. Lender shall have received an original
counterpart of the executed legal opinions of satisfactory outside
counsel to the Borrower addressing such matters as the Lender may
request and otherwise in form and substance satisfactory to the Lender.
Page 150
4.1.7 Warrants. Borrower shall amend the Warrant to purchase up to
4,028,485 shares of Common Stock dated as of August 31, 1995, expiring
on August 31, 2000, and in favor of Lender, to provide for a new
expiration date of September 30, 2008 and otherwise substantially
conforming with Exhibit "E" attached hereto (the "Amended Warrant"). In
addition, Borrower shall issue a warrant to purchase up to 500,000
shares of Common Stock at the Closing Price of the Common Stock on
July 31, 1999, such warrant to be exerciseable as of the date hereof and
expiring ten years from the date hereof and substantially conforming
with Exhibit E attached hereto (the "Extension Warrant"). The Extension
Warrant and Amended Warrant shall each contain a clause providing that,
from time to time, the exercise price of the warrant shall be adjusted
downward to equal the lowest price of any (i) warrant for common stock
issued by the Company to any employee, investor, or other Person, or
(ii) stock option granted to any officer of the Borrower, provided, that
such price adjustment shall not apply to warrants issued to Capello
Capital Corp. or CEA ▇▇▇▇▇▇▇▇▇▇ as a result of the capital restructuring
of the Borrower which is the subject of the July 20, 1999 Proxy
Statement of the Borrower, as such restructuring has been approved by
the National Electrical Benefit Fund in its capacity as a shareholder of
the Borrower.
4.1.7.1 The Amended Warrant and Extension Warrant shall be issued
in a transaction not requiring registration under the Securities
Act of 1933, and the Lender shall have received, as a part of the
legal opinions provided for in Section 4.1.6, an opinion to such
effect.
4.1.8 Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of the date
hereof, as if made on and as of such date.
4.1.9 No Default. No Potential Default or Event of Default shall have
occurred and be continuing on the date hereof.
4.1.10 No Litigation. (i) No litigation, investigation or proceeding
before or by any arbitrator or Governmental Authority or Foreign
Governmental Authority shall be pending or threatened against the
Borrower or any Subsidiary of the Borrower or any of the officers or
directors of any thereof or involving the collateral (or any part
thereof) which, in the sole discretion of the Lender, is deemed
material. Nonetheless, Lender acknowledges the existence of the Deere
Park Litigation, the NEC Patent Infringement Litigation and the RAM 302
Patent Interference, and has agreed to the execution hereof
notwithstanding the existence of such litigation. Borrower acknowledges
that Lender may deem these litigation matters material at some future
time with respect to its determination that an Event of Default or
Potential Default has occurred, and the execution hereof by Lender with
the awareness of such litigation shall not be deemed to prejudice Lender
Page 151
with respect to any such determination. Specifically, in regard to the
NEC Patent Infringement Litigation and the RAM 302 Patent Interference,
Lender hereby acknowledges the RAM 302 Patent Interference Decision and
deems that such decision is not, in and of itself, material under this
subsection but may, in conjunction with other further developments or
lack of action in regard to other aspects of Borrower or its
Subsidiaries, including future action or inaction regarding Patent
Litigation, be determined by Lender (in its sole discretion) to be
material under this subsection or otherwise.
(ii) no injunction, writ, restraining order or other order of any
nature materially adverse, in the sole discretion of Lender, to the
Borrower and its Subsidiaries or the conduct of its or their
respective business or inconsistent with the due consummation of
transactions contemplated hereby shall have been issued by any
Governmental Authority or Foreign Governmental Authority.
4.1.11 No Change. Since December 31, 1998, there shall have been no
material adverse change, in the sole discretion of the Lender, in the
business, operations, property or financial condition of the Borrower or
its Subsidiaries taken as a whole, in regard to which Lender hereby
acknowledges the RAM 302 Patent Interference Decision and deems that
such decision is not, in and of itself, a material adverse change under
this subsection but may, in conjunction with other further developments
or lack of action in regard to other aspects of Borrower or its
Subsidiaries, including future action or inaction regarding Patent
Litigation, be determined by Lender (in its sole discretion) to
constitute a material adverse change under this subsection.
4.1.12 Additional Documents. The Lender shall have received each
additional document, instrument, legal opinion or item of information
reasonably requested by the Lender, including, without limitation, a
copy of any debt instrument, security agreement or other material
contract to which the Borrower may be a party.
4.1.13 Additional Matters. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with
the Loan and the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Lender, and the Lender shall
have received such other documents, legal opinions and other opinions in
respect of any aspect or consequence of the Loan and the transactions
contemplated hereby as it shall reasonably request.
4.1.14 Borrowing Certificate. The Borrower shall have delivered to
Lender a certificate in substantially the form of Exhibit "B" hereto,
executed by the Responsible Officer, stating that the conditions set
forth in Sections 4.1.5, 4.1.8, 4.1.9, 4.1.10, 4.1.11, 4.1.12, and
4.1.13, above, have been satisfied as of the date hereof.
Page 152
4.1.15 Endorsement to Title Policy. The Lender shall have received an
endorsement to its current title insurance policy, in form and substance
acceptable to the Lender, confirming the continuing first priority
status of the Mortgage, which shall be paid for by the Borrower.
4.1.16 Partial Prepayment of Loan. The Borrower shall pay to the
Lender, on the date hereof, such amount as shall be necessary to reduce
the outstanding amounts under the Original Loan Agreement to Seven
Million Dollars ($7,000,000).
5. AFFIRMATIVE COVENANTS.
The Borrower hereby agrees that, so long as any portion of the Note remains
outstanding and unpaid or any other amount is owing to Lender hereunder, the
Borrower shall:
5.1 Financial Statements. Furnish to Lender:
5.1.1 as soon as available, but in any event within one hundred and
twenty (120) days after the end of each fiscal year of the Borrower, a
copy of the audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of operations, changes in stockholders'
equity and changes in cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, by
independent certified public accountants of nationally recognized
standing setting forth in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects when considered in relation to the consolidated
financial statements of the Borrower and its Consolidated Subsidiaries;
and
5.1.2 as soon as available, but in any event not later than sixty (60)
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries, as at the end of each
such quarter and the related unaudited consolidated statements of
operations and cash flows of the Borrower and its Consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
such date, setting forth in each case in comparative form the figures
for the previous year for such statements, certified by a Responsible
Officer (subject to normal year-end audit adjustments); all such
financial statements to be complete and correct in all material respects
and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
Page 153
5.2 Certificates; Other Information. Furnish to Lender:
5.2.1 concurrently with the delivery of the financial statements
referred to in Sections 5.1.1 and 5.1.2, above, a certificate of a
Responsible Officer (i) stating that, after inquiry and investigation
and to such officer's Knowledge, the Borrower during such period has
observed, performed or complied with all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and in the Note and the other Loan Documents to be observed, performed
or satisfied by it, and that such officer has obtained no Knowledge of
any Potential Default or Event of Default except as specified in such
certificate; and (ii) setting forth, in detail acceptable to the Lender,
the Borrower's compliance with the financial covenants set forth in
Section 6.13 hereof, including, without limitations, the calculation of
Consolidated Net Worth, the Current Ratio, the Quick Ratio and the Debt
to Equity Ratio, in each case calculated as set forth in Section 6.13.
5.2.2 concurrently with the submission by the Borrower or its
Subsidiaries of any and all filings with the Securities and Exchange
Commission, a copy thereof;
5.2.3 concurrently with the release, copies of any and all press
releases;
5.2.4 promptly, any documents or filings submitted to the Securities
and Exchange Commission relating to the Borrower, its Subsidiaries or
EMS and received or obtained by the Borrower;
5.2.5 immediately upon receipt, notice to Lender of any information
(and copies of any written material related thereto) of any actual or
planned sale, purchase, transfer, gift, exercise, conversion, or pledge
of securities of the Borrower, its Subsidiaries or EMS by any Person or
group who beneficially owns four and one-half percent (4.5%) or more of
the common stock (or other voting securities) of the Borrower, its
Subsidiaries or EMS, respectively;
5.2.6 promptly, copies of any license or similar agreements or
modifications thereof relating to Intellectual Property and entered into
by Borrower or its Subsidiaries;
5.2.7 concurrent with filing with a court or administrative agency,
upon transmission to another Person, or promptly upon receipt, as
applicable, copies of any pleadings, offers of settlement, demand
letters, orders, decisions, or other documents which may materially
affect the development or outcome of any Patent Litigation.
5.2.8 promptly, such additional financial and other information as
Lender may from time to time request in its sole and absolute
discretion.
Page 154
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be,
and cause each Subsidiary to so pay, discharge or satisfy, all its
respective obligations of whatever nature, except when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or such Subsidiary, as the case
may be.
5.4 Conduct of Business and Maintenance of Existence. Continue to (and
cause each of its Subsidiaries to) engage in business of the same general
type as conducted by it as of the date hereof and preserve, renew and keep in
full force and effect its corporate existence and take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business (including, but not limited to, Borrower's
zealous defense of its intellectual property rights which shall include an
active defense and prosecution of any Patent Litigation (including, but not
limited to, the RAM 302 Patent Interference); and comply (and cause each of
its Subsidiaries to comply) with all Contractual Obligations and Requirements
of Law applicable thereto except to the extent that the failure to comply
therewith could not, in the aggregate, have a material adverse effect on the
business, operations, property or financial or other condition of the
Borrower or any such Subsidiary, as applicable.
5.5 Maintenance of Property; Insurance. Keep (and cause each Subsidiary to
keep) all property useful and necessary in its respective business in good
working order and condition; maintain (and cause each Subsidiary to maintain)
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but
including in any event public liability, product liability, and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to Lender,
upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep (and cause
each Subsidiary to keep) proper books of records and account in which full,
true, and correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business
and activities; and permit representatives of Lender to visit and inspect any
of its properties and examine and make abstracts from any of such books and
records at any time during normal business hours and as often as may be
desired, upon reasonable notice, and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries and with its independent certified public accountants, provided
that, with respect to any such inspection of the books and records, the
Borrower shall remove therefrom prior to Lender's review any non-public
material information.
