<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 6
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)
June 28, 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. 6 to Schedule 13D (the "Schedule 13D") is
being filed on behalf of J.R. Simplot Company (the "Company") and
Simplot Canada Limited ("SCL") 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 Novem-
ber 29, 1995 by the Company, SCL, 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. 6 to Schedule 13D does not amend any information with respect
to any of the Reporting Persons other than the Company and SCL.
Item 7. Material to be Filed as Exhibits, is hereby amended by
adding thereto the following exhibits. All of such exhibits had
been described in Amendment No. 5 to Schedule 13D filed on June
28, 1996.
Exhibit Number Exhibit
D. Agreement between Simplot Canada Limited and
Canadian Imperial Bank of Commerce dated June 28,
1996 (Forward).
E. Loan Agreement between Simplot Canada Limited and
Canadian Imperial Bank of Commerce dated June 28,
1996.
F. Pledge given by Simplot Canada Limited in favor
of Canadian Imperial Bank of Commerce dated
June 28, 1996.
G. Agreement between J.R Simplot Company and Canadian
Imperial Bank of Commerce dated June 28, 1996.
H. Irrevocable Proxy executed by J.R. Simplot Company
in favor of Canadian Imperial Bank of Commerce
dated June 28, 1996.
I. Irrevocable Proxy executed by Canadian Imperial
Bank of Commerce in favor of the Chairman of the
Board and the Chief Financial Officer of Micron
Technology, Inc. dated June 28, 1996.<PAGE>
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, each of the undersigned certifies that the information
set forth in this statement is true, complete and correct.
Dated: July 9, 1996 Dated: July 9, 1996
Simplot Canada Limited J. R. Simplot Company
By: /s/ RONALD N. GRAVES__ By: /s/ RONALD N. GRAVES__
Title: Secretary_____________ Title: Secretary_____________
<PAGE>
Exhibit D
Forward
Date: July 1, 1996
To: Simplot Canada Limited 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 0125
This Confirmation amends and supersedes all previous Confirma-
tions regarding this Transaction
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 Simplot Canada Limited
("Counterparty") on the Trade Date specified below (the "Transac-
tion"). 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 Defini-
tions 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:
GENERAL TERMS:
Selected Securities: 2,600,000 shares of common
stock, $.10 par value (U.S.$),
of Micron Technology, Inc. (New
York Stock Exchange (("Ex-
change")) 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 distri-
butions in the form of Selected
Securities.
Trade Date: June 28, 1996
Effective Date: June 28, 1996
Termination Date: June 27, 2003, subject to ad-
justment in accordance with the
Modified Following Business Day
Convention
Valuation Amount: CAD 89,515,007.40
CIBC Payments:
CIBC Payment Date: Termination Date.
CIBC Forward Payment
Amount: CIBC will pay to Counterparty 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 Physi-
cal Delivery Date the Selected
Securities.
Additional Payment by
Counterparty: If, during the term of this
Transaction, the owner of the
Selected Securities becomes en-
titled to receive Extraordinary
Consideration (as defined below)
then Counterparty shall pay
and/or deliver to CIBC on the
Extraordinary Consideration Pay-
ment Date (as defined below) the
Extraordinary Consideration pur-
suant 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 USD 1.3 million or (ii) any non-cash distribution
or consideration in respect of Selected Securities (other than
Hedge Securities or other than securities received in connec-
tion 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 composi-
tion 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 1.52329074242.
"Hedge Securities" means any non-cash distribution or consid-
eration 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 Collat-
eral; (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; (iii) CIBC shall not
be entitled to bring any action or to enforce any rights
against the Counterparty with respect to payment or perfor-
mance 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: Please Advise.
Account for Payments:
For the Account Of:
Account No.:
Attention:
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 Value (1.062)n of
the Selected Securities]
where:
n = number of years (including
fractions) between the Early
Termination Date and the Termi-
nation Date, and where
Factor = zero, if n is less than
5, and equals 1% * Valuation
Amount * (n-5), if n is equal to
or greater than 5.
The Termination Value of the
securities included among the
Selected Securities is deter-
mined by valuing each of the
Selected Securities at its clos-
ing price as quoted by the pri-
mary exchange for such security
on the Early Termination Date
and aggregating such prices over
the total number of such securi-
ties included in the Selected
Securities.
If Settlement Amount is greater
than zero, CIBC shall pay such
amount to Counterparty. If Set-
tlement Amount is less than ze-
ro, Counterparty shall pay the
absolute value of the Settlement
Amount to CIBC.
