UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
|
MICRON
TECHNOLOGY, INC.
|
|
(Exact
name of registrant as specified in its
charter)
|
|
Delaware
|
75-1618004
|
|
(State
or other jurisdiction of incorporation)
|
(I.R.S.
Employer Identification No.)
|
|
8000
South Federal Way, P.O. Box 6, Boise, Idaho
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83707-0006
|
|
(Address
of principal executive offices)
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(Zip
Code)
|
Micron
Technology, Inc. 2007 Equity Incentive Plan
(Full
title of the plan)
Roderic
W. Lewis
V.P.
of Legal Affairs, General Counsel and Corporate Secretary
Micron
Technology, Inc.
8000
South Federal Way
Boise,
Idaho
83716-9632
(Name
and
address of agent for service)
208-368-4000
(Telephone
number, including area code, of agent for service)
1
CALCULATION
OF REGISTRATION FEE
|
Title
of
securities
to be registered
|
Amount
to be registered (1)
|
Proposed
maximum offering price per share (2)
|
Proposed
maximum aggregate offering price (2)
|
Amount
of registration fee
|
||||||||||||
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Common
Stock $.10 par
value
per share, to be
issued
pursuant to the
Micron
Technology, Inc.
2007
Equity Incentive Plan
|
30,000,000 | $ | 7.83 | $ | 234,750,000 | $ | 7,207.00 | |||||||||
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, (the “Securities Act”), to
the extent additional shares of the Registrant’s Common Stock may be
issued or issuable as a result of a stock split, stock dividend or
other
distribution declared at any time by the Board of Directors while
this
Registration Statement is in effect, this Registration Statement
is hereby
declared to cover all of such additional Common
Stock.
|
|
(2)
|
Estimated
in accordance with Rules 457(c) and 457(h) under the Securities Act,
solely for the purpose of calculating the registration fee on the
basis of
$7.83 per share, which is the average of the high and low price of
the
Company’s Common Stock as reported on the New York Stock Exchange on
December 20, 2007.
|
2
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I of Form S-8 are not
required to be filed with the Securities and Exchange Commission either as
part
of this Registration Statement or as a prospectus or prospectus supplements
pursuant to the Note to Part I of Form S-8 and Rule 424 under the Securities
Act.
3
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
|
Item
3.
|
Incorporation
of Documents by Reference.
|
The
following documents filed by the Company with the Securities and Exchange
Commission are incorporated by reference in this Registration
Statement:
(a) The
Company’s latest Annual Report on Form 10-K for the year ended August 30, 2007,
filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (File No. 1-10658).
(b) The
Company’s Current Report on Form 8-K filed pursuant to Section 13(a) of the
Exchange Act dated October 2, 2007 (excluding all information furnished therein
but not filed).
(c) The
Company’s Current Report on Form 8-K filed pursuant to Section 13(a) of the
Exchange Act dated October 26, 2007.
(d) The
Company’s Current Report on Form 8-K filed pursuant to Section 13(a) of the
Exchange Act dated November 20, 2007.
(e) The
Company’s Current Report on Form 8-K filed pursuant to Section 13(a) of the
Exchange Act on December 6, 2007 (as amended by the Company’s Current Report on
Form 8-K/A filed on December 13, 2007).
(f) The
description of the Company’s common stock contained in the Company’s
Registration Statement on Form 8-A, filed November 9, 1990, pursuant to Section
12(b) of the Exchange Act (File No. 1-10658), including any amendment or report
filed with the Securities and Exchange Commission for the purpose of updating
such description.
All
reports and other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
|
Item
4.
|
Description
of Securities.
|
Not
applicable.
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Item
5.
|
Interests
of Named Experts and Counsel.
|
Not
applicable.
4
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Item
6.
|
Indemnification
of Directors and Officers.
|
Section
145 of the Delaware General Corporation Law authorizes a court to award, or
a
corporation’s board of directors or stockholders to grant, indemnification to
directors, officers, employees and agents in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act and for
liabilities arising from other state and federal causes of
action. Section 10 of the Company’s Certificate of Incorporation and
Article VII of the Company’s Bylaws provide for the mandatory indemnification of
its officers, directors, employees and agents to the extent permitted by
Delaware General Corporation Law. The Company has entered into
agreements with its officers, directors and certain key employees implementing
such indemnification.
|
Item
7.
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Exemption
from Registration Claimed.
|
Not
applicable.
|
Item
8.
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Exhibits.
|
|
Exhibit
|
|
|
Number
|
|
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4.1
|
Micron
Technology, Inc. 2007 Equity Incentive Plan.
|
|
4.2
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Micron
Technology, Inc. 2007 Equity Incentive Plan Forms of
Agreement.
|
|
5.1
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Opinion
of Counsel.
|
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23.1
|
Consent
of Independent Registered Public Accounting Firm.
|
|
23.2
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Consent
of Counsel (contained in Exhibit 5.1).
|
|
24.1
|
Power
of Attorney (included on signature
page).
|
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Item
9.
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Undertakings.
|
(a)
The
undersigned Company hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) to
include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective
5
amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective Registration Statement;
(iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
provided,
however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
reports filed with or furnished to the Securities and Exchange Commission by
the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That,
for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Company hereby undertakes that, for the purpose of determining
any
liability under the Securities Act, each filing of the Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that
in
the opinion of the Securities and Exchange Commission such indemnification
is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred
or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with
6
the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it
is
against public policy as expressed in the Securities Act and will be governed
by
the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Company certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on
its
behalf by the undersigned, thereunto duly authorized, in the City of Boise,
State of Idaho, on this 27th
day of
December 2007.
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MICRON
TECHNOLOGY, INC.
|
||
|
/s/
Roderic W.
Lewis
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||
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By: Roderic
W. Lewis
|
||
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Vice
President of Legal
Affairs,
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||
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General
Counsel and Corporate
Secretary
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||
7
POWER
OF
ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Steven R. Appleton and Mark Heil, jointly and
severally, his attorneys-in-fact, each with the power of substitution, for
him
in any and all
capacities,
to sign any amendments to this Registration Statement on Form S-8, and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming
all
that each of said attorneys-in-fact, or his substitute or substitutes, may
do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has
been
signed by the following persons in the capacities and on the dates
indicated.
|
Signature
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Title
|
Date
|
|
/s/
Steven R. Appleton
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Chairman
of the Board and Chief
|
|
|
Steven
R. Appleton
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Executive
Officer (Principal Executive
|
|
|
Officer
and performing functions of the
|
||
|
Principal
Financial Officer)
|
December
27, 2007
|
|
|
/s/
Mark J.
Heil
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Finance
Director and
|
|
|
Mark
J. Heil
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Corporate
Controller
|
December
27, 2007
|
|
/s/
Teruaki
Aoki
|
||
|
Teruaki
Aoki
|
Director
|
December
27, 2007
|
|
/s/
James W. Bagley
|
||
|
James
W. Bagley
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Director
|
December
27, 2007
|
|
/s/
Robert L. Bailey
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||
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Robert
L. Bailey
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Director
|
December
27, 2007
|
|
/s/ Mercedes
Johnson
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||
|
Mercedes
Johnson
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Director
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December
27, 2007
|
|
/s/ Lawrence
N.
Mondry
|
||
|
Lawrence
N. Mondry
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Director
|
December
27, 2007
|
|
/s/
Robert E. Switz
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||
|
Robert
E. Switz
|
Director
|
December
27, 2007
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8
EXHIBIT
INDEX
|
Exhibit
|
|
|
Number
|
Description
|
|
4.1
|
Micron
Technology, Inc. 2007 Equity Incentive Plan.
|
|
4.2
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Micron
Technology, Inc. 2007 Equity Incentive Plan Forms of
Agreement.
|
|
5.1
|
Opinion
of Counsel.
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm.
|
|
23.2
|
Consent
of Counsel (contained in Exhibit 5.1).
|
|
24.1
|
Power
of Attorney (included on signature
page).
|
9
EXHIBIT
4.1
MICRON
TECHNOLOGY, INC.
2007
EQUITY INCENTIVE PLAN
ARTICLE
1
PURPOSE
1.1.
GENERAL. The
purpose of the Micron Technology, Inc. 2007 Equity Incentive Plan (the
"Plan") is to promote the success, and enhance the value, of Micron
Technology, Inc. (the "Company"), by linking the personal interests of
employees, non-employee directors and consultants of the Company or any
Affiliate (as defined below) to those of Company stockholders and by providing
such persons with an incentive for outstanding performance. The Plan is further
intended to provide flexibility to the Company in its ability to motivate,
attract, and retain the services of employees, non-employee directors and
consultants upon whose judgment, interest, and special effort the successful
conduct of the Company's operation is largely dependent. Accordingly, the Plan
permits the grant of incentive awards from time to time to selected employees,
non-employee directors and consultants of the Company and its Affiliates;
provided, however, that no officer, including without limitation the chief
executive officer of the Company, is eligible to be a Participant in the
Plan.
ARTICLE
2
DEFINITIONS
2.1.
DEFINITIONS. When
a word or phrase appears in this Plan with the initial letter capitalized,
and
the word or phrase does not commence a sentence, the word or phrase shall
generally be given the meaning ascribed to it in this Section or in
Section 1.1 unless a clearly different meaning is required by the context.
The following words and phrases shall have the following meanings:
(a)
"Affiliate" means (i) any Subsidiary or Parent, or (ii) an entity that
directly or through one or more intermediaries controls, is controlled by or
is
under common control with, the Company, as determined by the
Committee.
(b)
"Award" means any Option, Stock Appreciation Right, Restricted Stock Award,
Restricted Stock Unit Award, Deferred Stock Unit Award, Performance Share,
Dividend Equivalent Award, Other Stock-Based Award, or any other right or
interest relating to Stock or cash, granted to a Participant under the
Plan.
(c)
"Award Certificate" means a written document, in such form as the Committee
prescribes from time to time, setting forth the terms and conditions of an
Award. Award Certificates may be in the form of individual award agreements
or
certificates or a program document describing the terms and provisions of an
Awards or series of Awards under the Plan. The Committee may provide for the
use
of electronic, internet or other non-paper Award Certificates, and the use
of
electronic, internet or other non-paper means for the acceptance thereof and
actions thereunder by a Participant.
(d)
"Board" means the Board of Directors of the Company.
(e)
"Change in Control" means and includes the occurrence of any one of the
following events:
(i)
individuals who, on the Effective Date, constitute the Board of Directors of
the
Company (the "Incumbent Directors") cease for any reason to constitute at least
a majority of such Board, provided that any person becoming a director after
the
Effective Date and whose election or nomination for election was approved by
a
vote of at least a majority of the Incumbent Directors then on the Board shall
be an Incumbent Director; provided, however,
that no individual
initially elected or nominated as a director of the Company as a result of
an
actual or threatened election contest with respect to the election or removal
of
directors ("Election Contest") or other actual or threatened solicitation of
proxies or consents by or on behalf of any Person other than the Board ("Proxy
Contest"), including by reason of any agreement
1
intended
to avoid or settle any Election Contest or Proxy Contest, shall be deemed an
Incumbent Director; or
(ii)
any person is or becomes a "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of either (A) 35% or more of
the then-outstanding shares of common stock of the Company ("Company Common
Stock") or (B) securities of the Company representing 35% or more of the
combined voting power of the Company's then outstanding securities eligible
to
vote for the election of directors (the "Company Voting Securities"); provided, however,
that for purposes of
this subsection (ii), the following acquisitions shall not constitute a Change
in Control: (w) an acquisition directly from the Company, (x) an
acquisition by the Company or a Subsidiary of the Company, (y) an
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Subsidiary of the Company, or (z) an
acquisition pursuant to a Non-Qualifying Transaction (as defined in subsection
(iii) below); or
(iii)
the consummation of a reorganization, merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Company or
a
Subsidiary (a "Reorganization"), or the sale or other disposition of all or
substantially all of the Company's assets (a "Sale") or the acquisition of
assets or stock of another corporation (an "Acquisition"), unless immediately
following such Reorganization, Sale or Acquisition: (A) all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the outstanding Company Common Stock and outstanding
Company Voting Securities immediately prior to such Reorganization, Sale or
Acquisition beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Reorganization, Sale or Acquisition (including, without
limitation, a corporation which as a result of such transaction owns the Company
or all or substantially all of the Company's assets or stock either directly
or
through one or more subsidiaries, the "Surviving Corporation") in substantially
the same proportions as their ownership, immediately prior to such
Reorganization, Sale or Acquisition, of the outstanding Company Common Stock
and
the outstanding Company Voting Securities, as the case may be, and (B) no
person (other than (x) the Company or any Subsidiary of the Company,
(y) the Surviving Corporation or its ultimate parent corporation, or
(z) any employee benefit plan or related trust) sponsored or maintained by
any of the foregoing is the beneficial owner, directly or indirectly, of 35%
or
more of the total common stock or 35% or more of the total voting power of
the
outstanding voting securities eligible to elect directors of the Surviving
Corporation, and (C) at least a majority of the members of the board of
directors of the Surviving Corporation were Incumbent Directors at the time
of
the Board's approval of the execution of the initial agreement providing for
such Reorganization, Sale or Acquisition (any Reorganization, Sale or
Acquisition which satisfies all of the criteria specified in (A), (B) and
(C) above shall be deemed to be a "Non-Qualifying Transaction");
or
(iv)
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
(f)
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
Reference to a specific Section of the Code or regulation thereunder shall
include such Section or regulation, any valid regulation promulgated under
such
Section, and any comparable provision of any future law, legislation or
regulation amending, supplementing or superseding such Section or
regulation.
