<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 10
SCHEDULE 13D
Under the Securities Exchange Act of 1934
MICRON TECHNOLOGY, INC.
(Name of Issuer)
Common Stock, $.10 par value
(Title of Class of Securities)
595112-4
(CUSIP Number)
Jacques K. Meguire, Esq.
Kenda K. Tomes, Esq.
SONNENSCHEIN NATH & ROSENTHAL
8000 Sears Tower
Chicago, Illinois 60606
Telephone: (312) 876-8000
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
July 29, 1996
(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(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with this
statement [ ].
The information required on 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.
(Continued on following page(s))<PAGE>
<PAGE>
This Amendment No. 10 to Schedule 13D (the "Schedule 13D")
is being filed on behalf of J.R. Simplot Company (the "Company")
to further amend the Schedule 13D as originally filed on February
20, 1992, as subsequently amended and restated by Amendment No. 4
to Schedule 13D filed on November 29, 1995 by the Company,
Simplot Canada Limited, John R. Simplot, J.R. Simplot Self-
Declaration of Revocable Trust dated December 21, 1989, JRS
Properties, L.P. (collectively, the "Reporting Persons") and as
subsequently amended from time to time. Capitalized terms used
herein and not otherwise defined have the same meanings as
provided in the Amendment No. 4 to Schedule 13D. This Amendment
No. 10 to Schedule 13D does not amend any information with
respect to any of the Reporting Persons other than the Company.
Item 7. Material to be Filed as Exhibits, is hereby amended by
adding thereto the following exhibits (all of which had
been described in Amendment No. 9 to Schedule 13D filed on July
31, 1996):
Exhibit Number Exhibit
J. Agreement between J.R. Simplot Company and
Canadian Imperial Bank of Commerce dated July 29,
1996 (Forward).
K. Loan Agreement between J.R. Simplot Company and
Canadian Imperial Bank of Commerce dated July 29,
1996.
L. Pledge given by J.R. Simplot Company in favor
of Canadian Imperial Bank of Commerce dated
July 29, 1996.
M. Agreement between J.R Simplot Company and Canadian
Imperial Bank of Commerce dated July 29, 1996.
N. Irrevocable Proxy executed by J.R. Simplot Company
in favor of the Chairman of the Board and the
Chief Financial Officer of Micron Technology, Inc.
dated July 29, 1996.<PAGE>
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Dated: August 2, 1996
J. R. Simplot Company
By: /s/ RONALD N. GRAVES
Title: Secretary
<PAGE>
Exhibit J
_________________________________________________________________
Date: July 29, 1996
To: J.R. Simplot Company From: Canadian Imperial Bank
of Commerce
Attention: Mr. Ron Graves Contact: Gina S. Ghent
Phone Number: (208) 389-7312 Phone Number: (212) 856-6538
Facsimile Number: (208) 389-7464 Facsimile Number: (212)
856-6098
Re: CIBC Reference # NY EQT 0142
_________________________________________________________________
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between Canadian
Imperial Bank of Commerce ("CIBC") and J.R. Simplot Company
("Counterparty") on the Trade Date specified below (the
"Transaction"). References herein to a "Transaction" shall be
deemed reference to a Swap Transaction for purposes of the 1991
ISDA Definitions (as published by the International Swap Dealers
Association, Inc. ("ISDA")). This letter agreement constitutes a
"Confirmation" as referred to in the Master Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA
Definitions are incorporated into this Confirmation. In the event
of any inconsistency between those definitions and provisions and
this Confirmation, this Confirmation will govern.
1. This Confirmation supplements, and forms part of the Master
Agreement and the Schedule attached thereto, dated as of
July 29, 1996, as amended and supplemented from time to time
(the "Agreement"), between CIBC and Counterparty. All
provisions contained in the Agreement shall govern this
Confirmation except as expressly modified below. In the
event of any inconsistency between the Agreement and this
Confirmation this Confirmation will govern.
2. The terms of the Transaction to which this Confirmation
relates are as follows:
AGENT: CIBC, New York Agency, has acted as
agent in confirming this
Transaction.
GENERAL TERMS:
Selected Securities: 5,000,000 shares of common stock,
$.10 par value (U.S.$), of Micron
Technology, Inc. (New York Stock
Exchange (("Exchange")) ticker
symbol "MU") on the Trade Date,
together with any subsequent
distributions in the form of Hedge
Securities, all as adjusted for
stock splits, reverse splits, stock
dividends and any other
distributions in the form of
Selected Securities.
Settlement Currency: United States Dollars ("U.S.$")
Trade Date: July 29, 1996
Effective Date: July 29, 1996
Termination Date: July 29, 2003, subject to
adjustment in accordance with the
Modified Following Business Day
Convention
Valuation Amount: U.S.$105,314,250.00
CIBC Payments:
CIBC Payment Date: Termination Date.
CIBC Forward Payment CIBC will pay to Counterparty
Amount: on the CIBC Payment Date an amount
equal to the Forward Amount (as
defined below).
Counterparty Physical Delivery:
Counterparty Physical
Delivery Date: Termination Date.
Counterparty
Physical Delivery: Counterparty will deliver to CIBC
on the Counterparty Physical
Delivery Date the Selected
Securities.
Additional Payment by If, during the term of this
Counterparty: Transaction, the owner of the
Selected Securities becomes
entitled to receive Extraordinary
Consideration (as defined below)
then Counterparty shall pay and/or
deliver to CIBC on the
Extraordinary Consideration Payment
Date (as defined below) the
Extraordinary Consideration
pursuant to the Set-Off provision.
Calculation Agent: CIBC
DEFINITIONS:
For purposes of this Transaction, the following terms shall
have the indicated meanings:
"Actual Dividend" means an amount equal to the total cash
dividend to which the holders of record of the Selected
Securities as of a date during the term of this Transaction
are entitled, net of any withholding tax, stamp tax, or any
other tax, duties, fees or commissions payable in respect of
such dividend payment, and does not include any payment
arising out of Extraordinary Consideration.
"Collateral" means the Selected Securities, together with
any collateral substituted therefor.
"Extraordinary Consideration" means (i) any Actual Dividend
greater than U.S.$2.5 million or (ii) any non-cash
distribution or consideration in respect of Selected
Securities (other than Hedge Securities or other than
securities received in connection with: 1) stock splits, 2)
reverse splits, 3) stock dividends and 4) other
distributions in the form of Selected Securities) which may
be the result of, but is not limited to: (a) conversion or
reclassification of Selected Securities by issuance or
exchange of other securities or any sale of the securities
or assets or a portion thereof of the issuer of any Selected
Securities (b) any consolidation or merger of the issuer of
any of the Selected Securities, (c) any statutory exchange
of Selected Securities with another corporation, (d) any
liquidation, dissolution or winding up of the issuer of any
of the Selected Securities or (e) any tender or exchange
offer for Selected Securities. In the event that there is a
distribution of Hedge Securities, the Transaction shall be
adjusted such that the Hedge Securities (to which a holder
of record of the Selected Securities as of a date during the
term of this transaction is entitled) will be added to the
composition of the Selected Securities.
"Extraordinary Consideration Payment Date" means the date
that the issuer of any of the Selected Securities
distributes the Extraordinary Consideration to holders of
record of such Selected Securities.
"Forward Amount" means Valuation Amount x 1.4692.
"Hedge Securities" means any non-cash distribution or
consideration in respect of Selected Securities in the form
of common stock (other than securities received in
connection with stock splits, reverse splits, stock
dividends and other distributions in the form of securities
of which Selected Securities are comprised) as to which (1)
the Short Interest to Float Ratio (as described in
"Additional Termination Events:", section "4") is less than
15% at the time of such distribution and (2) a number of
shares equal to the number of shares of such securities that
was received by the Counterparty and attributable to the
Selected Securities in such distribution can reasonably be
expected to be available at a commercially reasonable rate
in the securities lending market, until the Termination
Date.
"Without Recourse" means that (i) the only recourse of CIBC
against the Counterparty in respect of any of the
obligations of Counterparty under this Transaction shall be
strictly limited to the exercise of CIBC's right of set-off
hereunder, and the realization of CIBC's security interest
in the Collateral; (ii) the Counterparty shall not be liable
to any person with respect to any shortfall which may be
experienced upon any such realization and shall have no
personal liability under any of the obligations of
Counterparty under this Transaction following such
realization; and (iii) CIBC shall not be entitled to bring
any action or to enforce any rights against the Counterparty
with respect to payment or performance of any of the
obligations of Counterparty under this Transaction other
than to realize CIBC's security interest in the Collateral
pursuant to the Pledge.
3. ACCOUNT DETAILS:
Payments to CIBC: Chemical Bank, New York
For: Canadian Imperial Bank of
Commerce
Account No. 544 708 234
Payments to Counterparty: First Security Bank of Idaho, N.A.
Boise, Id
ABA No.: 124100080
Account No.: 003-00049-64
4. OTHER PROVISIONS:
Default Settlement
Provision: If (i) an Event of Default as
defined in Section 5(a) of the
Agreement occurs and (ii) the
Selected Securities are pledged to
CIBC, then Sections 2(c) and 6(e)
of the Agreement and the definition
of Settlement Amount in Section 14
of the Agreement shall not be
applicable hereto and Settlement
Amount shall be equal to:
{Forward Amount} - Factor - [Termination
(1.0565)n Value of the
Selected Securities]
where:
n = number of years (including
fractions) between the Early
Termination Date and the
Termination Date, and where Factor
= zero, if n is less than 6.43, and
equals 1% * Valuation Amount *
(n-6.43), if n is equal to or
greater than 6.43.
The Termination Value of the
securities included among the
Selected Securities is determined
by valuing each of the Selected
Securities at its closing price as
quoted by the primary exchange for
such security on the Early
Termination Date and aggregating
such prices over the total number
of such securities included in the
Selected Securities.
If Settlement Amount is greater
than zero, CIBC shall pay such
amount to Counterparty. If
Settlement Amount is less than
zero, Counterparty shall pay the
absolute value of the Settlement
Amount to CIBC.
Additional Termination In addition to the Termination
Events: Events in Section 5(b) of the
Agreement, the following events
shall constitute Additional
Termination Events (upon the
occurrence of which, this
Transaction shall become an
Affected Transaction and the date
of such occurrence shall be deemed
the Early Termination Date):
1) None of the Selected Securities
are listed on any United States
national securities exchange or
United States national securities
system subject to last sale
reporting.