Additional Termination
Events: In addition to the Termination
Events in Section 5(b) of the
Agreement, the following events
shall constitute Additional Ter-
mination Events (upon the occur-
rence of which, this Transaction
shall become an Affected Trans-
action and the date of such oc-
currence shall be deemed the
Early Termination Date):
1) None of the Selected Securi-
ties are listed on any United
States national securities ex-
change 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 impend-
ing events which, in the opinion
of nationally-recognized United
States counsel of CIBC acting
reasonably, a copy of which
opinion shall have been deliv-
ered to Counterparty, should
result in the Selected Securi-
ties (or the securities distrib-
uted as a result of such events)
ceasing to be listed on any
United States national securi-
ties exchange or United States
national securities system sub-
ject to last sale reporting;
provided that the Additional
Termination Event will not arise
more than thirty (30) days be-
fore the expected termination of
the listing.
3) All of the Selected Securi-
ties 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 regu-
lations thereunder) on each such
securities exchange and securi-
ties system on which the Select-
ed Securities are then listed.
4) (a) The Short Interest to
Float Ratio (i) for the securi-
ties 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 un-
available in the securities
lending market at a commercially
reasonable rate until the Termi-
nation Date, where:
"Short Interest" means that num-
ber which is reported by the
primary exchange for the rele-
vant Selected Securities as the
short interest for such securi-
ties; and "Float" means the ag-
gregate market value of the vot-
ing 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 Commis-
sion of the United States of
America) of the relevant Select-
ed 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 de-
termined.
However, if the relevant Select-
ed Securities are the result of
a distribution of Hedge Securi-
ties 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 In-
terest shall be the following:
the most recent short interest
as reported by the primary ex-
change for those Selected Secu-
rities issued by the acquired
company, adjusted for the acqui-
sition share exchange ratio,
plus the most recent short in-
terest as reported by the prima-
ry exchange for those Selected
Securities issued by the acquir-
ing company, prior to the acqui-
sition announcement date. For
such relevant Selected Securi-
ties, 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 ex-
change ratio plus the most re-
cent 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 ju-
risdiction in the United States
of America or Canada that af-
fects the generally accepted
interpretation of such law,
which in the reasonable judgment
of Counterparty will have a ma-
terial 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 of-
ficer'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 occur-
rence of (i) an Event of Default
under Section 5(a) and the Se-
lected Securities are not
pledged to CIBC under the
Pledge, (ii) an Additional Ter-
mination Event or a Termination
Event, or (iii) Counterparty
Termination Event, then the fol-
lowing 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 defini-
tion 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
(1.062)n
where:
n = number of years (including
fractions) between the Early
Termination Date and the Termi-
nation Date;
and where
Factor = zero, if n is less than
5, and equals 1% * Valuation
Amount * (n-5), if n is equal to
or greater than 5; and
C.Counterparty shall deliver to
CIBC the Selected Securities.
Partial Termination: If any, but not all, of the se-
curities which comprise Selected
Securities are the subject of an
event described in paragraphs 1,
2, 3 or 4 of Additional Termina-
tion Events ("Termination Secu-
rities"), then (i) the Selected
Securities will no longer in-
clude such Termination Securi-
ties and (ii) the value of the
Termination Securities will be
deemed to be zero and
Counterparty shall transfer own-
ership 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 transac-
tion 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 Transac-
tion 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 ad-
versely affect Counterparty's
ability to perform its obliga-
tions under the Pledge or this
Transaction. To the best knowl-
edge of Counterparty, but with-
out any review, investigation or
participation by Counterparty in
preparation of Micron Technolo-
gy, 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 effec-
tive 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 Unit-
ed States Securities and Ex-
change Commission ("SEC")) of
any issuer of Selected Securi-
ties (or of any other securities
issued on account of Selected
Securities), CIBC (i) shall ac-
quire Selected Securities (or
such other securities) in con-
nection 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 ap-
plicable securities laws; (ii)
shall sell, transfer, pledge, or
otherwise dispose of Selected
Securities (or such other secu-
rities) only in compliance with
all applicable securities laws;
and (iii) shall sell common
stock of any issuer of Selected
Securities (or such other secu-
rities) 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 here-
of 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 issu-
er 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 Affili-
ate, including the effective
date of such cessation.
Pledge: As continuing collateral securi-
ty for the payment and perfor-
mance of the obligations of
Counterparty under this
Transaction, Counterparty pledg-
es and grants a first charge and
security interest in the Collat-
eral to CIBC.
Credit Support
Documentation: Pledge between Counterparty and
CIBC dated June 28, 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 unreason-
ably withheld. Any purported
transfer that is not in compli-
ance with this provision will be
void.
Affiliates: For purposes of this Transac-
tion, Affiliates in Part I(a) of
the Schedule to the Master
Agreement shall mean J.R.
