Exhibit 3
SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
THIS SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT (this
"Agreement") is made as of October 19, 1998, between MICRON
TECHNOLOGY, INC., a Delaware corporation ("Micron"), and INTEL
CORPORATION, a Delaware corporation ("Intel").
RECITALS
A. Intel has agreed to purchase from Micron, and Micron has
agreed to sell to Intel, Class A Common Stock ("Class A Common
Stock") or, pending authorization and creation of the Class A
Common Stock, stock rights (the "Rights") to be issued by the
Company pursuant to that certain Stock Rights Agreement, dated of
even date herewith (the "Stock Rights Agreement"), on the terms and
conditions set forth in that certain Securities Purchase Agreement,
dated October 15, 1998, by and between Micron and Intel (the
"Securities Purchase Agreement"). The Rights are exchangeable for
Class A Common Stock or Common Stock (the "Common Stock") of the
Company, and the Class A Common Stock is convertible into Common
Stock of the Company.
B. The Securities Purchase Agreement provides for the
execution and delivery of this Agreement at the closing of the
transactions contemplated thereby.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and conditions herein and in the Securities
Purchase Agreement, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement:
(a) "Affiliate" means, with respect to any Person, any
Person directly or indirectly controlling, controlled by, or
under common control with, such other Person. For purposes of
this definition, "control" when used with respect to any
Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of
voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have meanings correlative to
the foregoing. Notwithstanding the above, unless expressly
provided to the contrary herein, the term Affiliate shall
exclude officers, directors and any employee benefit plan or
pension plan of a Person.
(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) "Class A Common Stock" has the meaning set forth in
paragraph A of the Recitals hereto.
(d) "Common Stock" has the meaning set forth in
paragraph A of the Recitals hereto.
(e) "Change in Control of Micron" shall mean a merger,
consolidation or other business combination or the sale of all
or substantially all of the assets of Micron (other than a
transaction pursuant to which the holders of the voting stock
of Micron outstanding immediately prior to such transaction
have the entitlement to exercise, directly or indirectly,
fifty percent (50%) or more of the Total Voting Power of the
continuing, surviving entity or transferee immediately after
such transaction).
(f) "Demand Registration Statement" has the meaning set
forth in Section 4.1(a).
(g) "Demand Request" has the meaning set forth in
Section 4.1(a).
(h) "Demand/Tranche Managing Underwriters" has the
meaning set forth in Section 4.4(c).
(i) "Demand/Tranche Market Cut-Back" has the meaning set
forth in Section 4.4(d).
(j) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(k) "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.
(l) "Hedging Transactions" means engaging in short sales
and the purchase and sale of puts and calls and other
derivative securities, so long as Intel retains beneficial
ownership of the Shares.
(m) "Indemnified Party" has the meaning set forth in
Section 4.6(c).
(n) "Indemnifying Party" has the meaning set forth in
Section 4.6(c).
(o) "Intel Pooling Transaction Lock-Up" has the meaning
set forth in Section 4.9(a).
(p) "Intel Public Offering Lock-Up" has the meaning set
forth in Section 4.9(a).
(q) "Micron Public Offering Lock-Up" has the meaning set
forth in Section 4.9(b).
(r) "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).
(s) "Piggyback Market Cut-Back" has the meaning set
forth in Section 4.3(c).
(t) "Piggyback Registrable Securities" has the meaning
set forth in Section 4.3(a).
(u) "Piggyback Registration Statement" has the meaning
set forth in Section 4.3(a).
(v) "Piggyback Request" has the meaning set forth in
Section 4.3(a).
(w) "Piggyback Underwriting Agreement" has the meaning
set forth in Section 4.3(b).
(x) "Qualified Subsidiary" shall mean a corporation or
other Person at least 90% of the outstanding Voting Securities
of which are owned, directly or indirectly, by Intel.
(y) "Register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such
registration statement.
(z) "Registrable Securities" means (i) the (1) all the
shares of Common Stock of the Company issued or issuable upon
exercise or conversion of the Rights or the Class A Common
Stock and (2) any shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange
for or in replacement of, any such securities described in
clause (1) of this subsection (w). Notwithstanding the
foregoing, Registrable Securities shall exclude any
Registrable Securities sold by a person in a transaction in
which rights under this Section 4 are not assigned in
accordance with this Agreement or any Registrable Securities
sold in a public offering, whether sold pursuant to Rule 144
promulgated under the Securities Act, in a registered
offering, or otherwise.
(aa) "Registration Expenses" has the meaning set forth in
Section 4.5(a).
(bb) "Restricted Securities" has the meaning set forth in
Section 3.3(a).
(cc) "Rights" has the meaning set forth in paragraph A of the
recitals hereto.
(dd) "Securities Act" means the Securities Act of 1933, as
amended.
(ee) "Securities Purchase Agreement" has the meaning set forth
in paragraph A of the Recitals hereto.
(ff) "SEC" means the Securities and Exchange Commission
or any other federal agency at the time administering the
Securities Act.
(gg) "Shares" means the shares of Common Stock of the Company
issued or issuable upon exercise or conversion of the Rights
or the Class A Common Stock.
(hh) "Shelf Registrable Securities" has the meaning set forth
in Section 4.2(a).
(ii) "Shelf Registration Statement" has the meaning set
forth in Section 4.2(a).
(jj) "Shelf Request" has the meaning set forth in
Section 4.2(a).
(kk) "Stock Rights Agreement" has the meaning set forth in
paragraph A of the Recitals hereto.
(ll) "Suspension Condition" has the meaning set forth in
Section 4.4(f).
(mm) "Tranche Registrable Securities" has the meaning set
forth in Section 4.2(b).
(nn) "Tranche Request" has the meaning set forth in
Section 4.2(b).
(oo) "Transaction Related Securities" means (i) Shares,
(ii) shares of Class A Common Stock issued or issuable upon
exercise or conversion of the Rights, (iii) the Rights and
(iv) shares of Common Stock and other securities of the
Company issued as (or issuable upon conversion or exercise of
any warrant, right or other security as) a dividend or other
distribution with respect to or in exchange for or in
replacement of, or upon conversion or exercise of any such
securities.
(pp) "Voting Securities" means (i) all securities of Micron,
entitled, in the ordinary course, to vote in the election of
directors of Micron and (ii) for the purposes of this
Agreement only, all securities of Micron, directly or
indirectly, convertible into or exchangeable or exercisable
for shares of Common Stock (including the Rights), the Voting
Power of which shall be deemed equal to the number of shares
of Common Stock, directly or indirectly, issuable upon the
conversion, exchange or exercise of such securities. Voting
Securities shall not include stockholder rights or other
comparable securities having Voting Power only upon the
happening of a trigger event or comparable contingency and
which can only be transferred together with the Voting
Securities to which they attach. References herein to
meetings of holders of Voting Securities shall include
meetings of any class or type thereof,
(qq) "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.
(rr) "180-Day Limitation" has the meaning set forth in
Section 4.4(a).
