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EXHIBIT Q
MICRON TECHNOLOGY, INC.
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REGISTRATION RIGHTS AGREEMENT
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Dated as of July 20, 1998
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TABLE OF CONTENTS
Page
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1. Introduction........................................................ 1
2. Registration under Securities Act, etc.............................. 1
2.1 Registration on Request.................................... 1
2.2 Registration Procedures.................................... 2
2.3 Preparation; Reasonable Investigation...................... 5
2.4 Indemnification............................................ 5
3. Definitions......................................................... 8
4. Confidential Information............................................ 8
5. Restrictive Legend.................................................. 9
6. Notice of Proposed Transfers........................................ 9
7. Rule 144............................................................ 10
8. Amendments and Waivers.............................................. 10
9. Notices............................................................. 10
10. Assignment.......................................................... 10
11. Descriptive Headings................................................ 10
12. GOVERNING LAW....................................................... 10
13. Counterparts........................................................ 11
14. Entire Agreement.................................................... 11
15. SUBMISSION TO JURISDICTION.......................................... 11
16. Severability........................................................ 11
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 20, 1998 among Micron
Technology, Inc., a Delaware corporation ("Micron" or the "Company"), J.R.
Simplot Company, a Nevada corporation ("Simplot"), and Canadian Imperial Bank of
Commerce ("CIBC").
1. INTRODUCTION. Pursuant to a Revolving Loan Agreement and a
Pledge Agreement, each dated or to be dated on or shortly after the date hereof
between Simplot and CIBC, Simplot proposes to pledge to CIBC an aggregate of
7,600,000 shares (the "Shares") of the Company's common stock, par value $.10
per share ("Micron Stock"), and CIBC proposes to subsequently deliver such
Shares to satisfy its obligations to return shares of Micron Stock borrowed from
third parties. Micron is willing to provide certain registration rights to
Simplot and CIBC with respect to the Shares, and Simplot is willing to pay or
cause to be paid certain of the Company's expenses under this Agreement on the
terms set forth herein. Certain capitalized terms used in this Agreement are
defined in section 3 hereof; references to sections shall be to sections of this
Agreement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION ON REQUEST.
(a) REGISTRATION OF THE SHARES. At any time before the first
anniversary of this Agreement, upon the written request of Simplot, requesting
that the Company effect the registration under the Securities Act of all or part
of the Shares and specifying the intended method of disposition thereof, the
Company will, subject to the terms of this Agreement, use commercially
reasonable efforts to effect the registration under the Securities Act of the
Shares for disposition in accordance with the intended method of disposition
stated in Simplot's request (which method may include dispositions of the Shares
by CIBC), so as to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Common Stock so to be registered; provided,
however, that (i) the Company shall not be required to effect more than one
registration pursuant to this section 2.1(a) and that the registration statement
filed by the Company on June 29, 1998, as amended through the date of this
Agreement (File No. 333-57973), may be utilized by the Company to effect such
registration.
(b) REGISTRATION STATEMENT FORM. Registrations under this
section 2.1 shall be on such appropriate registration form of the Commission (i)
as shall be selected by the Company and (ii) as shall permit the disposition of
the Shares in accordance with the intended method or methods of disposition
specified in the request for such registration.
(c) EXPENSES. The party requesting a registration under this
section 2.1 shall pay or cause to be paid all Registration Expenses in
connection with any registration requested pursuant to this section 2.1. Simplot
and CIBC may by separate agreement allocate such Registration Expenses among
themselves and, in any event, shall be responsible for the fees and
disbursements of any counsel and accountants retained by them.
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(d) OTHER SHARES. The Company may register other securities in
a registration statement filed pursuant to this section 2.1.
