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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
(Amendment No.)*
Micron Technology, Inc.
(Name of Issuer)
Common Stock, $.10 par value
(Title of Class of Securities)
595112
(CUSIP Number)
Bruce Sewell
Acting General Counsel
Vice President and Assistant General Counsel
Intel Corporation
2200 Mission College Boulevard
Santa Clara, CA 95052
Telephone: (408) 765-8080
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 24, 2003
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1 (e), 13d-1 (f) or 13d-1 (g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits.
See Rule 13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter the disclosures provided
in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 (the "Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).1.
Page 1 of 13
CUSIP No. 595112 13D Page 2 of 13
1. NAME OF REPORTING PERSON: INTEL CORPORATION
I.R.S. IDENTIFICATION NO. OF ABOVE 94-1672743
PERSON:
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP** (a) []
(b) []
3. SEC USE ONLY
4. SOURCE OF FUNDS** WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [ ]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION: DELAWARE
7. SOLE VOTING POWER: 33,860,045
NUMBER OF
SHARES 8. SHARED VOTING POWER: -0-
BENEFICIALLY
OWNED BY EACH 9. SOLE DISPOSITIVE POWER: 33,860,045
REPORTING
PERSON WITH 10. SHARED DISPOSITIVE POWER: -0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH 33,860,045
REPORTING PERSON:
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES** [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 5.3%
(11):
14. TYPE OF REPORTING PERSON** CO
**SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 595112 13D Page 3 of 13
ITEM 1. Security and Issuer.
(a) Name and Address of Principal Executive Offices
of Issuer:
Micron Technology, Inc. (the "Issuer")
8000 South Federal Way
P.O. Box 6
Boise, Idaho 83716-9632
(b) Title of Class of Equity Securities:
Common Stock, $.10 par value
ITEM 2. Identity and Background.
(a) Name of Person Filing:
Intel Corporation (the "Reporting Person")
(b) Address of Principal Business Office:
2200 Mission College Boulevard
Santa Clara, CA 95052-8119
(c) Principal Business:
Manufacturer of microcomputer components,
modules and systems.
(d) Criminal Proceedings:
During the last five years, neither the
Reporting Person nor any executive officer or
director of the Reporting Person has been
convicted in any criminal proceeding.
(e) Civil Proceedings:
During the last five years, neither the
Reporting Person nor any executive officer or
director of the Reporting Person has been party
to any civil proceeding of a judicial or
administrative body of competent jurisdiction
as a result of which such person was or is
subject to any judgment, decree or final order
enjoining future violations of, or prohibiting
or mandating activities subject to, Federal or
State securities laws or finding any violation
with respect to such laws.
CUSIP No. 595112 13D Page 4 of 13
(f) Place of Organization:
Delaware
Attached hereto as Appendix A is information required
by this Item 2 with respect to the executive officers
and directors of the Reporting Person. All such
individuals are U.S. citizens, except as otherwise
indicated on Appendix A.
ITEM 3. Source and Amount of Funds or Other Consideration.
(a) Source of Funds:
Funds for the purchase of the Stock Rights (as
defined in Item 4) were derived from the
Reporting Person's working capital.
(b) Amount of Funds:
$449,999,998.05 was paid to acquire the Stock
Rights that are convertible into or
exchangeable for (at no additional
consideration) 33,860,045 shares of shares of
the Issuer's Common Stock.
ITEM 4. Purpose of the Transaction.
On September 24, 2003, the Reporting Person acquired
for $449,999,998.05 non-voting stock rights
convertible into or exchangeable for (at no additional
consideration) 33,860,045 shares of the Issuer's
Common Stock at a conversion price of $13.29 (the
"Stock Rights").
If exercised currently, the number of shares
represents approximately 5.3% of the Issuer. The
Rights are exercisable at any time subject to
compliance with any applicable regulatory
requirements. The investment was intended to support
the development and supply of next generation memory
products. In the event the Issuer fails to achieve
certain milestones related to such products and the
price of the Issuer's Common Stock is then below
Reporting Person's purchase price, the Issuer could be
obligated to pay the Reporting Person certain amounts
not to exceed $135 million in the aggregate, a
substantial portion of which is payable, at the
Issuer's election, in the Issuer's common stock.
The Reporting Person presently holds the Stock Rights
as an investment. Depending upon the Reporting
Person's evaluation of market conditions, market
price, alternative investment opportunities, liquidity
needs and other factors, the Reporting Person will
from time to time explore opportunities for
liquidating all or a portion the Stock Rights, through
one or more sales pursuant to public or private
offerings or otherwise.
CUSIP No. 595112 13D Page 5 of 13
In such event, the Reporting Person may determine to
retain some portion of the Stock Rights as an
investment.
ITEM 5. Interest in Securities of the Issuer.
The information contained in Item 4 is incorporated
herein by this reference.
(a) Number of Shares Beneficially Owned:
33,860,045 (1)
Percent of Class: 5.3%
(b) Sole Power to Vote, Direct the Vote of, or
Dispose of Shares: 33,860,045
(c) Recent Transactions: See Item 4.
(d) Rights with Respect to Dividends or Sales
Proceeds: N/A
(e) Date of Cessation of Five Percent Beneficial
Ownership: N/A
(1) The Reporting Person does not directly own the
securities of the Issuer. By reason of the provisions
of Rule 13d-3 under the Securities Exchange Act, as
amended, the Reporting Person is deemed to own
beneficially the securities of the Issuer that are
owned beneficially by Intel Capital Corporation, a
wholly-owned subsidiary of the Reporting Person.
These securities of the Issuer include 33,860,045
shares of Common Stock that the Reporting Person has a
right to acquire upon exchange or conversion of the
Stock Rights. Furthermore, such shares are
beneficially owned by the Reporting Person under Rule
13d-3 because the Reporting Person has a right to
acquire such shares of the Issuer's Common Stock by
exchange or conversion of the Stock Rights within the
next 60 days. The Stock Rights are non-voting
securities.
An executive officer of the Reporting Person
beneficially owns 350 shares of the Issuer's Common
Stock acquired in August 2002.
ITEM 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Pursuant to the Rights and Restrictions Agreement (as
defined in Item 7), the Reporting Person has, under
certain circumstances, various rights including
registration of the Common Stock issuable upon
exchange or conversion of the Stock Rights pursuant to
certain shelf, demand and piggyback registration
rights granted to the Reporting Person. Pursuant to
the Rights and Restrictions Agreement, the Reporting
Person has certain standstill obligations relating to
its acquisition of voting securities of the Issuer.
In addition, the Securities Purchase Agreement, the
Rights and Restrictions
CUSIP No. 595112 13D Page 6 of 13
Agreement and the Stock Rights Agreement (as defined
in Item 7) place certain restrictions on the transfer
of the securities of the Issuer. See the Securities
Purchase Agreement, the Rights and Restrictions
Agreement, and the Stock Rights Agreement for a
further description of these and other provisions.
ITEM 7. Material to be Filed as Exhibits.
Exhibit 1 Securities Purchase Agreement between the
Issuer and the Reporting Person dated
September 24, 2003 (the "Securities
Purchase Agreement")
Exhibit 2 Securities Rights and Restrictions
Agreement between the Issuer and the
Reporting Person, dated as of September
24, 2003 (the "Rights and Restrictions
Agreement")
Exhibit 3 Stock Rights Agreement between the Issuer
and the Reporting Person, dated as of
September 24, 2003 (the "Rights
Agreement")
Exhibit 4 Press Release dated September 24, 2003
(the "Press Release")
Exhibit 5 Signature Authority dated September 26,
2003
CUSIP No. 595112 13D Page 7 of 13
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated as of October 2, 2003.
INTEL CORPORATION
By: /s/Bruce Sewell
Bruce Sewell
Acting General Counsel
Vice President and
Assistant General Counsel
CUSIP No. 595112 13D Page 8 of 13
APPENDIX A
DIRECTORS
The following is a list of all Directors of Intel Corporation and
certain other information with respect to each Director. All
Directors are United States citizens except as indicated below.
Name: Craig R. Barrett
Business Intel Corporation, 2200 Mission College
Address: Boulevard, Santa Clara, CA 95052
Principal Chief Executive Officer
Occupation:
Name, principal Intel Corporation, a manufacturer of
business and microcomputer components, modules and systems.
address of 2200 Mission College Boulevard
corporation or Santa Clara, CA 95052
other
organization in
which employment
is conducted:
Name: John Browne
Business BP p.l.c., Britannic House, 1 Finsbury Circus,
Address: London EC2M 7BA
Principal Group Chief Executive
Occupation:
Name, principal BP p.l.c., an integrated oil company.
business and Britannic House, 1 Finsbury Circus
address of London EC2M 7BA
corporation or
other
organization in
which employment
is conducted:
Citizenship: British
CUSIP No. 595112 13D Page 9 of 13
Name: Winston H. Chen
Business Paramitas Foundation, 3945 Freedom Circle,
Address: Suite 760, Santa Clara, CA 95054
Principal Chairman
Occupation:
Name, principal Paramitas Foundation, a private foundation.
business and 3945 Freedom Circle, Suite 760
address of Santa Clara, CA 95054
corporation or
other
organization in
which employment
is conducted:
Name: Andrew S. Grove
Business Intel Corporation, 2200 Mission College
Address: Boulevard, Santa Clara, CA 95052
Principal Chairman of the Board of Directors
Occupation:
Name, principal Intel Corporation, a manufacturer of
business and microcomputer components, modules and systems.
address of 2200 Mission College Boulevard
corporation or Santa Clara, CA 95052
other
organization in
which employment
is conducted:
Name: D. James Guzy
Business The Arbor Company, 1340 Arbor Road, Menlo
Address: Park, CA 94025
Principal Chairman
Occupation:
Name, principal The Arbor Company, a limited partnership
business and engaged in the electronics and computer
address of industry.
corporation or 1340 Arbor Road
other Menlo Park, CA 94025
organization in
which employment
is conducted:
CUSIP No. 595112 13D Page 10 of 13
Name: Reed E. Hundt
Business McKinsey & Company, 600 14th Street NW, #300,
Address: Washington, DC 20005
Principal Senior Advisor
Occupation:
Name, principal McKinsey & Company, a management consulting
business and firm.
address of 600 14th Street NW, #300
corporation or Washington, DC 20005
other
organization in
which employment
is conducted:
Name: Paul S. Otellini
Business Intel Corporation, 2200 Mission College
Address: Boulevard, Santa Clara, CA 95052
Principal President and Chief Operating Officer
Occupation:
Name, principal Intel Corporation, a manufacturer of
business and microcomputer components, modules and systems.
address of 2200 Mission College Boulevard
corporation or Santa Clara, CA 95052
other
organization in
which employment
is conducted:
Name: David S. Pottruck
Business The Charles Schwab Corporation, 101 Montgomery
Address: Street, San Francisco, CA 94104
Principal President and Chief Executive Officer
Occupation:
Name, principal The Charles Schwab Corporation, a securities
business and brokerage firm.
address of 101 Montgomery Street
corporation or San Francisco, CA 94104
other
organization in
which employment
is conducted:
CUSIP No. 595112 13D Page 11 of 13
Name: Jane E. Shaw
Business Aerogen, Inc., 1310 Orleans Drive, Sunnyvale,
Address: CA 94089
Principal Chairman and Chief Executive Officer
Occupation:
Name, principal Aerogen, Inc., a pulmonary drug delivery
business and company.
address of 1310 Orleans Drive
corporation or Sunnyvale, CA 94089
other
organization in
which employment
is conducted:
Name: John L. Thornton
Business 375 Park Avenue, Suite 1002, New York, NY
Address: 10152
Principal Professor and Director of Global Leadership
Occupation:
Name, principal 375 Park Avenue, Suite 1002
business and New York, NY 10152
address of
corporation or
other
organization in
which employment
is conducted:
Name: David B. Yoffie
Business Harvard Business School, Morgan Hall 215,
Address: Soldiers Field Park Road, Boston, MA 02163
Principal Max and Doris Starr Professor of International
Occupation: Business Administration
Name, principal Harvard Business School, an educational
business and institution.
address of Morgan Hall 215, Soldiers Field Park Road
corporation or Boston, MA 02163
other
organization in
which employment
is conducted:
CUSIP No. 595112 13D Page 12 of 13
Name: Charles E. Young
Business University of Florida, 226 Tigert Hall, P.O.
Address: Box 113150, Gainesville, FL 32610
Principal President
Occupation:
Name, principal University of Florida, an educational
business and institution.
address of 226 Tigert Hall
corporation or P.O. Box 113150
other Gainesville, FL 32610
organization in
which employment
is conducted:
CUSIP No. 595112 13D Page 13 of 13
EXECUTIVE OFFICERS
The following is a list of all executive officers of Intel
Corporation excluding executive officers who are also directors.
Unless otherwise indicated, each officer's business address is
2200 Mission College Boulevard, Santa Clara, California 95052-
8119, which address is Intel Corporation's business address.
Name: Andy D. Bryant
Title: Executive Vice President; Chief Financial and
Enterprise Services Officer
Name: Sean M. Maloney
Title: Executive Vice President; General Manager, Intel
Communications Group
Citizenshi British
p:
Name: Robert J. Baker
Title: Senior Vice President; General Manager, Technology
and Manufacturing Group
Name: Sunlin Chou
Title: Senior Vice President; General Manager, Technology
and Manufacturing Group
Name: F. Thomas Dunlap, Jr.
Title: Senior Vice President; General Counsel
Name: Ronald J. Smith
Title: Senior Vice President; General Manager, Wireless
Communications and Computing Group
Name: Jason Chun Shen Chen
Title: Vice President; Director, Sales and Marketing Group
Name: John H. F. Miner
Title: Vice President; President, Intel Capital
Name: Arvind Sodhani
Title: Vice President; Treasurer
EXHIBIT 1 CONFIDENTIAL
SECURITIES PURCHASE AGREEMENT
MICRON TECHNOLOGY, INC.
INTEL CAPITAL CORPORATION
September 24, 2003
i CONFIDENTIAL
TABLE OF CONTENTS
1.DEFINITIONS 1
1.1 Certain Defined Terms; Interpretation 1
1.2 Index of Other Defined Terms 2
2.AGREEMENT TO PURCHASE AND SELL SECURITIES 3
2.1 Agreement to Purchase and Sell Stock 3
2.2 The Closing 3
2.3 Additional Adjustment Shares 3
3.REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4
3.1 Organization Good Standing and Qualification 4
3.2 Capitalization 4
3.3 Due Authorization 4
3.4 Valid Issuance of Shares; Listing 5
3.5 Compliance with Securities Laws 5
3.6 Governmental Consents 5
3.7 Non-Contravention 6
3.8 Litigation 6
3.9 Compliance with Law and Charter Documents 6
3.10 SEC Documents 6
3.11 Absence of Certain Changes Since Balance Sheet 7
3.12 Full Disclosure 8
4.REPRESENTATIONS AND WARRANTIES OF SILICON CAPITAL 8
4.1 Investigation; Economic Risk 8
4.2 Purchase for Own Account 8
4.3 Exempt from Registration; Restricted Securities 8
4.4 Accredited Investor 9
4.5 Legends 9
4.6 Organization Good Standing and Qualification 9
4.7 Due Authorization; Capitalization 9
4.8 Governmental Consents 9
4.9 Non-Contravention 9
4.10 Restrictions on Hedging 10
5.AFFIRMATIVE COVENANTS OF THE COMPANY 10
5.1 Use of Proceeds 10
6.CLOSING CONDITIONS 10
6.1 Conditions to Silicon Capital's Obligations 10
6.2 Conditions to the Company's Obligations 11
7.CONFIDENTIALITY OBLIGATIONS 12
7.1 Obligations 12
7.2 Certain Definitions 12
ii CONFIDENTIAL
7.3 Non-Disclosure of Agreements 12
7.4 Public Announcements 13
7.5 Third Party Information 13
7.6 Other Disclosures 13
7.7 Disclosure of Tax Treatment, Etc. 13
8.MISCELLANEOUS
8.1 Governing Law 14
8.2 Survival 14
8.3 Successors and Assigns 14
8.4 Entire Agreement 14
8.5 Notices 14
8.6 Amendments 15
8.7 Delays or Omissions 15
8.8 Legal Fees 15
8.9 Titles and Subtitles 15
8.10 Counterparts 15
8.11 Severability 15
8.12 Dispute Resolution 16
8.13 No Third parties Benefited 16
8.14 Meaning of Include and Including 16
8.15 Fees, Costs and Expenses 16
8.16 Competition 16
1 CONFIDENTIAL
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is
entered into as of September 24, 2003 by and between Micron
Technology, Inc., a Delaware corporation (the "Company" or the
"Corporation") and Intel Capital Corporation, a Cayman Islands
corporation ("Intel Capital").
WHEREAS, Intel Capital is willing, pursuant to the terms and
conditions of this Agreement, to purchase from the Company, for
an aggregate amount of $449,999,998.05, Rights (as defined below)
to acquire 33,860,045 shares of the Company's Common Stock, par
value $0.10 per share (the "Common Stock");
WHEREAS, at the closing of the transactions contemplated
hereby, the Company and Intel Capital will enter into the Rights
Agreement, the Rights and Restrictions Agreement and the Business
Agreement (each as defined below).
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
1.1 Certain Defined Terms; Interpretation. The following
terms shall have the following respective meanings.
"Affiliate" shall mean, with respect to any Person, any
Person directly or indirectly controlling, controlled by, or
under common control with, such other Person. For purposes of
this definition, "control" when used with respect to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities,
by contract or otherwise; the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Agreement" shall mean that certain Business
Agreement by and between Intel and the Company, dated as of the
date hereof, in the form attached to this Agreement as Exhibit A.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in either Boise, Idaho or
San Francisco, California.
"Common Stock" shall have the meaning set forth in the
recitals to this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
"HSR Act" shall mean Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Intel" shall mean Intel Corporation, a Delaware
corporation.
"NYSE" shall mean the New York Stock Exchange.
2 CONFIDENTIAL
"Person" shall mean individual, corporation, company,
voluntary association, partnership, joint venture, limited
liability company, trust, estate, unincorporated organization,
governmental authority or other entity.
"Rights" shall mean the securities issuable pursuant to the
Stock Rights Agreement, dated as of the date hereof, between the
Company and Intel Capital, having the rights, preferences,
privileges and restrictions defined therein, including any
Additional Adjustment Rights.
"Rights Agreement" shall mean the Stock Rights Agreement,
dated as of the date hereof, between the Company and Intel
Capital.
"Rights and Restrictions Agreement" shall mean the
Securities Rights and Restrictions Agreement, dated as of the
date hereof, between the Company and Intel Capital.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
"Subsidiary" shall mean each Person in which the Company
owns, directly or indirectly, 50% or more of the voting interests
or of which the Company otherwise has the right to direct the
management.
1.2 Index of Other Defined Terms In addition to the terms
defined above, the following terms shall have the respective
meanings given thereto in the sections indicated below:
Defined Term Section
"Action" 3.8
"Additional Adjustment 2.3
Rights"
"Agreement" Preamble
"Audited Financial 3.10(b)
Statements"
"Balance Sheet Date" 3.10(b)
"Closing" 2.2
"Common Stock" Recitals
"Company" Preamble
"Confidential Information" 7.2
"Disclosure Letter" 3
"Form 10-K" 3.10(a)
"Form 10-Q's" 3.10(a)
"GAAP" 3.10(b)
"Hedging Transaction" 4.10
"Intel Capital" Preamble
"Material Adverse Effect" 3.1
"Purchase Price" 2.1
"SEC Documents" 3.10(a)
"Settlement Date" 2.3
"Shares" 2.1
"Transaction Agreements" 7.2
3 CONFIDENTIAL
2. AGREEMENT TO PURCHASE AND SELL SECURITIES
2.1 Agreement to Purchase and Sell Securities. The Company
hereby agrees to issue to Intel Capital at the Closing (as
defined below) and Intel Capital agrees to purchase from the
Company at the Closing, for an aggregate purchase price of
$449,999,998.05 (the "Purchase Price"), Rights representing in
the aggregate the right to acquire 33,860,045 shares of Common
Stock (the "Shares").