(g) "Committee"
means the committee of the Board described in Article 4.
(h) "Company"
means Micron Technology, Inc., a Delaware corporation, or any successor
corporation.
(i)
"Continuous Status as a Participant" means the absence of any interruption
or
termination of service as an employee, officer, consultant or non-employee
director of the Company or any Affiliate, as applicable; provided, however,
that
for purposes of an Incentive Stock Option, or a Stock Appreciation Right issued
in tandem with an Incentive Stock Option, "Continuous Status as a Participant"
means the absence of any interruption or termination of service as an employee
of the Company or any Parent or
2
Subsidiary,
as applicable, pursuant to applicable tax regulations. Continuous Status as
a
Participant shall not be considered interrupted in the case of any leave of
absence authorized in writing by the Company prior to its commencement;
provided, however, that for purposes of Incentive Stock Options, no such leave
may exceed 90 days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract. If reemployment upon expiration of a leave
of
absence approved by the Company is not so guaranteed, on the 91st day of such
leave any Incentive Stock Option held by the Participant shall cease to be
treated as an Incentive Stock Option and shall be treated for tax purposes
as a
Nonstatutory Stock Option.
(j)
"Covered Employee" means a covered employee as defined in Code
Section 162(m)(3).
(k) "Disability"
or "Disabled" has the same meaning as provided in the long-term disability
plan
or policy maintained by the Company or if applicable, most recently maintained,
by the Company or if applicable, an Affiliate, for the Participant, whether
or
not such Participant actually receives disability benefits under such plan
or
policy. If no long-term disability plan or policy was ever maintained on behalf
of Participant or if the determination of Disability relates to an Incentive
Stock Option, or a Stock Appreciation Right issued in tandem with an Incentive
Stock Option, Disability means Permanent and Total Disability as defined in
Section 22(e)(3) of the Code. Notwithstanding the foregoing, for any Awards
that constitute a nonqualified deferred compensation plan within the meaning
of
Section 409A(d) of the Code, Disability has the meaning given such term in
Section 409A of the Code. In the event of a dispute, the determination
whether a Participant is Disabled will be made by the Committee and may be
supported by the advice of a physician competent in the area to which such
Disability relates.
(l)
"Deferred Stock Unit" means a right granted to a Participant under
Article 11.
(m)
"Dividend Equivalent" means a right granted to a Participant under
Article 12.
(n)
"Effective Date" has the meaning assigned such term in
Section 3.1.
(o) "Eligible
Participant" means an employee, consultant or non-employee director of the
Company or any Affiliate; provided, however, that no officer, including without
limitation the chief executive officer of the Company, is eligible to be a
Participant in the Plan.
(p) "Exchange"
means the New York Stock Exchange or any other national securities exchange
or
national market system on which the Stock may from time to time be listed or
traded.
(q) "Fair
Market Value" of the Stock, on any date, means: (i) if the Stock is listed
or traded on any Exchange, the closing sales price for such Stock (or the
closing bid, if no sales were reported) as quoted on such Exchange (or, if
more
than one Exchange, the Exchange with the greatest volume of trading in the
Stock) for such date, or if no sales or bids were reported for such date, on
the
last market trading day prior to the day of determination, as reported by Market
Sweep, a service from Interactive Data Services, Inc., or such other source
as
the Committee deems reliable; (ii) if the Stock is quoted on the
over-the-counter market or is regularly quoted by a recognized securities
dealer, but selling prices are not reported, the Fair Market Value of the Stock
shall be the mean between the high bid and low asked prices for the Stock on
such date, or if no sales or bids were reported for such date, on the last
market trading day prior to the day of determination, as reported by Market
Sweep, a service from Interactive Data Services, Inc. or such other source
as
the Committee deems reliable, or (iii) in the absence of an established
market for the Stock, the Fair Market Value shall be determined by such other
method as the Committee determines in good faith to be reasonable and in
compliance with Code Section 409A.
(r)
"Full Value Award" means an Award other than in the form of an Option or SAR,
and which is settled by the issuance of Stock.
(s) "Grant
Date" of an Award means the first date on which all necessary corporate action
has been taken to approve the grant of the Award as provided in the Plan, or
such later date as is determined and
3
specified
as part of that authorization process. Notice of the grant shall be provided
to
the grantee within a reasonable time after the Grant Date.
(t)
"Incentive Stock Option" means an Option that is intended to be an incentive
stock option and meets the requirements of Section 422 of the Code or any
successor provision thereto.
(u) "Non-Employee
Director" means a director of the Company who is not a common law employee
of
the Company or an Affiliate.
(v) "Nonstatutory
Stock Option" means an Option that is not an Incentive Stock
Option.
(w)
"Option" means a right granted to a Participant under Article 7 of the Plan
to purchase Stock at a specified price during specified time periods. An Option
may be either an Incentive Stock Option or a Nonstatutory Stock
Option.
(x)
"Other Stock-Based Award" means a right, granted to a Participant under
Article 13 that relates to or is valued by reference to Stock or other
Awards relating to Stock.
(y) "Parent"
means a corporation, limited liability company, partnership or other entity
which owns or beneficially owns a majority of the outstanding voting stock
or
voting power of the Company. Notwithstanding the above, with respect to an
Incentive Stock Option, Parent shall have the meaning set forth in
Section 424(e) of the Code.
(z)
"Participant" means a person who, as an employee, non-employee director or
consultant of the Company or any Affiliate, has been granted an Award under
the
Plan; provided that in the case of the death of a Participant, the term
"Participant" refers to a beneficiary designated pursuant to Section 14.5
or the legal guardian or other legal representative acting in a fiduciary
capacity on behalf of the Participant under applicable state law and court
supervision. Notwithstanding the foregoing, a Participant shall not include
the
chief executive officer or any other officers of the Company.
(aa)
"Performance Share" means any right granted to a Participant under
Article 9 to a unit to be valued by reference to a designated number of
Shares to be paid upon achievement of such performance goals as the Committee
establishes with regard to such Performance Share.
(bb)
"Person" means any individual, entity or group, within the meaning of
Section 3(a)(9) of the 1934 Act and as used in Section 13(d)(3) or
14(d)(2) of the 1934 Act.
(cc) "Plan"
means the Micron Technology, Inc. 2007 Equity Incentive Plan, as amended
from time to time.
(dd) "Qualified
Performance-Based Award" means an Award that is either (i) intended to
qualify for the Section 162(m) Exemption and is made subject to performance
goals based on Qualified Business Criteria as set forth in
Section 14.10(b), or (ii) an Option or SAR.
(ee)
"Qualified Business Criteria" means one or more of the Business Criteria listed
in Section 14.10(b) upon which performance goals for certain Qualified
Performance-Based Awards may be established by the Committee.
(ff)
"Restricted Stock Award" means Stock granted to a Participant under
Article 10 that is subject to certain restrictions and to risk of
forfeiture.
(gg) "Restricted
Stock Unit Award" means the right granted to a Participant under Article 10
to receive shares of Stock (or the equivalent value in cash or other property
if
the Committee so provides) in the future, which right is subject to certain
restrictions and to risk of forfeiture.
4
(hh) "Section 162(m)
Exemption" means the exemption from the limitation on deductibility imposed
by
Section 162(m) of the Code that is set forth in Section 162(m)(4)(C)
of the Code or any successor provision thereto.
(ii) "Shares"
means shares of the Company's Stock. If there has been an adjustment or
substitution pursuant to Section 15.1, the term "Shares" shall also include
any shares of stock or other securities that are substituted for Shares or
into
which Shares are adjusted pursuant to Section 15.1.
(jj) "Stock"
means the $.10 par value common stock of the Company and such other securities
of the Company as may be substituted for Stock pursuant to
Article 15.
(kk) "Stock
Appreciation Right" or "SAR" means a right granted to a Participant under
Article 8 to receive a payment equal to the difference between the Fair
Market Value of a Share as of the date of exercise of the SAR over the base
price of the SAR, all as determined pursuant to Article 8.
(ll) "Subsidiary"
means any corporation, limited liability company, partnership or other entity
of
which a majority of the outstanding voting stock or voting power is beneficially
owned directly or indirectly by the Company. Notwithstanding the above, with
respect to an Incentive Stock Option, Subsidiary shall have the meaning set
forth in Section 424(f) of the Code.
(mm) "1933
Act" means the Securities Act of 1933, as amended from time to
time.
(nn) "1934
Act" means the Securities Exchange Act of 1934, as amended from time to
time.
ARTICLE
3
EFFECTIVE
TERM OF PLAN
3.1.
EFFECTIVE
DATE. The Plan shall be effective as of the date it is
approved by both the Board and the stockholders of the Company (the "Effective
Date").
3.2.
TERMINATION OF
PLAN. The Plan shall terminate on the tenth anniversary of the
Effective Date unless earlier terminated as provided herein, which shall
continue to be governed by the applicable terms and conditions of this Plan.
The
termination of the Plan on such date shall not affect the validity of any Award
outstanding on the date of termination. No Incentive Stock Options may be
granted more than ten years after the earlier of (a) adoption of this Plan
by the Board, or (b) the Effective Date.
ARTICLE
4
ADMINISTRATION
4.1.
COMMITTEE. The
Plan shall be administered by a Committee appointed by the Board (which
Committee shall consist of at least two directors) or, at the discretion of
the
Board from time to time, the Plan may be administered by the Board. It is
intended that at least two of the directors appointed to serve on the Committee
shall be "non-employee directors" (within the meaning of Rule 16b-3
promulgated under the 1934 Act) and "outside directors" (within the meaning
of
Code Section 162(m)) and that any such members of the Committee who do not
so qualify shall abstain from participating in any decision to make or
administer Awards that are made to Eligible Participants who at the time of
consideration for such Award (i) are persons subject to the short-swing
profit rules of Section 16 of the 1934 Act, or (ii) are reasonably
anticipated to become Covered Employees during the term of the Award. However,
the mere fact that a Committee member shall fail to qualify under either of
the
foregoing requirements or shall fail to abstain from such action shall not
invalidate any Award made by the Committee which Award is otherwise validly
made
under the Plan. The members of the Committee shall be appointed by, and may
be
changed at any time and from time to time in the discretion of, the Board.
The
Board may reserve to itself any or all of the authority and responsibility
of
the Committee under the Plan or may act as administrator of the Plan for any
and
all purposes. To the extent the Board has reserved any authority and
responsibility or during any time that the Board is acting as administrator
of
the Plan, it shall have all the powers of the Committee hereunder, and any
reference herein to the Committee (other than in this Section 4.1) shall
include the Board. To the extent any action of the Board under the Plan
conflicts with actions taken by the Committee, the actions of the Board shall
control.
5
4.2.
ACTION AND INTERPRETATIONS
BY
THE COMMITTEE. For purposes of administering the Plan, the
Committee may from time to time adopt rules, regulations, guidelines and
procedures for carrying out the provisions and purposes of the Plan and make
such other determinations, not inconsistent with the Plan, as the Committee
may
deem appropriate. The Committee's interpretation of the Plan, any Awards granted
under the Plan, any Award Certificate and all decisions and determinations
by
the Committee with respect to the Plan are final, binding, and conclusive on
all
parties. Each member of the Committee is entitled to, in good faith, rely or
act
upon any report or other information furnished to that member by any officer
or
other employee of the Company or any Affiliate, the Company's or an Affiliate's
independent certified public accountants, Company counsel or any executive
compensation consultant or other professional retained by the Company to assist
in the administration of the Plan.
4.3.
AUTHORITY OF
COMMITTEE. Except as provided below, the Committee has the
exclusive power, authority and discretion to:
(a) Grant
Awards;
(b) Designate
Participants;
(c) Determine
the type or types of Awards to be granted to each Participant;
(d)
Determine the number of Awards to be granted and the number of Shares or dollar
amount to which an Award will relate;
(e) Determine
the terms and conditions of any Award granted under the Plan, including but
not
limited to, the exercise price, base price, or purchase price, any restrictions
or limitations on the Award, any schedule for lapse of forfeiture restrictions
or restrictions on the exercisability of an Award, and accelerations or waivers
thereof, based in each case on such considerations as the Committee in its
sole
discretion determines;
(f) Accelerate
the vesting, exercisability or lapse of restrictions of any outstanding Award,
in accordance with Article 14, based in each case on such considerations as
the Committee in its sole discretion determines;
(g) Determine
whether, to what extent, and under what circumstances an Award may be settled
in, or the exercise price of an Award may be paid in, cash, Stock, other Awards,
or other property, or an Award may be canceled, forfeited, or
surrendered;
(h) Prescribe
the form of each Award Certificate, which need not be identical for each
Participant;
(i) Decide
all other matters that must be determined in connection with an
Award;
(j) Establish,
adopt or revise any rules, regulations, guidelines or procedures as it may
deem
necessary or advisable to administer the Plan;
(k) Make
all other decisions and determinations that may be required under the Plan
or as
the Committee deems necessary or advisable to administer the Plan;
(l) Amend
the Plan or any Award Certificate as provided herein; and
(m) Adopt
such modifications, procedures, and subplans as may be necessary or desirable
to
comply with provisions of the laws of non-U.S. jurisdictions in which the
Company or any Affiliate may operate, in order to assure the viability of the
benefits of Awards granted to participants located in such other jurisdictions
and to meet the objectives of the Plan.
