Rambus Inc 8-K, filed Mar 16, 2021
Rambus Inc (RMBS)
About this 8-K
Rambus Inc filed this 8-K on March 16, 2021, reporting on events of March 12, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I. R. S. Employer Identification No.) |
(Address of principal executive offices)
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class |
Trading Symbol |
Name of Each Exchange on Which Registered | ||
| (The NASDAQ Global Select Market) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement |
On March 12, 2021, Rambus Inc. (the “Company”) entered into a letter agreement (the “Agreement”) with, among others, Barington Companies Equity Partners, L.P. (collectively, “Barington”). Among other things, the Agreement provides that:
| • | The Company will appoint James A. Mitarotonda to the Company’s board of directors (the “Board”) to serve as a Class I director with a term expiring at the Company’s 2022 annual meeting of stockholders (the “2022 Annual Meeting”), subject to his obligation to resign from the Board in connection with certain dispositions of the Company’s securities by the Barington Group (as defined in the Agreement). |
| • | During the Restricted Period (as defined in the Agreement), Barington will vote its shares of the Company’s common stock that it beneficially owns in a manner consistent with the recommendation of the Board, subject to certain exceptions specified in the Agreement. |
| • | Barington and certain of its affiliates and related persons will abide by certain customary standstill provisions lasting from the date of the Agreement until 11:59 p.m. Pacific time on the later of (i) the first day that Mr. Mitarotonda is no longer serving as a director of Company and (ii) the day that is 30 calendar days prior to the deadline for the submission of stockholder nominations of directors and business proposals for the 2022 Annual Meeting. The standstill provisions provide, among other things, that Barington and the other Restricted Persons (as defined in the Agreement) cannot: |
| • | solicit proxies regarding any matter to come before any annual or special meeting of stockholders of the Company, including the election of directors; |
| • | enter into a voting agreement or any “group” with stockholders of the Company, other than with other Restricted Persons; |
| • | seek representation on the Board, or submit any proposal for consideration by stockholders of the Company at any annual or special meeting of stockholders; |
| • | engage in any short sale or other derivative transaction in relation to the Company, or sell any voting rights decoupled from the underlying Voting Securities (as defined in the Agreement) held by the Restricted Persons; |
| • | acquire any securities of the Company or rights that would result in the Restricted Persons beneficially owning more than five percent of the then-outstanding Voting Securities; or |
| • | other than through certain open market transactions and public offerings, sell securities of the Company to any person that is not a party to the Agreement that, to Barington’s knowledge, would result in such party having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (subject to limited exceptions as provided in the Agreement). |
The foregoing summary of the Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Agreement, which is filed as Exhibit 10.1 and incorporated by reference.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(b) Departure of Director.
On March 12, 2021, Gregory Lang informed the Board that he would resign as a director, effective immediately. Mr. Lang’s decision to resign from the Board was not because of any disagreement with the Company.
(d) Election of Director.
On March 12, 2021, the Board appointed Mr. Mitarotonda to serve as a Class I director of the Company. Subsequently, Mr. Mitarotonda was appointed to serve on the Board’s audit committee.
As a non-employee director, Mr. Mitarotonda will receive compensation in the same manner as the Company’s other non-employee directors. Annually, non-employee directors receive a grant of restricted stock units of the Company equal in value to $170,000, with the exact number of shares based on the closing price at the time of grant. Mr. Mitarotonda will also receive standard cash retainers for his Board and committee service, as applicable.
The Company expects that Mr. Mitarotonda will enter into its standard director and officer indemnification agreement on the form that the Company enters into with its directors and officers.