2.2 The Closing. The purchase and sale of the Rights shall
take place at the offices of Gibson, Dunn & Crutcher LLP, 1881
Page Mill Road, Palo Alto, California 94304, at 10:00 a.m.
California time, on September 24, 2003, or at such other time and
place as the Company and Intel Capital mutually agree upon (which
time and place is referred to in this Agreement as the
"Closing"). At the Closing, the Company will deliver to Intel
Capital certificates representing the Rights being purchased,
against delivery to the Company by Intel Capital of the
consideration set forth in Section 2.1 by wire transfer of
immediately available funds to an account designated by the
Company at least two (2) Business Days prior to the Closing.
2.3 Additional Adjustment Rights. The Company and Intel
Capital acknowledge that pursuant to Sections 7.2.1 and 7.2.2 of
the Business Agreement, the Company may be obligated to pay to
Intel certain Additional Amounts (as defined and specified in the
Business Agreement). Subject to the provisions of this
Section 2.3, the Company may elect to satisfy its obligation to
pay all or a portion of any Additional Amount by delivering to
Intel Capital additional Rights (any such Rights are referred to
herein as "Additional Adjustment Rights"). If the Company elects
to deliver Additional Adjustment Rights to satisfy its obligation
to pay any Additional Amount, then it shall notify Intel Capital
of such election, the number of Rights or dollar value of Rights
it elects to deliver (based upon the dollar value of the shares
of Common Stock that may be acquired pursuant to such Rights),
and the date that it will deliver the Additional Adjustment
Rights (any such date, a "Settlement Date"). The Company may
deliver Additional Adjustment Rights only if, as of the
applicable Settlement Date, the information contained in the SEC
Documents (as defined in Section 3.10(a) hereof), as filed prior
to the Settlement Date, with respect to the business, operations,
results of operations and financial condition of the Company and
its subsidiaries, taken as a whole, and the transactions
contemplated by this Agreement, taken together, are true and
complete in all material respects and do not omit to state any
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading, and the Company delivers to Intel Capital on the
Settlement Date, a certificate of its Chief Executive Officer or
Chief Financial Officer to that effect. For purposes of
satisfying the Company's obligations to pay any Additional
Amount, any Additional Adjustment Rights shall be valued based
upon the average closing prices of the Common Stock on the NYSE,
as reported by Bloomberg L.P., for the twenty (20) trading day
period ending and including the third trading day prior to the
Settlement Date. The Company may not elect to deliver Additional
Adjustment Rights in satisfaction of its obligations to pay any
Additional Amount if, as of the Settlement Date, the Common Stock
is not listed on the NYSE or the NASDAQ National Market, if the
Company has taken action towards delisting or intends to delist
the Common Stock from the NYSE or the NASDAQ National Market.
4 CONFIDENTIAL
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Intel Capital
that the statements in this Section 3 are true and correct,
except as set forth in the Disclosure Letter from the Company
dated the date hereof (the "Disclosure Letter") or disclosed in
the SEC Documents (as defined below):
3.1 Organization Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
corporate power and authority required to (a) carry on its
business as presently conducted, and (b) enter into this
Agreement, the Rights Agreement, the Rights and Restrictions
Agreement and the Business Agreement, to issue the Rights, any
Additional Adjustment Rights and any shares of Common Stock
issuable pursuant to the Rights and any Additional Adjustment
Rights, and to consummate the transactions contemplated hereby
and thereby. The Company is qualified to do business and is in
good standing in each jurisdiction in which the failure to so
qualify would have a Material Adverse Effect. As used in this
Agreement, "Material Adverse Effect" means a material adverse
effect, or a group of such effects which are related, on the
business, operations, financial condition or results of
operations, of the applicable party and its Subsidiaries, taken
as a whole.
3.2 Capitalization. The authorized and outstanding capital
stock of the Company at September 19, 2003, without giving effect
to the transactions contemplated by this Agreement, is as set
forth in the Disclosure Letter or the SEC Documents. All
outstanding shares of capital stock have been duly authorized,
and all such issued and outstanding shares have been validly
issued and are fully paid and nonassessable. The Disclosure
Letter or the SEC Documents include information regarding equity
securities reserved for issuance to officers, directors,
employees or independent contractors or affiliates of the Company
under the Company's employee stock option and purchase plans and
upon conversion of convertible securities. Except as set forth
in the Disclosure Letter or the SEC Documents, there are no other
equity securities, options, warrants, calls, rights, commitments
or agreements of any character to which the Company is a party or
by which it is bound obligating the Company to issue, deliver,
sell, repurchase or redeem, or cause to be issued, delivered,
sold, repurchased or redeemed, any shares of the capital stock of
the Company or obligating the Company to grant, extend or enter
into any such equity security, option, warrant, call, right,
commitment or agreement.
3.3 Due Authorization. The Company has the requisite
corporate power and authority to enter into this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Business Agreement and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Business Agreement, and performance by the Company of its
obligations hereunder and thereunder, including without
limitation, the issuance of the Rights, have been duly authorized
by all necessary corporate action on the part of the Company
(including its directors and stockholders). This Agreement
constitutes, and the Rights Agreement, the Rights and
Restrictions Agreement and the Business Agreement, when executed
and delivered by the parties thereto, will constitute, valid and
legally binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except (a)
as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or others laws of general application relating to
or affecting the enforcement of creditors' rights generally and
(ii) the effect of rules of
5 CONFIDENTIAL
law governing the availability of equitable remedies and (b) as
rights to indemnity or contribution may be limited under federal
or state securities laws or by principles of public policy
thereunder.
3.4 Valid Issuance.
(a) Valid Issuance and Enforceability of Rights. The
Rights, including any Additional Adjustment Rights, issued
pursuant to this Agreement have been duly authorized, and, when
executed in accordance with the provisions of the Rights
Agreement and delivered to and paid for by Intel Capital in
accordance with the provisions of this Agreement, will be valid
and binding obligations of the Company, enforceable in accordance
with their terms, except (a) as may be limited by (i) applicable
bankruptcy, insolvency, reorganization, or other laws of general
application, relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of laws
governing the availability of equitable remedies and (b) as
rights to indemnity or contribution may be limited under federal
or state securities laws or by principles of public policy
thereunder.
(b) Valid Issuance of Shares. The shares of Common Stock
issuable upon conversion, exchange or exercise of the Rights,
including any Additional Adjustment Rights, have been duly
authorized and reserved, and when issued upon conversion,
exchange or exercise of the Rights in accordance with the terms
of the Rights Agreement, will be duly and validly issued, fully
paid and nonassessable. The shares of Common Stock issuable
pursuant to the Rights, including any Additional Adjustment
Rights, have been duly authorized and reserved, and upon issuance
pursuant to the term of the Rights Agreement, will be duly and
validly issued, fully paid and nonassessable.
3.5 Compliance with Securities Laws. Assuming the accuracy
of the representations made by Intel Capital in Section 4 hereof,
the Rights, including any Additional Adjustment Rights, and the
shares of Common Stock issuable upon conversion, exercise or
exchange of the Rights, including any Additional Adjustment
Rights, will be issued to Intel Capital in compliance with
applicable exemptions from (i) the registration and prospectus
delivery requirements of the Securities Act and (ii) the
registration and qualification requirements of all applicable
securities laws of the states of the United States.
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration qualification, designation,
declaration or filing with, any federal, state or local
governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated
by this Agreement, except: (i) compliance with the HSR Act which
may be required for the conversion, exercise or exchange of the
Rights to acquire shares of Common Stock; (ii) the filing of a
current report on Form 8-K by the Company with the SEC following
the Closing; (iii) the filing of such qualifications or filings
under the Securities Act and the regulations thereunder and all
applicable state securities laws as may be required in connection
with the transactions contemplated by this Agreement; and
(iii) as expressly required or contemplated by the terms of the
Rights and Restrictions Agreement. All such qualifications and
filings in connection with the issuance of the Rights have been
made or are effective.
6 CONFIDENTIAL
3.7 Non-Contravention. The execution, delivery and
performance of this Agreement, the Rights Agreement, the Rights
and Restrictions Agreement, and the Business Agreement by the
Company, and the consummation by the Company of the transactions
contemplated hereby and thereby, do not and will not (i)
contravene or conflict with the Certificate of Incorporation or
Bylaws of the Company, as amended; (ii) constitute a violation of
any provision of any federal, state, local or foreign law binding
upon or applicable to the Company; or (iii) constitute a default
or require any consent under, give rise to any right of
termination, cancellation or acceleration of, or to a loss of any
benefit to which the Company is entitled under, or result in the
creation or imposition of any lien, claim or encumbrance on any
assets of the Company under, any contract to which the Company is
a party or any permit, license or similar right relating to the
Company or by which the Company may be bound, except in the case
of clause (ii) and (iii) as, individually or in the aggregate,
would not have a Material Adverse Effect.
3.8 Litigation. There is no action, suit, proceeding,
claim, arbitration or investigation ("Action") pending: (a)
against the Company, properties or assets or, to the best of the
Company's knowledge, against any officer, director or employee of
the Company in connection with such officer's, director's or
employee's relationship with, or actions taken on behalf of, the
Company, which the Company believes is reasonably likely to have
a Material Adverse Effect, or (b) that seeks to prevent, enjoin,
alter or delay the transactions contemplated by this Agreement.
The Company is not a party to or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which it believes is
reasonably likely to have a Material Adverse Effect. No Action
by the Company is currently pending nor does the Company intend
to initiate any Action which it believes is reasonably likely to
have a Material Adverse Effect.
3.9 Compliance with Law and Charter Documents. The Company
is not in violation or default of any provisions of its
Certificate of Incorporation or Bylaws, both as amended. The
Company has complied and is in compliance with all applicable
statutes, laws, and regulations and executive orders of the
United States of America and all states, foreign countries and
other governmental bodies and agencies having jurisdiction over
the Company's business or properties, except for any violations
that would not, either individually or in the aggregate, have a
Material Adverse Effect.
3.10 SEC Documents.
(a) Reports. The Company has filed all required forms,
reports and documents with the SEC since January 1, 2002. The
Company has furnished or made available to Intel Capital prior to
the date hereof copies of its Annual Report on Form 10-K for the
fiscal year ended August 29, 2002 ("Form 10-K"), its Quarterly
Reports on Form 10-Q for the fiscal quarters ended November 28,
2002, February 27, 2003 and May 29, 2003 (the "Form 10-Q's"), and
all other registration statements, reports and proxy statements
filed by the Company with the SEC on or after August 31, 2002
(the Form 10-K, the Form 10-Q's and such registration statements,
reports and proxy statements are collectively referred to herein
as the "SEC Documents"). Each of the SEC Documents, as of the
respective date thereof (or if amended or superseded by a filing
prior to the closing date of this Agreement, then on the
7 CONFIDENTIAL
date of such filing), did not, and each of the registration
statements, reports and proxy statements filed by the Company
with the SEC after the date hereof and prior to the Closing will
not, as of the date thereof (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of
such filing), contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under
which they were made, not misleading. The Company is not a party
to any material contract, agreement or other arrangement which
was required to have been filed as an exhibit to the SEC
Documents that was not so filed.
(b) Financial Statements. The SEC Documents include the
Company's audited consolidated financial statements (the "Audited
Financial Statements") for the fiscal year ended August 29, 2002,
and its unaudited consolidated financial statements for the nine-
month period ended May 29, 2003 (the "Balance Sheet Date").
Since the Balance Sheet Date, the Company has duly filed with the
SEC all forms, reports and other documents required to be filed
by it under the Exchange Act and the Securities Act. The audited
and unaudited consolidated financial statements of the Company
included in the SEC Documents filed prior to the date hereof
fairly present, in conformity with United States generally
accepted accounting principles ("GAAP")(except as permitted by
Form 10-Q) applied on a consistent basis (except as may be
indicated in such financial statements or the notes thereto), the
consolidated financial position of the Company and its
consolidated Subsidiaries as at the dates thereof and the
consolidated results of their operations and cash flows for the
periods then ended (subject to normal year-end audit adjustments
in the case of the unaudited interim financial statements
contained in the Form 10-Qs, which adjustments are not expected
to be material in amount).
3.11 Absence of Certain Changes Since Balance Sheet. Since
the Balance Sheet Date, except as disclosed in or contemplated by
the SEC Documents, the business and operations of the Company
have been conducted in the ordinary course consistent with past
practice, and there has not been:
(a) any declaration, setting aside or payment of any
dividend or other distribution of the assets of the Company with
respect to any shares of capital stock of the Company or any
repurchase, redemption or other acquisition by the Company or any
Subsidiary of the Company of any outstanding shares of the
Company's capital stock;
(b) any damage, destruction or loss, whether or not covered
by insurance, except for such occurrences that have not resulted,
and are not expected to result, in a Material Adverse Effect;
(c) any waiver by the Company of a valuable right or of a
material debt owed to it, except for such waivers that have not
resulted and are not expected to result, in a Material Adverse
Effect;
(d) any material change or amendment to, or any waiver of
any material rights under a material contract or arrangement by
which the Company or any of its assets, or properties is bound or
subject, except for changes, amendments or waivers that are
expressly provided for or disclosed in this Agreement or that
have not resulted, and are not expected to result, in a Material
Adverse Effect;
(e) any change by the Company in its accounting principles,
methods or practices or in the manner it keeps its accounting
books and records; and
8 CONFIDENTIAL
(f) any other event or condition of any character, except
for such events and conditions that have not resulted, either
individually or collectively, in a Material Adverse Effect.
3.12 Full Disclosure. The information contained in this
Agreement, the Disclosure Letter and the SEC Documents with
respect to the business, operations, results of operations and
financial condition of the Company, and the transactions
contemplated by this Agreement, taken together, are true and
complete in all material respects and do not omit to state any
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SILICON
CAPITAL.
Intel Capital represents and warrants to the Company as
follows:
4.1 Investigation; Economic Risk. Intel Capital has
received or has had full access to all of the information it
considers necessary or appropriate to make an informed investment
decision with respect to the Rights to be purchased by Intel
Capital under this Agreement. Intel Capital further has had an
opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Rights
and the shares of Common Stock into which they are convertible,
exercisable or exchangeable and to obtain additional information
(to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to
verify any information furnished to Intel Capital or to which
Intel Capital had access. The foregoing, however, does not in
any way limit or modify the representations and warranties made
by the Company in Section 3. Intel Capital understands that the
purchase of the Rights involves substantial risk. Intel Capital
acknowledges that it is able to fend for itself in the
transactions contemplated by this Agreement and has the ability
to bear the economic risks of its investment pursuant to this
Agreement and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and
risks of this investment in the Rights and the shares of Common
Stock into which they are convertible, exercisable or
exchangeable and protecting its own interests in connection with
this investment.
4.2 Purchase for Own Account. Intel Capital will acquire
the Rights, and any Additional Adjustment Rights for its own
account, not as a nominee or agent, and not with a view to or in
connection with the sale or distribution of any part thereof.
4.3 Exempt from Registration; Restricted Securities. Intel
Capital understands that the sale and issuance of the Rights and
any Additional Adjustment Rights and the issuance of any shares
of Common Stock upon conversion, exercise or exchange thereof
will not be registered under the Securities Act on the ground
that the sale provided for in this Agreement is exempt from
registration under of the Securities Act, and that the reliance
of the Company on such exemption is predicated in part on Intel
Capital's representations set forth in this Agreement. Intel
Capital understands that the Rights, including any Additional
Adjustment Rights, and any shares of Common Stock issuable upon
conversion, exercise or exchange thereof are restricted
securities within the meaning of Rule 144 under the Securities
Act, and must be held indefinitely unless they are subsequently
registered or an exemption from such registration is available.
Intel Capital understands that the Company is under no obligation
to register any of the securities sold hereunder except as
provided in the Rights and Restrictions Agreement.
9 CONFIDENTIAL
4.4 Accredited Investor. Intel Capital is an "accredited
investor" as that term is defined in Rule 501(a)(8) of Regulation
D as promulgated by the SEC under the Securities Act.
4.5 Legends. Intel Capital agrees that the Rights,
including any Additional Adjustment Rights, and the shares of
Common Stock issuable upon conversion, exercise or exchange
thereof, will bear legends and be subject to the restrictions on
transfer as provided in the Rights and Restrictions Agreement.
In addition, Intel Capital agrees that the Company may place stop
transfer orders with its transfer agents with respect to such
instruments. The appropriate portion of the legend shall be
removed in accordance with the provisions of the Rights and
Restrictions Agreement and the stop transfer orders shall be
removed promptly upon delivery to the Company of such
satisfactory evidence as reasonably may be required by the
Company that such stop orders are not required to ensure
compliance with the Securities Act.
4.6 Organization Good Standing and Qualification. Intel
Capital is a corporation duly organized, validly existing and in
good standing under the laws of the Cayman Islands and has all
corporate power and authority required to (a) carry on its
business as presently conducted, and (b) enter into this
Agreement, the Rights Agreement, the Rights and Restrictions
Agreement and the Business Agreement and to consummate the
transactions contemplated hereby and thereby.
4.7 Due Authorization; Capitalization. Intel Capital has
the requisite corporate power and authority to enter into this
Agreement, the Rights Agreement and the Rights and Restrictions
Agreement and to perform its obligations hereunder and
thereunder. Intel Capital is an indirect, wholly-owned
subsidiary of Intel and all outstanding shares of capital stock
of Intel Capital are owned free and clear of any pledge, lien or
security interests. The execution and delivery of this
Agreement, the Rights Agreement and the Rights and Restrictions
Agreement, and performance by Intel Capital of its obligations
hereunder and thereunder, have been duly authorized by all
necessary corporate action on the part of Intel Capital. This
Agreement constitutes, and the Rights Agreement and the Rights
and Restrictions Agreement, when executed and delivered by the
parties thereto, will constitute, valid and legally binding
obligations of Intel Capital, enforceable against the Intel
Capital in accordance with their respective terms, except (a) as
may be limited by (i) applicable bankruptcy, insolvency,
reorganization or others laws of general application relating to
or affecting the enforcement of creditors' rights generally and
(ii) the effect of rules of law governing the availability of
equitable remedies and (b) as rights to indemnity or contribution
may be limited under federal or state securities laws or by
principles of public policy thereunder.
4.8 Governmental Consents. No consent, approval, order or
authorization of, or registration qualification, designation,
declaration or filing with, any federal, state or local
governmental authority on the part of Intel Capital is required
in connection with the consummation of the transactions
contemplated by this Agreement, except (i) compliance with the
HSR Act which may be required for the conversion, exercise or
exchange of the Rights for Common Stock, and (ii) as expressly
required or contemplated by the terms of the Rights and
Restrictions Agreement.
4.9 Non-Contravention. The execution, delivery and
performance of this Agreement, the Rights Agreement and the
Rights and Restrictions Agreement by Intel Capital, and the
consummation by Intel Capital of the transactions contemplated
hereby and thereby, do not and will not (i) contravene or
conflict with the Certificate of Incorporation or Bylaws of Intel
Capital,
10 CONFIDENTIAL
as amended; (ii) constitute a violation of any provision of any
federal, state, local or foreign law binding upon or applicable
to Intel Capital; or (iii) constitute a default or require any
consent under, give rise to any right of termination,
cancellation or acceleration of, or to a loss of any benefit to
which Intel Capital is entitled under, or result in the creation
or imposition of any lien, claim or encumbrance on any assets of
Intel Capital under, any contract to which Intel Capital is a
party or any permit, license or similar right relating to Intel
Capital or by which Intel Capital may be bound, except in the
case of clause (ii) and (iii) as, individually or in the
aggregate, would not have a Material Adverse Effect.