6
Notwithstanding
the foregoing, grants
of Awards to Non-Employee Directors hereunder shall be made only in accordance
with the terms, conditions and parameters of a plan, program or policy for
the
compensation of Non-Employee Directors as in effect from time to time, and
the
Committee may not make discretionary grants hereunder to Non-Employee
Directors.
Notwithstanding
the above, the Board
may, by resolution, expressly delegate to a special committee, consisting of
one
or more directors who may but need not be officers of the Company, the
authority, within specified parameters, to (i) designate officers,
employees and/or consultants of the Company or any of its Affiliates to be
recipients of Awards under the Plan, and (ii) to determine the number of
such Awards to be received by any such Participants; provided, however, that
such delegation of duties and responsibilities to an officer of the Company
may
not be made with respect to the grant of Awards to eligible participants
(a) who are subject to Section 16(a) of the 1934 Act at the Grant
Date, or (b) who as of the Grant Date are reasonably anticipated to be
become Covered Employees during the term of the Award. The acts of such
delegates shall be treated hereunder as acts of the Board and such delegates
shall report regularly to the Board and the Compensation Committee regarding
the
delegated duties and responsibilities and any Awards so granted.
4.4.
AWARD
CERTIFICATES. Each Award shall be evidenced by an Award
Certificate. Each Award Certificate shall include such provisions, not
inconsistent with the Plan, as may be specified by the Committee.
ARTICLE
5
SHARES
SUBJECT TO THE PLAN
5.1.
NUMBER OF
SHARES. Subject to adjustment as provided in Sections 5.2 and
15.1, the aggregate number of Shares reserved and available for issuance
pursuant to Awards granted under the Plan shall be 30,000,000; provided,
however, that each Share issued under the Plan pursuant to a Full Value Award
shall reduce the number of available Shares by two (2) shares. The maximum
number of Shares that may be issued upon exercise of Incentive Stock Options
granted under the Plan shall be 2,000,000.
5.2.
SHARE
COUNTING. Shares covered by an Award shall be subtracted from
the Plan share reserve as of the date of grant, but shall be added back to
the
Plan share reserve in accordance with this Section 5.2.
(a)
To the extent that an Award is canceled, terminates, expires, is
forfeited or lapses for any reason, any unissued or forfeited Shares subject
to
the Award will again be available for issuance pursuant to Awards granted under
the Plan.
(b)
Shares subject to Awards settled in cash will again be available for
issuance pursuant to Awards granted under the Plan.
(c)
Substitute Awards granted pursuant to Section 14.14 of the Plan shall not
count against the Shares otherwise available for issuance under the Plan under
Section 5.1.
5.3.
STOCK
DISTRIBUTED. Any Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued Stock, treasury Stock
or Stock purchased on the open market.
5.4.
LIMITATION ON
AWARDS. Notwithstanding any provision in the Plan to the
contrary (but subject to adjustment as provided in Section 15.1), the
maximum number of Shares with respect to one or more Options and/or SARs that
may be granted during any one calendar year under the Plan to any one
Participant shall be 2,000,000. The maximum aggregate grant with respect to
Awards of Restricted Stock, Restricted Stock Units, Deferred Stock Units,
Performance Shares or other Stock-Based Awards (other than Options or SARs)
granted in any one calendar year to any one Participant shall be
2,000,000.
ARTICLE
6
ELIGIBILITY
6.1.
GENERAL. Awards
may be granted only to Eligible Participants; except that Incentive Stock
Options may be granted to only to Eligible Participants who are employees of
the
Company or a Parent or
7
Subsidiary
as defined in Section 424(e) and (f) of the Code. Eligible
Participants who are service providers to an Affiliate may be granted Options
or
SARs under this Plan only if the Affiliate qualifies as an "eligible issuer
of
service recipient stock" within the meaning of §1.409A-1(b)(5)(iii)(E) of the
final regulations under Code Section 409A.
ARTICLE
7
STOCK
OPTIONS
7.1.
GENERAL. The
Committee is authorized to grant Options to Participants on the following terms
and conditions:
(a)
EXERCISE PRICE. The exercise price per Share under an Option shall be determined
by the Committee; provided that the exercise price for any Option (other than
an
Option issued as a substitute Award pursuant to Section 14.14) shall not be
less than the Fair Market Value as of the Grant Date.
(b)
PROHIBITION ON REPRICING. Except as otherwise provided in Section 15.1, the
exercise price of an Option may not be reduced, directly or indirectly by
cancellation and regrant or otherwise, without the prior approval of the
shareholders of the Company.
(c)
TIME AND CONDITIONS OF EXERCISE. The Committee shall determine the time or
times
at which an Option may be exercised in whole or in part, subject to
Section 7.1(e). The Committee shall also determine the performance or other
conditions, if any, that must be satisfied before all or part of an Option
may
be exercised or vested.
(d)
PAYMENT. The Committee shall determine the methods by which the exercise price
of an Option may be paid, the form of payment, including, without limitation,
cash, Shares, or other property (including "cashless exercise" arrangements),
and the methods by which Shares shall be delivered or deemed to be delivered
to
Participants.
(e)
EXERCISE TERM. Except for Nonstatutory Options granted to Participants outside
the United States, no Option granted under the Plan shall be exercisable for
more than ten years from the Grant Date.
(f)
NO DEFERRAL FEATURE. No Option shall provide for any feature for the deferral
of
compensation other than the deferral of recognition of income until the exercise
or disposition of the Option.
(g)
SUSPENSION. Any Participant who is also a participant in the Retirement at
Micron ("RAM") Section 401(k) Plan and who requests and receives a hardship
distribution from the RAM Plan, is prohibited from making, and must suspend,
his
or her employee elective contributions and employee contributions including,
without limitation on the foregoing, the exercise of any Option granted from
the
date of receipt by that employee of the RAM hardship distribution.
7.2.
INCENTIVE STOCK
OPTIONS. The terms of any Incentive Stock Options granted
under the Plan must comply with the requirements of Section 422 of the
Code. If all of the requirements of Section 422 of the Code are not met,
the Option shall automatically become a Nonstatutory Stock Option.
ARTICLE
8
STOCK
APPRECIATION RIGHTS
8.1.
GRANT OF STOCK APPRECIATION
RIGHTS. The Committee is authorized to grant Stock
Appreciation Rights to Participants on the following terms and
conditions:
(a)
RIGHT TO PAYMENT. Upon the exercise of a Stock Appreciation Right, the
Participant to whom it is granted has the right to receive the excess, if any,
of:
8
(1)
The Fair Market Value of one Share on the date of exercise; over
(2)
The base price of the Stock Appreciation Right as determined by the Committee,
which shall not be less than the Fair Market Value of one Share on the Grant
Date.
(b)
PROHIBITION ON REPRICING. Except as otherwise provided in Section 15.1, the
base price of a SAR may not be reduced, directly or indirectly by cancellation
and regrant or otherwise, without the prior approval of the shareholders of
the
Company.
(c)
EXERCISE TERM. Except for SARs granted to Participants outside the United
States, no SAR shall be exercisable for more than ten years from the Grant
Date.
(d)
NO DEFERRAL FEATURE. No SAR shall provide for any feature for the deferral
of
compensation other than the deferral of recognition of income until the exercise
or disposition of the SAR.
(e)
OTHER TERMS. All awards of Stock Appreciation Rights shall be evidenced by
an
Award Certificate. Subject to the limitations of this Article 8, the terms,
methods of exercise, methods of settlement, form of consideration payable in
settlement, and any other terms and conditions of any Stock Appreciation Right
shall be determined by the Committee at the time of the grant of the Award
and
shall be reflected in the Award Certificate.
ARTICLE
9
PERFORMANCE
SHARES
9.1.
GRANT OF PERFORMANCE
SHARES. The Committee is authorized to grant Performance
Shares to Participants on such terms and conditions as may be selected by the
Committee. The Committee shall have the complete discretion to determine the
number of Performance Shares granted to each Participant, subject to
Section 5.4, and to designate the provisions of such Performance Shares as
provided in Section 4.3. All Performance Shares shall be evidenced by an
Award Certificate or a written program established by the Committee, pursuant
to
which Performance Shares are awarded under the Plan under uniform terms,
conditions and restrictions set forth in such written program.
9.2.
PERFORMANCE
GOALS. The Committee may establish performance goals for
Performance Shares which may be based on any criteria selected by the Committee.
Such performance goals may be described in terms of Company-wide objectives
or
in terms of objectives that relate to the performance of the Participant, an
Affiliate or a division, region, department or function within the Company
or an
Affiliate. If the Committee determines that a change in the business,
operations, corporate structure or capital structure of the Company or the
manner in which the Company or an Affiliate conducts its business, or other
events or circumstances render performance goals to be unsuitable, the Committee
may modify such performance goals in whole or in part, as the Committee deems
appropriate. If a Participant is promoted, demoted or transferred to a different
business unit or function during a performance period, the Committee may
determine that the performance goals or performance period are no longer
appropriate and may (i) adjust, change or eliminate the performance goals
or the applicable performance period as it deems appropriate to make such goals
and period comparable to the initial goals and period, or (ii) make a cash
payment to the participant in amount determined by the Committee. The foregoing
two sentences shall not apply with respect to an Award of Performance Shares
that is intended to be a Qualified Performance-Based Award.
9.3.
RIGHT TO
PAYMENT. The grant of a Performance Share to a Participant
will entitle the Participant to receive at a specified later time a specified
number of Shares, or the equivalent value in cash or other property, if the
performance goals established by the Committee are achieved and the other terms
and conditions thereof are satisfied. The Committee shall set performance goals
and other terms or conditions to payment of the Performance Shares in its
discretion which, depending on the extent to which they are met, will determine
the number of the Performance Shares that will be earned by the
Participant.
9.4.
OTHER
TERMS. Performance Shares may be payable in cash, Stock, or
other property, and have such other terms and conditions as determined by the
Committee and reflected in the Award Certificate.
9
ARTICLE
10
RESTRICTED
STOCK AND RESTRICTED STOCK UNIT AWARDS
10.1. GRANT
OF RESTRICTED STOCK AND
RESTRICTED STOCK UNITS. Subject to the terms and conditions of
this Article 10, the Committee is authorized to make Awards of Restricted
Stock or Restricted Stock Units to Participants in such amounts and subject
to
such terms and conditions as may be selected by the Committee. An Award of
Restricted Stock or Restricted Stock Units shall be evidenced by an Award
Certificate setting forth the terms, conditions, and restrictions applicable
to
the Award.
10.2. ISSUANCE
AND
RESTRICTIONS. Restricted Stock or Restricted Stock Units shall
be subject to such restrictions on transferability and other restrictions as
the
Committee may impose (including, without limitation, limitations on the right
to
vote Restricted Stock or the right to receive dividends on the Restricted
Stock); provided, however, at a minimum, all Restricted Stock and Restricted
Stock Units shall be subject to the restrictions set forth in Section 14.4
for a period of no less than (a) one year from the date of award with
respect to Restricted Stock or Restricted Stock Units subject to restrictions
that lapse based upon satisfaction of performance goals, and (b) three
years from the date of award with respect to Restricted Stock or Restricted
Stock Units subject to time-based restrictions that lapse based upon one's
Continuous Status as a Participant. For avoidance of doubt, nothing in the
foregoing shall preclude any applicable restriction, including those set forth
in Section 14.4 hereof, from lapsing ratably, including, but not limited
to, roughly annual increments over three years, with respect to the Restricted
Stock or Restricted Stock Units referred to in Section 10.2(b). Moreover,
nothing in the foregoing shall preclude or be interpreted to preclude Awards
to
Non-employee Directors from containing a period of restriction shorter than
that
set forth above. Finally, nothing in this Section 10.2 shall be deemed or
interpreted to preclude the waiver, lapse or the acceleration of lapse, of
any
restrictions with respect to Restricted Stock or Restricted Stock Units in
accordance with or as permitted by Sections 14.7 through Section 14.9,
respectively, Article 15 or any other provision of the Plan. Subject to the
remaining terms and conditions of the Plan, these restrictions may lapse
separately or in combination at such times, under such circumstances, in such
installments, upon the satisfaction of performance goals or otherwise, as the
Committee determines at the time of the grant of the Award or thereafter. Except
as otherwise provided in an Award Certificate or any special Plan document
governing an Award, the Participant shall have all of the rights of a
stockholder with respect to the Restricted Stock, and the Participant shall
have
none of the rights of a stockholder with respect to Restricted Stock Units
until
such time as Shares of Stock are paid in settlement of the Restricted Stock
Units.
10.3. FORFEITURE. Except
as otherwise determined by the Committee at the time of the grant of the Award
or thereafter, upon termination of Continuous Status as a Participant during
the
applicable restriction period or upon failure to satisfy a performance goal
during the applicable restriction period, Restricted Stock or Restricted Stock
Units that are at that time subject to restrictions shall be forfeited;
provided, however, that the Committee may provide in any Award Certificate,
subject to the terms and conditions of the Plan, that restrictions or forfeiture
conditions relating to Restricted Stock or Restricted Stock Units will be waived
in whole or in part in the event of terminations resulting from specified
causes, including, but not limited to, death, Disability, or for the convenience
or in the best interests of the Company.