All capitalized terms used and not defined herein shall have
the respective meanings assigned to such terms in the
Securities Purchase Agreement.
SECTION 2
STANDSTILL AND RELATED COVENANTS
2.1 Intel Ownership of Micron Securities. On the date
hereof, and without giving effect to the transactions contemplated
by the Securities Purchase Agreement, neither Intel nor any
Affiliate of Intel beneficially owns any Voting Securities of
Micron, other than Voting Securities held in equity index funds or
by employee benefit plans or pension plans.
2.2 Standstill Provisions.
(a) Intel shall not acquire, directly or indirectly, and
shall not cause or permit any Affiliate of Intel to acquire,
directly or indirectly (through market purchases or
otherwise), record or beneficial ownership of any Voting
Securities of Micron representing, when taken together with
all securities owned by such Persons, in excess of a
percentage greater than nineteen and ninety nine hundredths
(19.99%) (the "Standstill Percentage") of the Total Voting
Power of Micron without the prior written consent of Micron's
Board of Directors; 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 shares of
Class A Common Stock or the exercise of any of the Rights 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 Intel to acquire
record or beneficial ownership of Voting Securities of Micron
pursuant to any rights plan instituted by Micron. Ownership
of Voting Securities by employee benefit plans or pension
plans shall not be beneficial ownership by Intel for purposes
of this Section 2.2.
(b) Intel and its Affiliates will not be obliged to
dispose of any Voting Securities to the extent that the
aggregate percentage of the Total Voting Power of Micron
represented by Voting Securities beneficially owned by Intel
and its Affiliates or which Intel and its Affiliates has a
right to acquire is increased beyond the Standstill Percentage
(i) as a result of a recapitalization of Micron or a
repurchase or exchange of securities by Micron or its
Affiliates; (ii) as a result of an equity index transaction,
provided that Intel and its Affiliates shall not vote such
shares; (iii) by way of stock dividends or other distributions
or rights or offerings made available to holders of shares of
Voting Securities generally; or (iv) with the prior written
consent of Micron's Board of Directors.
2.3 Voting Trust. Intel shall not, and shall not cause or
permit any Affiliate of Intel 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.
2.4 Solicitation of Proxies. Without the prior written
consent of Micron's Board of Directors, Intel shall not, and shall
not cause or permit any Affiliate of Intel to, directly or
indirectly (i) initiate, propose or otherwise solicit Micron
stockholders for the approval of one or more stockholder proposals
with respect to Micron or induce or attempt to induce any other
Person to initiate any stockholder proposal, (ii) make, or in any
way participate in, any "solicitation" of "proxies" (as such terms
are defined or used in 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.
2.5 Acts in Concert with Others. Except as contemplated
herein, Intel shall not, and shall not cause or permit any
Affiliate of Intel to, participate in the formation of any Person
which owns or seeks to acquire beneficial ownership of, or
otherwise acts in concert in respect of the voting or disposition
of, Voting Securities of Micron. Without limiting the generality
of the foregoing, and except as contemplated herein, Intel shall
not, and shall not cause or permit any Affiliate of Intel to:
(i) join a partnership, limited partnership, syndicate or other
group, or otherwise act in concert with any third person, for the
purpose of acquiring, holding, or disposing of Voting Securities of
Micron; (ii) seek election to or seek to place a representative on
the Board of Directors of Micron; (iii) seek the removal of any
member of the Board of Directors of Micron; (iv) otherwise seek
control of the management, Board of Directors or policies of
Micron; (v) solicit, propose or seek to effect any form of business
combination transaction with Micron or any Affiliate thereof, or
any restructuring, recapitalization or similar transaction with
respect to Micron or any Affiliate thereof; (vi) solicit, make or
propose or announce an intent to make, any tender offer or exchange
offer for any Voting Securities of Micron; (vii) disclose an
intent, purpose, plan or proposal with respect to Micron or any
Voting Securities of Micron inconsistent with the provisions of
this Agreement, including an intent, purpose, plan or proposal that
is conditioned on or would require Micron to waive the benefit of
or amend any provision of this Agreement; or (vii) assist,
participate in, or solicit any effort or attempt by any Person to
do or seek to do any of the foregoing. Intel shall not, and shall
not cause or permit any Affiliate of Intel to, make any
recommendation or proposal to any Person to engage in any of the
actions covered by Section 2.4 and this Section 2.5 hereof.
2.6 Termination. The provisions of this Section 2 shall
terminate upon the earlier to occur of: (i) such time as Intel
(together with all Affiliates of Intel) 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.
SECTION 3
RESTRICTIONS ON TRANSFER OF
SECURITIES; COMPLIANCE WITH SECURITIES LAWS
3.1 Restrictions on Transfer of Voting Securities of Micron.
Intel shall not, and shall not cause or permit any Affiliate of
Intel 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
Transaction Related Securities of Micron, now or hereafter
acquired, or with respect to which Intel (or any Affiliate of
Intel) has or hereafter acquires the power of disposition (or enter
into any agreement or understanding with respect to the foregoing),
except, in the case of the Shares and shares of Class A Common
Stock, as set forth in the following clauses (a) through (g), and,
in the case of the Rights, as set forth in clause (a) and (b):
(a) to Micron, or any Person or group approved in
writing in advance by Micron's Board of Directors;
(b) to any Qualified Subsidiary of Intel, 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 also agrees to transfer such Voting Securities
of Micron to Intel or another Qualified Subsidiary of Intel if
it ceases to be a Qualified Subsidiary of Intel;
(c) pursuant to a public offering of Voting Securities
of Micron registered under the Securities Act; provided,
however, that such offering is structured to distribute such
securities in accordance with procedures reasonably designed
to ensure that beneficial ownership of the Voting Securities
of Micron with aggregate Voting Power of more than five
percent (5%) of the Total Voting Power of Micron then in
effect shall not be transferred during such distribution to
any single Person or group;
(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 Intel
(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 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 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, if such securities are "restricted
securities" as defined in Rule 144, any such purchaser (and
any transferee of such purchaser) shall agree to take and hold
such securities subject to the provisions and upon the
conditions specified in this Section 3, and it will be a
condition precedent to the effectiveness of any such transfer
that Intel shall have delivered to Micron a written agreement
of such purchaser to that effect in form and substance
reasonably satisfactory to Micron (which may contain a
representation by such purchaser as to the beneficial
ownership of Voting Securities of Micron, which may be relied
upon by Intel (absent actual knowledge to the contrary) for
purposes of compliance with the applicable requirements of
this Section 3.1(e));
(f) in response to an offer to purchase or exchange for
cash or other consideration any Voting Securities, in any case
which is not opposed by the Board of Directors of Micron
within the time such Board is required, pursuant to
regulations under the Exchange Act, to advise the stockholders
of Micron of such Board's position with respect to such offer,
or, if no such regulations are applicable, within ten (10)
business days of the commencement of such offer, or pursuant
to a merger, consolidation or other business combination
involving Micron approved by the Board of Directors of Micron;
or
(g) subject to Micron's prior consent (which shall not
be unreasonably withheld), pursuant to bona fide pledges of
such Voting Securities to institutional lenders (provided that
the number of such lenders to which, or for the benefit of
which, such pledges may be made, shall not exceed twenty (20)
in the aggregate), to secure a loan, guarantee, letter of
credit facility or other indebtedness or financial support;
provided that each such lender to which, or for the benefit of
which, such pledge is made agrees in writing to hold such
Voting Securities subject to all provisions of this Agreement,
including the limitations on any sale or other disposition of
such Voting Securities.
