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As filed with the Securities and Exchange Commission on July 20, 1998
Registration No. 333-57973
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1993
__________________
MICRON TECHNOLOGY, INC.
(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 South Federal Way, P.O. Box 6
Boise, Idaho 83707-0006
(208) 368-4000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
__________________
RODERIC W. LEWIS, ESQ.
Vice President of Legal Affairs, General Counsel and Corporate Secretary
Micron Technology, Inc.
8000 South Federal Way, P.O. Box 6
Boise, Idaho 83707-0006
(208) 368-4000
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
__________________
Copies to:
John A. Fore, Esq.
Patrick J. Schultheis, Esq. Jacques K. Meguire, Esq.
Stephen F. Diamond, Esq. Sonnenschein Nath & Rosenthal
Wilson Sonsini Goodrich & Rosati 8000 Sears Tower
Professional Corporation Chicago, Illinois 60606-6404
650 Page Mill Road (312) 876-8000
Palo Alto, California 94304-1050
(650) 493-9300
__________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
__________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JULY 20, 1998
7,600,000 SHARES
MICRON TECHNOLOGY, INC.
COMMON STOCK
All of the 7,600,000 shares of Common Stock (the "Shares") of Micron
Technology, Inc. ("Micron" or the "Company") offered hereby are being offered
for sale from time to time by one of the Company's stockholders (the "Selling
Stockholder"). See "Selling Stockholder." The Company has been advised that the
Selling Stockholder expects to deliver the shares to close out short positions
entered into in the course of hedging transactions. See "Plan of Distribution."
The Company will not receive any of the proceeds from the sales of shares by the
Selling Stockholder.
__________________
SEE "RISK FACTORS" COMMENCING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
__________________
THE SELLING STOCKHOLDER WILL BEAR ALL DISCOUNTS AND COMMISSIONS PAID TO BROKERS,
DEALERS OR AGENTS IN CONNECTION WITH THE SALE OF THE SHARES AND THE FEES
AND EXPENSES OF ANY COUNSEL AND OTHER ADVISERS THAT THE SELLING
STOCKHOLDER MAY EMPLOY TO REPRESENT IT IN THIS OFFERING.
__________________
THE COMMON STOCK IS QUOTED ON THE NEW YORK STOCK EXCHANGE UNDER THE TRADING
SYMBOL "MU." ON JULY __, 1998, THE LAST SALE PRICE OF THE COMMON
STOCK AS REPORTED BY THE NEW YORK STOCK EXCHANGE
TRANSACTIONS TAPE WAS $____ PER SHARE.
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_____ __, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, NW, Washington, D.C. 20549, and at the Commission's
Regional Offices located at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York,
New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, NW, Washington, D.C.
20549, at prescribed rates. The Common Stock is listed on the New York Stock
Exchange. Reports, proxy statements and other information concerning the Company
may be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005. The Commission maintains a World Wide Web site
that contains reports, proxy statements and information statements and other
information regarding registrants that file electronically with the Commission.
The address of the World Wide Web site is http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Shares. This Prospectus which
constitutes part of the Registration Statement does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement. Statements
contained in this Prospectus as to the contents of any contract or other
document are not necessarily complete, and in each instance, reference is made
to the copy of such contract or document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference. For further information with respect to the Company, reference is
made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
August 28, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarters
ended November 27, 1997, February 26, 1998 and May 28, 1998; and
(c) The Company's Registration Statement on Form 8-A (No. 1-10658),
declared effective by the Commission on November 28, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Registration Statement of which
this Prospectus forms a part and prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated by reference into
this Prospectus and to be a part of this Prospectus from the date of filing
thereof.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the Commission which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
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statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated by
reference, other than exhibits to such documents. Requests should be directed
to Roderic W. Lewis, Vice President of Legal Affairs, General Counsel and
Corporate Secretary, Micron Technology, Inc., 8000 South Federal Way, P.O. Box
6, Boise, Idaho 83707-0006, telephone (208) 368-4000.
THE COMPANY
Micron Technology, Inc. ("Micron" or the "Company") designs, develops,
manufactures and markets semiconductor memory products, primarily DRAM, and,
through its approximately 64% owned subsidiary, Micron Electronics, Inc., the
Company develops, markets, manufactures and supports PC systems. Micron was
incorporated in Idaho in 1978 and reincorporated in Delaware in 1984. The
Company's executive offices and principal manufacturing operations are located
at 8000 South Federal Way, Boise, Idaho, 83707-0006 and its telephone number is
(208) 368-4000.
RISK FACTORS
An investment in the Common Stock being offered hereby involves a high
degree of risk. Prospective investors should carefully consider the following
risk factors, in addition to the other information contained in or incorporated
by reference into this Prospectus, before purchasing the Common Stock offered
hereby. This Prospectus contains or incorporates by reference forward-looking
statements that involve risk and uncertainties made by or on behalf of the
Company. The actual results of the Company may differ materially from the
results discussed in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, those discussed in "Risk
Factors" as well as elsewhere in this Prospectus.
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CERTAIN FACTORS
The Company has entered into an acquisition agreement with Texas Instruments
Incorporated ("TI") to purchase substantially all of TI's memory operations and
assume certain related liabilities, but this transaction has not yet been
consummated. The transaction is subject to several conditions, including
satisfactory completion of due diligence and completion of appropriate
agreements with various third parties. In particular, the Company and TI need to
obtain the consent of the Italian government as well as each of the partners and
bank syndicates to TECH Semiconductor Singapore Pte. Ltd. ("TECH") and KTI
Semiconductor ("KTI"). The transaction is subject to customary regulatory
approvals (including Hart-Scott-Rodino and European antitrust reviews). There
can be no assurance that the conditions required to effect the transition will
be met and that the transaction will ever be consummated.
The integration and successful operation of the pending business to be
acquired is dependent upon a number of factors, including, but not limited to:
the Company's ability to transfer its product and process technology into the
acquired facilities in a timely and cost-effective manner; the availability of
sufficient funds to upgrade certain equipment at the facilities, particularly
should the actual cost exceed the Company's current estimate; the ability of
TECH and KTI to restructure each of their existing financing arrangements and
secure adequate additional financing to provide equipped facilities capable of
utilizing Micron's manufacturing processes; the Company's receipt of adequate
assistance, service and support from TI during the transition period following
consummation of the transaction; the Company's ability to effectively manage
global semiconductor manufacturing operations and distribution channels and
expand its sales and marketing programs; the Company's ability to retain key
employees of the acquired operations; the Company's success in transitioning the
key business relationships from TI's memory operations to the Company; the
Company's ability to implement and/or integrate information systems capable of
handling the expanded operations, including year 2000 compliance; and the
Company's ability to successfully integrate differing management structures, all
of which require significant management time and resources. In addition, the
long-term successful operation of the pending business to be acquired is
dependent upon the market for the Company's semiconductor memory products and
the Company's long-term ability to reduce manufacturing costs at a rate
commensurate with the decline in average selling prices for such products.
If consummated, it is expected that the pending acquisition will substantially
increase the Company's share of the worldwide DRAM market, and as a result the
Company would become even more sensitive to fluctuations in pricing for
semiconductor memory products. Many customers prefer multiple sources of supply
for semiconductor memory products, therefore the Company may not retain all of
TI's semiconductor memory market as some of TI's customers are currently
customers of the Company. It may become difficult to increase the Company's
customer base to a level required to sell the expected increase in production of
semiconductor memory products as a result of the transfer of its product and
process technology into the TI semiconductor memory production facilities. If
the Company is successful in the transfer of its product and process technology
into the acquired production facilities the amount of worldwide semiconductor
memory capacity could increase, resulting in further downward pricing pressure
on the Company's semiconductor memory products.
The pending acquisition is expected to have a significant effect on the
Company's future results of operations and cash flows, including, but not
limited to: a considerable negative impact on gross margin in the near term due
in part to significantly higher per unit manufacturing costs at the acquired
facilities; costs related to the assimilation of the acquired operations;
increased interest expense associated with the $740 million principal amount of
convertible subordinated notes ("Convertible Notes") and $210 million principal
amount of subordinated notes ("Subordinated Notes") to be issued in connection
with the TI acquisition and the Italian debt to be assumed in the transaction;
an increase in capital spending relating to the newly acquired facilities; and
the potential for further downward pressure on the average selling prices the
Company receives on its semiconductor memory products. The Company will account
for the pending acquisition as a purchase, which could result in a write-off
related to in-process research and development at the time of closing of the
acquisition and the creation of intangible assets that could result in
significant future amortization expense.