10.4. DELIVERY
OF RESTRICTED
STOCK. Shares of Restricted Stock shall be delivered to the
Participant at the time of grant either by book-entry registration or by
delivering to the Participant, or a custodian or escrow agent (including,
without limitation, the Company or one or more of its employees) designated
by
the Committee, a stock certificate or certificates registered in the name of
the
Participant. If physical certificates representing shares of Restricted Stock
are registered in the name of the Participant, such certificates must bear
an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock.
10
ARTICLE
11
DEFERRED
STOCK UNITS
11.1. GRANT
OF DEFERRED STOCK
UNITS. The Committee is authorized to grant Deferred Stock
Units to Participants subject to such terms and conditions as may be selected
by
the Committee. Deferred Stock Units shall entitle the Participant to receive
Shares of Stock (or the equivalent value in cash or other property if so
determined by the Committee) at a future time as determined by the Committee,
or
as determined by the Participant within guidelines established by the Committee
in the case of voluntary deferral elections. An Award of Deferred Stock Units
shall be evidenced by an Award Certificate setting forth the terms and
conditions applicable to the Award.
ARTICLE
12
DIVIDEND
EQUIVALENTS
12.1. GRANT
OF DIVIDEND
EQUIVALENTS. The Committee is authorized to grant Dividend
Equivalents to Participants subject to such terms and conditions as may be
selected by the Committee. Dividend Equivalents shall entitle the Participant
to
receive payments equal to dividends with respect to all or a portion of the
number of Shares subject to an Award, as determined by the Committee. The
Committee may provide that Dividend Equivalents be paid or distributed when
accrued or be deemed to have been reinvested in additional Shares, or otherwise
reinvested. Unless otherwise provided in the applicable Award Certificate,
Dividend Equivalents will be paid or distributed no later than the 15th
day of
the 3rd
month
following the later of (i) the calendar year in which the corresponding
dividends were paid to shareholders, or (ii) the first calendar year in
which the Participant's right to such Dividends Equivalents is no longer subject
to a substantial risk of forfeiture.
ARTICLE
13
STOCK
OR OTHER STOCK-BASED AWARDS
13.1. GRANT
OF STOCK OR OTHER STOCK-BASED
AWARDS. The Committee is authorized, subject to limitations
under applicable law, to grant to Participants such other Awards that are
payable in, valued in whole or in part by reference to, or otherwise based
on or
related to Shares, as deemed by the Committee to be consistent with the purposes
of the Plan, including without limitation Shares awarded purely as a "bonus"
and
not subject to any restrictions or conditions, convertible or exchangeable
debt
securities, other rights convertible or exchangeable into Shares, and Awards
valued by reference to book value of Shares or the value of securities of or
the
performance of specified Parents or Subsidiaries. The Committee shall determine
the terms and conditions of such Awards.
ARTICLE
14
PROVISIONS
APPLICABLE TO AWARDS
14.1.
STAND-ALONE AND TANDEM
AWARDS. Awards granted under the Plan may, in the discretion
of the Committee, be granted either alone or in addition to, in tandem with,
any
other Award granted under the Plan. Subject to Section 16.2, awards granted
in addition to or in tandem with other Awards may be granted either at the
same
time as or at a different time from the grant of such other Awards.
14.2.
TERM OF
AWARD. The term of each Award shall be for the period as
determined by the Committee, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right granted in tandem with
the
Incentive Stock Option exceed a period of ten years from its Grant
Date.
14.3.
FORM OF PAYMENT FOR
AWARDS. Subject to the terms of the Plan and any applicable
law or Award Certificate, payments or transfers to be made by the Company or
an
Affiliate on the grant or exercise of an Award may be made in such form as
the
Committee determines at or after the Grant Date, including without limitation,
cash, Stock, other Awards, or other property, or any combination, and may be
made in a single payment or transfer, in installments, or (except with respect
to Options or SARs) on a deferred basis, in each case determined in accordance
with rules adopted by, and at the discretion of, the Committee.
14.4.
LIMITS ON
TRANSFER. No right or interest of a Participant in any
unexercised or restricted Award may be pledged, encumbered, or hypothecated
to
or in favor of any party other than the Company or an Affiliate, or
11
shall
be
subject to any lien, obligation, or liability of such Participant to any other
party other than the Company or an Affiliate. No unexercised or restricted
Award
shall be assignable or transferable by a Participant other than by will or
the
laws of descent and distribution or, except in the case of an Incentive Stock
Option, pursuant to a domestic relations order that would satisfy
Section 414(p)(1)(A) of the Code if such Section applied to an Award under
the Plan; provided, however, that the Committee may (but need not) permit other
transfers where the Committee concludes that such transferability (i) does
not result in accelerated taxation, (ii) does not cause any Option intended
to be an Incentive Stock Option to fail to be described in Code
Section 422(b), and (iii) is otherwise appropriate and desirable,
taking into account any factors deemed relevant, including without limitation,
state or federal tax or securities laws applicable to transferable
Awards.
14.5.
BENEFICIARIES. Notwithstanding
Section 14.4, a Participant may, in the manner determined by the Committee,
designate a beneficiary to exercise the rights of the Participant and to receive
any distribution with respect to any Award upon the Participant's death. A
beneficiary, legal guardian, legal representative, or other person claiming
any
rights under the Plan is subject to all terms and conditions of the Plan and
any
Award Certificate applicable to the Participant, except to the extent the Plan
and Award Certificate otherwise provide, and to any additional restrictions
deemed necessary or appropriate by the Committee. If no beneficiary has been
designated or survives the Participant, payment shall be made to the
Participant's estate. Subject to the foregoing, a beneficiary designation may
be
changed or revoked by a Participant at any time provided the change or
revocation is filed with the Committee.
14.6.
STOCK TRADING
RESTRICTIONS. All Stock issuable under the Plan is subject to
any stop-transfer orders and other restrictions as the Committee deems necessary
or advisable to comply with federal or state securities laws, rules and
regulations and the rules of any national securities exchange or automated
quotation system on which the Stock is listed, quoted, or traded. The Committee
may place legends on any Stock certificate or issue instructions to the transfer
agent to reference restrictions applicable to the Stock.
14.7.
ACCELERATION UPON A CHANGE
IN
CONTROL. Except as otherwise provided in the Award Certificate
or any special Plan document governing an Award, upon the occurrence of a Change
in Control, all outstanding Options, SARs, and other Awards in the nature of
rights that may be exercised shall become fully exercisable, and all time-based
vesting restrictions on outstanding Awards shall lapse. Except as otherwise
provided in the Award Certificate or any special Plan document governing an
Award, upon the occurrence of a Change in Control, the target payout
opportunities attainable under all outstanding performance-based Awards shall
be
deemed to have been fully earned as of the effective date of the Change in
Control based upon an assumed achievement of all relevant performance goals
at
the "target" level and there shall be prorata payout to Participants within
thirty (30) days following the effective date of the Change in Control (or
any later date required by Section 17.3 of the Plan) based upon the length
of time within the performance period that has elapsed prior to the Change
in
Control.
14.8.
ACCELERATION UPON DEATH
OR
DISABILITY. Except as otherwise provided in the Award
Certificate or any special Plan document governing an Award, upon the
Participant's death or Disability during his or her Continuous Status as a
Participant, (i) all of such Participant's outstanding Options, SARs, and
other Awards in the nature of rights that may be exercised shall become fully
exercisable, (ii) all time-based vesting restrictions on the Participant's
outstanding Awards shall lapse, and (iii) the target payout opportunities
attainable under all of such Participant's outstanding performance-based Awards
shall be deemed to have been fully earned as of the date of termination based
upon an assumed achievement of all relevant performance goals at the "target"
level and there shall be a prorata payout to the Participant or his or her
estate within thirty (30) days following the date of termination (or any
later date required by Section 17.3 of the Plan) based upon the length of
time within the performance period that has elapsed prior to the date of
termination. Any Awards shall thereafter continue or lapse in accordance with
the other provisions of the Plan and the Awards Certificate. To the extent
that
this provision causes Incentive Stock Options to exceed the dollar limitation
set forth in Code Section 422(d), the excess Options shall be deemed to be
Nonstatutory Stock Options.
14.9.
ACCELERATION FOR ANY OTHER
REASON. Regardless of whether an event has occurred as
described in Section 14.7 or 14.8 above, and subject to Section 14.11
as to Qualified Performance-Based Awards, the Committee may in its sole
discretion at any time determine that all or a portion of a Participant's
Options, SARs, and other Awards in the nature of rights that may be exercised
shall become fully or partially exercisable, that all or a part of the
time-based vesting restrictions on all or a portion of the outstanding Awards
shall lapse, and/or that any
12
performance-based
criteria with respect to any Awards shall be deemed to be wholly or partially
satisfied, in each case, as of such date as the Committee may, in its sole
discretion, declare; provided, however, the Committee shall not exercise such
discretion with respect to Full Value Awards comprised of Shares of Restricted
Stock or Restricted Stock Units which, in the aggregate, exceed five percent
(5%) of the aggregate number of Shares reserved and available for issuance
pursuant to Awards granted under the Plan; provided, further, that when
calculating whether the five percent (5%) maximum has been reached, the
Committee shall not count or consider any Shares of Restricted Stock or
Restricted Stock Units granted to Non-Employee Directors or regarding which
the
Committee accelerated vesting rights, waived restrictions or determined
performance-based criteria had been satisfied resulting from an event described
in Section 14.7, Article 15, a Participant's termination of employment
or separation from service resulting from death, Disability or for the
convenience or in the bests interests of the Company. The Committee may
discriminate among Participants and among Awards granted to a Participant in
exercising its discretion pursuant to this Section 14.9.
14.10. EFFECT
OF
ACCELERATION. If an Award is accelerated under
Section 14.7, Section 14.8 or Section 14.9, the Committee may, in
its sole discretion, provide (i) that the Award will expire after a
designated period of time after such acceleration to the extent not then
exercised, (ii) that the Award will be settled in cash rather than Stock,
(iii) that the Award will be assumed by another party to a transaction
giving rise to the acceleration or otherwise be equitably converted or
substituted in connection with such transaction, (iv) that the Award may be
settled by payment in cash or cash equivalents equal to the excess of the Fair
Market Value of the underlying Stock, as of a specified date associated with
the
transaction, over the exercise price of the Award, or (v) any combination
of the foregoing. The Committee's determination need not be uniform and may
be
different for different Participants whether or not such Participants are
similarly situated. To the extent that such acceleration causes Incentive Stock
Options to exceed the dollar limitation set forth in Code Section 422(d),
the excess Options shall be deemed to be Nonstatutory Stock
Options.
14.11. QUALIFIED
PERFORMANCE-BASED
AWARDS.
(a) The
provisions of the Plan are intended to ensure that all Options and Stock
Appreciation Rights granted hereunder to any Covered Employee shall qualify
for
the Section 162(m) Exemption; provided that the exercise or base price of
such Award is not less than the Fair Market Value of the Shares on the Grant
Date.
(b) When
granting any other Award, the Committee may designate such Award as a Qualified
Performance-Based Award, based upon a determination that the recipient is or
may
be a Covered Employee with respect to such Award, and the Committee wishes
such
Award to qualify for the Section 162(m) Exemption. If an Award is so
designated, the Committee shall establish performance goals for such Award
within the time period prescribed by Section 162(m) of the Code based on
one or more of the following Qualified Business Criteria, which may be expressed
in terms of Company-wide objectives or in terms of objectives that relate to
the
performance of an Affiliate or a unit, division, region, department or function
within the Company or an Affiliate:
|
·
|
Gross
and/or net revenue (including whether in the aggregate or attributable
to
specific products)
|
|
·
|
Cost
of Goods Sold and Gross Margin
|
|
·
|
Costs
and expenses, including Research & Development and Selling,
General & Administrative
|
|
·
|
Income
(gross, operating, net, etc.)
|
|
·
|
Earnings,
including before interest, taxes, depreciation and amortization (whether
in the aggregate or on a per share
basis
|
|
·
|
Cash
flows and share price
|
|
·
|
Return
on investment, capital, equity
|
13
|
·
|
Manufacturing
efficiency (including yield enhancement and cycle time reductions),
quality improvements and customer
satisfaction
|
|
·
|
Product
life cycle management (including product and technology design,
development, transfer, manufacturing introduction, and sales price
optimization and management)
|
|
·
|
Economic
profit or loss
|
|
·
|
Market
share
|
|
·
|
Employee
retention, compensation, training and development, including succession
planning
|
|
·
|
Objective
goals consistent with the Participant's specific duties and
responsibilities, designed to further the financial, operational
and other
business interests of the Company, including goals and objectives
with
respect to regulatory compliance
matters.
|
Performance
goals with respect to the
foregoing Qualified Business Criteria may be specified in absolute terms
(including completion of pre-established projects, such as the introduction
of
specified products), in percentages, or in terms of growth from period to period
or growth rates over time as well as measured relative to an established or
specially-created performance index of Company competitors, peers or other
members of high tech industries. Any member of an index that disappears during
a
measurement period shall be disregarded for the entire measurement period.
Performance Goals need not be based upon an increase or positive result under
a
business criterion and could include, for example, the maintenance of the status
quo or the limitation of economic losses (measured, in each case, by reference
to a specific business criterion).
