UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(1)
(Amendment No. 1)*
Micron Technology, Inc.
(Name of Issuer)
Common Stock, $.10 par value
(Title of Class of Securities)
595112
(CUSIP Number)
F. Thomas Dunlap
Vice President, General Counsel and Secretary
Intel Corporation
2200 Mission College Boulevard
Santa Clara, CA 95052
Telephone: (408) 765-8080
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 19, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D and is filing this schedule because of Rule 13d-
1 (e), 13d-1 (f) or 13d-1 (g), check the following box [ ].
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter the disclosures provided
in a prior cover page.
The information required in the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 (the "Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 36 Pages
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Cusip No. 595112 13D Page 2 of 36
ITEM 7. Material to be Filed as Exhibits.
Exhibit 1* Securities Purchase Agreement between the
Issuer and the Reporting Person dated
October 15, 1998 (the "Securities Purchase
Agreement")
Exhibit 2 Form of Certificate of Amendment of
Certificate of Incorporation defining the
rights of the Class A Common Stock (the
"Certificate of Amendment")
Exhibit Securities Rights and Restrictions
3++ Agreement between the Issuer and the
Reporting Person, dated as of October 19,
1998 (the "Rights and Restrictions
Agreement")
Exhibit Stock Rights Agreement between the Issuer
4*++ and the Reporting Person, dated as of
October 19, 1998 (the "Rights and
Restrictions Agreement")
Exhibit Press Release dated October 16, 1998 (the
5++ "Press Release")
Exhibit Signature Authority dated October 20, 1998
6++
*Portions of these Exhibits have been redacted
pursuant to a request for confidential treatment.
++Previously filed
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Cusip No. 595112 13D Page 3 of 36
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated as of December 1, 1998.
INTEL CORPORATION
By: /s/F. Thomas Dunlap, Jr.
F. Thomas Dunlap, Jr.
Vice President, General
Counsel and Secretary
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Cusip No. 595112 13D Page 4 of 36
Exhibit 1
SECURITIES PURCHASE AGREEMENT
MICRON TECHNOLOGY, INC.
INTEL CORPORATION
October 15, 1998
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Cusip No. 595112 13D Page 5 of 36
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is
entered into as of October 15, 1998 by and between Micron
Technology, Inc., a Delaware corporation (the "Company" or the
"Corporation") and Intel Corporation, a Delaware corporation
("Intel").
WHEREAS, Intel is willing, pursuant to the terms and
conditions of this Agreement, to purchase from the Company for
five hundred million dollars ($500,000,000) Rights which are
exercisable for shares of a new class of common stock convertible
into regular common stock of the Company at such time as the new
class of common stock has been created and, until such time, for
shares of regular common stock of the Company;
WHEREAS, at the closing of the transactions contemplated
hereby, the Company and Intel will enter into the Rights
Agreement, the Rights and Restrictions Agreement and the Supply
Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
1.1 Certain Defined Terms; Interpretation. The following
terms shall have the following respective meanings.
"Affiliate" shall mean, with respect to any Person, any
Person directly or indirectly controlling, controlled by, or
under common control with, such other Person. For purposes of
this definition, "control" when used with respect to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities,
by contract or otherwise; the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in either Boise, Idaho or
San Francisco, California.
"Capital Expenditures" shall mean the sum of all
expenditures paid or, with respect to equipment that is in use,
accrued that, in accordance with U.S. generally accepted
accounting principles, should be included in or reflected by the
property, plant or equipment or similar fixed asset account
reflected in the balance sheet of the applicable person.
"Certificate of Amendment" shall mean the Certificate of
Amendment of the Certificate of Incorporation of the Company
authorizing the Class A Common Stock and defining the rights,
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Cusip No. 595112 13D Page 6 of 36
preferences and privileges with respect thereto substantially in
the form attached hereto as Exhibit D.
"Class A Common Stock" shall mean shares of Class A Common
Stock of the Company having the preferences and other rights set
forth in the Certificate of Amendment.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
"First Minimum Production Milestone". The First Minimum
Production Milestone requires that the Company and its
subsidiaries build and have available to ship (including those
actually shipped) an aggregate number of RDRAM devices in
[________] equal to the First Minimum Required Production.
"First Minimum Required Production" shall mean a number of
RDRAM units equal to the lower of (i) [_______] units of RDRAM;
(ii) Intel's Percentage Call on Capacity with respect to the
Company's overall output of discrete memory components (measured
in accordance with Section 7.0 of the Supply Agreement),
regardless of the actual production of RDRAM devices and (iii)
the number of units represented by [___]% of the reasonably
projected memory requirements for Intel's RDRAM unique chip set
production, net of MTH devices (as defined in the Supply
Agreement).
"First Production Milestone Date" shall mean [_______],
unless postponed or waived in accordance with the provisions of
Section 7(f) of the Rights Agreement or Section 3.f of the
Certificate of Amendment, in which case such date shall be the
date established in accordance with such sections, unless waived
in its entirety.
"HSR Act" shall mean Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Maximum Adjustment Amount" shall mean $150 million in
value.
"Maximum FGI" shall mean [______] RDRAM units.
"Maximum FGI Date" shall mean [______].
"Maximum Percentage" shall mean 19.9% of the total number of
shares of Common Stock outstanding at October 19, 1998.
"Maximum Shares" shall mean 31,620,554 shares of Common
Stock (appropriately adjusted to reflect the effect of stock
splits, reclassifications, stock dividends, recapitalizations,
combinations or similar events affecting the Common Stock
occurring after October 15, 1998).
"Minimum Qualified Expenditures" shall mean [________]
dollars ($[___]).
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Cusip No. 595112 13D Page 7 of 36
"Qualified Expenditures" shall mean the sum of all
expenditures by the Company and its subsidiaries (including any
such expenditures subsequent to May 28, 1998 and prior to October
19, 1998 not to exceed $[____]) and all expenditures by any joint
ventures from the date the Company is or becomes a party (up to a
maximum of $[_____] for each of not more than two such joint
ventures provided that the Company controls the output of such
joint ventures, but in any event including KTI Semiconductor
Limited and TECH Semiconductor Singapore Pte. Ltd.), which are
Capital Expenditures for the development, creation or expansion
of manufacturing capacity for RDRAM or other devices using 0.18
or smaller micron processes and which capacity is located in
facilities which are on the Company's roadmap for conversion to
0.18 micron or smaller processes, or volume manufacturing
capacity for RDRAM devices (including assembly and test of such
devices) (including equipment initially installed for production
at lower density process parameters (e.g., 0.21 micron) which is
convertible to 0.18 micron or smaller processes and which is
located in facilities which are on the Company's roadmap for
conversion to 0.18 micron or smaller processes) or which are
necessary research and development expenditures for the
development of RDRAM up to a maximum of $[_____] which are not
otherwise includable as Capital Expenditures. Expenditures for
capitalized leases will constitute Qualified Expenditures but
only for leases of new equipment (payments with respect to
previously leased equipment will not qualify).
"Person" shall mean individual, corporation, company,
voluntary association, partnership, joint venture, limited
liability company, trust, estate, unincorporated organization,
governmental authority or other entity.
"Required Qualified Expenditures" shall mean [________]
dollars ($[_____]).
"RDRAM" means an integrated circuit with a principal
function of memory storage which is a dynamic random access
memory and which incorporates Rambus' direct RDRAM interface
technology licensed to the Company by Rambus, Inc. References to
numbers of units or devices of RDRAM or Rambus shall mean the
number of RDRAM or Rambus units or devices stated in [________]
(regardless of the actual memory levels of the individual units
or devices).
"Rights" shall mean the securities issuable pursuant to the
Stock Rights Agreement attached to this Agreement as Exhibit A
and having the rights, preferences, privileges and restrictions
defined therein.
"Rights Agreement" shall mean the Stock Rights Agreement
attached to this Agreement as Exhibit A to be executed and
delivered by the Company and Intel at or prior to the Closing.
"Rights and Restrictions Agreement" shall mean the
Securities Rights and Restrictions Agreement in the form attached
hereto as Exhibit B to be executed and delivered by the Company
and Intel at or prior to the Closing.
"SEC" shall mean the Securities and Exchange Commission.
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Cusip No. 595112 13D Page 8 of 36
Second Minimum Production Milestone. The Second Minimum
Production Milestone requires that the Company and its
subsidiaries build and have available to ship (including those
actually shipped) an aggregate number of RDRAM devices in
[_________], equal to the Second Minimum Required Production,
unless modified in accordance with the provisions of Section 7(e)
of the Rights Agreement or 3.e of the Certificate of Amendment,
in which case such milestone shall be as so modified.
