EXHIBIT 10(k)
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SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
Between
MICRON TECHNOLOGY, INC.
and
TEXAS INSTRUMENTS INCORPORATED
Dated as of September 30, 1998
TABLE OF CONTENTS
Page
SECTION 1 - DEFINITIONS 1
1.1 Certain Definitions 1
SECTION 2 - STANDSTILL AND RELATED COVENANTS 4
2.1 TI Ownership of Micron Securities 4
2.2 Standstill Provisions 4
2.3 Voting 5
2.4 Voting Trust 5
2.5 Solicitation of Proxies 5
2.6 Acts in Concert with Others 5
2.7 Termination 6
SECTION 3 - RESTRICTIONS ON TRANSFER OF SECURITIES;
COMPLIANCE WITH SECURITIES LAWS 6
3.1 Restrictions on Transfer of Voting Securities of Micron 6
3.2 Restrictions on Transfer of Subordinated Notes 8
3.3 Restrictive Legends 8
3.4 Procedures for Certain Transfers 9
3.5 Covenant Regarding Exchange Act Filings 10
3.6 Termination 10
SECTION 4 - REGISTRATION RIGHTS 10
4.1 Demand Registration 10
4.2 Shelf Registration 11
4.3 Piggyback Registration 12
4.4 Demand and Shelf Registration Procedures, Rights and Obligations 13
4.5 Expenses 17
4.6 Indemnification 17
4.7 Issuances by Micron or Other Holders 19
4.8 Information by TI 19
4.9 Market Standoff Agreements 19
4.10 Termination 20
SECTION 5 - MISCELLANEOUS 20
5.1 Termination 20
5.2 Governing Law 20
5.3 Successors and Assigns 20
5.4 Entire Agreement; Amendment 21
5.5 Notices and Dates 21
5.6 Language Interpretation 22
5.7 Table of Contents; Titles; Headings 22
5.8 Counterparts 22
5.9 Severability 22
5.10 Injunctive Relief 22
SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
THIS SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT (this "Agreement") is
made as of September 30, 1998, between MICRON TECHNOLOGY, INC., a Delaware
corporation ("Micron"), and TEXAS INSTRUMENTS INCORPORATED, a Delaware
corporation ("TI").
RECITALS
A. Pursuant to the terms of the Acquisition Agreement dated as of June
18, 1998 (the "Acquisition Agreement"), by and between Micron and TI, Micron
(in part through certain of its subsidiaries) is simultaneously herewith
acquiring from TI (and certain of its subsidiaries) the Acquired Assets (as
defined in the Acquisition Agreement) and assuming from TI (and certain of its
subsidiaries) the Assumed Liabilities (as defined in the Acquisition
Agreement).
B. In connection with the transactions contemplated by the Acquisition
Agreement, Micron has agreed to issue to TI (i) 28,933,092 unregistered shares
(the "Shares") of Micron's Common Stock par value, $0.10 per share (the "Common
Stock"), (ii) $740 million aggregate principal amount of Micron's 6-1/2%
Convertible Subordinated Notes due October 1, 2005, convertible into Common
Stock at a purchase price of $60 per share (the "2005 Convertible Notes") and
(iii) $210 million aggregate principal amount of Micron's 6-1/2% Subordinated
Notes due September 30, 2005 (the "Subordinated Notes").
C. The Acquisition Agreement provides for the execution and delivery of
this Agreement at the closing of the transactions contemplated thereby.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and conditions herein and in the Acquisition Agreement, the parties
hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement:
(a) "Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under common control
with, such other Person. For purposes of this definition, "control" when used
with respect to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise; the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
(b) "Beneficial ownership" or "beneficial owner" has the meaning
provided in Rule 13d-3 promulgated under the Exchange Act. References to
ownership of Voting Securities hereunder mean beneficial ownership.
(c) "Change in Control of Micron" shall mean a merger,
consolidation or other business combination or the sale of all or substantially
all of the assets of Micron (other than a transaction pursuant to which the
holders of the voting stock of Micron outstanding immediately prior to such
transaction have the entitlement to exercise, directly or indirectly, fifty
percent (50%) or more of the Total Voting Power of the continuing, surviving
entity or transferee immediately after such transaction).
(d) "Demand Registration Statement" has the meaning set forth in
Section 4.1(a).
(e) "Demand Request" has the meaning set forth in Section
4.1(a).
(f) "Demand/Tranche Managing Underwriters" has the meaning set
forth in Section 4.4(c).
(g) "Demand/Tranche Market Cut-Back" has the meaning set forth
in Section 4.4(d).
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Group" or "group" shall have the meaning provided in
Section 13(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder, but shall exclude any institutional underwriter purchasing Voting
Securities of Micron in connection with an underwritten registered offering for
purposes of a distribution of such securities.
(j) "Indemnified Party" has the meaning set forth in Section
4.6(c).
(k) "Indemnifying Party" has the meaning set forth in Section
4.6(c).
(l) "Micron Public Offering Lock-Up" has the meaning set forth
in Section 4.9(b).
(m) "Person" shall mean any person, individual, corporation,
partnership, trust or other nongovernmental entity or any governmental agency,
court, authority or other body (whether foreign, federal, state, local or
otherwise).
(n) "Piggyback Market Cut-Back" has the meaning set forth in
Section 4.3.(c).
(o) "Piggyback Registrable Securities" has the meaning set forth
in Section 4.3.(a).
(p) "Piggyback Registration Statement" has the meaning set forth
in Section 4.3(a).
(q) "Piggyback Request" has the meaning set forth in Section
4.3.(a).
(r) "Piggyback Underwriting Agreement" has the meaning set forth
in Section 4.3.(b).
(s) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
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compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(t) "Registrable Securities" means (i) the Shares, (ii) the 2005
Convertible Notes, (iii) any Common Stock issued or issuable upon conversion of
the 2005 Convertible Notes and (iv) any securities issued in respect of the
foregoing as a result of any stock split, stock dividend, recapitalization, or
similar transaction.
(u) "Registration Expenses" has the meaning set forth in Section
4.5(a).
(v) "Restricted Securities" has the meaning set forth in Section
3.3(a).
(w) "Securities Act" means the Securities Act of 1933, as
amended.
(x) "SEC" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(y) "Shelf Registrable Securities" has the meaning set forth in
Section 4.2(a).
(z) "Shelf Registration Statement" has the meaning set forth in
Section 4.2(a).
(aa) "Shelf Request" has the meaning set forth in Section 4.2(a).
(bb) "Suspension Condition" has the meaning set forth in Section
4.4(f).
(cc) "TI Conflict of Interest Transaction" means (i) any
transaction (including the issuance of Micron securities or a transaction of
which the issuance of such securities is a part) between Micron and a
competitor of TI in any of the businesses in which TI is engaged, or has
announced an intention to become engaged or (ii) any other transaction with
respect to which TI has a significant interest that conflicts with the
interests of Micron or the other stockholders of Micron as stockholders. For
purposes of clause (i) of the preceding sentence, the "announced intentions" of
TI at any time may be established by reference to press releases and any
materials filed with the SEC or otherwise disclosed to the public pursuant to
the Securities Act or the Exchange Act. For purposes of clause (ii) of such
sentence, TI shall be deemed to have a substantial interest that conflicts with
the interests of Micron and the other stockholders of Micron as stockholders in
any situation in which TI has a substantial economic interest (direct or
indirect) in the transaction that is greater than and contrary to its economic
interest as a stockholder of Micron.
(dd) "TI Pooling Transaction Lock-Up" has the meaning set forth
in Section 4.9(a).