2) The issuer (or, as the case may
be, issuers) of the Selected
Securities has disclosed impending
events which, in the opinion of
nationally-recognized United States
counsel of CIBC acting reasonably,
a copy of which opinion shall have
been delivered to Counterparty,
should result in the Selected
Securities (or the securities
distributed as a result of such
events) ceasing to be listed on any
United States national securities
exchange or United States national
securities system subject to last
sale reporting; provided that the
Additional Termination Event will
not arise more than thirty (30)
days before the expected
termination of the listing.
3) All of the Selected Securities
are permanently suspended from
trading (within the meaning of the
Securities Exchange Act of 1934 (of
the United States of America) and
the rules and regulations
thereunder) on each such securities
exchange and securities system on
which the Selected Securities are
then listed.
4) (a) The Short Interest to Float
Ratio (i) for the securities which
comprise the Selected Securities on
the Trade Date, if such securities
still comprise some of the Selected
Securities, is greater than 30% and
(ii) for each of the Selected
Securities that result from a
distribution of Hedge Securities is
greater than 20% or (b) a number of
shares at any particular time equal
to the number of shares of all such
Selected Securities at such
particular time are unavailable in
the securities lending market at a
commercially reasonable rate until
the Termination Date, where:
"Short Interest" means that number
which is reported by the primary
exchange for the relevant Selected
Securities as the short interest
for such securities; and "Float"
means the aggregate market value of
the voting stock held by
nonaffiliates of the issuer of the
relevant Selected Securities as
reported in the most recent Form
10-K filed by the issuer (with the
Securities and Exchange Commission
of the United States of America) of
the relevant Selected Securities
divided by the closing price of
such Selected Securities as
reported on the primary exchange on
the date on which such market value
was determined.
However, if the relevant Selected
Securities are the result of a
distribution of Hedge Securities
due to the issuer of the Hedge
Securities acquiring the issuer of
any of the Selected Securities and
there has not been a release of
short interest for the combined
entity by the primary exchange, the
Short Interest shall be the
following: the most recent short
interest as reported by the primary
exchange for those Selected
Securities issued by the acquired
company, adjusted for the
acquisition share exchange ratio,
plus the most recent short interest
as reported by the primary exchange
for those Selected Securities
issued by the acquiring company,
prior to the acquisition
announcement date. For such
relevant Selected Securities, prior
to the first release of Form 10-K
for the combined entity, the Float
shall be the following: the most
recent float, as defined above, of
those Selected Securities issued by
the acquired company adjusted for
the acquisition share exchange
ratio plus the most recent float,
as defined above, of those Selected
Securities issued by the acquiring
company prior to the acquisition
announcement date.
Counterparty Termination
Event: If after the Effective Date of this
Transaction, there is a change in
law, precedent, or precedent in
another legal jurisdiction in the
United States of America that
affects the generally accepted
interpretation of such law, which
in the reasonable judgment of
Counterparty will have a material
adverse effect on the Transaction
with regard to the Counterparty,
then Counterparty may terminate
this Transaction upon ten (10)
days' notice to CIBC and the
delivery of an officer's
certificate executed by the Chief
Financial Officer of Counterparty
attesting to this judgment.
Termination Settlement
Provision: If an Early Termination Date occurs
as a result of the occurrence of
(i) an Event of Default under
Section 5(a) and the Selected
Securities are not pledged to CIBC
under the Pledge, (ii) an
Additional Termination Event or a
Termination Event, or (iii)
Counterparty Termination Event,
then the following shall occur:
A. Such date shall be deemed to be
the CIBC Payment Date and
Counterparty Physical Delivery
Date; and
B. Section 2(e) and Section 6(e) of
the Agreement and the definition of
Settlement Amount in Section 14 of
the Agreement shall not be
applicable hereto, and instead,
CIBC shall pay to Counterparty an
amount equal to:
{Forward amount} - Factor
(1.0565)n
where:
n = number of years (including
fractions) between the Early
Termination Date and the
Termination Date; and where Factor
= zero, if n is less than 6.43, and
equals 1% * Valuation Amount *
(n-6.43), if n is equal to or
greater than 6.43; and
C. Counterparty shall deliver to
CIBC the Selected Securities.
Partial Termination: If any, but not all, of the
securities which comprise Selected
Securities are the subject of an
event described in paragraphs 1, 2,
3 or 4 of Additional Termination
Events ("Termination Securities"),
then (i) the Selected Securities
will no longer include such
Termination Securities and (ii) the
value of the Termination Securities
will be deemed to be zero and
Counterparty shall transfer
ownership of, and deliver, such
securities to CIBC.
Set-Off: Counterparty and CIBC agree that
CIBC may only set-off amounts owing
by CIBC to the Counterparty under
any transaction which is secured by
the Pledge against amounts owing by
the Counterparty to CIBC under any
other transaction which is secured
by the Pledge.
Counterparty and CIBC also agree
that Counterparty may only set-off
amounts owing by Counterparty to
CIBC under any transaction which is
secured by the Pledge against
amounts owing by CIBC to
Counterparty under any other
transaction which is secured by the
Pledge.
Without Recourse: The obligations of the Counterparty
under this Transaction and the
Pledge are Without Recourse.
Counterparty
Representation: To the best knowledge of
Counterparty, there is no fact
which has not been disclosed to
CIBC which, so far as Counterparty
can now reasonably foresee, will
materially adversely affect
Counterparty's ability to perform
its obligations under the Pledge or
this Transaction. To the best
knowledge of Counterparty, but
without any review, investigation
or participation by Counterparty in
preparation of Micron Technology,
Inc.'s filings with the United
States Securities and Exchange
Commission pursuant to Section
13(a) of the United States
Securities Exchange Act of 1934,
such filings do not contain any
untrue statements of material fact
or omit to state any material fact
necessary to make statements
therein, in light of the
circumstances under which they were
made, or in light of current
circumstances, not misleading.
CIBC Representation: Until the end of a three-month
period commencing on the initial
date (as advised to CIBC by
Counterparty) of Counterparty's
having ceased to be deemed to be an
affiliate ("Affiliate") (as defined
in Rule 144 of the United States
Securities and Exchange Commission
("SEC")) of any issuer of Selected
Securities (or of any other
securities issued on account of
Selected Securities), CIBC (i)
shall acquire Selected Securities
(or such other securities) in
connection with this Transaction
only for investment for its own
account and not with a view to the
resale, transfer, pledge or other
disposition thereof other than in
compliance with all applicable
securities laws; (ii) shall sell,
transfer, pledge, or otherwise
dispose of Selected Securities (or
such other securities) only in
compliance with all applicable
securities laws; and (iii) shall
sell common stock of any issuer of
Selected Securities (or such other
securities) to hedge its exposure
under this Transaction only in
compliance with the requirements of
all applicable securities laws. Any
such sales that have occurred prior
to the date hereof have been made
in compliance with SEC Rule 144(f)
and (g). Solely for purposes of
this paragraph, Counterparty is
deemed an Affiliate of any issuer
of Selected Securities (or of any
securities issued on account of
Selected Securities) unless
Counterparty has notified CIBC to
the contrary in writing.
Counterparty shall promptly so
notify CIBC if Counterparty ceases
to be, or has not become, an
Affiliate or deemed Affiliate,
including the initial date of such
cessation.
Pledge: As continuing collateral security
for the payment and performance of
the obligations of Counterparty
under this Transaction,
Counterparty pledges and grants a
first priority security interest in
the Collateral to CIBC.
Credit Support
Documentation: Pledge between Counterparty and
CIBC dated July 29, 1996.
Transfer: Neither the Transaction nor any
interest or obligation in or under
the Transaction may be transferred
(whether by way of security or
otherwise) by either party without
the prior written consent of the
other party which consent shall not
be unreasonably withheld. Any
purported transfer that is not in
compliance with this provision will
be void.
Assignment of
Settlement Obligation: Notwithstanding any other provision
in this Confirmation to the
contrary requiring CIBC to
purchase, sell, deliver or receive
any securities to or from the
Counterparty, CIBC may designate
any of its affiliates to so
purchase, sell, deliver or receive
such securities and otherwise to
perform CIBC's obligations in
respect of this Transaction and any
such designee may assume such
obligations. The Counterparty need
not be notified of such designation
and such designation shall not
relieve CIBC of any of its
obligations hereunder. If CIBC's
designee shall have performed the
obligations of CIBC hereunder, then
CIBC shall be discharged of its
obligations to the Counterparty to
the extent of such performance.
5. OFFICES
(a) The Office of CIBC for the Transaction is 161 Bay Street, 5th
Fl. Toronto, Canada M5J 2S8.
(b) The Office of Counterparty for the Transaction is J.R.
Simplot Company
999 Main Street, Suite 1300
Boise, Idaho 83702
Attn.: Treasurer
6. BROKER/ARRANGER: None
7. This Confirmation may be executed in one or more
counterparts, either in original or facsimile form, each of
which shall constitute an original and all of which together
shall constitute one and the same agreement. When executed
by the parties through facsimile transmission, this
Confirmation shall constitute the original agreement between
the parties and the parties hereby adopt the signatures
printed by the receiving facsimile machine as the original
signatures of the parties.
8. The parties hereto agree that CIBC has not acted as
Counterparty's advisor with respect to the desirability or
appropriateness of entering into the Transaction confirmed
hereby or with respect to Counterparty's risk management
needs generally. This pertains not only to the financial and
market risk management risks and consequences of the
confirmed or any proposed Transaction, but also to any
legal, regulatory, tax, accounting and credit issues
generated by such transactions, which Counterparty has
evaluated for itself and in reliance on its own professional
advisors.
Entering into a derivative transaction involves certain risks. An
identification of the principal risks is provided in the CIBC
Wood Gundy Financial Products Risk Disclosure Statement, which
has been delivered to you. If you have not received a copy,
please let us know and one will be provided to you. You should
always consider those risks in determining whether to enter into
derivatives transactions.
Except as if expressly agreed to by you or us in writing, neither
of us has acted as advisor to the other with respect to the
desirability or appropriateness of entering into the Transaction
confirmed hereby or with respect to the other party's risk
management needs generally. This pertains not only to the financial
and market risk management risks and consequences of the confirmed
or any proposed Transaction, but also to any legal, regulatory,
tax, accounting and credit issues generated by such transactions,
which each party must evaluate for itself and in reliance on its
own professional advisors.
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed
for that purpose and returning it to us or by sending to us a
letter or telex substantially similar to this letter, which letter
or telex sets forth the material terms of the Transaction to which
this Confirmation relates and indicates your agreement to those
terms.