Simplot Company.
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
Simplot Canada Limited
1400 17th East Street
Brandon, Manitoba
Canada R7A 7C4
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 consti-
tute 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.
We believe any information provided to you by us in connection
with the confirmed or any proposed Transaction to be accurate and
reliable, but we can not and do not assume any liability for any
erroneous information which we might provide to you, other than
information set out in this Confirmation.
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:
SIMPLOT CANADA LIMITED
By: /s/ L. E. Costello
Name: L. E. Costello
Title: Vice President & CEO
<PAGE>
Exhibit E
THIS LOAN AGREEMENT dated June 28, 1996
B E T W E E N:
SIMPLOT CANADA LIMITED
(the "Borrower")
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
(the "Bank")
WHEREAS the Bank has agreed to establish a term
credit in favour 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 1
INTERPRETATION
1.1 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 Ontario;
(4) "Canadian Dollars" and "$" mean the lawful currency
of Canada, unless otherwise specified;
(5) "Collateral" means the Selected Securities together
with any collateral that may from time to time be substituted
therefor;
(6) "Consents" means any consent, approval, authoriza-
tion, permit, licence, franchise, privilege, grant, exemption and
other similar concession of, by or from any Official Body and
"Consent" means any one of the Consents;
(7) "Event of Default" means an event specified in
Section 7 hereof;
(8) "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 Securi-
ties, divided by (b) the closing price of such Selected Securi
ties 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 an-
nouncement date;
(9) "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 connec-
tion 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;
(10) "Liabilities" means all present and future indebted-
ness, 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 Agree-
ment;
(11) "Loan" has the meaning given to it in Section 2.1;
(12) "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 contemporane-
ously herewith, and the confirmation of trade dated contemporane-
ously herewith;
(13) "Maturity Date" means June 27, 2003;
(14) "Note" means a note of the Borrower in favour of the
Bank as described in Section 2.3(1) hereof and in substantially
the form annexed hereto as Schedule A;
(15) "Obligations" means all present and future indebted-
ness, 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 Agree-
ment;
(16) "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;
(17) "Party" means a party to this Agreement and any
reference to a Party includes its successors and permitted
assigns; "Parties" means every Party;
(18) "Person" or "person" includes an individual, part-
nership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture or
other entity or any Official Body;
(19) "Pledge" means the agreement referred to in Section
4.1 hereof, and any amendments, restatements, substitutions or
consolidations thereof;
(20) "Prepayment Event" has the meaning given to it in
Schedule C hereto;
(21) "Selected Securities" means 2,600,000 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 (i) stock splits, reverse splits,
stock dividends and any other distributions in the form of
Selected Securities;
(22) "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 acquir
ing 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 ex-
change 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 ex-
change for those Selected Securities issued by the acquiring
company prior to the acquisition announcement date;
(23) "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
(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 9.11, 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.
1.2 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.
1.3 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.
1.4 Number and Gender
Unless the context requires otherwise, words import-
ing the singular number include the plural and vice versa. Any
words importing gender includes all genders.
1.5 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.
1.6 Currency and Payment Obligations
Unless otherwise specified, all dollar amounts
referred to in this Agreement are stated in Canadian Dollars.
All payments due on a particular day must be received and avail-
able 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.
1.7 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.
1.8 Time
Unless otherwise expressly stated, any reference
herein to a time will mean Toronto, Ontario local time.
1.9 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 2
THE CREDIT
2.1 Establishment of Credit
Upon the terms and conditions contained herein the
Bank hereby establishes a single-draw non-revolving term loan in
favour of the Borrower in the principal amount of $80,881,000.95
(the "Loan").
2.2 Utilization of Proceeds
The Loan proceeds will be used by the Borrower for
its general corporate business purposes.
2.3 Note
(1) The Loan will be evidenced by a Note in favour of
the Bank. The Note will be substantially in the form of the note
set out in Schedule A hereto.
(2) Subject to Section 9.5, 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.
2.4 Interest Rate
The outstanding amount of the Loan will bear inter-
est, with interest on overdue interest, as well after as before
maturity, default and judgment at 7.75% 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 com-
pounded annually on the anniversary date hereof.
2.5 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.