"Second Minimum Required Production" shall mean a number of
RDRAM units equal to the lower of (i) [________] units of RDRAM;
(ii) Intel's Percentage Call on Capacity (as defined in the
Supply Agreement) with respect to the Company's overall output of
discrete memory components (measured in accordance with Section
7.0 of the Supply Agreement), regardless of the actual production
of RDRAM devices and (iii) the number of units represented by
[___]% of the reasonably projected memory requirements for
Intel's RDRAM unique chip set production, net of MTH devices (as
defined in the Supply Agreement), unless modified in accordance
with the provisions of Section 3.e of the Certificate of
Amendment.
"Second Production Milestone Date" shall mean [______],
unless postponed or waived in accordance with the provisions of
Section 7(f) of the Rights Agreement or Section 3.f of the
Certificate of Amendment, in which case such date shall be the
date established in accordance with such sections, unless waived
in its entirety.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
"Supply Agreement" shall mean the Supply Agreement in the
form attached to this Agreement as Exhibit C to be executed and
delivered by the Company and Intel at or prior to the Closing.
"Volume Production" shall mean the production of [________]
per month of RDRAM devices.
1.2 Index of Other Defined Terms. In addition to the terms
defined above, the following terms shall have the respective
meanings given thereto in the sections indicated below:
Defined Term Section
"Action" 3.8
"Agreement" Preamble
"Audited Financial Statements" 3.10(b)
"Balance Sheet Date" 3.10(b)
"Closing" 2.2
"Company" Preamble
"Confidential Information" 7.2
"Disclosure Letter" 3
"Form 10-K" 3.10(a)
"Form 10-Q's" 3.10(a)
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Cusip No. 595112 13D Page 9 of 36
"GAAP" 3.10(b)
"Intel" Preamble
"Material Adverse Effect" 3.1
"SEC Documents" 3.10(a)
"Transaction Agreements" 7.2
2. AGREEMENT TO PURCHASE AND SELL SECURITIES.
2.1 Agreement to Purchase and Sell Securities. The Company
hereby agrees to issue to Intel at the Closing (as defined below)
and Intel agrees to purchase from the Company at the Closing,
Rights representing in the aggregate the right to purchase a
number of shares of Class A Common Stock equal to $500 million
divided by $31.625, for an aggregate purchase price of $500
million (the "Purchase Price").
2.2 The Closing. The purchase and sale of the Rights shall
take place at the offices of Gibson, Dunn & Crutcher, 1530 Page
Mill Road, Palo Alto, California 94304, at 10:00 a.m. California
time, on October 19, 1998, or at such other time and place as the
Company and Intel mutually agree upon (which time and place is
referred to in this Agreement as the "Closing"). At the Closing,
the Company will deliver to Intel certificates representing the
Rights being purchased, against delivery to the Company by Intel
of the consideration set forth in Section 2.1 by wire transfer of
funds to an account designated by the Company at least two (2)
Business Days prior to the Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Intel that the
statements in this Section 3 are true and correct, except as set
forth in the Disclosure Letter from the Company dated the date
hereof (the "Disclosure Letter") or disclosed in the SEC
Documents (as defined below):
3.1 Organization Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
corporate power and authority required to (a) carry on its
business as presently conducted, and (b) enter into this
Agreement, the Rights Agreement, the Rights and Restrictions
Agreement and the Supply Agreement, to issue the Rights, and to
consummate the transactions contemplated hereby and thereby. The
Company is qualified to do business and is in good standing in
each jurisdiction in which the failure to so qualify would have a
Material Adverse Effect. As used in this Agreement, "Material
Adverse Effect" means a material adverse effect, or a group of
such effects which are related, on the business, operations,
financial condition or results of operations, of the applicable
party and its subsidiaries, taken as a whole.
3.2 Capitalization. The authorized and outstanding capital
stock of the Company at October 8, 1998, without giving effect to
the transactions contemplated by this Agreement, is as set forth
in the Disclosure Letter or the SEC Documents. All outstanding
shares of capital stock have been duly authorized, and all such
issued and outstanding shares have been validly issued and are
fully paid and nonassessable. The Disclosure Letter or the SEC
Documents include
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Cusip No. 595112 13D Page 10 of 36
information regarding equity securities reserved for issuance to
officers, directors, employees or independent contractors or
affiliates of the Company under the Company's employee stock
option and purchase plans and upon conversion of convertible
securities. Except as set forth in the Disclosure Letter or the
SEC Documents, there are no other equity securities, options,
warrants, calls, rights, commitments or agreements of any
character to which the Company is a party or by which it is bound
obligating the Company to issue, deliver, sell, repurchase or
redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Company or
obligating the Company to grant, extend or enter into any such
equity security, option, warrant, call, right, commitment or
agreement.
3.3 Due Authorization. The Company has the requisite
corporate power and authority to enter into this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Supply Agreement and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Supply Agreement, and performance by the Company of its
obligations hereunder and thereunder, have been duly authorized
by all necessary corporate action on the part of the Company
(including its directors and stockholders), except for
stockholder approval of the Certificate of Amendment and the
issuance of the Class A Common Stock pursuant thereto. This
Agreement constitutes, and the Rights Agreement and the Rights
and Restrictions Agreement, when executed and delivered by the
parties thereto, will constitute, valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except (a) as may be
limited by (i) applicable bankruptcy, insolvency, reorganization
or others laws of general application relating to or affecting
the enforcement of creditors' rights generally and (ii) the
effect of rules of law governing the availability of equitable
remedies and (b) as rights to indemnity or contribution may be
limited under federal or state securities laws or by principles
of public policy thereunder.
3.4 Valid Issuance of Securities.
(a) Valid Issuance and Enforceability of Rights. The
Rights have been duly authorized and, when executed in accordance
with the provisions of the Rights Agreement and delivered to and
paid for Intel in accordance with the provisions of this
Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except (a) as may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) the effect of
rules of laws governing the availability of equitable remedies
and (b) as rights to indemnity or contribution may be limited
under federal or state securities laws or by principles of public
policy thereunder.
(b) Valid Issuance of Common Stock. The shares of
Common Stock issuable upon exchange or exercise of the Rights
have been duly authorized and reserved, and when issued upon
exchange or exercise of the Rights in accordance with the terms
of the Rights Agreement, will be duly and validly issued, fully
paid and nonassessable. Upon or prior to filing of the
Certificate of Amendment, the shares of Common Stock issuable
upon conversion of the Class A Common Stock will have been duly
authorized and reserved, and upon conversion of the
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Cusip No. 595112 13D Page 11 of 36
Class A Common Stock pursuant to the terms of the Certificate of
Amendment, will be duly and validly issued, fully paid and
nonassessable.
(c) Valid Issuance of Class A Common Stock. The
shares of Class A Common Stock issuable upon exchange or exercise
of the Rights have been duly authorized by the Board of Directors
of the Company. Assuming due authorization by the stockholders
of the Company and the filing by the Company of the Certificate
of Amendment with the Secretary of State of the State of
Delaware, the shares of Class A Common Stock issuable upon
exchange or exercise of the Rights will be duly reserved for
issuance by the Company, and when issued upon exchange or
exercise of the Rights in accordance with the terms of the Rights
Agreement, will be duly and validly issued, fully paid and
nonassessable.
3.5 Compliance with Securities Laws. Assuming the accuracy
of the representations made by Intel in Section 4 hereof, the
Rights and the shares of Class A Common Stock or Common Stock
issuable upon exercise or exchange of the Rights will be issued
to Intel in compliance with applicable exemptions from (i) the
registration and prospectus delivery requirements of the
Securities Act and (ii) the registration and qualification
requirements of all applicable securities laws of the states of
the United States.
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration qualification, designation,
declaration or filing with, any federal, state or local
governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated
by this Agreement, except: (i) compliance with the HSR Act which
may be required for the exercise of the Rights to acquire Common
Stock; (ii) the filing of a report on Form 8-K by the Company
with the SEC following the Closing; (iii) the filing of such
qualifications or filings under the Securities Act and the
regulations thereunder and all applicable state securities laws
as may be required in connection with the transactions
contemplated by this Agreement; (iv) the listing of the Common
Stock issuable upon exercise or exchange of the Rights or
conversion of the Class A Common Stock on the New York Stock
Exchange; (v) the filing of the Certificate of Amendment with the
Secretary of State of the State of Delaware; and (vi) as
expressly required or contemplated by the terms of the Rights and
Restrictions Agreement. All such qualifications and filings in
connection with the initial issuance of the Rights will have been
made or be effective on the Closing.