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
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conditions. These characteristics historically have made the semiconductor
industry highly cyclical, particularly in the market for DRAMs, which are the
Company's primary semiconductor memory products. The semiconductor industry has
a history of declining average sales prices as products mature. Long-term
average decreases in sales prices for semiconductor memory products approximate
30% on an annualized basis; however, significant fluctuations from this rate
have occurred from time to time, as evidenced by the 75% decline in average
selling prices for the Company's semiconductor memory products for 1997 and the
sequential 25%, 26% and 30% declines in average selling prices in the first,
second and third quarters of 1998 as compared to the preceding quarters.
The selling prices for the Company's semiconductor memory products fluctuate
significantly with real and perceived changes in the balance of supply and
demand for these commodity products. Growth in worldwide supply has outpaced
growth in worldwide demand in recent periods, resulting in a significant
decrease in average selling prices for the Company's semiconductor memory
products. For most of fiscal 1997 the rate at which the Company was able to
decrease per unit manufacturing costs exceeded the rate of decline in average
selling prices, due mainly to a transition to a higher density product.
However, in the fourth quarter of 1997 and the first nine months of 1998 the
Company was unable to decrease per unit manufacturing costs at a rate
commensurate with the decline in average selling prices. In the event that
average selling prices continue to decline at a faster rate than that at which
the Company is able to decrease per unit manufacturing costs, the Company could
be materially adversely affected in its operations, cash flows and financial
condition. The amount of capacity to be placed into production and future yield
improvements by the Company and its competitors could dramatically increase
worldwide supply of semiconductor memory and increase downward pressure on
pricing. Further, the Company has no firm information with which to determine
inventory levels of its competitors, or to determine the likelihood that
substantial inventory liquidation may occur and cause further downward pressure
on pricing.
In the event that average selling prices continue to decline at a faster rate
than that at which the Company is able to decrease per unit manufacturing costs,
the Company would likely be required to make changes in its operations,
including but not limited to, reduction of the amount or changes in the timing
of its capital expenditures, renegotiation of existing debt agreements,
reduction of production and workforce levels, reduction of research and
development, or changes in the products produced.
Worldwide semiconductor pricing can be and has been influenced by currency
fluctuations. In the last twelve months the Korean Won, the New Taiwan Dollar
and the Japanese Yen were devalued significantly, dropping approximately 55%,
24% and 21%, respectively, compared to the U.S. dollar. The Company believes
the Asian economic crisis, particularly in Korea, has prompted Asian
competitors to price DRAM products significantly lower in an attempt to
increase exports and realize U.S. dollars to service their near term debts.
The Company believes these currency devaluations may have a significant
adverse impact on DRAM pricing if the Company's Asian competitors effectively
offer products at significantly lower prices as a result of their respective
currency devaluations. While the Company cannot predict the overall impact of
the Asian currency devaluations, the Company's products may be subject to
further downward pricing pressure. If average selling prices for semiconductor
memory products continue to decline, the Company's results of operations and
cash flow will continue to be adversely affected.
Approximately 68% of the Company's sales of semiconductor memory products
during the third quarter of 1998 were directly into the PC or peripheral
markets. DRAMs are the most widely used semiconductor memory component in most
PC systems. Should the rate of growth of sales of PC systems or the rate of
growth in the amount of memory per PC system decrease, the growth rate for sales
of semiconductor memory could also decrease, placing further 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 significant factors
influencing pricing for the Company's semiconductor memory products. In recent
periods the PC industry has seen a shift in demand towards sub-$1000 PCs. While
the Company cannot predict with any degree of accuracy the future impact on the
PC and semiconductor industry of this shift, possible effects include, but are
not limited to, further downward pricing pressure on PC systems and further
downward pricing pressure on semiconductor memory products.
The Company's operating results are significantly impacted by the operating
results of its consolidated subsidiaries, particularly Micron Electronics, Inc.
("MEI"). MEI's past operating results have been, and its future operating
results may be, subject to seasonality and other fluctuations, on a quarterly
and an annual basis, as a result of a wide variety of factors, including, but
not limited to, industry competition, MEI's ability to accurately forecast
demand and selling
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prices for its PC products, fluctuating market pricing for
PCs and semiconductor memory products, seasonal government purchasing cycles,
inventory obsolescence, MEI's ability to effectively manage inventory levels,
changes in product mix, manufacturing and production constraints, fluctuating
component costs, the effects of product reviews and industry awards, critical
component availability, seasonal cycles common in the PC industry and the timing
of new product introductions by MEI and its competitors. Changing circumstances,
including but not limited to, changes in the Company's core operations, uses of
capital, strategic objectives and market conditions, could result in the Company
changing its ownership interest in its subsidiaries.
The Company is engaged in ongoing efforts to enhance its semiconductor
production processes to reduce per unit costs by reducing the die size of
existing products. The result of such efforts has led to a significant increase
in megabit production. There can be no assurance that the Company will be able
to maintain or approximate increases in megabit production at a level
approaching that experienced in recent periods or that the Company will not
experience decreases in production volume as it attempts to implement future
technologies. Further, from time to time, the Company experiences volatility in
its manufacturing yields, as it is not unusual to encounter difficulties in
ramping latest shrink versions of existing devices or new generation devices to
commercial volumes. The Company's ability to reduce per unit manufacturing
costs 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.
The semiconductor memory industry is characterized by frequent product
introductions and enhancements. The Company's transition to Synchronous DRAM
("SDRAM") products reached approximately 70% of DRAM wafer starts at the end of
the third quarter of 1998. The Company's transition from the 16 Meg to the 64
Meg SDRAM as its primary memory product is expected to occur in the fourth
quarter of calendar 1998. It is not unusual to encounter difficulties in
manufacturing while transitioning to shrink versions of existing products or new
generation products. Future gross margins will be adversely impacted if the
Company is unable to efficiently transition to shrink versions of the 64 Meg
SDRAM.
DRAM manufacturers generally have substantial ongoing capital requirements to
maintain or increase manufacturing capacity. Historically, the Company has
reinvested substantially all cash flow from semiconductor memory operations in
capacity expansion and enhancement programs. The Company's cash flows from
operations are significantly affected by average selling prices and variable
cost per megabit for the Company's semiconductor memory products. For the first
nine months of 1998, the rate of decline in average selling prices for
semiconductor memory products surpassed the rate at which the Company was able
to decrease costs per megabit, and as a result the Company's cash flows have
been significantly and adversely affected. If for any extended period of time
average selling prices decline faster than the rate at which the Company is able
to decrease per unit manufacturing costs, the Company may not be able to
generate sufficient cash flows from operations to sustain operations. The
Company anticipates that it will spend approximately $900 million in fiscal 1998
for purchases of equipment and construction and improvement of buildings at the
Company's existing facilities. However, in the event current market conditions
continue, the Company does not expect to have sufficient internal sources of
liquidity to effect its current operational plan and will need to secure
additional financing from external sources. The Company has a $500 million
revolving credit agreement, which is available to finance its semiconductor
operations. However, the agreement contains certain restrictive covenants,
including a minimum fixed charge coverage ratio and a maximum operating losses
covenant. On June 16, 1998, the Company amended the agreement to collateralize
the facility with certain accounts receivable, inventory and equipment at its
Boise facility and modify the maximum operating loss covenant for the third
quarter of 1998. There can be no assurance that the Company will be able to
meet the terms of the covenants and conditions in the agreement, borrow under
the agreement, renegotiate a satisfactory new agreement, or replace the existing
agreement with a satisfactory replacement, in which event the Company may not
have access to the credit facility. Cash generated by, and credit lines
available to, MEI are not anticipated to be available to finance other Micron
operations. The Company is currently evaluating a number of financing
alternatives. There can be no assurance that external sources of liquidity will
be available to fund the Company's ongoing operations or the Company's capacity
enhancement program. The failure to obtain financing would hinder the Company's
ability to make continued investments in its capacity enhancement program, which
could materially adversely affect the Company's business and results of
operations.
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Completion of the Company's semiconductor manufacturing facility in Lehi, Utah
was suspended in February 1996, as a result of the decline in average selling
prices for semiconductor memory products. As of May 28, 1998, the Company had
invested approximately $700 million in the Lehi facility. The cost to complete
the Lehi facility is estimated to approximate $1.6 billion. Completion of the
Lehi production facilities is dependent upon market conditions. Test capacity
previously expected to be provided by the Lehi facility in 1998 has been further
delayed and the Company does not plan to complete the Lehi facility until market
conditions warrant. Market conditions which the Company expects to evaluate
include, but are not limited to, worldwide market supply and demand of
semiconductor products and the Company's operations, cash flows and alternative
uses of capital and production facilities. There can be no assurance that the
Company will be able to fund the completion of the Lehi manufacturing facility.
