FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended February 29, 1996
------------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission File Number: 1-10658
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Micron Technology, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 75-1618004
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8000 S. Federal Way, P.O. Box 6, Boise, Idaho 83707-0006
-------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (208) 368-4000
-----------------
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
The number of outstanding shares of the registrant's Common
Stock as of March 19, 1996 was 207,806,486.
<PAGE>
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
MICRON TECHNOLOGY, INC.
Consolidated Balance Sheets
(Dollars in millions, except for par value amount)
<TABLE>
<CAPTION>
(Unaudited)
February 29, August 31,
As of 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
ASSETS
Cash and equivalents $ 387.2 $ 128.1
Liquid investments 10.5 427.7
Receivables 419.1 455.4
Inventories 294.2 204.8
Prepaid expenses 17.3 9.1
Deferred income taxes 85.0 49.0
-------- --------
Total current assets 1,213.3 1,274.1
Product and process technology, net 46.9 41.6
Property, plant, and equipment, net 2,319.1 1,385.6
Other assets 62.6 73.6
-------- --------
Total assets $3,641.9 $2,774.9
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable and accrued expenses $ 497.8 $ 502.3
Short-term debt 200.0 --
Deferred income 20.2 16.4
Equipment purchase contracts 98.7 59.6
Current portion of long-term debt 33.1 26.5
-------- --------
Total current liabilities 849.8 604.8
Long-term debt 143.7 129.4
Deferred income taxes 131.0 93.3
Long-term product and process technology 47.9 3.6
Other liabilities 55.8 47.6
-------- --------
Total liabilities 1,228.2 878.7
-------- --------
Commitments and contingencies
Common stock, $0.10 par value, authorized
1.0 billion shares, issued and outstanding
207.7 million and 206.4 million shares,
respectively 20.8 20.6
Additional capital 412.8 391.5
Retained earnings 1,980.1 1,484.1
-------- --------
Total shareholders' equity 2,413.7 1,896.2
-------- --------
Total liabilities and shareholders' equity $3,641.9 $2,774.9
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
1
<PAGE>
MICRON TECHNOLOGY, INC.
Consolidated Statements of Operations
(Amounts in millions, except for per share data)
(Unaudited)
<TABLE>
<CAPTION>
February 29, August 31,
For the quarter ended 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Net sales $ 996.5 $ 628.5
-------- --------
Costs and expenses:
Cost of goods sold 552.1 267.5
Selling, general, and administrative 70.4 39.0
Research and development 48.0 28.9
Restructuring charge 29.9 --
-------- --------
Total costs and expenses 700.4 335.4
-------- --------
Operating income 296.1 293.1
Interest income, net 4.4 6.5
-------- --------
Income before income taxes 300.5 299.6
Income tax provision 112.3 116.1
-------- --------
Net income $ 188.2 $ 183.5
======== ========
Earnings per share:
Primary $0.87 $0.86
Fully diluted 0.87 0.86
Number of shares used in per share calculations:
Primary 215.2 212.8
Fully diluted 215.2 214.3
Cash dividend declared per share $0.05 $0.025
</TABLE>
See accompanying notes to consolidated financial statements.
2
<PAGE>
MICRON TECHNOLOGY, INC.
Consolidated Statements of Operations
(Amounts in millions, except for per share data)
(Unaudited)
<TABLE>
<CAPTION>
February 29, August 31,
For the six months ended 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Net sales $2,182.3 $1,163.5
-------- --------
Costs and expenses:
Cost of goods sold 1,090.2 492.0
Selling, general, and administrative 146.8 77.2
Research and development 94.6 55.9
Restructuring charge 29.9 --
-------- --------
Total costs and expenses 1,361.5 625.1
-------- --------
Operating income 820.8 538.4
Interest income, net 12.8 10.1
-------- --------
Income before income taxes 833.6 548.5
Income tax provision 316.9 205.7
-------- --------
Net income $ 516.7 $ 342.8
======== ========
Earnings per share:
Primary $2.39 $1.62
Fully diluted 2.39 1.61
Number of shares used in per share calculations:
Primary 216.4 211.6
Fully diluted 216.4 213.6
Cash dividend declared per share $0.10 $0.05
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE>
MICRON TECHNOLOGY, INC.
Consolidated Statements of Cash Flows
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
February 29, March 2,
For the six months ended 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
CASH FLOWS OF OPERATING ACTIVITIES
Net income $ 516.7 $ 342.8
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 163.5 86.6
Restructuring charge 29.9 --
Decrease (increase) in receivables 36.0 (30.4)
Increase in inventories (103.8) (41.7)
Increase in accounts payable and accrued
expenses 1.0 38.4
Increase in long-term product and
process rights 37.0 0.8
Other 13.2 15.8
-------- --------
Net cash provided by operating activities 693.5 412.3
-------- --------
CASH FLOWS OF INVESTING ACTIVITIES
Purchase of held to maturity securities (184.5) (420.6)
Proceeds from sales and maturities of
securities 603.4 281.8
Expenditures for property, plant, and equipment (950.1) (242.7)
Other (3.5) 9.2
-------- --------
Net cash used for investing activities (534.7) (372.3)
-------- --------
CASH FLOWS OF FINANCING ACTIVITIES
Payments on equipment purchase contracts (112.0) (71.1)
Proceeds from issuance of debt 233.1 59.7
Repayments of debt (14.0) (21.0)
Proceeds from issuance of common stock 13.3 8.6
Payment of dividends (20.7) (10.2)
Other 0.6 (2.9)
-------- --------
Net cash provided by (used for) financing
activities 100.3 (36.9)
-------- --------
Net increase in cash and equivalents 259.1 3.1
Cash and equivalents at beginning of period 128.1 78.4
-------- --------
Cash and equivalents at end of period $ 387.2 $ 81.5
======== ========
SUPPLEMENTAL DISCLOSURES
Income taxes paid, net $ (416.7) $ (214.8)
Interest paid (4.1) (4.5)
Noncash investing and financing activities:
Equipment acquisitions on contracts payable
and capital leases 151.2 62.8
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE>
Notes to Consolidated Financial Statements
(All tabular dollar amounts are stated in millions)
1. Unaudited Interim Financial Statements
In the opinion of management, the accompanying unaudited
consolidated financial statements contain all adjustments
necessary to present fairly the consolidated financial position
of Micron Technology, Inc., and subsidiaries (the "Company"), and
their consolidated results of operations and cash flows. The
Company recognized a $29.9 million pre-tax restructuring charge
resulting from the decisions by its approximately 80% owned
subsidiary, Micron Electronics, Inc., to discontinue sales of
ZEOS brand PC systems and to close the related PC manufacturing
operations in Minneapolis, Minnesota in the second quarter of
1996.
The Company reclassified held-to-maturity liquid investment
securities with an amortized cost of $151 million to available-
for-sale concurrent with the Company's adoption of the Federal
Accounting Standards Board's special report on implementing
Statement 115 "Accounting for Certain Investments in Debt and
Equity Securities".
This report on Form 10-Q for the quarter ended February 29,
1996, should be read in conjunction with the Company's Annual
Report to Shareholders and/or Form 10-K for the year ended August
31, 1995.
<TABLE>
<CAPTION>
2. Receivables February 29, August 31,
1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Trade receivables $ 388.9 $ 457.4
Income taxes recoverable 51.3 --
Other 14.1 14.6
Allowance for returns and discounts (26.7) (9.2)
Allowance for doubtful accounts (8.5) (7.4)
-------- --------
$ 419.1 $ 455.4
======== ========
</TABLE>
<TABLE>
<CAPTION>
3. Inventories February 29, August 31,
1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Finished goods $ 63.8 $ 17.8
Work in progress 135.9 99.1
Raw materials and supplies 94.5 87.9
-------- --------
$ 294.2 $ 204.8
======== ========
</TABLE>
<TABLE>
<CAPTION>
4. Product and process technology, net February 29, August 31,
1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Product and process technology, at cost $ 163.1 $ 152.3
Less accumulated amortization (116.2) (110.7)
-------- --------
$ 46.9 $ 41.6
======== ========
</TABLE>
<TABLE>
<CAPTION>
5. Property, plant, and equipment, net February 29, August 31,
1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Land $ 36.2 $ 34.4
Buildings 540.6 392.0
Machinery and equipment 1,798.8 1,338.4
Construction in progress 663.3 259.2
-------- --------
3,038.9 2,024.0
Less accumulated depreciation and
amortization (719.8) (638.4)
-------- --------
$2,319.1 $1,385.6
======== ========
</TABLE>
5
<PAGE>
Notes to Consolidated Financial Statements, continued
<TABLE>
<CAPTION>
6. Accounts payable and accrued expenses February 29, August 31,
1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Accounts payable $ 227.0 $ 193.2
Salaries, wages, and benefits 92.6 103.2
Product and process technology 101.6 91.5
Income taxes payable 10.9 72.7
Other 65.7 41.7
-------- --------
$ 497.8 $ 502.3
======== ========
</TABLE>
7. Short-term debt
The Company has a temporary revolving credit facility expiring
on May 12, 1996 that provides for borrowings up to $250 million.
The interest rate on borrowed funds is based on various pricing
options and was 6.80% on the $200 million outstanding under the
facility as of February 29, 1996.
<TABLE>
<CAPTION>
8. Long-term debt February 29, August 31,
1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
Notes payable in periodic installments
through July 2015, weighted average
interest rate of 6.65% and 6.82%,
respectively $ 107.9 $ 89.3
Noninterest bearing obligations, $19.8
million due June 1997, $3 million due
October 1997, and $20.5 million due
December 1997, weighted average imputed
interest rate of 6.86%, and 6.85%,
respectively. 39.1 37.8
Notes payable, due at maturity, ranging
from December 1996 to June 1998, weighted
average interest rate of 5.01% and 5.49%,
respectively 23.0 20.0
Capitalized lease obligations payable in
monthly installments through April 1998,
weighted average interest rate of 7.83%
and 8.94%, respectively 6.8 8.8
-------- --------
176.8 155.9
Less current portion (33.1) (26.5)
-------- --------
$ 143.7 $ 129.4
======== ========
</TABLE>
9. Earnings per share
Earnings per share is computed using the weighted average
number of common and common equivalent shares outstanding.
Common equivalent shares result from the assumed exercise of
outstanding stock options and affect earnings per share when they
have a dilutive effect. Per share amounts for the second quarter
of fiscal 1995 have been restated to reflect retroactively a 2
for 1 stock split effected in the form of a stock dividend to
shareholders of record on May 4, 1995.
6
<PAGE>
Notes to Consolidated Financial Statements, continued
10. Income taxes
The estimated effective income tax rate for fiscal year 1996 of
38.0% principally reflects the statutory federal corporate income
tax rate and the net effect of state taxation.
11. Commitments
As of February 29, 1996, the Company had commitments extending
into fiscal 1998 of approximately $505 million for equipment
purchases and $44 million for the construction of facilities.
Should the Company elect to cancel its outstanding equipment
purchase commitments, the Company could be subject to
cancellation fees in excess of $100 million.
12. Contingencies
Periodically, the Company is made aware that technology used by
the Company in the manufacture of some or all of its products may
infringe on product or process technology rights held by others.
The Company has accrued a liability and charged operations for
the estimated costs of settlement or adjudication of asserted and
unasserted claims for infringement prior to the balance sheet
date. Management can give no assurance that the amounts accrued
have been adequate and cannot estimate the range of additional
possible loss, if any, from resolution of these uncertainties.
Resolution of whether the Company's manufacture of products has
infringed on valid rights held by others may have a material
adverse effect on the Company's financial position or results of
operations, and may require material changes in production
processes and products. The Company had various product and
process technology agreements expire in calendar 1995 and is not
able to predict whether these license agreements can be renewed
on terms acceptable to the Company.
The Company is a party to various legal actions arising out of
the normal course of business, none of which is expected to have
a material effect on the Company's financial position or results
of operations.
7
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
The following discussion contains trend information and other
forward looking statements that involve a number of risks and
uncertainties. The Company's actual results could differ
materially from the Company's historical results of operations
and those discussed in the forward looking statements. Factors
that could cause actual results to differ materially are
included, but are not limited to, those identified in "Certain
Factors".
Overview
All period references are to the Company's fiscal periods ended
February 29, 1996, November 30, 1995, and March 2, 1995, unless
otherwise indicated. Share and per share amounts for the first
quarter and first six months of 1995 have been restated to
reflect a 2 for 1 stock split effected in the form of a stock
dividend to shareholders of record on May 4, 1995. Quarterly
financial results may not be indicative of the financial results
for any future period. All tabular dollar amounts are stated in
millions.