(c) Each
Qualified Performance-Based Award (other than an Option or SAR) shall be earned,
vested and payable (as applicable) only upon the achievement of performance
goals established by the Committee based upon one or more of the Qualified
Business Criteria, together with the satisfaction of any other conditions,
including the condition as to continued employment as set forth in subsection
(g) below, as the Committee may determine to be appropriate; provided,
however, that the Committee may provide, in its sole and absolute discretion,
either in connection with the grant thereof or by amendment thereafter, that
achievement of such performance goals will be waived upon the death or
Disability of the Participant, or upon a Change in Control. In addition, the
Committee has the right, in connection with the grant of a Qualified
Performance-Based Award, to exercise negative discretion to determine that
the
portion of such Award actually earned, vested and /or payable (as applicable)
shall be less than the portion that would be earned, vested and/or payable
based
solely upon application of the applicable performance goals. Performance periods
established by the Committee for any such Qualified Performance-Based Award
may
be as short as ninety (90) days and may be any longer period.
(d) The
Committee may provide in any Qualified Performance-Based Award, at the time
the
performance goals are established, that any evaluation of performance shall
include, exclude or otherwise equitably adjust for any of the following events
that occurs during a performance period: (a) asset write-downs or
impairment charges; (b) litigation or claim judgments or settlements;
(c) the effect of changes in tax laws, accounting principles or other laws
or provisions affecting reported results; (d) accruals for reorganization
and restructuring programs; (e) extraordinary nonrecurring items as
described in Accounting Principles Board Opinion No. 30 and /or in
management's discussion and analysis of financial condition and results of
operations appearing in the Company's annual report to stockholders for the
applicable year; (f) acquisitions or divestitures; and (g) foreign
exchange gains and losses. To the extent such inclusions or exclusions affect
Awards to Covered Employees, they shall be prescribed in a form and at a time
that meets the requirements of Code Section 162(m) for
deductibility.
(e) Any
payment of a Qualified Performance-Based Award granted with performance goals
pursuant to subsection (c) above shall be conditioned on the written
certification of the Committee in each case that
14
the
performance goals and any other material conditions were satisfied. Written
certification may take the form of a Committee resolution passed by a majority
of the Committee at a properly convened meeting or through unanimous action
by
the Committee via action by written consent. The certification requirement
also
may be satisfied by a separate writing executed by the Chairman of the
Committee, acting in his capacity as such, following the foregoing Committee
action or by the Chairman executing approved minutes of the Committee in
which
such determinations were made. Except as specifically provided in subsection
(c), no Qualified Performance-Based Award held by a Covered Employee or an
employee who in the reasonable judgment of the Committee may be a Covered
Employee on the date of payment, may be amended, nor may the Committee exercise
any discretionary authority it may otherwise have under the Plan with respect
to
a Qualified Performance-Based Award under the Plan, in any manner to waive
the
achievement of the applicable performance goal based on Qualified Business
Criteria or to increase the amount payable pursuant thereto or the value
thereof, or otherwise in a manner that would cause the Qualified
Performance-Based Award to cease to qualify for the Section 162(m)
Exemption.
(f) Section 5.4
sets forth the maximum number of Shares that may be granted in any one-year
period to a Participant in designated forms of stock-based Awards.
(g)
With respect to a Participant who is an officer of the Company, any
payment of a Qualified Performance-Based Award granted with performance goals
pursuant to subsection (c) above shall be conditioned on the officer having
remained continuously employed by the Company or an Affiliate for the entire
performance or measurement period, including, as well, through the date of
determination and certification of the payment of any such Award pursuant to
subsection (e) above (the "Certification Date"). For purposes of the Plan,
with respect to any given performance or measurement period, an officer of
the
Company (i) who terminates employment (regardless of cause) or who
otherwise ceases to be an officer, prior to the Certification Date, and
(ii) who, pursuant to a separate contractual arrangement with the Company
is entitled to receive payments from the Company thereunder extending to or
beyond such Certification Date as a result of such termination or cessation
in
officer status, shall be deemed to have been employed by the Company as an
officer through the Certification Date for purposes of payment
eligibility.
14.12. TERMINATION
OF
EMPLOYMENT. Whether military, government or other service or
other leave of absence shall constitute a termination of employment shall be
determined in each case by the Committee at its discretion, and any
determination by the Committee shall be final and conclusive. A Participant's
Continuous Status as a Participant shall not be deemed to terminate (i) in
a circumstance in which a Participant transfers from the Company to an
Affiliate, transfers from an Affiliate to the Company, or transfers from one
Affiliate to another Affiliate, or (ii) in the discretion of the Committee
as specified at or prior to such occurrence, in the case of a spin-off, sale
or
disposition of the Participant's employer from the Company or any Affiliate.
To
the extent that this provision causes Incentive Stock Options to extend beyond
three months from the date a Participant is deemed to be an employee of the
Company, a Parent or Subsidiary for purposes of Sections 424(e) and 424(f)
of
the Code, the Options held by such Participant shall be deemed to be
Nonstatutory Stock Options.
14.13. FORFEITURE
EVENTS. The Committee may specify in an Award Certificate that
the Participant's rights, payments and benefits with respect to an Award shall
be subject to reduction, cancellation, forfeiture or recoupment upon the
occurrence of certain specified events, in addition to any otherwise applicable
vesting or performance conditions of an Award. Such events shall include, but
shall not be limited to, termination of employment for cause, violation of
material Company or Affiliate policies, breach of noncompetition,
confidentiality or other restrictive covenants that may apply to the
Participant, or other conduct by the Participant that is detrimental to the
business or reputation of the Company or any Affiliate.
14.14. SUBSTITUTE
AWARDS. The Committee may grant Awards under the Plan in
substitution for stock and stock-based awards held by employees of another
entity who become employees of the Company or an Affiliate as a result of a
merger or consolidation of the former employing entity with the Company or
an
Affiliate or the acquisition by the Company or an Affiliate of property or
stock
of the former employing corporation. The Committee may direct that the
substitute awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances.
15
ARTICLE
15
CHANGES
IN CAPITAL STRUCTURE
15.1. MANDATORY
ADJUSTMENTS. In the event of a nonreciprocal transaction
between the Company and its stockholders that causes the per-share value of
the
Stock to change (including, without limitation, any stock dividend, stock split,
spin-off, rights offering, or large nonrecurring cash dividend), the
authorization limits under Section 5.1 and 5.4 shall be adjusted
proportionately, and the Committee shall make such adjustments to the Plan
and
Awards as it deems necessary, in its sole discretion, to prevent dilution or
enlargement of rights immediately resulting from such transaction. Action by
the
Committee may include: (i) adjustment of the number and kind of shares that
may be delivered under the Plan; (ii) adjustment of the number and kind of
shares subject to outstanding Awards; (iii) adjustment of the exercise
price of outstanding Awards or the measure to be used to determine the amount
of
the benefit payable on an Award; and (iv) any other adjustments that the
Committee determines to be equitable. Without limiting the foregoing, in the
event of a subdivision of the outstanding Stock (stock-split), a declaration
of
a dividend payable in Shares, or a combination or consolidation of the
outstanding Stock into a lesser number of Shares, the authorization limits
under
Section 5.1 and 5.4 shall automatically be adjusted proportionately, and
the Shares then subject to each Award shall automatically, without the necessity
for any additional action by the Committee, be adjusted proportionately without
any change in the aggregate purchase price therefor.
15.2. DISCRETIONARY
ADJUSTMENTS. Upon the occurrence or in anticipation of any
corporate event or transaction involving the Company (including, without
limitation, any merger, reorganization, recapitalization, combination or
exchange of shares, or any transaction described in Section 15.1), the
Committee may, in its sole discretion, provide (i) that Awards will be
settled in cash rather than Stock, (ii) that Awards will become immediately
vested and exercisable and will expire after a designated period of time to
the
extent not then exercised, (iii) that Awards will be assumed by another
party to a transaction or otherwise be equitably converted or substituted in
connection with such transaction, (iv) that outstanding Awards may be
settled by payment in cash or cash equivalents equal to the excess of the Fair
Market Value of the underlying Stock, as of a specified date associated with
the
transaction, over the exercise price of the Award, (v) that performance
targets and performance periods for Performance Awards will be modified,
consistent with Code Section 162(m) where applicable, or (vi) any
combination of the foregoing. The Committee's determination need not be uniform
and may be different for different Participants whether or not such Participants
are similarly situated.
15.3. GENERAL. Any
discretionary adjustments made pursuant to this Article 15 shall be subject
to the provisions of Section 16.2. To the extent that any adjustments made
pursuant to this Article 15 cause Incentive Stock Options to cease to
qualify as Incentive Stock Options, such Options shall be deemed to be
Nonstatutory Stock Options.
ARTICLE
16
AMENDMENT,
MODIFICATION AND TERMINATION
16.1.
AMENDMENT, MODIFICATION
AND
TERMINATION. The Board or the Committee may, at any time and
from time to time, amend, modify or terminate the Plan without stockholder
approval; provided, however, that if an amendment to the Plan would, in the
reasonable opinion of the Board or the Committee, either (i) materially
increase the number of Shares available under the Plan, (ii) expand the
types of awards under the Plan, (iii) materially expand the class of
participants eligible to participate in the Plan, (iv) materially extend
the term of the Plan, or (v) otherwise constitute a material change
requiring stockholder approval under applicable laws, policies or regulations
or
the applicable listing or other requirements of an Exchange, then such amendment
shall be subject to stockholder approval; and provided, further, that the Board
or Committee may condition any other amendment or modification on the approval
of stockholders of the Company for any reason, including by reason of such
approval being necessary or deemed advisable to (i) to comply with the
listing or other requirements of an Exchange, or (ii) to satisfy any other
tax, securities or other applicable laws, policies or regulations.
16.2.
AWARDS PREVIOUSLY
GRANTED. At any time and from time to time, the Committee may
amend, modify or terminate any outstanding Award without approval of the
Participant; provided, however:
(a) Subject
to the terms of the applicable Award Certificate, such amendment, modification
or termination shall not, without the Participant's consent, reduce or diminish
the value of such Award
16
determined
as if the Award had been exercised, vested, cashed in or otherwise settled
on
the date of such amendment or termination (with the per-share value of an Option
or Stock Appreciation Right for this purpose being calculated as the excess,
if
any, of the Fair Market Value as of the date of such amendment or termination
over the exercise or base price of such Award);
(b) The
original term of an Option may not be extended without the prior approval of
the
stockholders of the Company;
(c)
Except as otherwise provided in Article 15, the exercise price of an Option
may not be reduced, directly or indirectly, without the prior approval of the
stockholders of the Company; and
(d)
No termination, amendment, or modification of the Plan shall adversely affect
any Award previously granted under the Plan, without the written consent of
the
Participant affected thereby. An outstanding Award shall not be deemed to be
"adversely affected" by a Plan amendment if such amendment would not reduce
or
diminish the value of such Award determined as if the Award had been exercised,
vested, cashed in or otherwise settled on the date of such amendment (with
the
per-share value of an Option or Stock Appreciation Right for this purpose being
calculated as the excess, if any, of the Fair Market Value as of the date of
such amendment over the exercise or base price of such Award).
16.3.
COMPLIANCE
AMENDMENTS. Notwithstanding anything in the Plan or in any
Award Certificate to the contrary, the Committee may amend the Plan or an Award
Certificate, to take effect retroactively or otherwise, as deemed necessary
or
advisable for the purpose of conforming the Plan or Award Certificate to any
present or future law relating to plans of this or similar nature (including,
but not limited to, Section 409A of the Code), and to the administrative
regulations and rulings promulgated thereunder. By accepting an Award under
this
Plan, a Participant agrees to any amendment made pursuant to this
Section 16.3 to any Award granted under the Plan without further
consideration or action.
ARTICLE
17
GENERAL
PROVISIONS
17.1.
NO RIGHTS TO AWARDS;
NON-UNIFORM DETERMINATIONS. No Participant or any Eligible
Participant shall have any claim to be granted any Award under the Plan. Neither
the Company, its Affiliates nor the Committee is obligated to treat Participants
or Eligible Participants uniformly, and determinations made under the Plan
may
be made by the Committee selectively among Eligible Participants who receive,
or
are eligible to receive, Awards (whether or not such Eligible Participants
are
similarly situated).
17.2.
NO STOCKHOLDER
RIGHTS. No Award gives a Participant any of the rights of a
stockholder of the Company unless and until Shares are in fact issued to such
person in connection with such Award.
17.3.
SPECIAL PROVISIONS RELATED
TO
SECTION 409A OF THE CODE.
(a) Notwithstanding
anything in the Plan or in any Award Certificate to the contrary, to the extent
that any amount or benefit that would constitute non-exempt "deferred
compensation" for purposes of Section 409A of the Code would otherwise be
payable or distributable under the Plan or any Award Certificate by reason
of
the occurrence of a Change in Control, or the Participant's Disability or
separation from service, such amount or benefit will not be payable or
distributable to the Participant by reason of such circumstance unless
(i) the circumstances giving rise to such Change in Control, Disability or
separation from service meet any description or definition of "change in control
event", "disability" or "separation from service", as the case may be, in
Section 409A of the Code and applicable regulations (without giving effect
to any elective provisions that may be available under such definition), or
(ii) the payment or distribution of such amount or benefit would be exempt
from the application of Section 409A of the Code by reason of the
short-term deferral exemption or otherwise. This provision does not prohibit
the
vesting of any Award
upon a Change in Control, Disability or separation from service, however
defined. If this provision prevents the payment or distribution of any amount
or
benefit, such payment or distribution shall be made on the next earliest payment
or distribution date or event specified in the Award Certificate that is
permissible under Section 409A.