Other than as described in Item 1.01, there are no arrangements or understandings between Mr. Mitarotonda and any other person pursuant to which Mr. Mitarotonda was selected as a director. There are no transactions, arrangements or relationships between the Company or its subsidiaries, on one hand, and Mr. Mitarotonda on the other hand, that would require disclosure pursuant to Item 404(a) of Regulation S-K. Mr. Mitarotonda does not have any family relationships with any of the Company’s directors or executive officers.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. |
Description | |||
| 10.1 | Letter agreement dated as of March 12, 2021, among Rambus Inc. and Barington Companies Equity Partners, L.P. and certain other parties. | |||
| 99.1 | Press Release, dated March 16, 2021. | |||
| 104 | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) | |||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: March 16, 2021 |
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Rambus Inc. | |||
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/s/ Rahul Mathur | |||
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Rahul Mathur, Senior Vice President, Finance and Chief Financial Officer | |||
Exhibit 10.1
Rambus Inc.
4453 North First Street, Suite 100
San Jose, CA 94089
March 12, 2021
Barington Companies Equity Partners, L.P.
888 Seventh Avenue, 6th Floor
New York, NY 10019
Attn: James A. Mitarotonda
Ladies and Gentlemen:
This letter (this “Agreement”) constitutes the agreement between (a) Rambus Inc., a Delaware corporation (“Company”), and (b) Barington Companies Equity Partners, L.P., a Delaware limited partnership (“Barington”), and each of the other related Persons (as defined below) set forth on the signature pages to this Agreement (collectively with Barington, the “Barington Signatories”). Company and the Barington Signatories are collectively referred to as the “Parties.” The Barington Signatories and each Affiliate (as defined below) of each Barington Signatory are collectively referred to as the “Barington Group.”
1. Barington Designee. Effective as of the date of this Agreement, Company’s Board of Directors (the “Board”) will take all action necessary (including increasing the size of the Board to nine directors) to appoint James A Mitarotonda (the “Barington Designee”) as a Class I director with a term expiring at Company’s 2022 Annual Meeting of Stockholders (the “2022 Annual Meeting”). Promptly following the Barington Designee’s appointment to the Board, the Board will take all action necessary to appoint the Barington Designee to serve on one or more of the Compensation Committee, the Audit Committee or the Corporate Governance / Nominating Committee of the Board, with the committee selected in the Board’s sole discretion.
2. Recusal. The Barington Group understands and agrees that the Board or any of its committees, in the exercise of its fiduciary duties, may require that the Barington Designee be recused from any Board or committee meeting or portion thereof at which the Board or any such committee is evaluating or taking action with respect to the exercise of any of Company’s rights or enforcement of any of the obligations under this Agreement.
3. Compliance with Laws and Company Policies. The Barington Group acknowledges that the Barington Designee will be governed by the same laws, policies, procedures, processes, codes, rules, standards and guidelines applicable to members of the Board, including Company’s corporate governance guidelines, code of conduct, insider trading policy, Regulation FD policy and related party transactions policy, in each case in effect and as amended from time to time. The Barington Designee will comply with such laws, policies, procedures, processes, codes, rules, standards and guidelines.
4. No Fiduciary Restriction. Notwithstanding anything to the contrary in this Agreement, Company acknowledges and agrees that nothing in this Agreement (including any provision of paragraph 8) shall prohibit the Barington Designee, during the Barington Designee’s service as a director of Company, from acting in the Barington Designee’s capacity as a director of Company or from complying with the Barington Designee’s fiduciary duties as a director of Company (including voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board, and making suggestions or raising any issues or recommendations to the Board).
5. Director Benefits. The Barington Designee will be entitled to the same director benefits as other non-employee members of the Board, including (a) compensation for such director’s service as a director and reimbursement of such director’s expenses on the same basis as all other non-employee directors of Company; (b) equity-based compensation grants and other benefits, if any, on the same basis as all other non-employee directors of Company; and (c) the same rights of indemnification and directors’ and officers’ liability insurance coverage as the other non-employee directors of Company as such rights may exist from time to time.