Net income for the second quarter of 1996 was $188 million, or
$0.87 per fully diluted share, on net sales of $997 million
compared to net income of $184 million, or $0.86 per fully-
diluted share, on net sales of $629 million for the second
quarter of 1995. For the first six months of 1996, net income
was $517 million, or $2.39 per fully-diluted share, on net sales
of $2,182 million compared to net income of $343 million, or
$1.61 per fully-diluted share, on net sales of $1,164 million for
the first six months of 1995. The Company previously reported
net sales of $1,186 million and net income of $329, or $1.51
per fully diluted share, for its first quarter of 1996.
The principal cause of the decline in net sales and net income
for the second quarter compared to the first quarter of 1996 was
the significantly lower average selling prices of semiconductor
memory products, partially offset by the relatively higher level
of net sales of the Company's Micron brand PC systems. The
volume of semiconductor memory sold in the second quarter dropped
approximately 12% compared to the first quarter of 1996 as
finished goods inventory increased resulting in part from
changes in the Company's major customers' purchasing and
inventory management strategies, and due to a slight decrease in
production of semiconductor memory. The production decline was
principally a result of inefficiencies encountered in the
conversion of Fab III to 8-inch wafer processing. The Company
has completed the 8-inch wafer start conversion of Fab III and
recently began converting wafer starts in Fab I/II. While
completion of the conversion of Fab I/II is conditioned upon
market conditions for semiconductor memory products, such
completion is anticipated prior to the end of calendar 1996. Due
to customer demand, the Company has accelerated its transition
from the relatively mature 4 Meg DRAM to the 16 Meg DRAM.
Results of the second quarter were also adversely affected by a
one-time $29.9 million pre-tax restructuring charge resulting
from the decisions by its approximately 80% owned subsidiary,
Micron Electronics, Inc., to discontinue sales of ZEOS brand
PC systems and to close the related PC manufacturing operations
in Minneapolis, Minnesota. The restructuring charge reduced
second quarter fully diluted earnings per share by $0.09.
8
<PAGE>
Results of Operations
<TABLE>
<CAPTION>
Second Quarter Six Months Ended
------------------------------- -----------------------------------
1996 Change 1995 1996 Change 1995
------------------------------- -----------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net Sales $ 996.5 58.6% $ 628.5 $2,182.3 87.6% $1,163.5
</TABLE>
<TABLE>
<CAPTION>
Second Quarter Six Months Ended
------------------------------- -----------------------------------
1996 1995 1996 1995
-------------- -------------- ---------------- ----------------
Net Sales % Net Sales % Net Sales % Net Sales %
-------------- -------------- ---------------- ----------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Semiconductor memory products $646.0 64.8% $523.7 83.3% $1,515.4 69.4% $ 988.0 84.9%
Personal computer systems 264.9 26.6% 73.1 11.6% 499.0 22.9% 117.4 10.1%
Other 85.6 8.6% 31.7 5.1% 167.9 7.7% 58.1 5.0%
------ ----- ------ ----- -------- ----- -------- -----
Total net sales $996.5 100.0% $628.5 100.0% $2,182.3 100.0% $1,163.5 100.0%
====== ===== ====== ===== ======== ===== ======== =====
</TABLE>
The value of the Company's semiconductor memory products
included in PC systems and other products is included under
"Semiconductor memory products". "Other" includes revenue from
contract manufacturing and module assembly services, construction
management services, government contracts, and licensing fees.
The substantial increase in net sales in the second quarter of
1996 compared to the second quarter of 1995 was principally due
to a higher level of net sales of PC systems and the effects of a
higher level of production of semiconductor memory products
partially offset by generally lower average selling prices for
such products. The Company's sales of semiconductor memory
products in the second quarter of 1996 decreased approximately
12% compared to the first quarter of 1996.
The volume of semiconductor memory produced in the second
quarter decreased slightly compared to the first quarter of 1996
principally as a result of inefficiencies encountered in the
conversion of Fab III to process 8-inch wafers. The Company has
completed the 8-inch wafer start conversion of Fab III and
recently began converting wafer starts in Fab I/II. While 8-inch
wafers have approximately 84% greater usable surface area
compared to 6-inch wafers, the Company's yields on 8-inch wafers
were significantly lower in the second quarter of 1996 compared
to its 6-inch wafers. In addition, wafer fabrication throughput
decreased in the second quarter compared to the first quarter of
1996 principally due to the slightly increased processing time
required for 8-inch wafers.
The volume of semiconductor memory sold during the second
quarter dropped approximately 12% compared to the first quarter
of 1996 as finished goods inventory increased. During the second
quarter of 1996, certain of the Company's major customers
undertook efforts to reduce their component inventories. Such
practices resulted in increased downward pressure on pricing for
the Company's DRAM products due to the short-term shift in demand
relative to supply for such products.
The Company's average selling prices for semiconductor memory
products during the second quarter decreased approximately 16%
compared to the first quarter of 1996. Selling prices for the
Company's semiconductor memory products were substantially lower
in the latter portion of the second quarter compared to the
average for the quarter. See "Certain Factors".
The 4 Meg DRAM comprised approximately 91% of sales of
semiconductor memory products in the second quarter of 1996.
9
<PAGE>
Sales of PC systems, excluding the value of the Company's
semiconductor memory included therein, increased to approximately
27% of the Company's total net sales for the second quarter of
1996 from approximately 12% in the second quarter of 1995. Sales
of PC systems were higher in 1996 primarily as a result of higher
unit sales of Micron brand PC systems and higher sales under
government contract, offset in part by a decline in the unit
sales of ZEOS brand PC systems. The increase in direct unit
sales of Micron brand PC systems was principally a result of
enhanced name recognition and market acceptance of such systems,
which the Company attributes to the receipt of a number of awards
from computer trade magazines relating to price and performance
characteristics of such systems and the Company's service and
support functions. In the event the Company is not successful in
winning such awards in the future, consumer interest in its PC
systems could decline materially. Slightly higher overall
average selling prices of the Company's PC systems in the second
quarter of 1996 compared to the second quarter of 1995 resulted
primarily from the increased sales of Pentium microprocessor
based PC systems.
<TABLE>
<CAPTION>
Second Quarter Six Months Ended
------------------------------- ------------------------------
1996 Change 1995 1996 Change 1995
------------------------------- ------------------------------
<S> <C> <C> <C> <C> <C> <C>
Cost of goods sold $ 552.1 106.4% $ 267.5 $1,090.2 121.6% $ 492.0
Gross margin % 44.6% 57.4% 50.0% 57.7%
</TABLE>
The Company's gross margin percentage was lower in the second
quarter of 1996 than in the second quarter of 1995 primarily as a
result of generally lower average selling prices on sales of
semiconductor memory products and the effect of increased
sales of PC systems which generally have a lower gross margin
percentage compared to the balance of the Company's products.
The Company's gross margin percentage on sales of semiconductor
memory products for the second quarter of 1996 was approximately
62% compared to approximately 64% in the second quarter of 1995,
and 70% in the first quarter of 1996.
The lower gross margin percentage on sales of the Company's
semiconductor memory products during the second quarter compared
to the first quarter of 1996 was principally due to a decrease in
average selling prices for such products and inefficiencies
encountered in the conversion of Fab III to process 8-inch
wafers both partially offset by the effect of the Company's on-
going transitions to shrink versions of existing memory products.
The Company is accelerating the transition of its primary
semiconductor memory products from the relatively mature 4 Meg
DRAM to the 16 Meg DRAM. To date, only limited quantities of 16
Meg products have been produced. The Company's transition to the
16 Meg DRAM as its principal memory product could have a negative
impact on the Company's results of operations. During prior
periods in which the Company transitioned to new generation
products, the Company's gross margin percentages were adversely
affected.
The Company's gross margin percentage on sales of PC systems
declined in the second quarter of 1996 compared to both the first
quarter of 1996 and the second quarter of 1995, primarily as a result
of price reductions for certain PC system products and loss on
disposition of certain excess component inventories. To a lesser
extent, the decline in the second quarter of 1996 compared to the
second quarter of 1995 was partially due to an increase in the
number of lower priced units shipped under government contract.
The Company continues to experience significant pressure on its
gross margin percentage realized for sales of PC systems as a
result of intense competition in the PC industry and consumer
expectations of more powerful PC systems at lower prices. Many
of the Company's competitors have substantial resources and
purchasing power relative to those which the Company has
dedicated to its PC operations. Although the Company has begun
to realize reduction in costs of components for PC systems in
recent periods, the Company's gross margin percentage on sales of
PC systems continues to be lower than those of the Company's
primary products. In the event that sales of PC systems continue
to increase as a percentage of total net sales, the Company's
overall gross margin percentage will be adversely affected.
10
<PAGE>
Cost of goods sold includes estimated costs of settlement or
adjudication of asserted and unasserted claims for patent
infringement prior to the balance sheet date, and costs of
product and process technology licensing arrangements. Charges
for product and process technology remained relatively constant
as a percentage of net sales in the second quarter of 1996
compared to both the first quarter of 1996 and the second quarter
of 1995. Future product and process technology charges may
fluctuate in absolute dollars and as a percentage of net sales,
however, as a result of claims that may be asserted in the
future, and as a result of future license arrangement. See
"Certain Factors."
<TABLE>
<CAPTION>
Second Quarter Six Months Ended
------------------------------- ------------------------------
1996 Change 1995 1996 Change 1995
------------------------------- ------------------------------
<S> <C> <C> <C> <C> <C> <C>
Selling, general, and
administrative $ 70.4 80.5% $ 39.0 $ 146.8 90.2% $ 77.2
as a % of net sales 7.1% 6.2% 6.7% 6.6%
</TABLE>
The higher level of selling, general, and administrative
expenses during the second quarter and first six months of 1996
as compared to comparable periods of 1995 resulted primarily from
personnel costs and depreciation charges associated with the
administrative and information systems support for the Company's
ongoing expansion plans and the Company's profit sharing
programs, a higher level of legal fees, and a higher level of
advertising costs incurred in conjunction with the Company's
increase in sales of PC systems.
<TABLE>
<CAPTION>
Second Quarter Six Months Ended
------------------------------- ------------------------------
1996 Change 1995 1996 Change 1995
------------------------------- ------------------------------
<S> <C> <C> <C> <C> <C> <C>
Research and development $ 48.0 66.1% $ 28.9 $ 94.6 69.2% $ 55.9
as a % of net sales 4.8% 4.6% 4.3% 4.8%
</TABLE>
Research and development expenses vary primarily with the
number of wafers and personnel dedicated to new product and
process development. Research and development efforts in the
second quarter of 1996 were focused primarily on further
development of 16 Meg and 4 Meg DRAM shrinks, and design and
development of non-volatile semiconductor memory devices, the 34K
x 36 synchronous SRAM, and next generation DRAM densities. The
Company expects research and development expenses in the
remainder of 1996 to be higher than comparable periods in 1995 as
additional resources are dedicated to the development of 16 Meg
and 4 Meg DRAM shrinks, design and development of next generation
DRAM densities, and new technologies including radio frequency
identification systems, non-volatile semiconductor memory
devices, and field emission flat panel displays.
<TABLE>
<CAPTION>
Second Quarter Six Months Ended
------------------------------- ------------------------------
1996 Change 1995 1996 Change 1995
------------------------------- ------------------------------
<S> <C> <C> <C> <C> <C> <C>
Income tax provision $ 112.3 (3.3)% $ 116.1 $ 316.9 54.1% $ 205.7
</TABLE>
The effective income tax rate for the first six months of 1996
of 38.0% represents a slight increase compared to the 37.5% rate
for the prior fiscal year principally due to a change in the mix
of sales among taxing jurisdictions and the decreased effect of
state tax credits.
Liquidity and Capital Resources
The Company had cash and liquid investments of $398 million
as of February 29, 1996, representing a decrease of $158
million during the first six months of 1996. The Company's
principal sources of liquidity during the first six months of
1996 were cash flows from operations of $694 million,
borrowings under the Company's bank credit agreement of $200
million, and equipment financing of $151 million. The
principal uses of funds in the first six months of 1996 were
$1,101 million for property, plant, and equipment, $126
million for repayments of equipment contracts and long-term debt.