(ee) "TI Public Offering Lock-Up" has the meaning set forth in
Section 4.9(a).
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(ff) "Tranche Registrable Securities" has the meaning set forth
in Section 4.2(b).
(gg) "Tranche Request" has the meaning set forth in Section
4.2(b).
(hh) "Voting Securities" means (i) all securities of Micron,
entitled, in the ordinary course, to vote in the election of directors of
Micron and (ii) for the purposes of this Agreement only, all securities of
Micron convertible into or exchangeable or exercisable for shares of Common
Stock (including the Convertible Notes), the Voting Power of which shall be
deemed equal to the number of shares of Common Stock issuable upon the
conversion, exchange or exercise of such securities. Voting Securities shall
not include stockholder rights or other comparable securities having Voting
Power only upon the happening of a trigger event or comparable contingency and
which can only be transferred together with the Voting Securities to which they
attach. References herein to meetings of holders of Voting Securities shall
include meetings of any class or type thereof (including without limitation
meetings of holders of the Convertible Notes).
(ii) "Voting Power" or "Total Voting Power" of Micron (or any
other corporation) refer to the votes or total number of votes which at the
time of calculation may be cast in the election of directors of Micron (or such
corporation) at any meeting of stockholders of Micron (or such corporation) if
all securities entitled to vote in the election of directors of Micron (or such
corporation) were present and voted at such meeting; provided that for purposes
of references herein made to any Person's "Voting Power" or percentage
beneficial ownership of "Total Voting Power," any rights (other than rights
referred to in any rights plan of Micron (or any such other corporation) or a
successor to such rights plan so long as such rights can only be transferred
together with the Voting Securities to which they attach) of such Person to
acquire Voting Securities (whether or not the exercise of any such right shall
be conditioned upon the passage of time or any other contingency) shall be
deemed to have been exercised in full.
(jj) "180-Day Limitation" has the meaning set forth in Section
4.4(a).
(kk) "2004 Convertible Notes" means Micron's 7% Convertible
Subordinated Notes due July 1, 2004, and the term "Convertible Notes" means the
2004 Convertible Notes and the 2005 Convertible Notes.
All capitalized terms used and not defined herein shall have the
respective meanings assigned to such terms in the Acquisition Agreement.
SECTION 2
STANDSTILL AND RELATED COVENANTS
2.1 TI Ownership of Micron Securities. On the date hereof, and without
giving effect to the transactions contemplated by the Acquisition Agreement,
neither TI nor any Affiliate of TI beneficially owns any Voting Securities of
Micron (excluding any officers and directors of TI and any employee benefit or
pension plan of TI).
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2.2 Standstill Provisions. TI shall not acquire, directly or
indirectly, and shall not cause or permit any Affiliate of TI (excluding any
officers and directors of TI and any employee benefit or pension plan of TI) to
acquire, directly or indirectly (through market purchases or otherwise), record
or beneficial ownership of any Voting Securities of Micron without the prior
written consent of the Board of Directors of Micron; provided, however, that
the prior written consent of the Board of Directors of Micron shall not be
required for the acquisition of any Voting Securities of Micron pursuant to the
conversion of any of the 2005 Convertible Notes or resulting from a stock
split, stock dividend or similar recapitalization by Micron. Nothing contained
in this Section 2.2 shall adversely affect any right of TI to acquire record or
beneficial ownership of Voting Securities of Micron pursuant to any rights plan
instituted by Micron.
2.3 Voting. Unless the Board of Directors of Micron otherwise consents
in writing in advance, TI shall take such action (and shall cause each
Affiliate of TI that beneficially owns Voting Securities of Micron to take such
action) as may be required so that all Voting Securities of Micron beneficially
owned by TI (or any such Affiliate of TI) from time to time are voted on all
matters to be voted on by holders of Voting Securities of Micron in the same
proportion (for, against and abstain, with lost, damaged or disfigured ballots
counting as abstentions to the extent that they cannot be counted as for or
against under applicable law) as the votes cast by the other holders of Voting
Securities of Micron with respect to such matters; provided, however, that all
Voting Securities of Micron beneficially owned by TI (or any Affiliate of TI)
from time to time may be voted as TI (or any such Affiliate of TI) determines
in its sole discretion on any matter presented to the holders of Voting
Securities of Micron (by any Person other than TI, any Affiliate of TI or an
"associate" of any of them, as such term is defined in Rule 12b-2 under the
Exchange Act), to approve (i) any merger, consolidation or other business
combination involving Micron, (ii) any sale of all or substantially all of the
assets of Micron, (iii) any issuance of equity or equity-linked securities of
Micron requiring stockholder approval pursuant to applicable stock exchange
rules; provided, however, that neither TI nor any Affiliate of TI shall be
entitled to vote on any matter set forth in clauses (i), (ii) or (iii) hereof
that constitutes, involves or is part of, a TI Conflict of Interest
Transaction. TI (or any Affiliate of TI), as the holder of Voting Securities
of Micron, shall use its best efforts to be present, in person or by proxy, at
all meetings of the stockholders of Micron so that all Voting Securities of
Micron beneficially owned by TI (or such Affiliate of TI) from time to time may
be counted for the purposes of determining the presence of a quorum at such
meetings. The foregoing provision shall also apply to the execution by TI of
any written consent in lieu of a meeting of holders of Voting Securities of
Micron or any class thereof.
2.4 Voting Trust. TI shall not, and shall not cause or permit any
Affiliate of TI to, deposit any Voting Securities of Micron in a voting trust
or, except as otherwise provided herein, subject any Voting Securities of
Micron to any arrangement or agreement with respect to the voting of such
Voting Securities of Micron.
2.5 Solicitation of Proxies. Without the prior written consent of the
Board of Directors of Micron, TI shall not, and shall not cause or permit any
Affiliate of TI to, directly or indirectly (i) initiate, propose or otherwise
solicit Micron stockholders for the approval of one or more stockholder
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proposals with respect to Micron or induce or attempt to induce any other
Person to initiate any stockholder proposal, (ii) make, or in any way
participate in, any "solicitation" of "proxies" (as such terms are defined or
used in Regulation 14a-1 under the Exchange Act) with respect to any Voting
Securities of Micron, or become a "participant" in any "election contest" (as
such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act),
with respect to Micron or (iii) call or seek to have called any meeting of the
holders of Voting Securities of Micron.
2.6 Acts in Concert with Others. Except as contemplated herein, TI
shall not, and shall not cause or permit any Affiliate of TI, to participate in
the formation, or encourage the formation, of any Person which owns or seeks to
acquire beneficial ownership of, or otherwise acts in concert in respect of the
voting or disposition of, Voting Securities of Micron. Without limiting the
generality of the foregoing, and except as contemplated herein, TI shall not,
and shall not cause or permit any Affiliate of TI to: (i) join a partnership,
limited partnership, syndicate or other group, or otherwise act in concert with
any third person, for the purpose of acquiring, holding, or disposing of Voting
Securities of Micron; (ii) seek election to or seek to place a representative
on the Board of Directors of Micron; (iii) seek the removal of any member of
the Board of Directors of Micron; (iv) otherwise seek control of the
management, Board of Directors or policies of Micron; (v) solicit, propose,
seek to effect or negotiate with any other Person with respect to any form of
business combination transaction with Micron or any Affiliate thereof, or any
restructuring, recapitalization or similar transaction with respect to Micron
or any Affiliate thereof; (vi) solicit, make or propose or encourage or
negotiate with any other Person with respect to, or announce an intent to make,
any tender offer or exchange offer for any Voting Securities of Micron; (vii)
disclose an intent, purpose, plan or proposal with respect to Micron or any
Voting Securities of Micron inconsistent with the provisions of this Agreement,
including an intent, purpose, plan or proposal that is conditioned on or would
require Micron to waive the benefit of or amend any provision of this
Agreement; or (vii) assist, participate in, facilitate, encourage or solicit
any effort or attempt by any Person to do or seek to do any of the foregoing.