3.7 Non-Contravention. The execution, delivery and
performance of this Agreement, the Rights Agreement and the
Rights and Restrictions Agreement by the Company, and the
consummation by the Company of the transactions contemplated
hereby and thereby, do not and will not (i) contravene or
conflict with the Certificate of Incorporation or Bylaws of the
Company, as amended; (ii) constitute a violation of any provision
of any federal, state, local or foreign law binding upon or
applicable to the Company; or (iii) constitute a default or
require any consent under, give rise to any right of termination,
cancellation or acceleration of, or to a loss of any benefit to
which the Company is entitled under, or result in the creation or
imposition of any lien, claim or encumbrance on any assets of the
Company under, any contract to which the Company is a party or
any permit, license or similar right relating to the Company or
by which
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Cusip No. 595112 13D Page 12 of 36
the Company may be bound, except in the case of clause (ii) and
(iii) as, individually or in the aggregate, would not have a
Material Adverse Effect.
3.8 Litigation. There is no action, suit, proceeding,
claim, arbitration or investigation ("Action") pending: (a)
against the Company, properties or assets or, to the best of the
Company's knowledge, against any officer, director or employee of
the Company in connection with such officer's, director's or
employee's relationship with, or actions taken on behalf of, the
Company, which the Company believes is reasonably likely to have
a Material Adverse Effect, or (b) that seeks to prevent, enjoin,
alter or delay the transactions contemplated by this Agreement.
The Company is not a party to or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which it believes is
reasonably likely to have a Material Adverse Effect. No Action
by the Company is currently pending nor does the Company intend
to initiate any Action which it believes is reasonably likely to
have a Material Adverse Effect.
3.9 Compliance with Law and Charter Documents. The Company
is not in violation or default of any provisions of its
Certificate of Incorporation or Bylaws, both as amended. The
Company has complied and is in compliance with all applicable
statutes, laws, and regulations and executive orders of the
United States of America and all states, foreign countries and
other governmental bodies and agencies having jurisdiction over
the Company's business or properties, except for any violations
that would not, either individually or in the aggregate, have a
Material Adverse Effect.
3.10 SEC Documents.
(a) Reports. The Company has furnished or made
available to Intel prior to the date hereof copies of its Annual
Report on Form 10-K for the fiscal year ended August 28, 1997
("Form 10-K"), its Quarterly Reports on Form 10-Q for the fiscal
quarters ended November 30, 1997, February 28, 1998 and May 28,
1998 (the "Form 10-Q's"), and all other registration statements,
reports and proxy statements filed by the Company with the SEC on
or after October 31, 1997 (the Form 10-K, the Form 10-Q's and
such registration statements, reports and proxy statements are
collectively referred to herein as the "SEC Documents"). Each of
the SEC Documents, as of the respective date thereof (or if
amended or superseded by a filing prior to the closing date of
this Agreement, then on the date of such filing), did not, and
each of the registration statements, reports and proxy statements
filed by the Company with the SEC after the date hereof and prior
to the Closing will not, as of the date thereof (or if amended or
superseded by a filing prior to the date of this Agreement, then
on the date of such filing), contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The
Company is not a party to any material contract, agreement or
other arrangement which was required to have been filed as an
exhibit to the SEC Documents that was not so filed.
(b) Financial Statements. The SEC Documents include
the Company's audited financial statements (the "Audited
Financial Statements") for the fiscal year ended
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Cusip No. 595112 13D Page 13 of 36
August 31, 1997, and its unaudited financial statements for the
nine-month period ended May 31, 1998 (the "Balance Sheet Date").
Since the Balance Sheet Date, the Company has duly filed with the
SEC all registration statements reports and proxy statements
required to be filed by it under the Exchange Act and the
Securities Act. The audited and unaudited consolidated financial
statements of the Company included in the SEC Documents filed
prior to the date hereof fairly present, in conformity with
generally accepted accounting principles ("GAAP") (except as
permitted by Form 10-Q) applied on a consistent basis (except as
may be indicated in such financial statements or the notes
thereto), the consolidated financial position of the Company and
its consolidated subsidiaries as at the dates thereof and the
consolidated results of their operations and cash flows for the
periods then ended (subject to normal year-end audit adjustments
in the case of unaudited interim financial statements).
3.11 Absence of Certain Changes Since Balance Sheet. Since
the Balance Sheet Date, except as disclosed in or contemplated by
the SEC Documents, the business and operations of the Company
have been conducted in the ordinary course consistent with past
practice, and there has not been:
(a) any declaration, setting aside or payment of any
dividend or other distribution of the assets of the Company with
respect to any shares of capital stock of the Company or any
repurchase, redemption or other acquisition by the Company or any
subsidiary of the Company of any outstanding shares of the
Company's capital stock;
(b) any damage, destruction or loss, whether or not
covered by insurance, except for such occurrences that have not
resulted, and are not expected to result, in a Material Adverse
Effect;
(c) any waiver by the Company of a valuable right or
of a material debt owed to it, except for such waivers that have
not resulted and are not expected to result, in a Material
Adverse Effect;
(d) any material change or amendment to, or any waiver
of any material rights under a material contract or arrangement
by which the Company or any of its assets. or properties is bound
or subject, except for changes, amendments or waivers that are
expressly provided for or disclosed in this Agreement or that
have not resulted, and are not expected to result, in a Material
Adverse Effect;
(e) any change by the Company in its accounting
principles, methods or practices or in the manner it keeps its
accounting books and records, except any such change required by
a change in GAAP; and
(f) any other event or condition of any character,
except for such events and conditions that have not resulted,
either individually or collectively, in a Material Adverse
Effect.
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Cusip No. 595112 13D Page 14 of 36
3.12 RDRAM Device Specification Modifications. As of the
date of this Agreement the Company is not aware of any RDRAM
device specification modifications that the Company believes
require unreasonable process modifications.
3.13 Full Disclosure. The information contained in this
Agreement, the Disclosure Letter and the SEC Documents with
respect to the business, operations, results of operations and
financial condition of the Company, and the transactions
contemplated by this Agreement, taken together, are true and
complete in all material respects and do not omit to state any
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF INTEL.
Intel represents and warrants to the Company as follows:
4.1 Investigation; Economic Risk. Intel has received or
has had full access to all of the information it considers
necessary or appropriate to make an informed investment decision
with respect to the Rights that are convertible or exercisable
into Class A Common Stock or Common Stock to be purchased by
Intel under this Agreement. Intel further has had an opportunity
to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Rights and the
Class A Common Stock or Common Stock into which they are
convertible or exercisable and to obtain additional information
(to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to
verify any information furnished to the investor or to which
Intel had access. The foregoing, however, does not in any way
limit or modify the representations and warranties made by the
Company in Section 3. Intel understands that the purchase of the
Rights that are exchangeable or exercisable into Class A Common
Stock or Common Stock involves substantial risk. Intel
acknowledges that it is able to fend for itself in the
transactions contemplated by this Agreement and has the ability
to bear the economic risks of its investment pursuant to this
Agreement and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and
risks of this investment in the Rights and the Class A Common
Stock or Common Stock into which they are convertible or
exercisable and protecting its own interests in connection with
this investment.
4.2 Purchase for Own Account. The Rights, Class A Common
Stock and Common Stock which Intel may acquire will be acquired
for Intel's own account, not as a nominee or agent, and not with
a view to or in connection with the sale or distribution of any
part thereof.
4.3 Exempt from Registration; Restricted Securities. Intel
understands that the sale of the Rights and the issuance of the
Class A Common Stock or Common Stock upon exercise or exchange
thereof will not be registered under the Securities Act on the
ground that the sale provided for in this Agreement is exempt
from registration under of the Securities Act, and that the
reliance of the Company on such exemption is predicated in part
on Intel's representations set forth in this Agreement. Intel
understands that the Rights and the Class A Common Stock or
Common Stock issuable upon exercise or exchange thereof are
restricted securities within the
<PAGE>
Cusip No. 595112 13D Page 15 of 36
meaning of Rule 144 under the Act, and must be held indefinitely
unless they are subsequently registered or an exemption from such
registration is available. Intel understands that the Company is
under no obligation to register any of the securities sold
hereunder except as provided in the Rights and Restrictions
Agreement.
4.4 Accredited Investor. Intel is an "accredited investor"
as that term is defined in Rule 501(a)(8) of Regulation D as
promulgated by the SEC under the Securities Act.
4.5 Legends. Intel agrees that the Rights, Class A Common
Stock and the Common Stock issuable upon exercise or conversion
thereof will bear legends and be subject to the restrictions on
transfer as provided in the Rights and Restrictions Agreement.
In addition, Intel agrees that the Company may place stop
transfer orders with its transfer agents with respect to such
instruments. The appropriate portion of the legend shall be
removed in accordance with the provisions of the Rights and
Restrictions Agreement and the stop transfer orders shall be
removed promptly upon delivery to the Company of such
satisfactory evidence as reasonably may be required by the
Company that such stop orders are not required to ensure
compliance with the Securities Act.