11
<PAGE>
During the second quarter of 1996, the Company entered into a
temporary revolving credit facility expiring on May 12, 1996
which provides for borrowings up to $250 million. As of
February 29, 1996, the Company had borrowings outstanding under
the facility of $200 million. The Company is negotiating with a
syndicate of banks to provide a credit agreement with aggregate
borrowings of $500 million to replace the current $250 million
temporary credit facility. There can be no assurance the Company
will be able to negotiate terms of the financing agreement
acceptable to the Company, or that the Company will be able to
borrow the maximum amount available under the agreement due to
expected limitations on the borrowing base and certain financial
covenants. Depending on overall market conditions, the Company
may pursue debt or equity financing. The inability of the
Company to obtain financing on acceptable terms could
significantly delay or reduce in scope the Company's capacity
enhancement program and may necessitate changes in operations
which could have the effect of limiting production capacity.
The Company's ability to invest in its capacity enhancement
program is also largely dependent on the Company's ability to
generate cash flows from its operations. Cash flow from
operations for the second quarter of 1996 was lower than cash
flow from operations for the first quarter of 1996 resulting from
a combination of lower volumes of semiconductor memory sold, and
lower overall average selling prices for semiconductor memory
products. Cash flow from operations is primarily influenced by
average selling prices and variable cost per part for the
Company's semiconductor memory products. The semiconductor
memory industry has recently experienced, and may continue to
experience, downward pressure on selling prices for DRAM
products. Future declines in selling prices for DRAM products
will further erode the Company's ability to fund capital
expenditures.
Completion of the Company's semiconductor memory manufacturing
facility in Lehi, Utah, has been placed on indefinite hold
following completion of the exterior of the facility. The
Company's conversion of Fab I/II to process 8-inch wafers and
expansion of the Boise facility capacity beyond existing levels,
while currently proceeding, are conditioned upon future market
conditions which the Company cannot predict. The Company expects
capital expenditures in the remainder of 1996 to be between $600
million and $800 million.
As of February 29, 1996, the Company had contractual
commitments and order cancellation fees extending through
calendar 1998 of approximately $505 million for equipment
purchases and approximately $44 million for the construction of
facilities. Should the Company elect to cancel its outstanding
equipment purchase commitments, the Company could be subject to
cancellation fees in excess of $100 million. The Company
believes continuing investments in manufacturing technology,
facilities and equipment, research and development, and product
and process technology are necessary to support growth, achieve
operating efficiencies, and enhance product quality. However,
there can be no assurance the Company will have sufficient
sources of liquidity to fund additional investments to increase
production capacity, enhance or sustain production capacity at
its existing facilities, or develop new product and process
technologies.
Certain Factors
The following are important factors which could cause actual
results or events to differ materially from those contained in
any forward looking statements made by or on behalf of the
Company.
The semiconductor memory industry is characterized by rapid
technological change, frequent product introductions and
enhancements, difficult product transitions, relatively short
product life cycles, and volatile market conditions. These
characteristics historically have made the semiconductor industry
highly cyclical, particularly in the market for DRAMs, which are
the Company's primary products.
The Company's selling price for semiconductor memory products
fluctuates significantly with real and perceived changes in the
balance of supply and demand for these commodity products. As
has occurred in the past in response to favorable market
conditions for semiconductor memory products, many of the
Company's competitors have recently added, or are in the process
of adding, significant capacity for the production of
semiconductor memory components. The Company is unable to
estimate the amount of production capacity that is in various
stages of development world-wide. The amount of capacity to be
placed into production and future yield improvements by these
competitors could dramatically increase world-wide supply of
semiconductor memory.
12
<PAGE>
DRAMs are the most widely used semiconductor memory component
in most PC systems. Approximately 64% of the Company's sales of
semiconductor memory products during the second quarter of 1996
were directly into the personal computer or peripheral markets.
Should demand for PC systems decrease, or fail to increase in
accordance with industry expectations, demand for semiconductor
memory would likely decrease placing downward pressure on selling
prices for the Company's semiconductor memory products. The
Company is unable to predict changes in industry supply, major
customer inventory management strategies, or end user demand,
which are primary factors influencing pricing for the Company's
semiconductor memory products. Based on discussions with major
customers, the Company believes pricing for its memory
semiconductor products delivered in the balance of 1996 is likely
to be lower than for deliveries of such products made in the
second quarter.
The manufacture of the Company's semiconductor memory products
is a complex process and involves a number of precise steps,
including wafer fabrication, assembly in a variety of packages,
burn-in, and final test. The Company has substantially completed
the conversion of Fab III to process 8-inch wafers and recently
began converting Fab I/II. While completion of the conversion of
Fab I/II is conditioned upon future market conditions for semiconductor
memory products, such completion is anticipated prior to the end of
calendar 1996. There can be no assurance that the Company will
not experience an interruption of its manufacturing process or
experience further decreases in manufacturing yields as a result
of the conversion.
From time to time, the Company has experienced volatility in
its manufacturing yields, as it is not unusual to encounter
difficulties in ramping shrink versions of existing devices or
new generation devices, such as the 16 Meg DRAM, to commercial
volumes. The Company is accelerating the transition of its
primary semiconductor memory products from the relatively mature
4 Meg DRAM to the 16 Meg DRAM. The Company's ability to reduce
costs per part of its semiconductor memory products is largely
dependent on its ability to design and develop new generation
products and shrink versions of existing products and its ability
to ramp such products at acceptable rates to acceptable yields of
which there can be no assurance. Should the Company be unable to
decrease costs per part for semiconductor memory products at a
rate equal to the rate of decline in selling prices for such
products, the Company's results of operations and cash flows will
be adversely materially impacted.
The Company's cash flow from operations is primarily influenced
by average selling prices and costs per part for the Company's
semiconductor memory products. Historically, the Company has
reinvested substantially all cash flows from operations in
capacity expansion and improvement programs. Uncertain market
conditions for the Company's semiconductor memory products led to
the decision to curtail development of the Lehi, Utah
manufacturing complex. Further decreases in average selling
prices would likely require further cutbacks in capital
expenditures and may necessitate changes to operations which
would have the effect of limiting production capacity.
Periodically, the Company is made aware that technology used by
the Company in the manufacture of some or all of its products may
infringe on product or process technology rights held by others.
The Company has accrued a liability and charged operations for
the estimated costs of settlement or adjudication of asserted and
unasserted claims for infringement prior to the balance sheet
date. Management can give no assurance that the amounts accrued
have been adequate and cannot estimate the range of additional
possible loss, if any, from resolution of these uncertainties.
Resolution of whether the Company's manufacture of products has
infringed on valid rights held by others may have a material
adverse effect on the Company's financial position or results of
operations, and may require material changes in production
processes and products. The Company had various product and
process technology license agreements expire in calendar 1995 and
is not able to predict whether these license agreements can be
renewed on terms acceptable to the Company.
13
<PAGE>
Part II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Shareholders
The registrant's 1995 Annual Meeting of Shareholders was held
on January 29, 1996 at the Boise Centre on the Grove. At the
meeting, the following items were submitted to a vote of the
shareholders. At the meeting, 206,970,339 shares were entitled
to vote.
(a) The following nominees for Directors were elected. Each
person elected as a Director will serve until the next annual
meeting of shareholders or until such person's successor is
elected and qualified.
<TABLE>
<CAPTION>
Abstentions/
Votes Votes Broker
Name of Nominee Cast For Cast Against Non-Votes
--------------------- ----------- ------------ ------------
<S> <C> <C> <C>
Steven R. Appleton 186,471,514 44,275 20,454,550
Jerry M. Hess 186,537,040 44,271 20,389,028
Robert A. Lothrop 186,478,833 86,994 20,404,512
Tyler A. Lowrey 186,554,899 34,624 20,380,816
Thomas T. Nicholson 186,503,612 67,748 20,398,979
Allen T. Noble 186,482,457 111,374 20,376,508
Don J. Simplot 186,460,827 156,336 20,353,176
John R. Simplot 186,375,157 156,336 20,438,846
Gordon C. Smith 186,388,732 137,834 20,443,773
Wilbur G. Stover, Jr. 186,523,834 35,606 20,410,899
</TABLE>
(b) An amendment to the Company's Certificate of Incorporation
increasing the number of authorized shares of Common Stock from
300,000,000 shares to 1,000,000,000 shares was approved with
142,592,773 votes in favor, 45,019,491 votes against, and
19,358,075 representing abstentions and broker non-votes.
(c) An amendment to the Company's 1994 Stock Option Plan
increasing the number of shares of Common Stock reserved for
future grant from 2,000,000 to 7,000,000 shares was approved with
148,951,891 votes in favor, 38,258,205 votes against, and
19,760,243 representing abstentions and broker non-votes.
(d) The ratification and appointment of Coopers & Lybrand
L.L.P. as independent public accountants of the Company for the
fiscal year ending August 29, 1996 was approved with 186,874,176
votes in favor, 1,104,607 votes against, and 18,991,556
representing abstentions and broker non-votes.
14
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) The following are filed as a part of this report:
Exhibit Page
Number Description of Exhibit Number
------- --------------------------------------------- ------
10.112 Forms of SeveranceAgreement
10.113 Revolving Credit Agreement Dated February 12,
1996 among the Registrant and several
financial institutions
11 Computation of per share earnings for the
quarters and six month periods ended
February 29, 1996 and March 2, 1995 17 & 18
(b) The registrant filed Reports on Form 8-K dated January 25,
1996, February 2, 1996, February 8, 1996, each announcing certain
changes in the directors and officers of the Company.
15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Micron Technology, Inc.
(Registrant)
Dated: March 26, 1996 /s/ Wilbur G. Stover, Jr.
------------------------------------
Wilbur G. Stover, Jr. Vice President
of Finance, and Chief Financial
Officer (Principal Financial and
Accounting Officer)
16
EXHIBIT 10.112
SEVERANCE AGREEMENT
This Agreement is by and between Micron Technology,
Inc., a Delaware corporation ("the Company"), and
___________________, an individual and Officer of the Company,
("the Officer"), and is effective as of the last date signed
below.
WHEREAS, the parties recognize that it is in the best
interest of the Company to provide for a smooth transition
when there is a change in management, and wish to recognize
the valued contributions of the Officer; and
WHEREAS, the Company desires to provide the Officer
with benefits in consideration for his execution of this
Severance Agreement (the "Agreement");
NOW THEREFORE, the parties agree as follows:
1. TERMINATION OF THE OFFICER. Either the Company or
the Officer may at any time terminate the Officer's active
employment with the Company for any reason, voluntary or
involuntary, with or without cause, by providing notice to
that effect in writing. The date such notice is received by
the other party shall be deemed "the Termination Date."
Upon receipt by the Officer of a notice of termination from
the Company, and upon the Company's request, the Officer
will resign immediately as an Officer and/or Director.
2. EFFECT OF TERMINATION. Effective on the
Termination Date, and for a period defined in Paragraph 2(a)
("the Transition Period"), the Officer shall continue as an
employee only for purposes of receiving the benefits
specified in Paragraph 3, and while employed in that
capacity shall not perform any service or work that
conflicts with interests of the Company. During the
Transition Period, the Officer may continue in a consulting
role with the Company, or continue as a non-officer employee
with the Company, if both parties agree.
2(a). TRANSITION PERIOD. For purposes of this
agreement, the "Transition Period" shall be six months plus
the amount of any TOP time and leave time, if any, which
the Officer has accrued as of the Termination Date.
2(b). CHANGE OF OFFICER STATUS. In the event
that the Officer or the Company terminates the Officer's
status as an Officer of the Company but not as an employee,
both parties agree that such change in status will be
treated as a termination for purposes of this Agreement,
and that the date of such change in status will be deemed
the Termination Date. Following the Transition Period, the
Officer shall be entitled only to such compensation and
benefits for his services as an employee that may be
mutually agreed upon between the Company and the Officer.
In no circumstance shall benefits under Paragraph 3 be paid
to an Officer for a period longer than the first Transition
Period created by a change of status or termination.
3. BENEFITS DURING THE TRANSITION PERIOD. Provided
the Officer complies with the terms of this Agreement, the
Officer will receive during the Transition Period all
benefits customarily provided to officers of the Company,
including, but not limited to salary, bonuses, executive
bonuses, and the continued vesting of any granted stock
options, as if the Officer's employment as an officer had
continued during that period. "Customarily provided" refers
to Company practices and plans with respect to officer
benefits and compensation in effect as of the Termination
Date. For purposes of this provision, however, it will be
understood that the Officer, during the Transition Period,
will not be entitled to any new grants of interest in future
executive bonus pools, nor to any new grants of stock
options. It will be further understood that the Officer
will not be entitled to payment of any compensation that is
deferred past the Transition Period due to payment criteria
of an incentive program, as those criteria existed as of the
Termination Date. No action by the Company or the Company's
Board of Directors may effect the Officer's receipt of the
benefits set forth above, other than as provided herein.