Nothing in this Section 3.1 shall be construed to
prohibit Hedging Transactions with respect to securities of Micron
provided that such transactions do not result in non-compliance
with the foregoing restrictions insofar such provisions relate to,
and are limited in their application to, the Transaction Related
Securities.
3.2 Restrictive Legends.
(a) The certificate or certificates representing the
(i) the Shares, (ii) the Rights, (iii) any shares of Class A
Common Stock issued or issuable upon exercise or conversion of
the Rights and (iv) any securities issued in respect of the
foregoing as a result of any stock split, stock dividend,
recapitalization, reclassification or similar transaction
(collectively, the "Restricted Securities") shall be stamped
or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF COUNSEL SATISFACTORY TO THE ISSUER AS TO THE AVAILABILITY
OF AN EXEMPTION FROM REGISTRATION.
(b) The certificate or certificates representing the
Restricted Securities also shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE, PLEDGE OR OTHER
HYPOTHECATION, SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER
AND INTEL CORPORATION, A COPY OF WHICH AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
(c) The certificate or certificates representing the
Rights also shall be stamped or otherwise imprinted with a
legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
PROVISIONS OF THE STOCK RIGHTS AGREEMENT WHICH CONTAINS
CERTAIN RESTRICTIONS ON TRANSFER AND OTHER RIGHTS AND
OBLIGATIONS. COPIES OF THE STOCK RIGHTS AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES.
(d) The certificate or certificates representing shares
of Class A Common Stock also shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
PROVISIONS OF THE COMPANY'S CERTIFICATE OF INCORPORATION
WHICH CONTAINS CERTAIN RESTRICTIONS ON TRANSFER AND OTHER
RIGHTS AND OBLIGATIONS. COPIES OF THE CERTIFICATE OF
INCORPORATION MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
3.3 Procedures for Certain Transfers.
(a) The holder of each certificate representing
Restricted Securities, by acceptance thereof, agrees to comply
in all respects with the provisions of this Section 3.
(b) Prior to any proposed transfer of any Restricted
Securities pursuant to Sections 3.1(a), (b), (e) and (g)
hereof, Intel shall give written notice to Micron of its
intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall be accompanied by either:
(i) a written opinion of legal counsel (including in-house
counsel), who shall be reasonably satisfactory to Micron,
addressed to Micron and reasonably satisfactory in form and
substance to Micron's counsel, to the effect that the proposed
transfer of the Restricted Securities may be effected without
registration under the Securities Act; or (ii) a "no action"
letter from the SEC and a copy of any request by Intel
(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 Intel shall be
entitled to transfer such Restricted Securities in accordance
with the terms of the notice delivered by Intel to Micron.
(c) In connection with any proposed transfer of
Restricted Securities pursuant to Section 3.1(d) hereof, Intel
shall comply with all applicable requirements of Rule 144
under the Securities Act and the reasonable requirements of
Micron's transfer agent with respect to sales of Restricted
Securities pursuant to Rule 144.
(d) Each certificate evidencing the Restricted
Securities transferred as herein provided (other than a
transfer pursuant to Section 3.1(c)) shall bear the
appropriate restrictive legend set forth (or described) in
Section 3.3(a) above, except that such certificate shall not
bear such restrictive legend if: (i) in the opinion of counsel
for Micron, such legend is not required in order to establish
compliance with any provisions of the Securities Act; (ii) the
Restricted Securities have been held by the holder for more
than two years, and the holder represents to counsel for
Micron that it has not been an "affiliate" (as such term is
defined for purposes of Rule 144) of Micron during the three-
month period prior to the sale and shall not become an
affiliate (as such term is defined for purposes of Rule 144)
of Micron without resubmitting the Restricted Securities for
reimposition of the legend; 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 Section 3
(other than transfers pursuant to Sections 3.1(c) and 3.1(d)
hereof) shall bear the legend set forth in Section 3.2(b)
above.
3.4 Covenant Regarding Exchange Act Filings. With a view to
making available to Intel the benefits of Rule 144 promulgated
under the Securities Act, and any other rules or regulations of the
SEC which may at any time permit Intel to sell any Restricted
Securities without registration, until the date of termination of
this Agreement, Micron agrees to use commercially reasonable
efforts to file with the SEC in a timely manner all reports and
other documents required to be filed under the Exchange Act.
3.5 Termination. The provisions of this Section 3 (other
than Sections 3.2 and 3.3) shall terminate upon the later to occur
of: (i) the fifth anniversary date of this Agreement and (ii) such
time as Intel (together with all Affiliates of Intel) 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 March 31, 1999, Micron shall
receive from Intel a written request (a "Demand Request") that
Micron register on Form S-3 under the Securities Act (or if
such form is not available, any registration statement form
then available to Micron) Registrable Securities equal to at
least the lesser of two percent (2%) of the Voting Securities
outstanding on the date of such Demand Request and securities
having an aggregate market value of in excess of $100 million
on such date, then Micron shall use commercially reasonable
efforts to cause the Registrable Securities specified in such
Demand Request (the "Demand Registrable Securities") to be
registered as soon as reasonably practicable so as to permit
the offering and sale thereof and, in connection therewith,
shall prepare and file with the SEC as soon as practicable
after receipt of such Demand Request, a registration statement
(a "Demand Registration Statement") to effect such
registration; provided, however, that each such Demand Request
shall: (i) specify the number of Demand Registrable Securities
intended to be offered and sold by Intel pursuant thereto
(which number of Demand Registrable Securities shall not be
less than the lesser of two percent (2%) of the Registrable
Securities outstanding on the date of such Demand Request and
securities having an aggregate market value of in excess of
$100 million on such date); (ii) express the present intention
of Intel to offer or cause the offering of such Demand
Registrable Securities pursuant to such Demand Registration
Statement, (iii) describe the nature or method of distribution
of such Demand Registrable Securities pursuant to such Demand
Registration Statement (including, in particular, whether
Intel plans to effect such distribution by means of an
underwritten offering or other method); and (iv) contain the
undertaking of Intel 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 Intel,
and the respective rights and obligations of Micron and Intel,
with respect to the preparation, filing and effectiveness of
Demand Registration Statements and the distribution of Demand
Registrable Securities pursuant to Demand Registration
Statements under this Section 4.1 are set forth in Section 4.4
hereof.