Yours Sincerely,
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Gina S. Ghent
Name: Gina S. Ghent
Title: Associate Director,
Financial Products
Confirmed as of the date first written:
J.R. SIMPLOT COMPANY
By: /s/ James D. Crawford
Name: James D. Crawford
Title: Controller
<PAGE>
Exhibit K
THIS LOAN AGREEMENT dated July 29, 1996
B E T W E E N:
J.R. SIMPLOT COMPANY
(the "Borrower")
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
(the "Bank")
WHEREAS the Bank has agreed to establish a term credit
in favor of the Borrower upon the terms and conditions
hereinafter set forth;
FOR GOOD AND VALUABLE CONSIDERATION the receipt and
adequacy of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE I.
INTERPRETATION
A. Definitions
In this Agreement, the following terms will have the
meanings set out below unless the context requires otherwise:
(1) "Additional Termination Event" has the meaning set out
in Schedule B hereto;
(2) "Agreement" means this Agreement (including the
schedules to this Agreement) as it (or they) may be amended,
supplemented or restated from time to time, and the expressions
"hereof", "herein", "hereto", "hereunder", "hereby" and similar
expressions refer to this Agreement and not to any particular
Section or other portion of this Agreement;
(3) "Business Day" means any day except Saturday, Sunday or
any statutory holiday in New York, New York or in Boise, Idaho;
(4) "Collateral" means the Selected Securities together
with any collateral that may from time to time be substituted
therefor;
(5) "Consents" means any consent, approval, authorization,
permit, license, franchise, privilege, grant, exemption and other
similar concession of, by or from any Official Body and "Consent"
means any one of the Consents;
(6) "Event of Default" means an event specified in Section
7.1 hereof;
(7) "Float" means (a) the aggregate market value of the
voting stock held by non-affiliates of the issuer of the relevant
Selected Securities, as reported in the most recent Form 10-K
filed by the issuer (with the Securities and Exchange Commission
of the United States of America) of the relevant Selected
Securities, divided by (b) the closing price of such Selected
Securities as reported on the primary exchange on the date on
which such market value was determined; provided that if the
relevant Selected Securities are the result of a distribution of
Hedge Securities due to the issuer of the Hedge Securities
acquiring the issuer of any of the Selected Securities, then
prior to the first release of a Form 10-K for the combined
entity, the Float will be the following: the most recent float,
as defined above, of those Selected Securities issued by the
acquired company adjusted for the acquisition share exchange
ratio plus the most recent float, as defined above, of those
Selected Securities issued by the acquiring company prior to the
acquisition announcement date;
(8) "Hedge Securities" means any non-cash distribution or
consideration in respect of the Selected Securities in the form
of common stock (other than securities received in connection
with stock splits, reverse splits, stock dividends and other
distributions in the form of securities of which the Selected
Securities are comprised) as to which (1) the Short Interest to
Float Ratio is less than 15% at the time of such distribution and
(2) a number of shares equal to the number of shares of such
securities received by the Borrower and attributable to the
Selected Securities in such distribution can reasonably be
expected to be available at a commercially reasonable rate in the
securities lending market until the Maturity Date;
(9) "Liabilities" means all present and future
indebtedness, liabilities and obligations of every kind, nature
and description (whether direct or indirect, joint or several,
absolute or contingent, matured or unmatured) of the Borrower to
the Bank under this Agreement, the Note, the Pledge between the
Parties dated contemporaneously herewith and the Master
Agreement;
(10) "Loan" has the meaning given to it in Section 2.1;
(11) "Master Agreement" means the 1992 standard form
document prepared by the International Swap Dealers Association,
Inc. entitled Master Agreement (Multicurrency - Cross Border),
which has been entered into between the Parties contemporaneously
herewith, together with the schedule thereto dated
contemporaneously herewith, and any confirmations of trade
entered into thereunder;
(12) "Maturity Date" means July 29, 2003;
(13) "Note" means a note of the Borrower in favor of the
Bank as described in Section 2.3(1) hereof and in substantially
the form annexed hereto as Schedule A;
(14) "Obligations" means all present and future
indebtedness, liabilities and obligations of every kind, nature
and description (whether direct or indirect, joint or several,
absolute or contingent, matured or unmatured) of one Party to the
other under this Agreement, the Note, the Pledge between the
Parties dated contemporaneously herewith and the Master
Agreement;
(15) "Official Body" means any government or political
subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any
court, tribunal, grand jury or arbitrator whether foreign or
domestic;
(16) "Party" means a party to this Agreement and any
reference to a Party includes its successors and permitted
assigns; "Parties" means every Party;
(17) "Person" or "person" includes an individual,
partnership, corporation (including a business trust), joint
stock company, trust, unincorporated association, joint venture
or other entity or any Official Body;
(18) "Pledge" means the agreement referred to in Section 4.1
hereof, and any amendments, restatements, substitutions or
consolidations thereof;
(19) "Prepayment Event" has the meaning given to it in
Schedule C hereto;
(20) "Selected Securities" means 5,000,000 shares of common
stock, $.10 par value (U.S.$) of Micron Technology, Inc. (New
York Stock Exchange ticker symbol "MU") on the date hereof,
together with any subsequent distribution in the form of Hedge
Securities, all as adjusted for stock splits, reverse splits,
stock dividends and any other distributions in the form of
Selected Securities;
(21) "Short Interest" means that number which is reported by
the primary exchange for the relevant Selected Securities as the
short interest for such securities, provided that if the relevant
Selected Securities are the result of a distribution of Hedge
Securities due to the issuer of the Hedge Securities acquiring
the issuer of any of the Selected Securities, and there has not
been a release of short interest for the combined entity by the
primary exchange, the Short Interest shall be the following: the
most recent short interest as reported by the primary exchange
for those Selected Securities issued by the acquired company,
adjusted for the acquisition share exchange ratio, plus the most
recent short interest as reported by the primary exchange for
those Selected Securities issued by the acquiring company prior
to the acquisition announcement date;
(22) "Short Interest to Float Ratio" in respect of a
particular stock means the ratio where the numerator is the Short
Interest and the denominator is the Float; and
(23) "United States Dollars" and "$" mean the lawful
currency of the United States of America, unless otherwise
specified;
(24) "Without Recourse" means that (i) the only recourse of
the Bank against the Borrower in respect of any of the
Liabilities shall be strictly limited to the exercise of the
Bank's right of set-off as set out in Section 9.12, and the
realization of the Bank's security interest in the Collateral
pursuant to the Pledge; (ii) the Borrower shall not be liable to
any person with respect to any shortfall which may be experienced
upon any such realization and shall have no personal liability
under any of the Liabilities following such realization, and
(iii) the Bank shall not be entitled to bring any action or to
enforce any rights against the Borrower with respect to payment
or performance of any of the Liabilities other than to realize
the Bank's security interest in the Collateral pursuant to the
Pledge and to exercise its aforesaid rights of set-off.
B. Headings
The division of this Agreement into Sections, the
insertion of headings, and the provision of any table of contents
are for convenience of reference only and will not affect the
construction or interpretation of this Agreement.
C. Statute References
Any reference in this Agreement to any statute or any
section thereof will, unless otherwise expressly stated, be
deemed to be a reference to such statute or section as amended,
restated or re-enacted from time to time.
D. Number and Gender
Unless the context requires otherwise, words importing
the singular number include the plural and vice versa. Any words
importing gender includes all genders.
E. Business Days
If any payment is required to be made or other action
is required to be taken pursuant to this Agreement on a day which
is not a Business Day, then such payment or action will be made
or taken on the next Business Day.
F. Currency and Payment Obligations
Unless otherwise specified, all dollar amounts referred
to in this Agreement are stated in United States Dollars. All
payments due on a particular day must be received and available
to the Bank not later than 2:00 p.m. on the due date and any
payment made after that time will be deemed to have been made and
received on the next Business Day.
G. Calculation of Interest
In calculating interest payable under this Agreement
for any period of time, the first day of such period will be
included and the last day of such period will be excluded.
H. Time
Unless otherwise expressly stated, any reference herein
to a time will mean New York, New York, local time.
I. Schedules
The Schedules attached hereto and forming part of this
Agreement are as follows:
Schedule A - Note
B - Additional Termination
Events
C - Prepayment Events
ARTICLE II.
THE CREDIT
A. Establishment of Credit
Upon the terms and conditions contained herein the Bank
hereby establishes a single-draw non-revolving term loan in favor
of the Borrower in the principal amount of $95,106,489.47 (the
"Loan").
B. Utilization of Proceeds
The Loan proceeds will be used by the Borrower for its
general corporate business purposes.
C. Note
(1) The Loan will be evidenced by a Note in favor of the
Bank. The Note will be substantially in the form of the note set
out in Schedule A hereto.
(2) Subject to Section 9.6, the Borrower agrees to execute
and deliver to the Bank such replacement Note as may be requested
from time to time. In such event, the Bank will return to the
Borrower either the Note so replaced or, if such Note has been
lost or stolen, appropriate indemnities with respect to the lost
or stolen Note.
D. Interest Rate
The outstanding amount of the Loan will bear interest,
with interest on overdue interest, as well after as before
maturity, default and judgment at 7.2% per annum. Such rate will
be calculated on the basis of a full calendar year (i.e., 365 or
366 days per year, as the case may be) and will be compounded
annually on the anniversary date hereof.
E. Payment of Interest
Interest on the Loan will be capitalized until the
Maturity Date, at which time all interest will be due and owing;
provided that if an Event of Default or a Prepayment Event
occurs, all interest accrued on the Loan will become due and
owing.
F. Additional Payments
In addition to payments in respect of the outstanding
amount of the Loan and Interest thereon, additional amounts shall
be payable by the Borrower annually on each July 29 commencing in
July of 1997 through and including the Maturity Date in the
amount of $432,132.00.
ARTICLE III.
REPAYMENT AND PREPAYMENT
A. Maturity Date
On the Maturity Date the Borrower will repay the Loan
and will pay all accrued but unpaid interest on the Loan;
provided, however, that notwithstanding any other term of this
Agreement, the Loan is Without Recourse.
B. Mandatory Prepayment
Upon the occurrence of any Prepayment Event, all
obligations of the Borrower to the Bank under this Agreement and
the Note will be immediately due and owing, without presentment,
demand, protest or other notice of any kind (all of which are
expressly waived by the Borrower).
C. Prepayment
Subject to a. the Bank's rights to demand repayment of
the Loan and all other amounts outstanding hereunder if an Event
of Default occurs, and b. the obligations set out in Section 3.2,
the Borrower may not prepay the Loan or any interest thereon.
D. Breakage Costs
If the Bank demands repayment of the Loan because of
the occurrence of an Event of Default, the Borrower will
forthwith reimburse the Bank for costs and out-of-pocket expenses
(but not lost profits) reasonably incurred by the Bank as a
result of the early termination of the hedging arrangements
entered into by the Bank in support of the Loan.
ARTICLE IV.