4. CONFIDENTIALITY. The parties agree that
throughout the Transition Period no statements regarding the
Officer's termination will be made other than to indicate
that the reasons for, and circumstances of, the termination
are CONFIDENTIAL and that both the Company, the Board of
Directors, and the Officer are obligated to make "no
comment" regarding the termination. For purposes of this
paragraph, "statements" includes, but is not limited to,
statements to the press, analysts, and journalists. Nothing
in this paragraph is meant to prevent the Company from
disclosing any facts required to be disclosed pursuant to
statute or regulation.
5. TERMINATION. This Agreement terminates when the
Officer turns 60 years of age, and any termination or change
of status of the Officer after that date will not entitle
the Officer to any of the benefits of this Agreement.
6. RELEASE. Upon receipt of all benefits under this
Agreement, the Officer and Company settle, waive, and
voluntarily release any and all claims each has or may have
against the other, inclusive of any of the Company's
affiliates, officers, directors, employees or agents, both
individually and in their official capacities, which claims
accrued prior to the end of the Transition Period.
7. FINAL AGREEMENT. This Agreement supersedes all
prior agreements, and is the entire and final understanding
of the parties as to the subject matter hereof.
- ----------------------------- -------------------------
MICRON TECHNOLOGY, INC. Officer
- -------------- ---------------
Date Date
<PAGE>
SEVERANCE AGREEMENT
This Agreement is by and between Micron Technology, Inc., a
Delaware corporation ("the Company"), and ____________________, an
individual and Officer of the Company, ("the Officer"), and is
effective as of the last date signed below.
WHEREAS, the parties recognize that it is in the best
interest of the Company to provide for a smooth transition when
there is a change in management, and wish to recognize the valued
contributions of the Officer; and
WHEREAS, the Company desires to provide the Officer with
benefits in consideration for his execution of this Severance
Agreement (the "Agreement");
NOW THEREFORE, the parties agree as follows:
1. TERMINATION OF THE OFFICER. Either the Company or the
Officer may at any time terminate the Officer's active employment
with the Company for any reason, voluntary or involuntary, with
or without cause, by providing notice to that effect in writing.
The date such notice is received by the other party shall be
deemed "the Termination Date." Upon receipt by the Officer of a
notice of termination from the Company, and upon the Company's
request, the Officer will resign immediately as an Officer and/or
Director.
2. EFFECT OF TERMINATION. Effective on the Termination
Date, and for a period defined in Paragraph 2(a) ("the Transition
Period"), the Officer shall continue as an employee only for
purposes of receiving the benefits specified in Paragraph 3, and
while employed in that capacity shall not perform any service or
work that conflicts with interests of the Company. During the
Transition Period, the Officer may continue in a consulting role
with the Company, or continue as a non-officer employee with the
Company, if both parties agree.
2(a). TRANSITION PERIOD. For purposes of this
agreement, the "Transition Period" shall be two years plus the
amount of any TOP time and leave time, if any, which the Officer
has accrued as of the Termination Date.
2(b). CHANGE OF OFFICER STATUS. In the event that
the Officer or the Company terminates the Officer's status as an
Officer of the Company but not as an employee, both parties agree
that such change in status will be treated as a termination for
purposes of this Agreement, and that the date of such change in
status will be deemed the Termination Date. Following the
Transition Period, the Officer shall be entitled only to such
compensation and benefits for his services as an employee that
may be mutually agreed upon between the Company and the Officer.
In no circumstance shall benefits under Paragraph 3 be paid to an
Officer for a period longer than the first Transition Period
created by a change of status or termination.
3. BENEFITS DURING THE TRANSITION PERIOD. Provided the
Officer complies with the terms of this Agreement, the Officer
will receive during the Transition Period all benefits
customarily provided to officers of the Company, including, but
not limited to salary, bonuses, executive bonuses, and the
continued vesting of any granted stock options, as if the
Officer's employment as an officer had continued during that
period. "Customarily provided" refers to Company practices and
plans with respect to officer benefits and compensation in effect
as of the Termination Date. For purposes of this provision,
however, it will be understood that the Officer, during the
Transition Period, will not be entitled to any new grants of
interest in future executive bonus pools, nor to any new grants
of stock options. It will be further understood that the Officer
will not be entitled to payment of any compensation that is
deferred past the Transition Period due to payment criteria of an
incentive program, as those criteria existed as of the
Termination Date. No action by the Company or the Company's
Board of Directors may effect the Officer's receipt of the
benefits set forth above, other than as provided herein.
4. CONFIDENTIALITY. The parties agree that throughout the
Transition Period no statements regarding the Officer's
termination will be made other than to indicate that the reasons
for, and circumstances of, the termination are CONFIDENTIAL and
that both the Company, the Board of Directors, and the Officer
are obligated to make "no comment" regarding the termination.
For purposes of this paragraph, "statements" includes, but is not
limited to, statements to the press, analysts, and journalists.
Nothing in this paragraph is meant to prevent the Company from
disclosing any facts required to be disclosed pursuant to statute
or regulation.
5. TERMINATION. This Agreement terminates when the
Officer turns 60 years of age, and any termination or change of
status of the Officer after that date will not entitle the
Officer to any of the benefits of this Agreement.
6. RELEASE. Upon receipt of all benefits under this
Agreement, the Officer and Company settle, waive, and voluntarily
release any and all claims each has or may have against the
other, inclusive of any of the Company's affiliates, officers,
directors, employees or agents, both individually and in their
official capacities, which claims accrued prior to the end of the
Transition Period.
7. FINAL AGREEMENT. This Agreement supersedes all prior
agreements, and is the entire and final understanding of the
parties as to the subject matter hereof.
- ------------------------------- --------------------------
MICRON TECHNOLOGY, INC. Officer
- ------------------- ----------------
Date Date
EXHIBIT 10.113
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (the "Agreement") is
entered into as of February 12, 1996, among Micron Technology,
Inc. a Delaware corporation (the "Company"), the several
financial institutions party to this Agreement (collectively, the
"Banks"; individually, a "Bank"), and Bank of America National
Trust and Savings Association, as agent for the Banks (in such
capacity, the "Agent").
WHEREAS, the Banks have agreed to make available to the
Company a revolving credit facility upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
ARTICLE I - DEFINITIONS AND RELATED MATTERS
In this Agreement, unless otherwise specified, capitalized
terms are used as defined herein and in Annex I hereto. Certain
other interpretive provisions and accounting principles
applicable to this Agreement are also set forth in Annex I
hereto.
ARTICLE II - THE REVOLVING CREDIT
2.01 Amounts and Terms of Commitments. Each Bank severally
agrees, on the terms and conditions set forth herein, to make
loans to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination
Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on the signature pages hereto
opposite such Bank's name (such amount, as the same may be
reduced under Section 2.05, the Bank's "Commitment"); provided,
however, that, after giving effect to any Borrowing, the
aggregate principal amount of all outstanding Loans shall not at
any time exceed the combined Commitments. Within the limits of
each Bank's Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this Section
2.01, prepay under Section 2.06 and reborrow under this Section
2.01.
2.02 Loan Accounts. The Loans made by the Banks shall be
evidenced by Notes executed by the Company in favor of each Bank.
Each Bank shall endorse on schedules annexed to its Note the
date, amount and maturity of each Loan made by it and the amount
of each payment of principal made by the Company with respect
thereto. Each Bank is irrevocably authorized by the Company to
endorse its Note and each Bank's record shall be conclusive
absent manifest error; provided, however, that the failure of a
Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to
such Bank.
2.03 Procedure for Borrowing. (a) Each Borrowing shall be
made upon the Company's irrevocable written notice delivered to
the Agent in the form of a Notice of Borrowing (which notice must
be received by the Agent (i) prior to 9:00 a.m. (San Francisco
time) three Business Days prior to the requested Borrowing Date,
in the case of Offshore Rate Loans, and (ii) either (A) prior to
9:00 a.m. (San Francisco time) one Business Day prior to the
requested Borrowing Date, or (B) prior to 8:00 a.m. (San
Francisco time) on the requested Borrowing Date, in the case of
Base Rate Loans, specifying: (I) the amount of the Borrowing,
which shall be in an aggregate minimum amount of $5,000,000 or
any multiple of $1,000,000 in excess thereof; (II) the requested
Borrowing Date, which shall be a Business Day; (III) the Type of
Loans comprising the Borrowing; and (IV) the duration of the
requested Interest Period (one week or one month), if applicable.
If the Notice of Borrowing fails to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate
Loans, such Interest Period shall be one week. The Agent will
promptly notify each Bank of its receipt of any Notice of
Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing.
(b) Each Bank will make the amount of its Pro Rata
Share of each Borrowing available to the Agent for the account of
the Company at the Agent's payment office by 11:00 a.m. (San
Francisco time) on the Borrowing Date requested by the Company in
funds immediately available to the Agent. The proceeds of all
such Loans will then be made available to the Company by the
Agent at such office by crediting the account of the Company on
the books of BofA with the aggregate of the amounts made
available to the Agent by the Banks in like funds as received by
the Agent or, if requested by the Company, by wire transfer in
accordance with written instructions provided to the Agent by the
Company of like funds as received by the Agent. After giving
effect to any Borrowing, unless the Agent shall otherwise
consent, there may not be more than four different Interest
Periods in effect.
2.04 Conversion and Continuation Elections. (a) The
Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable
Interest Period, in the case of Offshore Rate Loans, to
convert any such Loans (or any part thereof in an amount not
less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof) into Loans of any other Type;
or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Offshore Rate Loans having
Interest Periods expiring on such day (or any part thereof
in an amount not less than $5,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Offshore
Rate Loans in respect of any Borrowing is reduced, by payment,
prepayment or conversion of part thereof to be less than
$5,000,000, such Offshore Rate Loans shall automatically convert
into Base Rate Loans, and on and after such date the right of the
Company to continue such Loans as, and convert such Loans into,
Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later
than (i) 9:00 a.m. (San Francisco time) at least three Business
Days in advance of the Conversion/Continuation Date, if the Loans
are to be converted into or continued as Offshore Rate Loans, and
(ii) either (A) 9:00 a.m. (San Francisco time) at least one
Business Day in advance of the Conversion/Continuation Date, or
(B) 8:00 a.m. (San Francisco time) on the Conversion/Continuation
Date, if the Loans are to be converted into Base Rate Loans,
specifying: (I) the proposed Conversion/Continuation Date; (II)
the aggregate amount of Loans to be converted or continued; (III)
the Type of Loans resulting from the proposed conversion or
continuation; and (IV) the duration of the requested Interest
Period, if applicable.
(c) During the existence of a Default or Event of
Default, the Company may not elect to have a Loan converted into
or continued as an Offshore Rate Loan. If upon the expiration of
any Interest Period applicable to Offshore Rate Loans, the
Company has failed to select timely a new Interest Period to be
applicable to such Offshore Rate Loans, as the case may be, or if
any Default or Event of Default then exists, the Company shall be
deemed to have elected to convert such Offshore Rate Loans into
Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely
notice of conversion/continuation is provided by the Company, or
if the Agent has received a notice of Default or Event of Default
pursuant to Section (e) of Annex IX, the Agent will promptly
notify each Bank of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to
the respective outstanding principal amounts of the Loans held by
each Bank with respect to which the notice was given. After
giving effect to any conversion or continuation of Loans, unless
the Agent shall otherwise consent, there may not be more than
four different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments.
The Company may, upon not less than five Business Days' prior
notice to the Agent, terminate the Commitments, or permanently
reduce the Commitments by an aggregate minimum amount of
$5,000,000, or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, the then-outstanding
principal amount of the Loans would exceed the amount of the
combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any
reduction of the Commitments shall be applied to each Bank
according to its Pro Rata Share. All accrued commitment fees to,
but not including the effective date of any reduction or
termination of Commitments, shall be paid on the effective date
of such reduction or termination.
2.06 Optional Prepayments. Subject to Section 3.04, the
Company may, at any time or from time to time, upon not less than
three Business Days' irrevocable notice to the Agent, in the case
of Offshore Rate Loans, or one Business Day's irrevocable notice
to the Agent, in the case of Base Rate Loans (unless such notice
with respect to the prepayment of Base Rate Loans is given prior
to 8:00 a.m. (San Francisco time), in which case such prepayment
may be made on the same date as such notice), ratably prepay
Loans in whole or in part, in minimum amounts of $5,000,000, or
any multiple of $1,000,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Agent will promptly
notify each Bank of its receipt of any such notice, and of such
Bank's Pro Rata Share of such prepayment. If such notice is
given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.04.