6. Resignation. Notwithstanding anything to the contrary in this Agreement, the Barington Designee will promptly offer to resign from the Board if the Barington Group no longer beneficially owns shares of Company’s common stock (which shares are determined to be Net Long Shares (as defined below)) representing in the aggregate at least such number of shares equal to 50 percent of the aggregate amount of shares of Company’s common stock owned by the Barington Group as of the date of this Agreement (subject to adjustment for stock splits, stock dividends, reclassifications, combinations and similar adjustments). The Parties acknowledge that it will be in the Board’s sole discretion whether to accept or reject such offer to resign.
7. Voting Commitment. During the Restricted Period, at each annual or special meeting of Company’s stockholders (including any adjournments, postponements or other delays thereof) and in connection with each action by written consent, the members of the Barington Group will cause all Voting Securities (as defined below) that are beneficially owned by the members of the Barington Group, and that the members of the Barington Group have the right to vote as of the record date for such meeting or consent, to be (a) present for quorum purposes, if applicable; and (b) voted or consented (i) in favor of the election of each person nominated by the Board for election as a director; (ii) against any proposals or resolutions to remove any member of the Board; and (iii) in accordance with the recommendation of the Board on all other proposals or business that may be the subject of stockholder action at such meeting or action by written consent. Notwithstanding the foregoing, (A) if Institutional Shareholder Services Inc. (“ISS”) or Glass, Lewis & Co., LLC (“Glass Lewis”) recommends a vote inconsistent with the recommendation of the Board at any annual or special meeting of Company’s stockholders with respect to (1) Company’s “say-on-pay” proposal or (2) any other proposal (other than the election or removal of directors), then the members of the Barington Group will be permitted to vote in accordance with the recommendation of ISS or Glass Lewis; and (B) the members of the Barington Group will be permitted to vote in their sole discretion on any proposals related to an Extraordinary Transaction (as defined below).
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8. Standstill. During the Restricted Period, Barington will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) with respect to Company or the Voting Securities, (i) make, participate in or encourage any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents; (iii) seek to advise or encourage any Person, or assist any Person in so advising or encouraging any Person, with respect to the giving or withholding of any proxy, consent or other authority to vote or act (other than such advice or encouragement that is consistent with the Board’s recommendation in connection with such matter, if applicable); or (iv) initiate, encourage or participate in, directly or indirectly, any “vote no,” “withhold” or similar campaign;
(b) initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) any stockholders of Company for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with respect to Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of “proxy access”; or (iii) conduct any nonbinding referendum or hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to nominate or propose the nomination of or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or encourage any Person to seek, the removal of any member of the Board;
(e) (i) call or seek to call or encourage any Person to call a special meeting of Company’s stockholders; (ii) act or seek to act by written consent of Company’s stockholders; or (iii) make a request for any stockholder list or other records of Company;
(f) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), knowingly encourage, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
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(g) (i) make any offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving Company, any of its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or knowingly encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) publicly comment on any Extraordinary Transaction or proposal regarding any Extraordinary Transaction, in each case involving a Third Party (it being understood that this clause (g) will not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) other than in the Barington Designee’s capacity as a director, make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (vi) causing a class of securities of Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(j) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of Company’s securities;
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(l) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that would reasonably be expected to require Company to make any public disclosure relating to such intent, purpose, plan or proposal;
(m) make or cause to be made any statement or announcement that disparages, slanders, impugns or otherwise is reasonably likely to damage the reputation of Company or any of its Affiliates, subsidiaries, successors or assigns, or any of its or their respective current or former officers, directors or employees or any of its or their respective businesses, products or services, it being understood that this clause (m) will not restrict the ability of any Restricted Person to (i) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such Restricted Person; or (ii) enforce such Restricted Person’s rights pursuant to this Agreement;
(n) compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities;
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or knowingly encourage any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Barington Group owning, controlling or otherwise having any beneficial or other ownership interest of more than five percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Barington Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities); or
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(q) other than through open market broker sale transactions and in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, the securities of Company to any Third Party that, to the knowledge of any member of the Barington Group (after due inquiry in connection with a private, non-open market transaction), would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism at Company).