5.7 Notices. Promptly (and in any event within five (5) days) give notice
to Lender:
Page 155
5.7.1 of the occurrence of any Potential Default or Event of Default;
5.7.2 of any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority or Foreign Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could
reasonably be likely to have a material adverse effect on the business,
operations, property or financial or other condition of the Borrower or
any of its Subsidiaries;
5.7.3 of any litigation or proceeding affecting the Borrower or any
Subsidiary in which the amount involved is $100,000 or more and not
covered by insurance or in which injunctive or similar relief is sought,
or any material changes in matters as to which the Lender has been
previously notified; and
5.7.4 of a material adverse change in the business, operations,
property or financial or other condition of the Borrower or any of its
Subsidiaries.
Each notice pursuant to this Section 5.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take
with respect thereto. Notwithstanding anything in this Agreement to the
contrary, in no event shall Borrower disclose to the Lender, in its capacity
as a lender, any material, non-public information. Any information so
withheld shall, once public, be promptly delivered to the Lender.
5.8 Further Assurances. From time to time hereafter, the Borrower will
execute and deliver, or will cause to be executed and delivered, such
additional instruments, certificates or documents, and will take all such
actions, as Lender may reasonably request, for the purposes of implementing
or effectuating the provisions of this Agreement, the Security Documents, and
the Note, or of more fully perfecting or renewing the Lender's rights with
respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by the Borrower) pursuant hereto or thereto. Upon
the exercise of any power, right, privilege or remedy pursuant to this
Agreement or the Security Documents which requires any consent, approval,
recording, qualification, or authorization of any Governmental Authority or
Foreign Governmental Authority, the Borrower will execute and deliver, or
will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that Lender may be required to
obtain from the Borrower for such governmental consent, approval, recording,
qualification or authorization.
Page 156
6. NEGATIVE COVENANTS.
The Borrower hereby agrees that, so long as any portion of the Note remains
outstanding and unpaid or any other amount is owing to Lender hereunder or
under any of the Loan Documents, the Borrower shall not (unless expressly
approved in writing by the Lender, in its sole and absolute discretion),
directly or indirectly:
6.1 Limitation on Indebtedness. Create, incur, assume or suffer to exist
(or permit any Subsidiary to create, incur, assume or suffer to exist) any
Indebtedness in excess of $100,000 in the aggregate, except:
6.1.1 Indebtedness in respect of the Loan, the Note, and other
obligations of the Borrower under the Loan Documents and such other
Indebtedness as the Lender shall approve from time to time (which may
include an unsecured promissory note issued to Dimensional Fund Advisors
("DFA") in connection with the pending capital restructuring of the
Borrower described in the July 20, 1999 Proxy Statement of the Borrower
as expressly approved by the National Electrical Benefit Fund in its
capacity as a shareholder of the Borrower).
6.2 Limitation on Liens. Create, incur, assume or suffer to exist (or
permit any Subsidiary to create, incur, assume or suffer to exist) any Lien
upon any of its (or a Subsidiary's) property, assets or revenues, whether now
owned or hereafter acquired, except for:
6.2.1 Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or such
Subsidiary, as the case may be, in conformity with GAAP;
6.2.2 carriers', warehousemen's, mechanics', materialmen's,
repairmen's, or other like Liens arising in the ordinary course of
business and not overdue for a period of more than sixty (60) days or
which are being contested in good faith by appropriate proceedings in a
manner which will not jeopardize or diminish the interest of the
Lender's in any of the Collateral;
6.2.3 pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
6.2.4 deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
6.2.5 easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any such Subsidiary;
Page 157
6.2.6 Liens in favor of the Lender created pursuant to the Security
Documents; and
6.2.7 Such other Liens as the Lender shall approve from time to time.
6.3 Limitation on Contingent Obligation. Create, incur, assume or suffer to
exist (or permit any Subsidiary to create, incur, assume or suffer to exist)
any Contingent Obligation (with the exception of Borrower's guarantee of
EMS's accounts payable in EMS's ordinary course of business).
6.4 Limitations on Fundamental Changes. Enter into (or permit any
Subsidiary to enter into) any transaction of acquisition or merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or any material part of its property,
business or assets (other than in the ordinary course of its business), or
make any material change in the present method of conducting business.
6.5 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of, any of its property, business or assets (including,
without limitation, intellectual property, receivables and leasehold
interests) (or permit any Subsidiary to do any of the foregoing) whether now
owned or hereafter acquired whose value exceeds $100,000 in the aggregate
except:
6.5.1 the sale of inventory in the ordinary course of business; and
6.5.2 the sale or other disposition of any property in the ordinary
course of business;
provided, that in the event the Borrower desires to enter into a
sale/leaseback or similar transaction with respect to its plant located in
Colorado Springs, Colorado, the Lender hereby agrees to review the terms of
such proposed transaction in good faith and provide its prompt approval or
disapproval thereof, it being understood that any such approval or
disapproval shall be made in Lender's sole but good faith discretion, and any
approval thereof may require a prepayment of the Loan in the amount of the
proceeds of such transaction received by Borrower.
6.6 Limitation on Negative Pledge Clauses. Enter into (or permit any
Subsidiary to enter into) any agreement with any Person other than the Lender
pursuant hereto which prohibits or limits the ability of the Borrower or any
of its Subsidiaries to create, incur, assume or suffer to exist any Lien in
favor of the Lender, upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
6.7 Limitation on Investments, Loans and Advances. The Borrower will not,
and will not permit any of its Subsidiaries to, make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of, or make any other investment in,
any Person, except:
Page 158
6.7.1 loans, advances and extensions of credit to employees of the
Borrower or its Subsidiaries for travel, entertainment and relocation
expenses (including, without limitation, bridge loans associated
therewith) incurred in the ordinary course of business;
6.7.2 investments in Cash Equivalents;
6.7.3 extensions of trade credit in the ordinary course of business;
6.7.4 other investments, loans, advances, extensions of credit and
capital contributions in an aggregate amount not to exceed $100,000 at
any time.
6.8 Limitation on Prepayments. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any optional payment on account
of any principal of, interest on, or premium payable in connection with the
optional prepayment, redemption or retirement of any of its Indebtedness,
except for the Loan.
6.9 No Amendments. The Borrower will not (a) permit the modification or
waiver of or any change in any provisions of any agreement relating to
Indebtedness or license agreements or similar agreements relating to
Intellectual Property of the Company or any of its Subsidiaries if such
modification, waiver or change could have a material adverse effect on the
ability of the Company or any such Subsidiary to perform its obligations
under this Agreement, the Notes, or the Loan Documents (such effect to be
determined by the Lender in its sole discretion),or (b) fail to give prior
written notice to Lender of each proposed modification, waiver or change to
any of the agreements referred to in clause (a) above.
6.10 Limitation on Stock Issuance. Unless otherwise expressly agreed to by
the Lender, the Borrower will not, nor will it permit its Subsidiaries to,
issue any additional shares of equity securities except:
(a) in the case of the Borrower,
(i) to Lender in connection with this Agreement;
(ii) to any Person pursuant to a warrant, option or convertible
security issued by Borrower to that Person prior to July 31,
1999;
(iii) pursuant to a Plan established prior to July 31, 1999 and as
described in the Borrower's latest 10-K or 10-Q filed with
the Securities and Exchange Commission prior to the date
hereof; and
(b) in the case of the Subsidiaries of the Company, to their respective
parents or the Borrower provided that all such securities are pledged to
the Lender as collateral for the Obligations.
Page 159
6.11 Corporate Documents. Amend its Certificate of Incorporation (except to
increase the number of authorized shares of Common Stock), without the prior
written consent of the Lender.
6.12 Compliance with ERISA. (a) Terminate any Plan so as to result in any
material liability to Lender, (b) engage in any "prohibited transaction", as
defined in Section 4975 of the Code, (c) incur or suffer to exist any
material "accumulated funding deficiency", as defined in Section 302 of
ERISA, whether or not waived involving any Plan, or (d) allow or suffer to
exist any event or condition, which presents a material risk of incurring a
material liability to Lender by reason of termination of any such Plan.
6.13 Financing Covenants.
6.13.1 Maintenance of Net Worth. Permit the Borrower's Consolidated
Net Worth at any time to be less than Seven Million Dollars
($7,000,000).
6.13.2 Maintenance of Working Capital Ratio. Permit the ratio of
Consolidated Working Capital Assets to Consolidated Current Liabilities
to be less than 1.5 to 1.0.
6.13.3 Maintenance of Debt to Equity Ratio. Permit the ratio of long-
term Indebtedness of the Borrower to the Consolidated Net Worth of the
Borrower to be more than 1.0 to 1.0.