4.6 Organization Good Standing and Qualification. Intel is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all
corporate power and authority required to (a) carry on its
business as presently conducted, and (b) enter into this
Agreement, the Rights Agreement, the Rights and Restrictions
Agreement and the Supply Agreement and to consummate the
transactions contemplated hereby and thereby.
4.7 Due Authorization. Intel has the requisite corporate
power and authority to enter into this Agreement, the Rights
Agreement, the Rights and Restrictions Agreement and the Supply
Agreement and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Supply Agreement, and performance by Intel of its obligations
hereunder and thereunder, have been duly authorized by all
necessary corporate action on the part of Intel. This Agreement
constitutes, and the Rights Agreement and the Rights and
Restrictions Agreement, when executed and delivered by the
parties thereto, will constitute, valid and legally binding
obligations of Intel, enforceable against the Intel in accordance
with their respective terms, except (a) as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws
of general application relating to or affecting the enforcement
of creditors' rights generally and (ii) the effect of rules of
law governing the availability of equitable remedies and (b) as
rights to indemnity or contribution may be limited under federal
or state securities laws or by principles of public policy
thereunder.
4.8 Governmental Consents. No consent, approval, order or
authorization of, or registration qualification, designation,
declaration or filing with, any federal, state or local
governmental authority on the part of Intel is required in
connection with the consummation of the transactions contemplated
by this Agreement, except: (i) compliance with the HSR Act which
may be required for the exercise of the Rights to acquire Common
Stock; and (ii) as expressly required or contemplated by the
terms of the Rights and Restrictions Agreement.
<PAGE>
Cusip No. 595112 13D Page 16 of 36
4.9 Non-Contravention. The execution, delivery and
performance of this Agreement, the Rights Agreement and the
Rights and Restrictions Agreement by Intel, and the consummation
by Intel of the transactions contemplated hereby and thereby, do
not and will not (i) contravene or conflict with the Certificate
of Incorporation or Bylaws of Intel, as amended; (ii) constitute
a violation of any provision of any federal, state, local or
foreign law binding upon or applicable to Intel; or (iii)
constitute a default or require any consent under, give rise to
any right of termination, cancellation or acceleration of, or to
a loss of any benefit to which Intel is entitled under, or result
in the creation or imposition of any lien, claim or encumbrance
on any assets of Intel under, any contract to which Intel is a
party or any permit, license or similar right relating to Intel
or by which Intel may be bound, except in the case of clause (ii)
and (iii) as, individually or in the aggregate, would not have a
Material Adverse Effect.
5. AFFIRMATIVE COVENANTS OF THE COMPANY.
The Company covenants to Intel as follows:
5.1 Use of Proceeds. The Company will use the proceeds
from the sale of the Rights pursuant to this Agreement for
Qualified Expenditures.
5.2 Authorization of Class A Common Stock. The Company
will use reasonable efforts to obtain stockholder approval of an
amendment to its Certificate of Incorporation at its next annual
stockholders meeting and will promptly thereafter cause a
Certificate of Amendment substantially in the form attached
hereto as Exhibit D to be filed with the Delaware Secretary of
State of the State of Delaware.
5.3 Reports of Qualified Expenditures. The Company shall
provide to Intel, in a mutually acceptable form, on a quarterly
basis commencing December 31, 1998, a report of Qualified
Expenditures made, sufficient to permit an audit of such
expenditures pursuant to Section 7(m) of the Rights Agreement.
5.4 Cooperation in HSR Act Filings. In the event of a
proposed exercise of Rights to acquire Common Stock or voluntary
conversion of the Class A Common Stock which would require a
filing by Intel under the HSR Act, the Company will cooperate
with Intel and use reasonable efforts to comply with any
applicable requirements of the HSR Act; provided, however, that
the Company shall not be under any obligation to comply with any
request that it reasonably determines is unduly burdensome. Any
filing fees under the HSR Act shall be paid by Intel.
5.5 Audit. The Company will maintain relevant records to
support all Qualified Expenditures and Production milestones.
Such records will be retained in accordance with the Company's
normal record retention policies. Upon written request, the
Company will make available to Intel documents and other
information that are reasonably necessary to verify the Company's
compliance with the terms of the Transaction Agreements; provided
that Intel enters into an agreement with the Company to maintain
in confidence the Company's confidential
<PAGE>
Cusip No. 595112 13D Page 17 of 36
information disclosed pursuant to the audit, to the extent that
existing agreements do not cover such information. Intel may
also request in writing that an audit be performed by an
independent auditor with respect to the Qualified Expenditures
and Production milestones necessary to verify the Special
Conversion Adjustments. If Intel elects to have such an audit
performed, the Company will make available to such independent
auditor, financial, technical and other information and records
relevant to auditing the Qualified Expenditures and Production
milestones in order to verify the Special Conversion Adjustments
that may be reasonably requested by such independent auditor.
The independent auditor selected shall be mutually acceptable to
Intel and the Company and compensated by Intel. Prior to
beginning such audit or receiving such information, the
independent auditor will enter into an agreement with the Company
to maintain in confidence the Company's confidential information.
The Company shall cooperate with the independent auditor in
responding to requests for the Company information and records.
The independent auditor will promptly conduct and issue a report
to the Company and Intel. If the independent auditor determines
that the Company has failed to comply with any of the terms
hereof being audited, such independent auditor shall only
disclose to Intel and the Company the results of the audit
without revealing the Company's confidential information. If the
independent auditor determines that a further Special Conversion
Adjustment is required hereunder, such auditor shall only
disclose in its audit report to the Company and Intel the (i)
amount of the additional Special Conversion Adjustment that is
required hereunder; and (ii) a calculation as to how such amounts
were actually determined, if applicable.
6. CLOSING CONDITIONS.
6.1 Conditions to Intel's Obligations. The obligations of
Intel to consummate the transactions contemplated by this
Agreement at the Closing are subject to the fulfillment or
waiver, on or before the Closing, of each of the following
conditions:
(a) Representations and Warranties True. Each of the
representations and warranties of the Company contained in
Section 3 will be true and correct in all material respects on
and as of the date hereof and on and as of the date of the
Closing, with the same effect as though such representations and
warranties had been made as of the Closing.
(b) Performance. The Company will have performed and
complied with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or
complied with by it on or before the Closing and will have
obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
(c) Compliance Certificate. The Company will have
delivered to the Intel at the Closing a certificate signed on its
behalf by its Chief Executive Officer or Chief Financial Officer
certifying that the conditions specified in Section 6.1(a) and
(b) hereof have been fulfilled.
(d) Securities Exemptions. The offer and sale of the
Rights to Intel pursuant to this Agreement and the Rights
Agreement will be exempt from the registration requirements of
<PAGE>
Cusip No. 595112 13D Page 18 of 36
the Securities Act and the registration and/or qualification
requirements of all applicable state securities laws.
(e) Proceedings and Documents. All corporate and
other proceedings in connection with the transactions
contemplated at the Closing and all documents incident thereto
will be reasonably satisfactory in form and substance to Intel,
and Intel will have received all such counterpart originals and
certified or other copies of such documents as it may reasonably
request. Such documents shall include (but not be limited to)
the following:
(i) Certified Charter Documents. A copy of the
Certificate of Incorporation certified as of a recent date by the
Secretary of State of Delaware as a complete and correct copy
thereof, and the Bylaws of the Company (as amended through the
date of the Closing), certified by the Secretary of the Company
as true and correct copies thereof as of the Closing.
(ii) Board Resolutions. A copy, certified by the
Secretary of the Company, of the resolutions of the Board of
Directors of the Company providing for the approval of the
transactions contemplated by this Agreement, the Rights
Agreement, the Rights and Restrictions Agreement and the Supply
Agreement and the issuance of the Rights and the Class A Common
Stock or Common Stock issuable upon exercise or conversion
thereof.
(f) Opinion of Company Counsel. Intel will have
received an opinion on behalf of the Company, dated as of the
date of the Closing, from counsel to the Company, in form and
substance reasonably satisfactory to Intel.
(g) Other Agreements. The Company will have executed
and delivered the Rights Agreement, the Rights and Restrictions
Agreement and the Supply Agreement.
6.2 Conditions to the Company's Obligations. The
obligations of the Company to consummate the transactions
contemplated by this Agreement at the Closing are subject to the
fulfillment or waiver on or before the Closing, of each of the
following conditions:
(a) Representations and Warranties True. The
representations and warranties of Intel contained in Section 4
will be true and correct in all material respects on and as of
the date hereof and on and as of the date of the Closing with the
same effect as though such representations and warranties had
been made as of the Closing.
(b) Performance. Intel will have performed and
complied with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or
complied with by it on or before the Closing and will have
obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
(c) Payment of Purchase Price. Intel will have
delivered to the Company the Purchase Price of the Rights as
specified in and in accordance with Section 2.1.