4.2 Shelf Registration.
(a) If at any time after March 31, 1999, Micron shall
receive from Intel a written request (a "Shelf Request") that
Micron register pursuant to Rule 415(a)(1)(i) under the
Securities Act (or any successor rule with similar effect) a
delayed offering of all Registrable Securities held by Intel,
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) express the
intention of Intel to offer or cause the offering of such
Shelf Registrable Securities pursuant to such Shelf
Registration Statement on a delayed basis in the future;
(ii) describe the nature or method of the proposed offer and
sale of such Shelf Registrable Securities pursuant to such
Shelf Registration Statement (including, in particular,
whether Intel plans to effect such distribution by means of an
underwritten offering or other method); and (iii) contain the
undertaking of Intel 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. Intel shall not be entitled to make
more than one Shelf Request during any three hundred sixty-
five (365) day period.
(b) It is expressly agreed by the parties that the sole
purpose of Micron filing and maintaining an effective a Shelf
Registration Statement for the delayed offering of Shelf
Registrable Securities by Intel is to make the process of
distributing Registrable Securities by Intel more convenient
for both parties by reducing or eliminating the need to file a
new Demand Registration Statement each time that Intel decides
to sell Registrable Securities. After a Shelf Registration
Statement has been declared effective under the Securities Act
by the SEC, then, upon the written request of Intel (a
"Tranche Request"), Micron shall prepare such amendments to
such Shelf Registration Statement (including post-effective
amendments), if any, and such amendments or supplements to the
prospectus relating to the Registrable Securities to be
offered thereunder pursuant to such Tranche Request (the
"Tranche Registrable Securities"), as is necessary to
facilitate the distribution of such Tranche Registrable
Securities pursuant to such Tranche Request; provided,
however, that such Tranche Request shall: (i) specify the
number of Tranche Registrable Securities intended to be
offered and sold by Intel pursuant thereto (which number of
Tranche Registrable Securities shall not be less than the
lesser of two percent (2%) of the Voting Securities
outstanding on the date of such Tranche Request and securities
having an aggregate market value of in excess of $100 million
on such date); (ii) express the present intention of Intel to
offer or cause the offering of such Tranche Registrable
Securities pursuant to the Shelf Registration Statement,
(iii) describe the nature or method of distribution of such
Tranche Registrable Securities pursuant to the Shelf
Registration Statement (including, in particular, whether
Intel plans to effect such distribution by means of an
underwritten offering or other method); and (iv) contain the
undertaking of Intel to provide all such information and
materials and take all such actions as may be required in
order to permit Micron to comply with all applicable
requirements of the Securities Act, the Exchange Act and the
rules and regulations of the SEC thereunder.
(c) The procedures to be followed by Micron and Intel,
and the respective rights and obligations of Micron and Intel,
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 March 31, 1999, Micron shall
determine to register any of its equity or equity-linked
securities (other than registration statements relating to
(i) employee, consultant or distributor compensation or
incentive arrangements (including employee benefit plans),
(ii) acquisitions or any transaction or transactions under
Rule 145 under the Securities Act (or any successor rule with
similar effect), (iii) distributions by principal
stockholders, their Affiliates or transferees (unless
consented to by such principal stockholders, Affiliates or
transferees), or (iv) pursuant to Rule 415 under the
Securities Act), then Micron will promptly give Intel written
notice thereof and include in such Micron-initiated, non-
shelf, registration statement (a "Piggyback Registration
Statement"), and in any underwriting involved therein, all
Registrable Securities (the "Piggyback Registrable
Securities") specified in a written request made by Intel (a
"Piggyback Request") within five (5) business days after
receipt of such written notice from Micron; provided, however,
that nothing in this Section 4.3(a), or any other provision of
this Agreement, shall be construed to limit the absolute right
of Micron, for any reason and in its sole discretion: (i) to
delay, suspend or terminate the filing of any Piggyback
Registration Statement; (ii) to delay the effectiveness of any
Piggyback Registration Statement; (iii) to terminate or reduce
the number of Piggyback Registrable Securities to be
distributed pursuant to any Piggyback Registration Statement
(including, without limitation, pursuant to Section 4.3(c)
hereof); or (iv) to withdraw such Piggyback Registration
Statement.
(b) If the Piggyback Registration Statement of which
Micron gives notice is for an underwritten offering, Micron
shall so advise Intel as a part of the written notice given
pursuant to Section 4.3(a). In such event, the right of Intel
to registration pursuant to this Section 4.3 shall be
conditioned upon the agreement of Intel to participate in such
underwriting and in the inclusion of such Piggyback
Registrable Securities in the underwriting to the extent
provided herein. Intel shall (together with Micron and any
other holders distributing securities in such Piggyback
Registration Statement, if any) enter into an underwriting
agreement (the "Piggyback Underwriting Agreement") in
customary form with the underwriter or underwriters selected
for such underwriting by Micron.
(c) Notwithstanding any other provision of this
Agreement, if the managing underwriters of any underwritten
offering pursuant to a Piggyback Request determine, in their
sole discretion that, after including all the shares to be
offered by Micron and all the shares of any other Persons
entitled to registration rights with respect to such Piggyback
Registration Statement (pursuant to other agreements with
Micron), marketing factors require a limitation of the number
of Piggyback Registrable Securities to be underwritten, the
managing underwriters of such offering may exclude any and all
of the Piggyback Registrable Securities, provided that such
cut-back is made pro rata with respect to any other securities
proposed to be included in such registration statement
pursuant to "piggy-back" registration rights (a "Piggyback
Market Cut-Back"). If Intel 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 Intel, and the respective rights and obligations of Micron
and Intel, with respect to the distribution of any Piggyback
Registrable Securities by Intel pursuant to any Piggyback
Registration Statement filed by Micron shall be as set forth
in the Piggyback Underwriting Agreement, or any other
agreement or agreements governing the distribution of such
Piggyback Registrable Securities pursuant to such Piggyback
Registration Statement.