4.10 Restrictions on Hedging. Neither Intel Capital nor any
of its Affiliates as of the Closing holds any short position with
respect to the Company's Common Stock or is a party to any other
contract, option, right, warrant to sell, purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock of the Company or any securities
convertible or exercisable into shares of Common Stock of the
Company, including any swap or other derivative contract that
transfers, in whole or in part, any of the economic consequences
of ownership of the Common Stock of the Company (a "Hedging
Transaction"). Intel Capital and its Affiliates agree not to
enter into any such Hedging Transaction until such time following
the public dissemination of the press release contemplated by
Section 7.4 hereof and the filing by the Company of a Current
Report on Form 8-K with respect to the transaction after Closing
(provided such filing is made within two (2) trading days of the
Closing).
5. AFFIRMATIVE COVENANTS OF THE COMPANY.
The Company covenants to Intel Capital as follows:
5.1 Listing of Shares. Within thirty (30) days following
the Closing, the Company shall take action so that the shares of
Common Stock issuable upon conversion, exercise or exchange of
the Rights will be listed on the New York Stock Exchange upon
official notice of issuance.
6. CLOSING CONDITIONS.
6.1 Conditions to Intel Capital's Obligations. The
obligations of Intel Capital to consummate the transactions
contemplated by this Agreement at the Closing are subject to the
fulfillment or waiver, on or before the Closing, of each of the
following conditions:
(a) Representations and Warranties True. (i) Each of the
representations and warranties of the Company contained in
Section 3 and qualified by "Material Adverse Effect" or the term
"material" will be true and correct on and as of the date hereof
and on and as of the date of the Closing, and (ii) each of the
representations and warranties of the Company contained in
Section 3 and not qualified by "Material Adverse Effect" or the
term "material," disregarding all qualifications and exceptions
contained therein relating to materiality, will be true and
correct in all material respects on and as of the date hereof and
on and as of the date of the Closing, in each case with the same
effect as though such representations and warranties had been
made as of the Closing.
(b) Performance. The Company will have performed and
complied with all agreements, obligations and conditions
contained in this Agreement that are required to be
11 CONFIDENTIAL
performed or complied with by it on or before the Closing and
will have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
(c) Compliance Certificate. The Company will have
delivered to the Intel Capital at the Closing a certificate
signed on its behalf by its Chief Executive Officer or Chief
Financial Officer certifying that the conditions specified in
Section 6.1(a) and (b) hereof have been fulfilled.
(d) Securities Exemptions. The offer and sale of the Rights
to Intel Capital pursuant to this Agreement and the Rights
Agreement will be exempt from the registration requirements of
the Securities Act and the registration and/or qualification
requirements of all applicable state securities laws.
(e) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at
the Closing and all documents incident thereto will be reasonably
satisfactory in form and substance to Intel Capital, and Intel
Capital will have received all such counterpart originals and
certified or other copies of such documents as it may reasonably
request. Such documents shall include (but not be limited to)
the following:
(i) Certified Charter Documents. A copy of the
Certificate of Incorporation certified as of a recent date by the
Secretary of State of Delaware as a complete and correct copy
thereof, and the Bylaws of the Company (as amended through the
date of the Closing), certified by the Secretary of the Company
as true and correct copies thereof as of the Closing.
(ii) Board Resolutions. A copy, certified by the
Secretary of the Company, of the resolutions of the Board of
Directors of the Company providing for the approval of the
transactions contemplated by this Agreement, the Rights
Agreement, the Rights and Restrictions Agreement and the Business
Agreement and the issuance of the Rights, including, as
applicable, the Additional Adjustment Shares, and the shares of
Common Stock issuable upon conversion, exercise or exchange
thereof.
(f) Opinion of Company Counsel. Intel Capital will have
received an opinion on behalf of the Company, dated as of the
date of the Closing, from counsel to the Company, in form and
substance reasonably satisfactory to Intel Capital.
(g) Other Agreements. The Company will have executed and
delivered the Rights Agreement, the Rights and Restrictions
Agreement and the Business Agreement.
6.2 Conditions to the Company's Obligations. The
obligations of the Company to consummate the transactions
contemplated by this Agreement at the Closing are subject to the
fulfillment or waiver on or before the Closing, of each of the
following conditions:
(a) Representations and Warranties True. (i) Each of the
representations and warranties of Intel Capital contained in
Section 4 and qualified by "Material Adverse Effect" or the term
"material" will be true and correct on and as of the date hereof
and on and as of the date of the Closing, and (ii) each of the
representations and warranties of Intel Capital contained in
Section 4 and not qualified by "Material Adverse Effect" or the
term "material," disregarding all
12 CONFIDENTIAL
qualifications and exceptions contained therein relating to
materiality, will be true and correct in all material respects on
and as of the date hereof and on and as of the date of the
Closing, in each case with the same effect as though such
representations and warranties had been made as of the Closing.
(b) Performance. Intel Capital will have performed and
complied with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or
complied with by it on or before the Closing and will have
obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
(c) Payment of Purchase Price. Intel Capital will have
delivered to the Company the Purchase Price of the Rights as
specified in and in accordance with Section 2.1.
(d) Securities Exemptions. The offer and sale of the
Rights to Intel Capital pursuant to this Agreement will be exempt
from the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable
state securities laws.
(e) Other Agreements. Intel Capital will have executed and
delivered the Rights Agreement and the Rights and Restrictions
Agreement, and Intel will have executed and delivered the
Business Agreement.
7. CONFIDENTIALITY OBLIGATIONS
7.1 Obligations. Except to the extent required by law or
judicial order or except as provided herein, each party to this
Agreement will hold any of the other's Confidential Information
(as defined in the next paragraph) in confidence and will: (i)
use the same degree of care to prevent unauthorized disclosure or
use of the Confidential Information that the receiving party uses
with its own information of like nature (but in no event less
than reasonable care), (ii) limit disclosure of the Confidential
Information, including any materials regarding the Confidential
Information that the receiving party has generated, to such of
its employees and contractors as have a need to know the
Confidential Information to accomplish the purposes of this
Agreement, and (iii) advise its employees, agents and contractors
of the confidential nature of the Confidential Information and of
the receiving party's obligations under this Agreement and the
Corporate Non-Disclosure Agreement #19096.
7.2 Certain Definitions. For purposes of this Agreement,
the term "Confidential Information" includes this Agreement, the
Rights Agreement, the Business Agreement and the Rights and
Restrictions Agreement (collectively, the "Transaction
Agreements"). Any employee or contractor of the receiving party
having access to the Confidential Information will be required to
sign a non-disclosure agreement protecting the Confidential
Information if not already bound by such a non-disclosure
agreement.
7.3 Non-Disclosure of Agreements. Except to the extent
required by law or judicial order or except as provided herein,
neither party shall disclose the Transaction Agreements or any of
their terms without the other's prior written approval, which
approval will not be delayed or unreasonably withheld. Either
party may disclose the Transaction Agreements to the extent
required by law or judicial order, provided that if such
disclosure is pursuant to judicial order or proceedings, the
disclosing party will notify the other party promptly before such
disclosure and
13 CONFIDENTIAL
will cooperate with the other party to seek confidential
treatment with respect to the disclosure if requested by the
other party and provided further that if such disclosure is
required pursuant to the rules and regulations of any federal,
state or local organization, the parties will cooperate to seek
confidential treatment of the Transaction Agreements to the
maximum extent possible under law. Notwithstanding the
foregoing, in the absence of any prior disclosure of any of the
Transaction Agreements or the terms thereof pursuant to this
Section 7.3, each party may disclose the Transaction Agreements
or any of their terms to its agents or third party consultants
who have a need to know arising out of the establishment,
implementation, administration, termination or enforcement of the
Transaction Agreements provided such agents are informed of the
confidential nature of the Transaction Agreements and the terms
thereof and are bound, either by statutory rules of professional
responsibility to maintain client confidences with respect
thereto or, in the absence of such statutory duties, are bound by
the terms of a applicable nondisclosure agreement that treats as
confidential information the Transaction Agreements and the terms
thereof.
The Company agrees that it will provide Intel Capital with
the relevant portions of any drafts of any documents, press
releases or other filings in which the Agreement or its contents
are to be disclosed prior to the filing thereof to consult with
the Company as to the contents of such filing. The Company will
endeavor to provide adequate opportunity for Intel Capital review
and comments prior to any disclosure or filing. The minimum
prior notice to Intel Capital for such review is two (2) business
days.
7.4 Public Announcements. Upon execution of this
Agreement, the parties will mutually agree on language to be
included in press release(s) announcing the existence of the
transactions contemplated by this Agreement, which press release
will be issued promptly following the execution of this
Agreement.
7.5 Third Party Information. Neither party will be
required to disclose to the other any confidential information of
any third party without having first obtained such third party's
prior written consent.
7.6 Other Disclosures. Except as otherwise provided for in
Sections 7.3. 7.4, 7.5 and 7.7 hereof, all confidential
information exchanged by the parties will be disclosed pursuant
to the Intel Corporation/Micron Technology, Inc. Corporate Non-
Disclosure Agreement #19096.
7.7 Disclosure of Tax Treatment, Etc. Notwithstanding
anything herein to the contrary, any party to this Agreement or
the other Transaction Agreements (and any employee,
representative, or other agent of any party to this Agreement or
the other Transaction Agreements) may disclose to any and all
persons, without limitation of any kind, the tax treatment and
tax structure of the transactions contemplated by this Agreement
and the other Transaction Agreements and all materials of any
kind (including opinions or other tax analyses) that are provided
to it relating to such tax treatment and tax structure; provided,
however, that this sentence shall not permit any disclosure that
otherwise is prohibited by this Agreement or the other
Transaction Agreements if such disclosure would result in a
violation of federal or state securities laws, and provided,
further, that this sentence shall not permit disclosure of any
information to the extent not related to the tax aspects of the
transactions contemplated by this Agreement or the other
Transaction Agreements. The parties to this Agreement
acknowledge that they have no knowledge or reason to know that
such disclosure is otherwise limited.
14 CONFIDENTIAL
8. MISCELLANEOUS.
8.1 Governing Law. This Agreement shall be governed in all
respects by and construed in accordance with the laws of the
State of Delaware, without regard to provisions regarding choice
of laws. Jurisdiction shall be in the courts of the state of
domicile of the defending party to the original action.
8.2 Survival. The representations, warranties, covenants
and agreements made herein shall survive any investigation made
by any party hereto and the closing of the transactions
contemplated hereby, provided that the representations and
warranties set forth herein shall terminate as of the first
anniversary of the date hereof (other than with respect to any
claims asserted prior to such date, as to which they shall
survive solely for the purpose of resolving such claims until the
resolution thereof).
8.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto. This
Agreement and the rights and obligations herein may not be
assigned by Intel Capital without the prior written consent of
the Company, except to a Qualified Subsidiary (as defined in the
Rights and Restrictions Agreement) or the Parent. This Agreement
and the rights and obligations herein may not be assigned by the
Company without the prior written consent of Intel Capital.
8.4 Entire Agreement. This Agreement, the Rights
Agreement, the Rights and Restrictions Agreement and the Business
Agreement, and the agreements, exhibits and schedules referred to
herein and therein constitute the entire understanding and
agreement between the parties with regard to the subjects hereof
and thereof; provided, however, that nothing in this Agreement
shall be deemed to terminate or supersede the provisions of any
confidentiality and nondisclosure agreements executed by the
parties hereto prior to the date hereof, which agreements shall
continue in full force and effect until terminated in accordance
with their respective terms.
8.5 Notices. Except as may be otherwise provided herein,
all notices, requests, waivers and other communications made
pursuant to this Agreement shall be in writing and shall be
delivered to the other party (a) in person; (b) by facsimile to
the address and number set forth below, when promptly followed up
by another of the delivery methods permitted by this Section 8.5;
(c) by U.S. mail, registered or certified, return receipt
requested, postage prepaid and addressed to the other party as
set forth below; or (d) by a national-recognized overnight
delivery service that keeps records of deliveries and attempted
deliveries (such as FedEx), postage prepaid, addressed to the
parties as set forth below with next-business-day delivery
guaranteed, provided that the sending party receives a
confirmation of delivery from the delivery service provider.
15 CONFIDENTIAL
To Intel Capital To the Company
c/o Intel Corporation Micron Technology, Inc.
2200 Mission College Blvd, 8000 S. Federal Way
M/S RN6-46 P.O. Box 6
Santa Clara, California 95052 Boise, Idaho 83716
Attn: Intel Capital Portfolio Attn: Chief Financial Officer
Manager
Fax Number: (408) 765-6038 Fax Number: (208) 308-2900
with copies to: with copies to:
portfolio.manager@intel.com Micron Technology, Inc.
8000 S. Federal Way
P.O. Box 6
Boise, Idaho 83716
Attn: General Counsel
Fax Number: (208) 308-4509
A party may change or supplement the addresses given above,
or designate additional addresses, for purposes of this Section
8.5 by giving the other party written notice of the new address
in the manner set forth above.
8.6 Amendments. Any term of this Agreement may be amended
only with the prior written consent of the Company and Intel
Capital.
8.7 Delays or Omissions. No delay or omission to exercise
any right, power or remedy accruing to the Company or to Intel
Capital, upon any breach or default of any party hereto under
this Agreement, shall impair any such right, power or remedy of
the Company or Intel Capital, nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein,
or of any similar breach or default thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on
the part of the Company or Intel Capital of any breach or default
under this Agreement or any waiver on the part of the Company or
Intel Capital of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to the
Company or Intel Capital shall be cumulative and not alternative.
8.8 Legal Fees. In the event of any action at law, suit in
equity or arbitration proceeding in relation to this Agreement or
any units or securities of the Company issued or to be issued,
the prevailing party shall be paid by the other party a
reasonable sum for attorney's fees and expenses for such
prevailing party.
8.9 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
8.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but both of
which together shall constitute one instrument.
8.11 Severability. Should any provision of this Agreement
be determined to be illegal or unenforceable, such determination
shall not affect the remaining provisions of this Agreement.
16 CONFIDENTIAL
8.12 Dispute Resolution. The parties agree to negotiate in
good faith to resolve any dispute between them regarding this
Agreement. If the negotiations do not resolve the dispute to the
reasonable satisfaction of both parties, then each party shall
nominate one senior officer of the rank of Vice President or
higher as its representative. These representatives shall,
within thirty (30) days of a written request by either party to
call such a meeting, meet in person and alone (except for one
assistant for each party) and shall attempt in good faith to
resolve the dispute. If the disputes cannot be resolved by such
senior managers in such meeting, the parties agree that they
shall, if requested in writing by either party, meet within
thirty (30) days after such written notification for one day with
an impartial mediator and consider dispute resolution
alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days
after the one day mediation, either party may proceed as they see
fit. This procedure shall be a prerequisite before taking any
additional action hereunder.
8.13 No Third Parties Benefited. This Agreement is made and
entered into for the protection and benefit of the parties hereto
and their permitted successors and assigns, and, except as
expressly provided herein, no other Person shall be a direct or
indirect beneficiary of or have any direct or indirect cause of
action or claim in connection with this Agreement or any of the
documents executed in connection herewith.
8.14 Meaning of Include and Including. Whenever in this
Agreement the word "include" or "including" is used. it shall be
deemed to mean "include, without limitation" or "including,
without limitation," as the case may be. and the language
following "include" or "including" shall not be deemed to set
forth an exhaustive list.
8.15 Fees, Costs and Expenses. All fees, costs and expenses
(including attorney's' fees and expenses) incurred by either
party hereto prior to the Closing in connection with the
preparation, negotiation and execution of this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Business Agreement and the consummation of the transactions
contemplated hereby and thereby (including the costs associated
with any filings with, or compliance with any of the requirements
of, any governmental authorities), shall be the sole and
exclusive responsibility of such party.
8.16 Competition. Nothing set forth herein shall be deemed
to preclude, limit or restrict the Company's or Intel Capital's
and their respective Affiliates' ability to compete with the
other.
17 CONFIDENTIAL
IN WITNESS WHEREOF, the parties have executed this
Securities Purchase Agreement as of the date first written above.
INTEL CAPITAL CORPORATION MICRON TECHNOLOGY, INC.
By:/s/Arvind Sodhani By:/s/W. G. Stover, Jr.
----------------------- ------------------------
Name: Arvind Sodhani Name: W. G. Stover, Jr.
Title: Vice President Title: Vice President
and Treasurer and Chief
Financial Officer
{Signature Page to Securities Purchase Agreement}
17 CONFIDENTIAL
IN WITNESS WHEREOF, the parties have executed this
Securities Purchase Agreement as of the date first written above.
INTEL CAPITAL CORPORATION MICRON TECHNOLOGY, INC.
By:/s/Arvind Sodhani By:/s/W. G. Stover, Jr.
----------------------- ------------------------
Name: Arvind Sodhani Name: W. G. Stover, Jr.
Title: Vice President Title: Vice President
and Treasurer and Chief
Financial Officer
{Signature Page to Securities Purchase Agreement}
DISCLOSURE LETTER
September 24, 2003
CONFIDENTIAL
This constitutes the "Disclosure Letter" defined in Section
3 of the Securities Purchase Agreement, dated as of the date
hereof (the "Purchase Agreement"), by and between Micron
Technology, Inc., a Delaware corporation (the "Company") and
Intel Capital Corporation, A Cayman Islands corporation. Unless
Otherwise defined herein, capitalized terms used in this
Disclosure Letter shall have the meanings assigned to such terms
in the Purchase Agreement.
Other than as set forth in Section 3 of the Purchase
Agreement and as disclosed in the SEC documents, the Company does
not have any additional information that would be required to be
disclosed under Section 3 of the Purchase Agreement.
MICRON TECHNOLOGY, INC.
By:/s/W. G. Stover, Jr
--------------------------
Name: W. G. Stover, Jr.
Title: Vice President of
Finance and Chief
Financial Officer
EXHIBIT 2
SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
Between
MICRON TECHNOLOGY, INC.
and
INTEL CAPITAL CORPORATION
Dated as of September 24, 2003
i
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS 1
1.1 Certain Definitions 1
SECTION 2 STANDSTILL AND RELATED COVENANTS 5
2.1 Intel Ownership of Micron Securities 5
2.2 Standstill Provisions 5
2.3 Voting Trust 5
2.4 Solicitation of Proxies 6
2.5 Acts in Concert with Others 6
2.6 Termination 6
SECTION 3 RESTRICTIONS ON TRANSFER OF SECURITIES; COMPLIANCE WITH
SECURITIES LAWS 6
3.1 Restrictions on Transfer of Voting Securities of Micron 6
3.2 Restrictive Legends 9
3.3 Procedures for Certain Transfers 9
3.4 Covenant Regarding Exchange Act Filings 10
3.5 Termination 10
SECTION 4 REGISTRATION RIGHTS 11
4.1 Demand Registration 11
4.2 Shelf Registration 11
4.3 Piggyback Registration 13
4.4 Demand and Shelf Registration Procedures, Rights and
Obligations 14
4.5 Expenses 19
4.6 Indemnification 19
ii
4.7 Issuances by Micron or Other Holders 21
4.8 Information by Intel Capital 21
4.9 Market Standoff Agreements 22
4.10 Termination 22
SECTION 5 MISCELLANEOUS 23
5.1 Governing Law 23
5.2 Successors and Assigns 23
5.3 Entire Agreement; Amendment 24
5.4 Notices and Dates 24
5.5 Language Interpretation 25
5.6 Table of Contents; Titles; Headings 25
5.7 Counterparts 25
5.8 Severability 25
5.9 Injunctive Relief 25
5.10 Dispute Resolution 26
1
SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
THIS SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT (this
"Agreement") is made as of September 24, 2003, between MICRON
TECHNOLOGY, INC., a Delaware corporation ("Micron"), and INTEL
CAPITAL CORPORATION, a Cayman Islands corporation ("Intel
Capital").