SECURITY
A. Pledge
As continuing collateral security for the payment and
performance of the obligations of the Borrower under this
Agreement, the Borrower will pledge, and grant a first charge and
security interest in, the Collateral to the Bank. Such Pledge
will be in form and substance satisfactory to the Bank.
Notwithstanding any other term of this Agreement, the Loan and
the Note are Without Recourse.
B. Filing of Security Interest
The Borrower covenants and agrees that it will, at
Bank's expense, upon thirty (30) days' prior written notice and
in such manner and form as the Bank may reasonably require,
execute and deliver to the Bank for filing and recordation any
financing statement, specific assignment or other paper and take
any other action that may be necessary or desirable in order to
create, preserve, perfect or validate any security interests
granted or to enable the Bank to exercise and enforce its rights
under the Pledge with respect to any of the Collateral.
C. Maintenance of Perfection
The Borrower will not change its name or change the
location of its chief executive office unless it has provided the
Bank with thirty (30) days' prior written notice of such change.
D. Release of Pledge
The Bank agrees to release the security interest
created by the Pledge at its expense forthwith after all the
Liabilities have been satisfied in full. Before all the
Liabilities have been satisfied in full, the Bank has no
obligation to grant any kind of release of the security created
by the Pledge.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
A. To induce the Bank to enter into this Agreement, the
Borrower hereby represents and warrants to the Bank, upon each of
which representations and warranties the Bank specifically
relies, as follows:
1. Good Standing: It is a corporation duly incorporated
and organized, is validly subsisting under the laws of
Nevada, is in good standing and has its principal place
of business in Boise, Idaho.
2. Corporate Power: It has the corporate power to:
a. own the Selected Securities; and
b. enter into and perform this Agreement, the Note
and the Pledge.
3. Corporate Authorization: It has taken all necessary
corporate action to authorize the execution, delivery
and performance of this Agreement, the Note and the
Pledge to which it is a party.
4. Consents and Authorization: To the best of its
knowledge, no Consents of, or filing with, any person
(including, without limitation, any Official Body) are
required in connection with the execution, delivery or
performance of its obligations under this Agreement,
the Note and the Pledge or the validity or
enforceability against it of them, except for such
filings as may be required under the federal or state
securities laws of the United States of America.
5. Due Execution: It has duly executed and delivered this
Agreement, the Note and the Pledge.
6. No Legal Bar: To the best of its knowledge, the
execution, delivery and performance of this Agreement
and the borrowing of money by the Borrower hereunder,
the use by it of the proceeds of such borrowing, the
creation by the Pledge of the charge, pledge and
security interest over the Collateral and the
realization process contemplated in the Pledge will not
violate any requirement of law or any of its
contractual obligations.
7. No Material Litigation: To the best of its knowledge,
no investigation or proceeding of any Official Body is
pending against it or against any of its properties or
revenues, existing or future, which could reasonably be
expected to have an adverse effect on the Collateral,
the Borrower's ownership of the Collateral or the
Borrower's ability to perform its obligations under the
Pledge or this Agreement, and no litigation,
investigation or proceeding of or before any Official
Body is, to the best of the Borrower's knowledge,
pending or threatened by or against it or against any
of its properties or revenues, existing or future,
which has or could reasonably be expected to have an
adverse effect on the Collateral, the Borrower's
ownership of the Collateral or its ability to perform
its obligations under this Agreement or the Pledge.
8. Full Disclosure: To the best of its knowledge, there
is no fact which has not been disclosed to the Bank
which will, so far as the Borrower can now reasonably
foresee, materially adversely affect the Borrower's
ability to perform its obligations under the Pledge or
this Agreement; to the best of its knowledge, but
without any review, investigation or participation by
the Borrower in the preparation of the filings of
Micron Technology, Inc. with the United States
Securities and Exchange Commission pursuant to section
13(a) of the United States Securities Exchange Act of
1934, such filings do not contain any untrue statements
of material fact or omit to state any material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, or in
light of current circumstances, not misleading.
9. No Default: To the best of its knowledge, neither the
execution nor the delivery by it of this Agreement or
the Pledge, the consummation of the transactions herein
and therein contemplated, nor the compliance with the
terms, conditions and provisions hereof and thereof
conflicts with, or will conflict with, or results or
will result in, any breach of, or constitutes a default
under, any of the provisions of its charter documents
or by-laws or of any agreement or instrument to which
it is a party or by which it or the Collateral are
bound.
10. Financial Information: To the best of its knowledge,
any financial information regarding the Borrower that
has been delivered by it to the Bank is true and
accurate in all material respects.
11. Title: The Borrower has good and marketable title to
the Collateral, subject only to the Pledge.
12. Security Interest: Pursuant to the terms of the
Pledge, the Bank has a valid and perfected first
priority security interest in the Selected Securities
as security for the Obligations. The Selected
Securities are fully paid and non-assessable.
ARTICLE VI.
COVENANTS
A. Affirmative Covenant
In addition to the covenants set out elsewhere in this
Agreement, the Borrower covenants and agrees with the Bank that,
except as otherwise permitted by the prior written consent of the
Bank, it will forthwith notify the Bank in writing of the
occurrence of any Prepayment Event, any Event of Default or any
event that with the giving of notice by the Bank or the passage
of time would become an Event of Default.
ARTICLE VII.
EVENTS OF DEFAULT
A. Events of Default
The occurrence of any one or more of the following
events will constitute an Event of Default under this Agreement:
1. Failure to Perform Terms: If the Borrower defaults in
the performance or observance of any term, condition or
covenant contained in any of this Agreement, the Note
or the Pledge, and in the case of a default capable of
being remedied, such default is not remedied within 30
days after written notice thereof has been delivered by
the Bank to the Borrower;
2. Default under Master: If an Event of Default (as
defined in the Master Agreement), after giving effect
to any cure or grace period therein, occurs;
3. Representations and Warranties: If any representation,
warranty or statement which is made in this Agreement
or the Pledge is untrue or incorrect in any material
respect when made;
4. Possession of Collateral: If any Person other than the
Bank or its nominee takes possession of the Collateral
other than as a result of any action or inaction by the
Bank or any person acting on its behalf;
5. Documents Not Legally Binding: If any obligation or
other provision in this Agreement, the Note or the
Pledge that is material in the opinion of the Bank
acting reasonably terminates or ceases to be legally
valid, binding and enforceable against the Borrower or
if the security interest created by the Pledge ceases
to be a first priority perfected security interest in
favor of the Bank other than by reason of the Bank's
action or inaction;
6. Withdrawal of Necessary Consents: If any Consents
required to make this Agreement, the Note or the Pledge
legal, valid, binding and enforceable, in any material
respect, or required in order to enable the Borrower to
perform its obligations thereunder, in any material
respect, are withdrawn or cease to be in full force and
effect; or
7. Bankruptcy: The Borrower generally does not pay its
debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of
creditors; or a proceeding shall be instituted by or
against the Borrower seeking to adjudicate it a
bankrupt or insolvent. or seeking liquidation, winding
up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts
under the United States Bankruptcy Code or any other
law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official
over a material portion of the assets of the Borrower
(such materiality determination to be made against the
assets of the Borrower at the time of such appointment)
and, in the case of any such proceeding instituted
against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property)
shall occur; or the Borrower shall take any corporate
action to authorize any of the actions set forth above
in this paragraph.
All periods contained in this Section which allow the
Borrower an opportunity to cure an Event of Default will, subject
to applicable law, run concurrently with any requirements for
notice under any U.S. or other applicable law.
B. Acceleration and Enforcement
Upon the earliest of (a) the Maturity Date, (b) the
occurrence of a Prepayment Event and (c) the occurrence of an
Event of Default, all obligations of the Borrower to the Bank
under this Agreement and the Note will, at the sole option of the
Bank and without written notice to the Borrower (except as
required by law), immediately become due and payable (but shall
remain Without Recourse) without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by
the Borrower, and the charge, pledge and security interest
created by the Pledge will thereupon become enforceable by the
Bank or its duly authorized agent. Upon the earliest of (a) the
Maturity Date, (b) the occurrence of a Prepayment Event and (c)
the occurrence of an Event of Default, the Bank may, at its
option, enforce the Pledge and security interest.
ARTICLE VIII.
CONDITIONS PRECEDENT
A. General
(1) The obligation of the Bank to establish the Loan and to
permit the Borrower to draw the Loan is subject to the
fulfillment of the following conditions precedent to the
satisfaction of the Bank, it being understood that the said
conditions are included for the exclusive benefit of the Bank and
may be waived in writing in whole or in part by the Bank at any
time:
1. Pledge: The Borrower will have duly authorized,
executed and delivered to the Bank the Pledge together
with any other reasonable documentation required by the
Bank (including delivery to the Bank of the
certificates representing the Selected Securities in
accordance with the Pledge).
2. Note: The Borrower will have delivered the Note to the
Bank.
3. Corporate Proceedings: The Borrower will have
delivered to the Bank all records of all corporate
proceedings in connection herewith, including without
limitation, the following:
a. certified copies of all corporate action taken by
the Borrower to authorize the borrowing hereunder
and the execution and delivery of this Agreement,
the Note and the Pledge; and
b. an incumbency Certificate.
4. Corporate Opinion: Counsel for the Borrower will have
delivered to the Bank an opinion with respect to the
due authorization, execution and delivery of this
Agreement, the Note and the Pledge, including an
opinion that they are legally valid, binding and
enforceable obligations, and that the security interest
in the Collateral is perfected.
ARTICLE IX.
MISCELLANEOUS
A. Notices
1. Any notice, certificate, consent, determination or
other communication required or permitted to be given or made
under this Agreement will be in writing and will be effectively
given and made if (i) delivered personally, (ii) sent by prepaid
courier service or certified or registered mail, return receipt
requested or (iii) sent prepaid by fax or other similar means of
electronic communication, in each case to the applicable address
set out below:
a. if to the Bank, to:
Canadian Imperial Bank of Commerce
161 Bay Street, 5th floor
Toronto, Ontario, Canada M5J 2S8
with a copy to:
Mr. Alexander Bakal
Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
5th floor
New York, N.Y. 10017
Fax: (212) 856-6526
Phone: (212) 885-4349
b. if to the Borrower, to:
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7646
Phone: (208) 389-2110
Attn: Treasurer
and
Ronald Graves, Esq.
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7646
Phone: (208) 389-7312
with a copy to:
Jacques K. Meguire, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Fax: (312) 876-7934
Phone: (312) 876-8000
2. Any such communication so given or made will be deemed
to have been given or made and to have been received on the day
of delivery if delivered, or on the day of faxing or sending by
other means of recorded electronic communication, provided that
such day in either event is a Business Day and the communication
is so delivered, faxed or sent prior to 4:30 p.m. on such day.