2.07 Mandatory Payment. The principal amount of the
outstanding Loans, together with all interest accrued thereon and
amounts required pursuant to Section 3.04, and all accrued and
unpaid fees and other amounts outstanding hereunder, shall be
immediately due and payable, and the Commitments shall terminate,
automatically and without any further action by any party, upon
the consummation of any capital raising event by the Company,
including the issuance of any capital stock or the incurrence of
any indebtedness for borrowed money; provided, however, that none
of the following shall require a mandatory payment hereunder:
(a) the acquisition of goods, supplies, or merchandise on normal
trade credit; (b) the execution of bonds or undertakings in the
ordinary course of its business as presently conducted; (c) the
endorsement of negotiable instruments received in the ordinary
course of its business as presently conducted; (d) capital raised
through the Company's employee stock purchase plan or stock
incentive plans; (e) the receipt of customer deposits in
connection with sale and purchase agreements entered into in the
ordinary course of business; (f) equipment financings in an
aggregate principal amount of up to $200,000,000; or (g) the
assumption of any existing indebtedness, or the issuance of any
capital stock, in connection with an acquisition permitted
pursuant to Section 7.03.
2.08 Repayment. The Company shall repay to the Banks on
the Revolving Termination Date the aggregate principal amount of
Loans outstanding on such date.
2.09 Interest. (a) Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to (i) the Offshore Rate
plus 1.50% per annum, or (ii) the Base Rate, as the case may be
(and subject to the Company's right to convert to other Types of
Loans under Section 2.04).
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans for the portion of the Loans so
prepaid (whether mandatory or optional) and upon payment
(including by reason of acceleration) in full thereof and, during
the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the
Majority Banks.
(c) Notwithstanding subsection (a) of this Section, if
any amount of principal of or interest on any Loan, or any other
amount payable hereunder or under any other Loan Document is not
paid in full when due (whether at stated maturity, by
acceleration, demand or otherwise), the Company agrees to pay
interest on such unpaid principal or other amount, from the date
such amount becomes due until the date such amount is paid in
full, and after as well as before any entry of judgment thereon
to the extent permitted by law, payable on demand, at a
fluctuating rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding,
the obligations of the Company to any Bank hereunder shall be
subject to the limitation that payments of interest shall not be
required for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary to the
provisions of any law applicable to such Bank limiting the
highest rate of interest that may be lawfully contracted for,
charged or received by such Bank, and in such event the Company
shall pay such Bank interest at the highest rate permitted by
applicable law.
2.10 Fees. (a) Arrangement Fee. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account as
required by the letter agreement ("Fee Letter") between the
Company and the Arranger, BofA and Seattle First National Bank
dated January 31, 1996.
(b) Upfront Fee. The Company shall pay to the Agent,
for the account of each Bank other than BofA and Seattle First
National Bank, a non-refundable upfront fee equal to 0.075% of
such Bank's Commitment, which fee shall be payable on the Closing
Date.
(c) Commitment Fees. The Company shall pay to the
Agent for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment, based
upon the daily utilization as calculated by the Agent, equal to
0.20% per annum. Such commitment fee shall accrue from February
9, 1996 to the Revolving Termination Date and shall be due and
payable on the Revolving Termination Date. The commitment fees
provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during
which one or more conditions in Article IV are not met.
2.11 Computation of Fees and Interest. All computations of
interest for Base Rate Loans shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed.
All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in
more interest being paid than if computed on the basis of a
365-day year). Interest and fees shall accrue during each period
during which interest or such fees are computed from the first
day thereof to the last day thereof. Each determination of an
interest rate by the Agent shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
2.12 Payments by the Company. (a) All payments to be made
by the Company shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Agent for the
account of the Banks at the Agent's payment office, and shall be
made in dollars and in immediately available funds, no later than
10:00 a.m. (San Francisco time) on the date specified herein.
The Agent will promptly distribute to each Bank its Pro Rata
Share (or other applicable share as expressly provided herein) of
such payment in like funds as received. Any payment received by
the Agent later than 10:00 a.m. (San Francisco time) shall be
deemed to have been received on the following Business Day and
any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be
made on the following Business Day, and such extension of time
shall in such case be included in the computation of interest or
fees, as the case may be.
(c) Unless the Agent receives notice from the Company
prior to the date on which any payment is due to the Banks that
the Company will not make such payment in full as and when
required, the Agent may assume that the Company has made such
payment in full to the Agent on such date in immediately
available funds and the Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each Bank on such
due date an amount equal to the amount then due such Bank. If
and to the extent the Company has not made such payment in full
to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon
at the Federal Funds Rate for each day from the date such amount
is distributed to such Bank until the date repaid.
2.13 Payments by the Banks to the Agent. Unless the Agent
receives notice from a Bank on or prior to the Closing Date or,
with respect to any Borrowing after the Closing Date, at least
one Business Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to
the Agent for the account of the Company the amount of that
Bank's Pro Rata Share of the Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent in
immediately available funds on the Borrowing Date and the Agent
may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not
have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the
Agent submitted to any Bank with respect to amounts owing under
this Section shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall
constitute such Bank's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available
to the Agent on the Business Day following the Borrowing Date,
the Agent will notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to
the Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate
per annum equal to the interest rate applicable at the time to
the Loans comprising such Borrowing. The failure of any Bank to
make any Loan on any Borrowing Date shall not relieve any other
Bank of any obligation hereunder to make a Loan on such Borrowing
Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any
Borrowing Date.
2.14 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of
the Loans made by it any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated
hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata
with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded
and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to
such paying Bank's ratable share (according to the proportion of
(i) the amount of such paying Bank's required repayment to (ii)
the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank
in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect
to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. The
Agent will keep records (which shall be conclusive and binding in
the absence of manifest error) of participations purchased under
this Section and will in each case notify the Banks following any
such purchases or repayments.
ARTICLE III - TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. If any payments to the Agent or any Bank under
this Agreement are made from outside the United States, the
Company will not deduct any foreign taxes from any such payments
it makes to the Agent or Bank. If any such taxes are imposed on
any such payments made by the Company (including payments under
this Section), the Company will pay the taxes and will also pay
to the Agent or such Bank, at the time interest is paid, any
additional amount which the Agent or such Bank specifies as
necessary to preserve the after-tax yield the Agent or such Bank
would have received if such taxes had not been imposed. The
Company will confirm that it has paid the taxes by giving the
Agent official tax receipts (or notarized copies) within 30 days
after the due date.
3.02 Illegality. If any Bank determines that the
introduction of any requirement of law, or any change in any
requirement of law, or in the interpretation or administration of
any requirement of law, has made it unlawful, or that any central
bank or other governmental authority has asserted that it is
unlawful, for such Bank or any applicable lending office of such
Bank to make Offshore Rate Loans, then, on notice thereof by such
Bank to the Company (with a copy to the Agent), any obligation of
that Bank to make Offshore Rate Loans shall be suspended until
the Bank notifies the Company that the circumstances giving rise
to such determination no longer exist, and (a) if the Bank may
lawfully continue to maintain such Offshore Rate Loans to the
last day of the Interest Period with respect thereto, the Company
shall repay in full such Offshore Rate Loans, together with
interest accrued thereon, on the last day of the Interest Period
thereof, or (b) if the Bank may not lawfully continue to maintain
such Offshore Rate Loans to the last day of the Interest Period
with respect thereto, such Offshore Rate Loans shall
automatically be converted into Base Rate Loans and the Company
shall pay, within five Business Days of such conversion, all
interest accrued on such Offshore Rate Loans prior to such
conversion and all amounts required under Section 3.04 in
connection with such conversion.
3.03 Increased Costs and Reduction of Return. The Company
shall pay to each Bank, on demand, any increased costs or losses
incurred by such Bank, in connection with its Commitment or any
Loan hereunder, arising from any change in law or regulation, or
any request or requirement of a regulatory agency, including with
respect to any reserve or deposit requirements applicable to the
Bank, or any capital requirements relating to such Bank's assets
and commitments for credit.
3.04 Funding Losses. The Company shall reimburse each Bank
and hold each Bank harmless from any loss or expense which such
Bank may sustain or incur as a consequence of (a) the failure of
the Company to make on a timely basis any payment of principal of
any Offshore Rate Loan, (b) the failure of the Company to borrow,
continue or convert an Offshore Rate Loan after the Company has
given (or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/Continuation, (c) the failure of the Company
to make any prepayment in accordance with any notice delivered
under Section 2.06, (d) the prepayment (mandatory or optional) or
other payment (including after acceleration thereof) of an
Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period, (e) the automatic conversion under
Section 2.04 or Section 3.02 of any Offshore Rate Loan to a Base
Rate Loan on a day that is not the last day of the relevant
Interest Period; including any such loss or expense arising from
the liquidation or reemployment of funds obtained by it to
maintain its Offshore Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained.
3.05 Inability to Determine Rates. Neither the Agent nor
any Bank is obligated to accept an election for an Offshore Rate
Loan if (a) dollar deposits in the principal amount, and for the
period equal to the applicable Interest Period for such Loan are
not available in the applicable funding market, or (b) the
Offshore Rate does not accurately reflect the cost of such Loan.
3.06 Survival. The agreements and obligations of the
Company in this Article III shall survive the payment of all
other Obligations.
ARTICLE IV - CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each
Bank to make its initial Loan hereunder is subject to the
condition that the Agent shall have received on or before the
Closing Date all of the following, in form and substance
satisfactory to the Agent and each Bank, and in sufficient copies
for each Bank:
(a) This Agreement and the Notes, executed by each
party thereto;
(b) Satisfactory evidence of due authorization of the
execution, delivery and performance by the Company of this
Agreement, including certified board resolutions, officer
incumbency certificate, articles of incorporation and bylaws;
(c) An opinion of counsel for the Company with respect
to such legal matters relating hereto as the Agent and Banks may
reasonably request;
(d) Certificates of recent date showing that the
Company is in good standing under the laws of the state of
Delaware and is qualified to conduct business as a foreign
corporation under the laws of the state of Idaho;
(e) A certificate of an appropriate officer of the
Company as to the matters set forth in Section 4.02(b) and (c);
(f) Payment of any fee or expense due and payable
hereunder or under the Fee Letter; and
(h) Such other approvals, opinions, documents or
instruments as the Agent or the Banks may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each
Bank to make any Loan hereunder (including its initial Loan), or
to continue or convert any Loan under Section 2.04, is subject to
the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Conversion/
Continuation Date:
(a) The Agent shall have received a Notice of
Borrowing or a Notice of Conversion/Continuation, as applicable;
(b) The representations and warranties in Article V
shall be true and correct on and as of such Borrowing Date or
Conversion/Continuation Date with the same effect as if made on
and as of such Borrowing Date or Conversion/Continuation Date, as
applicable; and
(c) No Default or Event of Default shall exist or
shall result from such Borrowing or continuation or conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation
submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the
date of each such notice and as of each Borrowing Date or
Conversion/Continuation Date, as applicable, that the conditions
in this Section 4.02 are satisfied.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each
Bank that:
5.01 Corporate Existence and Power. The Company and each
of its Subsidiaries: (a) is a corporation duly organized and
existing under the laws of the state of its organization; (b) has
the power and authority and all governmental licenses,
authorizations, consents, and approvals to own its assets and to
carry on its business; (c) in the case of the Company, has the
power and authority and all governmental licenses,
authorizations, consents, and approvals to execute, deliver and
perform its obligations hereunder; and (d) is duly qualified and
properly licensed and in good standing under the laws of each
jurisdiction where its ownership, lease, or operation of property
or the conduct of its business requires such license or
qualification; except, in each case referred to in clause (b) or
clause (d), to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
5.02 Authorization. The execution, delivery, and
performance by the Company of this Agreement have been duly
authorized by all necessary corporate action, and do not and will
not: (a) contravene the terms of any organizational or charter
documents; (b) conflict with or result in any breach or
contravention of, or the creation of any lien, security interest,
or charge under, any material agreement, contract, indenture,
document or instrument to which the Company is a party or by
which any property is bound, or any order, injunction, writ, or
decree of any governmental authority to which the Company or any
property is subject; or (c) violate any law, rule, regulation, or
determination of an arbitrator or of a court or other
governmental authority, in each case applicable to or binding
upon the Company or any property.
5.03 Enforceability. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability.
5.04 Compliance with Laws. The Company and each of its
Subsidiaries is in compliance in all material respects with all
foreign, federal, state and local laws, rules, regulations and
determinations of arbitrators, courts and other governmental
authorities materially affecting the business, operations or
property of the Company and its Subsidiaries, including
environmental laws.