9. Withdrawal of Nominations. The Barington Group agrees that automatically and without any additional action by any Party, upon the execution of this Agreement by all of the Parties, Barington will be deemed to have irrevocably withdrawn its nomination of candidates for election as directors of Company set forth in its letter to Company dated January 27, 2021.
10. Non-Disparagement by Company. During the Restricted Period, Company will not, and will direct its Affiliates and its and their respective directors, officers and employees not to, make or cause to be made any statement or announcement that disparages, slanders, impugns or otherwise is reasonably likely to damage the reputation of any member of the Barington Group or any of their respective Affiliates, subsidiaries, successors or assigns, or any of its or their respective current or former officers, directors or employees or any of its or their respective businesses, products or services. This paragraph 10 will not restrict the ability of Company to (a) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over Company; or (b) enforce Company’s rights pursuant to this Agreement.
11. Compliance with this Agreement. Barington will cause the Restricted Persons to comply with the terms of this Agreement specifically applicable to them and will be responsible for any breach of the terms of this Agreement by any Restricted Person (even if such Restricted Person is not a party to this Agreement).
12. Expense Reimbursement. Within five Business Days of the receipt of appropriate documentation, Company will reimburse the Barington Group for its reasonable and documented out-of-pocket expenses (including legal fees), up to a maximum of $60,000, incurred by the Barington Group in connection with the negotiation and execution of this Agreement and related matters. Except as set forth in the preceding sentence, all fees, costs and expenses incurred in connection with this Agreement will be paid by the Person incurring such fee, cost or expense.
13. Public Disclosure.
(a) Press Release. At a mutually agreed time following the execution of this Agreement, Company and Barington will issue a joint press release in the form attached as Exhibit A (the “Press Release”). Neither Company nor the members of the Barington Group will make any public statements with respect to the matters covered by this Agreement (including in the Schedule 13D (as defined below) or in any other filing with the SEC, any other regulatory or governmental agency, any stock exchange or in any materials that would reasonably be expected
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to be filed with the SEC) that are inconsistent with, or otherwise contrary to, the statements in the Press Release. Prior to the issuance of the Press Release, neither Company nor the members of the Barington Group will issue any press release or public announcement regarding this Agreement or take any action that would require public disclosure of this Agreement.
(b) Form 8-K. Company will promptly prepare and file with the SEC a Current Report on Form 8-K (the “Form 8-K”) reporting the entry into this Agreement. All disclosure in the Form 8-K will be consistent with this Agreement. Company will provide Barington and its counsel with a reasonable opportunity to review and comment on the Form 8-K prior to filing, and will consider in good faith any changes proposed by Barington or its counsel. The Form 8-K will include this Agreement as an exhibit.
14. Definitions. As used in this Agreement, the term (a) “Person” will be interpreted broadly to include, among others, any individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of any kind or structure; (b) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act and will include Persons who become Affiliates of any Person after the date of this Agreement; (c) “beneficially own,” “beneficially owned” and “beneficial ownership” has the meaning set forth in Rule 13d-3 and Rule 13d-5(b)(1) promulgated under the Exchange Act; (d) “Business Day” means any day other than a Saturday, Sunday or a day on which the Federal Reserve Bank of San Francisco is closed; (e) “Net Long Shares” will be limited to the number of shares of Company’s common stock that are beneficially owned by any Person that constitute such Person’s net long position as defined in Rule 14e-4 promulgated under the Exchange Act (except that for purposes of such definition, the date that the tender offer is first announced will instead refer to the date for determining or documenting such Person’s Net Long Shares and the reference to the highest tender price will refer to the market price on such date); (f) “Restricted Period” means the period from the date of this Agreement until 11:59 p.m., Pacific time, on the later of (i) the first day that the Barington Designee is no longer serving as a director of Company and (ii) the day that is 30 calendar days prior to the deadline for the submission of stockholder nominations of directors and business proposals for the 2022 Annual Meeting; (g) “Restricted Persons” means the members of the Barington Group and the principals, directors, general partners, officers, employees, agents and representatives of each member of the Barington Group; and (h) “Voting Securities” means the shares of Company’s common stock and any other securities of Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or other contingencies.