The failure by the Company to complete the facility would likely result in the
Company being required to write off all or a portion of the facility's cost,
which could have a material adverse effect on the Company's business and results
of operations. In addition, in the event that market conditions improve, there
can be no assurance that the Company can commence manufacturing at the Lehi
facility in a timely, cost effective manner that enables it to take advantage of
the improved market conditions.
The semiconductor and PC industries have experienced a substantial amount of
litigation regarding patent and other intellectual property rights. In the
future, litigation may be necessary to enforce patents issued to the Company, to
protect trade secrets or know-how owned by the Company, or to defend the Company
against claimed infringement of the rights of others. The Company has from time
to time received, and may in the future receive, communications alleging that
its products or its processes may infringe on product or process technology
rights held by others. The Company has entered into a number of patent and
intellectual property license agreements with third parties, some of which
require one-time or periodic royalty payments. It may be necessary or
advantageous in the future for the Company to obtain additional patent licenses
or to renew existing license agreements. The Company is unable to predict
whether these license agreements can be obtained or renewed on terms acceptable
to the Company. Adverse determinations that the Company's manufacturing
processes or products have infringed on the product or process rights held by
others could subject the Company to significant liabilities to third parties or
require material changes in production processes or products, any of which could
have a material adverse effect on the Company's business, results of operations
and financial condition.
The Company is dependent upon a limited number of key management and technical
personnel. In addition, the Company's future success will depend in part upon
its ability to attract and retain highly qualified personnel, particularly as
the Company engages in worldwide operations and adds different product types to
its product line, which will require parallel design efforts and significantly
increase the need for highly skilled technical personnel. The Company competes
for such personnel with other companies, academic institutions, government
entities and other organizations. In recent periods, the Company has
experienced increased recruitment of its existing personnel by other employers.
There can be no assurance that the Company will be successful in hiring or
retaining qualified personnel. Any loss of key personnel or the inability to
hire or retain qualified personnel could have a material adverse effect on the
Company's business and results of operations.
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USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholder.
SELLING STOCKHOLDER
The following table sets forth the name of the Selling Stockholder, the
number of shares of Common Stock that the Selling Stockholder beneficially owned
as of June 26, 1998, the number of shares of Common Stock beneficially owned by
the Selling Stockholder that may be offered for sale from time to time by this
Prospectus, the number of shares of Common Stock to be beneficially owned by the
Selling Stockholder assuming the sale of all the Common Stock offered hereby and
the percentage of the outstanding shares of the Company's Common Stock to be
beneficially owned by the Selling Stockholder after completion of the offering.
Except as indicated, the Selling Stockholder has not held any position or office
or had a material relationship with the Company or any of its affiliates within
the past three years other than as a result of the ownership of the Company's
Common Stock. The Company may amend or supplement this Prospectus from time to
time to update the disclosure set forth herein.
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<TABLE>
<CAPTION>
Prior to the Offering Following the Offering
--------------------- ----------------------
Selling Stockholder Shares Owned Percentage Shares Offered Shares Owned Percentage
------------------- ------------ ---------- -------------- ------------ ----------
<S> <C> <C> <C> <C> <C>
Canadian Imperial Bank of
Commerce (1)................ -0- 0% 7,600,000 -0- 0%
</TABLE>
__________________
(1) Prior to the offering made by this Prospectus, the Shares being offered by
this Prospectus were beneficially owned by J.R. Simplot Company and, in
connection with such offering, are to be delivered to Canadian Imperial
Bank of Commerce ("CIBC") as collateral for loans from CIBC. Including such
Shares, J.R. Simplot Company beneficially owns an aggregate of 18,699,000
shares of Common Stock, constituting 8.8% of the shares of Common Stock
outstanding on June 26, 1998. Mr. Don Simplot, a member of the Micron's
Board of Directors, may also be deemed to be the beneficial owner of shares
beneficially owned by J.R. Simplot Company. He is a shareholder, a director
and the Corporate Vice President of J.R. Simplot Company and is a member of
its Office of the Chairman.
The preceding table has been prepared based upon the information furnished
to the Company by CIBC, except that (i) information regarding J.R. Simplot
Company and Mr. Don Simplot has been furnished by J.R. Simplot Company and (ii)
information regarding the outstanding shares of Common Stock has been furnished
by Micron. Only a Selling Stockholder identified in the foregoing table may sell
Shares pursuant to the Registration Statement of which this Prospectus forms a
part. Information set forth in the foregoing table may change from time to time
and any such changed information will be set forth in a Prospectus Supplement if
and when necessary.
PLAN OF DISTRIBUTION
In June and July 1996, J.R. Simplot Company and an affiliate entered into
derivative transactions with Canadian Imperial Bank of Commerce ("CIBC")
relating to 7,600,000 of the shares of the Common Stock owned by J.R. Simplot
Company and the affiliate. At that time, CIBC hedged its potential obligations
pursuant to such transactions by engaging, directly or through its affiliates,
in short sales of the Common Stock. Pursuant to a Revolving Loan Agreement and
a Pledge Agreement, each dated July __, 1998, (the "Loan Agreement" and "Pledge
Agreement," respectively) CIBC has agreed to make revolving loans to J.R.
Simplot Company in the aggregate amount of up to $200 million, secured by a
pledge by J.R. Simplot Company of certain shares of Common Stock owned by it.
Pursuant to the Pledge Agreement, CIBC is authorized to rehypothecate the shares
of Common Stock deposited with it as collateral for the revolving loans. The
shares of Common Stock so deposited are the Shares being offered by this
Prospectus. CIBC intends promptly to deliver all of such 7,600,000 pledged
Shares pursuant to this Prospectus to repay stock loans incurred in connection
with existing short sale positions of CIBC and its affiliates in the Common
Stock. J.R. Simplot Company and CIBC have advised the Company that J.R. Simplot
Company will not realize any proceeds from the transfer of the Shares covered by
this Prospectus to CIBC or from their application by CIBC to repay existing
stock loans.
The Shares covered by this Prospectus may be offered and sold from time to
time. In effecting the transactions contemplated by this Prospectus, CIBC and
J.R. Simplot Company will act independently of the Company and, except with
respect to the Loan Agreement and the Pledge Agreement, will act independently
of each other. CIBC and J.R. Simplot Company have advised the Company that they
will act independently of each other in making decisions with respect to the
timing, manner and size of each sale pursuant to this Prospectus.
In effecting sales of the Shares, CIBC may arrange for brokers, dealers or
agents to participate. Brokers, dealers or agents may receive commissions,
discounts or concessions from CIBC in amounts to be negotiated prior to the
sale. Such brokers, dealers or agents and any other participating brokers,
dealers or agents may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any such commissions,
discounts or concessions may be deemed to be underwriting discounts or
commissions under the Securities Act.
The Company has advised J.R. Simplot Company and CIBC that the anti-
manipulation rules of Regulation M under the Exchange Act may apply to sales of
Shares in the market and to the activities of J.R. Simplot Company, CIBC and
their respective affiliates. In addition, the Company will make copies of this
Prospectus available to CIBC and has informed CIBC of the need for delivery of
copies of this Prospectus to purchasers at or prior to the time of any sale of
the Shares offered hereby.
At the time a particular offer of Shares is made, if required, a Prospectus
Supplement will be distributed that will set forth the number of Shares being
offered and the terms of the offering.
9
<PAGE>
There can be no assurance that J.R. Simplot Company will pledge, or that
CIBC will rehypothecate and deliver, all or any of the Shares.
LEGAL OPINIONS
The validity of the Securities is being passed upon for the Company by
Roderic W. Lewis, Esq., Vice President, Legal Affairs, General Counsel and
Corporate Secretary, Micron Technology, Inc., 8000 South Federal Way, P.O. Box
6, Boise, Idaho 83707-0006, Telephone, (208) 368-4517.
EXPERTS
The consolidated balance sheets of Micron Technology, Inc. and subsidiaries
as of August 28, 1997 and August 29, 1996 and the consolidated statements of
operations, shareholders' equity and cash flows for each of the three years in
the period ended August 28, 1997 incorporated herein by reference to the Annual
Report on Form 10-K of Micron Technology, Inc. for the year ended August 28,
1997 have been so incorporated in reliance upon the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the
authority of that firm as experts in accounting and auditing.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses, other than any underwriting
discount and commissions, in connection with the issuance and distribution of
the Securities being registered. All amounts indicated are estimates (other
than the registration fee).
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
<S> <C>
Registration fee............................................................. $ 51,916
Accounting fees and expenses................................................. 3,000
Printing and engraving....................................................... 4,000
Legal fees and expenses of the registrant.................................... 7,500
Miscellaneous................................................................ 3,584
---------
Total...................................................................