2.6 Maximum Rate of Return
Notwithstanding any provision to the contrary
contained in this Agreement, in no event will the aggregate
"interest" (as defined in section 347 of the Criminal Code,
Revised Statutes of Canada, 1985, C-46) payable under this Agree-
ment exceed the effective annual rate of interest on the "credit
advanced" (as defined in that section) under this Agreement
lawfully permitted under that section and, if any payment,
collection or demand pursuant to this Agreement in respect of
"interest" (as defined in that section) is determined to be
contrary to the provisions of that section, such payment, collec-
tion or demand will be deemed to have been made by mutual mistake
of the Borrower and the Bank and the amount of such payment or
collection will be refunded to the Borrower; for purposes of this
Agreement, the effective annual rate of interest will be deter-
mined in accordance with generally accepted actuarial practices
and principles over the term of the Credit on the basis of annual
compounding of the lawfully permitted rate of interest and, in
the event of dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Bank will be conclusive
for the purposes of such determination, in the absence of evi-
dence to the contrary.
ARTICLE 3
REPAYMENT AND PREPAYMENT
3.1 Maturity Date
On the Maturity Date the Borrower will repay the
Loan and will pay all interest that has accrued on the Loan;
provided, however, that notwithstanding any other term of this
Agreement, the Loan is Without Recourse.
3.2 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).
3.3 Prepayment
Subject to (i) the Bank's rights to demand repayment
of the Loan and all other amounts outstanding hereunder if an
Event of Default occurs, and (ii) the obligations set out in
Section 3.2, the Borrower may not prepay the Loan or any interest
thereon.
3.4 Breakage Costs
If the Bank demands repayment of the Loan because of
the occurrence of an Event of Default, the Borrower will forth-
with 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 4
SECURITY
4.1 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. Notwith-
standing any other term of this Agreement, the Loan and the Note
are Without Recourse.
4.2 Registration of Pledge
The Bank will, at its expense, register, file or
record the Pledge in all offices where in the Bank's sole discre-
tion the Bank determines such registration, filing, or recording
is necessary or of advantage to the creation, perfection and
preserving of the security interest created thereby.
4.3 Maintenance of Perfection
The Borrower will not change its name or change the
province in which its chief executive office is located unless it
has provided the Bank with thirty (30) days' prior written notice
of such change.
4.4 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 Liabili-
ties have been satisfied in full, the Bank has no obligation to
grant any kind of release of the security created by the Pledge.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 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:
(a) Good Standing: It is a corporation duly incorpo-
rated and organized, is validly subsisting under the laws of
Canada, is in good standing, has more than one place of business
and its chief executive office is in Brandon, Manitoba.
(b) Ownership: The Borrower is a directly wholly owned
subsidiary of J. R. Simplot Company.
(c) Corporate Power: It has the corporate power to:
(i) own the Selected Securities; and
(ii) enter into and perform this Agreement, the
Note and the Pledge.
(d) Corporate Authorization: It has taken all neces-
sary corporate action to authorize the execution, delivery and
performance of this Agreement, the Note and the Pledge to which
it is a party.
(e) 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, provincial or state securities
laws of the United States of America or Canada.
(f) Due Execution: It has duly executed and delivered
this Agreement, the Note and the Pledge.
(g) 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.
(h) No Material Litigation: To the best of its knowl-
edge, 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, investi-
gation 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.
(i) 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, materi-
ally 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 partici-
pation 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.
(j) No Default: To the best of its knowledge, neither
the execution nor the delivery by it of this Agreement or he
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.
(k) Financial Information: To the best of its knowl-
edge, any financial information regarding the Borrower that has
been delivered by it to the Bank is true and accurate in all
material respects.
(l) Title: The Borrower has good and marketable title
to t1he Collateral, subject only to the Pledge.