15. Interpretations. The words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation.” Unless the context requires otherwise, “or” is not exclusive. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, law, rule or statute defined or referred to in this Agreement means, unless otherwise indicated, such agreement, instrument, law, rule or statute as from time to time amended, modified or supplemented. The measure of a period of one month or year for purposes of this Agreement will be the day of the following month or year corresponding to the starting date. If no corresponding date exists, then the end date of such period being measured will be the next actual day of the following month or year (for example, one month following February 18 is March 18 and one month following March 31 is May 1).
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16. Representations of the Barington Group. Each of the Barington Signatories, severally and not jointly, represents that (a) its authorized signatory set forth on the signature page to this Agreement has the power and authority to execute this Agreement and any other documents or agreements to be entered into in connection with this Agreement and to bind such Person; (b) this Agreement has been duly authorized, executed and delivered by it and is a valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles; (c) this Agreement does not and will not violate any law, any order of any court or other agency of government, its organizational documents or any provision of any agreement or other instrument to which it or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such agreement or other instrument, or result in the creation or imposition of, or give rise to, any material lien, charge, restriction, claim, encumbrance or adverse penalty of any nature whatsoever; and (d) as of the date of this Agreement, it has not, and no other member of the Barington Group has, directly or indirectly, compensated or entered into any agreement, arrangement or understanding to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities; and (e) as of the date of this Agreement, the Barington Group (i) is the beneficial owner of an aggregate of 530,100 shares of Company’s common stock; (ii) has voting authority over such shares; and (iii) owns no other equity or equity-related interest in Company.
17. Representations of Company. Company represents that this Agreement (a) has been duly authorized, executed and delivered by it and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles; (b) does not require the approval of the stockholders of Company; and (c) does not and will not violate any law, any order of any court or other agency of government, Company’s certificate of incorporation or bylaws, each as amended from time to time, or any provision of any agreement or other instrument to which Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such agreement or other instrument, or result in the creation or imposition of, or give rise to, any material lien, charge, restriction, claim, encumbrance or adverse penalty of any nature whatsoever.
18. Specific Performance. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by it and that, in the event of any breach or threatened breach of this Agreement, (a) the Party seeking specific performance will be entitled to injunctive and other equitable relief, without proof of actual damages; (b) the Party against whom specific performance is sought will not plead in defense that there would be an adequate remedy at law; and (c) the Party against whom specific performance is sought agrees to waive any applicable right or requirement that a bond be posted. Such remedies will not be the exclusive remedies for a breach of this Agreement and will be in addition to all other remedies available at law or in equity.
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19. Entire Agreement; Binding Nature; Assignment; Waiver. This Agreement constitutes the only agreement between the Parties with respect to the subject matter of this Agreement and it supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement binds, and will inure to the benefit of, the Parties and their respective successors and permitted assigns. No Party may assign or otherwise transfer either this Agreement or any of its rights, interests, or obligations under this Agreement without the prior written approval of the other Party. Any purported transfer requiring consent without such consent is void. No amendment, modification, supplement or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the affected Party, and then only in the specific instance and for the specific purpose stated in such writing. Any waiver by any Party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a Party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive that Party of the right to insist upon strict adherence to that term or any other term of this Agreement in the future.
20. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, then the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement that is held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable, and this Agreement will otherwise be construed so as to effectuate the original intention of the Parties reflected in this Agreement. The Parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of such invalid or unenforceable provision.