2.2 REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF COMPANY. If and whenever the Company is
required to use commercially reasonable efforts to effect the registration of
the Shares under the Securities Act as provided in section 2.1, the Company
shall, as expeditiously as possible:
(i) prepare and within 10 days after Micron's receipt of a
request pursuant to section 2.1 file with the Commission the requisite
registration statement to effect such registration; provided, however,
that before filing such registration statement or any amendments
thereto, the Company will furnish to the counsel for Simplot (and
counsel for CIBC if Simplot or CIBC has notified Micron that the
intended method of distribution includes dispositions of the Shares by
CIBC) copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel;
(ii) cause such registration statement to become and remain
effective for a period of not more than five business days after the
DTC Deposit Date (as defined in subdivision (iii) below) and to comply
with the provisions of the Securities Act with respect to the
disposition of all Shares covered by such registration statement,
including without limitation the preparation and filing with the
Commission of all required amendments and supplements to such
registration statement or the related prospectus;
(iii) cooperate with Simplot and CIBC to facilitate the
preparation and delivery to The Depository Trust Company ("DTC") (the
date of such delivery being hereinafter referred to as the "DTC Deposit
Date") as soon as practicable after the effectiveness of the
registration statement of certificates representing Shares to be
disposed of, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with DTC; and to enable
such Shares to be registered in such names as Simplot or CIBC, as
applicable, may request;
(iv) furnish to Simplot (and CIBC if Simplot or CIBC has
notified Micron that the intended method of distribution includes
dispositions of Shares by CIBC) such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus contained in such registration statement (including each
preliminary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as Simplot or CIBC, as
applicable, may reasonably request in order to facilitate the
disposition of the Shares in accordance with the intended method of
disposition;
(v) register or qualify the Shares under such other
securities laws or blue sky laws of such jurisdictions as Simplot (or
CIBC if Simplot or CIBC has notified Micron that the intended method
of distribution includes dispositions of Shares by CIBC) shall
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reasonably request, to keep such registrations or qualifications in
effect for so long as such registration statement remains in effect,
and take any other action which may be reasonably necessary or
advisable to enable Simplot or CIBC, as applicable, to consummate the
disposition in such jurisdictions of the Shares, except that the
Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it
would not otherwise be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(vi) for so long as such registration statement remains in
effect, use all commercially reasonable efforts to cause all the Shares
to be registered with or approved by such governmental agencies or
authorities as Simplot (and CIBC if Simplot or CIBC has notified Micron
that the intended method of distribution includes dispositions of
Shares by CIBC) shall reasonably request to enable Simplot or CIBC, as
applicable, to consummate the disposition of the Shares;
(vii) notify Simplot (and CIBC if Simplot or CIBC has notified
Micron that the intended method of distribution includes dispositions
of Shares by CIBC) promptly and confirm such advice in writing promptly
thereafter:
(1) when the registration statement, the prospectus
or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and,
with respect to the registration statement or any
post-effective amendment thereto, when the same has become
effective;
(2) of any request by the Commission for amendments
or supplements to the registration statement or the prospectus
or for additional information;
(3) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration
statement or the initiation of any proceedings by any Person
for that purpose; and
(4) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Shares for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for
such purpose;
(viii) notify Simplot and CIBC, at any time when with respect
to the Shares a prospectus relating thereto is required to be delivered
under the Securities Act, upon the Company's discovery that, or upon
the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing,
and promptly prepare, file with the Commission and furnish to Simplot
and CIBC a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers
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of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(ix) obtain the withdrawal of any order suspending the
effectiveness of the registration statement at the earliest possible
moment; and
(x) otherwise comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of
at least 12 months, but not more than 18 months, beginning with the
first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder, and
furnish to Simplot (and CIBC if Simplot or CIBC has notified Micron
that the intended method of distribution includes dispositions of
Shares by CIBC) at least five business days prior to the filing thereof
a copy of any amendment or supplement to such registration statement or
prospectus and shall not file any thereof to which Simplot (or CIBC, if
applicable) shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with
the requirements of the Securities Act.
(b) INFORMATION TO BE FURNISHED TO COMPANY. Simplot (and CIBC
if Simplot or CIBC has notified Micron that the intended method of distribution
includes dispositions of Shares by CIBC) shall furnish the Company such
information regarding itself, its ownership of the Company's securities and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
(c) DOCUMENTS NOT TO BE FILED. The Company will not file any
registration statement or amendment thereto or any prospectus or any supplement
thereto (including such documents incorporated by reference and proposed to be
filed after the initial filing of the registration statement) in satisfaction of
its obligations pursuant to this section 2 to which Simplot (or CIBC if Simplot
or CIBC has notified Micron that the intended method of distribution includes
dispositions of Shares by CIBC) shall reasonably object, provided that the
Company may file such document in a form required by law or upon the advice of
its counsel.