<PAGE>
Cusip No. 595112 13D Page 19 of 36
(d) Securities Exemptions. The offer and sale of the
Rights to Intel pursuant to this Agreement will be exempt from
the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable
state securities laws.
(e) Other Agreements. Intel will have executed and
delivered the Rights Agreement, the Rights and Restrictions
Agreement and the Supply Agreement.
7. CONFIDENTIALITY OBLIGATIONS.
7.1 Obligations. Except to the extent required by law or
judicial order or except as provided herein, each party to this
Agreement will hold any of the other's Confidential Information
(as defined in the next paragraph) in confidence and will: (i)
use the same degree of care to prevent unauthorized disclosure or
use of the Confidential Information that the receiving party uses
with its own information of like nature (but in no event less
than reasonable care), (ii) limit disclosure of the Confidential
Information, including any materials regarding the Confidential
Information that the receiving party has generated, to such of
its employees and contractors as have a need to know the
Confidential Information to accomplish the purposes of this
Agreement, and (iii) advise its employees, agents and contractors
of the confidential nature of the Confidential Information and of
the receiving party's obligations under this Agreement and the
Corporate Non-Disclosure Agreement #19096.
7.2 Certain Definitions. For purposes of this Agreement,
the term "Confidential Information" refers to this Agreement, the
Rights Agreement, the Supply Agreement and the Rights and
Restrictions Agreement (collectively, the "Transaction
Agreements"). Any employee or contractor of the receiving party
having access to the Confidential Information will be required to
sign a non-disclosure agreement protecting the Confidential
Information if not already bound by such a non-disclosure
agreement.
7.3 Non-Disclosure of Agreements. Except to the extent
required by law or judicial order or except as provided herein,
neither party shall disclose the Transaction Agreements or any of
their terms without the other's prior written approval, which
approval will not be delayed or unreasonably withheld. Either
party may disclose the Transaction Agreements to the extent
required by law or judicial order, provided that if such
disclosure is pursuant to judicial order or proceedings, the
disclosing party will notify the other party promptly before such
disclosure and will cooperate with the other party to seek
confidential treatment with respect to the disclosure if
requested by the other party and provided further that if such
disclosure is required pursuant to the rules and regulations of
any federal, state or local organization, the parties will
cooperate to seek confidential treatment of the Transaction
Agreements to the maximum extent possible under law.
7.4 Public Announcements. Upon execution of this
Agreement, the parties will agree on the content of a joint press
release announcing the existence of the transactions contemplated
by this Agreement, which press release will be issued as mutually
agreed by the parties.
<PAGE>
Cusip No. 595112 13D Page 20 of 36
7.5 Third Party Information. Neither party will be
required to disclose to the other any confidential information of
any third party without having first obtained such third party's
prior written consent.
7.6 Other Disclosures. All confidential information
exchanged by the parties will be disclosed pursuant to the Intel
Corporation/Micron Technology, Inc. Corporate Non-Disclosure
Agreement #19096.
8. MISCELLANEOUS.
8.1 Governing Law. This Agreement shall be governed in all
respects by and construed in accordance with the laws of the
State of Delaware, without regard to provisions regarding choice
of laws. Jurisdiction shall be in the courts of the state of
domicile of the defending party to the original action.
8.2 Survival. The representations, warranties, covenants
and agreements made herein shall survive any investigation made
by any party hereto and the closing of the transactions
contemplated hereby, provided that the representations and
warranties set forth herein shall terminate as of the first
anniversary of the date hereof (other than with respect to any
claims asserted prior to such date, as to which they shall
survive solely for the purpose of resolving such claims until the
resolution thereof).
8.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto. This
Agreement and the rights and obligations herein may not be
assigned by Intel without the prior written consent of the
Company, except to a Qualified Subsidiary (as defined in the
Rights and Restrictions Agreement). This Agreement and the
rights and obligations herein may not be assigned by the Company
without the prior written consent of Intel.
8.4 Entire Agreement. This Agreement, the Rights
Agreement, the Rights and Restrictions Agreement and the Supply
Agreement, and the agreements, exhibits and schedules referred to
herein and therein constitute the entire understanding and
agreement between the parties with regard to the subjects hereof
and thereof; provided, however, that nothing in this Agreement
shall be deemed to terminate or supersede the provisions of any
confidentiality and nondisclosure agreements executed by the
parties hereto prior to the date hereof, which agreements shall
continue in full force and effect until terminated in accordance
with their respective terms.
8.5 Notices. Except as may be otherwise provided herein,
all notices, requests, waivers and other communications made
pursuant to this Agreement shall be in writing and shall be
delivered to the other party (a) in person; (b) by facsimile to
the address and number set forth below, when promptly followed up
by another of the delivery methods permitted by this Section 8.5;
(c) by U.S. mail, registered or certified, return receipt
requested, postage prepaid and addressed to the other party as
set forth below; or (d) by a national-recognized overnight
delivery service that keeps records of deliveries and attempted
deliveries (such as FedEx), postage
<PAGE>
Cusip No. 595112 13D Page 21 of 36
prepaid, addressed to the parties as set forth below with next-
business-day delivery guaranteed, provided that the sending party
receives a confirmation of delivery from the delivery service
provider.
To Intel: To the Company:
Intel Corporation Micron Technology, Inc.
2200 Mission College Blvd. 8000 S. Federal Way
Santa Clara, CA 95052 P.O. Box 6
Attn: Treasury Portfolio Manager Boise, Idaho 83707
Attn: Chief Financial Officer
Fax Number: (408) 765-1859 Fax Number: (208) 308-2900
with copies to: with copies to:
Intel Corporation Micron Technology, Inc.
2200 Mission College Blvd. 8000 South Federal Way
Santa Clara, CA 95052 P.O. Box 6
Attn: General Counsel Boise, Idaho 83716
Fax Number: (408) 765-6038 Attn: General Counsel
Fax Number: (208) 308-4509
A party may change or supplement the addresses given above,
or designate additional addresses, for purposes of this Section
8.5 by giving the other party written notice of the new address
in the manner set forth above.
8.6 Amendments. Any term of this Agreement may be amended
only with the prior written consent of the Company and Intel.
8.7 Delays or Omissions. No delay or omission to exercise
any right, power or remedy accruing to the Company or to Intel,
upon any breach or default of any party hereto under this
Agreement, shall impair any such right, power or remedy of the
Company or Intel, nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of any
similar breach or default thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part
of the Company or Intel of any breach or default under this
Agreement or any waiver on the part of the Company or Intel of
any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically
set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to the Company or
Intel shall be cumulative and not alternative.
8.8 Legal Fees. In the event of any action at law, suit in
equity or arbitration proceeding in relation to this Agreement or
any units or securities of the Company issued or to be issued,
the prevailing party shall be paid by the other party a
reasonable sum for attorney's fees and expenses for such
prevailing party.
8.9 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
<PAGE>
Cusip No. 595112 13D Page 22 of 36
8.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
8.11 Severability. Should any provision of this Agreement
be determined to be illegal or unenforceable, such determination
shall not affect the remaining provisions of this Agreement.
8.12 Dispute Resolution. The parties agree to negotiate in
good faith to resolve any dispute between them regarding this
Agreement. If the negotiations do not resolve the dispute to the
reasonable satisfaction of both parties, then each party shall
nominate one senior officer of the rank of Vice President or
higher as its representative. These representatives shall, within
thirty (30) days of a written request by either party to call
such a meeting, meet in person and alone (except for one
assistant for each party) and shall attempt in good faith to
resolve the dispute. If the disputes cannot be resolved by such
senior managers in such meeting, the parties agree that they
shall, if requested in writing by either party, meet within
thirty (30) days after such written notification for one day with
an impartial mediator and consider dispute resolution
alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days
after the one day mediation, either party may proceed as they see
fit. This procedure shall be a prerequisite before taking any
additional action hereunder.
8.13 No Third Parties Benefited. This Agreement is made and
entered into for the protection and benefit of the parties hereto
and their permitted successors and assigns, and, except as
expressly provided herein, no other Person shall be a direct or
indirect beneficiary of or have any direct or indirect cause of
action or claim in connection with this Agreement or any of the
documents executed in connection herewith.
8.14 Meaning of Include and Including. Whenever in this
Agreement the word "include" or "including" is used. it shall be
deemed to mean "include, without limitation" or "including.
without limitation." as the case may be. and the language
following "include" or "including" shall not be deemed to set
forth an exhaustive list.
8.15 Fees, Costs and Expenses. All fees, costs and expenses
(including attorney's' fees and expenses) incurred by either
party hereto prior to the Closing in connection with the
preparation, negotiation and execution of this Agreement, the
Rights Agreement, the Rights and Restrictions Agreement and the
Supply Agreement and the consummation of the transactions
contemplated hereby and thereby (including the costs associated
with any filings with, or compliance with any of the requirements
of, any governmental authorities), shall be the sole and
exclusive responsibility of such party.