$ 70,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Delaware Law")
authorizes a court to award or a corporation's Board of Directors to grant
indemnification to directors and officers in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Act"). The registrant's Bylaws provide for mandatory
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by Delaware law. The registrant has entered into
indemnification agreements with its directors and certain of its officers. The
indemnification agreements provide the registrant's directors and elected
officers with further indemnification to the maximum extent permitted by
Delaware law.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
<C> <S>
3.7 Bylaws of the registrant, as amended
5.1 Opinion of Roderic W. Lewis, Esq., Vice President, Legal Affairs, General Counsel and Corporate
Secretary
10.125 Registration Rights Agreement dated as of July 20, 1998, between the registrant, Canadian Imperial Bank of
Commerce and J.R. Simplot Company
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Roderic W. Lewis, Esq. (included in Exhibit 5.1)
24.1* Powers of Attorney of certain directors and officers of the Company (contained on Page II-4)
</TABLE>
- --------------
* Previously filed
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the undertakings set forth in clauses (i) and (ii) above
shall not apply if the information required to be included in a post-effective
amendment by these clauses is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act') that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned registrant hereby undertakes, that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification of liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
II-2
<PAGE>
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boise, State of Idaho, on the 20th day of July,
1998.
MICRON TECHNOLOGY, INC.
By /s/ Wilbur G. Stover, Jr.
------------------------------------
Wilbur G. Stover, Jr.
Vice President of Finance
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* Chairman of the Board, Chief Executive July 20, 1998
- -------------------------------------- Officer and President
Steven R. Appleton
/s/ Wilbur G. Stover, Jr. Vice President of Finance and Chief July 20, 1998
- -------------------------------------- Financial Officer (Principal Financial
Wilbur G. Stover, Jr. and Accounting Officer)
* Director July 20, 1998
- --------------------------------------
James W. Bagley
* Director July 20, 1998
- --------------------------------------
Jerry M. Hess
* Director July 20, 1998
- --------------------------------------
Robert Lothrop
* Director July 20, 1998
- --------------------------------------
Thomas T. Nicholson
Director
- --------------------------------------
Don J. Simplot
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* Director July 20, 1998
- --------------------------------------
John R. Simplot
* Director July 20, 1998
- --------------------------------------
Gordon C. Smith
By: /s/ Wilbur G. Stover, Jr. July 20, 1998
----------------------------------
Wilbur G. Stover, Jr.
Attorney-in-fact
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
<C> <S>
3.7 Bylaws of the registrant, as amended
5.1 Opinion of Roderic W. Lewis, Esq., Vice President, Legal Affairs, General Counsel and Corporate
Secretary
10.125 Registration Rights Agreement dated as of July 20, 1998, between the registrant, Canadian Imperial Bank of
Commerce and J.R. Simplot Company
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Roderic W. Lewis, Esq. (included in Exhibit 5.1)
24.1* Powers of Attorney of certain directors and officers of the Company (contained on Page II-4)
</TABLE>
- --------------
* Previously filed
II-1
<PAGE>
EXHIBIT 3.7
BYLAWS
OF
MICRON TECHNOLOGY, INC.
ARTICLE I
OFFICES
SECTION 1. The registered office shall be 100 West Tenth Street, in the
City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. All meetings of the stockholders shall be held at the principal
office of the corporation in the City of Boise, State of Idaho, or at such other
place either within or without the State of Delaware as shall be designated in
the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual meetings of stockholders shall be held on such day and
such hour as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. At such meeting, the stockholders shall
elect a Board of Directors and transact such other business as may properly be
brought before the meeting.
SECTION 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
SECTION 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the Board of Directors, the Chairman of the
Board, the president, or by the holders of shares entitled to cast not less than
twenty percent (20%) of the votes at the meeting. Such request shall state the
purpose or purposes of the proposed meeting.
SECTION 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting.
<PAGE>
SECTION 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
SECTION 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
SECTION 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Certificate of Incorporation, a different vote is required in which case
such express provision shall govern and control the decision of the question.
SECTION 10. Unless otherwise provided in the Certificate of Incorporation,
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, regardless of class, but no proxy shall be voted
on or after three years from its date, unless the proxy provides for a longer
period. Vote may be viva voice or by ballot; provided, however, that elections
for directors must be by ballot upon demand by a shareholder at the meeting and
before the voting begins. At all elections of directors of the corporation each
stockholder having voting power shall be entitled to exercise the right of
cumulative voting as provided in the Certificate of Incorporation.
SECTION 11. Unless otherwise provided in the Certificate of Incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, of a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. The authorized number of directors of the corporation shall be
nine. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
SECTION 2. The directors shall be elected at each annual meeting of
shareholders, but if any such annual meeting is not held, or the directors are
not elected thereat, the directors may be elected at any special meeting of the
shareholders held for that purpose. All directors shall hold office until the
expiration of the term for which elected and until their respective successors
are elected, except in the case of death, resignation or removal of any
director. A director need not be a shareholder.
SECTION 3. Any director may resign effective upon giving written notice to
the Chairman of the Board, the President, the Secretary or the Board of
Directors of the corporation, unless the notice specifies a late time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
<PAGE>
SECTION 4. The entire Board of Directors or any individual director may be
removed from office, prior to the expiration of their or his term of office only
in the manner and within the limitations provided by the General Corporation Law
of Delaware.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
SECTION 5. A vacancy in the Board of Directors shall be deemed to exist in
case of the death, resignation or removal of any director, or if the authorized
number of directors be increased, or if the shareholders fail at any annual or
special meeting of shareholders at which any director or directors are elected
to elect the full authorized number of directors to be voted for at that
meeting.
Vacancies in the Board of Directors may be filled by a majority of the
directors then in office, whether or not less than a quorum, or by a sole
remaining director. Each director so elected shall hold office until the
expiration of the term for which he was elected and until his successor is
elected at an annual or a special meeting of the shareholders, or until his
death, resignation or removal.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors. Any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
SECTION 6. The business of the corporation shall be managed by or under
the direction of its Board of Directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or these Bylaws directed or required to be
exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 7. The Board of Directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
SECTION 8. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
SECTION 9. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board.
SECTION 10. Special meetings of the Board may be called by the president
on two days' notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of the Chairman of the Board or
two directors.
SECTION 11. At all meetings of the Board a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
<PAGE>
SECTION 12. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
SECTION 13. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
SECTION 14. The Board of Directors may, by resolution passed by a majority
of the authorized number of directors, appoint an executive committee consisting
of two or more of the directors of the corporation. The Board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. The executive
committee, to the extent provided in the resolution of the Board of Directors
and subject to any limitation by statute, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but it shall not have the power
or authority in reference to amending the Certificate of Incorporation, adopting
an agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all the corporation's property
and assets, recommending to the stockholders a dissolution of the corporation or
a revocation of a dissolution, or amending the Bylaws of the corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provide,
it shall not have the power or authority to declare a dividend or to authorize
the issuance of stock.
SECTION 15. The Board of Directors may, by resolution adopted by a
majority of the authorized number of directors, designate such other committees,
each consisting of 2 or more directors, as it may from time to time deem
advisable to perform such general or special duties as may from time to time be
delegated to any such committee by the Board of Directors, subject to the
limitations imposed by statute or by the Certificate of Incorporation or by
these Bylaws. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent member at any meeting of
the committee.
COMPENSATION OF DIRECTORS
SECTION 17. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance of each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
ARTICLE IV
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
<PAGE>
SECTION 2. Whenever any notice is required to be given under the
provisions of the Delaware statutes or of the Certificate of Incorporation or of
these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
SECTION 1. The officers of the corporation shall be chosen by the Board of
Directors, and shall be a president, a vice-president, a secretary, and a
treasurer. The Board of Directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
or these Bylaws otherwise provide.
SECTION 2. The Board of Directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
SECTION 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
SECTION 4. The salaries of all officers and agents of the corporation
shall be fixed by the Board of Directors.
SECTION 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board
of Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the corporation
shall be filled by the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
THE CHAIRMAN OF THE BOARD
SECTION 6. The Chairman of the Board, if there shall be such an officer,
shall, if present, preside at all meetings of the Board of Directors, and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by these Bylaws.
THE PRESIDENT
SECTION 7. Subject to such supervisory powers, if any, as may be given
by the Board of Directors to the Chairman of the Board, if there be such an
officer, the President shall be the general manager of the corporation and
shall, subject to the control of the Board of Directors, have general
supervision, direction, and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and in the
absence of the Chairman of the Board or if there be none, at all meetings of the
Board of Directors. He shall be ex officio a member of all the standing
committees, including the executive committee, if any, and shall have the
general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or by these Bylaws.
