<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 11
SCHEDULE 13D
Under the Securities Exchange Act of 1934
MICRON TECHNOLOGY, INC.
(Name of Issuer)
Common Stock, $.10 par value
(Title of Class of Securities)
595112-4
(CUSIP Number)
Jacques K. Meguire, Esq.
SONNENSCHEIN NATH & ROSENTHAL
8000 Sears Tower
Chicago, Illinois 60606
Telephone: (312) 876-8000
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
October 2, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ].
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act, but shall be subject to all other provisions of the Act.
(Continued on following page(s))
<PAGE> 2
CUSIP NUMBER 595112-4
- -----------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.R. Simplot Company
- -----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX (a) [ ]
IF A MEMBER OF A GROUP (b) [X]
- -----------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------
4 SOURCE OF FUNDS* [00]
- -----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Nevada
- -----------------------------------------------------------------
:
: 7 SOLE VOTING POWER
: 16,899,000
:--------------------------------
:
: 8 SHARED VOTING POWER
: -0-
NUMBER OF SHARES BENEFICIALLY :--------------------------------
OWNED BY EACH REPORTING :
PERSON WITH : 9 SOLE DISPOSITIVE POWER
: 24,499,000
:--------------------------------
:
: 10 SHARED DISPOSITIVE POWER
: -0-
- --------------------------------:--------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,499,000 (See Item 5 (a)-(b))
- -----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- -----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.1%
- -----------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
- -----------------------------------------------------------------
<PAGE> 3
CUSIP NUMBER 595112-4
- -----------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Simplot Canada Limited
- -----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX (a) [ ]
IF A MEMBER OF A GROUP (b) [X]
- -----------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------
4 SOURCE OF FUNDS* [WC]
- -----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada
- -----------------------------------------------------------------
:
: 7 SOLE VOTING POWER
: 2,600,000
:--------------------------------
:
: 8 SHARED VOTING POWER
: -0-
NUMBER OF SHARES BENEFICIALLY :--------------------------------
OWNED BY EACH REPORTING :
PERSON WITH : 9 SOLE DISPOSITIVE POWER
: -0-
:--------------------------------
:
: 10 SHARED DISPOSITIVE POWER
: -0-
- --------------------------------:--------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,600,000 (Aggregate amount also included in aggregate
amount beneficially owned by J.R. Simplot Company)
- -----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- -----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.1%
- -----------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
- -----------------------------------------------------------------
<PAGE> 4
CUSIP NUMBER 595112-4
- -----------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John R. Simplot
###-##-####
- -----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX (a) [ ]
IF A MEMBER OF A GROUP (b) [X]
- -----------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------
4 SOURCE OF FUNDS* OO
- -----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION United States
- -----------------------------------------------------------------
:
: 7 SOLE VOTING POWER
: 12,941,599
:--------------------------------
:
: 8 SHARED VOTING POWER
: 22,400
NUMBER OF SHARES BENEFICIALLY :--------------------------------
OWNED BY EACH REPORTING :
PERSON WITH : 9 SOLE DISPOSITIVE POWER
: 12,941,599
:--------------------------------
:
: 10 SHARED DISPOSITIVE POWER
: 22,400
- --------------------------------:--------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,976,999
- -----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X]
- -----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.3%
- -----------------------------------------------------------------
14 TYPE OF REPORTING PERSON IN
- ------------------------------------------------------------------
<PAGE> 5
CUSIP NUMBER 595112-4
- -----------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.R. Simplot Self-Declaration of Revocable Trust dated
December 21, 1989
- -----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX (a) [ ]
IF A MEMBER OF A GROUP (b) [X]
- -----------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------
4 SOURCE OF FUNDS* OO
- -----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Idaho
- -----------------------------------------------------------------
:
: 7 SOLE VOTING POWER
: 7,967,377
:--------------------------------
:
: 8 SHARED VOTING POWER
: -O-
NUMBER OF SHARES BENEFICIALLY :--------------------------------
OWNED BY EACH REPORTING :
PERSON WITH : 9 SOLE DISPOSITIVE POWER
: 7,967,377
:--------------------------------
:
: 10 SHARED DISPOSITIVE POWER
: -O-
- --------------------------------:--------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,967,377 (amount also included in amount beneficially owned
by Mr. John R. Simplot)
- -----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X]
- -----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.3%
- -----------------------------------------------------------------
14 TYPE OF REPORTING PERSON OO
- -----------------------------------------------------------------
<PAGE> 6
CUSIP NUMBER 595112-4
- -----------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JRS Properties L.P.
EIN #82-0485383
- -----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX (a) [ ]
IF A MEMBER OF A GROUP (b) [X]
- -----------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------
4 SOURCE OF FUNDS* OO
- -----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Idaho
- -----------------------------------------------------------------
:
: 7 SOLE VOTING POWER
: 4,974,222
:--------------------------------
:
: 8 SHARED VOTING POWER
: -O-
NUMBER OF SHARES BENEFICIALLY :--------------------------------
OWNED BY EACH REPORTING :
PERSON WITH : 9 SOLE DISPOSITIVE POWER
: 4,974,222
:--------------------------------
:
: 10 SHARED DISPOSITIVE POWER
: -O-
- --------------------------------:--------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,974,222 (amount also included in amount beneficially owned
by Mr. John R. Simplot)
- -----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [X]
- -----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.0%
- -----------------------------------------------------------------
14 TYPE OF REPORTING PERSON PN
- -----------------------------------------------------------------
<PAGE> 7
This Amendment No. 11 to Schedule 13D (the "Schedule 13D") is being filed
on behalf of John R. Simplot ("Mr. Simplot"), J.R. Simplot Self-Declaration of
Revocable Trust dated December 21, 1989 (the "Revocable Trust"), JRS Properties
L.P. (the "Partnership"), J.R. Simplot Company, a Nevada corporation (the
"Company"), and Simplot Canada Limited ("SCL") to further amend the Schedule 13D
as originally filed on February 20, 1992, as subsequently amended and restated
by Amendment No. 4 to Schedule 13D ("Amendment No. 4") filed on November 29,
1995 by the Company, SCL, Mr. Simplot, the Revocable Trust and the Partnership
(collectively the "Reporting Persons") and as subsequently amended. Capitalized
terms used herein and not otherwise defined have the same meanings as provided
in Amendment No. 4.