RECITALS
A. Intel Capital has agreed to purchase from Micron, and
Micron has agreed to sell and issue to Intel Capital, stock
rights (the "Rights") to be issued by Micron pursuant to that
certain Stock Rights Agreement, dated of even date herewith (the
"Stock Rights Agreement"), on the terms and conditions set forth
in that certain Securities Purchase Agreement, dated September
24, 2003, by and between Micron and Intel Capital (the
"Securities Purchase Agreement"). The Rights are exchangeable
for Common Stock (the "Common Stock") of the Company.
B. The Securities Purchase Agreement provides for the
execution and delivery of this Agreement at the closing of the
transactions contemplated thereby.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and conditions herein and in the Securities
Purchase Agreement, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement:
(a) "Additional Adjustment Rights" has the meaning set
forth in Section 2.3 of the Securities Purchase Agreement.
(b) "Affiliate" means, with respect to any Person, any
Person directly or indirectly controlling, controlled by, or
under common control with, such other Person. For purposes of
this definition, "control" when used with respect to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities,
by contract or otherwise; the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Notwithstanding the above, unless expressly provided to the
contrary herein, the term Affiliate shall exclude officers,
directors and any employee benefit plan or pension plan of a
Person.
(c) "Beneficial ownership" or "beneficial owner" has the
meaning provided in Rule 13d-3 promulgated under the Exchange
Act. References to ownership of Voting Securities hereunder mean
beneficial ownership.
(d) "Business Agreement" means that certain Business
Agreement dated the date hereof between Intel Corporation and
Micron.
2
(e) "Change in Control of Micron" shall mean a merger,
consolidation or other business combination or the sale of all or
substantially all of the assets of Micron (other than a
transaction pursuant to which the holders of the voting stock of
Micron outstanding immediately prior to such transaction have the
entitlement to exercise, directly or indirectly, fifty percent
(50%) or more of the Total Voting Power of the continuing,
surviving entity or transferee immediately after such
transaction).
(f) "Common Stock" has the meaning set forth in paragraph A
of the Recitals hereto.
(g) "Demand Registration Statement" has the meaning set
forth in Section 4.1(a).
(h) "Demand Request" has the meaning set forth in Section
4.1(a).
(i) "Demand/Tranche Managing Underwriters" has the meaning
set forth in Section 4.4(c).
(j) "Demand/Tranche Market Cut-Back" has the meaning set
forth in Section 4.4(d).
(k) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(l) "Group" or "group" shall have the meaning provided in
Section 13(d)(3) of the Exchange Act and the rules and
regulations promulgated thereunder, but shall exclude any
institutional underwriter purchasing Voting Securities of Micron
in connection with an underwritten registered offering for
purposes of a distribution of such securities.
(m) "Hedging Transactions" means engaging in short sales
and the purchase and sale of puts and calls and other derivative
securities, so long as Intel Capital retains beneficial ownership
of the Shares.
(n) "Indemnified Party" has the meaning set forth in
Section 4.6(c).
(o) "Indemnifying Party" has the meaning set forth in
Section 4.6(c).
(p) "Intel Capital Public Offering Lock-up" has the meaning
set forth in Section 4.9(a).
(q) "Issuance Date" has the meaning set forth in Section
4.10(b).
(r) "Micron Public Offering Lock-up" has the meanings
specified in Section 4.9(b).
(s) "Parent" has the meaning set forth in Section 3.1(b).
(t) "Person" shall mean any person, individual,
corporation, partnership, trust or other nongovernmental entity
or any governmental agency, court, authority or other body
(whether foreign, federal, state, local or otherwise).
3
(u) "Piggyback Market Cut-Back" has the meaning set forth
in Section 4.3(c).
(v) "Piggyback Registrable Securities" has the meaning set
forth in Section 4.3(a).
(w) "Piggyback Registration Statement" has the meaning set
forth in Section 4.3(a).
(x) "Piggyback Request" has the meaning set forth in
Section 4.3(a).
(y) "Piggyback Underwriting Agreement" has the meaning set
forth in Section 4.3(b).
(z) "Qualified Subsidiary" shall mean a corporation or
other Person, at least 90% of the outstanding Voting Securities
of which are owned, directly or indirectly, by Parent.
(aa) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration
statement.
(bb) "Registrable Securities" means (i) (1) all the shares
of Common Stock of Micron issued or issuable upon conversion,
exchange or exercise of the Rights or any Additional Adjustment
Rights (as defined in the Securities Purchase Agreement), and (2)
any shares of Common Stock of Micron issued as (or issuable upon
the conversion, exchange or exercise of any warrant, right or
other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in
replacement of, any such securities described in clause (1) of
this subsection (bb). Notwithstanding the foregoing, Registrable
Securities shall exclude any Registrable Securities sold by a
Person in a transaction in which rights under Section 4 hereof
are not assigned in accordance with this Agreement or any
Registrable Securities sold in a public offering, whether sold
pursuant to Rule 144 promulgated under the Securities Act, in a
registered offering, or otherwise.
(cc) "Registration Expenses" has the meaning set forth in
Section 4.5(a).
(dd) "Restricted Securities" has the meaning set forth in
Section 3.2(a).
(ee) "Rights" has the meaning set forth in paragraph A of
the recitals hereto.
(ff) "SEC" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities
Act.
(gg) "Securities Act" means the Securities Act of 1933, as
amended.
(hh) "Securities Purchase Agreement" has the meaning set
forth in paragraph A of the recitals hereto.
(ii) "Shares" means the shares of Common Stock of Micron
issued or issuable upon exercise, exchange or conversion of the
Rights or Additional Adjustment Rights pursuant to the Securities
Purchase Agreement and the Business Agreement.
4
(jj) "Shelf Registrable Securities" has the meaning set
forth in Section 4.2(a).
(kk) "Shelf Registration Statement" has the meaning set
forth in Section 4.2(a).
(ll) "Shelf Request" has the meaning set forth in Section
4.2(a).
(mm) "Stock Rights Agreement" has the meaning set forth in
paragraph A of the recitals hereto.
(nn) "Suspension Condition" has the meaning set forth in
Section 4.4(f).
(oo) "Tranche Registrable Securities" has the meaning set
forth in Section 4.2(b).
(pp) "Tranche Request" has the meaning set forth in Section
4.2(b).
(qq) "Transaction Related Securities" means (i) Shares, (ii)
the Rights, (iii) the Additional Adjustment Rights, and (iv)
shares of Common Stock and other securities of Micron issued as
(or issuable upon conversion, exchange or exercise of any
warrant, right or other security as) a dividend or other
distribution with respect to or in exchange for or in replacement
of, or upon conversion, exchange or exercise of any such
securities.
(rr) "Voting Power" or "Total Voting Power" of Micron (or
any other corporation) refer to the votes or total number of
votes which at the time of calculation may be cast in the
election of directors of Micron (or such corporation) at any
meeting of stockholders of Micron (or such corporation) if all
securities entitled to vote in the election of directors of
Micron (or such corporation) were present and voted at such
meeting; provided that for purposes of references herein made to
any Person's "Voting Power" or percentage beneficial ownership of
"Total Voting Power," any rights (other than rights referred to
in any rights plan of Micron (or any such other corporation) or a
successor to such rights plan so long as such rights can only be
transferred together with the Voting Securities to which they
attach) of such Person to acquire Voting Securities (whether or
not the exercise, exchange or conversion of any such right shall
be conditioned upon the passage of time or any other contingency)
shall be deemed to have been exercised, exchanged or converted in
full.
(ss) "Voting Securities" means (i) all securities of Micron,
entitled in the ordinary course, to vote in the election of
directors of Micron and (ii) for the purposes of this Agreement
only, all securities of Micron, directly or indirectly,
convertible into or exchangeable or exercisable for shares of
Common Stock (including the Rights and any Additional Adjustment
Rights), the Voting Power of which shall be deemed equal to the
number of shares of Common Stock, directly or indirectly,
issuable upon the conversion, exchange or exercise of such
securities. Voting Securities shall not include stockholder
rights or other comparable securities having Voting Power only
upon the happening of a trigger event or comparable contingency
and which can only be transferred together with the Voting
Securities to which they attach. References herein to meetings of
holders of Voting Securities shall include meetings of any class
or type thereof.
(tt) "180-Day Limitation" has the meaning set forth in
Section 4.4(a).
5
All capitalized terms used and not defined herein shall have
the respective meanings assigned to such terms in the Securities
Purchase Agreement.
SECTION 2
STANDSTILL AND RELATED COVENANTS
2.1 Intel Capital Ownership of Micron Securities. On the
date hereof, and without giving effect to the transactions
contemplated by the Securities Purchase Agreement, neither Intel
Capital nor any Affiliate of Intel Capital beneficially owns any
Voting Securities of Micron, other than Voting Securities held in
equity index funds or by employee benefit plans or pension plans.
2.2 Standstill Provisions.
(a) Intel Capital shall not acquire, directly or
indirectly, and shall not cause or permit any Affiliate of Intel
Capital to acquire, directly or indirectly (through market
purchases or otherwise), record or beneficial ownership of any
Voting Securities of Micron representing, when taken together
with all securities owned by such Persons, in excess of a
percentage greater than nineteen and ninety nine hundredths
(19.99%) (the "Standstill Percentage") of the Total Voting Power
of Micron without the prior written consent or approval of
Micron's Board of Directors; provided, however, that the prior
written consent or approval of the Board of Directors of Micron
shall not be required for the acquisition of any Voting
Securities of Micron pursuant to the conversion, exchange or
exercise of any of the Rights or any of the Additional Adjustment
Rights or resulting from a stock split, stock dividend or similar
recapitalization by Micron or resulting from any issuance to
Intel Capital of Common Stock or other securities of Micron
pursuant to the terms and conditions of the Business Agreement.
Nothing contained in this Section 2.2 shall adversely affect any
right of Intel Capital to acquire record or beneficial ownership
of Voting Securities of Micron pursuant to any rights plan
instituted by Micron. Ownership of Voting Securities by employee
benefit plans or pension plans shall not be beneficial ownership
by Intel Capital for purposes of this Section 2.2.
(b) Intel Capital and its Affiliates will not be obliged to
dispose of any Voting Securities to the extent that the aggregate
percentage of the Total Voting Power of Micron represented by
Voting Securities beneficially owned by Intel Capital and its
Affiliates or which Intel Capital and its Affiliates has a right
to acquire is increased beyond the Standstill Percentage (i) as a
result of a recapitalization of Micron or a repurchase or
exchange of securities by Micron or its Affiliates; (ii) as a
result of any issuance to Intel Capital of Common Stock or other
securities of Micron pursuant to the terms and conditions of the
Business Agreement; (iii) as a result of an equity index
transaction, provided that Intel Capital and its Affiliates shall
not vote such shares; (iv) by way of stock dividends or other
distributions or rights or offerings made available to holders of
shares of Voting Securities generally; or (v) with the prior
written consent or approval of Micron's Board of Directors.
2.3 Voting Trust. Intel Capital shall not, and shall not
cause or permit any Affiliate of Intel Capital to, deposit any
Voting Securities of Micron in a voting trust or, except as
otherwise provided herein, subject any Voting Securities of
Micron to any arrangement or agreement with respect to the voting
of such Voting Securities of Micron.
6
2.4 Solicitation of Proxies. Without the prior written
consent or approval of Micron's Board of Directors, Intel Capital
shall not, and shall not cause or permit any Affiliate of Intel
Capital to, directly or indirectly (i) initiate, propose or
otherwise solicit Micron stockholders for the approval of one or
more stockholder proposals with respect to Micron or induce or
attempt to induce any other Person to initiate any stockholder
proposal, (ii) make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are defined or used in
Rule 14a-1 under the Exchange Act) with respect to any Voting
Securities of Micron, or become a "participant" in any "election
contest" (as such terms are used in the proxy rules of the SEC),
with respect to Micron or (iii) call or seek to have called any
meeting of the holders of Voting Securities of Micron.
2.5 Acts in Concert with Others. Except as contemplated
herein, Intel Capital shall not, and shall not cause or permit
any Affiliate of Intel Capital to, participate in the formation
of any Person which owns or seeks to acquire beneficial ownership
of, or otherwise acts in concert in respect of the voting or
disposition of, Voting Securities of Micron. Without limiting the
generality of the foregoing, and except as contemplated herein,
Intel Capital shall not, and shall not cause or permit any
Affiliate of Intel Capital to: (i) join a partnership, limited
partnership, syndicate or other group, or otherwise act in
concert with any third person, for the purpose of acquiring,
holding, or disposing of Voting Securities of Micron; (ii) seek
election to or seek to place a representative on the Board of
Directors of Micron; (iii) seek the removal of any member of the
Board of Directors of Micron; (iv) otherwise seek control of the
management, Board of Directors or policies of Micron; (v)
solicit, propose or seek to effect any form of business
combination transaction with Micron or any Affiliate thereof, or
any restructuring, recapitalization or similar transaction with
respect to Micron or any Affiliate thereof; (vi) solicit, make or
propose or announce an intent to make, any tender offer or
exchange offer for any Voting Securities of Micron; (vii)
disclose an intent, purpose, plan or proposal with respect to
Micron or any Voting Securities of Micron inconsistent with the
provisions of this Agreement, including an intent, purpose, plan
or proposal that is conditioned on or would require Micron to
waive the benefit of or amend any provision of this Agreement; or
(vii) assist, participate in, or solicit any effort or attempt by
any Person to do or seek to do any of the foregoing. Intel
Capital shall not, and shall not cause or permit any Affiliate of
Intel Capital to, make any recommendation or proposal to any
Person to engage in any of the actions covered by Section 2.4
hereof and this Section 2.5.
2.6 Termination. The provisions of this Section 2 shall
terminate upon the earlier to occur of: (i) such time as Intel
Capital (together with all Affiliates of Intel Capital)
beneficially owns in the aggregate Voting Securities of Micron
representing less than three percent (3%) of the Total Voting
Power of Micron, or (ii) the closing or other completion of a
Change in Control of Micron.
SECTION 3
RESTRICTIONS ON TRANSFER OF
SECURITIES; COMPLIANCE WITH SECURITIES LAWS
3.1 Restrictions on Transfer of Voting Securities of
Micron. Intel Capital shall not, and shall not cause or permit
any Affiliate of Intel Capital to, directly or indirectly, offer
to sell, contract to sell, make any short sale of, or otherwise
sell, dispose of, loan, gift, pledge or grant
7
any options or rights with respect to, any Transaction Related
Securities of Micron, now or hereafter acquired, or with respect
to which Intel Capital (or any Affiliate of Intel Capital) has or
hereafter acquires the power of disposition (or enter into any
agreement or understanding with respect to the foregoing), except
as set forth in the following clauses (a) through (g):
(a) to Micron, or any Person or group approved in writing
in advance by Micron's Board of Directors;
(b) to any Qualified Subsidiary or Intel Corporation, a
Delaware corporation ("Parent"), so long as such subsidiary or
Parent agrees in writing (in form reasonably acceptable to
counsel for Micron) to hold such Voting Securities of Micron
subject to all the provisions of this Agreement, and also agrees
to transfer such Voting Securities of Micron to Intel Capital or
another Qualified Subsidiary of Parent or to Parent if it ceases
to be a Qualified Subsidiary of Parent;
(c) pursuant to a public offering of Voting Securities of
Micron registered under the Securities Act; provided, however,
that such offering is structured to distribute such securities in
accordance with procedures reasonably designed to ensure that
beneficial ownership of the Voting Securities of Micron with
aggregate Voting Power of more than five percent (5%) of the
Total Voting Power of Micron then in effect shall not be
transferred during such distribution to any single Person or
group, unless such Person or group is an institutional investor
that acquires such Voting Securities solely for investment;
(d) through a sale of Voting Securities of Micron pursuant
to Rule 144 under the Securities Act; provided, however, that any
such sale (i) complies with the manner of sale provisions under
paragraph (f) of Rule 144 or (ii) is of securities with Voting
Power aggregating less than five percent (5%) of the Total Voting
Power of Micron and is not made knowingly directly or indirectly
to: (A) any Person or group which has theretofore filed a
Schedule 13D with the SEC with respect to any class of "equity
security" (as defined in Rule 13a11-1 under the Exchange Act) of
Micron and which, at the time of such sale, continues to reflect
beneficial ownership in excess of five percent (5%) of the Total
Voting Power of Micron, unless such Person or group is an
institutional investor that acquires such Voting Securities
solely for investment; (B) any Person or group known to Intel
Capital (without inquiry or investigation) to beneficially own in
excess of five percent (5%) of any Voting Securities of Micron or
to be accumulating stock on behalf of or acting in concert with
any such Person or group or a Person or group contemplated by
clause (A) above, unless such Person or group is an institutional
investor that acquires such Voting Securities solely for
investment; or (C) any Person or group that has announced or
commenced an unsolicited offer for any Voting Securities of
Micron or publicly initiated, proposed or otherwise solicited
Micron stockholders for the approval of one or more stockholder
proposals with respect to Micron or publicly made, or in any way
participated in, any "solicitation" of "proxies" (as such terms
are defined or used in Regulation 14A under the Exchange Act)
with respect to any Voting Securities of Micron, or become a
"participant" in any "election contest" (as such terms are used
in the proxy rules of the SEC);
(e) pursuant to any private sale of Voting Securities of
Micron exempt from the registration requirements under the
Securities Act, provided that no such sale may be made to
8
any Person or group which, after giving effect to such sale, will
beneficially own or have the right to acquire Voting Securities
of Micron with aggregate Voting Power of more than five percent
(5%) of the Total Voting Power of Micron unless such Person or
group is an institutional investor that acquires such Voting
Securities solely for investment, in which case the total number
of Voting Securities that may be sold to such Person or group
shall be limited so that such Person or group shall not own or
have the right to acquire more than ten percent (10%) of the
Total Voting Power of Micron after giving effect to the proposed
sale; and, provided, further, that, if such securities are
"restricted securities" as defined in Rule 144, any such
purchaser (and any transferee of such purchaser) shall agree to
take and hold such securities subject to the provisions and upon
the conditions specified in this Section 3, and it will be a
condition precedent to the effectiveness of any such transfer
that Intel Capital shall have delivered to Micron a written
agreement of such purchaser to that effect in form and substance
reasonably satisfactory to Micron (which may contain a
representation by such purchaser as to the beneficial ownership
of Voting Securities of Micron, which may be relied upon by Intel
Capital (absent actual knowledge to the contrary) for purposes of
compliance with the applicable requirements of this Section
3.1(e));
(f) in response to an offer to purchase or exchange for
cash or other consideration any Voting Securities, in any case
which is not opposed by the Board of Directors of Micron within
the time such Board is required, pursuant to regulations under
the Exchange Act, to advise the stockholders of Micron of such
Board's position with respect to such offer, or, if no such
regulations are applicable, within ten (10) business days of the
commencement of such offer, or pursuant to a merger,
consolidation or other business combination involving Micron
approved by the Board of Directors of Micron; or
(g) subject to Micron's prior consent (which shall not be
unreasonably withheld), pursuant to bona fide pledges of such
Voting Securities to institutional lenders (provided that the
number of such lenders to which, or for the benefit of which,
such pledges may be made, shall not exceed twenty (20) in the
aggregate), to secure a loan, guarantee, letter of credit
facility or other indebtedness or financial support; provided
that each such lender to which, or for the benefit of which, such
pledge is made agrees in writing to hold such Voting Securities
subject to all provisions of this Agreement, including the
limitations on any sale or other disposition of such Voting
Securities.