(d) DISCONTINUANCE OF DISPOSITION. Upon receipt of any notice
from the Company of the occurrence of any event of the kind described in
subdivision (viii) of section 2.2(a), each of Simplot and CIBC will forthwith
discontinue its disposition of the Shares pursuant to the registration statement
relating thereto until its receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (viii) of section 2.2(a) and, if so
directed by the Company, will at its own expense deliver to the Company all
copies, other than permanent file copies, then in its possession of the
prospectus relating to the Shares current at the time of receipt of such notice.
In the event the Company shall give any such notice, the period mentioned in
subdivision (ii) of section 2.2(a) shall be extended by the length of the period
from and including the date Simplot and CIBC shall have received such notice to
the date
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on which Simplot and CIBC shall have received the copies of the supplemented or
amended prospectus contemplated by subdivision (viii) of section 2.2(a).
2.3 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give Simplot and its counsel (and
CIBC and its counsel if Simplot or CIBC has notified Micron that the intended
method of distribution includes dispositions of Shares by CIBC) the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each amendment
thereof or supplement thereto, and will give each of them such access to its
financial books and records and such opportunities to discuss the business of
the Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
counsel to Simplot or CIBC, as applicable, to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not be responsible
for any cost or expense incurred by Simplot, CIBC or their respective counsel
pursuant to this section 2.3. All information obtained by Simplot, CIBC or their
respective counsel pursuant to this section 2.3 shall be subject to the
confidentiality provisions of section 4.
2.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of the Shares under the Securities Act pursuant to the terms of
this Agreement, the Company shall indemnify and hold harmless (i) Simplot, its
directors and officers and each other Person, if any, who controls Simplot
within the meaning of the Securities Act (Simplot and all such directors,
officers and controlling persons collectively, "Simplot Indemnitees"), and (ii)
CIBC, its directors and officers and each other Person, if any, who controls
CIBC within the meaning of the Securities Act (CIBC and all such directors,
officers and controlling persons collectively, "CIBC Indemnitees"), against any
losses, claims, damages or liabilities, joint or several ("Indemnifiable
Losses"), to which any Simplot Indemnitee or CIBC Indemnitee may become subject
under the Securities Act or otherwise, insofar as such Indemnifiable Losses (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and the Company will reimburse each Simplot Indemnitee and each CIBC Indemnitee
for any legal or any other expenses ("Indemnifiable Expenses") reasonably
incurred by them in connection with investigating or defending any such
Indemnifiable Loss, provided that the Company shall not be liable to any Simplot
Indemnitee or CIBC Indemnitee in any such case to the extent that any such
Indemnifiable Loss (or action or proceeding in respect thereof) or Indemnifiable
Expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
in any related preliminary prospectus or final prospectus, or in any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
Simplot (in the case of a
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Simplot Indemnitee) or CIBC (in the case of a CIBC Indemnitee). Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Simplot Indemnitee or CIBC Indemnitee and shall survive the
transfer of the Shares by Simplot or CIBC.
(b) INDEMNIFICATION BY SIMPLOT. Simplot shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this section 2.4) the Company, each director of the Company,
each officer of the Company and each other person, if any, who controls the
Company within the meaning of the Securities Act (the Company and all such
directors, officers and controlling persons collectively, "Micron Indemnitees"),
with respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any related preliminary prospectus or
final prospectus, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by Simplot specif ically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, amendment or supplement. Such indemnity shall remain in full f orce
and effect, regardless of any investigation made by or on behalf of any Micron
Indemnitee and shall survive the transfer of such securities by Simplot or CIBC.