SECTION 8. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation.
<PAGE>
THE VICE-PRESIDENTS
SECTION 9. In the absence of the president or in the event of his
inability or refusal to act, the vice president (or in the event there be more
than one vice president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
SECRETARY AND ASSISTANT SECRETARY
SECTION 10. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
president, under whose supervision he shall be placed. He shall have custody of
the corporate seal of the corporation and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing by
his signature.
SECTION 11. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
SECTION 12. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
SECTION 13. He shall disburse the funds of the corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
SECTION 14. If required by the Board of Directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
SECTION 15. If the assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
<PAGE>
ARTICLE VI
CERTIFICATE OF STOCK
SECTION 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation by, the
chairman or vice chairman of the Board of Directors, or the president or a vice
president and the treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the corporation, certifying the number of shares owned by
him in the corporation.
Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face of back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
SECTION 2. Any or all of the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature have been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
SECTION 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issues by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit to that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
SECTION 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
SECTION 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any such other action. A
<PAGE>
determination of shareholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
SECTION 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
SECTION 7. The accounting books and records, and minutes of proceedings of
the shareholders and the Board of Directors and committees of the Board shall be
open to inspection upon written demand made upon the corporation by any
shareholder or the holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to his interest as
a shareholder, or as the holder of such voting trust certificate. The record of
shareholders shall also be open to inspection by any shareholder or holder of a
voting trust certificate at any time during usual business hours upon written
demand on the corporation, for a purpose reasonably related to such holder's
interest as a shareholder or holder of a voting trust certificate. Such
inspection may be made in person or by an agent or attorney, and shall include
the right to copy and to make extracts.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Dividends upon the capital stock of the corporation, subject to
the provision of the Certificate of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
SECTION 2. Before payment of any dividend, there may be set aside out of
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
SECTION 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
SECTION 4. The fiscal year of the corporation shall be fixed by resolution
of the Board of Directors.
SEAL
SECTION 5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
<PAGE>
INDEMNIFICATION
SECTION 6. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
SECTION 1. These Bylaws may be altered, amended or repealed or new Bylaws
may be adopted by the stockholders or by the Board of Directors at any regular
meeting of the stockholders or of the Board of Directors or at any special
meeting of the stockholders or the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal Bylaws
is conferred upon the Board of Directors by the Certificate of Incorporation it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal Bylaws.
I, Nancy A. Stanger, the secretary of Micron Technology, Inc., a Delaware
corporation, hereby certify:
The foregoing bylaws, comprising 14 pages, were adopted as the bylaws of
Micron Technology on May 21, 1984.
DATED: May 25, 1984
Nancy A. Stanger
Nancy A. Stanger
SEAL
<PAGE>
CERTIFICATE OF FIRST AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
We, the undersigned, being the President and Secretary, respectively, of
MICRON TECHNOLOGY, INC., a corporation organized and existing under the laws of
the State of Delaware, do hereby certify that a meeting of the Board of
Directors of this Corporation was held on December 17, 1984 and an amendment to
the Bylaws of MICRON TECHNOLOGY, INC. was unanimously adopted.
The amendment adopted was pursuant to a Resolution reading as follows:
RESOLVED: The Board hereby approves that the second paragraph of Article
II Section 10 of the Bylaws of the Company be amended to read as follows:
"At all elections of directors of the corporation each stockholder having
voting power shall be entitled to exercise the right of cumulative voting as
provided in the Certificate of Incorporation. However, no stockholder shall be
entitled to cumulate votes for a candidate or candidates unless such candidate's
name or candidate's names have been placed in nomination prior to the voting and
a stockholder has given notice at the meeting prior to the voting of the
stockholder's intention to cumulate votes. If any stockholder has given such
notice, all stockholders may cumulate their votes for candidates in nomination."
IN WITNESS WHEREOF, we have hereunto set our hands and the seal of the
Corporation this 5th day of July, 1985.
MICRON TECHNOLOGY, INC.
BY: Joseph L. Parkinson
Joseph L. Parkinson, President
(SEAL)
BY: Cathy L. Smith
Cathy L. Smith, Secretary
STATE OF IDAHO )
) ss.
County of Ada )
On this 5th day of July, 1985, before me, the undersigned, personally appeared
JOSEPH L. PARKINSON and CATHY L. SMITH, known to me to be the President and
Secretary, respectively, of MICRON TECHNOLOGY, INC., the corporation that
executed the instrument or the persons who executed the instrument on behalf of
said corporation, and acknowledged to me that such corporation executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in
said County the day and year first above written.
Jill L. Henson
Notary Public for Idaho Residing at Boise
<PAGE>
CERTIFICATE OF SECOND AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on March 3, 1986:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
ten. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal of said corporation effective as of the 3rd day of March, 1986.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE THIRD AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on November 24, 1986:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
nine. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 24th day of November, 1986.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF FOURTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on September 28, 1987:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
eight. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 28th day of September, 1987.
Cathy L. Smith
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF FIFTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on March 28, 1988:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
nine. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 28th day of March, 1988.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF SIXTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on October 3, 1988:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
ten. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 17th day of October, 1988.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF SEVENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on September 25, 1989:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
nine. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 28th day September, 1989.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF EIGHTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on October 30, 1989:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
eight. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 30th day of October, 1989.
Cathy L. Smith--
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF NINTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on August 27, 1990:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
nine. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 27th day of August, 1990.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF TENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on September 24, 1990:
RESOLVED: Article III, Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
ten. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 24th day of September, 1990.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF ELEVENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on July 27, 1992:
RESOLVED: Article III Section 1 of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
eight. The number of directors provided in this Section 1 may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 27th day of July, 1992.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF TWELFTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc. a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on May 23, 1994:
RESOLVED: Article III, Section I of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION I. The authorized number of directors of the Corporation shall be
ten.
The number of directors provided in this Section I may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 23rd day of May, 1994.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF THIRTEENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc. a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on September 1, 1994:
RESOLVED: Article III, Section I of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION I. The authorized number of directors of the Corporation shall be
eleven. The number of directors provided in this Section I may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 1st day of September, 1994.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF FOURTEENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc. a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on October 27, 1994:
RESOLVED: Article III, Section I of the Bylaws of this corporation are
hereby amended to read as follows:
SECTION I. The authorized number of directors of the Corporation shall be
ten. The number of directors provided in this Section I may be changed by a
Bylaw duly adopted by the affirmative vote of a majority of the outstanding
shares entitled to vote or by a resolution of the Board of Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 27th day of October, 1994.
Cathy L. Smith
Corporate Secretary
(SEAL)
<PAGE>
CERTIFICATE OF FIFTEENTH
AMENDMENT TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Jan R. Reimer, Assistant Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolution was adopted
by the Board of Directors on February 5, 1996:
RESOLVED, that pursuant to Article VIII, Section 1 of the Company s
Bylaws, the Board hereby amends Article V, Section 1 of the Bylaws to read in
its entirety as follows:
The officers of the corporation shall be chosen by the Board of Directors,
and shall be a president or chief executive officer, a secretary, and a
treasurer. The Board of Directors may also choose additional officers,
including a president, vice president(s), and one or more assistant secretaries
and assistant treasurers. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these Bylaws otherwise provide.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 7th day of February, 1996.
Jan R. Reimer
Assistant Secretary
(SEAL)
<PAGE>
CERTIFICATE OF SIXTEENTH
AMENDMENT TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Jan R. Reimer, Assistant Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolutions were
adopted by the Board of Directors on September 30, 1996:
RESOLVED, that Article II, Section 10 of the Bylaws of this Company be
amended to read as follows:
SECTION 10. At all elections of directors of the corporation each
stockholder having voting power shall be entitled to exercise the right of
cumulative voting as provided in the Certificate of Incorporation. However, no
stockholder shall be entitled to cumulate votes for a candidate or candidates
unless such candidate's name or candidates' names have been placed in nomination
prior to the voting and a stockholder has given written notice to Secretary of
the corporation of the stockholder's intention to cumulate votes at least 15
days prior to the date of the meeting. If any stockholder has given such notice,
all stockholders may cumulate their votes for candidates in nomination.
RESOLVED FURTHER, that Article II of the Bylaws of this Company be amended
to add Section 12, which will read in its entirety as follows:
SECTION 12. Advance Notice of Stockholder Nominees and Stockholder
Business
(a) To be properly brought before an annual meeting or special meeting,
nominations for the election of directors or other business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the board of directors, (ii) otherwise properly
brought before the meeting by or at the direction of the board of
directors or (iii) otherwise properly brought before the meeting by a
stockholder.