TI shall not, and shall not cause or permit any Affiliate of TI to, encourage
or render advice to or make any recommendation or proposal to any Person to
engage in any of the actions covered by Section 2.5 and this Section 2.6
hereof.
2.7 Termination. The provisions of this Article 2 shall terminate upon
the earlier to occur of: (i) such time as TI (together with all Affiliates of
TI) beneficially owns in the aggregate Voting Securities of Micron representing
less than five percent (5%) of the Total Voting Power of Micron; or (ii) the
closing or other completion of a Change in Control of Micron.
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SECTION 3
RESTRICTIONS ON TRANSFER OF
SECURITIES; COMPLIANCE WITH SECURITIES LAWS
3.1 Restrictions on Transfer of Voting Securities of Micron. Subject
to Section 3.6 hereof, TI shall not, and shall not cause or permit any
Affiliate of TI to, directly or indirectly, offer to sell, contract to sell,
make any short sale of, or otherwise sell, dispose of, loan, gift, pledge or
grant any options or rights with respect to, any Voting Securities of Micron,
now or hereafter acquired, or with respect to which TI (or any Affiliate of TI)
has or hereafter acquires the power of disposition (or enter into any agreement
or understanding with respect to the foregoing), except as set forth below:
(a) to Micron, or any Person or group approved in writing in
advance by the Board of Directors of Micron;
(b) to any wholly-owned subsidiary of TI, so long as such
subsidiary agrees in writing (in form reasonably acceptable to counsel for
Micron) to hold such Voting Securities of Micron subject to all the provisions
of this Agreement, and so agrees to transfer such Voting Securities of Micron
to TI or another wholly-owned subsidiary of TI if it ceases to be a wholly-
owned subsidiary of TI;
(c) pursuant to a firm commitment, underwritten public offering
of Voting Securities of Micron registered under the Securities Act; provided,
however, that such offering is structured to distribute such securities through
an underwriter in accordance with procedures designed to ensure (as far as is
practically possible) that beneficial ownership of the Voting Securities of
Micron with aggregate Voting Power of more than five percent (5%) of the Total
Voting Power of Micron then in effect shall not be transferred during such
underwriting to any single Person or group;
(d) through a sale of Voting Securities of Micron pursuant to
Rule 144 under the Securities Act; provided, however, that any such sale (i)
complies with the manner of sale provisions under paragraph (f) of Rule 144 or
(ii) is of securities with Voting Power aggregating less than five percent (5%)
of the Total Voting Power of Micron and is not made knowingly directly or
indirectly to: (A) any Person or group which has theretofore filed a Schedule
13D with the SEC with respect to any class of "equity security" (as defined in
Rule 13a11-1 under the Exchange Act) of Micron and which, at the time of such
sale, continues to reflect beneficial ownership in excess of five percent (5%)
of the Total Voting Power of Micron; (B) any Person or group known to TI
(without inquiry or investigation) to beneficially own in excess of five
percent (5%) of any Voting Securities of Micron or to be accumulating stock on
behalf of or acting in concert with any such Person or group or a Person or
group contemplated by clause (A) above; or (C) any Person or group that has
announced or commenced an unsolicited offer for any Voting Securities of Micron
or publicly initiated, proposed or otherwise solicited Micron stockholders for
the approval of one or more stockholder proposals with respect to Micron or
publicly made, or in any way participated in, any "solicitation" of "proxies"
(as such terms are defined or used in Regulation 14A under the Exchange Act)
with respect to any Voting Securities of Micron, or become a "participant" in
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any "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A
under the Exchange Act);
(e) pursuant to any private sale of Voting Securities of Micron
exempt from the registration requirements under the Securities Act, provided
that no such sale may be made (i) to any Person or group which, after giving
effect to such sale, will beneficially own or have the right to acquire Voting
Securities of Micron with aggregate Voting Power of more than five percent (5%)
of the Total Voting Power of Micron unless such Person or group is an
institutional investor that acquires such Voting Securities solely for
investment, in which case the total number of Voting Securities that may be
sold to such Person or group shall be limited so that such Person or group
shall not own or have the right to acquire more than ten percent (10%) of the
Total Voting Power of Micron after giving effect to the proposed sale; and,
provided, further, that any such purchaser (and any transferee of such
purchaser) shall agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Article 3, and it will be
a condition precedent to the effectiveness of any such transfer that TI shall
have delivered to Micron a written agreement of such purchaser to that effect
in form and substance reasonably satisfactory to Micron;
(f) in response to an offer to purchase or exchange for cash or
other consideration any Voting Securities, which in any case is not opposed by
the Board of Directors of Micron within the time such Board is required,
pursuant to regulations under the Exchange Act, to advise the stockholders of
Micron of such Board's position with respect to such offer, or, if no such
regulations are applicable, within ten (10) business days of the commencement
of such offer, or pursuant to a merger, consolidation or other business
combination involving Micron approved by the Board of Directors of Micron; or
(g) subject to Micron's prior consent (which shall not be
unreasonably withheld), pursuant to bona fide pledges of such Restricted
Securities to institutional lenders (provided that the number of such lenders
to which, or for the benefit of which, such pledges may be made, shall not
exceed twenty (20) in the aggregate), to secure a loan, guarantee, letter of
credit facility or other indebtedness or financial support; provided that each
such lender to which, or for the benefit of which, such pledge is made agrees
in writing to hold such Restricted Securities subject to all provisions of this
Agreement, including the limitations on any sale or other disposition of such
Restricted Securities.
3.2 Restrictions on Transfer of Subordinated Notes. Subject to Section
3.6 hereof, TI shall not, and shall not cause or permit any Affiliate of TI to,
directly or indirectly, offer to sell, contract to sell, make any short sale
of, or otherwise sell, dispose of, loan, gift, pledge or grant any options or
rights with respect to, any of the Subordinated Notes, now or hereafter
acquired, or with respect to which TI (or such Affiliate of TI) has or
hereafter acquires the power of disposition (or enter into any agreement or
understanding with respect to the foregoing), except through a sale of a
minimum of $10,000,000 principal amount of Subordinated Notes (and of any
integral multiple of $1,000,000 in excess thereof) under Rule 144A under the
Securities Act to a "qualified institutional buyer" as defined in such Rule
144A.
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3.3 Restrictive Legends.
(a) The certificate or certificates representing the (i) the
Shares, (ii) the 2005 Convertible Notes, (iii) any Common Stock issued or
issuable upon conversion of the 2005 Convertible Notes and (iv) any securities
issued in respect of the foregoing as a result of any stock split, stock
dividend, recapitalization, or similar transaction initially acquired by TI
from Micron in accordance with the terms of this Agreement (collectively, the
"Restricted Securities") shall be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES (or, as applicable, CONVERTIBLE NOTES) REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES (or, as
applicable, CONVERTIBLE NOTES) MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER AS TO THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION.