(c) INDEMNIFICATION BY CIBC. CIBC shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this section 2.4) each Micron Indemnitee, with respect to any statement
or alleged statement in or omission or alleged omission from such registration
statement, any related preliminary prospectus or final prospectus, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by CIBC specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of such securities
by Simplot or CIBC.
(d) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving an Indemnifiable Loss, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action, provided that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
section 2.4, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that the indemnifying
party may wish, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election so
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to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any Indemnifiable Expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation. No indemnified party shall
consent to entry of any judgment or enter into any settlement of any such action
the defense of which has been assumed by an indemnifying party without the
consent of such indemnifying party.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by
this section 2.4 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense upon 30 days' written invoice of such
Indemnifiable Loss or Indemnifiable Expense.
(f) CONTRIBUTION. If the indemnification provided for in the
preceding subdivisions of this section 2.4 is unavailable to an indemnified
party in respect of any Indemnifiable Loss, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Indemnifiable Loss in
such proportion as is appropriate to reflect the relative fault of the Company,
Simplot and CIBC, respectively, in connection with the statements or omissions
which resulted in such Indemnifiable Loss, as well as any other relevant
equitable considerations. The relative fault of the Company, Simplot and CIBC,
respectively, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, Simplot or CIBC,
as applicable, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
provided that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the provisions contained in the f irst sentence
of subdivision (a) of this section 2.4, and in no event shall the obligation of
any indemnifying party to contribute under this subdivision (g) exceed the
amount that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a), (b)
or (c) of this section 2.4 had been available under the circumstances.
The Company, Simplot and CIBC agree that it would not be just and
equitable if contribution pursuant to this subdivision (g) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
Indemnifiable Losses shall be deemed to include, subject to the limitations set
forth in the preceding sentence and subdivision (d) of this section 2.4, any
Indemnifiable Expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim.
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Notwithstanding the provisions of this subdivision (g), neither Simplot
nor CIBC shall be required to contribute any amount in excess of the amount by
which the net proceeds (including loan repayments) received by Simplot or CIBC,
as applicable, from the disposition of the Shares exceeds, in any such case, the
amount of any damages that Simplot or CIBC, as applicable, has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
3. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective
meanings:
Commission: The Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this
Agreement.
Exchange Act: The Securities Exchange Act of 1934, and the
rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
Person: A corporation, association, partnership, limited
liability company, organization, business, individual, government or
political subdivision thereof or a governmental agency.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with section 2, including, without
limitation, all registration and filing fees, all fees and expenses of
complying with securities or blue sky laws, all duplicating and
printing expenses, messenger and delivery expenses, the reasonable fees
and disbursements of a single outside counsel for the Company. Such
expenses shall not include salaries of Company personnel or general
overhead expenses of the Company, auditing fees, or other expenses for
the preparation of financial statements or other data normally prepared
by the Company in the ordinary course of its business or which the
Company would have incurred in any event.
Securities Act: The Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as shall be in effect at
the time.
Shares: As defined in section 1.
4. CONFIDENTIAL INFORMATION. Each of Simplot and CIBC agrees that
any information obtained pursuant to this Agreement which is, or would
reasonably be perceived to be, proprietary to the Company or otherwise
confidential will not be disclosed without the prior written consent of the
Company, except that (i) Simplot or CIBC, as applicable, may disclose such
information, on a need-to-know basis, to its employees, accountants or attorneys
(so long as each such person to whom confidential information is disclosed
agrees to keep such
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information confidential), or (ii) as required by applicable law or regulation
based on the written advice of counsel (a copy of which shall be provided to the
Company unless Simplot or CIBC, as applicable, is prevented from revealing such
disclosure by such applicable law or regulation or the relevant government
agency requesting such disclosure) or in compliance with a court order or when
otherwise necessary to enforce any of their rights hereunder. Each of Simplot
and CIBC further acknowledges, understands and agrees that any confidential
information will not be utilized in connection with purchases and/or sales of
the Company's securities except in compliance with applicable state and federal
antifraud statutes.