(b) For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive office of the corporation not less than one hundred
twenty (120) calendar days in advance of the date specified in the
corporation's proxy statement released to stockholders in connection with
the previous year's annual meeting of stockholders; provided, however,
that in the event that no annual meeting was held in the previous year or
the date of the annual meeting has been changed by more than thirty (30)
days from the date contemplated at the time of the previous year's proxy
statement, notice by the stockholder to be timely must be so received a
reasonable time before the solicitation is made. A stockholder's notice
to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting: (i) a brief description of
the business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the
name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (iii) the class and number of shares
of the corporation which are beneficially owned by the stockholder, (iv)
any material interest of the stockholder in such business and (v) any
other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the securities Exchange Act of 1934, as
amended (the "Exchange Act"), in his capacity as a proponent to a
stockholder proposal. Notwithstanding the foregoing, in order to include
information with respect to a stockholder proposal in the proxy statement
and form of proxy for a stockholders' meeting, stockholders must provide
notice as required by the regulations promulgated under the Exchange Act.
Notwithstanding anything in these bylaws to the contrary, no business
shall be conducted at any annual meeting except in accordance with the
procedures set forth in this Section 12. The chairman of the annual
meeting shall, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting and in
accordance with the provisions of this Section 12, and, if he should so
determine, he shall so declare at the meeting that any such business not
properly brought before the meeting shall not be transacted.
<PAGE>
(c) Only persons who are nominated in accordance with the procedures set
forth in this paragraph (c) shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the
direction of the Board of Directors or by any stockholder of the
corporation entitled to vote in the election of directors at the meeting
who complies with the notice procedures set forth in this paragraph (c).
Such nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the corporation in accordance with the provisions of
paragraph (b) of this Section 12. Such stockholder's notice shall set
forth (i) as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a director: (A) the name, age,
business address and residence address of such person, (B) the principal
occupation or employment of such person, (C) the class and number of
shares of the corporation which are beneficially owned by such person, (D)
a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nominations are to be made by the
stockholder and (E) any other information relating to such person that is
required to be disclosed in solicitations of proxies for elections of
directors, or is otherwise required, in each case pursuant to Regulation
14A under the Exchange Act (including without limitation such person's
written consent to being named in the proxy statement, if any, as a
nominee and to serving as a director if elected); and (ii) as to such
stockholder giving notice, the information required to be provided
pursuant to paragraph (b) of this Section 12. At the request of the Board
of Directors, any person nominated by a stockholder for election as a
director shall furnish to the Secretary of the corporation that
information required to be set forth in the stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in accordance
with the procedures set forth in this paragraph (c). The chairman of the
meeting shall, if the facts warrant, determine and declare at the meeting
that a nomination was not made in accordance with the procedures
prescribed by these bylaws; and if he should so determine, he shall so
declare at the meeting, and the defective nomination shall be disregarded.
RESOLVED FURTHER, that Article III, Section 1 of the Bylaws of this
Company be amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall
be seven. The number of directors provided in this Section 1 may be changed
by a Bylaw duly adopted by the affirmative vote of a majority of the
outstanding shares entitled to vote or by a resolution of the Board of
Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal
of said corporation effective as of the 30th day of September, 1996.
/s/ Jan R. Reimer
Assistant Secretary
(SEAL)
<PAGE>
CERTIFICATE OF SEVENTEENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Jan R. Reimer, Assistant Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolutions were adopted
by the Board of Directors on June 2, 1997:
RESOLVED, that Article III, Section 1 of the Bylaws of this Company be
amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation shall be
nine. The number of directors provided in this Section 1 may be changed by
a Bylaw duly adopted by the affirmative vote of a majority of the
outstanding shares entitled to vote or by a resolution of the Board of
Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affix the corporate seal of
said corporation effective as of the 2nd day of June, 1997.
/s/ Jan R. Reimer
Assistant Secretary
(SEAL)
<PAGE>
CERTIFICATE OF EIGHTEENTH AMENDMENT
TO THE BYLAWS OF
MICRON TECHNOLOGY, INC.
I, Jan R. Reimer, Assistant Secretary of Micron Technology, Inc., a
Delaware corporation, hereby certify that the following resolutions were adopted
by the Board of Directors on April 14, 1998:
RESOLVED, that Article III, Section 1 of the Bylaws of this Company be
amended to read as follows:
SECTION 1. The authorized number of directors of the Corporation
shall be nine. The number of directors provided in this Section 1 may be
changed by a Bylaw duly adopted by the affirmative vote of a majority of
the outstanding shares entitled to vote or by a resolution of the Board of
Directors.
IN WITNESS WHEREOF, I hereunto set my hand and affix the corporate seal of
said corporation effective as of the 20th day of July, 1998.
/s/ Jan R. Reimer
Assistant Secretary
(SEAL)
<PAGE>
EXHIBIT 5.1
July 20, 1998
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
I am Vice President of Legal Affairs, General Counsel and Corporate
Secretary for Micron Technology, Inc., a Delaware corporation (the "Company"),
and have acted as counsel for the Company in connection with the registration
under the Securities Act of 1933, as amended, of 7,600,000 shares of Common
Stock, $0.10 par value (the "Common Stock"), of the Company (the "Shares"). The
Shares are to be offered and sold by a securityholder of the Company (the
"Selling Securityholder"). In this regard I have participated in the
preparation of a Registration Statement on Form S-3 relating to the Shares.
(Such Registration Statement, as it may be amended from time to time, is herein
referred to as the "Registration Statement").
I am of the opinion that the Shares have been duly authorized and are
legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Registration Statement and in the Prospectus included therein.
Very truly yours,
/s/ Roderic W. Lewis
Roderic W. Lewis
Vice President of Legal Affairs,
General Counsel and Corporate Secretary
<PAGE>
EXHIBIT 10.125
MICRON TECHNOLOGY, INC.
--------------------
REGISTRATION RIGHTS AGREEMENT
--------------------
Dated as of July 20, 1998
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 20, 1998 among Micron
Technology, Inc., a Delaware corporation ("Micron" or the "Company"), J.R.
Simplot Company, a Nevada corporation ("Simplot"), and Canadian Imperial Bank of
Commerce ("CIBC").
1. INTRODUCTION. Pursuant to a Revolving Loan Agreement and a Pledge
Agreement, each dated or to be dated on or shortly after the date hereof between
Simplot and CIBC, Simplot proposes to pledge to CIBC an aggregate of 7,600,000
shares (the "Shares") of the Company's common stock, par value $.10 per share
("Micron Stock"), and CIBC proposes to subsequently deliver such Shares to
satisfy its obligations to return shares of Micron Stock borrowed from third
parties. Micron is willing to provide certain registration rights to Simplot
and CIBC with respect to the Shares, and Simplot is willing to pay or cause to
be paid certain of the Company's expenses under this Agreement on the terms set
forth herein. Certain capitalized terms used in this Agreement are defined in
section 3 hereof; references to sections shall be to sections of this Agreement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION ON REQUEST.
(a) REGISTRATION OF THE SHARES. At any time before the first
anniversary of this Agreement, upon the written request of Simplot, requesting
that the Company effect the registration under the Securities Act of all or part
of the Shares and specifying the intended method of disposition thereof, the
Company will, subject to the terms of this Agreement, use commercially
reasonable efforts to effect the registration under the Securities Act of the
Shares for disposition in accordance with the intended method of disposition
stated in Simplot's request (which method may include dispositions of the Shares
by CIBC), so as to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Common Stock so to be registered; provided,
however, that (i) the Company shall not be required to effect more than one
registration pursuant to this section 2.1(a) and that the registration statement
filed by the Company on June 29, 1998, as amended through the date of this
Agreement (File No. 333-57973), may be utilized by the Company to effect such
registration.
(b) REGISTRATION STATEMENT FORM. Registrations under this section 2.1
shall be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and (ii) as shall permit the disposition of the Shares
in accordance with the intended method or methods of disposition specified in
the request for such registration.
(c) EXPENSES. The party requesting a registration under this section
2.1 shall pay or cause to be paid all Registration Expenses in connection with
any registration requested pursuant to this section 2.1. Simplot and CIBC may by
separate agreement allocate such Registration Expenses among themselves and, in
any event, shall be responsible for the fees and disbursements of any counsel
and accountants retained by them.
(d) OTHER SHARES. The Company may register other securities in a
registration statement filed pursuant to this section 2.1.