5.05 Permits, Franchises. Except as set forth in the
Company's and its Subsidiaries' filings with the Securities and
Exchange Commission under the Securities Exchange Act of 1934,
the Company or its Subsidiaries possess all governmental or
regulatory permits and licenses required, and all trademark
rights, trade name rights, patent rights and fictitious name
rights reasonably necessary, to enable the Company and its
Subsidiaries to conduct the businesses in which they are now
engaged in all material respects.
5.06 Litigation. There is no litigation, tax claim,
proceeding, governmental or administrative action, arbitration
proceeding or dispute pending, or, to the best knowledge of the
Company, threatened, against or affecting the Company or any of
its Subsidiaries or any of their properties, the adverse
determination of which could reasonably be expected to have a
Material Adverse Effect.
5.07 No Event of Default; Other Obligations. There exists
no Default or Event of Default. As of the Closing Date, the
Company is not in default in any material respect under any other
material agreement involving the borrowing of money, the
extension of credit, or the lease of real or personal property,
to which the Company is a party as borrower, guarantor,
installment purchaser, or lessee.
5.08 Information; Tax Returns; Material Adverse Effect.
All financial and other information that has been submitted by
the Company to the Agent and the Banks, including the Company's
financial statement delivered most recently prior to the Closing
Date: (a) in the case of financial statements, is prepared in
accordance with generally accepted accounting principles
consistently applied; and (b) is true and correct in all material
respects. As of the date of the financial statements most
recently delivered to the Banks pursuant to Section 6.01, the
Company has no knowledge of any material pending assessments or
adjustments not disclosed in such financial statements with
respect to its income tax liabilities for any year. Since
November 30, 1995, there has been no Material Adverse Effect,
other than the material adverse changes, if any, as may have been
disclosed in the written projections dated January 15, 1996
delivered to the Agent and the Banks prior to the date hereof.
ARTICLE VI - AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or
any Loan or other Obligation shall remain unpaid or unsatisfied,
unless all the Banks waive compliance in writing:
6.01 Financial and Other Information. The Company shall
deliver to the Agent, in form and detail satisfactory to the
Agent and the Banks, with sufficient copies for each Bank:
(a) Within 45 days after February 29, 1996, the
Company's consolidated financial statements for the fiscal
quarter ending on such date (including, at a minimum, the
Company's balance sheet and statements of income, retained
earnings, and cash flow), together with a compliance certificate,
in form and substance satisfactory to the Agent and the Banks,
executed by a responsible officer of the Company;
(b) Within 10 days after the date of filing thereof,
copies of all financial statements and regular, periodical or
special reports (including Form 8K) that the Company may make to,
or file with, the Securities and Exchange Commission; and
(c) Promptly upon request, such other materials and
information relating to the Company or its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
6.02 Notices of Certain Events. The Company shall promptly
give written notice to the Agent and each Bank of: (a) all
litigation, proceedings or actions affecting the Company or its
Subsidiaries where the amount claimed is $20,000,000 or more; (b)
any substantial dispute which may exist between the Company or
its Subsidiaries and any governmental regulatory body or law
enforcement authority; (c) any Default or Event of Default; (d)
any of the representations and warranties in Article V that
ceases to be true and correct; and (e) any other matter which has
resulted or could reasonably be expected to result in a Material
Adverse Effect.
6.03 Financial Books, Records, Audits and Inspections. The
Company shall, and shall cause its Subsidiaries to (a) maintain
adequate financial books, accounts and records, and prepare all
financial statements required hereunder in accordance with
generally accepted accounting principles consistently applied,
and in compliance in all material respects with the regulations
of any governmental regulatory body having jurisdiction over the
Company or its Subsidiaries, or the Company's or its
Subsidiaries' businesses, and (b) permit employees or agents of
the Agent or any Bank at any reasonable time with advance written
notice to inspect the Company's and its Subsidiaries' properties,
and to examine or audit the Company's and its Subsidiaries'
financial books, accounts, and records and make copies and
memoranda thereof.
6.04 Compliance with Laws. The Company shall at all times
comply with, and cause its Subsidiaries to comply in all material
respects with, all laws, statutes, rules, regulations, orders,
and directions of any governmental authority having jurisdiction
over the Company or any of its Subsidiaries or the business of
the Company or any of its Subsidiaries, including environmental
laws.
6.05 Payment of Obligations. The Company shall, and shall
cause its Subsidiaries to, pay and discharge as the same shall
either become due and payable or within any applicable grace
period, all their respective material obligations and
liabilities, including (in the case of the Company) the
Obligations.
6.06 Existence and Properties. The Company and each of its
Subsidiaries shall maintain and preserve its corporate existence
and all rights, privileges, and franchises now enjoyed, conduct
its business in an orderly, efficient, and customary manner, keep
all the its properties in good working order and condition and
fully insured, including self-insurance and self-retention
limits, and from time to time make all reasonably needed repairs,
renewals, or replacements thereto and thereof so that the
efficiency of such property shall be fully maintained and
preserved.
6.07 Use of Facility. The Company shall use the credit
facility provided herein solely for working capital and other
general corporate purposes not in contravention of any
requirement of law.
6.08 Ranking. The Company shall take, or cause to be
taken, all actions necessary to ensure that the Obligations are
and continue to rank at least pari passu in right of payment with
all other unsecured indebtedness of the Company.
ARTICLE VII - NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or
any Loan or other Obligation shall remain unpaid or unsatisfied,
unless all the Banks waive compliance in writing:
7.01 Liens. (a) The Company shall not, and shall not
suffer or permit any of its Subsidiaries to, create, assume or
suffer to exist any security interest, deed of trust, mortgage,
lien (including the lien of an attachment, judgment or execution)
or encumbrance, securing a charge or obligation, on or of any of
its or their property, real or personal, whether now owned or
hereafter acquired, except: (a) security interests and deeds of
trust in favor of the Agent for the benefit of the Banks; (b)
liens, security interests, deeds of trust, mortgages and other
encumbrances in existence as of the date of this Agreement
(including any such lien securing indebtedness that is renewed,
extended or refunded, provided that the principal amount of such
indebtedness outstanding at the time of such renewal, extension
or refunding is not increased and such lien is not extended to
any other property) and, in the case of any material lien,
security interest, deed of trust, mortgage and other encumbrance,
which are disclosed to the Agent and the Banks in writing on or
prior to the Closing Date; (c) liens for current taxes,
assessments or other governmental charges which are not
delinquent or remain payable without any penalty; (d) liens in
connection with workers' compensation, unemployment insurance or
other social security obligations; (e) mechanics', worker's,
materialmen's, landlords', carriers' or other like liens arising
in the ordinary and normal course of business with respect to
obligations which are not due; (f) purchase money and other
security interests in personal or real property where the
security interests do not extend beyond the property, any
replacements and accessions thereto, and the proceeds thereof and
the amount of indebtedness does not materially exceed the value
of the property and, in the aggregate, the amount of all
indebtedness so secured does not exceed, at any time, 15% of the
Company's consolidated tangible fixed assets; (g) liens on assets
of corporations which become Subsidiaries after the date of this
Agreement, provided, however, that such liens existed at the time
the respective corporations became Subsidiaries and were not
created in anticipation thereof; (h) liens on assets of the
Company's Subsidiaries in favor of the Company in connection with
extensions of credit made available by the Company to its
Subsidiaries as permitted by Section 7.03; (i) liens on assets of
the Company granted after the date hereof pursuant existing
documentation in favor of United States National Bank of Oregon
in connection with letters of credit issued for the Company's
account in a maximum aggregate principal amount of $15,000,000;
and (j) liens on assets, other than current assets (except for
customary rights of set-off and bankers' liens with respect to
amounts on deposit), of the Company or its Subsidiaries incurred
in the ordinary course of business.
(b) The Company will not, and will not permit any of
its Subsidiaries to, enter into any contractual obligation which
prohibits the creation or assumption of any lien, security
interest or encumbrance upon or with respect to any part of its
properties or assets (including intangible assets, such as
patents and trademarks), whether now owned or hereafter acquired,
other than: (i) this Agreement and any other Loan Document; (ii)
in connection with extensions of credit by the Company to its
Subsidiaries (including Micron Electronics, Inc.) in an aggregate
principal amount not to exceed $100,000,000; (iii) in connection
with extensions of credit (whether or not guaranteed by the
Company) made available by persons other than the Company to the
Company's Subsidiaries (including Micron Electronics, Inc.) in an
aggregate principal amount not to exceed $100,000,000; and (iv)
in connection with equipment financing otherwise permitted by
this Agreement, pursuant to which the Company or Subsidiary, as
applicable, agrees not to create or assume any lien, security
interest or encumbrance (other than in favor of the person
providing such financing) upon or with respect to the equipment
being financed.
7.02 Sale of Assets; Mergers. Neither the Company nor any
of its Subsidiaries shall: (a) sell, lease or otherwise dispose
of all or substantially all of the business or assets of the
Company and its Subsidiaries taken as a whole; or (b) sell,
transfer, lease or dispose of its material assets (greater than
$1,000,000 individually) outside the ordinary course of business,
provided that the Company and its Subsidiaries may sell,
transfer, lease or dispose of assets (other than accounts
receivable) with value, in the cumulative aggregate for the
Company and its Subsidiaries, of up to 10% of the Company's
consolidated tangible assets as of the most recently ended fiscal
quarter. The Company shall not liquidate or dissolve or enter
into any consolidation, reorganization or merger; except that:
(a) any Subsidiary may merge with the Company, provided that the
Company shall be the continuing or surviving corporation; and (b)
the Company or any Subsidiary may enter into a consolidation,
reorganization or merger to the extent required in connection
with an acquisition permitted pursuant to Section 7.03, provided
that the Company or such Subsidiary shall be the continuing or
surviving corporation.
7.03 Loans and Investments. Neither the Company nor any of
its Subsidiaries shall make any loans, advances or other
extensions of credit to, or agree to be liable for the
obligations of, or invest in any other person, firm, corporation
or other entity, other than: (a) investments in cash equivalents
and liquid investments; (b) extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or
lease of goods or services in the ordinary course of business;
(c) extensions of credit by the Company to any of its
Subsidiaries or by any of its Subsidiaries to another of its
Subsidiaries; (d) incidental loans to employees in the ordinary
course of business and as part of their overall compensation
package, and (e) equity investments in or loans to another
person, firm, corporation or other entity, provided, that (in the
case of clause (e) only): (i) the investment or loan is made in
the ordinary course of business, (ii) the cumulative aggregate
principal amount (in the case of a loan) or the aggregate
consideration paid (including the assumption of debt) or assets
contributed (in the case of an investment) in all such
investements or loans after the Closing Date (including the
proposed investment or loan) does not exceed 25% of the
consolidated tangible assets of the Company as of the fiscal
quarter immediately preceding the proposed investment or loan,
(iii) no Default or Event of Default has occurred or would occur
as a result of such investment or loan on a pro forma basis, (iv)
such investment or loan is undertaken in accordance with all
applicable requirements of law, and (v) in connection with any
investment or loan that constitutes the acquisition or purchase
of control of another person, firm, corporation or other entity,
the prior, effective written consent or approval to such
acquisition of the board of directors or equivalent governing
body of the acquiree is obtained.
7.04 Restricted Payments. Neither the Company nor any of
its Subsidiaries shall declare or pay any dividends or
distributions on any of its shares now or hereafter existing, or
purchase, redeem or otherwise acquire for value any of its
shares, or create any sinking fund in relation thereto, except
that the Company may declare and pay dividends payable from
earnings available therefor; provided, that the aggregate amount
of such dividends does not exceed 25% of the Company's
consolidated net income for the most recently ended fiscal
quarter and the three fiscal quarters immediately preceding such
quarter.
7.05 Business Activities. The Company shall not engage in
any material business activities or operations substantially
different from or unrelated to present business activities and
operations.
7.06 Regulations G, T, U, and X. The Company shall not,
and shall not permit any of its Subsidiaries to, use any portion
of the proceeds of any Loans, directly or indirectly, (a) to
purchase or carry margin stock (within the meanings of
Regulations G, T, U, and X of the Board of Governors of the
Federal Reserve System), (b) to repay or otherwise refinance
indebtedness of the Company or others incurred to purchase or
carry any such margin stock, (c) to extend credit for the purpose
of purchasing or carrying any such margin stock, or (d) to
acquire any security in any transaction that is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as
amended.
7.07 Adjusted Quick Ratio. The Company shall not permit,
as of the last day of any fiscal quarter, the ratio of (a) the
sum of (i) cash equivalents and liquid investments, and (ii) net
trade accounts receivable of the Company and its Subsidiaries on
a consolidated basis, to (b) current liabilities of the Company
and its Subsidiaries on a consolidated basis (plus long-term
liabilities related to customer deposits and any Loans), to be
less than 0.50 to 1.00.