7. EVENTS OF DEFAULT. Upon the occurrence of the following events (each
such event being referred to herein as an "Event of Default"):
7.1 The Borrower shall fail to pay any principal, interest or other amount
payable hereunder or under the other Loan Documents when due, and such
default shall continue for a period of five (5) days from the date Borrower
shall have received notice of such default; or
7.2 Any representation or warranty made or deemed made by the Borrower
herein or in the other Loan Documents or which is contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement or any such other Loan Document
shall prove to be materially and adversely incorrect; or
7.3 The Borrower shall materially default in observance or performance of
any covenants or agreements contained in Section 6 hereof; or
7.4 The Borrower shall fail to provide Lender notice as required by Sections
5.2.5 or 5.2.7 hereof; or
7.5 The Borrower shall materially default in the observance or performance
of any other agreement contained in this Agreement or any of the other Loan
Documents, and such default shall continue unremedied for a period of thirty
(30) days after written notice thereof from Lender; or
Page 160
7.6 (i) Any of the Security Documents shall cease, for any reason, to be in
full force and effect, or the Borrower shall so assert, or (ii) any of the
Liens purported to be created by the Security Documents shall cease to be (or
shall not have been from the date hereof) a valid and perfected first
priority enforceable Lien; or
7.7 The Borrower or any of its Subsidiaries shall (i) default in any payment
of principal of or interest of any Indebtedness (other than the Note), or in
the payment of any Contingent Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness or Contingent Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition relating to
any such Indebtedness or Contingent Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Contingent Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Contingent
Obligation to become payable; or
7.8 (i) Any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency", as defined in Section 302 of
ERISA, whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Lender, likely to result in termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Lender is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan, or (vi) any other
event or condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could subject the Borrower
or any of its Subsidiaries to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial or other condition of the Borrower or any of its Subsidiaries; or
7.9 The termination, liquidation or dissolution or the commencement of
proceedings toward the liquidation or dissolution of Borrower or any
Subsidiary (other than to the extent expressly provided for in Section 8.21)
thereof; or
Page 161
7.10 (i) Borrower or any Subsidiary thereof shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its respective debts, or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial part
of its respective assets, or Borrower shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against Borrower
or any Subsidiary thereof any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment, or (B) remains
undismissed, undischarged or unbonded for a period of sixty (60) days; or
(iii) there shall be commenced against Borrower or any Subsidiary thereof any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its respective assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or (iv)
Borrower or any Subsidiary thereof shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii) or (iii) above; or
7.11 One or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving in the aggregate a liability (not paid
or fully covered by insurance) of $1,000,000 or more and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 20 days from the entry thereof; or
7.12 The Aggregate Actual/Potential Litigation Liabilities shall, at any
time, exceed Three Million Dollars ($3,000,000). For purposes hereof, the
term "Aggregate Actual/Potential Litigation Liabilities" shall mean the sum
of, without duplication, (i) the aggregate of all unpaid judgments, awards or
decrees entered against the Borrower to the extent not covered by insurance,
plus (ii) the amount the Lender has determined, in its sole and absolute
discretion, to be the potential liability of the Borrower under any pending
or threatened suit, action, investigation, inquiry or other proceeding
(including, without limitation, the NEC Patent Infringement Litigation, any
other Patent Litigation, the RAM 302 Interference proceeding or the Deere
Park Litigation); plus (iii) the amount of any unpaid settlement payable by
the Borrower with respect to any actual or threatened suit, action,
investigation, inquiry or other proceeding, then, and in any such event
(A) if such event is an Event of Default specified in Section 7.9 or 7.10
above with respect to the Borrower (any such event, an "Automatic
Acceleration Event"), automatically the Loan hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement, the Note and the
other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, Lender may, by written notice to
the Borrower declare the Loan hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement, the Note and the other Loan
Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above in
this Section 7, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
Page 162
8. MISCELLANEOUS.
8.1 Entire Agreement. This Agreement taken together with all of the other
Loan Documents and all certificates and other documents delivered by Borrower
to Lender, embodies the entire agreement with respect to the subject matter
hereof, and supersedes or incorporates all prior negotiations or agreements
written and oral.
8.2 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the parties hereto had signed the
same document. All such counterparts shall be deemed to constitute one
instrument.
8.3 Governing Law. This Agreement and the other Loan Documents are to be
governed by, and construed and enforced in accordance with the laws of the
State of Colorado.
8.4 Severability. If any of the terms and provisions specified herein or in
the other Loan Documents is held by a court of law to be in violation of any
applicable law, state or federal ordinance, statute, law, administrative or
judicial decision, or public policy, and if a court should declare such term
or provision to be illegal, invalid, unlawful, void, voidable, or
unenforceable as written, then such provision shall be given full force and
effect to the fullest possible extent that it is legal, valid and
enforceable, and the remainder of the terms and provisions herein shall be
construed as if such illegal, invalid, unlawful, void, voidable or
unenforceable term or provision was not contained herein, and the rights,
obligations and interests of Borrower and Lender under the remainder of this
Agreement or of the other Loan Documents, as applicable, shall continue in
full force and effect.
8.5 Successors and Assigns. All covenants and agreements herein shall bind
the respective successors and assigns of Borrower and Lender, provided that
Borrower shall not be permitted to transfer or assign its rights and
obligations hereunder.
8.6 Time of the Essence. Time is of the essence with regard to Borrower's
performance under the terms and provisions of this Agreement, the other Loan
Documents and any amendment, modification, restatement, or revision hereof or
thereof, subject, however, to the applicable grace periods, if any, set forth
in the Loan Documents. No extension of time for the payment of the Loan or
any installment thereof made by agreement with any Person now or hereafter
liable for payment of the Loan shall operate to release, discharge, modify,
change or affect the original liability of Borrower under this Agreement,
either in whole or in part.
Page 163
8.7 Notice. Any notice, demand, consent, authorization, request, approval
or other communication given or required hereunder shall contain a clear and
concise statement of the purpose of such notice, shall reference this
Agreement and shall be effective and valid only if in writing, signed by the
party giving such notice and delivered in person by a commercial messenger
service regularly retaining receipts for such delivery, a reputable overnight
express courier or delivery service from whom a receipt is obtained, by
facsimile transmission (to be followed immediately by an original sent by one
of the other means enumerated herein), or, if mailed, sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
To the Lender:
National Electrical Benefit Fund
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
With a mandatory copy to:
Counts & ▇▇▇▇▇, Chartered
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
To Borrower:
Ramtron International Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
All such notices shall be considered given on the date when delivered
(refusal of delivery shall constitute delivery), or if mailed, upon the date
of receipt of such notice as evidenced by the return receipt with respect to
such notice received by the sender thereof, addressed to the parties to be
notified at the addresses set forth above or to any other addresses as any
party may hereafter specify to the others by like notice.
8.8 Successive Remedies. No power or remedy herein conferred is exclusive
of or shall prejudice any other power or remedy of Lender given by law,
equity, the terms of any of the Loan Documents or otherwise. Each such power
or remedy may be exercised by Lender from time to time as often as they deem
necessary.
Page 164
8.9 No Waiver; Cumulative Remedies. No delay by Lender in exercising any
right, power or privilege under this Agreement or any of the other Loan
Documents and no failure by Lender to insist, or election by Lender not to
insist, upon the strict performance of any of the terms, provisions, or
conditions of this Agreement or any of the other Loan Documents shall be
deemed to be a waiver of the same or any other term, provision, or condition
thereof and Lender shall have the right at any time thereafter to insist upon
strict performance of any and all of the same. If Lender advances any
portion of the Loan in the absence of strict compliance with any or all of
the conditions of Lender's obligations to make such advance, the same shall
be deemed to have been made pursuant to this Agreement and not to be a
modification hereof and Lender reserves the right to insist upon strict
compliance with respect to any and all future Loans. The rights, remedies,
powers and privileges of Lender provided herein or in each of the other Loan
Documents shall be cumulative and not exclusive of any rights, remedies,
powers, or privileges provided in any of the other Loan Documents or provided
by law.
8.10 Cross-Default. Any Event of Default under this Agreement shall be
deemed to be an Event of Default under each of the other Loan Documents,
entitling Lender to exercise any or all remedies available to Lender under
the terms of any or all Loan Documents.
8.11 Inconsistencies with Loan Documents. In the event of any conflict
between this Agreement and the provisions of any of the other Loan Documents,
the provisions of this Agreement shall control; provided, however, that any
provision of any other Loan Document which imposes additional burdens on
Borrower or restricts the rights of Borrower or gives Lender additional
rights or remedies shall not be deemed to be in conflict or inconsistent with
this Agreement and shall be given full force and effect.
8.12 Survival. All of the representations, warranties, terms, covenants,
agreements and conditions contained in this Agreement shall specifically
survive the execution and delivery of this Agreement and the other Loan
Documents and the advance of the Loan and shall, unless otherwise expressly
provided, continue in full force and effect until the Loan, together with
interest thereon and all other costs, charges and other sums payable
hereunder or thereunder, are paid in full.
8.13 Negotiated Document. Lender and Borrower acknowledge that the
provisions and the language of this Agreement and the other Loan Documents
have been negotiated by commercially sophisticated parties, and agree that no
provision of this Agreement or any other Loan Document shall be construed
against Lender or Borrower by reason of Lender or Borrower having drafted
such provision, this Agreement or any other Loan Document.
Page 165
8.14 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse Lender for all of its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the Note and any of the other Loan Documents, including, without
limitation, fees and disbursements of counsel to the Lender, and (b) to pay,
indemnify, and hold Lender harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
by the Borrower in paying, stamp, excise, and other taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under
or in respect of, the Agreement, the Note and any such other documents, and
(c) to pay, indemnify, and hold Lender harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the enforcement, performance and administration of
this Agreement, the Note and any such other documents (all the foregoing,
collectively, the "indemnified liabilities"), provided, that the Borrower
shall have no obligation hereunder to a Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of
Lender. The agreements in this Section 8.14 shall survive the repayment of
the Note and all other amounts payable hereunder.
8.15 Action, Consents and Approvals. Borrower acknowledges and agrees that,
except as expressly stated to the contrary in the Agreement or any other Loan
Document, any consent, approval, determination (including without limitation
any determination of whether a document, action or state of facts is
satisfactory to Lender), or action required or requested of Lender pursuant
to the Agreement or any other Loan Document, may be granted or withheld by
Lender, as the case may be, in its sole discretion.
8.16 Amendments, Modifications, etc.. Neither the Agreement nor any of the
terms or conditions hereof may be amended, supplemented, or otherwise
modified except by a written instrument signed by Borrower and Lender
expressly referencing the terms and conditions to be amended or modified.