4.4 Demand and Shelf Registration Procedures, Rights and
Obligations. The procedures to be followed by Micron and Intel,
and the respective rights and obligations of Micron and Intel, with
respect to the preparation, filing and effectiveness of Demand
Registration Statements and Shelf Registration Statements,
respectively, and the distribution of Demand Registrable Securities
and Tranche Registrable Securities, respectively, pursuant thereto,
are as follows:
(a) Intel shall not be entitled to make more than one
Demand Request or Tranche Request during any one hundred
eighty (180) day period (the "180-Day Limitation"); provided,
however, that (i) any Demand Request that: (A) does not result
in the corresponding Demand Registration Statement being
declared effective by the SEC; (B) is withdrawn by Intel
following the imposition of a stop order by the SEC with
respect to the corresponding Demand Registration Statement;
(C) is withdrawn by Intel as a result of the exercise by
Micron of its suspension rights pursuant to Sections 4.4(e) or
(f) hereof; or (D) is withdrawn by Intel as a result of a
Demand/Tranche Market Cut-Back (as defined in Section 4.4(d)
hereof); and (ii) any Tranche Request that: (A) is withdrawn
by Intel following the imposition of a stop order by the SEC
with respect to the corresponding Shelf Registration
Statement; (B) is withdrawn by Intel as a result of the
exercise by Micron of its suspension rights pursuant to
Sections 4.4(e) or (f) hereof; or (C) s withdrawn by Intel as
a result of a Demand/Tranche Market Cut-Back, shall not count
for the purposes of determining compliance with the 180-Day
Limitation. Any Demand Request or Tranche Request that is
withdrawn by Intel for any reason other than as set forth in
the previous sentence shall count for purposes of determining
compliance with the 180-Day Limitation. Piggyback Requests
shall not count for purposes of determining compliance with
the 180-Day Limitation regardless of whether a Piggyback
Registration Statement is filed, declared effective or
withdrawn or whether any distribution of Piggyback Registrable
Securities is effected, terminated or cut-back (pursuant to
Section 4.3(c) hereof, or otherwise). Intel shall not be
entitled to offer or sell any securities pursuant to a Demand
Registration Statement or Shelf Registration Statement unless
and until, following a Demand Request or a Tranche Request, as
applicable, Micron has made all required filings with the SEC
with respect to the distribution of Registrable Securities
contemplated by such Demand Request or Tranche Request, as
applicable, such filings have become effective and Micron has
notified Intel of the foregoing and that no Suspension
Condition then exists.
(b) Micron shall use commercially reasonable efforts to
cause each Demand Registration Statement and Shelf
Registration Statement to be declared effective promptly and
to keep such Demand Registration Statement and Shelf
Registration Statement continuously effective until the
earlier to occur of: (i) the sale or other disposition of the
Registrable Securities so registered; (ii) (X) in the case of
a firmly committed, underwritten offering, sixty (60) days
after (A) if pursuant to a Demand Registration Statement, the
effective date of any Demand Registration Statement or (B) if
pursuant to a Tranche Request, the date of the final
prospectus used to confirm sales in connection with the
underwritten offering of Tranche Registrable Securities, and
(Y) in the case of all other plans of distribution, (A) if
pursuant to a Demand Registration Statement, fifteen (15)
business days after the effective date of such Demand
Registration Statement or (B) if pursuant to a Tranche
Request, fifteen (15) business days after the earlier of the
effectiveness of the amendment to the Shelf Registration
Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to
facilitate such distribution and the date of the notice
required by the last sentence of Section 4.4(a) hereof if no
such amendment or supplement is so required; and (iii) the
termination of Intel's registration rights pursuant to
Section 4.10 hereof. Micron shall prepare and file with the
SEC such amendments and supplements to each Demand
Registration Statement and Shelf Registration Statement and
each prospectus used in connection therewith as may be
necessary to make and to keep such Demand Registration
Statement and Shelf Registration Statement effective and to
comply with the provisions of the Securities Act with respect
to the sale or other disposition of all Registrable Securities
proposed to be distributed pursuant to such Demand
Registration Statement and Shelf Registration Statement until
the earlier to occur of: (i) the sale or other disposition of
the Registrable Securities so registered; (ii) (X) in the case
of a firmly committed, underwritten offering, sixty (60) days
after (A) if pursuant to a Demand Registration Statement, the
effective date of any Demand Registration Statement or (B) if
pursuant to a Tranche Request, the date of the final
prospectus used to confirm sales in connection with the
underwritten offering of Tranche Registrable Securities, and
(Y) in the case of all other plans of distribution, (A) if
pursuant to a Demand Registration Statement, fifteen (15)
business days after the effective date of such Demand
Registration Statement or (B) if pursuant to a Tranche
Request, fifteen (15) business days after the earlier of the
effectiveness of the amendment to the Shelf Registration
Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to
facilitate such distribution and the date of the notice
required by the last sentence of Section 4.4(a) hereof if no
such amendment or supplement is so required; and (iii) the
termination of Intel's registration rights pursuant to
Section 4.10 hereof.
(c) In connection with any underwritten offering
pursuant to a Demand Registration Statement or a Shelf
Registration Statement which Intel has requested be
underwritten, Micron, on the one hand, and Intel, on the other
hand, shall each select one investment banking firm to serve
as co-manager of such offering. The co-manager selected by
Micron shall be subject to the prior approval of Intel, which
approval shall not be unreasonably withheld, and the co-
manager selected by Intel shall be subject to the prior
approval of Micron, which approval shall not be unreasonably
withheld. Each of the co-managers so selected by Micron and
Intel are hereinafter collectively referred to as the
"Demand/Tranche Managing Underwriters." The Demand/Tranche
Underwriter selected by Intel shall be the lead Demand/Tranche
Managing Underwriter, whose responsibilities shall include
running the "books" for any offering. Micron shall, together
with Intel, 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, in connection with any underwritten offering, the
number of Demand Registrable Securities or Tranche Registrable
Securities proposed to be distributed by Intel pursuant to any
Demand Request or Tranche Request may be limited by the
Demand/Tranche Managing Underwriters if such Demand/Tranche
Managing Underwriters determine that the sale of such Demand
Registrable Securities or Tranche Registrable Securities would
significantly and adversely affect the market price of the
Common Stock (a "Demand/Tranche Market Cut-Back"). If Intel
disapproves of the terms of any proposed underwritten offering
under a Demand Registration Statement or a Shelf Registration
Statement (including, without limitation, any reduction in the
number of Demand Registrable Securities or Tranche Registrable
Securities, as the case may be, to be sold by Intel thereunder
pursuant to this Section 4.4(d)), Intel may elect to withdraw
therefrom by written notice to Micron and the Demand/Tranche
Managing Underwriters. Any Demand Registrable Securities
excluded or withdrawn from such underwriting shall also be
withdrawn from any applicable Demand Registration Statement.
(e) Notwithstanding any other provisions of this
Agreement, in the event that Micron receives a Demand Request,
Shelf Request or Tranche Request at a time when Micron
(i) shall have filed, or has a bona fide intention to 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 Intel when a
Suspension Condition arises and when it ceases to exist. Upon
receipt of notice from Micron of the existence of any
Suspension Condition, Intel 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 Intel receives notice that a Suspension Condition has
arisen); or (ii) offer or sell Demand Registrable Securities
or Tranche Registrable Securities (in the event that such
Demand Registration Statement or Shelf Registration Statement
has been declared effective at the time Intel receives notice
that a Suspension Condition has arisen). In the event that
Intel had previously commenced or was about to commence the
distribution of Demand Registrable Securities or Tranche
Registrable Securities pursuant to a prospectus under an
effective Demand Registration Statement or Shelf Registration
Statement, then Micron shall, as promptly as practicable after
the Suspension Condition ceases to exist, make available to
Intel (and to each underwriter, if any, participating in such
distribution) an amendment or supplement to such prospectus.
If so directed by Micron, Intel shall deliver to Micron all
copies, other than permanent file copies then in Intel's
possession, of the most recent prospectus covering such Demand
Registrable Securities or Tranche Registrable Securities at
the time of receipt of such notice.