21. Governing Law; Forum. This Agreement is governed by and will be construed in accordance with the laws of the State of Delaware. Each of the Parties (a) irrevocably and unconditionally consents to the exclusive personal jurisdiction and venue of the Court of Chancery of the State of Delaware and any appellate court thereof (unless the federal courts have exclusive jurisdiction over the matter, in which case the United States District Court for the District of Delaware and any appellate court thereof will have exclusive personal jurisdiction); (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that it will not bring any action relating to this Agreement or otherwise in any court other than the such courts; and (d) waives any claim of improper venue or any claim that those courts are an inconvenient forum. The Parties agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in paragraph 24 or in such other manner as may be permitted by applicable law, will be valid and sufficient service thereof.
22. Waiver of Jury Trial. EACH OF THE PARTIES, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF
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THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY OF THEM. No Party will seek to consolidate, by counterclaim or otherwise, any action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived.
23. Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and is not enforceable by any other Person.
24. Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been duly delivered and received (a) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid; (b) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; (c) immediately upon delivery by hand; or (d) on the date sent by email (except that notice given by email will not be effective unless either (i) a duplicate copy of such email notice is promptly given by one of the other methods described in this paragraph 24 or (ii) the receiving Party delivers a written confirmation of receipt of such notice either by email or any other method described in this paragraph 24 (excluding “out of office” or other automated replies)). The addresses for such communications are as follows. At any time, any Party may, by notice given to the other Parties in accordance with this paragraph 24, provide updated information for notices pursuant to this Agreement.
If to Company:
Rambus Inc.
4453 North First Street, Suite 100
San Jose, CA 94089
Attn: John Shinn
Senior Vice President, General Counsel and Secretary
Email: jshinn@rambus.com
with a copy (which will not constitute notice) to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94063
Attn: Michael Coke
David J. Berger
Douglas K. Schnell
Email: mcoke@wsgr.com
dberger@wsgr.com
dschnell@wsgr.com
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If to the Barington Group:
Barington Companies Equity Partners, L.P.
888 Seventh Avenue, 6th Floor
New York, NY 10019
Attn: James A. Mitarotonda
Email: jmitarotonda@barington.com
with a copy (which will not constitute notice) to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, NY 10019
Attn: Steve Wolosky
Kenneth Mantel
Email: swolosky@olshanlaw.com
kmantel@olshanlaw.com
25. Representation by Counsel. Each of the Parties acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each Party and its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be deemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any Party that drafted or prepared it is of no application and is expressly waived by each of the Parties, and any controversy over interpretations of this Agreement will be decided without regard to events of drafting or preparation.
26. Counterparts. This Agreement and any amendments to this Agreement may be executed in one or more textually-identical counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Any such counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party may raise the use of an Electronic Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense to the formation of a contract, and each Party forever waives any such defense, except to the extent that such defense relates to lack of authenticity.
27. Headings. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision of this Agreement.
[Signature page follows.]
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| Very truly yours, | ||
| RAMBUS INC. | ||
| By: | /s/ Chuck Kissner | |
| Name: Charles Kissner | ||
| Title: Chairman of the Board of Directors | ||
| ACCEPTED AND AGREED | ||
| as of the date written above: | ||
| BARINGTON COMPANIES EQUITY PARTNERS, L.P. | ||
| By: | Barington Companies Investors, LLC | |
| its general partner | ||
| By: | /s/ James A. Mitarotonda | |
| Name: James A. Mitarotonda | ||
| Title: Managing Member | ||
| BARINGTON COMPANIES INVESTORS, LLC | ||
| By: | /s/ James A. Mitarotonda | |
| Name: James A. Mitarotonda | ||
| Title: Managing Member | ||
| BARINGTON CAPITAL GROUP, L.P. | ||
| By: | LNA Capital Corp., | |
| its general partner | ||
| By: | /s/ James A. Mitarotonda | |
| Name: James A. Mitarotonda | ||
| Title: President and CEO | ||
[Signature Page to Letter Agreement]
| LNA CAPITAL CORP. | ||
| By: | /s/ James A. Mitarotonda | |
| Name: James A. Mitarotonda | ||
| Title: President and CEO | ||
| JAMES A. MITAROTONDA | ||
| /s/ James A. Mitarotonda | ||
[Signature Page to Letter Agreement]
EXHIBIT A
Form of Press Release
[see attached]
Exhibit 99.1
James Mitarotonda Joins Rambus Board of Directors
SAN JOSE, Calif., March 16, 2021 —Rambus Inc. (NASDAQ: RMBS), a provider of industry-leading chips and silicon IP making data faster and safer, today announced that James Mitarotonda joined its Board of Directors as a Class I director with a term expiring at Rambus’ 2022 annual meeting of stockholders.