8.17 Waivers. BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,
AND, ON THE ADVICE OF SEPARATE COUNSEL OF BORROWER, UNCONDITIONALLY WAIVES
THE FOLLOWING WITH RESPECT TO ANY ACTION BROUGHT UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS:
(a) PERSONAL SERVICE OF ANY AND ALL PROCESS on Borrower, and consents
that all such service of process be made by certified or registered mail
directed to Borrower at the address set forth in this Agreement and
agrees that such service shall be deemed sufficient upon receipt by
Borrower; provided that nothing contained herein shall affect the right
of Lender to serve legal process in any other manner permitted by law;
Page 166
(b) ANY OBJECTION TO JURISDICTION OR VENUE of any action instituted
hereunder or under any of the other Loan Documents and agrees not to
attempt to transfer any action instituted hereunder or under any of the
other Loan Documents and agrees not to assert any defense based on lack
of jurisdiction or venue; provided that nothing contained herein shall
affect the right of Lender to bring any action or proceeding against
Borrower in the courts of any other jurisdiction;
(c) THE RIGHT TO TRIAL BY JURY as Borrower acknowledges and agrees that
any controversy which may arise under the Agreement or the other Loan
Documents or the relationship established hereby would be based upon
difficult and complex issues, and, therefore, Borrower agrees that any
lawsuit arising out of any such controversy will be tried by a court of
competent jurisdiction by a judge sitting without a jury.
8.18 Captions and References. The captions of this Agreement are for
convenience and reference only and in no way define, describe, extend, or
limit the scope, meaning, or intent of the Agreement. Unless otherwise
expressly provided, any reference in the Agreement to any section,
subsection, paragraph, exhibit or schedule is a reference to a section,
subsection, paragraph, exhibit or schedule of the Agreement.
8.19 Gender and Plural Usages. Whenever the context may require, any
pronoun used in the Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular forms of nouns, pronouns and verbs
shall include the plural and vice versa.
8.20 Termination of Prior Loan Facility. It is hereby acknowledged and
agreed that the Loan Agreement dated as of March 2, 1995 between the Borrower
and the Lender, together with each of the loan documents executed in
connection therewith (with the exception of the Patent Security Agreement of
March 2, 1995 by and between Borrower and Lender which Borrower hereby
acknowledges and agrees shall continue in full force and effect until
replaced by Lender's perfected and first priority security interest in all
Borrower's patents secured thereby and references in such Patent Security
Agreement to the "Loan Agreement" shall be deemed to refer to this Amended
and Restated Loan Agreement), shall be deemed terminated and of no further
force or effect as of the Closing Date.
8.21 Issues re EMS. Notwithstanding anything herein to the contrary,
nothing in this Agreement or the other Loan Documents shall be deemed to
(i) prohibit the Borrower from selling all or a portion of the stock of EMS
provided that any such sale shall be reasonably approved by the Lender in
writing at least sixty (60) Business Days prior to such sale and the proceeds
thereof shall be subject to the provisions of Section 2.5.2 hereof;
(ii) prohibit the Borrower from transferring certain assets to EMS provided
that any such transfer shall be reasonably approved by the Lender in writing,
any assets so transferred shall continue to be subject to first priority
Liens held by the Lender and Borrower and EMS shall have executed and
delivered to the Lender such documents consistent with the foregoing as
Lender shall reasonably request; or (iii) prohibit the liquidation of EMS
provided that any such liquidation shall be approved by Lender in writing at
least sixty (60) Business Days prior to such liquidation. Such Lender
approval to be based upon its reasonable determination that any such
liquidation shall not adversely affect the value of the Collateral taken as a
whole or Lender's first priority Liens therein.
Page 167
8.22 Release of Security.
8.22.1 Racom Stock. Promptly following the consummation of the loan
restructuring contemplated hereby, the Lender will take such steps as
shall be reasonably necessary to release its security interests in the
stock of Racom, including a termination of the Racom Stock Pledge
Agreement and return of the stock certificates held by the Lender
pursuant thereto.
8.22.2 Release of Accounts Receivable. In the event that the Borrower
shall obtain a working capital facility from a third-party lender, which
lender requires a security interest to be granted with respect to the
Released Receivables (as defined below), upon reasonable written notice
to the Lender, the Lender shall take such steps as shall be reasonably
necessary to release from the Lien of the Security Agreement all
Accounts of the Borrower other than Accounts relating to licensing or
royalty fees and payments payable to the Borrower (such released
Accounts, the "Released Receivables").
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the
day and year first above written.
BORROWER:
RAMTRON INTERNATIONAL CORPORATION
By: /S/ L. ▇▇▇▇▇ ▇▇▇▇▇
--------------------
L. ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
and Chairman of the Board of Directors
9:15 a.m., 06 August 1999
LENDER:
NATIONAL ELECTRICAL BENEFIT FUND
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Trustee
Page 168
EXHIBIT "A"
FIRST ALLONGE
This First Allonge (this "Allonge") is dated as of XXXXX XX, 1999 and is made
by and between RAMTRON INTERNATIONAL CORPORATION (the "Maker") and the NATIONAL
ELECTRICAL BENEFIT FUND (the "Lender).
W I T N E S S E T H:
WHEREAS. Maker has outstanding to the Lender a loan in the principal amount
of Seven Million Dollars ($7,000,000) as of the date hereof which is
evidenced by that certain promissory note of Maker dated August 31, 1995
(such promissory note, the "Note"); and
WHEREAS. Maker has requested that Lender extend certain terms and provisions
of the Note and Lender has agreed to do so in accordance with that certain
Amended and Restated Loan Agreement dated as of the date hereof by and
between the Maker and Lender (the "Loan Agreement") and this Allonge.
NOW THEREFORE, in consideration of the premises hereof and for other good and
valuable consideration the receipt and sufficiency of which are hereby
established, the Maker and the Lender hereby agree as follows:
1. Establishment of Outstanding Principal Amount. It is hereby irrevocably
established that the outstanding principal amount of the Note as of the date
hereof is Seven Million Dollars ($7,000,000).
2. No Other Amendments. Other than as expressly modified hereby and in the
Loan Agreement, the Note shall continue to be in full force and effect.
3. Attachment to Note. Upon its execution by the Maker and the Lender, this
Allonge shall be attached to the Note and be deemed to be a part hereof.
4. Amendments to the Note. The Note shall be amended as follows:
(a) The first line of the Note listing the amount of "$12,000,000" shall
be deleted and replaced with "$7,000,000."
(b) The ninth and tenth lines of Section 1 of the Note: "below)) the
maximum principal sum of TWELVE MILLION DOLLARS ($12,000,000), or so
much thereof as may be advanced pursuant to "shall be deleted and
replaced with "below )) the maximum principal sum of SEVEN MILLION
DOLLARS ($7,000,000), or so much thereof as may be advanced pursuant
to."
(c) The phrase "Section 2.13 of" contained in the twelfth line of
Section 1 of the Note shall be deleted.
(d) The fourth line of Subsection 2(a) of the Note: "provided in Section
2.5 of the Loan Agreement" shall be deleted and replaced with
"provided in Section 2.3 of the Loan Agreement."
Page 169
(e) The third line of Subsection 2(b) of the Note: "other Loan
Documents, at the rate provided for in Section 2.9 of" shall be
deleted and replaced with "other Loan Documents, at the rate
provided for in Section 2.7 of."
(f) The fifth line of Subsection 2(b) of the Note: "payment shall bear
interest as provided in Section 2.9 of the Loan" shall be deleted
and replaced with "payment shall bear interest as provided in
Section 2.7 of the Loan."
(g) The address listed for notices to the "Payee" in Section 17: "If to
Payee: National Electrical Benefit Fund ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇" shall be deleted and replaced with "If
to Payee: National Electrical Benefit Fund ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇. ▇▇▇▇,
Trustee Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇."
IN WITNESS WHEREOF, the Maker and the Lender have executed this Allonge as of
the date set forth above.
WITNESS: MAKER:
RAMTRON INTERNATIONAL CORPORATION
------------------- By: -----------------------------
L. ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
and Chairman of the Board
of Directors
LENDER:
NATIONAL ELECTRICAL BENEFIT FUND
By: ------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Trustee
Page 170
EXHIBIT "B"
[Form of Borrowing Certificate]
BORROWING CERTIFICATE
Pursuant to subsection 4.1.3 of the Amended and Restated Loan Agreement dated
as of XXXXXXX XX, 1999 (as amended, supplemented, restated, or otherwise
modified from time to time, the "Loan Agreement") (terms defined therein
being used herein as so defined), between RAMTRON INTERNATIONAL CORPORATION
(the "Borrower") and the NATIONAL ELECTRICAL BENEFIT FUND (the "Lender"), the
undersigned in such person's capacity as Chief Executive Officer of the
Borrower, hereby certifies as follows:
1. Representations and Warranties. The representations and warranties of
the Borrower set forth in the Loan Agreement and any other Loan Document to
which it is a party or which are contained in any certificate, document or
financial or other statement furnished pursuant to or in connection with the
Loan Agreement are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof;
2. No Default. No Default or Event of Default has occurred and is
continuing as of the date hereof after giving effect to the Loan requested to
be made on the date hereof;
3. Conditions Precedent. The conditions precedent set forth in subsections
4.1, 4.2, and 4.3 of the Loan Agreement have been satisfied; and
4. Incumbency. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is and at all time since July 1, 1994, has
been the duly elected and qualified Executive Vice President and Chief
Financial Officer of the Borrower and the signature set forth on the
signature line for such officer below is such officer's true and genuine
signature;
and the undersigned Executive Vice President and Chief Financial Officer of
the Borrower hereby certifies as follows:
5. Corporate Existence. There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Borrower or any of its
Subsidiaries, nor has any other event occurred affecting or threatening the
corporate existence of the Borrower or any of its Subsidiaries taken as a
whole;
6. Good Standing. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware;
7. Corporate Documents. Attached hereto as Exhibit "A" is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower on XXXXXXXXX, 1999; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in full force and
effect since their adoption to and including the date hereof and are now in
full force and effect, and such resolutions are the only corporate
proceedings of the Borrower now in force relating to or affecting the matters
referred to therein; attached hereto as Exhibit "B" is a true and complete
copy of the Certificate of Incorporation of the Borrower as in effect at all
times since XXXXXXXXX, 19XX, to and including the date hereof; and
Page 171
8. Incumbency. The following persons are now duly elected and qualified
officers of the Borrower, holding the offices indicated next to their
respective names below, and such officers have held such offices with the
Borrower at all times since XXXXXXXXX, 19XX, to and including the date
hereof, and the signatures appearing opposite their respective names below
are the true and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf of the Borrower
the Loan Agreement, the Note, the Security Documents and the other Loan
Documents to which the Borrower is a party and any certificate or other
document to be delivered by the Borrower pursuant to the Loan Agreement or
any other Loan Document:
Name, Office, Signature
--------------------, Chief Executive Officer, --------------------
--------------------, President, ---------------------
--------------------, Executive Vice President, -------------------
IN WITNESS WHEREOF, the undersigned have hereunto set our names.