(g) Notwithstanding any other provision of this
Agreement, Micron shall not be permitted to postpone (i) the
filing or effectiveness of any Demand Registration Statement
or Shelf Registration Statement or (ii) the distribution of
any Demand Registrable Securities or Tranche Registrable
Securities pursuant to an effective Demand Registration
Statement or an effective Shelf Registration Statement
pursuant to Sections 4.4(e), 4.4(f) or 4.9(a) hereof for an
aggregate of more than one hundred thirty-five (135) days in
any one hundred eighty day (180) day period (including any
market standoff periods applicable to Intel pursuant to
Section 4.9(a) hereof); provided, however, that in the event
that any Intel 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 one hundred thirty-five (135) 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 Intel Pooling Transaction
Lock-Up expires.
(h) Micron shall promptly notify Intel of any stop order
issued or, to Micron's knowledge, threatened to be issued by
the SEC with respect to any Demand Registration Statement or
Shelf Registration Statement as to which a Tranche Request is
pending, and will use its best efforts to prevent the entry of
such stop order or to remove it if entered at the earliest
possible date.
(i) Micron shall furnish to Intel (and any underwriters
in connection with any underwritten offering) such number of
copies of any prospectus (including any preliminary prospectus
and any amended or supplemented prospectus), in conformity
with the requirements of the Securities Act, as Intel (and
such underwriters) shall reasonably request in order to effect
the offering and sale of any Demand Registrable Securities or
Tranche Registrable Securities to be offered and sold, but
only while Micron shall be required under the provisions
hereof to cause the Demand Registration Statement or Shelf
Registration Statement pursuant to which such Demand
Registrable Securities or Tranche Registrable Securities are
intended to be distributed to remain current.
(j) Micron shall use commercially reasonable efforts to
register or qualify the Demand Registrable Securities and
Tranche Registrable Securities covered by each Demand
Registration Statement and Shelf Registration Statement,
respectively, under the state securities or "blue sky" laws of
such states as Intel shall reasonably request, maintain any
such registration or qualification current, until the earlier
to occur of: (i) the sale or other disposition of the
Registrable Securities so registered; (ii) (X) in the case of
a firmly committed, underwritten offering, sixty (60) days
after (A) if pursuant to a Demand Registration Statement, the
effective date of any Demand Registration Statement or (B) if
pursuant to a Tranche Request, the date of the final
prospectus used to confirm sales in connection with the
underwritten offering of Tranche Registrable Securities, and
(Y) in the case of all other plans of distribution, (A) if
pursuant to a Demand Registration Statement, fifteen (15)
business days after the effective date of such Demand
Registration Statement or (B) if pursuant to a Tranche
Request, fifteen (15) business days after the earlier of the
effectiveness of the amendment to the Shelf Registration
Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to
facilitate such distribution and the date of the notice
required by the last sentence of Section 4.4(a) hereof if no
such amendment or supplement is so required; and (iii) the
termination of Intel's registration rights pursuant to
Section 4.10 hereof; provided, however, that Micron shall not
be required to take any action that would subject it to the
general jurisdiction of the courts of any jurisdiction in
which it is not so subject or to qualify as a foreign
corporation in any jurisdiction where Micron is not so
qualified.
(k) Micron shall furnish to Intel and to each
underwriter engaged in an underwritten offering of Demand
Registrable Securities or Tranche Registrable Securities, a
signed counterpart, addressed to Intel or such underwriter, of
(i) an opinion or opinions of counsel to Micron (with respect
to Micron and securities law compliance by Micron) and (ii) a
comfort letter or comfort letters from Micron's independent
public accountants, each in customary form and covering such
matters of the type customarily covered by opinions or comfort
letters, as the case may be, as Intel or the managing
underwriters may reasonably request.
(l) Micron shall use commercially reasonable efforts to
make appropriate members of its management reasonably
available for due diligence purposes, "road show"
presentations and analyst presentations in connection with any
distributions of Demand Registrable Securities or Tranche
Registrable Securities pursuant to a Demand Registration
Statement or a Shelf Registration Statement.
(m) Micron shall use commercially reasonable efforts to
cause all Demand Registrable Securities and Tranche
Registrable Securities to be listed on each securities
exchange on which similar securities of Micron are then
listed.
(n) Micron shall make generally available to its
securityholders, as soon as reasonably practicable, an
earnings statement covering a period of twelve (12) months,
beginning three months after the effective date of any Demand
Registration Statement relating to the distribution of Demand
Registrable Securities or the date of any final prospectus
used to confirm sales in connection with any offering of
Tranche Registrable Securities, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(o) Micron shall take all such other actions either
reasonably necessary or desirable to permit the Registrable
Securities held by Intel 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 (up to $100,000 in the case of a Demand
Registration Statement, $75,000 in the case of a Shelf
Registration Statement and $50,000 in the case of any
amendments or supplements required in connection with a
Tranche Request, plus, in all instances, the actual amount of
any filing fees) shall (subject to Section 4.7) be borne by
Intel; provided that Intel shall not be required to reimburse
Micron for compensation of Micron's officers and employees,
regular audit expenses, and normal corporate costs incurred in
connection with such registration. The costs and expenses of
any such registration shall include, without limitation, the
reasonable fees and expenses of Micron's counsel and its
accountants and all other out-of-pocket costs and expenses of
Micron incident to the preparation, printing and filing of the
registration statement and all amendments and supplements
thereto and the cost of furnishing copies of each preliminary
prospectus, each final prospectus and each amendment or
supplement thereto to underwriters, dealers and other
purchasers of the securities so registered, the costs and
expenses incurred in connection with the qualification of such
securities so registered under the securities or "blue sky"
laws of various jurisdictions, the fees and expenses of
Micron's transfer agent and all other costs and expenses of
complying with the provisions of this Section 4 with respect
to such registration (collectively, the "Registration
Expenses").
(b) Micron shall pay all Registration Expenses incurred
by Micron in connection with any registration statements that
are initiated pursuant to Section 4.3 of this Agreement, other
than incremental filing fees associated with the inclusion of
the Registrable Securities in the registration statement.
Intel shall pay all expenses incurred on its behalf with
respect to any registration pursuant to Section 4.3,
including, without limitation, any counsel for Intel and all
underwriting discounts and selling commissions with respect to
the Registrable Securities sold by it pursuant to such
registration statement.