ARTICLE VIII - EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) any
amount of principal of any Loan when due, (ii) any interest or
commitment fee payable hereunder within five days after the same
becomes due, or (iii) any other amount payable hereunder or under
any other Loan Document within 30 days after the same becomes
due; or
(b) Representation or Warranty. Any representation or
warranty made herein or in any other Loan Document is incorrect
in any material respect on or as of the date made or deemed made;
or
(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in any of
Sections 6.02, 6.03(b) or 6.08 or in Article VII; or
(d) Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement or
any other Loan Document, and such default shall continue
unremedied for a period of 20 days after the earlier of (i) the
date upon which a responsible officer knew or reasonably should
have known of such failure, and (ii) the date upon which written
notice thereof is given to the Company by the Agent or any Bank;
or
(e) Cross-Acceleration. Any default occurs under any
single agreement involving the borrowing of money or the
extension of credit having an aggregate principal amount of more
than $10,000,000, or any group of such agreements having an
aggregate principal amount of more than $20,000,000, to which the
Company or any Subsidiary is a party as borrower, guarantor or
installment purchaser, if such default consists of the failure to
pay any principal obligation when due at maturity or, as a result
of such default, the holder of the obligation concerned
accelerates such obligation; or
(f) Insolvency. The Company or any Subsidiary (i)
ceases to become solvent, (ii) fails to pay the its debts
generally as they come due, or (iii) files any petition,
proceeding, case, or action for relief under any bankruptcy,
reorganization, insolvency, or moratorium law, or any other law
or laws for the relief of, or relating to, debtors; or an
involuntary petition is filed under any bankruptcy or similar
statute against the Company or any Subsidiary, or a receiver,
trustee, liquidator, assignee, custodian, sequestrator, or other
similar official is appointed to take possession of the
properties of the Company or any Subsidiary.
(g) Judgments. One or more non-interlocutory
judgments or arbitration awards are entered against the Company
or any of its Subsidiaries, or the Company or any of its
Subsidiaries enters into any settlement agreement with respect to
any litigation or arbitration, in the aggregate amount of
$20,000,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof; or any non-monetary judgment, order or
decree is entered against the Company or any Subsidiary which
does or would reasonably be expected to have a Material Adverse
Effect, and there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
or
(h) Change of Control. If any person or two or more
persons acting in concert, other than J.R. Simplot, J.R. Simplot
Company, Simplot Canada Limited and any other persons under
common control of any of the foregoing, or a member of J.R.
Simplot's immediate family, shall either acquire beneficial
ownership, directly or indirectly, of, or acquire by contract or
otherwise, or enter into a contract or arrangement which upon
consummation will result in its or their acquisition of, or
control over, securities of the Company (or other securities
convertible into such securities) representing 30% or more of the
combined voting power of all securities of the Company entitled
to vote in the election of directors.
8.02 Remedies. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, the
Majority Banks: (a) declare the commitment of each Bank to make
Loans to be terminated, whereupon such commitments shall be
terminated; (b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and (c)
exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents
or applicable law; provided, however, that upon the occurrence of
any event specified in subsection 8.01(f), the obligation of each
Bank to make Loans shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and
payable without further act of the Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
ARTICLE IX - AGENCY
Certain agreements between the Agent and the Banks are set
forth in Annex IX hereto.
ARTICLE X - MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of
any provision of this Agreement or any other Loan Document, and
no consent with respect to any departure by the Company or any
applicable Subsidiary therefrom, shall be effective unless the
same shall be in writing and signed by all the Banks (or by the
Agent at the written request of all the Banks) and the Company
and acknowledged by the Agent, and then any such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, that (i) no
amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to all the Banks, affect the rights or
duties of the Agent under this Agreement or any other Loan
Document, and (ii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed by the
parties thereto.
10.02 Notices. All notices, requests, consents, approvals,
waivers and other communications shall be in writing and mailed,
faxed or delivered to the address or facsimile number designated
from time to time by each party in a written notice to the other
parties. All such notices, requests and communications shall,
when transmitted by overnight delivery or faxed, be effective
when delivered for overnight (next-day) delivery or transmitted
in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the
U.S. mail, or if delivered, upon delivery; except that notices
pursuant to Article II or Annex IX to the Agent shall not be
effective until actually received by the Agent. Any agreement of
the Agent and the Banks herein to receive certain notices by
telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be
entitled to rely on the authority of any person purporting to be
a person authorized by the Company to give such notice and the
Agent and the Banks shall not have any liability to the Company
or other person on account of any action taken or not taken by
the Agent or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the
Loans shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt
by the Agent and the Banks of a confirmation which is at variance
with the terms understood by the Agent and the Banks to be
contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Bank, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall: (a) whether
or not the transactions contemplated hereby are consummated, pay
or reimburse BofA, including in its capacity as Agent, and the
Arranger for all reasonable costs and expenses incurred by such
persons in connection with the development, preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including reasonable Attorney Costs incurred by such person with
respect thereto; and (b) pay or reimburse the Agent and each Bank
for all costs and expenses (including Attorney Costs) incurred by
it in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any insolvency proceeding or appellate
proceeding).
10.05 Company Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Company
shall indemnify, defend and hold the Agent-Related Persons and
each Bank, and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person"), harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements
(including reasonable Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or
replacement of the Agent or replacement of any Bank) be imposed
on, incurred by or asserted against any such person in favor of
any third-party in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein,
or the transactions contemplated hereby, or any action taken or
omitted by any such person under or in connection with any of the
foregoing, including with respect to any investigation,
litigation or proceeding (including any insolvency proceeding or
appellate proceeding) related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, whether or not
any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the
Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting solely
from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section shall survive
payment of all other Obligations.
10.06 Payments Set Aside. To the extent that the Company
makes a payment to the Agent or the Banks, or the Agent or the
Banks exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by
the Agent or such Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any
insolvency proceeding or otherwise, then (a) to the extent of
such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had
not occurred, and (b) each Bank severally agrees to pay to the
Agent upon demand its pro rata share of any amount so recovered
from or repaid by the Agent.
10.07 Successors and Assigns; Participations. The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns, except that neither the Company nor any Bank may
assign or transfer (including by participation) any of its rights
or obligations under this Agreement without the prior written
consent of the Agent. Notwithstanding the foregoing, any Bank
may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement
held by it in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal
Reserve Board or U.S. Treasury Regulation 31 CFR Section 203.14,
and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
10.08 Set-off. In addition to any rights and remedies of
the Banks provided by law, if an Event of Default exists or the
Loans have been accelerated, each Bank is authorized at any time
and from time to time, without prior notice to the Company, any
such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such
Bank to or for the credit or the account of the Company against
any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document
and although such Obligations may be contingent or unmatured.
Each Bank agrees promptly to notify the Company and the Agent
after any such set-off and application made by such Bank;
provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
10.09 Notification of Addresses, Lending Offices, Etc.
Each Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of any lending office, of payment instructions in
respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
10.10 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same
instrument.
10.11 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.12 No Third Parties Benefitted. This Agreement is made
and entered into for the sole protection and legal benefit of the
Company, the Banks, the Agent and the Agent-Related Persons, and
their permitted successors and assigns, and no other person shall
be a direct or indirect legal beneficiary of, or have any direct
or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
10.13 Governing Law and Jurisdiction. THIS AGREEMENT AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND
THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
OF THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE
BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
CALIFORNIA LAW.
10.14 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE COMPANY, THE BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.15 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and
understanding among the Company, the Banks and the Agent, and
supersedes all prior or contemporaneous agreements and
understandings of such persons, verbal or written, relating to
the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
MICRON TECHNOLOGY, INC.
By: W. G. Stover Jr.
--------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: Wendy M. Young
--------------------------
Title: Vice President
Commitments:
$62,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: Michael Mccutchin
--------------------------
Title: Vice President
$62,500,000 SEATTLE FIRST NATIONAL BANK
By: Thomas P. Rook
--------------------------
Title: Vice President
$62,500,000 BANK OF MONTREAL
By: J. Donald Higgins, Managing Director
--------------------------
Title: Vice President
$62,500,000 UNITED STATES NATIONAL BANK OF
OREGON
By: Jeff A. Killian
--------------------------
Title: Vice President
<PAGE>
ANNEX I
DEFINITIONS; OTHER INTERPRETIVE PROVISIONS;
ACCOUNTING PRINCIPLES
1. Definitions. The following terms have the meanings
assigned to them:
"Agent-Related Persons" means BofA, together with its
affiliates (including the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such persons.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the
reasonable allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
"Base Rate" means, for any day, the higher of: (a) 0.50%
per annum above the latest Federal Funds Rate; and (b) the rate
of interest in effect for such day as publicly announced from
time to time by BofA in San Francisco, California, as its
"reference rate." (The "reference rate" is a rate set by BofA
based upon various factors including BofA's costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.) Any change in
the reference rate announced by BofA shall take effect at the
opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans
of the same Type made to the Company on the same day by the Banks
under Article II and, in the case of Offshore Rate Loans, having
the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks in New York City or San
Francisco are authorized or required by law to close and, if the
applicable Business Day relates to any Offshore Rate Loan, means
such a day on which dealings are carried on in the applicable
offshore dollar interbank market.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived by
all Banks (or, in the case of subsection 4.01(f), waived by the
person entitled to receive such payment).
"Conversion/Continuation Date" means any date on which,
under Section 2.04, the Company (a) converts Loans of one Type to
another Type, or (b) continues as Loans of the same Type, but
with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured
or otherwise remedied during such time) constitute an Event of
Default.
"Federal Funds Rate" means, for any day, the rate set forth
in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of
New York (including any such successor, "H.15(519)") on the
preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the
rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by
each of three leading brokers of Federal funds transactions in
New York City selected by the Agent.
"Interest Payment Date" means, as to any Offshore Rate Loan,
the last day of each Interest Period applicable to such Loan and,
as to any Base Rate Loan, the last Business Day of each calendar
quarter and each date such Loan is converted into an Offshore
Rate Loan.
"Interest Period" means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into
or continued as an Offshore Rate Loan, and ending on the date
either one week or one month thereafter as selected by the
Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided, that:
(a) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall
be extended to the following Business Day, unless the result
of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(b) any Interest Period pertaining to an Offshore Rate
Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) no Interest Period for any Loan shall extend
beyond the Revolving Termination Date.
"Loan" means an extension of credit by a Bank to the Company
under Article II, and may be a Base Rate Loan or an Offshore Rate
Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, the Notes, the Fee
Letter and all other documents delivered to the Agent or any Bank
in connection herewith.
"Majority Banks" means at any time Banks then holding at
least 75% of the then aggregate unpaid principal amount of the
Loans, or, if no such principal amount is then outstanding, Banks
then having at least 75% of the Commitments.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, properties or condition (financial or otherwise) of the
Company or the Company and its Subsidiaries taken as a whole; (b)
a material impairment of the ability of the Company to perform
under any Loan Document and to avoid any Event of Default; or (c)
a material adverse effect upon the legality, validity, binding
effect or enforceability against the Company of any Loan
Document.
"Note" means a promissory note executed by the Company in
favor of a Bank pursuant to Section 2.02, in substantially the
form of Exhibit C.
"Notice of Borrowing" means a notice in substantially the
form of Exhibit A hereto.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B hereto.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document
owing by the Company to any Bank, the Agent or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the
rate of interest per annum (rounded upward to the next 1/16th of
1%) determined by the Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day in
any Interest Period the maximum reserve percentage
(expressed as a decimal, rounded upward to the next 1/100th
of 1%) in effect on such day under regulations issued from
time to time by the Board of Governors of the Federal
Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency
liabilities"); and
"LIBOR" means, with respect to any Interest Period, the
rate of interest per annum determined by the Agent (rounded
upward to the next 1/16th of 1%) equal to the rate of
interest per annum at which dollar deposits in the
approximate amount of the amount of the Loan to be made or
continued as, or converted into, an Offshore Rate Loan by
BofA and having a maturity comparable to such Interest
Period would be offered to major banks in the London
interbank market at the Agent's request at approximately
11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to
all Offshore Rate Loans then outstanding as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based
on the Offshore Rate.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the
ninth decimal place) at such time of such Bank's Commitment
divided by the combined Commitments of all Banks.
"Revolving Termination Date" means the earlier to occur of:
(a) May 9, 1996, and (b) the date on which the Commitments
terminate in accordance with the provisions of this Agreement.