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2.2 REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF COMPANY. If and whenever the Company is required to
use commercially reasonable efforts to effect the registration of the Shares
under the Securities Act as provided in section 2.1, the Company shall, as
expeditiously as possible:
(i) prepare and within 10 days after Micron's receipt of a request
pursuant to section 2.1 file with the Commission the requisite registration
statement to effect such registration; provided, however, that before
filing such registration statement or any amendments thereto, the Company
will furnish to the counsel for Simplot (and counsel for CIBC if Simplot or
CIBC has notified Micron that the intended method of distribution includes
dispositions of the Shares by CIBC) copies of all such documents proposed
to be filed, which documents will be subject to the review of such counsel;
(ii) cause such registration statement to become and remain effective
for a period of not more than five business days after the DTC Deposit Date
(as defined in subdivision (iii) below) and to comply with the provisions
of the Securities Act with respect to the disposition of all Shares covered
by such registration statement, including without limitation the
preparation and filing with the Commission of all required amendments and
supplements to such registration statement or the related prospectus;
(iii) cooperate with Simplot and CIBC to facilitate the preparation and
delivery to The Depository Trust Company ("DTC") (the date of such delivery
being hereinafter referred to as the "DTC Deposit Date") as soon as
practicable after the effectiveness of the registration statement of
certificates representing Shares to be disposed of, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with DTC; and to enable such Shares to be registered in such names
as Simplot or CIBC, as applicable, may request;
(iv) furnish to Simplot (and CIBC if Simplot or CIBC has notified
Micron that the intended method of distribution includes dispositions of
Shares by CIBC) such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as Simplot or CIBC, as applicable, may reasonably request in
order to facilitate the disposition of the Shares in accordance with the
intended method of disposition;
(v) register or qualify the Shares under such other securities laws or
blue sky laws of such jurisdictions as Simplot (or CIBC if Simplot or CIBC
has notified Micron that the intended method of distribution includes
dispositions of Shares by CIBC) shall reasonably request, to keep such
registrations or qualifications in effect for so long as such registration
statement remains in effect, and take any other action which may be
reasonably necessary or advisable to enable Simplot or CIBC, as applicable,
to consummate the disposition in such jurisdictions of the Shares, except
that the Company shall not for any such purpose be
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<PAGE>
required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not otherwise be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(vi) for so long as such registration statement remains in effect, use
all commercially reasonable efforts to cause all the Shares to be
registered with or approved by such governmental agencies or authorities as
Simplot (and CIBC if Simplot or CIBC has notified Micron that the intended
method of distribution includes dispositions of Shares by CIBC) shall
reasonably request to enable Simplot or CIBC, as applicable, to consummate
the disposition of the Shares;
(vii) notify Simplot (and CIBC if Simplot or CIBC has notified Micron
that the intended method of distribution includes dispositions of Shares by
CIBC) promptly and confirm such advice in writing promptly thereafter:
(1) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed, and, with respect to the
registration statement or any post-effective amendment thereto, when
the same has become effective;
(2) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose; and
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Shares for sale
under the securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(viii) notify Simplot and CIBC, at any time when with respect to the
Shares a prospectus relating thereto is required to be delivered under the
Securities Act, upon the Company's discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and promptly prepare, file with
the Commission and furnish to Simplot and CIBC a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing;
(ix) obtain the withdrawal of any order suspending the effectiveness of
the registration statement at the earliest possible moment; and
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(x) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first full
calendar month after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder, and furnish to Simplot (and
CIBC if Simplot or CIBC has notified Micron that the intended method of
distribution includes dispositions of Shares by CIBC) at least five
business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall not file
any thereof to which Simplot (or CIBC, if applicable) shall have reasonably
objected on the grounds that such amendment or supplement does not comply
in all material respects with the requirements of the Securities Act.
(b) INFORMATION TO BE FURNISHED TO COMPANY. Simplot (and CIBC if
Simplot or CIBC has notified Micron that the intended method of distribution
includes dispositions of Shares by CIBC) shall furnish the Company such
information regarding itself, its ownership of the Company's securities and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
(c) DOCUMENTS NOT TO BE FILED. The Company will not file any
registration statement or amendment thereto or any prospectus or any supplement
thereto (including such documents incorporated by reference and proposed to be
filed after the initial filing of the registration statement) in satisfaction of
its obligations pursuant to this section 2 to which Simplot (or CIBC if Simplot
or CIBC has notified Micron that the intended method of distribution includes
dispositions of Shares by CIBC) shall reasonably object, provided that the
Company may file such document in a form required by law or upon the advice of
its counsel.
(d) DISCONTINUANCE OF DISPOSITION. Upon receipt of any notice from
the Company of the occurrence of any event of the kind described in subdivision
(viii) of section 2.2(a), each of Simplot and CIBC will forthwith discontinue
its disposition of the Shares pursuant to the registration statement relating
thereto until its receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (viii) of section 2.2(a) and, if so
directed by the Company, will at its own expense deliver to the Company all
copies, other than permanent file copies, then in its possession of the
prospectus relating to the Shares current at the time of receipt of such notice.
In the event the Company shall give any such notice, the period mentioned in
subdivision (ii) of section 2.2(a) shall be extended by the length of the period
from and including the date Simplot and CIBC shall have received such notice to
the date on which Simplot and CIBC shall have received the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of section
2.2(a).
2.3 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give Simplot and its counsel (and
CIBC and its counsel if Simplot or CIBC has notified Micron that the intended
method of distribution includes dispositions of Shares by CIBC) the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each amendment
thereof or supplement thereto, and will give each of them such access to its
financial books and records and such opportunities to discuss the business of
the Company with its officers and the independent public accountants who
4
<PAGE>
have certified its financial statements as shall be necessary, in the opinion of
counsel to Simplot or CIBC, as applicable, to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not be responsible
for any cost or expense incurred by Simplot, CIBC or their respective counsel
pursuant to this section 2.3. All information obtained by Simplot, CIBC or their
respective counsel pursuant to this section 2.3 shall be subject to the
confidentiality provisions of section 4.
2.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration of
the Shares under the Securities Act pursuant to the terms of this Agreement, the
Company shall indemnify and hold harmless (i) Simplot, its directors and
officers and each other Person, if any, who controls Simplot within the meaning
of the Securities Act (Simplot and all such directors, officers and controlling
persons collectively, "Simplot Indemnitees"), and (ii) CIBC, its directors and
officers and each other Person, if any, who controls CIBC within the meaning of
the Securities Act (CIBC and all such directors, officers and controlling
persons collectively, "CIBC Indemnitees"), against any losses, claims, damages
or liabilities, joint or several ("Indemnifiable Losses"), to which any Simplot
Indemnitee or CIBC Indemnitee may become subject under the Securities Act or
otherwise, insofar as such Indemnifiable Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse each Simplot Indemnitee and each CIBC Indemnitee for
any legal or any other expenses ("Indemnifiable Expenses") reasonably incurred
by them in connection with investigating or defending any such Indemnifiable
Loss, provided that the Company shall not be liable to any Simplot Indemnitee or
CIBC Indemnitee in any such case to the extent that any such Indemnifiable Loss
(or action or proceeding in respect thereof) or Indemnifiable Expense arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, in any related
preliminary prospectus or final prospectus, or in any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by Simplot (in the case of a
Simplot Indemnitee) or CIBC (in the case of a CIBC Indemnitee). Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Simplot Indemnitee or CIBC Indemnitee and shall survive the
transfer of the Shares by Simplot or CIBC.
(b) INDEMNIFICATION BY SIMPLOT. Simplot shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this section 2.4) the Company, each director of the Company, each officer
of the Company and each other person, if any, who controls the Company within
the meaning of the Securities Act (the Company and all such directors, officers
and controlling persons collectively, "Micron Indemnitees"), with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any related preliminary prospectus or final prospectus,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by Simplot specifically stating that it is for use in the preparation of such
registration
5
<PAGE>
statement, preliminary prospectus, final prospectus, amendment or supplement.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Micron Indemnitee and shall survive
the transfer of such securities by Simplot or CIBC.
(c) INDEMNIFICATION BY CIBC. CIBC shall indemnify and hold harmless (in
the same manner and to the same extent as set forth in subdivision (a) of this
section 2.4) each Micron Indemnitee, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any related preliminary prospectus or final prospectus, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by CIBC
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment or supplement.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director, officer
or controlling person and shall survive the transfer of such securities by
Simplot or CIBC.
(d) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving an
Indemnifiable Loss, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party, give written notice to the latter
of the commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subdivisions of this section 2.4, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that the indemnifying party may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any Indemnifiable Expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation. No indemnified party shall
consent to entry of any judgment or enter into any settlement of any such action
the defense of which has been assumed by an indemnifying party without the
consent of such indemnifying party.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
section 2.4 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense upon 30 days' written invoice of such
Indemnifiable Loss or Indemnifiable Expense.