17
(b) If
any one or more Awards granted under the Plan to a Participant could qualify
for
any separation pay exemption described in Treas. Reg.
Section 1.409A-1(b)(9), but such Awards in the aggregate exceed the dollar
limit permitted for the separation pay exemptions, the Company (acting through
the Committee or the Company's President) shall determine which Awards or
portions thereof will be subject to such exemptions.
(c) Notwithstanding
anything in the Plan or in any Award Certificate to the contrary, if any amount
or benefit that would constitute non-exempt "deferred compensation" for purposes
of Section 409A of the Code would otherwise be payable or distributable
under this Plan or any Award Certificate by reason of a Participant's separation
from service during a period in which the Participant is a Specified Employee
(as defined below), then, subject to any permissible acceleration of payment
by
the Committee under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic
relations order), (j)(4)(iii) (conflicts of interest), or
(j)(4)(vi) (payment of employment taxes):
(i)
if the payment or distribution is payable in a lump sum, the Participant's
right
to receive payment or distribution of such non-exempt deferred compensation
will
be delayed until the earlier of the Participant's death or the first day of
the
seventh month following the Participant's separation from service;
and
(ii) if
the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month
period immediately following the Participant's separation from service will
be
accumulated and the Participant's right to receive payment or distribution
of
such accumulated amount will be delayed until the earlier of the Participant's
death or the first day of the seventh month following the Participant's
separation from service, whereupon the accumulated amount will be paid or
distributed to the Participant and the normal payment or distribution schedule
for any remaining payments or distributions will resume.
For
purposes of this Plan, the term
"Specified Employee" has the meaning given such term in Code Section 409A
and the final regulations thereunder, provided, however, that, as
permitted in such final regulations, the Company's Specified Employees and
its
application of the six-month delay rule of Code
Section 409A(a)(2)(B)(i) shall be determined in accordance with rules
adopted by the Board or any committee of the Board, which shall be applied
consistently with respect to all nonqualified deferred compensation arrangements
of the Company, including this Plan.
17.4.
WITHHOLDING. The
Company or any Affiliate shall have the authority and the right to deduct or
withhold, or require a Participant to remit to the Company, an amount sufficient
to satisfy federal, state, and local taxes (including the Participant's FICA
obligation) required by law to be withheld with respect to any exercise, lapse
of restriction or other taxable event arising as a result of the Plan. With
respect to withholding required upon any taxable event under the Plan, the
Committee may, at the time the Award is granted or thereafter, require or permit
that any such withholding requirement be satisfied, in whole or in part, by
withholding from the Award Shares having a Fair Market Value on the date of
withholding equal to the minimum amount (and not any greater amount) required
to
be withheld for tax purposes, all in accordance with such procedures as the
Committee establishes. All such elections shall be subject to any restrictions
or limitations that the Committee, in its sole discretion, deems
appropriate.
17.5.
NO RIGHT TO CONTINUED
SERVICE. Nothing in the Plan, any Award Certificate or any
other document or statement made with respect to the Plan, shall interfere
with
or limit in any way the right of the Company or any Affiliate to terminate
any
Participant's employment or status as an officer, director or consultant at
any
time, nor confer upon any Participant any right to continue as an employee,
officer, director or consultant of the Company or any Affiliate, whether for
the
duration of a Participant's Award or otherwise. Neither an Award nor any
benefits arising under this Plan shall constitute an employment contract with
the Company or any Affiliate and, accordingly, subject to Article 16, this
Plan and the benefits hereunder may be terminated at any time in the sole and
exclusive discretion of the Board of Directors without giving rise to any
liability on the part of the Company or an of its Affiliates.
18
17.6.
UNFUNDED STATUS OF
AWARDS. The Plan is intended to be an "unfunded" plan for
incentive and deferred compensation. With respect to any payments not yet made
to a Participant pursuant to an Award, nothing contained in the Plan or any
Award Certificate shall give the Participant any rights that are greater than
those of a general creditor of the Company or any Affiliate. This Plan is not
intended to be subject to ERISA.
17.7.
RELATIONSHIP TO OTHER
BENEFITS. No payment under the Plan shall be taken into
account in determining any benefits under any pension, retirement, savings,
profit sharing, group insurance, welfare or benefit plan of the Company or
any
Affiliate unless provided otherwise in such other plan.
17.8.
EXPENSES. The
expenses of administering the Plan shall be borne by the Company and its
Affiliates.
17.9.
TITLES AND
HEADINGS. The titles and headings of the Sections in the Plan
are for convenience of reference only, and in the event of any conflict, the
text of the Plan, rather than such titles or headings, shall
control.
17.10. GENDER
AND
NUMBER. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
17.11. FRACTIONAL
SHARES. No fractional Shares shall be issued and the Committee
shall determine, in its discretion, whether cash shall be given in lieu of
fractional Shares or whether such fractional Shares shall be eliminated by
rounding up or down.
17.12. GOVERNMENT
AND OTHER
REGULATIONS.
(a) Notwithstanding
any other provision of the Plan, no Participant who acquires Shares pursuant
to
the Plan may, during any period of time that such Participant is an affiliate
of
the Company (within the meaning of the rules and regulations of the Securities
and Exchange Commission under the 1933 Act), sell such Shares, unless such
offer
and sale is made (i) pursuant to an effective registration statement under
the 1933 Act, which is current and includes the Shares to be sold, or
(ii) pursuant to an appropriate exemption from the registration requirement
of the 1933 Act, such as that set forth in Rule 144 promulgated under the
1933 Act.
(b) Notwithstanding
any other provision of the Plan, if at any time the Committee shall determine
that the registration, listing or qualification of the Shares covered by an
Award upon any Exchange or under any foreign, federal, state or local law or
practice, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting
of
such Award or the purchase or receipt of Shares thereunder, no Shares may be
purchased, delivered or received pursuant to such Award unless and until such
registration, listing, qualification, consent or approval shall have been
effected or obtained free of any condition not acceptable to the Committee.
Any
Participant receiving or purchasing Shares pursuant to an Award shall make
such
representations and agreements and furnish such information as the Committee
may
request to assure compliance with the foregoing or any other applicable legal
requirements. The Company shall not be required to issue or deliver any
certificate or certificates for Shares under the Plan prior to the Committee's
determination that all related requirements have been fulfilled. The Company
shall in no event be obligated to register any securities pursuant to the 1933
Act or applicable state or foreign law or to take any other action in order
to
cause the issuance and delivery of such certificates to comply with any such
law, regulation or requirement.
17.13. GOVERNING
LAW. To
the extent not governed by federal law, the Plan and all Award Certificates
shall be construed in accordance with and governed by the laws of the State
of
Delaware.
17.14. ADDITIONAL
PROVISIONS. Each Award Certificate may contain such other
terms and conditions as the Committee may determine; provided that such other
terms and conditions are not inconsistent with the provisions of the
Plan.
19
17.15. NO
LIMITATIONS ON RIGHTS OF
COMPANY. The grant of any Award shall not in any way affect
the right or power of the Company to make adjustments, reclassification or
changes in its capital or business structure or to merge, consolidate, dissolve,
liquidate, sell or transfer all or any part of its business or assets. The
Plan
shall not restrict the authority of the Company, for proper corporate purposes,
to draft or assume awards, other than under the Plan, to or with respect to
any
person. If the Committee so directs, the Company may issue or transfer Shares
to
an Affiliate, for such lawful consideration as the Committee may specify, upon
the condition or understanding that the Affiliate will transfer such Shares
to a
Participant in accordance with the terms of an Award granted to such Participant
and specified by the Committee pursuant to the provisions of the
Plan.
17.16. INDEMNIFICATION. Each
person who is or shall have been a member of the Committee, or of the Board,
or
an officer of the Company to whom authority was delegated in accordance with
Article 4 shall be indemnified and held harmless by the Company against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him or her in connection with or resulting from any
claim, action, suit, or proceeding to which he or she may be a party or in
which
he or she may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him or her in
settlement thereof, with the Company's approval, or paid by him or her in
satisfaction of any judgment in any such action, suit, or proceeding against
him
or her, provided he or she shall give the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes to handle
and
defend it on his or her own behalf, unless such loss, cost, liability, or
expense is a result of his or her own willful misconduct or except as expressly
provided by statute. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may
be
entitled under the Company's Certificate of Incorporation or Bylaws, as a matter
of law, or otherwise, or any power that the Company may have to indemnify them
or hold them harmless.
| 20 |
Exhibit
4.2
2007
Equity Incentive Plan
Name: <Employee
Name>
Notice
of Award and Restricted Stock Unit Agreement
ID:
Grant
Number:
Address:
Effective
(Grant Date), you have been awarded ______ restricted stock units which are
convertible into shares of Micron Technology, Inc. (the Company) Common
Stock.
This
Restricted Stock Unit Award is subject to the following:
1. The
terms and conditions
of the Restricted Stock Unit Award Agreement, and
2. The
terms and conditions
of the 2007 Equity Incentive Plan (the “Plan”).
Please
review the Restricted Stock Unit Agreement and the Plan carefully, as they
contain the terms and conditions which govern your Restricted Stock Unit
Award. In addition, a Prospectus summarizing the Plan and the Insider
Trading Calendar and Policy are available for your review.
Unless
sooner vested in accordance with Section 3 of the Restricted Stock Unit
Agreement or otherwise in the discretion of the Committee, the restricted stock
units shall vest (become non-forfeitable) on the following respective dates;
provided Grantee is then still employed by the Company or any Affiliate, or
if
the Units were granted to Grantee in the capacity of a director of the Company,
Grantee then still serves as a director of the Company.
|
VestingSchedule
|
|
|
Units
|
Vesting
Date
|
Acknowledgement
Grantee
hereby acknowledges that he/she has reviewed (i) the terms and conditions of
the
Restricted Stock Unit Agreement and (ii) Plan, and is familiar with the
provisions thereof. Grantee hereby accepts this Award subject to all
the terms and provisions of the Restricted Stock Unit Agreement and the
Plan. Grantee acknowledges that a Prospectus relating to the Plan was
made available for review. Grantee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Committee
upon any questions arising under the Plan.
Grantee
acknowledges that the grant and acceptance of this Award do not constitute
an
employment agreement and do not assure continuous employment with the Company
or
any of its Affiliates.
Grantee
authorizes the Company to release his/her Social Security Number or Global
ID
and address information to the Company's Broker who has agreed to provide
brokerage service for Plan participants for the purposes of opening an account
under his/her name.
After
accepting this Award and the Restricted Stock Unit Agreement, you will receive
an e-mail summarizing the terms of this Award. Please print your e-mail
confirmation.
To
accept
or reject this Award and the Restricted Stock Unit Agreement, click
below:
Accept Reject
RESTRICTED
STOCK UNIT AGREEMENT
TERMS
AND CONDITIONS
1. Grant
of
Units. The Company hereby grants to the Grantee named on the
Notice of Award (“Grantee”), subject to the restrictions and the other terms and
conditions set forth in the Plan and in this award agreement (this “Agreement”),
the number of restricted stock units indicated on the Notice of Award (the
“Units”), which represent the right to receive an equal number of shares of the
Company’s $0.10 par value common stock (“Stock”) on the terms set forth in this
Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Plan.
2. Vesting
of
Units. The Units have been credited to a bookkeeping account
on behalf of Grantee. The Units will vest and become non-forfeitable
on the earliest to occur of the following (the “Vesting Date”):
|
|
(a)
|
as
to the percentages of the Units specified contained in the vesting
schedule hereof, on the respective dates specified contained in the
vesting schedule hereof; provided Grantee is then still employed
by the
Company or any Affiliate or, if the Units were granted to Grantee
in the
capacity of a director of the Company, Grantee still serves as a
director
of the Company; or
|
|
|
(b)
|
Termination
of Grantee’s service as a director of the Company or employment by the
Company and all Affiliates by reason of death or Disability; or
|
|
|
(c)
|
Upon
the occurrence of a Change in Control.
|
If
Grantee’s service terminates prior
to the Vesting Date for any reason other than as described in (b) above, Grantee
shall forfeit all right, title and interest in and to the unvested Units as
of
the date of such termination of service and the unvested Units will be
reconveyed to the Company without further consideration or any act or action
by
Grantee. For purpose of Section 409A of the Code, any reference
herein to Grantee’s “termination of employment” or “termination of service” or
similar words shall be interpreted to mean Grantee’s “separation from service”
as defined in Code section 409A and Treasury regulations and guidance with
respect to such law.
3. Conversion
to
Stock. Unless the Units are forfeited prior to the Vesting
Date as provided in section 2 above, the Units will be converted to actual
shares of Stock on the Vesting Date (the “Conversion Date”). Shares
of Stock will be registered on the books of the Company in Grantee’s name as of
the Conversion Date. Stock certificates for the shares of Stock shall
be delivered to Grantee upon request, but delivery may be postponed for such
period as may be required for the Company with reasonable diligence to comply
if
deemed advisable by the Company, with registration requirements under the
Securities Act of 1933, listing requirements under the rules of any stock
exchange, and requirements under any other law or regulation applicable to
the
issuance or transfer of the Shares.