ARTICLE 6
COVENANTS
6.1 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 7
EVENTS OF DEFAULT
7.1 Events of Default
The occurrence of any one or more of the following
events will constitute an Event of Default under this Agreement:
(a) 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;
(b) 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;
(c) Representations and Warranties: If any representa-
tion, warranty or statement which is made in this Agreement or
the Pledge is untrue or incorrect in any material respect when
made;
(d) 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;
(e) 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 termi-
nates or ceases to be legally valid, binding and enforceable
against the Borrower or if the security interest created by the
Pledge ceases to be perfected in favour of the Bank other than by
reason of the Bank's action or inaction;
(f) 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 obliga-
tions thereunder, in any material respect, are withdrawn or cease
to be in full force and effect;
(g) Receivership: If a creditor (or creditors) of the
Borrower appoints or causes to be appointed a receiver or a
receiver-manager over a material portion of the assets of the
Borrower (such materiality test to be made against the assets of
the Borrower at the time of the appointment);
(h) Insolvency, etc.: If the Borrower passes a resolu-
tion or institutes proceedings for its winding-up, liquidation,
or dissolution or files an assignment in bankruptcy or consents
to the filing of any petition with respect to its winding-up,
liquidation, dissolution or bankruptcy, or consents to the making
of a receiving order against it, or institutes or is party to any
proceedings seeking reorganization, readjustment, arrangements
with creditors, composition or similar relief under any Canadian
or other applicable law or consents to the filing of any such
petition or to the appointment of a receiver, liquidator, trustee
or similar officer of itself or its assets or makes an assignment
for the benefit of creditors or is unable, or admits in writing
its inability to pay its debts as they become due or otherwise
acknowledges its insolvency or seeks protection under any insol-
vency or bankruptcy legislation or voluntarily suspends the
transaction of its usual business, or any action is taken by the
Borrower in furtherance of any of the aforesaid purposes or if
the Borrower takes any action pursuant to the Winding-Up Act
(Canada);
(i) Court Proceedings: If a court makes a ruling,
decree, order (collectively, in this section, an "Order") or
issues a judgment for the winding-up, liquidation or dissolution
of the Borrower or if a court issues an Order or judgment for the
reorganization, readjustment, arrangement, composition or similar
relief for the Borrower under any Canadian or other applicable
law, or the appointment of any receiver, interim receiver,
liquidator, trustee or similar officer of the Borrower and if, in
any such case, such judgment or Order is not appealed in good
faith by appropriate action within ten (10) days after the
entering of such judgment or Order and the appeal is not dealt
with by the Borrower in good faith with due diligence; or
(j) Reorganization: If any application is made with
respect to the Borrower under the Companies' Creditors Arrange-
ment Act (Canada), the Bankruptcy and Insolvency Act (Canada) or
similar legislation seeking reorganization, readjustment, ar-
rangement, composition or similar relief for the Borrower under
any Canadian or other applicable law, or if a proceeding is
instituted for the winding up, liquidation or dissolution of the
Borrower or seeking an order adjudging the Borrower, bankrupt or
seeking an order for the appointment of any receiver, liquidator,
trustee or similar officer of the Borrower or a petition in
bankruptcy is issued in respect of the Borrower and if, in any
such case, such application or proceeding is not defended in good
faith by appropriate action within fifteen (15) days after the
entering of such application, proceeding or petition and such
application, proceeding or petition is not dismissed, stayed or
withdrawn, provided that the Borrower proceeds in good faith and
with due diligence.
All periods contained in this Section which allow
the Borrower an opportunity to cure an Event of Default will run
concurrently with any requirements for notice under any Canadian
or other applicable law, including without limitation, the
Bankruptcy and Insolvency Act (Canada).
7.2 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.
ARTICLE 8
CONDITIONS PRECEDENT
8.1 General
(1) The obligation of the Bank to establish the Loan and
to permit the Borrower to draw the Loan is subject to the
fulfilment of the following conditions precedent to the satisfac-
tion 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:
(a) 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 Select-
ed Securities) and such Pledge will have been registered, record-
ed and filed in all offices in which, in the opinion of the Bank
and its counsel, registration, recording and filing is necessary
or of advantage to preserve, protect or perfect the enforceabili-
ty and the priority of the security created thereby.
(b) Note: The Borrower will have delivered the Note to
the Bank.
(c) Corporate Proceedings: The Borrower will have
delivered to the Bank all records of all corporate proceedings in
connection herewith, including without limitation, the following:
(i) 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
(ii) an incumbency Certificate.
(d) 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 inter-
est in the Collateral is perfected.
ARTICLE 9
MISCELLANEOUS
9.1 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) 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:
(i) if to the Bank, to:
Mr. Alexander Bakal
Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
5th floor
New York, New York 10017
Fax: (212) 856-6526
Phone: (212) 885-4349
and with a copy to:
Ms. Linda Wallace
Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
6th floor
New York, New York 10017
Fax: (212) 856-6526
Phone: (212) 856-6059
and with a copy to:
Mr. Doug Zinkiewich
Director, Cross-Border, North American
Corporate Banking
Canadian Imperial Bank of Commerce
Commerce Court West
7th floor
Toronto, Ontario
M5L 1A2
Fax: (416) 980-8384
Phone: (416) 980-5311
and with a copy to:
Ms. Gwen Chamberlain
Blake, Cassels & Graydon
Box 25, Commerce Court West
Toronto, Ontario
M5L 1A9
Fax: (416) 863-2653
Phone: (416) 863-2930
(ii) if to the Borrower, to:
Simplot Canada Limited
1400 17th Street East
Brandon, Manitoba
Canada R7A 7C4
Fax: (204) 728-0823
Phone: (204) 729-2900
Attn: Kenneth Watson,
Controller and Resident Manager
with a copy 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
and 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.
9.2 Time of Essence
Time will be of the essence of this Agreement in all
respects.