(b) In addition to the legend provided for in Section 3.3(a),
the certificate or certificates representing the Restricted Securities shall be
stamped or otherwise imprinted with a legend substantially in the following
form:
THE SHARES (or, as applicable, CONVERTIBLE NOTES) REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING ANY
SALE, PLEDGE OR OTHER HYPOTHECATION SET FORTH IN AN AGREEMENT BETWEEN
THE ISSUER AND TEXAS INSTRUMENTS INCORPORATED, A COPY OF WHICH AGREEMENT
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE ISSUER AT THE
ISSUER'S PRINCIPAL EXECUTIVE OFFICES.
(c) The certificate or certificates representing the
Subordinated Notes shall be stamped or otherwise imprinted with legends
substantially in the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) TO THE ISSUER, OR
(B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
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3.4 Procedures for Certain Transfers.
(a) The holder of each certificate representing Restricted
Securities, by acceptance thereof, agrees to comply in all respects with the
provisions of this Article 3.
(b) Prior to any proposed transfer of any Restricted Securities
pursuant to Sections 3.1(a), (b), (e) and (g) hereof, TI shall give written
notice to Micron of TI'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 by either: (i) a written opinion of
legal counsel (including in--house counsel), who shall be reasonably
satisfactory to Micron, addressed to Micron and reasonably satisfactory in form
and substance to Micron's counsel, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act; or (ii) a "no action" letter from the SEC and a copy of any
request by TI (together with all supplements or amendments thereto), which
shall have been provided to Micron at or prior to the time of first delivery to
the SEC's staff, to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the SEC that
action be taken with respect thereto, whereupon TI shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by TI to Micron.
(c) In connection with any proposed transfer of Restricted
Securities pursuant to Section 3.1(d) hereof, TI shall comply with all of the
requirements of Rule 144 under the Securities Act and the reasonable
requirements of Micron's transfer agent with respect to sales of Restricted
Securities pursuant to Rule 144.
(d) Each certificate evidencing the Restricted Securities
transferred as herein provided (other than a transfer pursuant to Section
3.1(c)) shall bear the appropriate restrictive legend set forth (or described)
in Section 3.4(a) above, except that such certificate shall not bear such
restrictive legend if: (i) in the opinion of counsel for Micron, such legend is
not required in order to establish compliance with any provisions of the
Securities Act; (ii) the Restricted Securities have been held by the holder for
more than two years, and the holder represents to counsel for Micron that it
has not been an "affiliate" (as such term is defined for purposes of Rule 144)
of Micron during the three-month period prior to the sale and shall not become
an affiliate (as such term is defined for purposes of Rule 144) of Micron
without resubmitting the Restricted Securities for reimposition of the legend;
or (iii) the Restricted Securities have been sold pursuant to Rule 144 and in
compliance with Section 3.1(d). In addition, each certificate evidencing the
Restricted Securities transferred pursuant to this Article 3 (other than
transfers pursuant to Sections 3.1(c) and 3.1(d) hereof) shall bear the legend
set forth in Section 3.3(b) above.
3.5 Covenant Regarding Exchange Act Filings. With a view to making
available to TI the benefits of Rule 144 promulgated under the Securities Act,
and any other rules or regulations of the SEC which may at any time permit TI
to sell any Restricted Securities without registration, until the date of
termination of this Agreement, Micron agrees to use commercially reasonable
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efforts to file with the SEC in a timely manner all reports and other documents
required to be filed under the Exchange Act.
3.6 Termination. The provisions of this Article 3 shall terminate upon
the later to occur of: (i) the tenth anniversary date of this Agreement and
(ii) such time as TI (together with all Affiliates of TI) beneficially owns in
the aggregate Voting Securities of Micron representing less than five percent
(5%) of the Total Voting Power of Micron or upon the closing or other
completion of a Change in Control of Micron.
SECTION 4
REGISTRATION RIGHTS
4.1 Demand Registration.
(a) If at any time after the six month anniversary date of this
Agreement, Micron shall receive from TI a written request (a "Demand Request")
that Micron register on Form S-3 under the Securities Act (or if such form is
not available, any registration statement form then available to Micron)
Registrable Securities equal to at least two percent (2%) of the Voting
Securities of Micron outstanding on the date of such Demand Request, then
Micron shall use commercially reasonable efforts to cause the Registrable
Securities specified in such Demand Request (the "Demand Registrable
Securities") to be registered as soon as reasonably practicable so as to permit
the offering and sale thereof and, in connection therewith, shall prepare and
file with the SEC as soon as practicable after receipt of such Demand Request,
a registration statement (a "Demand Registration Statement") to effect such
registration; provided, however, that each such Demand Request shall: (i)
specify the number of Demand Registrable Securities intended to be offered and
sold by TI pursuant thereto (which number of Demand Registrable Securities
shall not be less than two percent (2%) of the Voting Securities of Micron
outstanding on the date of such Demand Request); (ii) express the present
intention of TI to offer or cause the offering of such Demand Registrable
Securities pursuant to such Demand Registration Statement, (iii) describe the
nature or method of distribution of such Demand Registrable Securities pursuant
to such Demand Registration Statement (including, in particular, whether TI
plans to effect such distribution by means of an underwritten offering); and
(iv) contain the undertaking of TI to provide all such information and
materials and take all such actions as may be required in order to permit
Micron to comply with all applicable requirements of the Securities Act, the
Exchange Act and the rules and regulations of the SEC thereunder, and to obtain
any desired acceleration of the effective date of such Demand Registration
Statement.
(b) The procedures to be followed by Micron and TI, and the
respective rights and obligations of Micron and TI, with respect to the
preparation, filing and effectiveness of Demand Registration Statements and the
distribution of Demand Registrable Securities pursuant to Demand Registration
Statements under this Section 4.1 are set forth in Section 4.4 hereof.
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4.2 Shelf Registration.
(a) If at any time after the six month anniversary date of this
Agreement, Micron shall receive from TI a written request (a "Shelf Request")
that Micron register pursuant to Rule 415(a)(1)(i) under the Securities Act (or
any successor rule with similar effect) a delayed offering of Registrable
Securities, equal to at least five percent (5%) of the Voting Securities of
Micron outstanding on the date of such Shelf Request, then Micron shall use
commercially reasonable efforts to cause the Registrable Securities specified
in such Shelf Request (the "Shelf Registrable Securities") to be registered as
soon as reasonably practicable so as to permit the sale thereof and, in
connection therewith, shall (i) prepare and file with the SEC as soon as
practicable after receipt of such Shelf Request, a shelf registration statement
on Form S-3 relating to such Shelf Registrable Securities, if such Form S-3 is
available for use by Micron (or any successor form of registration statement to
such Form S-3), to effect such registration (a "Shelf Registration Statement"),
to enable the distribution of such Shelf Registrable Securities; provided,
however, that each such Shelf Request shall: (i) specify the number of Shelf
Registrable Securities intended to be offered and sold by TI pursuant thereto
(which number of Shelf Registrable Securities shall not be less than five
percent (5%) of the Voting Securities of Micron outstanding on the date of such
Shelf Request); (ii) express the intention of TI to offer or cause the offering
of such Shelf Registrable Securities pursuant to such Shelf Registration
Statement on a delayed basis in the future; (iii) describe the nature or method
of the proposed offer and sale of such Shelf Registrable Securities pursuant to
such Shelf Registration Statement; and (iv) contain the undertaking of TI to
provide all such information and materials and take all such actions as may be
required in order to permit Micron to comply with all applicable requirements
of the Securities Act, the Exchange Act and the rules and regulations of the
SEC thereunder, and to obtain any desired acceleration of the effective date of
such Shelf Registration Statement. TI shall not be entitled to make more than
one Shelf Request during any three hundred sixty-five (365) day period.