(f) CONTRIBUTION. If the indemnification provided for in the preceding
subdivisions of this section 2.4 is unavailable to an indemnified party in
respect of any Indemnifiable Loss, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Indemnifiable Loss in such
proportion as is appropriate to reflect the relative fault of the Company,
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<PAGE>
Simplot and CIBC, respectively, in connection with the statements or omissions
which resulted in such Indemnifiable Loss, as well as any other relevant
equitable considerations. The relative fault of the Company, Simplot and CIBC,
respectively, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, Simplot or CIBC,
as applicable, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
provided that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the provisions contained in the first sentence of
subdivision (a) of this section 2.4, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (g) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a), (b)
or (c) of this section 2.4 had been available under the circumstances.
The Company, Simplot and CIBC agree that it would not be just and equitable if
contribution pursuant to this subdivision (g) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the
Indemnifiable Losses shall be deemed to include, subject to the limitations set
forth in the preceding sentence and subdivision (d) of this section 2.4, any
Indemnifiable Expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (g), neither Simplot nor
CIBC shall be required to contribute any amount in excess of the amount by which
the net proceeds (including loan repayments) received by Simplot or CIBC, as
applicable, from the disposition of the Shares exceeds, in any such case, the
amount of any damages that Simplot or CIBC, as applicable, has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
3. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
Person: A corporation, association, partnership, limited liability
company, organization, business, individual, government or political
subdivision thereof or a governmental agency.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with section 2, including, without limitation,
all registration and filing fees, all
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fees and expenses of complying with securities or blue sky laws, all
duplicating and printing expenses, messenger and delivery expenses, the
reasonable fees and disbursements of a single outside counsel for the
Company. Such expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, or other expenses
for the preparation of financial statements or other data normally prepared
by the Company in the ordinary course of its business or which the Company
would have incurred in any event.
Securities Act: The Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as shall be in effect at the
time.
Shares: As defined in section 1.
4. CONFIDENTIAL INFORMATION. Each of Simplot and CIBC agrees that any
information obtained pursuant to this Agreement which is, or would reasonably be
perceived to be, proprietary to the Company or otherwise confidential will not
be disclosed without the prior written consent of the Company, except that (i)
Simplot or CIBC, as applicable, may disclose such information, on a need-to-know
basis, to its employees, accountants or attorneys (so long as each such person
to whom confidential information is disclosed agrees to keep such information
confidential), or (ii) as required by applicable law or regulation based on the
written advice of counsel (a copy of which shall be provided to the Company
unless Simplot or CIBC, as applicable, is prevented from revealing such
disclosure by such applicable law or regulation or the relevant government
agency requesting such disclosure) or in compliance with a court order or when
otherwise necessary to enforce any of their rights hereunder. Each of Simplot
and CIBC further acknowledges, understands and agrees that any confidential
information will not be utilized in connection with purchases and/or sales of
the Company's securities except in compliance with applicable state and federal
antifraud statutes.
5. RESTRICTIVE LEGEND. During all periods of time in which an effective
registration statement of the Shares under the Securities Act is not in effect,
each certificate representing any portion or all of the Shares and any
certificate reflecting any stock split, stock dividend, recapitalization,
merger, consolidation or similar event with respect to the Shares shall (unless
otherwise permitted by the provisions of section 6) be stamped or otherwise
imprinted with the following legend (in addition to any legend required under
applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, ASSIGNED, PLEDGED
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT
SUCH SALE, PLEDGE OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF SAID ACT."
Each party consents to the Company making a notation on its records and giving
instructions to any transfer agent of the Company Shares in order to implement
the restrictions on transfer established in this Agreement.
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6. NOTICE OF PROPOSED TRANSFERS. Prior to any proposed sale, pledge,
assignment or transfer (any of the foregoing, a "Transfer") of any Shares (other
than a Transfer not involving a change in beneficial ownership) unless there is
in effect a registration statement under the Securities Act covering the
proposed Transfer or unless such proposed transfer satisfies all of the then-
applicable requirements of Rule 144, the holder thereof shall give written
notice to the Company of such holder's intention to effect such Transfer. Each
such notice shall describe the manner and circumstances of the proposed Transfer
in sufficient detail, and shall be accompanied, at such holder's expense by
either an unqualified written opinion of legal counsel who shall, and whose
legal opinion shall, be reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed Transfer of the Shares may be effected
without registration under the Securities Act, whereupon the holder of such
Shares shall be entitled to transfer such Shares in accordance with the terms of
the notice delivered by the holder to the Company. Each certificate evidencing
the Shares transferred as above provided shall bear, unless such Transfer is
made pursuant to an effective registration statement, the appropriate
restrictive legend set forth in section 5, except that such certificate shall
not bear such restrictive legend if in the opinion of counsel for such holder
and the Company such legend is not required in order to establish compliance
with any provision of the Securities Act.
7. RULE 144. The Company shall timely file the reports required to be
filed by it under the Securities Act and the Exchange Act (including but not
limited to the reports referred to in subparagraph (c) of Rule 144 adopted by
the Commission under the Securities Act) and will take such further action as
Simplot may reasonably request, all to the extent required from time to time to
enable Simplot or CIBC to sell Shares without registration under the Securities
Act pursuant to Rule 144 under the Securities Act, as amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission.
8. AMENDMENTS AND WAIVERS. This Agreement may be amended only with the
written consent of the parties hereto.
9. NOTICES. Except as otherwise provided in this Agreement, all notices,
requests and other communications to any Person provided for hereunder shall be
in writing and shall be given to such Person as follows:
(a) in the case of Simplot: J.R. Simplot Company, Attn: General Counsel,
One Capital Center, 999 Main Street, Suite 1300, Boise, Idaho 83707-0027,
with a copy to Sonnenschein Nath & Rosenthal, Attn: Jacques K. Meguire,
8000 Sears Tower, Chicago, Illinois 60606;
(b) in the case of CIBC: Canadian Imperial Bank of Commerce, Attn:
Office of General Counsel, 161 Bay Street, 5th Floor, Toronto, Ontario,
Canada, M5J 2S8, with copies to Canadian Imperial Bank of Commerce, Attn:
Alexander Bakal, 425 Lexington Avenue, New York, New York 10017, and Rogers
& Wells, Attn: Thomas A. McGavin, Jr., 200 Park Avenue, New York, New York
10166; or
(c) in the case of the Company: Micron Technology, Inc., Attn: General
Counsel, 8000 South Federal Way, P.O. Box 6, Boise, Idaho 83707;
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or at such other address, or to the attention of such other officer, as such
Person shall have furnished to the other parties to this Agreement. Each such
notice, request or other communication shall be effective (i) if given by mail,
72 hours after such communication is deposited in the mails with first class,
postage prepaid, addressed as aforesaid or (ii) if given by any other means
(including, without limitation, by air courier), when delivered at the address
specified above.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
11. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections
and subsections of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF IDAHO WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
13. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. ENTIRE AGREEMENT. This Agreement and the Registration Rights Agreement
dated as of June 28, 1996 between the Company and CIBC embody the entire
agreements and understandings among the Company, Simplot and CIBC relating to
the subject matter hereof and supersede all prior agreements and understandings
relating to such subject matter.
15. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF IDAHO OR
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE DISTRICT OF IDAHO OR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE PARTIES HEREBY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH PARTY BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH
PARTY AT ITS ADDRESS SPECIFIED IN SECTION 9. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND THE PARTIES HEREBY IRREVOCABLY WAIVE ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
16. SEVERABILITY. If any provision of this Agreement, or the application
of such provisions to any Person or circumstance, shall be held invalid, the
remainder of this Agreement, or
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the application of such provision to Persons or circumstances other than those
to which it is held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers thereunto duly authorized as of the date
first above written.
MICRON TECHNOLOGY, INC.
By:
----------------------------------------
Title:
J.R. SIMPLOT COMPANY
By:
----------------------------------------
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
----------------------------------------
Title: Managing Director
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Micron Technology, Inc. on Amendment No. 1 to Form S-3 of our report dated
October 2, 1997 on our audits of the consolidated financial statements of Micron
Technology, Inc. and subsidiaries, as of August 28, 1997 and August 29, 1996 and
for each of the three years in the period ended August 28, 1997, which report is
included in the Annual Report on Form 10-K of Micron Technology, Inc. filed with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934. We also consent to the reference to our firm under the caption
"Experts".
/s/ PricewaterhouseCoopers LLP
Boise, ID
July 17, 1998