Subject to Section 4.10 of the Securities Purchase
Agreement, nothing in this Section 3.1 shall be construed to
prohibit Hedging Transactions with respect to securities of
Micron provided that such transactions do not result in non-
compliance with the foregoing restrictions insofar such
provisions relate to, and are limited in their application to,
the Transaction Related Securities.
9
3.2 Restrictive Legends.
(a) The certificate or certificates representing the (i)
the Shares, (ii) the Rights, including any Additional Adjustment
Rights, and (iii) any securities issued in respect of the
foregoing as a result of any stock split, stock dividend,
recapitalization, reclassification or similar transaction
(collectively, the "Restricted Securities") shall be stamped or
otherwise imprinted with a legend substantially in the following
form (in addition to any legend required under applicable state
securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER AS TO THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION.
(b) The certificate or certificates representing the
Restricted Securities also shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE, PLEDGE OR
OTHER HYPOTHECATION, SET FORTH IN AN AGREEMENT BETWEEN THE
ISSUER AND INTEL CAPITAL CORPORATION, A COPY OF WHICH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE
BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY
OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
(c) The certificate or certificates representing the Rights
and any Additional Adjustment Rights also shall be stamped or
otherwise imprinted with a legend substantially in the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO PROVISIONS OF THE STOCK RIGHTS AGREEMENT WHICH CONTAINS
CERTAIN RESTRICTIONS ON TRANSFER AND OTHER RIGHTS AND
OBLIGATIONS. COPIES OF THE STOCK RIGHTS AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY
AT ITS PRINCIPAL EXECUTIVE OFFICES.
3.3 Procedures for Certain Transfers.
(a) The holder of each certificate representing Restricted
Securities, by acceptance thereof, agrees to comply in all
respects with the provisions of this Section 3.
(b) Prior to any proposed transfer of any Restricted
Securities pursuant to Sections 3.1(a), (b), (e) and (g) hereof,
Intel Capital shall give written notice to Micron of its
intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied by either: (i) a
written
10
opinion of legal counsel (including in house counsel), who shall
be reasonably satisfactory to Micron, addressed to Micron and
reasonably satisfactory in form and substance to Micron's
counsel, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under
the Securities Act; or (ii) a "no action" letter from the SEC and
a copy of any request by Intel Capital (together with all
supplements or amendments thereto), which shall have been
provided to Micron at or prior to the time of first delivery to
the SEC's staff, to the effect that the transfer of such
securities without registration will not result in a
recommendation by the staff of the SEC that action be taken with
respect thereto, whereupon Micron shall be entitled to transfer
such Restricted Securities in accordance with the terms of the
notice delivered by Intel Capital to Micron.
(c) In connection with any proposed transfer of Restricted
Securities pursuant to Section 3.1(d) hereof, Intel Capital shall
comply with all applicable requirements of Rule 144 under the
Securities Act and the reasonable requirements of Micron's
transfer agent with respect to sales of Restricted Securities
pursuant to Rule 144.
(d) Each certificate evidencing the Restricted Securities
transferred as herein provided (other than a transfer pursuant to
Section 3.1(c)) shall bear the appropriate restrictive legend set
forth in Section 3.3(a) above, except that such certificate shall
not bear such restrictive legend if: (i) in the opinion of
counsel for Micron, such legend is not required in order to
establish compliance with any provisions of the Securities Act;
(ii) the Restricted Securities have been held by the holder for
more than two years, and the holder represents to counsel for
Micron that it has not been an "affiliate" (as such term is
defined for purposes of Rule 144) of Micron during the three-
month period prior to the sale and shall not become an affiliate
(as such term is defined for purposes of Rule 144) of Micron
without resubmitting the Restricted Securities for reimposition
of the legend; (iii) the Restricted Securities have been sold
pursuant to Rule 144 and in compliance with Section 3.1(d). In
addition, each certificate evidencing the Restricted Securities
transferred pursuant to this Section 3 (other than transfers
pursuant to Sections 3.1(c) and 3.1(d)) hereof shall bear the
legend set forth in Section 3.2(b) above.
3.4 Covenant Regarding Exchange Act Filings. With a view to
making available to Intel Capital the benefits of Rule 144
promulgated under the Securities Act, and any other rules or
regulations of the SEC which may at any time permit Intel Capital
to sell any Restricted Securities without registration, until the
date of termination of this Agreement, Micron agrees to use
commercially reasonable efforts to file with the SEC in a timely
manner all reports and other documents required to be filed under
the Exchange Act.
3.5 Termination. The provisions of this Section 3 (other
than Sections 3.2 and 3.3) shall terminate upon the later to
occur of: (i) the fifth anniversary date of this Agreement and
(ii) such time as Intel Capital (together with all Affiliates of
Intel Capital) beneficially owns in the aggregate Voting
Securities of Micron representing less than five percent (5%) of
the Total Voting Power of Micron or upon the closing or other
completion of a Change in Control of Micron.
11
SECTION 4
REGISTRATION RIGHTS
4.1 Demand Registration.
(a) If at any time after ninety (90) days after the date
hereof, Micron shall receive from Intel Capital a written request
(a "Demand Request") that Micron register on Form S-3 under the
Securities Act (or if such form is not available, any
registration statement form then available to Micron) Registrable
Securities equal to at least the lesser of two percent (2%) of
the Voting Securities outstanding on the date of such Demand
Request and securities having an aggregate market value of $100
million or more on such date, then Micron shall use commercially
reasonable efforts to cause the Registrable Securities specified
in such Demand Request (the "Demand Registrable Securities") to
be registered as soon as reasonably practicable so as to permit
the offering and sale thereof and, in connection therewith, shall
prepare and file with the SEC as soon as practicable after
receipt of such Demand Request, a registration statement (a
"Demand Registration Statement") to effect such registration, and
to obtain any desired acceleration of the effective date of such
Demand Registration Statement; provided, however, that each such
Demand Request shall: (i) specify the number of Demand
Registrable Securities intended to be offered and sold by Intel
Capital pursuant thereto (which number of Demand Registrable
Securities shall not be less than the lesser of two percent (2%)
of the Voting Securities outstanding on the date of such Demand
Request and securities having an aggregate market value in excess
of $100 million on such date); (ii) express the present intention
of Intel Capital to offer or cause the offering of such Demand
Registrable Securities pursuant to such Demand Registration
Statement, (iii) describe the nature or method of distribution of
such Demand Registrable Securities pursuant to such Demand
Registration Statement (including, in particular, whether Intel
Capital plans to effect such distribution by means of an
underwritten offering or other method); and (iv) contain the
undertaking of Intel Capital to provide all such information and
materials and take all such actions as may be required in order
to permit Micron to comply with all applicable requirements of
the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder.
(b) The procedures to be followed by Micron and Intel
Capital, and the respective rights and obligations of Micron and
Intel Capital, with respect to the preparation, filing and
effectiveness of Demand Registration Statements and the
distribution of Demand Registrable Securities pursuant to Demand
Registration Statements under this Section 4.1 are set forth in
Section 4.4 hereof.
4.2 Shelf Registration.
(a) If at any time after ninety (90) days after the date
hereof, Micron shall receive from Intel Capital a written request
(a "Shelf Request") that Micron register pursuant to Rule
415(a)(1)(i) under the Securities Act (or any successor rule with
similar effect) a delayed offering of all Registrable Securities
held by Intel Capital, then Micron shall use commercially
reasonable efforts to cause the Registrable Securities specified
in such Shelf Request (the "Shelf Registrable Securities") to be
registered as soon as reasonably practicable so as to permit the
sale thereof and, in connection therewith, shall (i) prepare and
file with the SEC as soon as practicable after receipt of such
Shelf Request, a shelf registration statement on Form S-3
12
relating to such Shelf Registrable Securities, if such Form S-3
is available for use by Micron (or any successor form of
registration statement to such Form S-3), to effect such
registration (a "Shelf Registration Statement"), to enable the
distribution of such Shelf Registrable Securities, and to obtain
any desired acceleration of the effective date of such Shelf
Registration Statement; provided, however, that each such Shelf
Request shall: (i) express the intention of Intel Capital to
offer or cause the offering of such Shelf Registrable Securities
pursuant to such Shelf Registration Statement on a delayed basis
in the future; (ii) describe the nature or method of the proposed
offer and sale of such Shelf Registrable Securities pursuant to
such Shelf Registration Statement (including, in particular,
whether Intel Capital plans to effect such distribution by means
of an underwritten offering or other method); and (iii) contain
the undertaking of Intel Capital to provide all such information
and materials and take all such actions as may be required in
order to permit Micron to comply with all applicable requirements
of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder. Intel Capital shall not be
entitled to make more than one Shelf Request during any three
hundred sixty-five (365) day period.
(b) It is expressly agreed by the parties that the sole
purpose of Micron filing and maintaining an effective a Shelf
Registration Statement for the delayed offering of Shelf
Registrable Securities by Intel Capital is to make the process of
distributing Registrable Securities by Intel Capital more
convenient for both parties by reducing or eliminating the need
to file a new Demand Registration Statement each time that Intel
Capital decides to sell Registrable Securities. After a Shelf
Registration Statement has been declared effective under the
Securities Act by the SEC, then, upon the written request of
Intel Capital (a "Tranche Request"), Micron shall prepare such
amendments to such Shelf Registration Statement (including post-
effective amendments), if any, and such amendments or supplements
to the prospectus relating to the Registrable Securities to be
offered thereunder pursuant to such Tranche Request (the "Tranche
Registrable Securities"), as is necessary to facilitate the
distribution of such Tranche Registrable Securities pursuant to
such Tranche Request; provided, however, that such Tranche
Request shall: (i) specify the number of Tranche Registrable
Securities intended to be offered and sold by Intel Capital
pursuant thereto (which number of Tranche Registrable Securities
shall not be less than the lesser of two percent (2%) of the
Voting Securities outstanding on the date of such Tranche Request
and securities having an aggregate market value in excess of $100
million on such date); (ii) express the present intention of
Intel Capital to offer or cause the offering of such Tranche
Registrable Securities pursuant to the Shelf Registration
Statement, (iii) describe the nature or method of distribution of
such Tranche Registrable Securities pursuant to the Shelf
Registration Statement (including, in particular, whether Intel
Capital plans to effect such distribution by means of an
underwritten offering or other method); and (iv) contain the
undertaking of Intel Capital to provide all such information and
materials and take all such actions as may be required in order
to permit Micron to comply with all applicable requirements of
the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder.
(c) The procedures to be followed by Micron and Intel
Capital, and the respective rights and obligations of Micron and
Intel Capital, with respect to the preparation, filing and
effectiveness of Shelf Registration Statements and the
distribution of Tranche Registrable Securities pursuant to Shelf
Registration Statements under this Section 4.2 are set forth in
Section 4.4 hereof.
13
4.3 Piggyback Registration.
(a) If at any time after ninety (90) days after the date
hereof, Micron shall determine to register any of its equity or
equity-linked securities (other than registration statements
relating to (i) employee, consultant or distributor compensation
or incentive arrangements (including employee benefit plans),
(ii) acquisitions or any transaction or transactions under Rule
145 under the Securities Act (or any successor rule with similar
effect), (iii) distributions by principal stockholders, their
Affiliates or transferees (unless consented to by such principal
stockholders, Affiliates or transferees), or (iv) pursuant to
Rule 415 under the Securities Act), then Micron will promptly
give Intel Capital written notice thereof and include in such
Micron-initiated, non-shelf, registration statement (a "Piggyback
Registration Statement"), and in any underwriting involved
therein, all Registrable Securities (the "Piggyback Registrable
Securities") specified in a written request made by Intel Capital
(a "Piggyback Request") within five (5) business days after
receipt of such written notice from Micron; provided, however,
that nothing in this Section 4.3(a), or any other provision of
this Agreement, shall be construed to limit the absolute right of
Micron, for any reason and in its sole discretion: (i) to delay,
suspend or terminate the filing of any Piggyback Registration
Statement; (ii) to delay the effectiveness of any Piggyback
Registration Statement; (iii) to terminate or reduce the number
of Piggyback Registrable Securities to be distributed pursuant to
any Piggyback Registration Statement (including, without
limitation, pursuant to Section 4.3(c) hereof); or (iv) to
withdraw such Piggyback Registration Statement.
(b) If the Piggyback Registration Statement of which Micron
gives notice is for an underwritten offering, Micron shall so
advise Intel Capital as a part of the written notice given
pursuant to Section 4.3(a). In such event, the right of Intel
Capital to registration pursuant to this Section 4.3 shall be
conditioned upon the agreement of Intel Capital to participate in
such underwriting and in the inclusion of such Piggyback
Registrable Securities in the underwriting to the extent provided
herein. Intel Capital shall (together with Micron and any other
holders distributing securities in such Piggyback Registration
Statement, if any) enter into an underwriting agreement (the
"Piggyback Underwriting Agreement") in customary form with the
underwriter or underwriters selected for such underwriting by
Micron.
(c) Notwithstanding any other provision of this Agreement,
if the managing underwriters of any underwritten offering
pursuant to a Piggyback Request determine, in their sole
discretion that, after including all the shares to be offered by
Micron and all the shares of any other Persons entitled to
registration rights with respect to such Piggyback Registration
Statement (pursuant to other agreements with Micron), marketing
factors require a limitation of the number of Piggyback
Registrable Securities to be underwritten, the managing
underwriters of such offering may exclude any and all of the
Piggyback Registrable Securities, provided that such cut-back is
made pro rata with respect to any other securities proposed to be
included in such registration statement pursuant to "piggy-back"
registration rights (a "Piggyback Market Cut-Back"). If Intel
Capital disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to Micron and the
managing underwriters. Any Piggyback Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn
from such Piggyback Registration Statement.
14
(d) Except to the extent specifically provided in this
Section 4.3 hereof, the procedures to be followed by Micron and
Intel Capital, and the respective rights and obligations of
Micron and Intel Capital, with respect to the distribution of any
Piggyback Registrable Securities by Intel Capital pursuant to any
Piggyback Registration Statement filed by Micron shall be as set
forth in the Piggyback Underwriting Agreement, or any other
agreement or agreements governing the distribution of such
Piggyback Registrable Securities pursuant to such Piggyback
Registration Statement.
4.4 Demand and Shelf Registration Procedures, Rights and
Obligations. The procedures to be followed by Micron and Intel
Capital, and the respective rights and obligations of Micron and
Intel Capital, with respect to the preparation, filing and
effectiveness of Demand Registration Statements and Shelf
Registration Statements, respectively, and the distribution of
Demand Registrable Securities and Tranche Registrable Securities,
respectively, pursuant thereto, are as follows:
(a) Intel Capital shall not be entitled to make more than
one Demand Request or Tranche Request during any one hundred
eighty (180) day period (the "180-Day Limitation"); provided,
however, that (i) any Demand Request that: (A) does not result in
the corresponding Demand Registration Statement being declared
effective by the SEC; (B) is withdrawn by Intel Capital following
the imposition of a stop order by the SEC with respect to the
corresponding Demand Registration Statement; (C) is withdrawn by
Intel Capital as a result of the exercise by Micron of its
suspension rights pursuant to Sections 4.4(e) or (f) hereof; or
(D) is withdrawn by Intel Capital as a result of a Demand/Tranche
Market Cut-Back (as defined in Section 4.4(d) hereof); and (ii)
any Tranche Request that: (A) is withdrawn by Intel Capital
following the imposition of a stop order by the SEC with respect
to the corresponding Shelf Registration Statement; (B) is
withdrawn by Intel Capital as a result of the exercise by Micron
of its suspension rights pursuant to Sections 4.4(e) or (f)
hereof; or (C) is withdrawn by Intel Capital as a result of a
Demand/Tranche Market Cut-Back, shall not count for the purposes
of determining compliance with the 180-Day Limitation. Any Demand
Request or Tranche Request that is withdrawn by Intel Capital for
any reason other than as set forth in the previous sentence shall
count for purposes of determining compliance with the 180-Day
Limitation. Piggyback Requests shall not count for purposes of
determining compliance with the 180-Day Limitation regardless of
whether a Piggyback Registration Statement is filed, declared
effective or withdrawn or whether any distribution of Piggyback
Registrable Securities is effected, terminated or cut back
(pursuant to Section 4.3(c) hereof, or otherwise). Intel Capital
shall not be entitled to offer or sell any securities pursuant to
a Demand Registration Statement or Shelf Registration Statement
unless and until, following a Demand Request or a Tranche
Request, as applicable, Micron has made all required filings with
the SEC with respect to the distribution of Registrable
Securities contemplated by such Demand Request or Tranche
Request, as applicable, such filings have become effective and
Micron has promptly notified Intel Capital of the foregoing and
that no Suspension Condition then exists.
(b) Micron shall use commercially reasonable efforts to
cause each Demand Registration Statement and Shelf Registration
Statement to be declared effective promptly and to keep such
Demand Registration Statement and Shelf Registration Statement
continuously effective until the earlier to occur of: (i) the
sale or other disposition of the Registrable Securities so
registered; (ii) (X) in the case of a firmly committed,
underwritten offering, sixty (60) days
15
after (A) if pursuant to a Demand Registration Statement, the
effective date of any Demand Registration Statement or (B) if
pursuant to a Tranche Request, the date of the final prospectus
used to confirm sales in connection with the underwritten
offering of Tranche Registrable Securities, and (Y) in the case
of all other plans of distribution, (A) if pursuant to a Demand
Registration Statement, fifteen (15) business days after the
effective date of such Demand Registration Statement or (B) if
pursuant to a Tranche Request, fifteen (15) business days after
the earlier of the effectiveness of the amendment to the Shelf
Registration Statement or the filing of the amendment or
supplement to the prospectus included in such registration
statement required to facilitate such distribution and the date
of the notice required by the last sentence of Section 4.4(a)
hereof if no such amendment or supplement is so required; and
(iii) the termination of Intel Capital's registration rights
pursuant to Section 4.10 hereof. Micron shall prepare and file
with the SEC such amendments and supplements to each Demand
Registration Statement and Shelf Registration Statement and each
prospectus used in connection therewith as may be necessary to
make and to keep such Demand Registration Statement and Shelf
Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities proposed to be
distributed pursuant to such Demand Registration Statement and
Shelf Registration Statement until the earlier to occur of (i)
the sale or other disposition of the Registrable Securities so
registered; (ii) (X) in the case of a firmly committed,
underwritten offering, sixty (60) days after (A) if pursuant to a
Demand Registration Statement, the effective date of any Demand
Registration Statement or (B) if pursuant to a Tranche Request,
the date of the final prospectus used to confirm sales in
connection with the underwritten offering of Tranche Registrable
Securities, and (Y) in the case of all other plans of
distribution, (a) if pursuant to a Demand Registration Statement,
fifteen (15) business days after the effective date of such
Demand Registration Statement or (b) if pursuant to a Tranche
Request, fifteen (15) business days after the earlier of the
effectiveness of the amendment to the Shelf Registration
Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to
facilitate such distribution and the date of the notice required
by the last sentence of Section 4.4(a) hereof if no such
amendment or supplement is so required; and (iii) the termination
of Intel Capital's registration rights pursuant to Section 4.10
hereof.