RAMTRON INTERNATIONAL RAMTRON INTERNATIONAL
CORPORATION CORPORATION
---------------------------- ---------------------------
[Name] L. ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President Title: Chief Executive Officer
and Chief Financial Officer and Chairman of the Board
of Directors
Date: XXXXXXXXX, 19XX
Page 172
EXHIBIT "C"
ACKNOWLEDGMENT
As of XXXXXXXXX, 1999, the undersigned Ramtron International Corporation
("Borrower") and the National Electrical Benefit Fund (the "Lender") being
the parties to the original Loan Agreement dated as of August 31, 1995 (the
"Original Loan Agreement"), hereby acknowledge and agree that the Original
Loan Agreement has been duly amended and restated in full by the Amended and
Restated Loan Agreement dated as of July 31, 1999 (as amended, supplemented,
restated, or otherwise modified from time to time, the "Restated Loan
Agreement") by and between Borrower and Lender and agree that from and after
the date hereof, all references in the Loan Documents or to the Loan
Agreement (as defined in the Restated Loan Agreement) shall be deemed to be,
and shall be, references to the Restated Loan Agreement, and each reference
to the Note shall be deemed a reference to the Note as defined in the
Restated Loan Agreement.
RAMTRON INTERNATIONAL CORPORATION
By: ----------------------------
L. ▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
and Chairman of the Board of Directors
NATIONAL ELECTRICAL BENEFIT FUND
By:-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Trustee
Page 173
EXHIBIT "D"
Form of Amended Warrant
RAMTRON INTERNATIONAL CORPORATION
Warrant to Purchase Shares
of Common Stock
RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"),
hereby certifies that, for value received and the cancellation of that certain
warrant dated August 31, 1995 for 4,028,485 shares of Common Stock, the
NATIONAL ELECTRICAL BENEFIT FUND 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 ascribed to them in the Loan Agreement by and between the Holder and
the Company dated effective as of XXXXXXXX, 1999 (the "Loan Agreement").
1. Number of Warrant Shares. Subject to adjustment as provided in Section 4,
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 4,028,485.
2. Exercise Price. This Warrant is exercisable for Warrant Shares at a price
per share (the "Warrant Price") equal to $1.00.
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. Eastern Time, on September 30, 2008, or, if such
day is not a Business Day, then at 5:00 p.m. Eastern Time on the next
succeeding Business Day (the "Expiration Date").
4. Procedure for Exercise. Subject to 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.
Page 174
5. Conditions to Exercise. 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.
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.
(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 or receive dividends or 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.
Page 175
(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.
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 either the Securities Act of 1933, as amended (the "Act") or
applicable state securities laws (the "State Acts") and shall not be sold
or otherwise disposed of for value by the Holder except upon registration
of such sale or disposition in accordance with the securities
registration requirements of the Act and any applicable State Acts, or
pursuant to exemption from such registration requirements.
(c) In connection with the exercise of this Warrant and the issuance of
the Warrant Shares, and upon the request of Holder, Borrower shall
register under the Securities Act of 1933, as amended, within a
reasonable period of time after the date of such exercise and
issuance, the resale of the Warrant Shares issued pursuant to such
exercise.
Page 176
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. Notwithstanding anything in this
Section 11(a) to the contrary, the prior two sentences shall be
inoperative and of no force and effect if upon the completion of any
such Reorganization the stockholders of the Company immediately prior
to such event do not own at least fifty percent (50%) of the equity
interest of the corporation resulting from such Reorganization and
those Warrants which are unexercised shall expire on the completion
of such Reorganization if the notice required by Section 11(e) hereof
has been given.
(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:
Page 177
(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.
(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;
Page 178
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.
(g) Purchase Price Adjustment. The exercise price of the Warrant shall
be adjusted downward, from time to time, to equal the lowest price of
any (i) warrant for common stock issued by the Company to any
employee, investor, or other Person or entity, or (ii) stock option
granted to any officer of the Company, provided, that such price
adjustment shall not apply to warrants issued to ▇▇▇▇▇▇▇▇ Capital
Corp. or CEA ▇▇▇▇▇▇▇▇▇▇ as a result of the capital restructuring of
the Company, which is the subject of the July 20, 1999 Proxy
Statement of the Company, as such restructuring has been approved by
the Holder in its capacity as a shareholder of the Company.
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 179
If to the Holder at:
The National Electrical Benefit Fund
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Counts & ▇▇▇▇▇, Chartered
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
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:
(i) 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;
(ii) a receiver, custodian, sequestrator or similar official for the
Holder or for any substantial part of its property shall be
appointed or elected;
(iii) the Holder shall commence any winding-up or liquidation, voluntary
or involuntary, of the Holder;
(iv) 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
(v) 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 modified,
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 XX day of XXXXXXX 1999.
RAMTRON INTERNATIONAL CORPORATION
By: ------------------------------
L. ▇▇▇▇▇ ▇▇▇▇▇, Chairman and CEO
Page 180
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(s) ----------------------
Address ----------------------
No. of Shares ----------------
Dated --------------
Signature(s) ------------------------------
------------------------------
Social Security Number or
Employer Identification Number
Page 181
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 ------
(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: ------------------------
Title: ---------------------
Page 182
SCHEDULE 3.1
List of Contingent obligations, taxes, leases, commitments per Section 3.1
Agreement with CIBC ▇▇▇▇▇▇▇▇▇▇▇
===============================
Letter Agreement between Ramtron International Corporation (the "Company")
and CIBC ▇▇▇▇▇▇▇▇▇▇▇ ("CIBC") dated November 9, 1998.
2. Compensation and Expense Reimbursement. In consideration of the
obligations of CIBC hereunder, the Company agrees to pay CIBC in
cash, the following amounts:
(a) A monthly fee of $75,000 in cash payable on the first day of
each month, with payments commencing on November 9, 1998, and
ending on the earlier of the Date of Termination of this
Agreement or the payment of the fee provided for in paragraph
(b) below (each a "Monthly Fee").
(b) If the Company consummates a Restructuring Transaction, CIBC
shall be entitled to a fee equal to $700,000 (the "Transaction
Fee") payable in cash upon the closing of such Transaction.
The Monthly Fees for the first one, two, or three months shall
be credited against the Transaction Fee, depending on the month
in which the Transaction is consummated.
Settlement Agreement
====================
Settlement Agreement dated as of April 7, 1999 between Talisman Capital
Opportunity Fund Ltd. ("Talisman") and Ramtron International Corporation
("Ramtron").
(1) Upon execution of this Settlement Agreement, Ramtron shall pay
Talisman by wire transfer the following sums:
(a) $475,000, in return for which Talisman shall immediately and
irrevocably surrender for cancellation to Ramtron its remaining
1000 shares (including rights to accrued dividends) of Ramtron
Series A Preferred Stock, which were issued to Elara Ltd.
pursuant to the February 25, 1998 Preferred Stock Investment
Agreement; and
(b) $75,000.00, representing reimbursement of Talisman's legal fees
and related costs and expenses.
The foregoing amounts will be in full satisfaction of all of Talisman's
actual or potential claims against Ramtron.
Page 183
Operating Leases
----------------
1. Comdisco - Teradyne Tester
Monthly payment $2,628
Total remaining obligation $51,816
Payments Remaining:
August - December 1999 $13,140
Year 2000 31,536
Year 2001 13,140
2. Comdisco - Jeol SEM
Monthly payment $4,336
Total remaining obligation $95,392
Payments Remaining:
August - December 1999 $21,680
Year 2000 52,032
Year 2001 21,680
3. Comdisco - Advantest Tester
Monthly payment $26,906
Total remaining obligation $95,392
Payments Remaining:
August - December 1999 $134,530
Year 2000 322,872
Year 2001 322,872
Year 2002 242,154
4. Pitney ▇▇▇▇▇
Monthly payment $1,187
Total remaining obligation $2,375
Payments Remaining:
August - December 1999 $2,375
5. LAC
Monthly payment $2,938
Total remaining obligation $105,768
Payments Remaining:
August - December 1999 $14,690
Year 2000 35,256
Year 2001 35,256
Year 2002 20,566
6. ▇▇▇▇▇
Monthly payment $1,129
Total remaining obligation $30,483
Payments Remaining:
August - December 1999 $ 5,645
Year 2000 13,548
Year 2001 11,290
Page 184
7. Leasetec
Monthly payment $996
Total remaining obligation $4,982
Payments Remaining:
August - December 1999 $ 4,982
8. Leasetec
Monthly payment $1,128
Total remaining obligation $9,022
Payments Remaining:
August - December 1999 $5,639
Year 2000 3,383
9. AT&T Leasing
Monthly payment $821
Total remaining obligation $17,245
Payments Remaining:
August - December 1999 $4,106
Year 2000 9,854
Year 2001 3,285
10. AT&T Leasing
Monthly payment $1,811
Total remaining obligation $16,299
Payments Remaining:
August - December 1999 $9,055
Year 2000 7,244
Page 185
SCHEDULED 3.10
List of Intellectual Property
Issued Patents
RIC Company Confidential
Total Issued Patents 162
Tech Patent
RAM No. Type Title No. Issued Expires Inventor
------- ---- ---------------------- --------- ------- ------- --------------------
United States 89
===================
RAM407 FRAM PARTIALLY OR COMPLETELY 5,920,453 7/6/99 8/20/16 ▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL
ENCAPSULATED TOP ELECTRODE
OF A FERROELECTRIC CAPACITOR
RAM402 FRAM SERIAL FRAM ARCHITECTURE 5,912,846 6/15/99 2/28/17 ▇▇▇▇▇▇, ▇▇▇▇▇
TO EQUALIZE COLUMN ACCESS
RAM368 FRAM INTEGRATION OF HIGH VALUE CAPACITOR 5,909,624 6/1/99 2/10/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
DIV RF/ID
RAM415 FRAM DUAL-LEVEL METALIZATION METHOD FOR 5,902,131 5/11/99 5/11/17 ARGOS, ▇▇▇▇▇▇, ET AL.