4.6 Indemnification.
(a) In the case of any offering registered pursuant to
this Section 4, Micron hereby indemnifies and agrees to hold
harmless Intel (and its officers and directors), any
underwriter (as defined in the Securities Act) of Registrable
Securities offered by Intel, and each Person, if any, who
controls Intel or any such underwriter within the meaning of
Section 15 of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which any such
Persons may be subject, under the Securities Act or otherwise,
and to reimburse any of such Persons for any legal or other
expenses reasonably incurred by them in connection with
investigating any claims or defending against any actions,
insofar as such losses, claims, damages or liabilities arise
out of or are based upon (a) any untrue statement or alleged
untrue statement of a material fact contained in the
registration statement under which such Registrable Securities
were registered under the Securities Act pursuant to this
Section 4, the prospectus contained therein (during the period
that Micron is required to keep such prospectus current), or
any amendment or supplement thereto, or the omission or
alleged omission to state therein (if so used) a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which
they were made, not misleading or (b) any violation or alleged
violation by Micron of the Securities Act, the Exchange Act,
any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the
offering covered by such registration statement, except
insofar as such losses, claims, damages or liabilities arise
out of or are (i) based upon any such untrue statement or
omission or alleged untrue statement or omission made in
reliance upon information furnished to Micron in writing by
Intel or any underwriter for Intel 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,
Intel agrees, if Registrable Securities held by Intel are
included in the securities as to which such registration is
being effected, and each underwriter shall agree, in
substantially the same manner and to substantially the same
extent as set forth in the preceding paragraph, to indemnify
and to hold harmless Micron and its directors and officers and
each Person, if any, who controls Micron within the meaning of
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 (a) an untrue
statement or alleged untrue statement or omission or alleged
omission of a material fact in any registration statement
under which the Registrable Securities were registered under
the Securities Act pursuant to this Section 4, any prospectus
contained therein, or any amendment or supplement thereto,
which was based upon and made in conformity with information
furnished to Micron in writing by Intel or such underwriter
expressly for use therein or (b) any violation or alleged
violation by Intel of the Securities Act, the Exchange Act,
any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the
offering covered by such registration statement.
(c) Each party entitled to indemnification under this
Section 4.6 (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense
of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may
participate in such defense at its own expense[, provided,
that that an Indemnified Party shall have the right to retain
its own counsel, with the fees and expenses to be paid by the
Indemnifying Party, to the extent that representation of such
Indemnified Party by the counsel retained by the Indemnifying
Party would be inappropriate due to actual or potential
conflict of interests between such Indemnified Party and any
other party represented by such counsel in such proceeding],
and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 4
unless such failure resulted in actual material detriment to
the Indemnifying Party. No Indemnifying Party, (i) in the
defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, which consent shall not
be unreasonably withheld, consent to entry of any judgment or
enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation, or
(ii) shall be liable for amounts paid in any settlement if
such settlement is effected without the consent of the
Indemnifying Party, which consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable
contribution to joint liability under the Securities Act or
the Exchange Act in any case in which either (i) any Person
exercising rights under this Agreement, or any controlling
person of any such Person, makes a claim for indemnification
pursuant to this Section 4 but it is judicially determined (by
the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or
the denial of the last right of appeal) that such
indemnification may not be enforced in such case
notwithstanding the fact that this Section 4 provides for
indemnification in such case, or (ii) contribution under the
Securities Act or the Exchange Act may be required on the part
of any such selling Person or any such controlling Person in
circumstances for which indemnification is provided under this
Section 4; then, and in each such case, Micron and such Person
will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution
from others) in such proportion so that such Person is
responsible for the portion represented by the percentage that
the public offering price of its Registrable Securities
offered by and sold under the registration statement bears to
the public offering price of all securities offered by and
sold under such registration statement, and Micron and other
selling Persons are responsible for the remaining portion;
provided, however, that, in any such case: (A) no such Person
will be required to contribute any amount in excess of the
public offering price of all such Registrable Securities
offered and sold by such Person pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent
misrepresentation.
4.7 Issuances by Micron or Other Holders. As to each
registration or distribution referred to in Sections 4.1 and 4.2,
additional shares of the Common Stock to be sold for the account of
Micron or other holders may be included therein, provided that the
inclusion of such securities in such registration or distribution
may be conditioned or restricted if, in the opinion of the
Demand/Tranche Managing Underwriters, marketing factors require a
limitation of the number of shares to be underwritten. The
Registration Expenses incurred by Micron, Intel and any other
holders participating in such registration or distribution shall be
borne by Micron, Intel and any other holders participating in such
registration or distribution in proportion to the aggregate number
of shares to be sold by Micron, Intel and such other holders.
4.8 Information by Intel. Intel shall furnish to Micron such
information regarding Intel in the distribution of Registrable
Securities proposed by Intel as Micron may reasonably request in
writing and as shall be required in connection with any
registration, qualification or compliance referred to in this
Section 4.
4.9 Market Standoff Agreements.
(a) In connection with the public offering by Micron of
any of its securities, Intel agrees that, upon the request the
underwriters managing any underwritten offering of Micron's
securities, Intel shall agree in writing (the "Intel Public
Offering Lock-Up") that neither Intel (nor any Affiliate of
Intel) will, directly or indirectly, offer to sell, contract
to sell, make any short sale of, or otherwise sell, dispose
of, loan, gift, pledge or grant any options or rights with
respect to, any securities of Micron (other than those
included in such registration statement, if any) now or
hereafter acquired by Intel (or any Affiliate of Intel) or
with respect to which Intel (or any Affiliate of Intel) has or
hereafter acquires the power of disposition without the prior
written consent of Micron and such underwriters for such
period of time (not to exceed fourteen (14) days prior to the
date such offering is expected to commence and ninety (90)
days after the date of the final prospectus delivered to the
underwriters for use in confirming sales in such offering) as
may be requested by Micron and the underwriters, except that
Intel and its Affiliates shall be permitted to enter into
transactions that have the effect of maintaining or continuing
pre-existing Hedging Transaction positions by continuing,
renewing or replacing any such positions on substantially
equivalent terms; provided, however, that in no event shall
Intel (or any Affiliate of Intel) be required to enter into
such an agreement more than once during any twelve (12) month
period. Furthermore, if Intel is an Affiliate of Micron,
Intel agrees that, at the request of Micron, Intel shall agree
in writing (the "Intel Pooling Transaction Lock-Up") that,
except for transactions that have the effect of maintaining or
continuing pre-existing Hedging Transactions positions which
transactions Micron's independent accountants determine (which
determination shall be conclusive) may be permitted without
affecting the accounting of a proposed business combination as
a pooling of interests, neither Intel (nor any Affiliate of
Intel) 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 Intel (or any Affiliate of Intel) or with respect
to which Intel (or any Affiliate of Intel) 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,
Intel is or was an "affiliate" of Micron for purposes of the
accounting rules governing pooling of interests transactions.
Intel agrees that Micron may instruct its transfer agent to
place stop-transfer notations in its records to enforce the
provisions of the Intel Public Offering Lock-Up and the Intel
Pooling Transaction Lock-Up contained in this Section 4.9(a).