(b) It is expressly agreed by the parties that the sole purpose
of Micron filing and maintaining an effective a Shelf Registration Statement
for the delayed offering of Shelf Registrable Securities by TI is to make the
process of distributing Registrable Securities by TI more convenient for both
parties by reducing or eliminating the need to file a new Demand Registration
Statement each time that TI decides to sell Registrable Securities. After a
Shelf Registration Statement has been declared effective under the Securities
Act by the SEC, then, upon the written request of TI (a "Tranche Request"),
Micron shall prepare such amendments to such Shelf Registration Statement
(including post-effective amendments), if any, and such amendments or
supplements to the prospectus relating to the Registrable Securities to be
offered thereunder pursuant to such Tranche Request (the "Tranche Registrable
Securities"), as is necessary to facilitate the distribution of such Tranche
Registrable Securities pursuant to such Tranche Request; provided, however,
that such Tranche Request shall: (i) specify the number of Tranche Registrable
Securities intended to be offered and sold by TI pursuant thereto (which number
of Tranche Registrable Securities shall not be less than two percent (2%) of
the Voting Securities of Micron outstanding on the date of such Tranche
Request); (ii) express the present intention of TI to offer or cause the
offering of such Tranche Registrable Securities pursuant to the Shelf
Registration Statement, (iii) describe the nature or method of distribution of
such Tranche Registrable Securities pursuant to the Shelf Registration
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Statement (including, in particular, whether TI plans to effect such
distribution by means of an underwritten offering); and (iv) contain the
undertaking of TI to provide all such information and materials and take all
such actions as may be required in order to permit Micron to comply with all
applicable requirements of the Securities Act, the Exchange Act and the rules
and regulations of the SEC thereunder.
(c) The procedures to be followed by Micron and TI, and the
respective rights and obligations of Micron and TI, with respect to the
preparation, filing and effectiveness of Shelf Registration Statements and the
distribution of Tranche Registrable Securities pursuant to Shelf Registration
Statements under this Section 4.2 are set forth in Section 4.4 hereof.
4.3 Piggyback Registration.
(a) If at any time after the six month anniversary date of this
Agreement, Micron shall determine to register any of its equity or equity-
linked securities (other than registration statements relating to (i) employee,
consultant or distributor compensation or incentive arrangements (including
employee benefit plans), (ii) acquisitions or any transaction or transactions
under Rule 145 under the Securities Act (or any successor rule with similar
effect), (iii) distributions by principal stockholders, their Affiliates or
transferees (unless consented to by such principal stockholders, Affiliates or
transferees), or (iv) pursuant to Rule 415 under the Securities Act), then
Micron will promptly give TI written notice thereof and include in such Micron-
initiated, non-shelf, registration statement (a "Piggyback Registration
Statement"), and in any underwriting involved therein, all Registrable
Securities (the "Piggyback Registrable Securities") specified in a written
request made by TI (a "Piggyback Request") within five (5) business days after
receipt of such written notice from Micron; provided, however, that nothing in
this Section 4.3(a), or any other provision of this Agreement, shall be
construed to limit the absolute right of Micron, for any reason and in its sole
discretion: (i) to delay, suspend or terminate the filing of any Piggyback
Registration Statement; (ii) to delay the effectiveness of any Piggyback
Registration Statement; (iii) to terminate or reduce the number of Piggyback
Registrable Securities to be distributed pursuant to any Piggyback Registration
Statement (including, without limitation, pursuant to Section 4.3(c) hereof);
or (iv) to withdraw such Piggyback Registration Statement.
(b) If the Piggyback Registration Statement of which Micron
gives notice is for an underwritten offering, Micron shall so advise TI as a
part of the written notice given pursuant to Section 4.3(a). In such event,
the right of TI to registration pursuant to this Section 4.3 shall be
conditioned upon the agreement of TI to participate in such underwriting and in
the inclusion of such Piggyback Registrable Securities in the underwriting to
the extent provided herein. TI shall (together with Micron and any other
holders distributing securities in such Piggyback Registration Statement, if
any) enter into an underwriting agreement (the "Piggyback Underwriting
Agreement") in customary form with the underwriter or underwriters selected for
such underwriting by Micron.
(c) Notwithstanding any other provision of this Agreement, if
the managing underwriters of any underwritten offering pursuant to a Piggyback
Request determine, in their sole discretion that, after including all the
shares to be offered by Micron and all the shares of any other Persons entitled
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to registration rights with respect to such Piggyback Registration Statement
(pursuant to other agreements with Micron), marketing factors require a
limitation of the number of Piggyback Registrable Securities to be
underwritten, the managing underwriters of such offering may exclude any and
all of the Piggyback Registrable Securities (a "Piggyback Market Cut-Back").
If TI disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to Micron and the managing underwriters.
Any Piggyback Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such Piggyback Registration Statement.
(d) Except to the extent specifically provided in this Section
4.3 hereof, the procedures to be followed by Micron and TI, and the respective
rights and obligations of Micron and TI, with respect to the distribution of
any Piggyback Registrable Securities by TI pursuant to any Piggyback
Registration Statement filed by Micron shall be as set forth in the Piggyback
Underwriting Agreement, or any other agreement or agreements governing the
distribution of such Piggyback Registrable Securities pursuant to such
Piggyback Registration Statement.
4.4 Demand and Shelf Registration Procedures, Rights and Obligations.
The procedures to be followed by Micron and TI, and the respective rights and
obligations of Micron and TI, with respect to the preparation, filing and
effectiveness of Demand Registration Statements and Shelf Registration
Statements, respectively, and the distribution of Demand Registrable Securities
and Tranche Registrable Securities, respectively, pursuant thereto, are as
follows:
(a) TI shall not be entitled to make more than one Demand
Request or Tranche Request during any one hundred eighty (180) day period (the
"180-Day Limitation"); provided, however, that (i) any Demand Request that: (A)
does not result in the corresponding Demand Registration Statement being
declared effective by the SEC; (B) is withdrawn by TI following the imposition
of a stop order by the SEC with respect to the corresponding Demand
Registration Statement; (C) is withdrawn by TI as a result of the exercise by
Micron of its suspension rights pursuant to Sections 4.4(e) or (f) hereof; or
(D) is withdrawn by TI as a result of a Demand/Tranche Market Cut-Back (as
defined in Section 4.4(d) hereof); and (ii) any Tranche Request that: (A) is
withdrawn by TI following the imposition of a stop order by the SEC with
respect to the corresponding Shelf Registration Statement; (B) is withdrawn by
TI as a result of the exercise by Micron of its suspension rights pursuant to
Sections 4.4(e) or (f) hereof; or (C) is withdrawn by TI as a result of a
Demand/Tranche Market Cut-Back, shall not count for the purposes of determining
compliance with the 180-Day Limitation. Any Demand Request or Tranche Request
that is withdrawn by TI for any reason other than as set forth in the previous
sentence shall count for purposes of determining compliance with the 180-Day
Limitation. Piggyback Requests shall not count for purposes of determining
compliance with the 180-Day Limitation regardless of whether a Piggyback
Registration Statement is filed, declared effective or withdrawn or whether any
distribution of Piggyback Registrable Securities is effected, terminated or
cut-back (pursuant to Section 4.3(c) hereof, or otherwise).