9.3 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 registra-
tion 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.
9.4 Interpretation
This Agreement will be governed by and construed in
accordance with the laws of the Province of Ontario and the laws
of Canada applicable in that Province and will be treated, in all
respects, as an Ontario contract.
9.5 Assignment
Without the prior written consent of the other
Party, no Party may assign, transfer, encumber, dispose of or
otherwise deal with any part of its respective rights or obliga-
tions under this Agreement, the Note or the Pledge.
9.6 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.
9.7 Expenses of Realization
The Borrower agrees that the Bank may charge on its
own behalf and pay to others reasonable sums for expenses in-
curred 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 such sums will be a first charge
on and limited to the proceeds of realization, disposition or
collection.
9.8 Rights and Waivers
The rights and remedies of the Bank under this
Agreement and the Pledge:
(a) are cumulative;
(b) may be exercised as often and in such order
as the Bank considers appropriate;
(c) are in addition to its rights and remedies
under the general law with respect to a loan that is Without
Recourse; and
(d) 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 defec-
tive 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 suspen-
sion or variation of any such right or remedy.
9.9 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.
9.10 Severability
Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction will, as to that jurisdic-
tion, 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.
9.11 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, howev-
er, that the Parties may not set off any Obligations against each
other prior to the occurrence of an Event of Default, a Prepay-
ment Event or the Maturity Date.
9.12 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 instru-
ment.
IN WITNESS WHEREOF the Parties have caused this
Agreement to be executed as of the date first written above.
SIMPLOT CANADA LIMITED
By:/s/ Lawrence E. Costello
Name: L.E. Costello
Title: Vice President & CFO
c/s
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By:/s/ Douglas Zinkiwich
Name: Douglas Zinkiwich
Title: Director, Cross Border Group
GC\15385\01504\LOAN.EX4
<PAGE>
SCHEDULE A
Term Note
June 28, 1996
FOR VALUE RECEIVED the undersigned unconditionally
promises to pay on the Maturity Date to Canadian Imperial Bank of
Commerce (the "Bank") or order at Commerce Court West, 199 Bay
Steet, Toronto, Ontario, M5L 1A2, 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 June 28, 1996 between the undersigned and
the Bank, the sum of Cdn.$80,881,000.95 with interest thereon in
accordance with the Loan Agreement both before and after maturi-
ty, 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.
SIMPLOT CANADA LIMITED
By: /s/ Lawrence E. Costello
Name: L.E. Costello
Title: Vice President & CFO
c/s
By:
Name:
Title<PAGE>
SCHEDULE B
Additional Termination Events
Each of the following events will constitute an Addi-
tional 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 termination 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 list-
ed;
4) (A) The Short Interest to Float Ratio for (i) the securi-
ties 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 Securi-
ties 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 Prepay-
ment 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.
GC\15385\01504\SCHEDULE.EX2
<PAGE>
Exhibit F
PLEDGE
THIS PLEDGE dated June 28, 1996.
B E T W E E N:
SIMPLOT CANADA LIMITED
(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 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:
1. 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 Ontario;
(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 Securi-
ties, divided by (b) the closing price of such Selected Securi-
ties 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 an-
nouncement 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 connec-
tion 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 indebted-
ness, 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 contemporane-
ously herewith, and the confirmation of trade dated contemporane-
ously herewith;
(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 2,600,000 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 ex-
change 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 ex-
change 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.
2. Security Interest
As general and continuing collateral security for the
due performance of and payment by the Pledgor of the Liabilities,
the Pledgor hereby delivers, assigns and transfers to the Bank,
as and by way of a charge, pledge and security interest, the
Collateral, to be held by the Bank upon and subject to the terms
and conditions hereof.
3. 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.
(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 dispose, encumber, deal with or
take any action with respect to the Collateral, except as provid-
ed herein.
4. 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 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).
5. Voting
(a) As used in this section, "voting rights" includes
the right to attend and vote at any meeting, and the right to
nominate and direct 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 Securi-
ties, including without limitation notices of meetings, resolu-
tions, financial disclosures, reports, interim reports and press
releases:
Simplot Canada Limited
c/o 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.
6. Substitution of Collateral
The Pledgor may substitute other collateral for the
Selected Securities, provided that the Pledgor obtain the prior
written consent of the Bank to such substitution, which consent
will not be withheld if in the opinion of the Bank, acting
reasonably, the substitute collateral will provide 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 consents 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 inter-
est over the replacement Collateral.
7. Registration and Discharge
(a) The Bank will register, file or record this Agree-
ment, in all offices where in its sole discretion the Bank
determines such registration, filing or recording is necessary or
of advantage to the creation, perfection and preserving of the
security interest created hereby.