(b) In connection with any proposed public offering by
Intel of any Registrable Securities, Micron agrees that, upon
the request of Intel or the underwriters managing any
underwritten offering of Intel's securities, Micron shall
agree in writing (the "Micron Public Offering Lock-Up") that
neither Micron (nor any Affiliate of Micron) will, directly or
indirectly, offer to sell, contract to sell, make any short
sale of, or otherwise sell, dispose of, loan, gift, pledge or
grant any options or rights with respect to, any securities of
Micron (other than those included in such registration
statement, if any, or grants of stock options or issuances of
Common Stock upon the exercise of outstanding stock options
under Micron's existing employee benefit plans) now or
hereafter acquired by Micron (or any Affiliate of Micron) or
with respect to which Micron (or any Affiliate of Micron) has
or hereafter acquires the power of disposition without the
prior written consent of Intel and such underwriters for such
period of time (not to exceed fourteen (14) days prior to the
date such offering is expected to commence and ninety (90)
days) after the date of the final prospectus delivered to the
underwriters for use in confirming sales in such offering) as
may be requested by Intel and the 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 Section 4 (other than
Sections 4.5 and 4.6) shall terminate upon the earlier to occur of:
(i) the fifth anniversary date of this Agreement, (ii) such time as
Intel (and any Affiliates of Intel) beneficially own in the
aggregate less than 5,000,000 shares of Common Stock (including all
Shares issuable upon exercise or conversion of Rights or Class A
Common Stock), and (iii) in the case of Sections 4.1 through 4.4,
Section 4.7 and Section 4.8, such time as Intel may sell all
securities of Micron acquired pursuant to the Securities Purchase
Agreement which it which it continues to own within a ninety (90)
day period under Rule 144.
SECTION 5
BOARD REPRESENTATION
5.1 Board of Directors. Upon the written request of Intel,
Micron shall use reasonable efforts to cause one person designated
by Intel and reasonably acceptable to the Chief Executive Officer
of Micron to be elected to the Micron Board of Directors (either by
creating a vacancy on the Board of Directors or including such
Person on the slate at Micron's next annual meeting of
stockholders). For purposes of this Section 6.1, reasonable bases
for rejecting a proposed nominee include, among others, concerns
about competence, failure to have significant and direct experience
in or with the semiconductor memory business, business or personal
conflicts (actual or potential), and evidence of business or
personal relationships with existing or former directors or
executive officers, evidencing an inability to function on a
congenial basis with any existing directors. Any nominee who is an
employee or officer of Intel or of any Affiliate of Intel will be
an officer of Intel holding the position of corporate vice
president or higher.
5.2 Termination. The provisions of this Section 5 shall
terminate on the earlier of (i) the fifth anniversary of the date
of this Agreement; (ii) at such time as Intel (together with all
Affiliates of Intel) beneficially owns in the aggregate Transaction
Related 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, or (iii) upon
exercise of the Conversion Adjustment in accordance with
Section 4.b.3 of the Certificate of Amendment or Section 7 of the
Stock Rights Agreement (notwithstanding settlement of any such
adjustment with cash).
SECTION 6
MISCELLANEOUS
6.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware as applied to
contracts entered into solely between residents of, and to be
performed entirely within, such state.
6.2 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement may not be
assigned by a party without the prior written consent of the other
party; provided that, without the consent of Micron, Intel may
assign this Agreement (and the rights and obligations hereunder) to
any Qualified Subsidiary in connection with a transfer of Voting
Securities of Micron to such Affiliate of Intel pursuant to
Section 3.1(b), and without the consent of Intel, Micron may assign
all or part of this Agreement (and the rights and obligations
hereunder) to the successor or an assignee of all or substantially
all of Micron's business; provided that, in each case, such
assignee expressly assumes the relevant obligations of this
Agreement (by a written instrument delivered to the other party, in
form and substance reasonably acceptable to it) and,
notwithstanding such assignment, the parties hereto shall each
continue to be bound by all of their respective obligations
hereunder. This Agreement is not intended and shall not be
construed to create any rights or remedies in any parties other
than Intel and Micron and no Person shall assert any rights as
third party beneficiary hereunder.
6.3 Entire Agreement; Amendment. This Agreement contains the
entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof and supersedes all prior
agreements and understandings among the parties relating to the
subject matter hereof. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of
any such amendment, waiver, discharge or termination is sought.
6.4 Notices and Dates.
(a) All notices, requests, demands, and other
communications under this Agreement shall be in writing and
shall be delivered personally (including by courier) or given
by facsimile transmission to the parties at the following
addresses (or to such other address as a party may have
specified by notice given to the other pursuant to this
provision) and shall be deemed given when so received:
if to Micron, to:
Micron, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to Intel, to:
Intel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasury Portfolio Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Intel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
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 place of receipt and such day is a
business day in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Each person making a communication hereunder by facsimile shall
promptly confirm by telephone to the person to whom such
communication was addressed each communication made by it by
facsimile pursuant hereto but the absence of such confirmation
shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate
additional addresses, for purposes of this Section 6.4 by giving
the other party written notice of the new address in the manner set
forth above.
(b) In the event that any date provided for in this
Agreement falls on a Saturday, Sunday or legal holiday, such
date shall be deemed extended to the next business day.
6.5 Language Interpretation. In the interpretation of this
Agreement, unless the context otherwise requires, (a) words
importing the singular shall be deemed to import the plural and
vice versa, (b) words denoting gender shall include all genders,
(c) references to persons shall include corporations or other
entities and vice versa, and (d) references to parties, sections,
schedules, paragraphs and exhibits shall mean the parties,
sections, schedules, paragraphs and exhibits of and to this
Agreement, unless otherwise indicated by the context.
6.6 Table of Contents; Titles; Headings. The table of
contents and section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement. All references herein to
Sections, unless otherwise identified, are to Sections of this
Agreement.
6.7 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the
same agreement, and shall become a binding agreement when one or
more counterparts have been signed by each party and delivered to
the other party.
6.8 Severability. If any provision of this Agreement or
portion thereof is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
6.9 Injunctive Relief. Intel, on the one hand, and Micron,
on the other, acknowledge and agree that irreparable damage may
occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties
shall be entitled to seek an injunction or injunctions to prevent
or cure breaches of the provisions of this Agreement and to enforce
specific performance of the terms and provisions hereof in any
court of the United States or any state thereof having
jurisdiction, this being in addition to any other remedy to which
they may be entitled at law or equity.
6.10 Dispute Resolution. The parties agree to negotiate in good
faith to resolve any dispute between them regarding this Agreement.
If the negotiations do not resolve the dispute to the reasonable
satisfaction of both parties, then each party shall nominate one
senior officer of the rank of Vice President or higher as its
representative. These representatives shall, within thirty (30)
days of a written request by either party to call such a meeting,
meet in person and alone (except for one assistant for each party)
and shall attempt in good faith to resolve the dispute. If the
disputes cannot be resolved by such senior managers in such
meeting, the parties agree that they shall, if requested in writing
by either party, meet within thirty (30) days after such written
notification for one day with an impartial mediator and consider
dispute resolution alternatives other than litigation. If an
alternative method of dispute resolution is not agreed upon within
thirty (30) days after the one day mediation, either party may
begin litigation proceedings. This procedure shall be a
prerequisite before taking any additional action hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective authorized officers as of the
date aforesaid.
MICRON TECHNOLOGY, INC.,
a Delaware corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
INTEL CORPORATION,
a Delaware corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
[Signature Page to Securities Rights and Restrictions Agreement]