If so delivered, faxed or sent on or after 4:30 p.m. on such day,
such communication will be deemed to have been given and made and
to have been received on the next following Business Day. Any
such communication sent by mail will be deemed to have been given
and made and to have been received on the fifth Business Day
following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended
disruption of postal services. Any such communication given or
made in any other manner will be deemed to have been given or
made and to have been received only upon actual receipt.
3. Any Party may from time to time change its address
under this Section by notice to the other Party given in the
manner provided by this Section.
B. Time of Essence
Time will be of the essence of this Agreement in all
respects.
C. Non-Merger
The obligations of the Borrower contained in this
Agreement (and to the extent that those obligations are not
repeated in the Pledge) will survive the execution and
registration of the Pledge and the drawdown of the Loan, and the
Borrower agrees that those obligations will not be deemed to be
merged in the execution and registration of the Pledge.
D. Interpretation
This Agreement will be governed by and construed in
accordance with the laws of the State of New York without
reference to conflict of law provisions (other than Section 5-
1401 of the New York General Obligations Law).
E. Submission to Jurisdiction
Any legal action or proceeding with respect to this
agreement may be brought in the courts of the State of New York
or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement, the
parties hereby accept for themselves and in respect of their
property, generally and unconditionally, the jurisdiction of the
aforesaid courts and any appellate courts to which any decisions
of such courts may be appealed. Each party hereto hereby irre-
vocably consents to the service of process out of any of the
aforementioned courts in any action or proceeding by the mailing
of copies thereof to such party by registered or certified mail,
postage prepaid, return receipt requested, to such party at its
address specified in section 9.1. The parties hereto hereby
irrevocably waive trial by jury, and the parties hereby
irrevocably waive any objection, including, without limitation,
any objection to the laying of venue or based on the grounds of
forum non conveniens, which they may now or hereafter have to the
bringing of any such action or proceeding in such jurisdiction.
F. Assignment
Without the prior written consent of the other Party,
no Party may assign or transfer, encumber or otherwise dispose of
(whether by security or otherwise) any part of its respective
rights or obligations under this Agreement, the Note or the
Pledge.
G. Amendments to Agreement
Any amendments to this Agreement must be in writing and
signed by an officer of the Bank, duly authorized for such
purpose.
H. Expenses of Realization
The Borrower agrees that the Bank may charge on its own
behalf and pay to others reasonable sums for expenses incurred
and for services rendered (expressly including reasonable legal
expenses on a solicitor and solicitor's own client basis) in or
in connection with maintaining, protecting, disposing of,
retaining, collecting or realizing upon the Collateral and the
Pledge or any part thereof and may apply the proceeds of
realizing, disposing of or collecting upon such Collateral or
Pledge to the payment of such sums, which will be limited to the
proceeds of realization, disposition or collection.
I. Rights and Waivers
The rights and remedies of the Bank under this
Agreement and the Pledge:
1. are cumulative;
2. may be exercised as often and in such order as the
Bank considers appropriate;
3. are in addition to its rights and remedies under
the general law with respect to a loan that is
Without Recourse; and
4. will not be capable of being waived or varied
except by virtue of an expressed waiver or
variation in writing signed by an officer of the
Bank.
In particular, any failure to exercise or any delay in exercising
any of such rights and remedies will not operate as a waiver or
variation of that or any other such right or remedy; any
defective or partial exercise of any of such rights will not
preclude any other or future exercise of that or any other such
right or remedy; and no act or course of conduct or negotiation
on the part of the Bank or on its behalf will in any way preclude
it from exercising any such right or remedy or constitute a
suspension or variation of any such right or remedy.
J. Further Assurances
The Borrower will promptly do, execute, deliver or will
cause to be done, executed and delivered all such further acts,
documents and things in connection with this Agreement that the
Bank may reasonably require for the purposes of giving effect to
the provisions and purposes of the Agreement.
K. Severability
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to that jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability and will be severed from the balance of this
Agreement, all without affecting the remaining provisions of this
Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
L. Set-Off
The Parties agree that their rights of set-off against
each other are restricted to the Obligations, as follows: each
Party may at any time and from time to time set off any and all
Obligations owing by it to the other Party against any and all
Obligations owing by the other Party to it; provided, however,
that the Parties may not set off any Obligations against each
other prior to the occurrence of an Event of Default, a
Prepayment Event or the Maturity Date.
M. Counterparts
This Agreement may be executed in counterparts, each of
which will be deemed to be an original and all of which taken
together will be deemed to constitute one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF the Parties have caused this
Agreement to be executed as of the date first written above.
J.R. SIMPLOT COMPANY
By: /s/ James D. Crawford
Name: James D. Crawford
Title: Controller
c/s
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ David C. Qnon
Name: David C. Qnon
Title: Director
<PAGE>
SCHEDULE A
Term Note
July 29, 1996
FOR VALUE RECEIVED, the undersigned unconditionally
promises to pay to Canadian Imperial Bank of Commerce (the
"Bank") or order at 425 Lexington Avenue, New York, New York
10017, or such other place as the Bank may direct in writing in
accordance with the provisions of the loan agreement (as amended
or restated from time to time, the "Loan Agreement") dated July
29, 1996 between the undersigned and the Bank, on the Maturity
Date, the sum of U.S. $95,106,489.47 with interest and additional
payments thereon in accordance with and on the dates set forth in
the Loan Agreement both before and after maturity, default and
judgment, until paid.
This note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Loan Agreement,
pursuant to which the indebtedness evidenced hereby may become
payable at any time, but is Without Recourse. All initially
capitalized terms used herein and not otherwise defined have the
meanings given to them in the Loan Agreement.
J. R. SIMPLOT COMPANY
By:_____________________________________
Name:
Title:
c/s
By:_____________________________________
Name:
Title:
<PAGE>
SCHEDULE B
Additional Termination Events
Each of the following events will constitute an
Additional Termination Event:
1) None of the Selected Securities are listed on any United
States national securities exchange or United States
national securities system subject to last sale reporting;
2) The issuer (or, as the case may be, issuers) of the Selected
Securities has disclosed impending events which, in the
opinion of nationally-recognized United States counsel of
the Bank, acting reasonably (a copy of which opinion shall
have been delivered to the Borrower), will likely result in
the Selected Securities (or the securities distributed as a
result of such events) ceasing to be listed on any United
States national securities exchange or United States
national securities system subject to last sale reporting;
provided that the Additional Termination Event will not
arise more than thirty (30) days before the expected ter-
mination of the listing;
3) All of the Selected Securities are permanently suspended
from trading (within the meaning of the Securities Exchange
Act (of the United States of America) of 1934 and the rules
and regulations thereunder) on each such securities exchange
and securities system on which the Selected Securities are
then listed;
4) (A) The Short Interest to Float Ratio for (i) the securities
which comprise the Selected Securities on the date of this
Agreement, if such securities still comprise some of the
Selected Securities, is greater than 30% and (ii) each of
the Selected Securities that results from a distribution of
Hedge Securities is greater than 20% or (B) a number of
shares at any particular time equal to the number of shares
of all such Selected Securities at such particular time are
unavailable in the securities lending market at a
commercially reasonable rate until the Maturity Date.
<PAGE>
SCHEDULE C
Prepayment Events
Each of the following events will constitute a
Prepayment Event:
(a) the occurrence of any Additional Termination Event;
(b) the occurrence of a Termination Event (as defined in
the Master Agreement);
(c) if the Borrower for any reason opts to terminate early
pursuant to the Master Agreement any transaction
between the Parties that is governed by the Master
Agreement.
<PAGE>
Exhibit L
PLEDGE
THIS PLEDGE dated July 29, 1996.
BETWEEN:
J. R. SIMPLOT COMPANY
(the "Pledgor"),
- and -
CANADIAN IMPERIAL BANK OF COMMERCE.
(the "Bank")
WHEREAS the Pledgor has or may have Liabilities owing
to the Bank;
AND WHEREAS the Pledgor has agreed to enter into this
Agreement in order to provide the Bank and the Bank with security
for the Liabilities;
NOW THEREFORE for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Pledgor and the Bank hereby agree as follows:
X. Definitions
In this Agreement, the following terms will have the
meanings set out below unless the context requires otherwise:
A. "Business Day" means any day except Saturday, Sunday or
any statutory holiday in New York, New York or Boise, Idaho;
B. "Collateral" means the Selected Securities together
with any collateral that may from time to time be substituted
therefor in accordance with Section 6 of this Agreement;
C. "Event of Default" has the meaning given to it in the
Loan Agreement;
D. "Float" means (a) the aggregate market value of the
voting stock held by non-affiliates of the issuer of the relevant
Selected Securities, as reported in the most recent Form 10-K
filed by the issuer (with the Securities and Exchange Commission
of the United States of America) of the relevant Selected
Securities, divided by (b) the closing price of such Selected
Securities as reported on the primary exchange on the date on
which such market value was determined; provided that if the
relevant Selected Securities are the result of a distribution of
Hedge Securities due to the issuer of the Hedge Securities
acquiring the issuer of any of the Selected Securities, then
prior to the first release of a Form 10-K for the combined
entity, the Float will be the following: the most recent float,
as defined above, of those Selected Securities issued by the
acquired company adjusted for the acquisition share exchange
ratio plus the most recent float, as defined above, of those
Selected Securities issued by the acquiring company prior to the
acquisition announcement date;
E. "Hedge Securities" means any non-cash distribution or
consideration in respect of the Selected Securities in the form
of common stock (other than securities received in connection
with stock splits, reverse splits, stock dividends and other
distributions in the form of securities of which the Selected
Securities are comprised) as to which (1) the Short Interest to
Float Ratio is less than 15% at the time of such distribution and
(2) a number of shares equal to the number of shares of such
securities received by the Pledgor and attributable to the
Selected Securities in such distribution can reasonably be
expected to be available at a commercially reasonable rate in the
securities lending market until the Maturity Date;
F. "Liabilities" means all present and future
indebtedness, liabilities and obligations of every kind, nature
and description (whether direct or indirect, joint or several,
absolute or contingent, matured or unmatured) of the Pledgor to
the Bank under the Loan Agreement and the note issued pursuant
thereto, this Agreement and the Master Agreement;
G. "Loan Agreement" means the loan agreement between the
Parties dated contemporaneously herewith, as such loan agreement
may be amended or restated from time to time;
H. "Master Agreement" means the 1992 standard form
document prepared by the International Swap Dealers Association,
Inc. entitled Master Agreement (Multicurrency - Cross Border),
which has been entered into between the Parties contemporaneously
herewith, together with the schedule thereto dated
contemporaneously herewith, and any confirmations of trade
entered to thereunder;
I. "Party" means a party to this Agreement and any
reference to a Party includes its successors and permitted
assigns; "Parties" means every Party;
J. "Selected Securities" means 5,000,000 shares of common
stock, $.10 par value (U.S.$) of Micron Technology, Inc. (New
York Stock Exchange ticker symbol "MU") on the date hereof,
together with any subsequent distributions in the form of Hedge
Securities, all as adjusted for stock splits, reverse splits,
stock dividends and any other distributions in the form of
Selected Securities;
K. "Short Interest" means that number which is reported by
the primary exchange for the relevant Selected Securities as the
short interest for such securities, provided that if the relevant
Selected Securities are the result of a distribution of Hedge
Securities due to the issuer of the Hedge Securities acquiring
the issuer of the Selected Securities, and there has not been a
release of short interest for the combined entity by the primary
exchange, the Short Interest shall be the following: the most
recent short interest as reported by the primary exchange for
those Selected Securities issued by the acquired company,
adjusted for the acquisition share exchange ratio, plus the most
recent short interest as reported by the primary exchange for
those Selected Securities issued by the acquiring company prior
to the acquisition announcement date;
L. "Short Interest to Float Ratio" in respect of a
particular stock means the ratio where the numerator is the Short
Interest and the denominator is the Float; and
M. "Termination Securities" refers to those Selected
Securities with respect to which an Additional Termination Event
(as defined in the Loan Agreement) has occurred; provided that
such Additional Termination Event has not affected all the
Selected Securities.