8.16 Competition. Nothing set forth herein shall be deemed
to preclude, limit or restrict the Company's or Intel's and their
respective Affiliates' ability to compete with the other.
<PAGE>
Cusip No. 595112 13D Page 23 of 36
IN WITNESS WHEREOF, the parties have executed this
Securities Purchase Agreement as of the date first written above.
INTEL CORPORATION MICRON TECHNOLOGY, INC.
By: /s/ By: /s/
Name: Name:
Title: Title:
{Signature Page to Securities Purchase Agreement}
<PAGE>
Cusip No. 595112 13D Page 24 of 36
EXHIBIT A
(Rights Agreement)
<PAGE>
Cusip No. 595112 13D Page 25 of 36
EXHIBIT B
(Rights and Restrictions Agreement)
<PAGE>
Cusip No. 595112 13D Page 26 of 36
EXHIBIT C
(Supply Agreement)
<PAGE>
Cusip No. 595112 13D Page 27 of 36
EXHIBIT D
(Form of Certificate of Amendment)
<PAGE>
Cusip No. 595112 13D Page 28 of 36
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
MICRON TECHNOLOGY, INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
Micron Technology, Inc., a corporation organized and
existing under the laws of the State of Delaware (the
"Corporation" or the "Company"), hereby certifies that:
FIRST: At a meeting of the Board of Directors of the
Corporation (the "Board of Directors") resolutions were duly
adopted setting forth a proposed amendment of the Certificate of
Incorporation of the Corporation, declaring the advisability of
such amendment and calling a meeting of the stockholders of the
Corporation for consideration thereof. The Board of Directors on
________, ____, duly adopted the following resolution, which
resolution remains in full force and effect as of the date
hereof:
RESOLVED, that the Certificate of Incorporation of the
Corporation be amended by changing Article 4 thereof, to read in
full as follows:
4. (a) Shares Authorized. The total number of
shares of stock which the corporation shall have the authority to
issue is one billion thirty two million (1,032,000,000),
consisting of (i) one billion (1,000,000,000) shares of Common
Stock, par value $0.10 per share (the "Common Stock") and (ii)
thirty two million five hundred thousand (32,000,000) shares of
Class A Common Stock, par value $0.10 per share (the "Class A
Common Stock").
(b) Class A Common Stock.
Section 1. Liquidation Rights. In the event of any
voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation, the holders of each share of
Class A Common Stock shall be entitled to share ratably in any
distribution of any of the assets or funds of the Corporation to
the holders of the Common Stock (each share of the Class A Common
Stock being treated as the number of shares of Common Stock into
which it could then be converted for such purpose).
Section 2. Transfer of Class A Common Stock. No person or
entity holding shares of Class A Common Stock may transfer, sell,
assign, devise or bequeath any of such holder's interest in his
or its Class A Common Stock, and the Corporation and the transfer
agent for the Class A Common Stock shall not register the
transfer of such shares of Class A Common Stock, whether by sale,
assignment, gift, devise, bequest, appointment or otherwise,
except to a Permitted Transferee (as defined below) of such
holder. For purposes of this Section 2, the term "Permitted
Transferee" with respect to any holder of Class A Common Stock
shall mean (i) the Corporation, (ii) a Qualified Subsidiary
(provided that if at any time such Qualified Subsidiary ceases to
be a Qualified Subsidiary such Class A Common Stock will
automatically convert into Common Stock pursuant to Section 3.b)
or (iii) Intel Corporation. Notwithstanding the foregoing, the
provisions of this Section 2 do not prohibit transfers that
result in automatic conversion pursuant to Section 3.b, provided,
that the transfer agent shall not register the
<PAGE>
Cusip No. 595112 13D Page 29 of 36
transfer of such shares of Class A Common Stock or the Common
Stock into which they automatically convert unless concurrently
with such transfer, the certificate representing such shares of
Class A Common Stock to be so transferred shall be surrendered
and exchanged for a certificate representing the applicable
number of shares of Common Stock into which such shares of Class
A Common Stock are automatically converted by virtue of such
transfer.
Section 3. Conversion of Class A Common Stock.
a. Voluntary Conversion. At any time and from time
to time after the issuance of the Class A Common Stock, any
holder of Class A Common Stock may convert any or all of the
shares of Class A Common Stock held by such holder into shares of
Common Stock at the then effective conversion ratio. The
conversion ratio at which shares of Common Stock shall be
deliverable upon conversion (the "Conversion Ratio") shall
initially be one-for-one. Such initial Conversion Ratio shall be
subject to adjustment, in order to adjust the number of shares of
Common Stock into which the Class A Common Stock is convertible,
as hereinafter provided.
b. Automatic Conversion. Each share of Class A
Common Stock shall automatically be converted into shares of
Common Stock at the then effective Conversion Ratio upon the
transfer by any holder of Class A Common Stock to a person or
entity who is not a Permitted Transferee of such holder.
c. Mechanics of Conversion. No fractional shares of
Common Stock shall be issued upon conversion of the Class A
Common Stock. In lieu of any fractional shares to which the
holder would otherwise be entitled, the Corporation shall pay
cash equal to such fraction multiplied by the then fair market
value of one share of Common Stock, as determined in good faith
by the Board of Directors. Before any holder of Class A Common
Stock shall be entitled to receive certificates for the shares of
Common Stock issued upon conversion, such holder shall surrender
the certificate or certificates for such Class A Common Stock,
duly endorsed, at the principal office of the Corporation and
shall state therein his name or the name, or names, of his
nominees in which he wishes the certificate or certificates for
shares of Common Stock to be issued. No voluntary conversion
shall be permitted unless and until the holder shall submit to
the Corporation either (i) evidence of compliance with the filing
and waiting period requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended ("HSR Act") or
(ii) a certificate of an officer of the holder that the
conversion does not require any filing under the HSR Act. The
Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Class A Common Stock or
to such holder's nominee or nominees, a certificate or
certificates for the number of shares of Common Stock to which
such holder or such holder's nominee shall be entitled as
aforesaid, together with cash in lieu of any fraction of a share.
Subject to the foregoing, in the case of automatic conversion
under Section 3.b, such conversion shall be deemed to have been
made immediately prior to the close of business on the date of
such automatic conversion and upon surrender of the certificate
representing the Class A Common Stock to be converted in the case
of a voluntary conversion pursuant to Section 3.a above ( the
"Conversion Date"). The person or persons entitled to receive
the shares of Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such
shares of Common Stock on such date; provided that the
certificates representing the Class A Common Stock have been duly
endorsed for transfer and delivered to the Corporation or its
transfer agent.
d. Stock Splits, Mergers, etc. In case of any
subdivision (by stock split, stock dividend or otherwise) of the
Common Stock or any combination of the Class A Common Stock (by
reverse stock split or otherwise), the Conversion Ratio shall be
proportionately increased, and conversely in the case of
combination of the Common Stock (by reverse stock split or
otherwise) or any subdivision of the Class A
<PAGE>
Cusip No. 595112 13D Page 30 of 36
Common Stock (by stock split, stock dividend or otherwise), the
Conversion Ratio shall be proportionately decreased, with such
adjustment to the Conversion Ratio to be effective immediately
after the opening of business on the day following the day which
such subdivision or combination, as the case may be, becomes
effective. In case of any reorganization, reclassification or
change of shares of the Common Stock (other than a change in par
value or from par value to no par value as a result of a
subdivision or combination), or in the case of any consolidation
of the Corporation with one or more corporations or a merger of
the Corporation with another corporation (other than a
consolidation or merger in which the Corporation is the resulting
or surviving corporation and which does not result in any
reclassification or change of outstanding shares of Common
Stock), provision shall be made so that each holder of a share of
Class A Common Stock shall have the right at any time thereafter
as nearly as practicable, so long as the conversion right
hereunder with respect to such share would exist had such event
not occurred, to convert such share into the kind and amount of
shares of stock and other securities and properties (including
cash) receivable upon such reorganization, reclassification,
change, consolidation or merger by a holder of the number of
shares of Common Stock into which such shares of Class A Common
Stock might have been converted immediately prior to such
reorganization, reclassification, change, consolidation or
merger. In the event of such a reorganization, reclassification,
change, consolidation or merger, effective provision shall be
made in the certificate of incorporation of the resulting or
surviving corporation or otherwise for the protection of the
conversion rights of the shares of Class A Common Stock that
shall be applicable, as nearly as reasonably may be, to any such
other shares of stock and other securities and property
(including cash) deliverable upon conversion of shares of Common
Stock into which Class A Common Stock might have been converted
immediately prior to such event.