(b) The Pledgor will not change its name or change the
province in which its chief executive office is located 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 it's 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 Termi-
nation 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.
8. 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:
(i) to the payment of the expenses of realization
and enforcement;
(ii) to the satisfaction of Liabilities (other than
such Liabilities satisfied in clause (i) above), in the order de-
termined by the Bank in its sole discretion; and
(iii) the balance, if any, shall be returned to the
Pledgor.
9. Enforcement
(a) The Bank shall be entitled to enforce the security
constituted hereby upon the earliest of (i) the Maturity Date (as
defined in the Loan Agreement), (ii) the occurrence of a Prepay-
ment Event, and (iii) the occurrence of an Event of Default.
(b) In connection with the enforcement of the security
constituted hereby, the Bank may:
(i) 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;
(ii) 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;
(iii) 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
(iv) sell the Collateral, or any of it, by public
or commercially reasonable private sale, upon such terms (in-
cluding as to time and method of payment and security or other-
wise) as the Bank may prescribe (subject to applicable law,
including without limitation compliance by the Bank with, or the
availability of an exemption from, any applicable securities laws
of the United States, any state or other jurisdiction of the
United States, or any province of Canada).
(c) The Bank may exercise any of its rights and remedies
in respect of the Collateral and its rights of set-off as de-
scribed in the Loan Agreement and the Master Agreement indepen-
dently 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.
10. 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.
11. 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 restric-
tions imposed by the United States Securities Act of 1933 and any
applicable securities laws of any province of Canada or 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.).
12. 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
(i) No Sale: sell, exchange, release, abandon, transfer
or otherwise dispose of the Collateral or the legal or beneficial
ownership thereof; or
(ii) 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 favour of
the Bank.
13. 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:
(1) if to the Bank, to:
Mr. Alexander Bakal
Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
5th floor
New York, New York 10017
Fax: (212) 856-6526
Phone: (212) 885-4349
and with a copy to:
Ms. Linda Wallace
Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
6th floor
New York, New York 10017
Fax: (212) 856-6526
Phone: (212) 856-6059
and with a copy to:
Mr. Doug Zinkiewich
Director, Cross-Border, North American
Corporate Banking
Canadian Imperial Bank of Commerce
Commerce Court West
7th floor
Toronto, Ontario
M5L 1A2
Fax: (416) 980-8384
Phone: (416) 980-5311
and with a copy to:
Ms. Gwen Chamberlain
Blake, Cassels & Graydon
Box 25, Commerce Court West
Toronto, Ontario
M5L 1A9
Fax: (416) 863-2653
Phone: (416) 863-2930
(2) if to the Pledgor, to:
Simplot Canada Limited
1400 17th Street East
Brandon, Manitoba
Canada R7A 7C4
Fax: (204) 728-0823
Phone: (204) 729-2900
Attn: Kenneth Watson,
Controller and Resident Manager
with a copy 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
and 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.
14. 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 accor-
dance with the terms of this Agreement, and will not at any time
encumber or dispose of the Collateral except as permitted by this
Agreement.
15. 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 constituted hereby pursuant to section 9(a) hereof,
a Vice-President of the Bank or a manager of a branch 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 substitu-
tion 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.
16. 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 limita-
tion 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 enforce-
ment, 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 remain-
ing 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 hereun-
der shall be construed and interpreted in accordance with the
laws of Canada and the Province of Ontario.
IN WITNESS WHEREOF the parties hereto have duly execut-
ed this Agreement as of the day and year first above written.
SIMPLOT CANADA LIMITED
By: /s/ Lawrence E. Costello
Title: Vice President & CFO
c/s
By:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:/s/ Douglas Zinkiewich
Title: Director, Cross Border Group
GC\15385\01504\SHARPLED.EX4
<PAGE>
Exhibit G
Dividend Swap
Date: July 1, 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 0126
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 "Transac-
tion"). 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 Defini-
tions 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 confirm-
ing this Transaction.
GENERAL TERMS:
Trade Date: June 28, 1996
Effective Date: June 28, 1996
Termination Date: June 27, 2003, subject to adjust-
ment in accordance with the Modi-
fied Following Business Day Conven-
tion.
Selected Securities: 2,600,000 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, to-
gether with any subsequent distri-
butions in the form of Hedge Secu-
rities, all as adjusted for stock
splits, reverse splits, stock divi-
dends 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.
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 in-
clude, 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 Divi-
dend; provided, however, if during
any calculation period, the Actual
Dividend is greater than USD 1.3
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 in-
clude, 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.$90,170.79.