4. Dividend
Equivalents. If and when dividends or other distributions are
paid with respect to the Stock while the Units are outstanding, the dollar
amount or fair market value of such dividends or distributions with respect
to
the number of shares of Stock then underlying the Units shall be paid to Grantee
within 30 days after the payment date of such dividend or distribution to
stockholders.
5. Changes
in Capital
Structure. In the event the Stock shall be changed into or
exchanged for a different number or class of shares of stock or securities
of
the Company or of another company, whether through reorganization,
recapitalization, statutory share exchange, reclassification, stock split-up,
combination of shares, merger or consolidation, or otherwise, there shall be
substituted for each share of Stock then underlying a Unit subject to this
Agreement the number and class of shares into which each outstanding share
of
Stock shall be so exchanged. In addition, the adjustment provisions of Article
15 of the Plan shall specifically apply to this Award.
6. Restrictions
on
Transfer. No right or interest of Grantee in the Units may be
pledged, hypothecated or otherwise encumbered to or in favor of any party other
than the Company or an Affiliate, or be subjected to any lien, obligation or
liability of Grantee to any other party other than the Company or an
Affiliate. Units are not assignable or transferable by Grantee other
than by will or the laws of descent and distribution or pursuant to a domestic
relations order that would satisfy Section 414(p)(1)(A) of the Code; but the
Committee may permit other transfers in accordance with the Plan.
7. Limitation
of
Rights. The Units do not confer to Grantee or Grantee’s
beneficiary any rights of a stockholder of the Company unless and until shares
of Stock are in fact issued to such person in connection with the
Units. Nothing in this Agreement shall interfere with or limit in any
way the right of the Company or any Affiliate to terminate Grantee’s service at
any time, nor confer upon Grantee any right to continue in service of the
Company or any Affiliate. Grantee waives all and any rights to any
compensation or damages for the termination of Grantee's office or employment
with the Company or an Affiliate for any reason (including unlawful termination
of employment) insofar as those rights arise from Grantee ceasing to have rights
in relation to the Units as a result of that termination or from the loss or
diminution in value of such rights. The grant of the Units does not
give Grantee any right to participate in any future grants of share incentive
awards.
8. Payment
of
Taxes. Grantee will, no later than the date as of which any
amount related to the Units first becomes includable in Grantee’s gross income
for federal income tax purposes, pay to the Company, or make other arrangements
satisfactory to the Committee regarding payment of, any federal, state and
local
taxes of any kind (including Grantee’s FICA obligation) required by law to be
withheld with respect to such amount. The obligations of the Company
under this Agreement will be conditional on such payment or arrangements, and
the Company, and, where applicable, its Affiliates will, to the extent permitted
by law, have the right to deduct any such taxes from any payment of any kind
otherwise due to Grantee. The withholding requirement may be
satisfied, in whole or in part, at the election of the Company, by withholding
from the Award Shares having a Fair Market Value on the date of withholding
equal to the minimum amount
(and
not
any greater amount) required to be withheld for tax purposes, all in accordance
with such procedures as the Company establishes.
9. Amendment. The
Committee may amend, modify or terminate the Award, Notice of Award and this
Agreement without approval of Grantee; provided, however, that such
amendment, modification or termination shall not, without Grantee’s consent,
reduce or diminish the value of this award determined as if it had been fully
vested (i.e., as if all restrictions on the Units hereunder had expired) on
the
date of such amendment or termination. Notwithstanding anything
herein to the contrary, the Committee may, without Grantee’s consent, amend or
interpret this Agreement to the extent necessary to comply with Section 409A
of
the Code and Treasury regulations and guidance with respect to such
law.
10. Plan
Controls. The terms contained in the Plan shall be and are
hereby incorporated into and made a part of the Notice of Award and this
Agreement, and this Agreement shall be governed by and construed in accordance
with the Plan. In the event of any actual or alleged conflict between
the provisions of the approved Plan and the provisions of the Notice of Award
or
this Agreement, the provisions of the Plan shall be controlling and
determinative.
11. Successors. This
Agreement shall be binding upon any successor of the Company, in accordance
with
the terms of this Agreement and the Plan.
12. Severability. If
any one or more of the provisions contained in the Notice of Award or this
Agreement is deemed to be invalid, illegal or unenforceable, the other
provisions of the Notice of Award and this Agreement will be construed and
enforced as if the invalid, illegal or unenforceable provision had never been
included.
13. Notice. Notices
hereunder must be in writing and either personally delivered or sent by
registered or certified United States mail, return receipt requested, postage
prepaid. Notices to the Company must be addressed to Micron
Technology, Inc., 8000 South Federal Way, Boise, Idaho 83706-9632; Attn:
Secretary, or any other address designated by the Company in a written notice
to
Grantee. Notices to Grantee will be directed to the address of Grantee then
currently on file with the Company, or at any other address given by Grantee
in
a written notice to the Company.
14. Data
processing. By accepting the Units, Grantee gives explicit
consent to the Company to process any such personal data and to transfer any
such personal data outside the country in which Grantee works or is employed,
including to the United States, to transferees who shall include the Company
and
other persons who are designated by the Company to administer the
Plan.
2007
Equity Incentive
Plan
Name: <Employee
Name>
Notice
of Grant of Stock Options
and
OptionAgreement
ID:
Grant
Number:
Address:
Effective
(Grant Date), you have been granted a Nonqualified Stock Option to purchase
______ shares of Micron Technology, Inc. (the Company) Common Stock at
$____(USD) per share.
This
Option Grant is subject to the following:
1. The
terms and conditions of the Option Agreement and
2. The
terms and conditions of the 2007 Equity Incentive Plan (the
“Plan”).
Please
review the Option Agreement and the Plan carefully, as they contain the terms
and conditions which govern your option. In addition, a Prospectus summarizing
the Plan and the Insider Trading Calendar and Policy are available for your
review.
Subject
to your continued employment, this Option may be exercised in whole or in
part,
in accordance with the following schedule:
|
Vesting
Schedule
|
||
|
Shares
|
Vesting
Date
|
Expiration
Date
|
Termination
Period
This
Option may be exercised for 30 days after termination of Optionee's employment
or consulting relationship with the Company for any reason other than by reason
of Optionee’s death or Disability. Upon the death or Disability of Optionee,
this Option may be exercised for such longer period as provided in this Option
Agreement. In no event shall this option be exercised later than the Expiration
Date as provided above.
Acknowledgement
Optionee
hereby acknowledges that he/she has reviewed (i) the terms and conditions of
this Option
Agreement and (ii) the Plan, and
is familiar
with the provisions thereof. Optionee hereby accepts this Option subject to
all
of the terms and provisions of the Option Agreement and the Plan. Optionee
acknowledges that a Prospectus relating
to the Plan was made available for review. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of
the
Committee upon any questions arising under the Plan.
Optionee
acknowledges that the grant or acceptance of this Option do not constitute
an
employment agreement and do not assure continuous employment or other service
with the Company or any of its Affiliates.
Optionee
authorizes the Company to release his/her Social Security Number or Global
ID
and address information to the Company's Broker who has agreed to provide
brokerage service for Plan participants for the purposes of opening an account
under his/her name.
After
accepting this Option and the Option Agreement, you will receive an e-mail
summarizing the terms of this Award. Please print your e-mail
confirmation.
To
accept
or reject this Option and the Option Agreement, click below:
Accept Reject
OPTION
AGREEMENT
TERMS
AND CONDITIONS
1. Grant
of
Option. The Company hereby grants to the Optionee named on the
Notice of Grant (“Optionee”), under the Plan, stock options to purchase from the
Company (the “Options”), on the terms and on conditions set forth in this
agreement (this “Agreement”), the number of shares indicated on the Notice of
Grant of the Company’s $0.10 par value common stock, at the exercise price per
share set forth on the Notice of Grant. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in
the
Plan.
2. Vesting
of
Options. The Option shall vest (become exercisable) in
accordance with the schedule shown on the Notice of Grant. Notwithstanding
the
foregoing vesting schedule, upon Optionee’s death or Disability during his or
her Continuous Status as a Participant, or upon a Change in Control, all Options
shall become fully vested and exercisable.
3. Term
of Options and
Limitations on Right to Exercise. The term of the Options will
be for a period of six years, expiring at 5:00 p.m., Mountain Time, on the
sixth
anniversary of the Grant Date (the “Expiration Date”). To the extent
not previously exercised, the Options will lapse prior to the Expiration Date
upon the earliest to occur of the following circumstances:
(a) Thirty
days after the termination of Optionee’s Continuous Status as a Participant for
any reason other than by reason of Optionee’s death or Disability.
(b) Twelve
months after termination of Optionee’s Continuous Status as Participant by
reason of Disability.
(c) Twelve
months after the date of Optionee’s death, if Optionee dies while employed, or
during the thirty day period described in subsection (a) above or during the
twelve-month period described in subsection (b) above and before the Options
otherwise lapse. Upon Optionee’s death, the Options may be exercised
by Optionee’s beneficiary designated pursuant to the Plan.
The
Committee may, prior to the lapse of the Options under the circumstances
described in paragraphs (a), (b) or (c) above, extend the time to exercise
the
Options as determined by the Committee in writing, but in no event beyond the
Expiration Date. If Optionee returns to service with the Company
during the designated post-termination exercise period, then Optionee shall
be
restored to the status Optionee held prior to such termination but no vesting
credit will be earned for any period Optionee was not in Continuous Status
as a
Participant. If Optionee or his or her beneficiary exercises an
Option after termination of service, the Options may be exercised only with
respect to the Shares that were otherwise vested on Optionee’s termination of
service.
4. Exercise
of
Option. The Options shall be exercised by (a) written notice
directed to the Global Stock Department of the Company or its designee at the
address and in the form specified by the Company from time to time and (b)
payment to the Company in full for the Shares subject to such exercise (unless
the exercise is a broker-assisted cashless exercise, as described
below). If the person exercising an Option is not Optionee, such
person shall also deliver with the notice of exercise appropriate proof of
his
or her right to exercise the Option. Payment for such Shares may be,
in (a) cash, (b) Shares previously acquired by the purchaser, (c) withholding
of
Shares from the Option, or (d) any combination thereof, for the number of Shares
specified in such written notice. The value of surrendered or
withheld Shares for this purpose shall be the Fair Market Value as of the last
trading day immediately prior to the exercise date. To the extent
permitted under Regulation T of the Federal Reserve Board, and subject to
applicable securities laws and any limitations as may be applied from time
to
time by the Committee (which need not be uniform), the Options may be exercised
through a broker in a so-called “cashless exercise” whereby the broker sells the
Option Shares on behalf of Optionee and delivers cash sales proceeds to the
Company in payment of the exercise price. In such case, the date of
exercise shall be deemed to be the date on which notice of exercise is received
by the Company and the exercise price shall be delivered to the Company by
the
settlement date.
5. Beneficiary
Designation. Optionee may, in the manner determined by the
Committee, designate a beneficiary to exercise the rights of Optionee hereunder
and to receive any distribution with respect to the Options upon Optionee’s
death. A beneficiary, legal guardian, legal representative, or other
person claiming any rights hereunder is subject to all terms and conditions
of
this Agreement and the Plan, and to any additional restrictions deemed necessary
or appropriate by the Committee. If no beneficiary has been
designated or survives Optionee, the Options may be exercised by the legal
representative of Optionee’s estate, and payment shall be made to Optionee’s
estate. Subject to the foregoing, a beneficiary designation may be
changed or revoked by Optionee at any time provided the change or revocation
is
filed with the Company.
6. Withholding. The
Company or any employer Affiliate has the authority and the right to deduct
or
withhold, or require Optionee to remit to the employer, an amount sufficient
to
satisfy federal, state, and local taxes (including Optionee’s FICA obligation)
required by law to be withheld with respect to any taxable event arising as
a
result of the exercise of the Options. The withholding requirement
may be satisfied, in whole or in part, at the election of the Company, by
withholding from the Options Shares having a Fair Market Value on the date
of
withholding equal to the minimum amount (and not any greater amount) required
to
be withheld for tax purposes, all in accordance with such procedures as the
Company establishes.
7. Limitation
of
Rights. The Options do not confer to Optionee or Optionee’s
beneficiary designated pursuant to Paragraph 5 any rights of a stockholder
of
the Company unless and until Shares are in fact issued to such person in
connection with the exercise of the Options. Nothing in this
Agreement shall interfere with or limit in any way the right of
the
Company or any Affiliate to terminate Optionee’s service at any time, nor confer
upon Optionee any right to continue in the service of the Company or any
Affiliate.
8. Stock
Reserve. The Company shall at all times during the term of
this Agreement reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Agreement.
9. Restrictions
on Transfer and
Pledge. No right or interest of Optionee in the Options may be
pledged, encumbered, or hypothecated to or in favor of any party other than
the
Company or an Affiliate, or shall be subject to any lien, obligation, or
liability of Optionee to any other party other than the Company or an
Affiliate. The Options are not assignable or transferable by Optionee
other than by will or the laws of descent and distribution or pursuant to a
domestic relations order that would satisfy Section 414(p)(1)(A) of the Code
if
such Section applied to an Option under the Plan; provided, however, that the
Committee may (but need not) permit other transfers. The Options may
be exercised during the lifetime of Optionee only by Optionee or any permitted
transferee.