(b) Micron shall use commercially reasonable efforts to cause
each Demand Registration Statement and Shelf Registration Statement to be
declared effective promptly and to keep such Demand Registration Statement and
Shelf Registration Statement continuously effective until the earlier to occur
of: (i) the sale or other disposition of the Registrable Securities so
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registered; (ii) sixty (60) days after (A) the effective date of any Demand
Registration Statement or (B) the date of the final prospectus used to confirm
sales in connection with any offering of Tranche Registrable Securities; and
(iii) the termination of TI's registration rights pursuant to Section 4.10
hereof. Micron shall prepare and file with the SEC such amendments and
supplements to each Demand Registration Statement and Shelf Registration
Statement and each prospectus used in connection therewith as may be necessary
to make and to keep such Demand Registration Statement and Shelf Registration
Statement effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
proposed to be distributed pursuant to such Demand Registration Statement and
Shelf Registration Statement until the earlier to occur of: (i) the sale or
other disposition of such Registrable Securities so registered; (ii) sixty (60)
days after (A) the effective date of any Demand Registration Statement or (B)
the date of the final prospectus used to confirm sales in connection with any
offering of Tranche Registrable Securities; and (iii) the termination of TI's
registration rights pursuant to Section 4.10 hereof.
(c) In connection with any underwritten offering pursuant to a
Demand Registration Statement or a Shelf Registration Statement, Micron, on the
one hand, and TI, on the other hand, shall each select one investment banking
firm to serve as co-manager of such offering. The co-manager selected by
Micron shall be subject to the prior approval of TI, which approval shall not
be unreasonably withheld, and the co-manager selected by TI shall be subject to
the prior approval of Micron, which approval shall not be unreasonably
withheld. Each of the co-managers so selected by Micron and TI are hereinafter
collectively referred to as the "Demand/Tranche Managing Underwriters." The
Demand/Tranche Underwriter selected by TI shall be the lead Demand/Tranche
Managing Underwriter, whose responsibilities shall include running the "books"
for any offering. Micron shall, together with TI, enter into an underwriting
agreement with the Demand/Tranche Managing Underwriters, which agreement shall
contain representations, warranties, indemnities and agreements then
customarily included by an issuer in underwriting agreements with respect to
secondary distributions under demand registration statements or shelf
registration statements, as the case may be, and shall stipulate that the
Demand/Tranche Managing Underwriters will receive equal commissions and fees
and other remuneration in connection with the distribution of any Demand
Registrable Securities or Tranche Registrable Securities thereunder.
(d) Notwithstanding any other provision of this Agreement, the
number of Demand Registrable Securities or Tranche Registrable Securities
proposed to be distributed by TI pursuant to any Demand Request or Tranche
Request may be limited by the Demand/Tranche Managing Underwriters if such
Demand/Tranche Managing Underwriters determine that the sale of such Demand
Registrable Securities or Tranche Registrable Securities would significantly
and adversely affect the market price of the Common Stock (a "Demand/Tranche
Market Cut-Back"). If TI disapproves of the terms of any proposed underwritten
offering under a Demand Registration Statement or a Shelf Registration
Statement (including, without limitation, any reduction in the number of Demand
Registrable Securities or Tranche Registrable Securities, as the case may be,
to be sold by TI thereunder pursuant to this Section 4.4(d)), TI may elect to
withdraw therefrom by written notice to Micron and the Demand/Tranche Managing
Underwriters. Any Demand Registrable Securities excluded or withdrawn from
such underwriting shall also be withdrawn from any applicable Demand
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Registration Statement.
(e) Notwithstanding any other provisions of this Agreement, in
the event that Micron receives a Demand Request, Shelf Request or Tranche
Request at a time when Micron (i) shall have filed, or has a bona fide
intention to file, a registration statement with respect to a proposed public
offering of equity or equity-linked securities or (ii) has commenced, or has a
bona fide intention to commence, a public offering of equity or equity-linked
securities pursuant to an existing effective shelf or other registration
statement, then Micron shall be entitled to suspend, for a period of up to
ninety (90) days after the receipt by Micron of such Demand Request, Shelf
Request or Tranche Request, the filing of any Demand Registration Statement or
Shelf Registration Statement or the implementation of any Tranche Request.
(f) Notwithstanding any other provision of this Agreement, in
the event that Micron determines that: (i) non-public material information
regarding Micron exists, the immediate disclosure of which would be
significantly disadvantageous to Micron; (ii) the prospectus constituting a
part of any Demand Registration Statement or Shelf Registration Statement
covering the distribution of any Demand Registrable Securities or Tranche
Securities contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or (iii) an offering of Demand Registrable Securities or Tranche
Registrable Securities would materially interfere with any proposed material
acquisition, disposition or other similar corporate transaction or event
involving Micron (each of the events or conditions referred to in clauses (i),
(ii) and (iii) of this sentence is hereinafter referred to as a "Suspension
Condition"), then Micron shall have the right to suspend the filing or
effectiveness of any Demand Registration Statement or Shelf Registration
Statement or to suspend any distribution of Demand Registrable Securities or
Tranche Registrable Securities pursuant to any effective Demand Registration
Statement or Shelf Registration Statement for so long as such Suspension
Condition exists. Micron will as promptly as practicable provide written
notice to TI when a Suspension Condition arises and when it ceases to exist.
Upon receipt of notice from Micron of the existence of any Suspension
Condition, TI shall forthwith discontinue efforts to: (i) file or cause any
Demand Registration Statement or Shelf Registration Statement to be declared
effective by the SEC (in the event that such Demand Registration Statement or
Shelf Registration Statement has not been filed, or has been filed but not
declared effective, at the time TI receives notice that a Suspension Condition
has arisen); or (ii) offer or sell Demand Registrable Securities or Tranche
Registrable Securities (in the event that such Demand Registration Statement or
Shelf Registration Statement has been declared effective at the time TI
receives notice that a Suspension Condition has arisen). In the event that TI
had previously commenced or was about to commence the distribution of Demand
Registrable Securities or Tranche Registrable Securities pursuant to a
prospectus under an effective Demand Registration Statement or Shelf
Registration Statement, then Micron shall, as promptly as practicable after the
Suspension Condition ceases to exist, make available to TI (and to each
underwriter, if any, participating in such distribution) an amendment or
supplement to such prospectus. If so directed by Micron, TI shall deliver to
Micron all copies, other than permanent file copies then in TI's possession, of
the most recent prospectus covering such Demand Registrable Securities or
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Securities at the time of receipt of such notice.
(g) Notwithstanding any other provision of this Agreement,
Micron shall not be permitted to postpone (i) the filing or effectiveness of
any Demand Registration Statement or Shelf Registration Statement or (ii) the
distribution of any Demand Registrable Securities or Tranche Registrable
securities pursuant to an effective Demand Registration Statement or an
effective Shelf Registration Statement pursuant to Sections 4.4(e), 4.4(f) or
4.9(a) hereof for an aggregate of more than two hundred seventy-five (275) days
in any three hundred sixty-five (365) day period (including any market standoff
periods applicable to TI pursuant to Section 4.9(a) hereof); provided, however,
that in the event that any TI Pooling Transaction Lock-Up (as defined in
Section 4.9(a) hereof) would expire by its terms on a date that would extend
beyond the two hundred seventy-five (275) day limitation, then Micron shall
have the right to (i) postpone the filing or effectiveness of any Demand
Registration Statement or Shelf Registration Statement or (ii) the distribution
of any Demand Registrable Securities or Tranche Registrable Securities pursuant
to an effective Demand Registration Statement or an effective Shelf
Registration Statement until such time as such TI Pooling Transaction Lock-Up
expires.
(h) Micron shall promptly notify TI of any stop order issued or,
to Micron's knowledge, threatened, to be issued by the SEC with respect to any
Demand Registration Statement or Shelf Registration Statement as to which a
Tranche Request is pending, and will use its best efforts to prevent the entry
of such stop order or to remove it if entered at the earliest possible date.