XI. Security Interest
As security for the prompt and complete payment when due of
all Liabilities, the Pledgor hereby pledges, assigns, conveys,
grants and transfers to the Bank a first and prior security
interest under the Uniform Commercial Code as in effect on the
date hereof in the State of New York or other applicable law in
and to, and a general first lien upon and right of set off
against, all of the Pledgor's right, title and interest in and to
the Collateral to be held by the Bank upon and subject to the
terms and conditions of this Agreement, all certificates or
instruments representing or evidencing any or all of the forego-
ing, and all principal, interest and payments and distributions
of cash or other property and proceeds from time to time
received, receivable or otherwise distributed in respect of, or
in exchange for, any or all of the foregoing (whether such
proceeds arise before or after the commencement of any proceeding
under any applicable bankruptcy, insolvency or other similar law,
by or against Pledgor, with respect to Pledgor) and all powers
and rights of Pledgor now or hereafter acquired by Pledgor,
including rights of enforcement, under any or all of the
foregoing.
XII. Respecting Collateral
A. Upon the execution hereof and thereafter from time to
time as required, the Pledgor shall deliver to the Bank, or to
any person nominated by the Bank as its agent for the purpose of
holding the Collateral as security, certificates representing all
shares included in the Collateral, duly endorsed for transfer in
blank or, if directed by the Bank, to the Bank or the agent of
the Bank, or to such person as the Bank may determine upon
enforcement of the security hereby constituted.
B. The Bank shall cause the Collateral to be segregated
from, and not commingled with, any other assets of or held by the
Bank or any agent nominated by the Bank for the purpose of
holding the Collateral as security ("Collateral Agent") and will
be held in a separate account in the name of the Pledgor.
Subject to the foregoing obligation to segregate, not commingle
and to hold the Collateral, while the Bank or Collateral Agent,
as applicable, has custody or possession of the Collateral, the
Bank will have only the same degree of care with respect to the
Collateral as if it were the property of the Bank, and provided
the Bank complies with the foregoing obligation to segregate and
not to commingle and to hold the Collateral, the Bank will not be
liable for the acts, omissions or defaults of the Bank, any
Collateral Agent, or any of the Bank's other agents or employees,
save for gross negligence or willful misconduct.
C. The Bank shall hold, and shall cause any Collateral
Agent to hold, the Collateral solely in accordance with the terms
hereof and will not at any time sell, assign, transfer, exchange
or otherwise dispose of, or grant any option with respect to, any
of the Collateral, or create, incur or permit to exist any lien
on or with respect to any of the Collateral, any interest
therein, or any proceeds thereof, except for the security
interests created under this Agreement.
XIII. Dividends
All cash dividends, distributions and other money
payments in respect of the Collateral shall be paid to the Bank,
and forwarded by the Bank to the Pledgor (except to the extent
that there are unpaid Liabilities that are then due and owing by
the Pledgor to the Bank, in which case the amounts necessary to
satisfy such unpaid Liabilities will be retained by the Bank and
applied to any unpaid Liabilities).
XIV. Voting
A. As used in this section, "voting rights" includes the
right to attend and vote at any meeting, and the right to assign
a proxy.
B. Until enforcement of the security constituted hereby in
accordance with the terms hereof, all voting rights attaching to
the shares included in the Collateral will be exercised by the
Pledgor or its designee or proxy, together with all rights in
connection with the initiation, taking part in, and consenting to
of any action as a shareholder of the Selected Securities,
including the execution of appropriate instruments of proxy
and/or powers of attorney and the right to exercise any option
and any rights given to the holder of the Selected Securities,
and the Bank agrees to do and execute all such acts and deeds as
are necessary to enable the Pledgor to exercise all such rights,
including without limitation, the execution by the Bank of either
or both of instruments of proxy and powers of attorney. The Bank
further agrees to forward to the Pledgor at the address set forth
below forthwith upon its receipt all communications received by
the Bank as registered owner of the Selected Securities from or
on behalf of or in respect of the issuer of the Selected
Securities, including without limitation notices of meetings,
resolutions, financial disclosures, reports, interim reports and
press releases:
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 93702
Attn: Secretary
C. Upon enforcement of the security constituted hereby in
accordance with the terms hereof, all voting rights attaching to
the shares included in the Collateral shall be exercised by the
registered holder thereof for the time being.
XV. Substitution of Collateral
A. The Pledgor may substitute other collateral for the
Selected Securities, provided that the Pledgor obtains the prior
written consent of the Bank to such substitution, which consent
will not be withheld if in the opinion of the Bank and the Bank,
acting reasonably, the substitute collateral will provide the
Bank and the Bank with the same level of protection that is
afforded by the Collateral that is proposed to be removed from
the Collateral pool. If at any time the Bank and the Bank
consent to a substitution of some or all of the Collateral,
counsel for the Pledgor will provide to the Bank an opinion, in
form and substance satisfactory to the Bank, acting reasonably,
that the Bank has a perfected security interest over the
replacement Collateral.
B. Notwithstanding the previous paragraph, the Pledgor may
on any day substitute for all or any part of the Selected
Securities, without the consent of the Bank, cash or U.S.
Treasury obligations having a maturity of no more than 90 days
("Substitute Collateral") such that the aggregate market value of
all Substitute Collateral then held by the bank shall be at least
122% of the aggregate market value of Selected Securities with
respect to which Substitute Collateral has been substituted (and
not replaced with Selected Securities) or is on such date being
substituted (such aggregate market value, the "Aggregate Market
Value of Substituted Securities"). Following such substitution,
if on any Business Day the Bank determines that the market value
of the Substitute Collateral held by the bank is less than 122%
of the Aggregate Market Value of Substituted Securities, the
Pledgor shall at the request of the Bank deliver additional
Substitute Collateral in the amount of such shortfall; provided,
however, that if the Pledgor receives such request after 1:00
p.m., New York time, on such Business Day, such Substitute
Collateral may be delivered on the following Business Day. The
Pledgor may at any time request the return of any Substitute
Collateral to the extent the aggregate market value exceeds 122%
of the Aggregate Market Value of Substituted Securities. The
Pledgor may at any time substitute Selected Securities for a like
amount of other Selected Securities, or for an amount of
Substitute Collateral after the substitution of which there shall
remain Substitute Collateral with an aggregate market value of at
least 122% of the Aggregate Market Value of Substituted
Securities.
XVI. Registration and Discharge
A. Pledgor covenants and agrees that it will, at the
Bank's expense, upon thirty (30) days' prior written notice and
in such manner and form as the Bank may reasonably require,
execute and deliver to the Bank for filing and recordation any
financing statement, specific assignment or other paper and take
any other action that may be necessary or desirable in order to
create, preserve, perfect or validate any security interests
granted or to enable the Bank to exercise and enforce its rights
under this Agreement with respect to any of the Collateral.
B. The Pledgor will not change its name or change the
location of its principal place of business unless it has
provided the Bank with thirty (30) days' prior written notice of
such change.
C. The Bank agrees to release the security interest
created by this Agreement at its expense forthwith after all the
Liabilities have been satisfied in full. Subject to section 7(d)
hereof, before the Liabilities have been satisfied in full, the
Bank has no obligation to grant any kind of release of the
security created by this Agreement.
D. If at any time, from time to time, there are
Termination Securities included in the Collateral, the Bank will
ensure that the Termination Securities are released from this
Agreement if such Termination Securities are required to be
delivered by the Pledgor to the Bank pursuant to a transaction
entered into under the Master Agreement.
XVII. Application of Proceeds
Any income or dividends or other proceeds realized by
the Bank on or in respect of the Collateral in connection with
the exercise of any rights or remedies of the Bank shall be
applied in the following order:
1. to the payment of the expenses of realization and
enforcement;
2. to the satisfaction of Liabilities (other than
such Liabilities satisfied in clause (i) above),
in the order determined by the Bank in its sole
discretion; and
3. the balance, if any, shall be returned to the
Pledgor.
XVIII. Enforcement
A. The Bank shall be entitled to enforce the security
interest granted herein upon the earliest of (i) the Maturity
Date (as defined in the Loan Agreement), (ii) the occurrence of a
Prepayment Event, and (iii) the occurrence of an Event of
Default.
B. In connection with the enforcement of the security
interest granted herein constituted hereby, the Bank may:
1. subject to the limitations of this Agreement and
the Loan Agreement, exercise all the rights and
remedies of a secured party under the Uniform
Commercial Code (whether or not the Uniform
Commercial Code applies to the Collateral) and all
other applicable law;
2. subject to applicable law, complete the blanks in
any transfer in blank or power of attorney in
respect of any shares included in the Collateral
with such names and in such manner as the Bank may
determine, and the Bank may seal and deliver the
same after such blanks have been filled in;
3. subject to applicable law, realize upon the
Collateral, or any of it, by directing the
relevant corporation to register the shares
included in the Collateral in the name of the Bank
(or its agent as aforesaid) to enable it to
enforce the security hereof;
4. subject to applicable law, exercise all rights of
ownership of and all other rights attaching to the
Collateral, or any of it, as if the Bank were the
absolute owner thereof; and
5. sell, transfer, assign, grant an option or options
to purchase or otherwise dispose of or deal in all
or any part of the Collateral in one or more
parcels at public or private sale or sales, at any
exchange, broker's board or at any of the Bank's
offices or elsewhere, upon such terms as shall be
commercially reasonable, subject to applicable law
(including without limitation compliance by the
Bank with applicable securities laws).