e. Special Conversion Adjustments. The number of
shares of Common Stock receivable upon conversion of a share of
Class A Common Stock shall be adjusted in the event that the
Corporation fails to achieve any one or more of the Qualified
Expenditures Milestone, the First Minimum Production Milestone or
the Second Minimum Production Milestone on the applicable
milestone dates in the manner described below. On or prior to
twenty five (25) days after an applicable milestone date, the
Corporation shall deliver to Intel Corporation a certificate of
an executive officer of the Corporation certifying whether the
applicable milestone has been achieved, and if such milestone has
not been achieved, such additional data (including, but not
limited to the amount of Qualified Expenditures made and actual
RDRAM production during the applicable period) required to
calculate the appropriate conversion adjustment. Upon receipt of
such certificate with the required information, Intel Corporation
shall have thirty (30) days in which to notify the Corporation in
writing of its irrevocable election to exercise a Special
Conversion Adjustment. If Intel Corporation has not provided an
irrevocable written notice electing to exercise a Special
Conversion Adjustment within the such period, then no there shall
be no Special Conversion Adjustment with respect to the
applicable milestone. Except as specifically provided herein,
the failure to exercise a Special Conversion Adjustment with
respect to one milestone shall not impair Intel Corporation's
ability to exercise a Special Conversion Adjustment with respect
to the failure to achieve a different milestone.
f. Postponement of Milestone Dates; Modification of
Milestones. (i) In the event that the Corporation's ability
to achieve the Qualified Expenditure Milestone by the Qualified
Expenditures Milestone Date is significantly impaired by events
or circumstances outside of its control, such as Force Majeure or
limited availability of required equipment or materials, the
milestone date will be appropriately postponed.
(ii) In the event that any of the events specified
in Section 7(f)(ii) of the Stock Rights Agreement occur, the
First Minimum Production Milestone or the Second Minimum
Production Milestone shall be either postponed or waived,
respectively, as appropriate. In addition, if on the Maximum FGI
Date, the
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Cusip No. 595112 13D Page 31 of 36
RDRAM device finished goods inventory of the Corporation and its
subsidiaries exceeds the Maximum FGI, the Second Minimum
Production Milestone will be modified, as appropriate.
(iii) In the event of the occurrence of any of the
foregoing events or circumstances, as a result of which either a
milestone date or milestone is to be postponed, waived or
modified, no Special Conversion Adjustment shall occur as a
result of the failure to achieve the applicable milestone by the
applicable milestone date, unless and until the Corporation and
Intel Corporation shall have agreed upon the appropriate
postponement, waiver or modification. Notwithstanding the above,
upon such agreement, the Special Conversion Adjustment shall be
applied as of the agreed upon date, notwithstanding that such
agreement is reached after such date. If no agreement can be
reached, the dispute will be settled in accordance with Section
8.12 of the Securities Purchase Agreement.
g. Failure to Achieve Qualified Expenditures
Milestone. Subject to the provisions hereof:
(i) If the Corporation fails to make at least the
Minimum Qualified Expenditures on or prior to the Qualified
Expenditures Milestone Date, the Conversion Ratio shall be
adjusted by multiplying the current Conversion Ratio by a
fraction, the numerator of which shall be the Initial Purchase
Price and the denominator of which shall be the greater of (i)
the average closing sales price on the New York Stock Exchange
for the Common Stock during the 20 trading day period ending two
trading days prior to the Qualified Expenditures Milestone Date,
or (ii) 50% of the Initial Purchase Price.
(ii) If the Corporation makes Qualified
Expenditures of more than the Minimum Qualified Expenditures but
less than the Required Qualified Expenditures on or prior to the
Qualified Expenditures Milestone Date, the Conversion Ratio shall
be increased. The amount of the increase in the Conversion Ratio
(expressed as a decimal) shall be determined by first (w)
dividing the Initial Purchase Price by the greater of (i) the
average closing sales price on the New York Stock Exchange for
the Common Stock during the 20 trading day period ending two
trading days prior to the applicable milestone date, or (ii) 50%
of the Initial Purchase Price, then (x) subtracting 1.0 from the
result, then (y) multiplying this result by a fraction, the
numerator of which shall be (A) the Required Qualified
Expenditures minus (B) the amount of Qualified Expenditures and
the denominator of which shall be the Required Qualified
Expenditures, and (z) dividing the result by 2. The new
Conversion Ratio shall then be the result of the above
calculation plus the prior Conversion Ratio.
h. Failure to Achieve First Minimum Production
Milestone. Subject to the provisions hereof, if the Corporation
fails to achieve the First Minimum Production Milestone, the
increase in the Conversion Ratio (expressed as a decimal) shall
be determined by first (w) dividing the Initial Purchase Price by
the greater of (i) the average closing sales price on the New
York Stock Exchange for the Common Stock during the 20 trading
day period ending two trading days prior to the applicable
milestone date, or (ii) 50% of the Initial Purchase Price, then
(x) subtracting 1.0 from the result, then (y) multiplying this
result by a fraction, the numerator of which shall be the First
Minimum Production Milestone for the quarter minus the actual
RDRAM production achieved during the quarter and the denominator
of which shall be the First Minimum Production Milestone for the
quarter, and (z) dividing the result by 2. The new Conversion
Ratio shall then be the result of the above calculation plus the
prior Conversion Ratio.
i. Failure to Achieve Second Minimum Production
Milestone. Subject to the provisions hereof, if the Corporation
fails to achieve the Second Minimum Production Milestone the
increase in the Conversion Ratio (expressed as a decimal) shall
be determined by first (w) dividing the Initial Purchase Price by
greater of (A) the average closing sales price on the New York
Stock Exchange for the Common
<PAGE>
Cusip No. 595112 13D Page 32 of 36
Stock during the 20 trading day period ending two trading days
prior to the applicable milestone date, or (ii) 50% of the
Initial Purchase Price, then (x) subtracting 1.0 from the result,
then (y) multiplying this result by a fraction, the numerator of
which shall be the Second Minimum Required Production for the
quarter minus the actual RDRAM production achieved during the
quarter and the denominator of which shall be the Second Minimum
Required Production for the quarter and (z) dividing the result
by 2. The new Conversion Ratio shall then be the result of the
above calculation plus the prior Conversion Ratio.
j. Multiple Special Conversion Adjustments; Prior
Adjustments. If more than one Special Conversion Adjustment
occurs hereunder (or comparable adjustments under the Stock
Rights Agreement ("Rights Special Conversion Adjustments"),
subsequent Special Conversion Adjustments shall be calculated as
provided herein, but only the number of additional shares in
excess of the number issuable using the Initial Conversion Ratio
(as defined in this Section 3.j) (appropriately adjusted to
reflect the effect of any stock splits, reclassifications, stock
dividends, recapitalizations, combinations or other similar
events affecting the Common Stock occurring after the creation of
the Class A Common Stock), shall be issuable in respect of such
subsequent Special Conversion Adjustment upon conversion of the
Class A Common Stock. For purposes of this Section 3.j, the
"Initial Conversion Ratio" will be one-to-one (appropriately
adjusted to reflect the effect of any stock splits,
reclassifications, stock dividends, recapitalizations,
combinations or other similar events affecting the Common Stock
occurring after the creation of the Class A Common Stock),
provided, however, that in the event of the occurrence of a
Rights Special Conversion Adjustment that resulted in an
adjustment to the Exchange Ratio in accordance with the
provisions of the Stock Rights Agreement prior to the creation of
the Class A Common Stock, the Initial Conversion Ratio shall be
equal to a fraction, the numerator of which shall be one
(appropriately adjusted to reflect the effect of any stock
splits, reclassifications, stock dividends, recapitalizations,
combinations or other similar events affecting the Common Stock
occurring after creation of the Class A Common Stock), and the
denominator of which shall be the exchange ratio in effect under
the Stock Rights Agreement immediately prior to the creation of
the Class A Common Stock. Notwithstanding anything else to the
contrary set forth herein, the Conversion Ratio shall not be
adjusted for any events, circumstances or milestones for which
adjustments have been made (or may be made as a result of
completion of an audit or resolution of any dispute as to the
appropriate amount of an adjustment required thereunder) pursuant
to the Stock Rights Agreement.
k. Cash Option. In lieu of all or a portion of a
Special Conversion Adjustment, the Corporation may elect to make
a cash payment in respect of all or a portion of the dollar
amount of the Special Conversion Adjustment (such election to be
made within five (5) business days of Intel Corporation's Special
Conversion Adjustment election, and such amount shall be paid
within five (5) business days of the Corporation's election).
The dollar amount in respect of any Special Conversion Adjustment
to be paid in cash shall be calculated by multiplying the
additional shares issuable to Intel Corporation upon conversion
of the Class A Common Stock following the Special Conversion
Adjustment by the average closing sales price on the New York
Stock Exchange for the Common Stock during the 20 trading day
period ending two trading days prior to the applicable milestone
date.
l. Limitations on Special Conversion Adjustments.