Mr. Mitarotonda currently serves as chairman, president and chief executive officer of Barington Capital Group, L.P. (“Barington”), an investment firm. Mr. Mitarotonda has extensive financial and executive leadership expertise, as well as significant board of director experience at public companies.
“We are delighted to add Jim to the Rambus Board of Directors,” said Chuck Kissner, chairman of the Rambus Board of Directors. “The Board is comprised of leaders with strong management backgrounds, as well as financial and technological expertise relevant to our operations. We are confident Jim will provide valuable guidance and perspective as we continue to execute for our customers and deliver long-term value for our stockholders.”
“I believe the Rambus mission of making data faster and safer is critical to an increasingly digitized world,” said Mr. Mitarotonda. “Rambus is well-positioned to benefit from secular growth trends in data center and cloud computing and has a strong balance sheet that provides flexibility to support its strategic initiatives. I look forward to working with the Board to help the Company execute its strategy and create substantial long-term value for the benefit of all stockholders.”
“I am very pleased to have Jim join our Board during this period of great momentum for the company,” said Luc Seraphin, president and chief executive officer at Rambus. “We continue to build on our successes from 2020, which included record product growth and sustained patent licensing agreements with new and existing customers. We remain very excited about our future opportunities and are focused on continued profitable growth.”
Mr. Mitarotonda holds a Master of Business Administration degree from New York University’s Stern School of Business and a Bachelor of Arts in economics from Queens College, where he currently serves as a member of the Board of Trustees.
Rambus also announced it has reached an agreement with Mr. Mitarotonda and Barington in connection with Mr. Mitarotonda’s appointment to the Board of Directors. The agreement obligates Barington to vote all of its shares in favor of the Rambus director nominees at the upcoming Rambus annual meeting, and to abide by certain customary standstill provisions, subject to specified exceptions. The complete agreement will be filed on a Form 8-K with the Securities and Exchange Commission.
About Barington Capital Group, L.P.
Barington Capital Group, L.P. is a fundamental, value-oriented activist investment firm founded in January 2000 by James A. Mitarotonda. Barington invests in undervalued publicly traded companies that it believes can appreciate significantly in value when substantive improvements are made to their operations, corporate strategy, capital allocation and corporate governance. Barington’s investment
team, advisors and network of industry experts draw upon their extensive strategic, operating and boardroom experience to assist companies in designing and implementing initiatives to improve long-term stockholder value.
About Rambus Inc.
Rambus is a provider of industry-leading chips and silicon IP making data faster and safer. With over 30 years of advanced semiconductor experience, we are a pioneer in high-performance memory subsystems that solve the bottleneck between memory and processing for data-intensive systems. Whether in the cloud, at the edge or in your hand, real-time and immersive applications depend on data throughput and integrity. Rambus products and innovations deliver the increased bandwidth, capacity and security required to meet the world’s data needs and drive ever-greater end-user experiences. For more information, visit rambus.com.
Contact
Rahul Mathur
Senior Vice President, Finance and Chief Financial Officer
Rambus Inc.
(408) 462-8000
rmathur@rambus.com