C. The Bank may exercise any of its rights and remedies in
respect of the Collateral and the Bank may exercise its rights of
set-off as described in the Loan Agreement and the Master
Agreement independently or in combination and at any time and
from time to time once the Bank is entitled to enforce the
security constituted hereby pursuant to section 9(a) hereof. The
exercise of any particular right or remedy in respect of the
Collateral or right of set-off as described in the Loan Agreement
and the Master Agreement shall not preclude the further exercise
of that or any other right or remedy available pursuant to this
Agreement, the Loan Agreement or the Master Agreement, provided
that all such rights and remedies shall be Without Recourse (as
defined in the Loan Agreement).
XIX. Pledgor a Trustee
Any income, dividends, distributions and accretions
upon, to or of the Collateral received by the Pledgor at any time
after the enforcement of the security constituted hereby shall be
received by the Pledgor as trustee for the Bank and shall be
forthwith paid over to the Bank to be dealt with on the terms
hereof.
XX. Representation and Warranty and Covenant
The Pledgor represents and warrants to the Bank, and
acknowledges that the Bank is relying on such representation and
warranty, that the Pledgor is the beneficial and registered owner
of the shares constituting the Collateral, free and clear of all
encumbrances apart from the charge, pledge and security interest
created in this Agreement, but possibly subject to the
restrictions imposed by the United States Securities Act of 1933
and any applicable securities laws of any state of the United
States on the sale, pledge or other transfer of securities held
by an affiliate or control person of the issuer thereof (provided
that the Pledgor does not believe that it is an affiliate or
control person of Micron Technology, Inc.).
XXI. Restrictions
In addition to the covenants set out elsewhere in this
Agreement, the Pledgor covenants and agrees with the Bank that,
except as expressly permitted or contemplated by the Master
Agreement or this Agreement or as permitted by the prior written
consent of the Bank, it will not
1. No Sale: sell, exchange, release, abandon, transfer or
otherwise dispose of the Collateral or the legal or
beneficial ownership thereof; or
2. No Further Encumbrances: grant, create or permit to
exist any mortgage, pledge, lien, hypothecation,
security interest or other encumbrance or charge
(whether fixed, floating or otherwise) with respect to
the Collateral except in favor of the Bank.
XXII. Notices
A. Any notice, certificate, consent, determination or
other communication required or permitted to be given or made
under this Agreement will be in writing and will be effectively
given and made if (i) delivered personally, (ii) delivered by
prepaid courier service or certified or registered mail, return
receipt requested, or (iii) sent prepaid by fax or other similar
means of electronic communication, in each case to the applicable
address set out below:
a. if to the Bank, to:
Canadian Imperial Bank of Commerce
161 Bay Street, 5th floor
Toronto, Ontario, Canada M5J 2S8
with a copy to:
Mr. Alexander Bakal
Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
5th floor
New York, N.Y.
10017
Fax: (212) 856-6526
Phone: (212) 885-4349
b. if to the Pledgor, to:
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7646
Phone: (208) 389-2110
Attn: Treasurer
and
Ronald Graves, Esq.
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7646
Phone: (208) 389-7312
with a copy to:
Jacques K. Meguire, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Fax: (312) 876-7934
Phone: (312) 876-8000
B. Any such communication so given or made will be deemed
to have been given or made and to have been received on the day
of delivery if delivered, or on the day of faxing or sending by
other means of recorded electronic communication, provided that
such day in either event is a Business Day and the communication
is so delivered, faxed or sent prior to 4:30 p.m. on such day.
If so delivered, faxed or sent on or after 4:30 p.m. on such day,
such communication will be deemed to have been given and made and
to have been received on the next following Business Day. Any
such communication sent by mail will be deemed to have been given
and made and to have been received on the fifth Business Day
following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended
disruption of postal services. Any such communication given or
made in any other manner will be deemed to have been given or
made and to have been received only upon actual receipt.
C. Any Party may from time to time change its address
under this Section by notice to the other Party given in the
manner provided by this Section.
XXIII. Covenant of the Bank
The Bank shall hold the Collateral (to the extent it is
in its possession or under its control or direction) in
accordance with the terms of this Agreement, and will not at any
time encumber or dispose of the Collateral except as permitted by
this Agreement.
XXIV. Further Assurances
The Pledgor shall from time to time forthwith on the
Bank's request do, make and execute all such documents, acts,
matters and things as may be required by the Bank with respect to
this Agreement or any part hereof or as may be required to give
effect to these presents. Once the Bank is entitled to enforce
the security interest constituted hereby pursuant to section 9(a)
hereof, an officer of the Bank may, without further approval or
authorization of the Pledgor, be constituted and appointed by the
Pledgor the true and lawful attorney of the Pledgor irrevocable
with full power of substitution to do, make and execute all such
statements, assignments, documents, acts, matters or things with
the right to use the name of the Pledgor whenever and wherever it
may be deemed necessary or expedient for the purposes of
enforcing this Agreement or protecting the security created
hereby.
XXV. General
A. The Bank may grant extensions of time and other
indulgences, take and give up security, accept compositions and
otherwise deal with the Pledgor and with other persons without
prejudice to the rights of the Bank hereunder and without
limitation to the debts, liabilities and obligations secured or
to the security constituted hereby.
B. The security constituted hereby is taken in addition to
and not in substitution for and is independent of any other
security taken by or granted to the Bank by the Pledgor or any
other person.
C. The Bank may expend funds in connection with the
protection of or enforcement of the security constituted hereby
(including without limitation reasonable fees and disbursements
of counsel, on a solicitor and its own client basis). All such
funds shall be added to and form part of the Liabilities, and in
case of the enforcement of the security constituted hereby shall
be deducted from and limited to the proceeds of any such
enforcement, and may be applied in the discretion of the Bank to
such part or parts of the Liabilities as to the Bank seems best.
D. Any provision in this Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof.
E. No waiver of any of the provisions of this Agreement
shall be effective unless given in writing by the party against
which the same is to be asserted.
F. Headings have been inserted in this Agreement for
reference only, and shall not define, limit or enlarge the
construction or interpretation hereof.
G. This Agreement and the rights of the parties hereunder
shall be construed and interpreted in accordance with the laws of
New York, without reference to conflict of law provisions (other
than Section 5-1401 of the New York General Obligations Law).
IN WITNESS WHEREOF the parties hereto have duly
executed this Agreement as of the day and year first above
written.
J.R. SIMPLOT COMPANY
By: /s/ James D. Crawford
Title: James D. Crawford
Controller
c/s
By:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ David C. Qnon
Title: David C. Qnon
Director
<PAGE>
Exhibit M
_________________________________________________________________
Date: July 29, 1996
To: J.R. Simplot Company From: Canadian Imperial Bank of
Commerce
Attention: Mr. Ron Graves Contact: Gina S. Ghent
Phone Number: (208) 389-7312 Phone Number: (212) 856-6538
Facsimile Number: (208) 389-7464 Facsimile Number: (212)
856-6098
Re: CIBC Reference #NY EQT 0143
_________________________________________________________________
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between Canadian
Imperial Bank of Commerce ("CIBC") and J.R. Simplot Company
("Counterparty") on the Trade Date specified below (the
"Transaction"). References herein to a "Transaction" shall be
deemed reference to a Swap Transaction for purposes of the 1991
ISDA Definitions (as published by the International Swap Dealers
Association, Inc. ("ISDA")). This letter agreement constitutes a
"Confirmation" as referred to in the Master Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA
Definitions are incorporated into this Confirmation. In the
event of any inconsistency between those definitions and
provisions and this Confirmation, this Confirmation will govern.
1. This Confirmation supplements, and forms part of the Master
Agreement and the Schedule attached thereto, dated as of
June 28, 1996, as amended and supplemented from time to time
(the "Agreement"), between CIBC and Counterparty. All
provisions contained in the Agreement shall govern this
Confirmation except as expressly modified below. In the
event of any inconsistency between the Agreement and this
Confirmation this Confirmation will govern.
2. The terms of the Transaction to which this Confirmation
relates are as follows:
AGENT: CIBC, New York Agency, has acted as
agent in confirming this Transaction.
GENERAL TERMS:
Trade Date: July 29, 1996
Effective Date: July 29, 1996
Termination Date: July 29, 2003, subject to
adjustment in accordance with the
Modified Following Business Day
Convention.
Selected Securities: 5,000,000 shares of common stock,
$.10 par value (U.S.$), of Micron
Technology, Inc. (New York Stock
Exchange (("Exchange")) ticker
symbol "MU") on the Trade Date,
together with any subsequent
distributions in the form of Hedge
Securities, all as adjusted for
stock splits, reverse splits, stock
dividends and any other
distributions in the form of
Selected Securities.
Settlement Currency: United States Dollars ("U.S.$")
Valuation Dates: The record date for any Actual
Dividend declared on any of the
Selected Securities.
Upfront Payment: CIBC shall pay to Counterparty an
amount equal to U.S.$138,993.00 on
the Effective Date.
Net Payments: Applicable. If the aggregate
amount payable by one party exceeds
the aggregate amount payable by the
other party, the party owing the
larger aggregate amount will be
obligated to pay to the other party
the excess of the larger aggregate
amount over the smaller aggregate
amount.
Counterparty Floating Amount:
Calculation Period: The initial calculation period
shall extend from and including,
the Trade Date to, but excluding
the first Valuation Date, and
thereafter from and including, the
Valuation Date to, but excluding
the next following Valuation Date,
except that the final calculation
period shall extend to, and
include, the Termination Date.
Payment Date: Three (3) Exchange Business Days
following the date that the issuer
of any of the Selected Securities
pays an Actual Dividend, subject to
adjustment in accordance with the
Modified Following Business Day
Convention.
Floating Payment Amount: Counterparty will pay to CIBC on
each Payment Date the Actual
Dividend; provided, however, if
during any calculation period, the
Actual Dividend is greater than
U.S.$2.5 million, then the Floating
Payment Amount shall be zero.
CIBC Fixed Amount:
Calculation Period: The initial calculation period
shall extend from and including,
the Trade Date to, but excluding
the first Valuation Date, and
thereafter from and including, the
Valuation Date to, but excluding
the next following Valuation Date,
except that the final calculation
period shall extend to, and
include, the Termination Date.
Payment Date: Three (3) Exchange Business Days
following the date that the issuer
of any of the Selected Securities
pays an Actual Dividend, subject to
adjustment in accordance with the
Modified Following Business Day
Convention.