INTEGRATED CIRCUIT FERROELECTRIC
DEVICES
RAM418 EDRAM FIRST-IN, FIRST-OUT INTEGRATED 5,901,100 5/4/99 4/1/17 ▇▇▇▇▇▇, ▇▇▇▇▇
DRAM CIRCUIT MEMORY DEVICE UTILIZING A
DYNAMIC RANDOM ACCESS MEMORY ARRAY FOR
DATA STORAGE IMPLEMENTED IN CONJUNCTION
WITH AN ASSOCIATED STATIC RANDOM
ACCESS MEMORY CACHE
RAM427 FRAM SENSE AMPLIFIER UTILIZING A BALANCING 5,901,088 5/4/99 2/11/18 ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
RESISTOR
RAM437 FRAM COLUMN DECODER CONFIGURATION FOR 5,892,728 4/6/99 11/14/17 ▇▇▇▇▇, J., ET AL.
A 1T/1C FERROELECTRIC MEMORY
RAM406 FRAM DATA PROCESSOR INCORPORATING A 5,890,199 3/30/99 10/21/10 ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
FERROELECTRIC MEMORY ARRAY SELECTABLY
CONFIGURABLE AS READ/WRITE AND READ
ONLY MEMORY
RAM386 FRAM LOW LOSS, REGULATED CHARGE PUMP WITH 5,889,428 3/30/99 6/6/15 ▇▇▇▇▇, ▇▇▇▇▇▇
INTEGRATED FERROELECTRIC CAPACITORS
Page 186
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 5,887,272 3/23/99 1/22/12 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
DIV
RAM414 FRAM SENSING METHODOLOGY FOR A 1T/1C 5,880,989 3/9/99 11/14/17 ▇▇▇▇▇▇, D., ET AL.
FERROELECTRIC MEMORY
RAM389 EDRAM COMPUTER HYBRID MEMORY INCLUDING DRAM 5,875,451 2/23/99 3/14/16 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
AND EDRAM MEMORY COMPONENTS, WITH
SECONDARY CACHE IN EDRAM FOR DRAM
RAM405 FRAM BANDGAP REFERENCED BASED POWER-ON 5,867,047 2/2/99 8/23/16 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
CON DETECT CIRCUIT
RAM357 FRAM FERROELECTRIC MEMORY DEVICE WITH 5,866,926 2/2/99 2/2/16 TANENAKA, K.
FWC CAPACITOR ELECTRODE IN DIRECT CONTACT
WITH SOURCE REGION
RAM407 FRAM PARTIALLY OR COMPLETELY ENCAPSULATED 5,864,932 2/2/99 8/20/16 ▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
CIP TOP ELECTRODE OF A FERROELECTRIC
CAPACITOR
RAM424 FRAM VOLTAGE BOOST CIRCUIT AND OPERATION 5,854,568 12/29/98 8/20/17 MOSCALUK, ▇▇▇▇ ▇.
THEREOF AT LOW POWER SUPPLY VOLTAGES
RAM405 FRAM BANDGAP REFERENCE BASED POWER-ON 5,852,376 12/22/98 8/23/16 ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
DETECT CIRCUIT INCLUDING A SUPPRESSION
CIRCUIT
RAM398 FRAM IRIDIUM OXIDE LOCAL INTERCONNECT 5,838,605 11/17/98 3/20/16 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
RAM393 EDRAM EDRAM WITH INTEGRATED GENERATION AND 5,835,442 11/10/98 3/22/16 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ET AL.
CONTROL OF WRITE ENABLE AND COLUMN
LATCH SIGNALS AND METHOD OF MAKING SAME
RAM371 FRAM A VOLTAGE REFERENCE FOR A FERRO- 5,822,237 10/13/98 9/16/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ET AL.
DIV ELECTRIC 1T/1C BASED MEMORY
RAM409 DRAM SEMICONDUCTOR MEMORY DEVICE 5,818,771 10/6/98 9/30/16 YASU, YOSHIKO, ET AL.
RAM384 FRAM CIRCUIT AND METHOD FOR REDUCING 5,815,430 9/29/98 4/10/15 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
DIV COMPENSATION OF A FERROELECTRIC
CAPACITOR BY MULTIPLE PULSING OF
THE PLATE LINE FOLLOWING A WRITE
OPERATION
RAM412 FRAM LOW-POWER, NON-RESETABLE TEST MODE 5,804,996 9/8/98 2/13/17 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
CIRCUIT
RAM410 FRAM SYSTEM AND METHOD PROVIDING SELECTIVE 5,802,583 9/1/98 10/30/16 ▇▇▇▇▇▇, ET AL.
DRAM WRITE PROTECTION FOR INDIVIDUAL
BLOCKS OF MEMORY IN A NON-VOLATILE
MEMORY DEVICE
Page 187
RAM390 EDRAM MULTIBUS CACHED MEMORY SYSTEM 5,802,560 9/1/98 8/30/15 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇., ET AL.
RAM396 FRAM USE OF CALCIUM AND STRONTIUM DOPANTS 5,800,683 9/1/98 3/15/16 KAMMERDINER, LEE, ET AL.
DIV TO IMPROVE RETENTION PERFORMANCE IN
A PZT FERROELECTRIC FILM
RAM385 FRAM FABRICATION OF METAL-FERROELECTRIC- 5,789,323 8/4/98 4/25/15 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
METAL CAPACITORS WITH A TWO-STEP
PATTERNING SEQUENCE
RAM388 FRAM BOOTSTRAPPING CIRCUIT UTILIZING A 5,774,392 6/30/98 3/28/16 ▇▇▇▇▇, ▇▇▇▇▇▇▇ F, ET AL.
FERROELECTRIC CAPACITOR
RAM403 FRAM SYSTEM AND METHOD FOR MITIGATING 5,745,403 4/28/98 2/28/17 ▇▇▇▇▇▇, ▇▇▇▇▇
IMPRINT EFFECT IN FERROELECTRIC
RANDOM ACCESS MEMORIES UTILIZING
A COMPLEMENTARY DATA PATH
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 5,721,862 2/24/98 2/24/15 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
CON
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 5,699,317 12/16/97 1/22/12 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
CIP
RAM404 FRAM SAME STATE AND OPPOSITE STATE 5,661,730 8/26/97 9/27/16 MITRA, SANJAY, ET AL.
DIAGNOSTIC TEST FOR FERROELECTRIC
MEMORIES
RAM321 DRAM PROCESS FOR FABRICATING TRANSISTORS 5,610,099 3/11/97 6/28/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
USING COMPOSITE NITRIDE STRUCTURE
RAM368 FRAM INTEGRATION OF HIGH VALUE CAPACITOR 5,608,246 3/4/97 3/4/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
FWC WITH RF/ID FERROELECTRIC MEMORY
RAM387 FRAM FERROELECTRIC NONVOLATILE RANDOM 5,598,366 1/28/97 8/16/15 ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
ACCESS MEMORY UTILIZING SELF-
BOOTSTRAPPING PLATE LINE SEGMENT
DRIVERS
RAM384 FRAM CIRCUIT AND METHOD FOR REDUCING 5,592,410 1/7/97 4/10/15 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.; ET AL.
COMPENSATION OF A FERROELECTRIC
CAPACITOR BY MULTIPLE PULSING OF
THE PLATE LINE FOLLOWING A WRITE
OPERATION
RAM332 FRAM STACKED FERROELECTRIC MEMORY CELL 5,580,814 12/3/96 5/29/11 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
DIV AND METHOD
Page 188
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 5,578,867 11/26/96 3/11/14 ARGOS, ▇▇▇▇▇▇, ET AL.
DIV USING HARD CERAMIC MATERIALS OR
THE LIKE
RAM371 FRAM VOLTAGE REFERENCE FOR A FERROELECTRIC 5,572,459 11/5/96 9/16/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
1T/1C BASED MEMORY
RAM381 EDRAM CIRCUIT WITH A SINGLE ADDRESS 5,566,318 10/15/96 8/2/14 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
REGISTER THAT AUGMENTS A MEMORY
CONTROLLER BY ENABLING CACHE READS
AND PAGE-MODE WRITES
RAM382 FRAM FERROELECTRIC MEMORY SENSING METHOD 5,532,953 7/2/96 3/29/15 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
USING DISTINCT READ AND WRITE
VOLTAGES
RAM370 FRAM FERROELECTRIC MEMORY SENSING SCHEME 5,530,668 6/25/96 4/12/15 ▇▇▇▇▇, ▇▇▇-FOO, ET AL.
USING BIT LINES PRECHARGED TO A
LOGIC ONE VOLTAGE
RAM374 FRAM FERROELECTRIC CAPACITOR RENEWAL 5,525,528 6/11/96 6/6/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ET AL.