(i) Micron shall furnish to TI (and any underwriters in
connection with any underwritten offering) such number of copies of any
prospectus (including any preliminary prospectus and any amended or
supplemented prospectus), in conformity with the requirements of the Securities
Act, as TI (and such underwriters) shall reasonably request in order to effect
the offering and sale of any Demand Registrable Securities or Tranche
Registrable Securities to be offered and sold, but only while Micron shall be
required under the provisions hereof to cause the Demand Registration Statement
or Shelf Registration Statement pursuant to which such Demand Registrable
Securities or Tranche Registrable Securities are intended to be distributed to
remain current.
(j) Micron shall use commercially reasonable efforts to register
or qualify the Demand Registrable Securities and Tranche Registrable Securities
covered by each Demand Registration Statement and Shelf Registration Statement,
respectively, under the state securities or "blue sky" laws of such states as
TI shall reasonably request, maintain any such registration or qualification
current, until the earlier to occur of: (i) the sale of such Demand Registrable
Securities or Tranche Registrable Securities so registered; (ii) sixty (60)
days after (A) the effective date of any Demand Registration Statement or (B)
the date of the final prospectus used to confirm sales in connection with such
distribution (in the case of an offering of Tranche Registrable Securities
pursuant to a Shelf Registration Statement); and (iii) the termination of TI's
registration rights pursuant to Section 4.10 hereof; provided, however, that
Micron shall not be required to take any action that would subject it to the
general jurisdiction of the courts of any jurisdiction in which it is not so
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subject or to qualify as a foreign corporation in any jurisdiction where Micron
is not so qualified.
(k) Micron shall furnish to TI and to each underwriter engaged
in an underwritten offering of Demand Registrable Securities or Tranche
Registrable Securities, a signed counterpart, addressed to TI or such
underwriter, of (i) an opinion or opinions of counsel to Micron (with respect
to Micron and securities law compliance by Micron) and (ii) a comfort letter or
comfort letters from Micron's independent public accountants, each in customary
form and covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as TI or the managing underwriters may
reasonably request.
(l) Micron shall use commercially reasonable efforts to make
appropriate members of its management reasonably available for due diligence
purposes, "road show" presentations and analyst presentations in connection
with any distributions of Demand Registrable Securities or Tranche Registrable
Securities pursuant to a Demand Registration Statement or a Shelf Registration
Statement.
(m) Micron shall use commercially reasonable efforts to cause
all Demand Registrable Securities and Tranche Registrable Securities to be
listed on each securities exchange on which similar securities of Micron are
then listed.
(n) At or prior to the effectiveness of any Demand Registration
Statement or Shelf Registration Statement covering the offering of the 2005
Convertible Notes, Micron shall qualify the indenture (or any supplemental
indenture) relating to such 2005 Convertible Notes under the Trust Indenture
Act of 1939, as amended.
(o) Micron shall make generally available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period of twelve (12) months, beginning three months after the
effective date of any Demand Registration Statement relating to the
distribution of Demand Registrable Securities or the date of any final
prospectus used to confirm sales in connection with any offering of Tranche
Registrable Securities, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(p) Micron shall take all such other actions either reasonably
necessary or desirable to permit the Registrable Securities held by TI to be
registered and disposed of in accordance with the methods of disposition
described herein.
4.5 Expenses.
(a) All of the out-of-pocket costs and expenses incurred by
Micron in connection with any registration pursuant to Sections 4.1 and 4.2
shall (subject to Section 4.7) be borne by TI; provided that TI shall not be
required to reimburse Micron for compensation of Micron's officers and
employees, regular audit expenses, and normal corporate costs incurred in
connection with such registration. The costs and expenses of any such
registration shall include, without limitation, the reasonable fees and
expenses of Micron's counsel and its accountants and all other out-of-pocket
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costs and expenses of Micron incident to the preparation, printing and filing
of the registration statement and all amendments and supplements thereto and
the cost of furnishing copies of each preliminary prospectus, each final
prospectus and each amendment or supplement thereto to underwriters, dealers
and other purchasers of the securities so registered, the costs and expenses
incurred in connection with the qualification of such securities so registered
under the securities or "blue sky" laws of various jurisdictions, the fees and
expenses of Micron's transfer agent and all other costs and expenses of
complying with the provisions of this Section 4 with respect to such
registration (collectively, the "Registration Expenses").
(b) Micron shall pay all Registration Expenses incurred by
Micron in connection with any registration statements that are initiated
pursuant to Section 4.3 of this Agreement. TI shall pay all expenses incurred
on its behalf with respect to any registration pursuant to Section 4.3,
including, without limitation, any counsel for TI and all underwriting
discounts and selling commissions with respect to the Registrable Securities
sold by it pursuant to such registration statement.
4.6 Indemnification.
(a) In the case of any offering registered pursuant to this
Section 4, Micron hereby indemnifies and agrees to hold harmless TI (and its
officers and directors), any underwriter (as defined in the Securities Act) of
Registrable Securities offered by TI, and each Person, if any, who controls TI
or any such underwriter within the meaning of Section 15 of the Securities Act
against any losses, claims, damages or liabilities, joint or several, to which
any such Persons may be subject, under the Securities Act or otherwise, and to
reimburse any of such Persons for any legal or other expenses reasonably
incurred by them in connection with investigating any claims or defending
against any actions, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement under which such
Registrable Securities were registered under the Securities Act pursuant to
this Section 4, the prospectus contained therein (during the period that Micron
is required to keep such prospectus current), or any amendment or supplement
thereto, or the omission or alleged omission to state therein (if so used) a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities arise
out of or are (i) based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon information furnished to
Micron in writing by TI or any underwriter for TI specifically for use therein,
or (ii) made in any preliminary prospectus, and the prospectus contained in the
registration statement as declared effective or in the form filed by Micron
with the SEC pursuant to Rule 424 under the Securities Act shall have corrected
such statement or omission and a copy of such prospectus shall not have been
sent or otherwise delivered to such Person at or prior to the confirmation of
such sale to such Person.
(b) By requesting registration under this Section 4, TI agrees,
if Registrable Securities held by TI are included in the securities as to which
such registration is being effected, and each underwriter shall agree, in the
same manner and to the same extent as set forth in the preceding paragraph, to
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indemnify and to hold harmless Micron and its directors and officers and each
Person, if any, who controls Micron within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several, to which
any of such Persons may be subject under the Securities Act or otherwise, and
to reimburse any of such Persons for any legal or other expenses incurred in
connection with investigating or defending against any such losses, claims,
damages or liabilities, but only to the extent it arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission of a material fact in any registration statement under which the
Registrable Securities were registered under the Securities Act pursuant to
this Section 4, any prospectus contained therein, or any amendment or
supplement thereto, which was based upon and made in conformity with
information furnished to Micron in writing by TI or such underwriter expressly
for use therein.
(c) Each party entitled to indemnification under this Section
4.6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at its own expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 4 unless such failure
resulted in actual detriment to the Indemnifying Party. No Indemnifying Party,
(i) in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, which consent shall not be unreasonably
withheld, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation, or (ii) shall be liable for amounts paid in any
settlement if such settlement is effected without the consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
4.7 Issuances by Micron or Other Holders. As to each registration or
distribution referred to in Sections 4.1 and 4.2, additional shares of the
Common Stock to be sold for the account of Micron or other holders may be
included therein, provided that the inclusion of such securities in such
registration or distribution may be conditioned or restricted if, in the
opinion of the Demand/Tranche Managing Underwriters, marketing factors require
a limitation of the number of shares to be underwritten. The Registration
Expenses incurred by Micron, TI and any other holders participating in such
registration or distribution shall be borne by Micron, TI and any other holders
participating in such registration or distribution in proportion to the
aggregate number of shares to be sold by Micron, TI and such other holders.