"Subsidiary" of a person means any corporation, association,
partnership, limited liability company, joint venture or other
business entity of which more than 50% of the voting stock,
membership interests or other equity interests (in the case of
persons other than corporations), is owned or controlled directly
or indirectly by the person, or one or more of the Subsidiaries
of the person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
2. Other Interpretive Provisions.
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision
of this Agreement; and subsection, Section, schedule, exhibit and
annex references are to this Agreement unless otherwise
specified. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced. The term
"including" is not limiting and means "including without
limitation." In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to
but excluding", and the word "through" means "to and including."
The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this
Agreement.
(b) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or
regulation.
(c) This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Agent or the Banks
by way of consent, approval or waiver shall be deemed modified by
the phrase "in its/their sole discretion."
(d) This Agreement and the other Loan Documents are
the result of negotiations among and have been reviewed by
counsel to the Agent, the Company and the other parties, and are
the products of all parties. Accordingly, they shall not be
construed against the Banks or the Agent merely because of the
Agent's or Banks' involvement in their preparation.
3. Accounting Principles. Unless otherwise specified in
this Agreement, all accounting terms used in this Agreement shall
be interpreted, all financial computations required under this
Agreement shall be made, and all financial information required
under this Agreement shall be prepared, in accordance with
generally accepted accounting principles in effect from time to
time in the United States, consistently applied.
<PAGE>
ANNEX IX
AGENCY
The Agent and each of the Banks hereby agree among
themselves as follows:
(a) Appointment and Authorization; "Agent". Each Bank
hereby irrevocably (subject to subsection (i) of this Annex IX)
appoints, designates and authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement
or in any other Loan Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent"
in this Agreement with reference to the Agent is not intended to
connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead,
such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
(c) Liability of Agent. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the
Company or any Subsidiary or affiliate of the Company, or any
officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or affiliates.
(d) Reliance by Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or
other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
person or persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Majority
Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority
Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks. For
purposes of determining compliance with the conditions specified
in Section 4.01, each Bank that has executed this Agreement shall
be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the
Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Bank.
(e) Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Agent
for the account of the Banks, unless the Agent shall have
received written notice from a Bank or the Company referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Agent
will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in
accordance with Article VIII; provided, however, that unless and
until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the
Banks.
(f) Credit Decision. Each Bank acknowledges that none of
the Agent-Related Persons has made any representation or warranty
to it, and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company and its Subsidiaries,
shall be deemed to constitute any representation or warranty by
any Agent-Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations,
property, financial and other condition and credit worthiness of
the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Agreement and to
extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations,
property, financial and other condition and credit worthiness of
the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning
the business, prospects, operations, property, financial and
other condition or credit worthiness of the Company which may
come into the possession of any of the Agent-Related Persons.
(g) Indemnification of Agent. Whether or not the
transactions contemplated hereby are consummated, the Banks shall
indemnify upon demand the Agent-Related Persons (to the extent
not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata, from
and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such person's gross negligence
or willful misconduct. Without limitation of the foregoing, each
Bank shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document,
or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
(h) Agent in Individual Capacity. BofA and its affiliates
may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Company and its
Subsidiaries and affiliates as though BofA were not the Agent
hereunder and without notice to or consent of the Banks. The
Banks acknowledge that, pursuant to such activities, BofA or its
affiliates may receive information regarding the Company or its
affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to
its Loans, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though
it were not the Agent, and the terms "Bank" and "Banks" include
BofA in its individual capacity.
(i) Successor Agent. The Agent may, and at the request of
the Majority Banks shall, resign as Agent upon 30 days' notice to
the Banks. If the Agent resigns under this Agreement, the
Majority Banks shall appoint from among the Banks a successor
agent for the Banks, which successor agent shall be approved by
the Company. If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may
appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Annex IX and Sections
10.04 and 10.05 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder until such time,
if any, as the Majority Banks appoint a successor agent as
provided for above.
(j) Withholding Tax. (i) If any Bank is a "foreign
corporation, partnership or trust" within the meaning of the Code
and such Bank claims exemption from, or a reduction of, U.S.
withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Agent, to deliver to the
Agent:
(A) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed copies of IRS
Form 1001 before the payment of any interest in the first
calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be
paid under this Agreement;
(B) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States
trade or business of such Bank, two properly completed and
executed copies of IRS Form 4224 before the payment of any
interest is due in the first taxable year of such Bank and
in each succeeding taxable year of such Bank during which
interest may be paid under this Agreement; and
(C) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(ii) If any Bank claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
IRS Form 1001 and such Bank sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such
Bank. To the extent of such percentage amount, the Agent will
treat such Bank's IRS Form 1001 as no longer valid.
(iii) If any Bank claiming exemption from United
States withholding tax by filing IRS Form 4224 with the Agent
sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company to such Bank, such
Bank agrees to undertake sole responsibility for complying with
the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(iv) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any
interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such
reduction. However, if the forms or other documentation required
by this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Bank not providing
such forms or other documentation an amount equivalent to the
applicable withholding tax imposed by Sections 1441 and 1442 of
the Code, without reduction.
(v) If the IRS or any other governmental authority of
the United States or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not
delivered or was not properly executed, or because such Bank
failed to notify the Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Bank shall indemnify
the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, together with
all costs and expenses (including Attorney Costs). The
obligation of the Banks under this subsection shall survive the
payment of all Obligations and the resignation or replacement of
the Agent.
(vi) As used in this Section, "Code" means the Internal
Revenue Code of 1986, and regulations promulgated thereunder, and
"IRS" means the Internal Revenue Service, and any governmental
authority succeeding to any of its principal functions under the
Code.
<PAGE>
EXHIBIT A
NOTICE OF BORROWING
Date: _____________, 199__
To: Bank of America National Trust and Savings Association,
as Agent for the Banks party to the Revolving Credit
Agreement dated as of February 12, 1996 (as amended,
the "Credit Agreement") among Micron Technology, Inc.,
the several financial institutions party thereto (the
"Banks"), and Bank of America National Trust and
Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, Micron Technology, Inc. (the "Company"),
refers to the Credit Agreement, the terms defined therein being
used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 2.03 of the Credit Agreement, of
the Borrowing specified below:
1. The Business Day of the proposed Borrowing is
_______________, 199__.
2. The aggregate amount of the proposed Borrowing is
$____________.
3. The Borrowing is to be comprised of $___________ of
[Base Rate] [Offshore Rate] Loans.
[4. The duration of the Interest Period for the
Offshore Rate Loans included in the Borrowing shall be one
[week] [month].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
proposed Borrowing Date, before and after giving effect thereto
and to the application of the proceeds therefrom:
(a) the representations and warranties of the Company
contained in Article V of the Credit Agreement are true and
correct as though made on and as of such date;
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing;
and
(c) The proposed Borrowing will not cause the
aggregate principal amount of all outstanding Loans to
exceed the combined Commitments of the Banks.
MICRON TECHNOLOGY, INC.
By:
-------------------------
Title:
<PAGE>
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date: _____________, 199__
To: Bank of America National Trust and Savings Association,
as Agent for the Banks party to the Revolving Credit
Agreement dated as of February 12, 1996 (as amended,
the "Credit Agreement") among Micron Technology, Inc.,
the several financial institutions party thereto (the
"Banks"), and Bank of America National Trust and
Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, Micron Technology, Inc. (the "Company"),
refers to the Credit Agreement, the terms defined therein being
used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 2.04 of the Credit Agreement, of
the [conversion] [continuation] of the Loans specified herein,
that:
1. The Conversion/Continuation Date is ______________,
199__.
2. The aggregate amount of the Loans to be [converted]
[continued] is $_______________.
3. The Loans are to be [converted into] [continued as]
[Offshore Rate] [Base Rate] Loans.
[4. The duration of the Interest Period for the
Offshore Rate Loans included in the [conversion]
[continuation] shall be one [week] [month].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
proposed Conversion/Continuation Date, before and after giving
effect thereto and to the application of the proceeds therefrom:
(a) the representations and warranties of the Company
contained in Article V of the Credit Agreement are true and
correct as though made on and as of such date; and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed conversion or
continuation.
MICRON TECHNOLOGY, INC.
By:
------------------------
Title:
<PAGE>
EXHIBIT C
FORM OF PROMISSORY NOTE
$62,500,000 February 12, 1996
FOR VALUE RECEIVED, the undersigned, Micron Technology,
Inc., a Delaware corporation (the "Company"), hereby promises to
pay to the order of [Name of Bank] (the "Bank") the principal sum
of Sixty-Two Million Five Hundred Thousand Dollars ($62,500,000)
or, if less, the aggregate unpaid principal amount of all Loans
made by the Bank to the Company pursuant to the Revolving Credit
Agreement, dated as of February 12, 1996 (such Revolving Credit
Agreement, as it may be amended, restated, supplemented or
otherwise modified from time to time, being hereinafter called
the "Credit Agreement"), among the Company, the Bank, the other
banks parties thereto, and Bank of America National Trust and
Savings Association, as Agent for the Banks, on the dates and in
the amounts provided in the Credit Agreement. The Company
further promises to pay interest on the unpaid principal amount
of the Loans evidenced hereby from time to time at the rates, on
the dates, and otherwise as provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on
which each Loan is made, the maturity date therefor and each
payment of principal with respect thereto on schedules to be
annexed hereto and made a part hereof, or on continuations
thereof which shall be attached hereto and made a part hereof;
provided, that any failure to endorse such information on such
schedule or continuation thereof shall not in any manner affect
any obligation of the Company under the Credit Agreement and this
Promissory Note (the "Note").
This Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement, which Credit
Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions
therein specified.
Terms defined in the Credit Agreement are used herein with
their defined meanings therein unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of California applicable
to contracts made and to be performed entirely within such State.
MICRON TECHNOLOGY, INC.
By:
-------------------------
Title:
By:
-------------------------
Title:
Exhibit 11
MICRON TECHNOLOGY, INC.
Computation of Per Share Earnings
(Amounts in millions except for per share amounts)
<TABLE>
<CAPTION>
February 29, March 2,
For the quarter ended 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
PRIMARY
Weighted average shares outstanding 207.3 204.6
Net effect of dilutive stock options 7.9 8.2
-------- --------
Total shares 215.2 212.8
======== ========
Net income $ 188.2 $ 183.5
======== ========
Primary earnings per share $0.87 $0.86
===== =====
FULLY DILUTED
Weighted average shares outstanding 207.3 204.6
Net effect of dilutive stock options 7.9 9.7
-------- --------
Total shares 215.2 214.3
======== ========
Net income $ 188.2 $ 183.5
======== ========
Fully diluted earnings per share $0.87 $0.86
===== =====
</TABLE>
17
<PAGE>
Exhibit 11
MICRON TECHNOLOGY, INC.
Computation of Per Share Earnings
(Amounts in millions except for per share amounts)
<TABLE>
<CAPTION>
February 29, March 2,
For the six months ended 1996 1995
- ----------------------------------------------------------------------
<S> <C> <C>
PRIMARY
Weighted average shares outstanding 207.0 204.3
Net effect of dilutive stock options 9.4 7.3
-------- --------
Total shares 216.4 211.6
======== ========
Net income $ 516.7 $ 342.8
======== ========
Primary earnings per share $2.39 $1.62
===== =====
FULLY DILUTED
Weighted average shares outstanding 207.0 204.3
Net effect of dilutive stock options 9.4 9.3
-------- --------
Total shares 216.4 213.6
======== ========
Net income $ 516.7 $ 342.8
======== ========
Fully diluted earnings per share $2.39 $1.61
===== =====
</TABLE>
18
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
the accompanying financial statements and is qualified in its entirety
by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> AUG-29-1996
<PERIOD-END> FEB-29-1996
<CASH> 387
<SECURITIES> 11
<RECEIVABLES> 454
<ALLOWANCES> 35
<INVENTORY> 294
<CURRENT-ASSETS> 1,213
<PP&E> 3,039
<DEPRECIATION> 720
<TOTAL-ASSETS> 3,642
<CURRENT-LIABILITIES> 850
<BONDS> 144
0
0
<COMMON> 21
<OTHER-SE> 2,393
<TOTAL-LIABILITY-AND-EQUITY> 3,642
<SALES> 2,182
<TOTAL-REVENUES> 2,182
<CGS> 1,090
<TOTAL-COSTS> 1,361
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (13)
<INCOME-PRETAX> 834
<INCOME-TAX> 317
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 517
<EPS-PRIMARY> 2.39
<EPS-DILUTED> 2.39
</TABLE>