METHOD
RAM352 FRAM SEMICONDUCTOR DEVICE HAVING A 5,523,595 6/4/96 6/4/13 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ET AL.
FWC TRANSISTOR A FERROELECTRIC CAPACITOR
AND A HYDROGEN BARRIER FILM
RAM377 FRAM FILM HAVING FERROELECTRIC BISMUTH 5,519,566 5/21/96 6/15/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
CON OXIDES
RAM378 FRAM LAYERED LOCAL INTERCONNECT COMPATIBLE 5,498,569 3/12/96 8/22/14 ▇▇▇▇▇▇, ▇▇▇▇▇
WITH INTEGRATED CIRCUIT FERROELECTRIC
CAPACITORS
RAM332 FRAM STACKED FERROELECTRIC MEMORY CELL 5,495,117 2/27/96 2/27/13 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
FWC2 AND METHOD
RAM376 FRAM NOISE AND GLITCH SUPPRESSING FILTER 5,479,132 12/26/95 6/6/14 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ET AL.
WITH FEEDBACK
RAM358 FRAM SEMICONDUCTOR DEVICE WITH A 5,475,248 12/12/95 12/12/12 TANENAKA, K.
FWC2 CONDUCTIVE REACTION-PREVENTING FILM
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE FOR 5,438,023 8/1/95 3/11/14 ARGOS, ▇▇▇▇▇▇, ET AL.
A FERROELECTRIC INTEGRATED CIRCUIT
USING HARD CERAMIC MATERIALS OR THE LIKE
RAM375 RFID SYSTEM AND METHOD FOR INITIATING 5,434,572 7/18/95 6/7/14 ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
COMMUNICATIONS BETWEEN A CONTROLLER
AND A SEECTED SUBSET OF MULTIPLE
TRANSPONDERS IN A COMMON RF FIELD
Page 189
RAM377 FRAM A METHOD OF MANUFACTURING 5,426,075 6/20/95 6/15/14 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
FERROELECTRIC BISMUTH LAYERED OXIDES
RAM380 FRAM SYSTEM AND METHOD FOR WRITE- 5,394,367 2/28/95 3/18/14 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ET AL.
PROTECTING PREDETERMINED PORTIONS
OF A MEMORY ARRAY
RAM322 DRAM SEALED SELF ALIGNED CONTACT PROCESS 5,385,634 1/31/95 1/31/12 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
DIV2
RAM365 FRAM FERROELECTRIC-BASED RAM SENSING 5,381,364 1/10/95 6/24/13 ▇▇▇▇▇, ▇▇▇-FOO, ET AL.
SCHEME INCLUDING BIT-LINE
CAPACITANCE ISOLATION
RAM329 FRAM OZONE GAS PROCESSING FOR 5,374,578 12/20/94 2/25/12 ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
FWC FERROELECTRIC MEMORY CIRCUITS
RAM360 FRAM NON-VOLATILE FERROELECTRIC MEMORY 5,371,699 12/6/94 11/17/12 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
WITH FOLDED BIT LINES AND METHOD
OF MAKING THE SAME
RAM348 FRAM SEMICONDUCTOR DEVICE HAVING A 5,369,296 11/29/94 5/12/12 KATO, K.
FWC FERROELECTRIC FILM IN A THROUGH-HOLE
RAM335 FRAM STRUCTURE OF HIGH DIELECTRIC CONSTANT 5,338,951 8/16/94 11/6/11 ARGOS, ▇▇▇▇▇▇, ET AL.
METAL
RAM338 FRAM SEMICONDUCTOR DEVICE WITH 5,293,510 3/8/94 12/20/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
FERROELECTRIC AND METHOD OF
MANUFACTURING SAME
RAM326 DRAM OUTPUT CONTROL CIRCUIT HAVING 5,255,222 10/19/93 1/23/11 EATON, ▇. ▇▇▇▇▇▇▇▇▇
CONTINUOUSLY VARIABLE DRIVE CURRENT
RAM340 FRAM METHOD OF MANUFACTURING SEMICONDUCTOR 5,229,309 7/20/93 2/24/12 KATO, KOJI
DEVICE USING A FERROELECTRIC FILM
OVER A SOURCE REGION
RAM341 FRAM STRUCTURE AND METHOD FOR INCREASING 5,216,572 6/1/93 3/19/12 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
THE DIELECTRIC CONSTANT OF INTEGRATED
FERROELECTRIC CAPACITORS
RAM322 DRAM SELF-SEALED ALIGNED CONTACT 5,216,281 6/1/93 6/1/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
CIP
RAM240 FRAM MONOLITHIC SEMICONDUCTOR INTEGRATED 5,214,300 5/25/93 5/25/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
DIV2 CIRCUIT FERROELECTRIC MEMORY DEVICE
Page 190
RAM336 FRAM SERIES FERROELECTRIC CAPACITOR 5,206,788 4/27/93 12/12/11 LARSON, WILLIAM, ET AL.
STRUCTURE FOR MONOLITHIC INTEGRATED
CIRCUITS AND METHOD
RAM337 FRAM USE OF PALLADIUM AS AN ADHESION 5,191,510 3/2/93 4/29/12 ▇▇▇▇▇▇▇, ▇▇▇▇▇
LAYER AND AS AN ELECTRODE IN
FERROELECTRIC MEMORY DEVICES
RAM319 DRAM REACTION BARRIER FOR A MULTI-LAYER 5,170,242 12/8/92 12/8/09 ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇
CON STRUCTURE IN AN INTEGRATED CIRCUIT
RAM317 DRAM STACKED CAPACITOR WITH SIDEWALL 5,162,890 11/10/92 7/30/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
DIV INSULATION
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 5,142,437 8/25/92 6/13/11 KAMMERDINER, L. ET AL.
FERROELECTRIC CAPACITORS IN
INTEGRATED CIRCUITS AND METHOD
RAM324 DRAM CURRENT SUPPLY CIRCUIT FOR DRIVING 5,134,310 7/28/92 1/23/11 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
HIGH CAPACITANCE LOAD IN AN
INTEGRATED CIRCUIT
RAM325 DRAM REFERENCE GENERATOR FOR AN 5,117,177 5/26/92 1/23/11 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
INTEGRATED CIRCUIT
RAM310 FRAM MEMORY CELL AND METHOD OF OPERATION 5,109,357 4/28/92 3/9/10 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
CON THEREOF FOR TRANSFERRING INCREASED
AMOUNT OF CHARGE TO A BIT LINE
RAM317 DRAM METHOD FOR CREATING SELF-ALIGNED, 5,104,822 4/14/92 7/30/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
NON-PATTERNED CONTACT AREAS AND
STACKED CAPACITORS USING THE METHOD
RAM320 DRAM TRENCH CAPACITOR FOR LARGE SCALE 5,075,817 12/24/91 6/22/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
INTEGRATED MEMORY
RAM322 DRAM SEALED SELF ALIGNED CONTACT PROCESS 5,043,790 8/27/91 4/5/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
RAM240 FRAM MONOLITHIC SEMICONDUCTOR INTEGRATED 5,024,964 6/18/91 6/18/08 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
CIRCUIT FERROELECTRIC MEMORY DEVICE
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 5,005,102 4/2/91 6/20/09 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
CIRCUIT CAPACITORS
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 4,918,654 4/17/90 7/2/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
DIV1
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 4,914,627 4/3/90 7/2/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
DIV3
Page 191
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 4,910,708 3/20/90 7/2/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
DIV2
RAM309 FRAM FERROELECTRIC RETENTION METHOD 4,893,272 1/9/90 4/22/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 4,888,733 12/19/89 9/12/08 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
312 METHOD
RAM302 FRAM SELF-RESTORING FERROELECTRIC MEMORY 4,873,664 10/10/89 2/12/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
RAM305 DRAM DATA STORAGE DEVICE AND METHOD OF 4,853,893 8/1/89 7/2/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
USING A FERROELECTRIC CAPACITANCE
DIVIDER
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 4,809,225 2/28/89 7/2/07 DIMMLER, K., ET AL.
NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM304 FRAM TIMEPIECE COMMUNICATION SYSTEM 4,800,543 1/24/89 12/3/07 ▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇, ET AL.
RF/ID
RAM220 FRAM COMBINED INTEGRATED CIRCUIT/ 4,713,157 12/15/87 5/14/05 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ET AL.
FERROELECTRIC MEMORY DEVICE, AND
ION BEAM METHODS OF CONSTRUCTING SAME
RAM145 FRAM MONOLITHIC SEMICONDUCTOR INTEGRATED 4,707,897 11/24/87 11/24/04 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
CIRCUIT FERROELECTRIC MEMORY DEVICE
United Kingdom 18
===================
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE FOR 0671765 9/30/98 12/9/14 ARGOS, ▇▇▇▇▇▇ ET AL.
GB A FERROELECTRIC INTEGRATED CIRCUIT
USING HARD CERAMIC MATERIALS OR THE LIKE
RAM360 FRAM NON-VOLATILE FERROELECTRIC MEMORY 0598596 9/10/97 11/16/13 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
UK WITH FOLDED BIT LINES AND METHOD
OF MAKING SAME
RAM335 FRAM STRUCTURE OF HIGH DIELECTRIC 0540994 3/15/95 10/28/12 ARGOS, ▇▇▇▇▇▇, ET AL.
GB CONSTANT METAL/DIELECTRIC/SEMI-
CONDUCTOR CAPACITOR FOR USE AS THE
STORAGE CAPACITOR IN MEMORY DEVICES
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 0530928 6/22/88 6/22/08 DIMMLER, K., ET AL.
DIV NON-VOLATILE PORTIONS HAVING
GB FERROELECTRIC CAPACITORS
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 0518117 7/12/95 5/26/12 KAMMERDINER, LEE, ET AL.