4.8 Information by TI. TI shall furnish to Micron such information
regarding TI in the distribution of Registrable Securities proposed by TI as
Micron may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this Article
4.
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4.9 Market Standoff Agreements
(a) In connection with the public offering by Micron of any of
its securities, TI agrees that, upon the request of Micron or the underwriters
managing any underwritten offering of Micron's securities, TI shall agree in
writing (the "TI Public Offering Lock-Up") that neither TI (nor any Affiliate
of TI) will, directly or indirectly, offer to sell, contract to sell, make any
short sale of, or otherwise sell, dispose of, loan, gift, pledge or grant any
options or rights with respect to, any securities of Micron (other than those
included in such registration statement, if any) now or hereafter acquired by
TI (or any Affiliate of TI) or with respect to which TI (or any Affiliate of
TI) has or hereafter acquires the power of disposition without the prior
written consent of Micron and such underwriters for such period of time (not to
exceed fourteen (14) days prior to the date such offering is expected to
commence and ninety (90) days after the date of the final prospectus delivered
to the underwriters for use in confirming sales in such offering) as may be
requested by Micron and the underwriters; provided, however, that neither TI
(nor any Affiliate of TI) shall be bound by such TI Public Offering Lock-Up
more than once during any twelve month period. Furthermore, TI agrees that, at
the request of Micron, TI shall agree in writing (the "TI Pooling Transaction
Lock-Up") that neither TI (nor any Affiliate of TI) shall, directly or
indirectly, offer to sell, contract to sell, make any short sale of, or
otherwise sell, dispose of, loan, pledge or grant any options or rights with
respect to, any securities of Micron now or hereafter acquired directly by TI
(or any Affiliate of TI) or with respect to which TI (or any Affiliate of TI)
has or hereafter acquires the power of disposition without the prior written
consent of Micron for such period of time as shall be necessary for Micron to
complete any business combination transaction in the form of a pooling of
interests; provided that Micron's independent accountants shall have concluded,
after reasonable inquiry, that, at the relevant time with respect to such
proposed pooling of interests transaction, TI is or was an "affiliate" of
Micron for purposes of the accounting rules governing pooling of interests
transactions. TI agrees that Micron may instruct its transfer agent to place
stop-transfer notations in its records to enforce the provisions of the TI
Public Offering Lock-Up and the TI Pooling Transaction Lock-Up contained in
this Section 4.9(a).
(b) In connection with any proposed public offering by TI of any
Registrable Securities, Micron agrees that, upon the request of TI or the
underwriters managing any underwritten offering of TI's securities, Micron
shall agree in writing (the "Micron Public Offering Lock-Up") that neither
Micron (nor any Affiliate of Micron) will, directly or indirectly, offer to
sell, contract to sell, make any short sale of, or otherwise sell, dispose of,
loan, gift, pledge or grant any options or rights with respect to, any
securities of Micron (other than those included in such registration statement,
if any, or grants of stock options or issuances of Common Stock upon the
exercise of outstanding stock options under Micron's existing employee benefit
plans) now or hereafter acquired by Micron (or any Affiliate of Micron) or with
respect to which Micron (or any Affiliate of Micron) has or hereafter acquires
the power of disposition without the prior written consent of TI and such
underwriters for such period of time (not to exceed fourteen (14) days prior to
the date such offering is expected to commence and ninety (90) days) after the
date of the final prospectus delivered to the underwriters for use in
confirming sales in such offering) as may be requested by TI and the
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underwriters; provided, however, that neither Micron (nor any Affiliate of
Micron) shall bound by such Micron Public Offering Lock-Up more than once
during any 180-day period.
4.10 Termination. The provisions of this Article 4 shall terminate
upon the earlier to occur of: (i) five years after the date of the closing of
transactions contemplated by the Acquisition Agreement; and (ii) such time as
TI (and any Affiliates of TI) beneficially own in the aggregate less than
5,000,000 shares of Common Stock (assuming, for purposes of such calculation,
the conversion of all Convertible Notes then held by TI (and any Affiliates of
TI) into Common Stock).
SECTION 5
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate upon the later to
occur of: (i) the tenth anniversary date of this Agreement and (ii) such time
as TI (together with all Affiliates of TI) beneficially owns in the aggregate
Voting Securities of Micron representing less than five percent (5%) of the
Total Voting Power of Micron or upon the closing or other completion of a
Change in Control of Micron.
5.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York as applied to contracts entered into solely
between residents of, and to be performed entirely within, such state.
5.3 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement may not be assigned by a party without
the prior written consent of the other party; provided that, without the
consent of Micron, TI may assign this Agreement (and the rights and obligations
hereunder) to any wholly-owned subsidiary in connection with a transfer of
Voting Securities of Micron to such Affiliate of TI pursuant to Section 3.1(b),
and without the consent of TI, Micron may assign all or part of this Agreement
(and the rights and obligations hereunder) to the successor or an assignee of
all or substantially all of Micron's business; provided that, in each case,
such assignee expressly assumes the relevant obligations of this Agreement (by
a written instrument delivered to the other party, in form and substance
reasonably acceptable to it) and, notwithstanding such assignment, the parties
hereto shall each continue to be bound by all of their respective obligations
hereunder. This Agreement is not intended and shall not be construed to create
any rights or remedies in any parties other than TI and Micron and no Person
shall assert any rights as third party beneficiary hereunder.
5.4 Entire Agreement; Amendment. This Agreement contains the entire
understanding and agreement between the parties with regard to the subject
matter hereof and thereof and supersedes all prior agreements and
understandings among the parties relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
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5.5 Notices and Dates.
(a) All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be delivered personally
(including by courier) or given by facsimile transmission to the parties at the
following addresses (or to such other address as a party may have specified by
notice given to the other pursuant to this provision) and shall be deemed given
when so received:
(i) if to Micron, to:
Micron Technology, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to TI, to:
Texas Instruments Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
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place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
(b) In the event that any date provided for in this Agreement
falls on a Saturday, Sunday or legal holiday, such date shall be deemed
extended to the next business day.
5.6 Language Interpretation. In the interpretation of this Agreement,
unless the context otherwise requires, (a) words importing the singular shall
be deemed to import the plural and vice versa, (b) words denoting gender shall
include all genders, (c) references to persons shall include corporations or
other entities and vice versa, and (d) references to parties, sections,
schedules, paragraphs and exhibits shall mean the parties, sections, schedules,
paragraphs and exhibits of and to this Agreement, unless otherwise indicated by
the context.
5.7 Table of Contents; Titles; Headings. The table of contents and
section headings of this Agreement are for reference purposes only and are to
be given no effect in the construction or interpretation of this Agreement.
All references herein to Articles and Sections, unless otherwise identified,
are to Articles and Sections of this Agreement.
5.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other party.
5.9 Severability. If any provision of this Agreement or portion
thereof is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
5.10 Injunctive Relief. TI, on the one hand, and Micron, on the other,
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specific
performance of the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or equity.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date aforesaid.
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MICRON TECHNOLOGY, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: Chairman of the Board of
Directors, Chief Executive
Officer and President
TEXAS INSTRUMENTS INCORPORATED,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
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