5. RESTRICTIVE LEGEND. During all periods of time in which an
effective registration statement of the Shares under the Securities Act is not
in effect, each certificate representing any portion or all of the Shares and
any certificate reflecting any stock split, stock dividend, recapitalization,
merger, consolidation or similar event with respect to the Shares shall (unless
otherwise permitted by the provisions of section 6) be stamped or otherwise
imprinted with the following legend (in addition to any legend required under
applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD,
ASSIGNED, PLEDGED OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO IT STATING THAT SUCH SALE, PLEDGE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT."
Each party consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Company Shares in order to
implement the restrictions on transfer established in this Agreement.
6. NOTICE OF PROPOSED TRANSFERS. Prior to any proposed sale,
pledge, assignment or transfer (any of the foregoing, a "Transfer") of any
Shares (other than a Transfer not involving a change in beneficial ownership)
unless there is in effect a registration statement under the Securities Act
covering the proposed Transfer or unless such proposed transfer satisfies all of
the then-applicable requirements of Rule 144, the holder thereof shall give
written notice to the Company of such holder's intention to effect such
Transfer. Each such notice shall describe the manner and circumstances of the
proposed Transfer in sufficient detail, and shall be accompanied, at such
holder's expense by either an unqualified written opinion of legal counsel who
shall, and whose legal opinion shall, be reasonably satisfactory to the Company
addressed to the Company, to the effect that the proposed Transfer of the Shares
may be effected without registration under the Securities Act, whereupon the
holder of such Shares shall be entitled to transfer such Shares in accordance
with the terms of the notice delivered by the holder to the Company. Each
certificate evidencing the Shares transferred as above provided shall bear,
unless such Transfer is made pursuant to an effective registration statement,
the appropriate restrictive legend set forth in section 5, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel
for such holder and the Company such legend is not required in order to
establish compliance with any provision of the Securities Act.
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7. RULE 144. The Company shall timely file the reports required
to be filed by it under the Securities Act and the Exchange Act (including but
not limited to the reports referred to in subparagraph (c) of Rule 144 adopted
by the Commission under the Securities Act) and will take such further action as
Simplot may reasonably request, all to the extent required from time to time to
enable Simplot or CIBC to sell Shares without registration under the Securities
Act pursuant to Rule 144 under the Securities Act, as amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission.
8. AMENDMENTS AND WAIVERS. This Agreement may be amended only
with the written consent of the parties hereto.
9. NOTICES. Except as otherwise provided in this Agreement, all
notices, requests and other communications to any Person provided for hereunder
shall be in writing and shall be given to such Person as follows:
(a) in the case of Simplot: J.R. Simplot Company, Attn:
General Counsel, One Capital Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(b) in the case of CIBC: Canadian Imperial Bank of Commerce,
Attn: Office of General Counsel, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, with copies to Canadian Imperial Bank of
Commerce, Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ & ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or
(c) in the case of the Company: Micron Technology, Inc., Attn:
General Counsel, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇;
or at such other address, or to the attention of such other officer, as such
Person shall have furnished to the other parties to this Agreement. Each such
notice, request or other communication shall be effective (i) if given by mail,
72 hours after such communication is deposited in the mails with first class,
postage prepaid, addressed as aforesaid or (ii) if given by any other means
(including, without limitation, by air courier), when delivered at the address
specified above.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
11. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and subsections of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
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GOVERNED BY, THE LAWS OF THE STATE OF IDAHO WITHOUT REFERENCE TO THE PRINCIPLES
OF CONFLICTS OF LAWS.
13. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. ENTIRE AGREEMENT. This Agreement and the Registration Rights
Agreement dated as of June 28, 1996 between the Company and CIBC embody the
entire agreements and understandings among the Company, Simplot and CIBC
relating to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter.
15. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF IDAHO OR
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE DISTRICT OF IDAHO OR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE PARTIES HEREBY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH PARTY BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH PARTY AT ITS
ADDRESS SPECIFIED IN SECTION 9. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE
TRIAL BY JURY, AND THE PARTIES HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
16. SEVERABILITY. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
MICRON TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice-President of Legal Affairs
J.R. SIMPLOT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice-President and Secretary
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ [ILLEGIBLE]
----------------------------------------------
Title: Managing Director
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