Anything in Sections 3.h and 3.j to the contrary notwithstanding,
no Special Conversion Adjustment will be made for failure to
achieve the First Minimum Production Milestone or Second Minimum
Production Milestone if a Special Conversion Adjustment election
pursuant to clause (i) of Section 3.g above is made by Intel
Corporation. In addition, anything in Sections 3.e through 3.j
notwithstanding, Special Conversion Adjustments will be limited,
and not given effect, to the extent required to ensure (1) that
the value of additional shares of Common Stock and other
securities or property and any related payments (including
payments in lieu of adjustments pursuant to Section 3.k hereof)
issued or issuable or payable as a result of such adjustments,
together with any shares of Common Stock and other securities or
property and any related payments
<PAGE>
Cusip No. 595112 13D Page 33 of 36
issued or issuable or payable as a result of the Special
Conversion Adjustments with respect to the Rights, does not
exceed the Maximum Adjustment Amount (with the value of such
additional shares, securities and property measured as of the
milestone date with respect to the applicable Special Conversion
Adjustments resulting in such additional shares, securities or
property and any related payments, which, in the case of the
Common Stock, shall be based on the average closing sales price
on the New York Stock Exchange for the Common Stock during the 20
trading day period ending two trading days prior to the milestone
date corresponding to such Special Conversion Adjustment); and
(2) that the aggregate number of shares of Common Stock issued or
issuable upon exercise of Rights or upon conversion of Class A
Common Stock does not exceed the lesser of (i) the Maximum
Percentage and (ii) the Maximum Shares.
m. Existing Stock Certificates. Irrespective of any
adjustments in the number or kind of shares issuable upon the
conversion of the Class A Common Stock, certificates representing
Class A Common Stock theretofore or thereafter issued may
continue to express the same number and kind of shares as are
stated in the certificates initially issuable pursuant hereto.
n. Payment of Taxes. The Corporation will pay all
documentary stamp taxes and other governmental charges (excluding
all foreign, federal, state or local income, franchise, property,
net worth, capital, estate, inheritance, gift or similar taxes)
in connection with the issuance or delivery of the Class A Common
Stock, as well as all such taxes attributable to the initial
issuance or delivery of Common Stock upon the conversion of Class
A Common Stock. The Corporation shall not, however, be required
to pay any tax that may be payable in respect of any subsequent
transfer of the Class A Common Stock or any transfer involved in
the issuance and delivery of Common Stock in a name other than
that in which the Class A Common Stock or Common Stock to which
such issuance relates were registered, and, if any such tax would
otherwise be payable by the Corporation, no such issuance or
delivery shall be made unless and until the person requesting
such issuance has paid to the Corporation the amount of any such
tax, or it is established to the reasonable satisfaction of the
Corporation that any such tax has been paid.
o. Common Stock Reserved. The Corporation shall
reserve and keep available out of its authorized but not
outstanding Common Stock such number of shares of Common Stock as
shall, from time to time be, sufficient for conversion of the
Class A Common Stock.
Section 4. No Redemption. The Class A Common Stock shall
not be redeemable.
Section 5. Voting Rights; Non-Voting Security. The holders
of shares of Class A Common Stock shall have no voting rights
except as provided in the Certificate of Incorporation or by
applicable law.
Section 6. Dividend Rights. In the event any dividend or
other distribution payable in cash or other property is declared
on the Common Stock (excluding any dividend or other distribution
for which adjustment to the Conversion Ratio is provided by
Section 3.d hereof), each holder of shares of Class A Common
Stock on the record date for such dividend or distribution shall
be entitled to receive on the date of payment or distribution of
such dividend or other distribution the same cash or other
property which such holder would have received if on such record
date such holder was the holder of record of the number
(including for purposes of this Section 6 any fraction) of shares
of Common Stock into which the shares of Class A Common Stock
then held by such holder are then convertible.
Section 7. Certain Definitions; Interpretation.
<PAGE>
Cusip No. 595112 13D Page 34 of 36
For purposes hereof the following terms shall have the
meanings set forth below.
First Minimum Production Milestone. The First Minimum
Production Milestone shall have the meaning ascribed to such term
in the Securities Purchase Agreement.
First Minimum Required Production. First Minimum Required
Production shall have the meaning ascribed to such term in the
Securities Purchase Agreement.
First Production Milestone Date. The First Production
Milestone Date shall have the meaning ascribed to such term in
the Securities Purchase Agreement.
Force Majeure. Force Majeure shall mean an act of God,
fire, flood, accident, riot war, government intervention,
embargoes, strikes, labor difficulties, equipment failure, late
delivery of supplies, supplier shortages or other difficulties
which are beyond the reasonable control and without the fault or
negligence of a party whose performance has been affected.
Initial Purchase Price. Initial Purchase Price means
$31.625, appropriately adjusted to reflect the effect of any
stock splits, reclassifications, stock dividends,
recapitalizations, combinations or other similar events affecting
the Common Stock occurring after October 19, 1998.
Maximum Adjustment Amount. Maximum Adjustment Amount shall
have the meaning ascribed to such term in the Securities Purchase
Agreement.
Maximum FGI. Maximum FGI shall have the meaning ascribed to
such term in the Securities Purchase Agreement.
Maximum FGI Date. Maximum FGI Date shall have the meaning
ascribed to such term in the Securities Purchase Agreement.
Maximum Percentage. Maximum Percentage shall have the
meaning ascribed to such term in the Securities Purchase
Agreement.
Maximum Shares. Maximum Shares shall have the meaning
ascribed to such term in the Securities Purchase Agreement.
Minimum Qualified Expenditures. Minimum Qualified
Expenditures shall have the meaning ascribed to such term in the
Securities Purchase Agreement.
Qualified Expenditures. Qualified Expenditures shall have
the meaning ascribed to such term in the Securities Purchase
Agreement.
Qualified Expenditures Milestone. The Qualified Expenditures
Milestone means the expenditure of at least the Required
Qualified Expenditures on or before the Qualified Expenditures
Milestone Date.
Qualified Expenditures Milestone Date. The Qualified
Expenditures Milestone Date shall have the meaning ascribed to
such term in the Securities Purchase Agreement.
Qualified Subsidiary. Qualified Subsidiary shall have the
meaning ascribed to such term in the Rights and Restrictions
Agreement.
<PAGE>
Cusip No. 595112 13D Page 35 of 36
Rambus. Rambus means Rambus, Inc. , a Delaware corporation,
and any successor to all or substantially all of Rambus Inc.'s
business (by acquisition or otherwise).
RDRAM. RDRAM shall have the meaning ascribed to such term
in the Supply Agreement.
Required Qualified Expenditures. Required Qualified
Expenditures shall have the meaning ascribed to such term in the
Securities Purchase Agreement.
Rights. Rights shall have the meaning ascribed to such term
in the Stock Rights Agreement.
Rights and Restrictions Agreement. Rights and Restrictions
Agreement shall mean that certain Securities Rights and
Restrictions Agreement, dated as of October 19, 1998, as amended
from time to time, by and between the Corporation and Intel
Corporation.
Second Minimum Production Milestone. The Second Minimum
Production Milestone shall have the meaning ascribed to such term
in the Securities Purchase Agreement.
Second Minimum Required Production. Second Minimum Required
Production shall have the meaning ascribed to such term in the
Securities Purchase Agreement.
Second Production Milestone Date. The Second Production
Milestone Date shall have the meaning ascribed to such term in
the Securities Purchase Agreement.
Securities Purchase Agreement. Securities Purchase
Agreement shall mean that certain Securities Purchase Agreement,
dated October 15, 1998, as amended from time to time, by and
between the Corporation and Intel Corporation.
Special Conversion Adjustment. A Special Conversion
Adjustment shall mean an adjustment to the number of shares of
Common Stock receivable upon conversion of Class A Common Stock,
as provided in Section 3 hereof.
Stock Rights Agreement. Stock Rights Agreement shall mean
that certain Stock Rights Agreement, dated as of October 19,
1998, as amended from time to time, by and between the
Corporation and Intel Corporation.
Supply Agreement. Supply Agreement shall mean that certain
Supply Agreement, dated as of October 19, 1998, as amended from
time to time, by and between the Corporation and Intel
Corporation.
Volume Production. Volume Production shall have the meaning
ascribed to such term in the Securities Purchase Agreement.
<PAGE>
Cusip No. 595112 13D Page 36 of 36
SECOND: Pursuant to a resolution of the Board of Directors,
a meeting of the stockholders of the Corporation was duly called
and held, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: The amendment has been duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the corporation has caused this
Certificate of Amendment to be executed by a duly authorized
officer on the ______ day of ______________, 1999.
MICRON TECHNOLOGY, INC.
By: _________________________