Fixed Payment Amount: CIBC will pay to Counterparty on
each Payment Date an amount equal
to U.S.$250,000.00.
Calculation Agent: CIBC
DEFINITIONS:
For purposes of this Transaction, the following terms shall have
the indicated meanings:
"Actual Dividend" means an amount equal to the total cash
dividend to which the holders of record of the Selected
Securities as of a date during the term of this Transaction
are entitled, net of any withholding tax, stamp tax, or any
other tax, duties, fees or commissions payable in respect of
such dividend payment, and does not include any payment
arising out of Extraordinary Consideration.
"Extraordinary Consideration" means (i) any Actual Dividend
greater than U.S.$2.5 million or (ii) any non-cash
distribution or consideration in respect of Selected
Securities (other than Hedge Securities or other than
securities received in connection with: 1) stock splits,
2) reverse splits, 3) stock dividends and 4) other
distributions in the form of Selected Securities) which may
be the result of, but is not limited to: (a) conversion or
reclassification of Selected Securities by issuance or
exchange of other securities or any sale of the securities
or assets or a portion thereof of the issuer of any Selected
Securities (b) any consolidation or merger of the issuer of
any of the Selected Securities, (c) any statutory exchange
of Selected Securities with another corporation, (d) any
liquidation, dissolution or winding up of the issuer of any
of the Selected Securities or (e) any tender or exchange
offer for Selected Securities. In the event that there is a
distribution of Hedge Securities, the Transaction shall be
adjusted such that the Hedge Securities (to which a holder
of record of the Selected Securities as of a date during the
term of this transaction is entitled) will be added to the
composition of the Selected Securities.
"Float" means the aggregate market value of the voting stock
held by nonaffiliates of the issuer of the relevant Selected
Securities as reported in the most recent Form 10-K filed by
the issuer of the relevant Selected Securities divided by
the closing price of such Selected Securities as reported on
the primary exchange on the date on which such market value
was determined. However, if the relevant Selected
Securities are the result of a distribution of Hedge
Securities due to the issuer of the Hedge Securities
acquiring the issuer of any of the Selected Securities,
prior to the first release of Form 10-K for the combined
entity, the Float shall be the following: the most recent
float, as defined above, of those Selected Securities issued
by the acquired company adjusted for the acquisition share
exchange ratio plus the most recent float, as defined above,
of those Selected Securities issued by the acquiring company
prior to the acquisition announcement date.
"Hedge Securities" means any non-cash distribution or
consideration in respect of Selected Securities in the form
of common stock (other than securities received in
connection with stock splits, reverse splits, stock
dividends and other distributions in the form of securities
of which Selected Securities are comprised) as to which
(1) the Short Interest to Float ratio is less than 15% at
the time of such distribution and (2) a number of shares
equal to the number of shares of such securities that was
received by the Counterparty and attributable to the
Selected Securities in such distribution can reasonably be
expected to be available at a commercially reasonable rate
in the securities lending market, until the Termination
Date.
"Short Interest" means that number which is reported by the
primary exchange for the relevant Selected Securities as the
short interest for such securities. However, if the
relevant Selected Securities are the result of a
distribution of Hedge Securities due to the issuer of the
Hedge Securities acquiring the issuer of any of the Selected
Securities and there has not been a release of short
interest for the combined entity by the primary exchange,
the Short Interest shall be the following: the most recent
short interest as reported by the primary exchange for those
Selected Securities issued by the acquired company, adjusted
for the acquisition share exchange ratio, plus the most
recent short interest as reported by the primary exchange
for those Selected Securities issued by the acquiring
company, prior to the acquisition announcement date.
3. ACCOUNT DETAILS:
Payments to CIBC: Chemical Bank, New York
For: Canadian Imperial Bank of
Commerce
Account No. 544 708 234
Payments to Counterparty: First Security Bank of Idaho,
N.A. Boise, Id
ABA No.: 124100080
Account No.: 003-00049-64
4. OTHER PROVISIONS:
Additional Termination
Events: In addition to the Termination
Events in Section 5(b) of the
Agreement, the following events
shall constitute Additional
Termination Events (upon the
occurrence of which, this
Transaction shall become an
Affected Transaction and the date
of such occurrence shall be deemed
the Early Termination Date):
1) None of the Selected Securities
are listed on any United States
national securities exchange or
United States national securities
system subject to last sale
reporting.
2) The issuer (or, as the case may
be, issuers) of the Selected
Securities has disclosed impending
events which, in the opinion of
nationally-recognized United States
counsel of CIBC acting reasonably,
a copy of which opinion shall have
been delivered to Counterparty,
will likely result in the Selected
Securities (or the securities
distributed as a result of such
events) ceasing to be listed on any
United States national securities
exchange or United States national
securities system subject to last
sale reporting; provided that the
Additional Termination Event will
not arise more than thirty (30)
days before the expected
termination of the listing.
3) All of the Selected Securities
are permanently suspended from
trading (within the meaning of the
Securities Exchange Act of 1934 and
the rules and regulations
thereunder) on each such securities
exchange and securities system on
which the Selected Securities are
then listed.
4) Passage of thirty (30) days
after CIBC or Counterparty serves a
written notice, signed by an
authorized officer of the
respective entity, to the other
party attesting and substantiating
that the Transaction is causing it
significant economic hardship,
including a frustration of the
commercial expectations of the
parties at the time the Transaction
was entered into; provided however,
that a mere change in the amount,
or the elimination thereof, of the
Actual Dividend shall not qualify
as a "significant economic
hardship."
Termination Settlement
Provision: If an Early Termination Date
occurs, notwithstanding Section
2(e) and Section 6(e) of the
Agreement and the definition of
Settlement Amount in Section 14 of
the Agreement, Settlement Amount
shall be deemed to be the net
payment calculated on the
immediately preceding Valuation
Date, if such amount is still due
and owing to either party,
otherwise such amount will be zero.
Adjustment of Selected
Securities: If any, but not all, of the
securities which comprise Selected
Securities are the subject of an
event described in paragraphs 1, 2,
or 3 of Additional Termination
Events ("Termination Securities"),
then the Selected Securities will
no longer include such Termination
Securities.
Transfer: Neither the Transaction nor any
interest or obligation in or under
the Transaction may be transferred
(whether by way of security or
otherwise) by either party without
the prior written consent of the
other party which consent shall not
be unreasonably withheld. Any
purported transfer that is not in
compliance with this provision will
be void.
5. OFFICES:
(a) The Office of CIBC for the Transaction is 161 Bay
Street, 5th Fl. Toronto, Canada M5J 2S8.
(b) The Office of Counterparty for the Transaction is
J.R. Simplot Company
999 Main Street, Suite 1300
Boise, Idaho 83702
Attn.: Treasurer
6. BROKER/ARRANGER: None
7. This Confirmation may be executed in one or more
counterparts, either in original or facsimile form, each of
which shall constitute an original and all of which together
shall constitute one and the same agreement. When executed
by the parties through facsimile transmission, this
Confirmation shall constitute the original agreement between
the parties and the parties hereby adopt the signatures
printed by the receiving facsimile machine as the original
signatures of the parties.
8. The parties hereto agree that CIBC has not acted as
Counterparty's advisor with respect to the desirability or
appropriateness of entering into the Transaction confirmed
hereby or with respect to Counterparty's risk management
needs generally. This pertains not only to the financial
and market risk management risks and consequences of the
confirmed or any proposed Transaction, but also to any
legal, regulatory, tax, accounting and credit issues
generated by such transactions, which Counterparty has
evaluated for itself and in reliance on its own professional
advisors.
_________________________________________________________________
Entering into a derivative transaction involves certain risks.
An identification of the principal risks is provided in the CIBC
Wood Gundy Financial Products Risk Disclosure Statement, which
has been delivered to you. If you have not received a copy,
please let us know and one will be provided to you. You should
always consider those risks in determining whether to enter into
derivatives transactions.
Except as if expressly agreed to by you or us in writing, neither
of us has acted as advisor to the other with respect to the
desirability or appropriateness of entering into the Transaction
confirmed hereby or with respect to the other party's risk
management needs generally. This pertains not only to the
financial and market risk management risks and consequences of
the confirmed or any proposed Transaction, but also to any legal,
regulatory, tax, accounting and credit issues generated by such
transactions, which each party must evaluate for itself and in
reliance on its own professional advisors.
_________________________________________________________________
Please confirm that the foregoing correctly sets forth the terms
of our agreement by executing the copy of this Confirmation
enclosed for that purpose and returning it to us or by sending to
us a letter or telex substantially similar to this letter, which
letter or telex sets forth the material terms of the Transaction
to which this Confirmation relates and indicates your agreement
to those terms.
Yours Sincerely,
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ Gina S. Ghent
Name: Gina S. Ghent
Title: Associate
Director, Financial Products
Confirmed as of the date first written:
J.R. SIMPLOT COMPANY
By: /s/ James D. Crawford
Name: James D. Crawford
Title: Controller
<PAGE>
Irrevocable Proxy
(J.R. Simplot Company)
J.R. Simplot Company, a Nevada corporation (the "Company"),
hereby irrevocably appoints such persons as may be serving from
time to time as the Chairman of the Board of Micron Technology,
Inc., a Delaware corporation ("Micron"), the Chief Financial
Officer of Micron, and each of them alone, as its true and lawful
proxy and attorney-in-fact, with full power of substitution and
resubstitution (i) to represent the Company at the annual
meetings of the stockholders of Micron to be held in 1996, 1997,
1998, 1999, 2000, 2001 and 2002, and at any adjournment thereof,
and to vote, in its discretion (including cumulatively, if
required) 5,000,000 shares (the "Shares") of common stock, $.10
par value, of Micron held by the Company and evidenced by
certificate numbers MC38051, MC38054, MC38057, MC38061, MC38063,
MC38067 and MC51861 or any certificates issued to the Company as
a replacement therefor; (ii) to represent the Company at any
special meeting of stockholders of Micron, and at any adjournment
thereof, and to vote (including cumulatively, if required) all
the Shares in its discretion; and (iii) to vote all the Shares in
its discretion upon such other matter or matters which may
properly come before the stockholders of Micron by written
consent or otherwise.
This irrevocable proxy may be exercised at any time after
the date hereof and prior to July 29, 2003, except that such
proxy shall expire immediately upon the termination for any
reason of the dividend swap transaction contemplated by the
letter agreement between the Company and Canadian Imperial Bank
of Commerce dated July 29, 1996.
Dated: July 29, 1996 J.R. SIMPLOT COMPANY
By: /s/ Ronald N. Graves
Name: Ronald N. Graves
Title: Secretary