(c) In connection with any underwritten offering pursuant
to a Demand Registration Statement or a Shelf Registration
Statement which Intel Capital has requested be underwritten,
Micron, on the one hand, and Intel Capital, on the other hand,
shall each select one investment banking firm to serve as co-
manager of such offering. The co-manager selected by Micron shall
be subject to the prior approval of Intel Capital, which approval
shall not be unreasonably withheld, and the co-manager selected
by Intel Capital shall be subject to the prior approval of
Micron, which approval shall not be unreasonably withheld. Each
of the co-managers so selected by Micron and Intel Capital are
hereinafter collectively referred to as the "Demand/Tranche
Managing Underwriters." The Demand/Tranche Underwriter selected
by Intel Capital shall be the lead Demand/Tranche Managing
Underwriter, whose responsibilities shall include running the
"books" for any offering. Micron shall, together with Intel
Capital, enter into an underwriting agreement with the
Demand/Tranche Managing Underwriters, which agreement shall
contain representations, warranties, indemnities and agreements
then customarily included by an issuer in underwriting agreements
with respect to secondary distributions under demand registration
statements or shelf registration statements, as the case may be,
and shall stipulate that the Demand/Tranche Managing Underwriters
will receive equal commissions and fees and other
16
remuneration in connection with the distribution of any Demand
Registrable Securities or Tranche Registrable Securities
thereunder.
(d) Notwithstanding any other provision of this Agreement,
in connection with any underwritten offering, the number of
Demand Registrable Securities or Tranche Registrable Securities
proposed to be distributed by Intel Capital pursuant to any
Demand Request or Tranche Request may be limited by the
Demand/Tranche Managing Underwriters if such Demand/Tranche
Managing Underwriters determine that the sale of such Demand
Registrable Securities or Tranche Registrable Securities would
significantly and adversely affect the market price of the Common
Stock (a "Demand/Tranche Market Cut-Back"). If Intel Capital
disapproves of the terms of any proposed underwritten offering
under a Demand Registration Statement or a Shelf Registration
Statement (including, without limitation, any reduction in the
number of Demand Registrable Securities or Tranche Registrable
Securities, as the case may be, to be sold by Intel Capital
thereunder pursuant to this Section 4.4(d)), Intel Capital may
elect to withdraw therefrom by written notice to Micron and the
Demand/Tranche Managing Underwriters. Any Demand Registrable
Securities excluded or withdrawn from such underwriting shall
also be withdrawn from any applicable Demand Registration
Statement.
(e) Notwithstanding any other provisions of this Agreement,
in the event that Micron receives a Demand Request, Shelf Request
or Tranche Request at a time when Micron (i) shall have filed, or
has a bona fide intention to promptly file, a registration
statement with respect to a proposed public offering of equity or
equity-linked securities or (ii) has commenced, or has a bona
fide intention to promptly commence, a public offering of equity
or equity-linked securities pursuant to an existing effective
shelf or other registration statement, then Micron shall be
entitled to suspend, for a period of up to ninety (90) days after
the receipt by Micron of such Demand Request, Shelf Request or
Tranche Request, the filing of any Demand Registration Statement
or Shelf Registration Statement or the implementation of any
Tranche Request.
(f) Notwithstanding any other provision of this Agreement,
in the event that Micron determines that: (i) non-public material
information regarding Micron exists, the immediate disclosure of
which would be significantly disadvantageous to Micron; (ii) the
prospectus constituting a part of any Demand Registration
Statement or Shelf Registration Statement covering the
distribution of any Demand Registrable Securities or Tranche
Securities contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
(iii) an offering of Demand Registrable Securities or Tranche
Registrable Securities would materially interfere with any
proposed material acquisition, disposition or other similar
corporate transaction or event involving Micron (each of the
events or conditions referred to in clauses (i), (ii) and (iii)
of this sentence is hereinafter referred to as a "Suspension
Condition"), then Micron shall have the right to suspend the
filing or effectiveness of any Demand Registration Statement or
Shelf Registration Statement or to suspend any distribution of
Demand Registrable Securities or Tranche Registrable Securities
pursuant to any effective Demand Registration Statement or Shelf
Registration Statement for so long as such Suspension Condition
exists. Micron will as promptly as practicable provide written
notice to Intel Capital when a Suspension Condition arises and
when it ceases to exist. Upon receipt of notice from Micron of
the existence of any Suspension Condition, Intel Capital shall
forthwith discontinue efforts to: (i) file or cause any Demand
Registration Statement or Shelf Registration
17
Statement to be declared effective by the SEC (in the event that
such Demand Registration Statement or Shelf Registration
Statement has not been filed, or has been filed but not declared
effective, at the time Intel Capital receives notice that a
Suspension Condition has arisen); or (ii) offer or sell Demand
Registrable Securities or Tranche Registrable Securities (in the
event that such Demand Registration Statement or Shelf
Registration Statement has been declared effective at the time
Intel Capital receives notice that a Suspension Condition has
arisen). In the event that Intel Capital had previously
commenced or was about to commence the distribution of Demand
Registrable Securities or Tranche Registrable Securities pursuant
to a prospectus under an effective Demand Registration Statement
or Shelf Registration Statement, then Micron shall, as promptly
as practicable after the Suspension Condition ceases to exist,
make available to Intel Capital (and to each underwriter, if any,
participating in such distribution) an amendment or supplement to
such prospectus. If so directed by Micron, Intel Capital shall
deliver to Micron all copies, other than permanent file copies
then in Intel Capital's possession, of the most recent prospectus
covering such Demand Registrable Securities or Tranche
Registrable Securities at the time of receipt of such notice.
(g) Notwithstanding any other provision of this Agreement,
Micron shall not be permitted to postpone (i) the filing or
effectiveness of any Demand Registration Statement or Shelf
Registration Statement or (ii) the distribution of any Demand
Registrable Securities or Tranche Registrable Securities pursuant
to an effective Demand Registration Statement or an effective
Shelf Registration Statement pursuant to Sections 4.4(e), 4.4(f)
or 4.9(a) hereof for an aggregate of more than one hundred thirty-
five (135) days in any one hundred eighty day (180) day period
(including any market standoff periods applicable to Intel
Capital pursuant to Section 4.9(a) hereof).
(h) Micron shall promptly notify Intel Capital of any stop
order issued or, to Micron's knowledge, threatened to be issued
by the SEC with respect to any Demand Registration Statement or
Shelf Registration Statement as to which a Tranche Request is
pending, and will use its best efforts to prevent the entry of
such stop order or to remove it if entered at the earliest
possible date.
(i) Micron shall furnish to Intel Capital (and any
underwriters in connection with any underwritten offering) such
number of copies of any prospectus (including any preliminary
prospectus and any amended or supplemented prospectus), in
conformity with the requirements of the Securities Act, as Intel
Capital (and such underwriters) shall reasonably request in order
to effect the offering and sale of any Demand Registrable
Securities or Tranche Registrable Securities to be offered and
sold, but only while Micron shall be required under the
provisions hereof to cause the Demand Registration Statement or
Shelf Registration Statement pursuant to which such Demand
Registrable Securities or Tranche Registrable Securities are
intended to be distributed to remain current.
(j) Micron shall use commercially reasonable efforts to
register or qualify the Demand Registrable Securities and Tranche
Registrable Securities covered by each Demand Registration
Statement and Shelf Registration Statement, respectively, under
the state securities or "blue sky" laws of such states as Intel
Capital shall reasonably request, maintain any such registration
or qualification current, until the earlier to occur of: (i) the
sale or other disposition of the Registrable Securities so
registered; (ii) (X) in the case of a firmly committed,
18
underwritten offering, sixty (60) days after (A) if pursuant to a
Demand Registration Statement, the effective date of any Demand
Registration Statement or (B) if pursuant to a Tranche Request,
the date of the final prospectus used to confirm sales in
connection with the underwritten offering of Tranche Registrable
Securities, and (Y) in the case of all other plans of
distribution, (A) if pursuant to a Demand Registration Statement,
thirty (30) business days after the effective date of such Demand
Registration Statement or (B) if pursuant to a Tranche Request,
thirty (30) business days after the earlier of the effectiveness
of the amendment to the Shelf Registration Statement or the
filing of the amendment or supplement to the prospectus included
in such registration statement required to facilitate such
distribution and the date of the notice required by the last
sentence of Section 4.4(a) hereof if no such amendment or
supplement is so required; and (iii) the termination of Intel
Capital's registration rights pursuant to Section 4.10 hereof;
provided, however, that Micron shall not be required to take any
action that would subject it to the general jurisdiction of the
courts of any jurisdiction in which it is not so subject or to
qualify as a foreign corporation in any jurisdiction where Micron
is not so qualified.
(k) Micron shall furnish to Intel Capital and to each
underwriter engaged in an underwritten offering of Demand
Registrable Securities or Tranche Registrable Securities, a
signed counterpart, addressed to Intel Capital or such
underwriter, of (i) an opinion or opinions of counsel to Micron
(with respect to Micron and securities law compliance by Micron)
and (ii) a comfort letter or comfort letters from Micron's
independent public accountants, each in customary form and
covering such matters of the type customarily covered by opinions
or comfort letters, as the case may be, as Intel Capital or the
managing underwriters may reasonably request.
(l) Micron shall use commercially reasonable efforts to
make appropriate members of its management reasonably available
for due diligence purposes, "road show" presentations and analyst
presentations in connection with any distributions of Demand
Registrable Securities or Tranche Registrable Securities pursuant
to a Demand Registration Statement or a Shelf Registration
Statement.
(m) Micron shall use commercially reasonable efforts to
cause all Demand Registrable Securities and Tranche Registrable
Securities to be listed on each securities exchange on which
similar securities of Micron are then listed.
(n) Micron shall make generally available to its
securityholders, as soon as reasonably practicable, an earnings
statement covering a period of twelve (12) months, beginning
three months after the effective date of any Demand Registration
Statement relating to the distribution of Demand Registrable
Securities or the date of any final prospectus used to confirm
sales in connection with any offering of Tranche Registrable
Securities, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(o) Micron shall take all such other actions either
reasonably necessary or desirable to permit the Registrable
Securities held by Intel Capital to be registered and disposed of
in accordance with the methods of disposition described herein.
19
4.5 Expenses.
(a) All of the out of pocket costs and expenses incurred by
Micron in connection with any registration pursuant to Sections
4.1 and 4.2 (up to $100,000 in the case of a Demand Registration
Statement, $75,000 in the case of a Shelf Registration Statement
and $50,000 in the case of any amendments or supplements required
in connection with a Tranche Request, plus, in all instances, the
actual amount of any filing fees) shall (subject to Section 4.7)
be borne by Intel Capital; provided that Intel Capital shall not
be required to reimburse Micron for compensation of Micron's
officers and employees, regular audit expenses, and normal
corporate costs incurred in connection with such registration.
The costs and expenses of any such registration shall include,
without limitation, the reasonable fees and expenses of Micron's
counsel and its accountants and all other out of pocket costs and
expenses of Micron incident to the preparation, printing and
filing of the registration statement and all amendments and
supplements thereto and the cost of furnishing copies of each
preliminary prospectus, each final prospectus and each amendment
or supplement thereto to underwriters, dealers and other
purchasers of the securities so registered, the costs and
expenses incurred in connection with the qualification of such
securities so registered under the securities or "blue sky" laws
of various jurisdictions, the fees and expenses of Micron's
transfer agent and all other costs and expenses of complying with
the provisions of this Section 4 with respect to such
registration (collectively, the "Registration Expenses").
(b) Micron shall pay all Registration Expenses incurred by
Micron in connection with any registration statements that are
initiated pursuant to Section 4.3 of this Agreement, other than
incremental filing fees associated with the inclusion of the
Registrable Securities in the registration statement. Intel
Capital shall pay all expenses incurred on its behalf with
respect to any registration pursuant to Section 4.3, including,
without limitation, any counsel for Intel Capital and all
underwriting discounts and selling commissions with respect to
the Registrable Securities sold by it pursuant to such
registration statement.
4.6 Indemnification.
(a) In the case of any offering registered pursuant to this
Section 4, Micron hereby indemnifies and agrees to hold harmless
Intel Capital (and its officers and directors), any underwriter
(as defined in the Securities Act) of Registrable Securities
offered by Intel Capital, and each Person, if any, who controls
Intel Capital or any such underwriter within the meaning of
Section 15 of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which any such
Persons may be subject, under the Securities Act or otherwise,
and to reimburse any of such Persons for any legal or other
expenses reasonably incurred by them in connection with
investigating any claims or defending against any actions,
insofar as such losses, claims, damages or liabilities arise out
of or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Section 4, the
prospectus contained therein (during the period that Micron is
required to keep such prospectus current), or any amendment or
supplement thereto, or the omission or alleged omission to state
therein (if so used) a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading or
(b) any violation or alleged violation by Micron of the
Securities Act, the Exchange Act, any
20
federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the offering
covered by such registration statement, except insofar as such
losses, claims, damages or liabilities arise out of or are (i)
based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon information
furnished to Micron in writing by Intel Capital or any
underwriter for Intel Capital specifically for use therein, or
(ii) made in any preliminary prospectus, and the prospectus
contained in the registration statement as declared effective or
in the form filed by Micron with the SEC pursuant to Rule 424
under the Securities Act shall have corrected such statement or
omission and a copy of such prospectus shall not have been sent
or otherwise delivered to such Person at of prior to the
confirmation of such sale to such Person.
(b) By requesting registration under this Section 4, Intel
Capital agrees, if Registrable Securities held by Intel Capital
are included in the securities as to which such registration is
being effected, and each underwriter shall agree, in
substantially the same manner and to substantially the same
extent as set forth in the preceding paragraph, to indemnify and
to hold harmless Micron (and its directors and officers) and each
Person, if any, who controls Micron within the meaning of Section
15 of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which any, of such Persons may
be subject under the Securities Act or otherwise, and to
reimburse any of such Persons for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending against any such losses, claims, damages or
liabilities, but only to the extent it arises out of or is based
upon (a) an untrue statement or alleged untrue statement or
omission or alleged omission of a material fact in any
registration statement under which the Registrable Securities
were registered under the Securities Act pursuant to this Section
4, any prospectus contained therein, or any amendment or
supplement thereto, which was based upon and made in conformity
with information furnished to Micron in writing by Intel Capital
or any underwriter for Intel Capital expressly for use therein or
(b) any violation or alleged violation by Intel Capital of the
Securities Act, the Exchange Act, any federal or state securities
law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any federal or state securities law in
connection with the offering covered by such registration
statement.
(c) Each party entitled to indemnification under this
Section 4.6 (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld), and
the Indemnified Party may participate in such defense at its own
expense, provided, that that an Indemnified Party shall have the
right to retain its own counsel, with the fees and expenses to be
paid by the Indemnifying Party, to the extent that representation
of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or
potential conflict of interests between such Indemnified Party
and any other party represented by such counsel in such
proceeding, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this
Section 4 unless such failure resulted in actual material
detriment to the Indemnifying Party. No Indemnifying Party, (i)
in the defense of any such claim or litigation, shall, except
with the
21
consent of each Indemnified Party, which consent shall not be
unreasonably withheld, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to
such claim or litigation, or (ii) shall be liable for amounts
paid in any settlement if such settlement is effected without the
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld.
(d) In order to provide for just and equitable contribution
to joint liability under the Securities Act or the Exchange Act
in any case in which either (i) any Person exercising rights
under this Agreement, or any controlling person of any such
Person, makes a claim for indemnification pursuant to this
Section 4 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right
of appeal) that such indemnification may not be enforced in
such case notwithstanding the fact that this Section 4 provides
for indemnification in such case, or (ii) contribution under the
Securities Act or the Exchange Act may be required on the part of
any such selling Person or any such controlling Person in
circumstances for which indemnification is provided under this
Section 4; then, and in each such case, Micron and such Person
will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from
others) in such proportion so that such Person is responsible for
the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold
under the registration statement bears to the public offering
price of all securities offered by and sold under such
registration statement, and Micron and other selling Persons are
responsible for the remaining portion; provided, however, that in
any such case: (A) no such Person will be required to contribute
any amount in excess of the public offering price of all such
Registrable Securities offered and sold by such Person pursuant
to such registration statement; and (B) no Person or entity
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to
contribution from any Person or entity who was not guilty of such
fraudulent misrepresentation.
4.7 Issuances by Micron or Other Holders. As to each
registration or distribution referred to in Sections 4.1 and 4.2,
additional shares of the Common Stock to be sold for the account
of Micron or other holders may be included therein, provided that
the inclusion of such securities in such registration or
distribution may be conditioned or restricted if, in the opinion
of the Demand/Tranche Managing Underwriters, marketing factors
require a limitation of the number of shares to be underwritten.
The Registration Expenses incurred by Micron, Intel Capital and
any other holders participating in such registration or
distribution shall be borne by Micron, Intel Capital and any
other holders participating in such registration or distribution
in proportion to the aggregate number of shares to be sold by
Micron, Intel Capital and such other holders.
4.8 Information by Intel Capital. Intel Capital shall
furnish to Micron such information regarding Intel Capital in the
distribution of Registrable Securities proposed by Intel Capital
as Micron may reasonably request in writing and as shall be
required in connection with any registration, qualification or
compliance referred to in this Section 4.
22
4.9 Market Standoff Agreements.
(a) In connection with the public offering by Micron of any
of its securities, Intel Capital agrees that, upon the request
the underwriters managing any underwritten offering of Micron
securities, Intel Capital shall agree in writing (the "Intel
Capital Public Offering Lock Up") that neither Intel Capital (nor
any Affiliate of Intel Capital) will, directly or indirectly,
offer to sell, contract to sell, make any short sale of, or
otherwise sell, dispose of, loan, gift, pledge or grant any
options or rights with respect to, any securities of Micron
(other than those included in such registration statement, if
any) now or hereafter acquired by Intel Capital (or any Affiliate
of Intel Capital) or with respect to which Intel Capital (or any
Affiliate of Intel Capital) has or hereafter acquires the power
of disposition without the prior written consent of Micron) and
such underwriters for such period of time (not to exceed fourteen
(14) days prior to the date such offering is expected to commence
and ninety (90) days after the date of the final prospectus
delivered to the underwriters for use in confirming sales in such
offering) as may be requested by Micron and the underwriters,
except that Intel Capital and its Affiliates shall be permitted
to enter into transactions that have the effect of maintaining or
continuing pre existing Hedging Transaction positions by
continuing, renewing or replacing any such positions on
substantially equivalent terms; provided, however, that in no
event shall Intel Capital (or any Affiliate of Intel Capital) be
required to enter into such an agreement more than once during
any twelve (12) month period. Intel Capital agrees that Micron
may instruct its transfer agent to place stop transfer notations
in its records to enforce the provisions of the Intel Capital
Public Offering Lock Up contained in this Section 4.9(a).
(b) In connection with any proposed public offering by
Intel Capital of any Registrable Securities, Micron agrees that,
upon the request of Intel Capital or the underwriters managing
any underwritten offering of Intel Capital's securities, Micron
shall agree in writing the ("Micron Public Offering Lock Up")
that neither Micron (nor any Affiliate of Micron) will, directly
or indirectly, offer to sell, contract to sell, make any short
sale of, or otherwise sell, dispose of, loan, gift, pledge or
grant any options or rights with respect to, any securities of
Micron (other than those included in such registration statement,
if any, or grants of stock options or issuances of Common Stock
upon the exercise of outstanding stock options under Micron's
existing employee benefit plans) now or hereafter acquired by
Micron (or any Affiliate of Micron) or with respect to which
Micron (or any Affiliate of Micron) has or hereafter acquires the
power of disposition without the prior written consent of Intel
Capital and such underwriters for such period of time (not to
exceed fourteen (14) days prior to the date such offering is
expected to commence and ninety (90) days) after the date of the
final prospectus delivered to the underwriters for use in
confirming sales in such offering) as may be requested by Intel
Capital and the underwriters; provided, however, that neither
Micron (nor any Affiliate of Micron) shall be bound by such
Micron Public Offering Lock Up more than once during any 180 day
period.