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 USD 1.3 million or (ii) any non-cash distribution
or consideration in respect of Selected Securities (other than
Hedge Securities or other than securities received in connec-
tion 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 composi-
tion of the Selected Securities.
"Hedge Securities" means any non-cash distribution or consid-
eration 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.
3. ACCOUNT DETAILS:
Payments to CIBC: Chemical Bank, New York
For: Canadian Imperial Bank of
Commerce
Account No. 544 708 234
Payments to Counterparty: Please Advise.
Account for Payments:
For the Account of:
Account No.:
Attention:
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 Ter-
mination Events (upon the occur-
rence of which, this Transaction
shall become an Affected Trans-
action and the date of such oc-
currence 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 report-
ing.
2) The issuer (or, as the case may
be, issuers) of the Selected Secu-
rities 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 dis-
tributed 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 termina-
tion 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 thereun-
der) on each such securities ex-
change 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 Secu-
rities that result from a distribu-
tion 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 Se-
lected Securities at such particu-
lar 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 of the
relevant Selected Securities divid-
ed by the closing price of such
Selected Securities as reported on
the primary exchange on the date on
which such market value was deter-
mined.
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 follow-
ing: the most recent short interest
as reported by the primary exchange
for those Selected Securities is-
sued by the acquired company, ad-
justed for the acquisition share
exchange ratio, plus the most re-
cent 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.
5) The occurrence of the
Counterparty Termination Event
defined in the Forward Transaction,
dated June 28, 1996 between CIBC
and Simplot Canada Limited.
Termination Settlement
Provision: If an Early Termination Date oc-
curs, notwithstanding Section 2(e)
and Section 6(e) of the Agreement
and the definition of Settlement
Amount in Section 14 of the Agree-
ment, Settlement Amount shall be
deemed to be the net payment calcu-
lated on the immediately preceding
Valuation Date, if such amount is
still due and owing to either par-
ty, otherwise such amount will be
zero.
Affiliates: For purposes of this Transaction,
Affiliates in Part I(a) of the
Schedule to the Master Agreement
shall mean Simplot Canada Limited.
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
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 consti-
tute 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.
We believe any information provided to you by us in connection
with the confirmed or any proposed Transaction to be accurate and
reliable, but we can not and do not assume any liability for any
erroneous information which we might provide to you, other than
information set out in this Confirmation.
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
Confirmed as of the date first written:
J.R. SIMPLOT COMPANY
By: /s/ Thomas J. Sorge
Name: Thomas J. Sorge
Title: Treasurer
<PAGE>
Irrevocable Proxy
(J.R. Simplot Company)
J.R. Simplot Company, a Nevada corporation (the "Company"),
hereby irrevocably appoints Canadian Imperial Bank of Commerce
("CIBC") as its true and lawful proxy and attorney-in-fact with
full power of substitution and resubstitution (except that such
power of substitution and resubstitution is limited to such
persons as may be serving from time to time as the Chairman of
the Board and/or the Chief Financial Officer of Micron Technolo-
gy, Inc., a Delaware corporation ("Micron")) (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 (includ-
ing cumulatively, if required) 2,600,000 shares (the "Shares") of
common stock, $.10 par value, of Micron held by the Company;
(ii) to represent the Company at any special meeting of stock-
holders 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 June 27, 2003, except that such proxy
shall expire immediately upon the termination for any reason of
the dividend swap transaction contemplated by the letter agree-
ment between the Company and CIBC dated June 28, 1996 (the
"Confirmation").
Dated: June 28, 1996
J.R. SIMPLOT COMPANY
By:/s/ Ronald N. Graves
Name: Ronald N. Graves
Title:Secretary
<PAGE>
Irrevocable Proxy
(Canadian Imperial Bank of Commerce)
Canadian Imperial Bank of Commerce ("CIBC"), a Canadian
bank, hereby irrevocably appoints such persons to 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 his or her true and
lawful proxy and attorney-in-fact, with full power of substitu-
tion and resubstitution (i) to represent J.R. Simplot Company, a
Nevada corporation (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 his or her discretion (including cumulatively, if required)
2,600,000 shares (the "Shares") of common stock, $.10 par value,
of Micron held by the Company; (ii) to represent the Company at
any special meeting of stockholders of Micron, and at any ad-
journment thereof, and to vote (including cumulatively, if
required) all the Shares in his or her discretion; and (iii) to
vote all the Shares in his or her 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 June 27, 2003, except that such
proxy shall expire immediately upon the termination for any
reason of the dividend swap transaction contemplated by the
letter agreement by and between the Company and CIBC dated June
28, 1996.
Dated: June 28, 1996
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Eric Claus
Name:Eric Claus
Title:Managing Director