10. Restrictions
on Issuance of
Shares. If at any time the Committee shall determine in its
discretion, that registration, listing or qualification of the Shares covered
by
the Options upon any Exchange or under any foreign, federal, or local law or
practice, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition to the exercise of the Options, the
Options may not be exercised in whole or in part unless and until such
registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee.
11. Amendment. The
Committee may amend, modify or terminate the Award, Notice
of Grant and this Agreement
without
approval of Optionee; provided, however, that such amendment, modification
or
termination shall not, without Optionee's consent, reduce or diminish the value
of this award determined as if it had been fully vested and exercised on the
date of such amendment or termination (with the per-share value being calculated
as the excess, if any, of the Fair Market Value over the exercise price of
the
Options).
12. Plan
Controls. The terms and conditions contained in the Plan are
incorporated into and made a part of the Notice of Grant and this Agreement,
and
the Notice of Grant and this Agreement shall be governed by and construed in
accordance with the Plan. In the event of any actual or alleged
conflict between the provisions of the Plan and the provisions of the Notice
of
Grant or this Agreement, the provisions of the Plan shall be controlling and
determinative.
13. Successors. This
Agreement shall be binding upon any successor of the Company, in accordance
with
the terms of this Agreement and the Plan.
14. Severability. If
any one or more of the provisions contained in the Notice of Grant or this
Agreement is invalid, illegal or unenforceable, the other provisions of Notice
of Grant and this Agreement will be construed and enforced as if the invalid,
illegal or unenforceable provision had never been included.
15. Notice. Notices
and communications under the Notice of Grant and this Agreement must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage
prepaid. Notices to the Company must be addressed to: Micron
Technology, Inc., 8000 S. Federal Way, P.O. Box 6, Boise, ID 83716-9632, Attn:
Secretary, or any other address designated by the Company in a written notice
to
Optionee. Notices to Optionee will be directed to the address of Optionee then
currently on file with the Company, or at any other address given by Optionee
in
a written notice to the Company.
16. Data
processing. By
accepting this Award, Optionee gives explicit consent to the Company to process
any such personal data and to transfer any such personal data outside the
country in which Optionee works or is employed, including to the United States,
to transferees who shall include the Company and other persons who are
designated by the Company to administer the Plan.
2007
Equity Incentive Plan
Name: <Employee
Name>
Notice
of Award and Restricted Stock Agreement
ID:
Grant
Number:
Address:
Effective
(Grant Date), you have been
awarded ________ shares of Micron Technology, Inc. (the Company) Common
Stock.
This
Restricted Stock Award is subject to the following:
1. The
terms and conditions
of this Restricted Stock Agreement and
2. The
terms and conditions
of the 2007 Equity Incentive Plan (the “Plan”).
Please
review the Restricted Stock
Agreement and the Plan carefully, as they contain the terms and conditions
which
govern your Restricted Stock Award. In addition, a Prospectus
summarizing the Plan and the Insider Trading Calendar and Policy are available
for your review.
Unless
sooner vested in accordance with
Section 3 of the Restricted Stock Agreement or otherwise in the discretion
of
the Committee, the restrictions imposed under Section 2 of the Restricted Stock
Agreement will expire as to the following number of Shares awarded hereunder,
on
the following respective dates; provided that Grantee is then still an employee
by the Company or any Affiliate, or if the Shares were granted to Grantee in
the
capacity of a director of the Company, Grantee then still serves as a director
of the Company:
|
Restriction
Lapse Schedule
|
|
|
Shares
|
Date
of Expiration of
Restrictions
|
Acknowledgement
Grantee
hereby acknowledges that he/she
has reviewed (i) the terms and conditions of this Restricted Stock Agreement
and
(ii) the Plan and is familiar with the provisions thereof. Grantee
hereby accepts this Award subject to all the terms and provisions of the
Restricted Stock Agreement and the Plan. Grantee acknowledges that a
Prospectus relating to the Plan was made available for
review. Grantee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Committee upon any questions
arising under the Plan.
Grantee
acknowledges that the grant and
acceptance of this Award do not constitute an employment agreement and do not
assure continuous employment with the Company or any of its
Affiliates. Grantee authorizes the Company to release his/her Social
Security Number or Global ID and address information to the Company's Broker
who
has agreed to provide brokerage service for Plan participants for the purposes
of opening an account under his/her name.
After
accepting this Award and the Restricted Stock Agreement, you will receive an
e-mail summarizing the terms of this Award. Please print your e-mail
confirmation.
To
accept
or reject this Award and the Restricted Stock Agreement, click
below:
Accept Reject
RESTRICTED
STOCK AGREEMENT
TERMS
AND CONDITIONS
1. Grant
of
Shares. The Company hereby grants to the Grantee named on the
Notice of Award (“Grantee”), subject to the restrictions and the other terms and
conditions set forth in the Plan and in this award agreement (this “Agreement”),
the number of shares indicated on the Notice of Award of the Company’s $0.10 par
value common stock (the “Shares”). Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Plan.
2. Restrictions. The
Shares are subject to each of the following restrictions. “Restricted
Shares” mean those Shares that are subject to the restrictions imposed hereunder
and such restrictions have not then expired or terminated. Restricted
Shares may not be sold, transferred, exchanged, assigned, pledged, hypothecated
or otherwise encumbered. If Grantee’s service as a director of the
Company or employment with the Company or any Affiliate terminates for any
reason other than as set forth in paragraph (b) of Section 3 hereof, then
Grantee shall forfeit all of Grantee’s right, title and interest in and to the
Restricted Shares as of the date of termination of such service or employment,
and such Restricted Shares shall revert to the Company without further
consideration or any act or action by Grantee. The restrictions
imposed under this Section shall apply to all shares of the Company’s common
stock or other securities issued in connection with any merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure affecting or with respect to the Shares.
3. Expiration
and Termination
of Restrictions. The restrictions imposed under Section 2 will
expire on the earliest to occur of the following (the period prior to such
expiration being referred to herein as the “Restricted Period”):
|
|
(a)
|
On
the respective expiration dates specified on the Notice of Award
as to the
number of Shares specified thereon; provided Grantee is then still
employed by the Company or any Affiliate or, if the Shares were granted
to
Grantee in the capacity of a director of the Company, Grantee still
serves
as a director of the Company;
|
|
|
(b)
|
Termination
of Grantee’s service as a director of the Company or employment by the
Company and all Affiliates by reason of death or Disability; or
|
|
|
(c)
|
Upon
the occurrence of a Change in Control.
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4. Delivery
of
Shares. The Shares will be registered in the name of Grantee
as of the Grant Date and will be held by the Company during the Restricted
Period in certificated or uncertificated form. If a certificate for
Restricted Shares is issued during the Restricted Period with respect to such
Shares, such certificate shall be registered in the name of Grantee and shall
bear a legend in substantially the following form:
“This
certificate and the shares of stock represented hereby are subject to the terms
and conditions (including forfeiture and restrictions against transfer)
contained in a Restricted Stock Agreement between the registered owner of the
shares represented hereby and Micron Technology, Inc. Release from
such terms and conditions shall be made only in accordance with the provisions
of such Agreement, copies of which are on file in the offices of Micron
Technology, Inc.”
Stock
certificates for the Shares, without the above legend, shall be delivered to
Grantee or Grantee’s designee upon request of Grantee after the expiration of
the Restricted Period, but delivery may be postponed for such period as may
be
required for the Company with reasonable diligence to comply if deemed advisable
by the Company, with registration requirements under the Securities Act of
1933,
listing requirements under the rules of an Exchange, and requirements under
any
other law or regulation applicable to the issuance or transfer of the
Shares.
5. Voting
and Dividend
Rights. Grantee, as beneficial owner of the Shares, shall have
full voting and dividend rights with respect to the Shares during and after
the
Restricted Period. If Grantee forfeits any rights he may have under
this Agreement in accordance with Section 2, Grantee shall no longer have any
rights as a stockholder with respect to the Restricted Shares or any interest
therein and Grantee shall no longer be entitled to receive dividends on such
stock.
6. Changes
in Capital
Structure. The adjustment provisions of Article 15 of the Plan
shall specifically apply to this Award.
7. Limitation
of
Rights. Nothing in this Agreement shall interfere with or
limit in any way the right of the Company or any Affiliate to terminate
Grantee’s service at any time, nor confer upon Grantee any right to continue in
service of the Company or any Affiliate. Grantee waives all and any
rights to any compensation or damages for the termination of Grantee's office
or
employment with the Company or an Affiliate for any reason (including unlawful
termination of employment) insofar as those rights arise from Grantee ceasing
to
have rights in relation to the Shares as a result of that termination or from
the loss or diminution in value of such rights. The grant of the
Shares does not give Grantee any right to participate in any future grants
of
share incentive awards.
8. Payment
of
Taxes. No later than 30 days after the date of grant of the
Shares hereunder, Grantee may make an election to be taxed upon such award
under
Section 83(b) of the Code. Grantee will, no later than the date as of
which any amount related to the Shares first becomes includable in Grantee’s
gross income for federal income tax purposes, pay to the Company, or make other
arrangements satisfactory to the Committee regarding payment of, any federal,
state and local taxes of any kind required by law to be withheld with respect
to
such amount. The obligations of the Company under this Agreement will
be conditional on such payment or arrangements, and the Company, and, where
applicable, its Affiliates will, to the extent permitted by law, have the right
to deduct any such taxes from any payment of any kind otherwise due to
Grantee. The withholding requirement may be satisfied, in whole or in
part, at the election of the Company, by allowing Grantee to surrender to the
Company a number of Shares from this Award having a Fair Market
Value
on
the date of withholding equal to the minimum amount (and not any greater amount)
required to be withheld for tax purposes, all in accordance with such procedures
as the Company establishes.
9. Amendment. The
Committee may amend,
modify or terminate the Award, Notice of Award and this Agreement without
approval of Grantee; provided, however, that such amendment, modification or
termination shall not, without Grantee’s consent, reduce or diminish the value
of this Award determined as if it had been fully vested on the date of such
amendment or termination.
10. Plan
Controls. The terms contained in the Plan are incorporated
into and made a part of the Notice of Award and this Agreement, and this
Agreement shall be governed by and construed in accordance with the
Plan. In the event of any actual or alleged conflict between the
provisions of the Plan and the provisions of the Notice of Award or this
Agreement, the provisions of the Plan shall be controlling and
determinative.
11. Successors. This
Agreement shall be binding upon any successor of the Company, in accordance
with
the terms of this Agreement and the Plan.
12. Severability. If
any one or more of the provisions contained in the Notice of Award or this
Agreement is deemed to be invalid, illegal or unenforceable, the other
provisions of the Notice of Award and this Agreement will be construed and
enforced as if the invalid, illegal or unenforceable provision had never been
included.
13. Notice.
Notices
and communications
under the Notice of Award and this Agreement must be in writing and either
personally delivered or sent by registered or certified United States mail,
return receipt requested, postage prepaid. Notices to the Company
must be addressed to: Micron
Technology, Inc., 8000 S.
Federal Way, P.O. Box 6,
Boise,
ID 83716-9632,
Attn:
Secretary, or any other
address designated by the Company in a written notice to Grantee. Notices to
Grantee will be directed to the address of Grantee then currently on file with
the Company, or at any other address given by Grantee in a written notice to
the
Company.
14. Data
processing. By
accepting this Award, Grantee gives explicit consent to the Company to process
any such personal data and to transfer any such personal data outside the
country in which Grantee works or is employed, including to the United States,
to transferees who shall include the Company and other persons who are
designated by the Company to administer the Plan.
Exhibit
5.1
December
27, 2007
Micron
Technology, Inc.
8000
South Federal Way
Boise,
ID 83707-0006
Ladies
and Gentlemen:
We
have
examined the Registration Statement on Form S-8 to be filed by you with the
Securities and Exchange Commission on or about December 27, 2007 (the
“Registration Statement”) in connection with the registration under the
Securities Act of 1933, as amended, of 30,000,000 shares of your Common Stock,
$0.10 par value (the “Shares”) reserved for issuance under the Micron
Technology, Inc. 2007 Equity Incentive Plan (the “Plan”). As your
legal counsel, we have examined the proceedings taken and are familiar with
the
proceedings proposed to be taken by you in connection with the sale and issuance
of the Shares under the Plan.
It
is our
opinion that, upon completion of the proceedings to be taken, or contemplated
by
us as your counsel to be taken by you, prior to issuance of the Shares pursuant
to the Registration Statement and the Plan, and upon completion of the
proceedings being taken in order to permit such transactions to be carried
out
in accordance with the securities laws of the various states where required,
the
Shares, when issued and sold in the manner referred to in the Plan and the
agreements which accompany the Plan, and in accordance with the Company's
Certificate of Incorporation, will be legally and validly issued, fully paid
and
nonassessable.
We
consent to the use of this opinion as an exhibit to the Registration Statement
and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and amendments thereto.
Very
truly yours,
WILSON
SONSINI GOODRICH & ROSATI,
Professional
Corporation
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the incorporation by reference in this Registration Statement on
Form
S-8 of our report dated October 24, 2007, relating to the financial statements,
financial statement schedule and the effectiveness of internal control over
financial reporting, which appears in Micron Technology, Inc.’s Annual Report on
Form 10-K for the year ended August 30, 2007.
/s/
PricewaterhouseCoopers LLP
San
Jose,
California
December
21, 2007