4.10 Termination.
(a) The provisions of this Section 4 (other than Sections
4.5 and 4.6) shall terminate upon the earliest to occur of: (i)
the fifth anniversary date of this Agreement, (ii) such time as
Intel Capital (and any Affiliates of Intel Capital) beneficially
own in the aggregate less than 5,000,000 shares of Common Stock
(including all Shares issuable upon exercise, exchange or
23
conversion of Rights and any Additional Adjustment Rights), and
(iii) in the case of Sections 4.1 through 4.4, Section 4.7 and
Section 4.8, the end of a period of twenty (20) consecutive
trading days commencing any time after August 29, 2004 during
which on each such trading day Intel Capital would have been
permitted to sell under either (x) the volume limitations of Rule
144(e) (assuming satisfaction of the holding period required
under Rule 144(d) (1)), or (y) under Rule 144(k), as applicable,
a number of shares of Common Stock at least equal to 110% of the
shares of Common Stock underlying the Rights acquired by Intel
Capital pursuant to the Securities Purchase Agreement (and any
Additional Adjustment Rights) that it continued to own on such
trading day (assuming compliance by Intel Capital with all other
applicable requirements of Rule 144, including the notice and
manner of sale requirements set forth in Rule 144(f) and (h),
respectively).
(b) Notwithstanding any termination of Section 4 pursuant
to the provisions of subsection (a) of this Section 4.10, if
Additional Adjustment Rights are issued to Intel Capital or its
Affiliates, the provisions of this Section 4 shall remain
effective, or become effective if previously terminated pursuant
to subsection (a) above, as of the date of the issuance (the
"Issuance Date") of such Additional Adjustment Rights, with
respect to such Additional Adjustment Rights and the underlying
Common Stock. The provisions of this Section 4 (other than
Sections 4.5 and 4.6) shall terminate with respect to the
Additional Adjustment Rights and the underlying Common Stock upon
the earliest to occur of: (i) the fifth anniversary of the
Issuance Date, and (ii) such time that all Registrable Securities
held by and issuable to Intel Capital (and any Affiliates of
Intel Capital) may be sold in a three-month period under Rule
144.
SECTION 5
MISCELLANEOUS
5.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware as applied to
contracts entered into solely between residents of, and to be
performed entirely within, such state.
5.2 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. This Agreement may not
be assigned by a party without the prior written consent of the
other party; provided that, without the consent of Micron, Intel
Capital may assign this Agreement (and the rights and obligations
hereunder) to any Qualified Subsidiary or Parent in connection
with a transfer of Voting Securities of Micron to such Affiliate
of Intel Capital pursuant to Section 3.1(b), and without the
consent of Intel Capital, Micron may assign all or part of this
Agreement (and the rights and obligations hereunder) to the
successor or an assignee of all or substantially all of Micron's
business; provided that, in each case, such assignee expressly
assumes the relevant obligations of this Agreement (by a written
instrument delivered to the other party, in form and substance
reasonably acceptable to it) and, notwithstanding such
assignment, the parties hereto shall each continue to be bound by
all of their respective obligations hereunder. This Agreement is
not intended and shall not be construed to create any rights or
remedies in any parties other than Intel Capital and Micron and
no Person shall assert any rights as third party beneficiary
hereunder.
24
5.3 Entire Agreement; Amendment. This Agreement contains
the entire understanding and agreement between the parties with
regard to the subject matter hereof and thereof and supersedes
all prior agreements and understandings among the parties
relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or
termination is sought.
5.4 Notices and Dates.
(a) All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall
be delivered personally (including by courier) or given by
facsimile transmission to the parties at the following addresses
(or to such other address as a party may have specified by notice
given to the other pursuant to this provision) and shall be
deemed given when so received:
if to Micron, to:
Micron Technology, Inc.
8000 South Federal Way
P.O. Box 6
Boise, Idaho 83716-9632
Attention: Roderic W. Lewis, Esq.
General Counsel
Facsimile: (208) 368-4540
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Attention: John A. Fore, Esq.
Facsimile: (650) 493-6811
if to Intel Capital, to:
Intel Capital Corporation
c/o Intel Corporation
Attn: Intel Capital Portfolio Manager
2200 Mission College Blvd., M/S RN6-46
Santa Clara, California 95052
Facsimile: (408) 765-6038
25
with a copy by e-mail to:
portfolio.manager@intel.com
All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof
if received prior to 5 p.m. in the place of receipt and such day
is a business day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed not to have been
received until the next succeeding business day in the place of
receipt. Each Person making a communication hereunder by
facsimile shall promptly confirm by telephone to the Person to
whom such communication was addressed each communication made by
it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such
communication. A party may change or supplement the addresses
given above, or designate additional addresses, for purposes of
this Section 5.4 by giving the other party written notice of the
new address in the manner set forth above.
(b) In the event that any date provided for in this
Agreement falls on a Saturday, Sunday or legal holiday, such date
shall be deemed extended to the next business day.
5.5 Language Interpretation. In the interpretation of this
Agreement, unless the context otherwise requires, (a) words
importing the singular shall be deemed to import the plural and
vice versa, (b) words denoting gender shall include all genders,
(c) references to Persons shall include corporations or other
entities and vice versa, and (d) references to parties, sections,
schedules, paragraphs and exhibits shall mean the parties,
sections, schedules, paragraphs and exhibits of and to this
Agreement, unless otherwise indicated by the context.
5.6 Table of Contents; Titles; Headings. The table of
contents and Section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction
or interpretation of this Agreement. All references herein to
Sections, unless otherwise identified, are to Sections of this
Agreement.
5.7 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the
same agreement, and shall become a binding agreement when one or
more counterparts have been signed by each party and delivered to
the other party.
5.8 Severability. If any provision of this Agreement or
portion thereof is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
5.9 Injunctive Relief. Intel Capital, on the one hand, and
Micron, on the other, acknowledge and agree that irreparable
damage may occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to seek an injunction or
injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specific performance of the terms and
provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other
remedy to which they may be entitled at law or equity.
26
5.10 Dispute Resolution. The parties agree to negotiate in
good faith to resolve any dispute between them regarding this
Agreement. If the negotiations do not resolve the dispute to the
reasonable satisfaction of both parties, then each party shall
nominate one senior officer of the rank of Vice President or
higher as its representative. These representatives shall, within
thirty (30) days of a written request by either party to call
such a meeting, meet in person and alone (except for one
assistant for each party) and shall attempt in good faith to
resolve the dispute. If the disputes cannot be resolved by such
senior managers in such meeting, the parties agree that they
shall, if requested in writing by either party, meet within
thirty (30) days after such written notification for one day with
an impartial mediator and consider dispute resolution
alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days
after the one day mediation, either party may begin litigation
proceedings. This procedure shall be a prerequisite before taking
any additional action hereunder.
27
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective authorized officers
as of the date aforesaid.
INTEL CAPITAL CORPORATION MICRON TECHNOLOGY, INC.
By:/s/Arvind Sodhani By:/s/W. G. Stover, Jr.
----------------------- ------------------------
Name: Arvind Sodhani Name: W. G. Stover, Jr.
Title: Vice President Title: Vice President
and Treasurer and Chief
Financial Officer
[Signature Page to Securities Rights and Restrictions Agreement]
1
EXHIBIT 3
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER AS TO THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION. THE SECURITIES REPRESENTED BY THIS
INSTRUMENT ARE SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING ANY
SALE, PLEDGE OR OTHER HYPOTHECATION, SET FORTH IN AN AGREEMENT
BETWEEN THE ISSUER AND INTEL CAPITAL CORPORATION, A COPY OF WHICH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS INSTRUMENT TO THE SECRETARY OF THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
STOCK RIGHTS AGREEMENT
This STOCK RIGHTS AGREEMENT is dated as of September 24,
2003 (this "Agreement") and entered into by and between Micron
Technology, Inc., a Delaware corporation (the "Company"), and
Intel Capital Corporation, a Cayman Islands corporation ("Intel
Capital"). All capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Securities
Purchase Agreement (as hereinafter defined).
WHEREAS, pursuant to a Securities Purchase Agreement, dated
as of September 24, 2003 (the "Securities Purchase Agreement"),
by and between the Company and Intel Capital, the Company is
issuing and selling to Intel Capital, in consideration of the
payment of four hundred and forty nine million nine hundred and
ninety nine thousand nine hundred and ninety eight dollars and
five cents ($449,999,998.05), certain stock rights, which provide
Intel Capital the right to acquire, for no additional
consideration, shares of Common Stock of the Company;
WHEREAS, the Company proposes to issue to Intel Capital
certain rights (the "Rights") to purchase up to an aggregate of
33,860,045 shares (subject to adjustment as set forth in this
Agreement) of Common Stock (the shares of Common Stock and other
securities issuable upon exercise of the Rights being referred to
herein as the "Rights Shares");
WHEREAS, the term "Rights" hereunder shall also refer to any
Additional Adjustment Rights (as defined in the Securities
Purchase Agreement), if any, issued by the Company pursuant to
the Securities Purchase Agreement; and
WHEREAS, the Company and Intel Capital are concurrently
entering into a Securities Rights and Restrictions Agreement,
dated as of the date hereof (the "Rights and Restrictions
Agreement"), pursuant to which the Company and Intel Capital have
agreed, among other things, to certain rights and restrictions
with respect to the transfer of the Rights and Rights Shares.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree as
follows:
2
SECTION 1. Rights Certificates. The Company will issue and
deliver to Intel Capital a certificate or certificates evidencing
the Rights (the "Rights Certificates") pursuant to and in
accordance with the terms of the Securities Purchase Agreement.
Such certificate or certificates shall be substantially in the
form set forth as Exhibit A attached hereto. Rights Certificates
shall be dated the date of issuance by the Company.
SECTION 2. Execution of Rights Certificates. Rights
Certificates shall be signed on behalf of the Company by its
Chief Executive Officer, President or a Vice President and
attested by its Secretary or an Assistant Secretary.
SECTION 3. Registration. The Company shall number and
register the Rights Certificates in a register (the "Rights
Register") as they are issued. The Company may deem and treat
the registered holder(s) from time to time of the Rights
Certificates (the "Holders") as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing
thereon made by anyone) for all purposes and shall not be
affected by any notice to the contrary. The Rights shall be
registered initially in such name or names as Intel Capital shall
designate.
SECTION 4. Restrictions on Transfer; Registration of
Transfers and Exchanges. Subject to any applicable conditions to
transfer contained in the Securities Purchase Agreement or the
Rights and Restrictions Agreement, the Company shall from time to
time register the transfer of any outstanding Rights Certificates
in the Rights Register to be maintained by the Company upon
surrender of the Rights Certificates accompanied by a written
instrument or instruments of transfer in form reasonably
satisfactory to the Company, duly executed by the registered
holders thereof, the duly appointed legal representative thereof
or a duly authorized attorney. Upon any such registration of
transfer, a new Rights Certificate shall be issued to the
transferee holder(s) and the surrendered Rights Certificate shall
be canceled and disposed of by the Company.
Except as provided in the immediately following sentence, no
person or entity holding Rights may transfer, sell, assign,
devise or bequeath any of such holder's interest in his, her or
its Rights, and the Company shall not register the transfer of
such Rights, whether by sale, assignment, gift, devise, bequest,
appointment or otherwise, except to a Permitted Transferee (as
defined below) of such holder. Upon the transfer by any holder
of a Right to a person or entity who is not a Permitted
Transferee, then such Right shall automatically be exchanged or
converted for shares of Common Stock at the then effective
Exchange Ratio. For purposes of this Section 4, the term
"Permitted Transferee" shall mean (i) the Company, (ii) a
Qualified Subsidiary (provided that if at any time such Qualified
Subsidiary ceases to be a Qualified Subsidiary such Rights will
automatically convert into Common Stock), (iii) Intel Capital or
(iv) Intel Corporation, a Delaware corporation and parent of
Intel Capital. Notwithstanding anything to the contrary set
forth herein, the transfer agent shall not be required to
register the transfer of such Rights or the Common Stock into
which they are automatically exchanged unless concurrently with
such transfer the certificate representing such Rights to be so
transferred shall be surrendered and exchanged for a certificate
representing the applicable number of shares of Common Stock into
which such Rights are automatically exchanged by virtue of such
transfer.
Subject to Section 4.10 of the Securities Purchase
Agreement, nothing in this Section 4 shall be construed to
prohibit Hedging Transactions (as defined in the Rights and
Restrictions Agreement) with respect to securities of Micron
provided that such transactions do not result in
3
non-compliance with the foregoing restrictions insofar such
provisions relate to, and are limited in their application to,
the Transaction Related Securities (as defined in the Rights and
Restrictions Agreement).
SECTION 5. Exercise of Rights. Subject to the terms of this
Agreement, each holder of a Rights Certificate shall have the
right, which may be exercised commencing the date hereof and
until 5:00 p.m., California time, on December 31, 2063 (the
"Expiration Date") to receive from the Company the number of
fully paid and nonassessable Rights Shares (and such other
consideration) which the holder may at the time be entitled to
receive on exercise of such Rights. Any Rights not exercised
prior to 5:00 p.m., California time, on the Expiration Date shall
become void and all rights thereunder and all rights in respect
thereof under this Agreement shall cease as of such time. The
amounts payable to the Company under the Securities Purchase
Agreement shall be the exercise price of the Rights, and no
additional consideration is payable upon exercise of the Rights.
Rights may be exercised upon surrender to the Company at its
office designated for such purpose (as provided in Section 12
hereof) of the Rights Certificate or Certificates to be exercised
with the exercise notice attached thereto duly filled in and
signed.
Subject to the provisions of Section 7 hereof, upon such
surrender of Rights Certificates in accordance with the terms
hereof, the Company shall issue and cause to be delivered, as
promptly as practicable, to or upon the written order of the
holder and in such name or names as such holder may designate a
certificate or certificates for the number of full Rights Shares
issuable upon the exercise of such Rights (and such other
consideration as may be deliverable upon exercise of such Rights)
and cash for fractional Rights Shares as provided in Section 6
hereof. The certificate or certificates for such Rights Shares
shall be deemed to have been issued and the person so named
therein shall be deemed to have become a holder of record of such
Rights Shares as of the date of the surrender of such Rights,
irrespective of the date of delivery of such certificate or
certificates for Rights Shares (the "Exercise Date").
Each Rights Certificate shall be exercisable, at the
election of the holder thereof, either in full or from time to
time in part. In the event that a Rights Certificate is
exercised in respect of fewer than all of the Rights Shares
issuable on such exercise at any time prior to the date of
expiration of the Rights, a new certificate evidencing the
remaining Rights will be issued and delivered pursuant to the
provisions of this Section 5 and Section 2 hereof.
All Rights Certificates surrendered upon exercise of Rights
shall be canceled and disposed of by the Company. The Company
shall keep copies of this Agreement and any notices given or
received hereunder available for inspection by the holders during
normal business hours at its office.
Notwithstanding the above, Rights may not be exercised for
Common Stock unless and until the holder shall submit to the
Company either evidence of compliance with the filing
requirements of the HSR Act or a certificate of an officer of the
holder to the effect that the acquisition of Common Stock upon
exercise of the Rights does not require any filing under the HSR
Act.
4
In the event that a Qualified Subsidiary that is a holder of
Rights ceases at any time to be a Qualified Subsidiary, the
Rights so held shall represent only the right to receive the
Common Stock in to which they are exchangeable, and the Company
shall deliver the shares of Common Stock issuable upon exchange
thereof upon (i) surrender of the Rights Certificates to the
Company, (ii) if required, the holder furnishing appropriate
endorsements and transfer documents, and (iii) if required by
Section 7, payment of all transfer and similar taxes if the
shares of Common Stock are not being issued to the holder.
SECTION 6. Number of Rights; Adjustments to Rights;
Dividends; Fractional Rights Shares.
(a) Exchange Ratio. Each Right represents the right to
receive one share of Common Stock, as adjusted in the manner
provided below ("Exchange Ratio").
(b) Fractional Shares. No fractional shares of Common Stock
shall be issued upon the conversion, exchange or exercise of
Rights. In lieu of any fractional shares to which the holder
would otherwise be entitled, the Company shall pay cash equal to
such fraction multiplied by the then fair market value of one
share of Common Stock, as determined in good faith by the Board
of Directors. The Company shall, as soon as practicable
thereafter, cause its transfer agent to issue and deliver at such
office to such holder of Rights Certificates or to such holder's
nominee or nominees, a certificate or certificates for the number
of shares of Common Stock to which such holder or such holder's
nominee shall be entitled as aforesaid, together with cash in
lieu of any fraction of a share. The person or persons entitled
to receive the shares of Common Stock issuable upon conversion,
exchange or exercise of Rights shall be treated for all purposes
as the record holder or holders of such shares of Common Stock on
the Exercise Date.
(c) Adjustment for Stock Splits, etc. In case of any
subdivision (by stock split, stock dividend or otherwise) of the
Common Stock, the Exchange Ratio shall be proportionately
increased, and conversely in the case of combination of the
Common Stock (by reverse stock split or otherwise), the Exchange
Ratio shall be proportionately decreased, with such adjustment to
the Exchange Ratio to be effective immediately after the opening
of business on the day following the day which such subdivision
or combination, as the case may be, becomes effective. In case
of any reorganization, reclassification or change of shares of
the Common Stock (other than a change in par value or from par
value to no par value as a result of a subdivision or
combination), or in the case of any consolidation of the Company
with one or more corporations or a merger of the Company with
another corporation (other than a consolidation or merger in
which the Company is the resulting or surviving corporation and
which does not result in any reclassification or change of
outstanding shares of Common Stock), provision shall be made so
that each holder of a Right shall have the right at any time
thereafter as nearly as practicable, so long as the exercise or
exchange rights hereunder with respect thereto would exist had
such event not occurred, to exercise or exchange such Right into
the kind and amount of shares of stock and other securities and
properties (including cash) receivable upon such reorganization,
reclassification, change, consolidation or merger by a holder of
the number of shares of Common Stock into which the Rights might
have been converted immediately prior to such reorganization,
reclassification, change, consolidation or merger. In the event
of such a reorganization, reclassification, change, consolidation
or merger, effective provision shall be made in the certificate
of incorporation of the resulting or surviving corporation or
otherwise for the
5
protection of the conversion, exercise or exchange rights of the
holders of Rights that shall be applicable, as nearly as
reasonably may be, to any such other shares of stock and other
securities and property (including cash) deliverable upon
exercise of the Rights that might have been issued immediately
prior to such event.
(d) Dividends. In the event that the Company declares a
dividend or other distribution in respect of its Common Stock
(other than a dividend payable in shares of Common Stock), the
holders of Rights hereunder shall be entitled to receive such
dividend or distribution as if the Rights had been exercised or
converted immediately prior to the record date for such dividend
or distribution.
(e) Liquidation. In the event that the Company liquidates,
dissolves or winds-up, the holders of Rights hereunder shall be
entitled to receive such proceeds, securities or other property
as if the Rights had been exercised or converted immediately
prior to the date on which such liquidation, dissolution or
winding-up is to take place.
(f) Rights Certificates Following Adjustments.
Irrespective of any adjustments in the number or kind of shares
issuable upon the exercise or conversion of the Rights, Rights
theretofore or thereafter issued may continue to express the same
number and kind of shares as are stated in the Rights Certificate
initially issuable pursuant to this Agreement.