GB FERROELECTRIC CAPACITORS IN INTEGRATED
CIRCUITS AND METHOD
Page 192
RAM352 FRAM SEMICONDUCTOR DEVICE HAVING A 0514547 8/20/91 8/20/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ET AL.
UK TRANSISTOR, A FERROELECTRIC CAPACITOR
AND A HYDROGEN BARRIER FILM
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
GB
RAM348 FRAM SEMICONDUCTOR DEVICE HAVING A 0497982 7/19/95 7/24/11 KATO, KOJI
GB FERROELECTRIC FILM IN A THROUGH-HOLE
RAM326 DRAM OUTPUT CONTROL CIRCUIT HAVING A 0496320 1/20/92 1/20/12 EATON, ▇. ▇▇▇▇▇▇▇▇▇
UK CONTINUOUSLY VARIABLE DRIVE CURRENT
RAM340 FRAM METHOD OF MANUFACTURING SEMICONDUCTOR 0487739 12/11/96 5/31/11 KATO, KOJI
UK DEVICE USING A FERROELECTRIC FILM
OVER A SOURCE REGION
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
GB
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
UK CIRCUIT CAPACITORS
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 0396221 9/27/95 2/6/10 GNADINGER, A. P., ET AL.
GB
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 0359404 11/17/94 8/15/09 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
312 GB METHOD
RAM309 FRAM FERROELECTRIC RETENTION METHOD 0338158 1/12/94 9/21/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
GB
RAM305 DRAM DRAM WITH PROGRAMMABLE CAPACITANCE 0299633 12/8/93 6/22/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
GB DIVIDER
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 0297777 12/29/93 6/22/08 DIMMLER, K., ET AL.
GB NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 ▇▇/▇▇/▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ 4
===============
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
NL
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
NL
Page 193
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
NL CIRCUIT CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
NL
Japan 14
==========
RAM343 EDRAM ENHANCED DRAM WITH EMBEDDED REGISTERS 2851503 11/13/98 1/21/13 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
JPN
RAM317 DRAM SELF ALIGN CONTACT PROCESS 2673615 7/18/97 7/30/11 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
JPN
RAM320 DRAM IMPROVED TRENCH CAPACITOR FOR LARGE 2089169 12/6/95 12/6/15 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
JPN SCALE INTEGRATED MEMORY
RAM319 DRAM REACTION BARRIER FOR A MULTILAYER 2075540 10/11/95 10/11/15 ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇
JPN STRUCTURE
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 2,921,556 4/30/99 3/13/15 ARGOS, ▇▇▇▇▇▇, ET AL.
JPN FOR A FERROELECTRIC INTEGRATED
CIRCUIT USING HARD CERAMIC MATERIALS
OR THE LIKE
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 2,918,284 4/23/99 2/26/10 GNADINGER, A. P., ET AL.
JPN
RAM309 FRAM FERROELECTRIC RETENTION METHOD 2,771,551 4/17/98 10/5/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
JPN
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 2,736,072 1/9/98 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
JPN
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 2,693,967 9/5/97 7/1/08 DIMMLER, K., ET AL.
JPN NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 2,674,775 6/18/97 2/12/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
JPN
RAM342 FRAM STRUCTURE AND FABRICATION OF HIGH 2,065,956 6/24/96 11/3/12 ARGOS, ▇▇▇▇▇▇ ▇▇., ET AL.
JPN TRANSCONDUCTANCE MOS FIELD EFFECT
TRANSISTOR USING A BUFFER
LAYER/FERROELECTRIC/BUFFER LAYER STACK
AS THE GATE DIELECTRIC
RAM322 DRAM SEALED SELF ALIGNED CONTRACT 2,005,865 3/29/95 3/29/15 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
JPN INCORPORATING A DOPANT SOURCE
Page 194
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 2,004,044 12/20/95 9/11/09 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
312 JPN METHOD
RAM100A2 DRAM PROCESS FOR MANUFACTURING A 1,380,979 5/28/87 2/15/97 ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
JPN FERROELECTRIC DEVICE AND DEVICES
MANUFACTURED THEREBY
Italy 4
=========
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
IT
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
IT
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
IT CIRCUIT CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
IT
Germany 18
============
RAM303 FRAM MEMORY CELL WITH VOLATILE AND P3855877.7-08 6/22/88 6/22/08 DIMMLER, K., ET. AL.
DIV NON-VOLATILE PORTIONS HAVING
DE FERROELECTRIC CAPACITORS
RAM360 FRAM NON-VOLATILE FERROELECTRIC 69313785.1-08 9/10/97 11/16/13 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
DE MEMORY WITH FOLDED BIT LINES
AND METHOD OF MAKING SAME
RAM326 DRAM OUTPUT CONTROL CIRCUIT HAVING A 69218270.5 1/20/92 1/20/12 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
DE CONTINUOUSLY VARIABLE DRIVE CURRENT
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 69203395.5-8 7/12/95 5/26/12 KAMMERDINER, LEE, ET AL.
DE FERROELECTRIC CAPACITORS IN
INTEGRATED CIRCUITS AND METHOD
RAM335 FRAM STRUCTURE OF HIGH DIELECTRIC 69201713.5-8 3/15/95 10/28/12 ARGOS, ▇▇▇▇▇▇, ET AL.
DE CONSTANT METAL / DIELECTRIC /
SEMICONDUCTOR CAPACITOR FOR USE
AS THE STORAGE CAPACITOR IN MEMORY
DEVICES
RAM352 FRAM SEMICONDUCTOR DEVICE HAVING A 69124994.6-08 8/20/91 8/20/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ET AL.
DE TRANSISTOR, A FERROELECTRIC
CAPACITOR AND A HYDROGEN BARRIER FILM
RAM357 FRAM SEMICONDUCTOR DEVICE 69124086.8-08 9/26/91 9/26/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
DE
Page 195
RAM340 FRAM METHOD OF MANUFACTURING 69123557.0 12/11/96 5/31/11 KATO, KOJI
DE SEMICONDUCTOR DEVICE USING A
FERROELECTRIC FILM OVER A
SOURCE REGION
RAM348 FRAM SEMICONDUCTOR DEVICE HAVING A 69111413.7-8 7/19/95 7/24/11 KATO, KOJI
DE FERROELECTRIC FILM IN A
THROUGH-HOLE
RAM314 FRAM MULTILAYER ELECTRODES FOR 69030843.4-08 3/21/90 3/21/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
DE INTEGRATED CIRCUIT CAPACITORS
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 69022621.2-8 9/27/95 2/6/10 GNADINGER, A. P., ET AL.
DE
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND 68919393.9-8 11/17/94 8/15/09 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
312 DE SENSING METHOD
RAM309 FRAM FERROELECTRIC RETENTION METHOD 3887130.0-08 1/21/994 9/21/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
DE
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 3886600.5-08 12/29/93 6/22/08 DIMMLER, K., ET AL.
DE NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 3886112.7-08 12/8/93 6/22/08 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
DE
RAM302 FRAM SELF RESTORING FERROELECTRIC 3751171.8-08 3/15/95 12/11/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
DE MEMORY
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 0671765 9/30/98 12/9/14 ARGOS, ▇▇▇▇▇▇ ET AL.
DE FOR A FERROELECTRIC INTEGRATED
CIRCUIT USING HARD CERAMIC
MATERIALS OR THE LIKE
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇
==========
RAM379 FRAM PASSIVATION METHOD AND STRUCTURE 0671765 9/30/98 12/9/94 ARGOS, ▇▇▇▇▇▇ ET AL.
FR FOR A FERROELECTRIC INTEGRATED
CIRCUIT USING HARD CERAMIC MATERIALS
OR THE LIKE
RAM330 FRAM CONDUCTING ELECTRODE LAYERS FOR 0518117 7/12/95 5/26/12 KAMMERDINER, LEE, ET AL.
FR FERROELECTRIC CAPACITORS IN
INTEGRATED CIRCUITS AND METHOD
Page 196
RAM357 FRAM SEMICONDUCTOR DEVICE 0503077 9/26/91 9/26/11 TANENAKA, KAZUHIRO
FR
RAM338 FRAM SEMICONDUCTOR DEVICE AND METHOD 0478799 4/23/91 4/23/11 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
FR
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 0404295 3/21/90 3/21/10 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
FR CIRCUIT CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC MEMORY 0278167 3/15/95 12/11/07 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
FR
Australia 9
=============
RAM314 FRAM MULTILAYER ELECTRODES FOR INTEGRATED 640934 6/19/90 6/19/06 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ET AL.
AUS CIRCUIT CAPACITORS
RAM316 FRAM INTEGRATED FERROELECTRIC CAPACITOR 622317 5/1/90 5/1/06 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇., ET AL.
AUS
RAM305 DRAM PROGRAMMABLE CAPACITANCE DIVIDER 600370 7/1/88 7/1/04 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
AUS
RAM304 FRAM TIMEPIECE COMMUNICATION SYSTEM 599523 12/1/88 12/1/04 ▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇, ET AL.
AUS RF/ID
RAM311/ FRAM NON-VOLATILE MEMORY CELL AND SENSING 595147 3/1/89 3/1/05 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
312 AUS METHOD
RAM309 FRAM FERROELECTRIC RETENTION METHOD 594587 9/29/88 9/29/04 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇, ET AL.
AUS
RAM246/ DRAM METHOD OF MAKING AN INTEGRATED 588856 1/24/86 1/24/02 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇., ET AL.
202 AUS FERROELECTRIC DEVICE, AND DEVICE
PRODUCED THEREBY
RAM303 FRAM MEMORY CELL WITH VOLATILE AND 588505 5/4/88 5/4/04 DIMMLER, K., ET AL.
AUS NON-VOLATILE PORTIONS HAVING
FERROELECTRIC CAPACITORS
RAM302 FRAM SELF RESTORING FERROELECTRIC 581820 9/7/87 9/7/03 ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇
AUS MEMORY
7/20/99
Page 197