SECTION 7. Payment of Taxes. The Company will pay all
documentary stamp taxes and other governmental charges (excluding
all foreign, federal or state income, franchise, property,
estate, inheritance, gift or similar taxes) in connection with
the issuance or delivery of the Rights hereunder, as well as all
such taxes attributable to the initial issuance or delivery of
Rights Shares upon the exercise or exchange of Rights. The
Company shall not, however, be required to pay any tax that may
be payable in respect of any subsequent transfer of the Rights or
any transfer involved in the issuance and delivery of Rights
Shares in a name other than that in which the Rights to which
such issuance relates were registered, and, if any such tax would
otherwise be payable by the Company, no such issuance or delivery
shall be made unless and until the person requesting such
issuance has paid to the Company the amount of any such tax, or
it is established to the reasonable satisfaction of the Company
that any such tax has been paid.
SECTION 8. No Redemption. The Rights shall not be
redeemable.
SECTION 9. Mutilated or Missing Rights Certificates. If a
mutilated Rights Certificate is surrendered to the Company, or if
the holder of a Rights Certificate claims and submits an
affidavit or other evidence satisfactory to the Company to the
effect that the Rights Certificate has been lost, destroyed or
wrongfully taken, the Company shall issue a replacement Rights
Certificate. If required by the Company, such holder must
provide an indemnity bond, or other form of indemnity, sufficient
in the judgment of the Company to protect the Company from any
loss which it may suffer if a Rights Certificate is replaced. If
Intel Capital or any other institutional holder (or nominee
thereof) is the owner of any such lost, stolen or destroyed
Rights Certificate, then the affidavit of an authorized officer
of such owner, setting forth the fact of loss, theft or
destruction and of its ownership of the Rights Certificate at the
time of such loss, theft or destruction shall be accepted as
satisfactory evidence thereof, and no further indemnity shall be
required as a condition to the execution and delivery of a new
Rights Certificate other than the
6
unsecured written agreement of such owner to indemnify the
Company from any loss which it may suffer if a Rights Certificate
is replaced.
SECTION 10. Reservation of Rights Shares. The Company shall
at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued
Common Stock, for the purpose of enabling it to satisfy any
obligation to issue Rights Shares upon exercise or exchange of
Rights, the maximum number of shares of Common Stock which may
then be deliverable upon the exercise or exchange of all
outstanding Rights. To the extent that the Rights Shares are
listed on any national securities exchange, the Company shall use
commercially reasonable efforts to cause all such securities
issued or reserved for issuance to be listed on such exchange
upon official notice of issuance.
The Company or, if appointed, the transfer agent for the
Common Stock and each transfer agent for any shares of the
Company's capital stock issuable upon the exercise or exchange of
any of the Rights (collectively, the "Transfer Agent") will be
irrevocably authorized and directed at all times to reserve such
number of authorized shares as shall be required for such
purpose. The Company shall keep a copy of this Agreement on file
with any such Transfer Agent. The Company will supply any such
Transfer Agent with duly executed certificates for such purposes
and will provide or otherwise make available all other
consideration that may be deliverable upon exercise or exchange
of the Rights. The Company will furnish any such Transfer Agent
a copy of all notices of adjustments and certificates related
thereto, transmitted to each holder pursuant to Section 11 or
Section 12 hereof.
The Company covenants that all Rights Shares and other
capital stock issued upon exercise of Rights will, upon issuance
thereof, be validly authorized and issued, fully paid,
nonassessable, free of preemptive rights and free, subject to
Section 7 hereof, from all taxes, liens, charges and security
interests with respect to the issue thereof.
SECTION 11. Notices to Rights Holders. Upon any event
affecting the number of shares of Common Stock receivable upon
exercise or exchange of Rights, the Company shall promptly
thereafter give to each of the holders at its address appearing
on the Rights Register written notice of such events and the
effect thereof on the Rights and the Rights Shares in accordance
with the provisions of this Section 11. Where appropriate, such
notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this
Section 11. The Company shall also provide notice to the holders
of Rights of record dates or events with respect to which notice
is given to other stockholders of the Company. Such notice shall
be given at the same time as notice is given to other
stockholders. The failure to give the notice required by this
Section 11 or any defect therein shall not affect the legality or
validity of any distribution, right, option, rights,
consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up or the vote on any action.
Nothing contained in this Agreement or in any Rights
Certificate shall be construed as conferring upon the holders
(prior to the exercise or exchange of such Rights) the right to
vote, to consent or to receive notice as a stockholder in respect
of the meetings of stockholders or the election of Directors of
the Company or any other matter, or any rights whatsoever as
stockholders of the Company; provided, however, that nothing in
the foregoing provision is intended to detract from any rights
explicitly granted to any holder hereunder.
7
SECTION 12. Notices to the Company and Rights Holders.
Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this
Agreement shall be in writing and shall be delivered to the other
party (a) in person; (b) by facsimile to the address and number
set forth below, when promptly followed up by another of the
delivery methods permitted by this Section 12; (c) by U.S. mail,
registered or certified, return receipt requested, postage
prepaid and addressed to the other party as set forth below; or
(d) by a national-recognized overnight delivery service that
keeps records of deliveries and attempted deliveries (such as
FedEx), postage prepaid, addressed to the parties as set forth
below with next-business-day delivery guaranteed, provided that
the sending party receives a confirmation of delivery from the
delivery service provider.
To Intel Capital To the Company
c/o Intel Corporation Micron Technology, Inc.
2200 Mission College Blvd, 8000 South Federal Way
M/S RN6-46 P.O. Box 6
Santa Clara, California 95052 Boise, Idaho 83716-9632
Attn: Intel Capital Portfolio Attn: Roderic W. Lewis, Esq.
Manager
Fax Number: (408) 765-6038 Fax Number: (208) 368-4540
with copies by email to: with a copy to:
portfolio.manager@intel.com Wilson Sonsini Goodrich &
Rosati
650 Page Mill Road
Palo Alto, California 94304
Attn: John A. Fore, Esq.
Fax Number: (650) 493-6811
A party may change or supplement the addresses given above,
or designate additional addresses, for purposes of this Section
12 by giving the other party written notice of the new address in
the manner set forth above.
SECTION 13. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company shall bind
and inure to the benefit of its respective successors and assigns
hereunder.
SECTION 14. Termination. This Agreement shall terminate on
the date on which no Rights remain outstanding; provided,
however, that notwithstanding any prior termination of this
Agreement pursuant to this Section 14, if Additional Adjustment
Rights are issued to Intel Capital or its Affiliates, this
Agreement shall become effective as of the date of the issuance
of such Additional Adjustment Rights with respect to such
Additional Adjustment Rights, and this Agreement shall terminate
on the date on which no Additional Adjustment Rights remain
outstanding.
8
SECTION 15. Governing Law. This Agreement shall be governed
in all respects by and construed in accordance with the laws of
the State of Delaware without regard to provisions regarding
choice of laws.
SECTION 16. Benefits of This Agreement; No Impairment.
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and the holders any
legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of
the Company and the holders. The Company shall not take any
action which would have the effect of materially impairing the
rights, privileges and preferences of the holders of the Rights
set forth herein.
SECTION 17. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
SECTION 18. Amendments and Waivers. No provision of this
Agreement may be amended or waived except by an instrument in
writing signed by the party sought to be bound; provided, that
any amendment or waiver sought from the holders of any provision
of this Agreement which affects holders generally shall be given
by holders of at least a majority of the Rights outstanding (or,
in the case of amendments or waivers affecting holders of Rights
Shares generally, by holders of at least a majority of the Rights
and Rights Shares, taken as one class, with each Right and each
Rights Share representing the right to one vote). Any amendment
or waiver so given shall be binding on all holders. No failure
or delay by any party in exercising any right or remedy hereunder
shall operate as a waiver thereof, and a waiver of a particular
right or remedy on one occasion shall not be deemed a waiver of
any other right or remedy or a waiver of the same right or remedy
on any subsequent occasion.
SECTION 19. Legal Fees. In the event of any action at law,
suit in equity or arbitration proceeding in relation to this
Agreement or any units or securities of the Company issued or to
be issued, the prevailing party, shall be paid by the other party
a reasonable sum for attorney's fees and expenses for such
prevailing party.
SECTION 20. Dispute Resolution. The parties agree to
negotiate in good faith to resolve any dispute between them
regarding this Agreement. If the negotiations do not resolve the
dispute to the reasonable satisfaction of both parties, then each
party shall nominate one senior officer of the rank of Vice
President or higher as its representative. These representatives
shall, within thirty (30) days of a written request by either
party to call such a meeting, meet in person and alone (except
for one assistant for each party) and shall attempt in good faith
to resolve the dispute. If the disputes cannot be resolved by
such senior managers in such meeting, the parties agree that they
shall, if requested in writing by either party, meet within
thirty (30) days after such written notification for one day with
an impartial mediator and consider dispute resolution
alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days
after the one day mediation, either party may begin litigation
proceedings. This procedure shall be a prerequisite before
taking any additional action hereunder.
9
SECTION 21. Certain Definitions.
For purposes of this Agreement the following terms shall
have the meanings set forth below.
Qualified Subsidiary. Qualified Subsidiary shall have the
meaning ascribed to such term in the Rights and Restrictions
Agreement.
Securities Purchase Agreement. Securities Purchase
Agreement shall mean that certain Securities Purchase Agreement,
dated September 24, 2003, as amended from time to time, by and
between the Company and Intel Capital.
Securities Rights and Restrictions Agreement. Securities
Rights and Restrictions Agreement shall mean that certain
Securities Rights and Restrictions Agreement, dated as of
September 24, 2003, as amended from time to time, by and between
the Company and Intel Capital.
10
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
INTEL CAPITAL CORPORATION MICRON TECHNOLOGY, INC.
By:/s/Arvind Sodhani By:/s/W. G. Stover, Jr.
----------------------- ------------------------
Name: Arvind Sodhani Name: W. G. Stover, Jr.
Title: Vice President Title: Vice President
and Treasurer and Chief
Financial Officer
{Signature Page to Stock Rights Agreement}
A-1
EXHIBIT A
[Form of Rights Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER AS TO THE AVAILABILITY OF AN EXEMPTION
FROM REGISTRATION. THE SECURITIES REPRESENTED BY THIS INSTRUMENT
ARE SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE,
PLEDGE OR OTHER HYPOTHECATION, SET FORTH IN AN AGREEMENT BETWEEN
THE ISSUER AND INTEL CORPORATION, A COPY OF WHICH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS INSTRUMENT TO THE SECRETARY OF THE COMPANY AT ITS
PRINCIPAL EXECUTIVE OFFICES.
No. R1 33,860,045 Rights
RIGHTS CERTIFICATE
MICRON TECHNOLOGY, INC.
This Rights Certificate certifies that Intel Capital
Corporation, or registered assigns, is the registered holder of
the number of Rights (the "Rights") set forth above to receive
Common Stock, $.10 par value per share (the "Common Stock"), of
Micron Technology, Inc., a Delaware corporation (the "Company").
Each Right entitles the holder upon exercise or exchange to
receive from the Company one fully paid and nonassessable share
(subject to adjustment as provided in the Rights Agreement
referred to below) of Common Stock (a "Rights Share"), upon
surrender of this Rights Certificate at the office of the Company
designated for such purpose, but only subject to the conditions
set forth herein and in the Rights Agreement referred to below.
The number of Rights Shares issuable upon exercise or exchange of
the Rights are subject to adjustment upon the occurrence of
certain events, as set forth in the Rights Agreement. The Rights
are exercisable or exchangeable at any time prior to 5:00 p.m.,
California time, on December 31, 2063.
A-2
The Rights evidenced by this Rights Certificate are part of
a duly authorized issue of Rights, and are issued or to be issued
pursuant to a Rights Agreement dated as of September 24, 2003
(the "Rights Agreement"), duly executed and delivered by the
Company, which Rights Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of
rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning
the registered holders or registered holder) of the Rights.
Capitalized terms used herein and not defined shall have the
meanings ascribed to them in the Rights Agreement. A copy of the
Rights Agreement may be obtained by the holder hereof upon
written request to the Company.
The holder of Rights evidenced by this Rights Certificate
may convert, exercise or exchange such Rights under and pursuant
to the terms and conditions of the Rights Agreement by
surrendering this Rights Certificate, with the form of notice of
exercise properly completed and executed at the office of the
Company designated for such purpose. Notwithstanding the above,
Rights may not be converted, exercised or exchanged for Common
Stock unless and until the holder shall submit to the Company
either evidence of compliance with the filing requirements of the
HSR Act or a certificate of an officer of the holder to the
effect that the acquisition of Common Stock upon exercise of the
Rights does not require any filing under the HSR Act.
If upon any exercise of Rights evidenced hereby the number
of Rights exercised shall be less than the total number of Rights
evidenced hereby, the Company shall issue to the holder hereof or
its registered assignee a new Rights Certificate evidencing the
number of Rights not exercised.
Upon the transfer by any holder of a Right to a person or
entity who is not a Permitted Transferee, then such Right shall
automatically be exchanged or converted for shares of Common
Stock at the then effective Exchange Ratio.
The Rights Agreement provides that upon the occurrence of
certain events the number of Rights Shares issuable upon exercise
or exchange of the Rights set forth on the face hereof may,
subject to certain conditions, be adjusted.
The holder hereof will have certain registration rights and
other rights and obligations with respect to the Rights Shares as
provided in the Securities Rights and Restrictions Agreement,
dated as of September 24, 2003, by and between the Company and
the persons party thereto (the "Rights and Restrictions
Agreement"). Copies of the Rights and Restrictions Agreement may
be obtained by the holder hereof upon written request to the
Company.
Rights Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by a legal
representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided
in the Rights Agreement, but without payment of any service
charge, for another Rights Certificate or Rights Certificates of
like tenor and evidencing in the aggregate a like number of
Rights.
A-3
Subject to the terms and conditions of the Rights Agreement,
upon due presentation for registration of transfer of this Rights
Certificate at the office of the Company, a new Rights
Certificate or Rights Certificates of like tenor and evidencing
in the aggregate a like number of Rights shall be issued to the
transferee(s) in exchange for this Rights Certificate, subject to
the limitations provided in the Agreement, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Company may deem and treat the registered holder(s)
hereof as the absolute owner(s) of this Rights Certificate
(notwithstanding any notation of ownership or other writing
hereon made by anyone), for the purpose of any exercise hereof
and of any distribution to the holder hereof, and for all other
purposes, and the Company shall not be affected by any notice to
the contrary. Neither the Rights nor this Rights Certificate
entitles any holder hereof to any rights of a stockholder of the
Company, except as specifically provided in the Rights Agreement
with respect to dividends and distributions to stockholders.
IN WITNESS WHEREOF, Micron Technology, Inc. has caused this
Rights Certificate to be signed by its Chairman of the Board,
Chief Executive Officer, President or a Vice President and by its
Secretary or an Assistant Secretary and has caused its corporate
seal to be affixed hereunto or imprinted hereon.
Dated: September 24, 2003
MICRON TECHNOLOGY, INC.
By:/s/Steven R. Appleton By:/s/Roderic W. Lewis
----------------------- ------------------------
Name: Steven R. Appleton Name: Roderic W. Lewis
Title: Chairman, Chief Title: Vice President of
Executive Officer and Legal Affairs, General
President Counsel and Corporate
Secretary
B-1
FORM OF NOTICE OF EXERCISE OR EXCHANGE
[To Be Executed Upon Exercise or Exchange of Rights]
The undersigned hereby irrevocably elects to exercise the
right, represented by this Rights Certificate, to receive -------
- ------ shares of Common Stock in accordance with the terms
hereof. Evidence of compliance with or exemption from the
requirements of the HSR Act must be provided.
The undersigned requests that a certificate for such shares
be registered in the name of ---------------, whose address is --
- ----------------------- and that such shares be delivered to ----
- ---------------------, whose address is ------------------------.
If said number of shares is less than all of the shares of
Common Stock receivable hereunder, the undersigned requests that
a new Rights Certificate representing the remaining balance of
such shares be registered in the name of ---------------, whose
address is -------------------------, and that such Rights
Certificate be delivered to ---------------, whose address is ---
- -----------------.
Signature(s):--------------------
NOTE: The above signature(s) must correspond with the name
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatever. If the Rights are held of record by two or more joint
owners, all such owners must sign.
Dated:--------------------
B-2
FORM OF ASSIGNMENT
[To be signed only upon assignment of Rights Certificate]
FOR VALUE RECEIVED, --------------- hereby sells, assigns
and transfers unto --------------- whose address is -------------
- ------------ and whose social security number or other
identifying number is ---------------, the within Rights
Certificate, together with all right, title and interest therein
and to the Rights represented thereby, and does hereby
irrevocably constitute and appoint , attorney, to transfer said
Rights Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Signature(s):--------------------------
NOTE: The above signature(s) must
correspond with the name written upon
the face of this Rights Certificate in
every particular, without alteration or
enlargement or any change whatever. If
the Rights are held of record by two or
more joint owners, all such owners must
sign.
Dated:--------------------
1
EXHIBIT 4
NEWS RELEASE
CONTACTS: David T. Parker Chuck Mulloy
Micron Public Relations Intel Public Relations
(208) 368-4400 (408) 765-3484
dtparker@micron.com chuck.mulloy@intel.com
Intel Makes $450-Million Equity Investment in Micron Technology
Santa Clara, Calif. and Boise, Idaho, Sept. 24, 2003 -Micron
Technology Inc. and Intel Corporation announced today that Intel
Capital invested $450 million in Micron in exchange for rights to
common stock representing approximately 5.3 percent of Micron's
outstanding common stock. Micron will use the proceeds primarily
to support its investments in 300 mm manufacturing technology and
increase its DDR2 memory production.
"We look forward to working closely with Intel in their
support of our efforts to provide advanced memory solutions to
our customers" said Steve Appleton, chairman, CEO and president
of Micron Technology. "Micron is committed to the support,
development and production of DDR2 on leading-edge technology and
Intel's investment will further enable these efforts."
"The availability of high-performance memory is critical as
we continue to develop advanced microprocessors and
communications components," said Intel CEO Craig Barrett. "Intel
is making this investment in Micron to help enable such high-end
memory capabilities as DDR2 to meet the requirements of our
future-generation products."
The companies also announced plans to collaborate on the
design for future generations of memory technologies.
Micron Technology is one of the world's leading providers of
advanced semiconductor solutions. Through its worldwide
operations, Micron Technology manufactures and markets DRAMs,
Flash memory, CMOS image sensors, other semiconductor components
and memory modules for use in leading-edge computing, consumer,
networking and mobile products. Micron's common stock is traded
on the New York Stock Exchange (NYSE) under the MU symbol. To
learn more about Micron Technology, visit www.micron.com.
2
Intel Capital, Intel's strategic investment program, focuses
on making equity investments and acquisitions to grow the
Internet economy in support of Intel's strategic interests. Intel
Capital invests in hardware, software and services companies in
several market segments, including computing, networking, and
wireless communications. For more information, visit
www.intel.com/capital.
Intel, the world's largest chip maker, is also a leading
manufacturer of computer, networking and communications products.
Additional information about Intel is available at
www.intel.com/pressroom.
--30--
Intel is a trademark or registered trademark of Intel
Corporation or its subsidiaries in the United States and other
countries. Micron is a registered trademark of Micron
Technology, Inc.
EXHIBIT 5
Exhibit 5 - Delegation of Authority
Intel Corporation
2200 Mission College Blvd.
P.O. Box 58119
Santa Clara, CA 95052-8119
(408) 765-8080
www.intel.com
[INTEL LOGO]
September 26, 2003
To whom it may concern,
During my absence from the office for vacation and sabbatical -
Monday, September 29th 2003, through Friday, December 5th 2003,
Bruce Sewell, VP & Assistant General Counsel, is authorized to
act on my behalf and has full signatory authority.
Sincerely,
INTEL CORPORATION
/s/ F. Thomas Dunlap, Jr.
F. Thomas Dunlap, Jr.,
Senior Vice President,
General Counsel