Item 2. Identity and Background, is hereby amended by amending and restating the
information concerning the officers and directors of the Company and SCL
contained in Annex I and Annex II, respectively.
Item 5. Interest in Securities of the Issuer, is hereby amended and restated to
read in full as follows:
(a)-(b) The Company beneficially owns an aggregate of 24,499,000 shares of
Common Stock of Micron Technology, Inc. ("Micron"). Such shares represent 10.1%
of the outstanding Common Stock as of October 12, 1998 (based on information
provided by Micron) and consist of the following:
(i) 9,299,000 shares of Common Stock as to which the Company
has sole voting power and sole dispositive power,
(ii) 5,000,000 shares of Common Stock (the "1996 JRS Shares")
which are subject to the 1996 JRS Pledge (as described in Item 6) and
as to which the Company has sole voting power and no present
dispositive power, but can reclaim possession and sole dispositive
power at any time, subject to certain conditions,
(iii) 2,600,000 shares of Common Stock (the "1996 SCL Shares")
which are subject to the 1996 SCL Pledge (as described in Item 6 below)
and as to which shares the Company has the power to direct the vote and
no present dispositive power, but can cause SCL to reclaim possession
and sole dispositive power at any time, subject to certain conditions,
and
(iv) 7,600,000 shares (the "1998 JRS Shares") which are
subject to the 1998 JRS Pledge (as described in Item 6) and as to which
shares the Company has no voting power and no present dispositive
power, but can reclaim possession and dispositive power at any time,
subject to certain conditions.
<PAGE> 8
The Company disclaims beneficial ownership of the shares of Common Stock held by
each other Reporting Person other than SCL.
SCL beneficially owns an aggregate of 2,600,000 shares of Common Stock
(the "1996 SCL Shares"). The 1996 SCL Shares represent 1.1% of the outstanding
Common Stock as of October 12, 1998. As previously reported, the 1996 SCL Shares
are subject to 1996 SCL Pledge (as described in Item 6). SCL has sole voting
power but no present dispositive power over the 1996 SCL shares. The 1996 SCL
Pledge allows SCL to reclaim possession of and dispositive power over the 1996
SCL Shares at any time, subject to certain conditions. SCL disclaims beneficial
ownership of the shares of Common Stock held by each other Reporting Person.
Mr. Simplot beneficially owns an aggregate of 12,976,999 shares of
Common Stock (representing 5.3% of the outstanding Common Stock as of October
12, 1998) held as follows:
(i) 7,895,122 shares held in the Revocable Trust,
(ii) 4,974,222 shares held by the Partnership,
(iii) 72,255 shares held by the S-Sixteen Partnership,
(iv) 22,400 shares held in joint tenancy with his spouse, and
(v) 13,000 shares which Mr. Simplot has the right to acquire
pursuant to stock options.
Such 12,976,999 shares exclude shares of Common Stock as to which Mr. Simplot
disclaims beneficial ownership and which are held by (i) Mr. Simplot's spouse
(15,200 shares) or (ii) the J.R. Simplot Foundation (47,500 shares). Mr. Simplot
has the sole power to direct the disposal of, and the sole power to dispose or
direct the disposition of, and vote or direct the vote of, 12,941,599 shares of
Common Stock. Mr. Simplot shares with his spouse the power to dispose of, and to
vote, 22,400 shares of Common Stock. As previously reported, Mr. Simplot (i) is
the founder of the Company, (ii) retired from the position of a director and
Chairman of the Board of the Company in April 1994 and has not been an officer
or a director of the Company since that date, (iii) is neither an officer nor a
director of SCL, and (iv) does not own any voting shares of either the Company
or SCL. Mr. Simplot disclaims beneficial ownership of the shares of Common Stock
held by the Company or SCL.
The Revocable Trust beneficially owns an aggregate of 7,967,377 shares of
Common Stock, consisting of (x) 7,895,122 shares held in the Revocable Trust and
(y) 72,255 shares held by the S-Sixteen Partnership. Mr. Simplot, as sole
trustee of the Revocable Trust, has the sole power to direct the disposal of,
and the sole power to direct the vote of, the 7,967,377 shares of Common Stock.
Such shares represent 3.3% of the outstanding Common Stock as of October 12,
1998. The Revocable Trust disclaims beneficial ownership of the shares of Common
Stock held by each other Reporting Person.
<PAGE> 9
The Partnership beneficially owns 4,974,222 shares of Common Stock. Mr.
Simplot, as general partner of the Partnership, has the sole power to direct the
disposal of, and the sole power to direct the vote of, such shares. Such shares
represent 2.0% of the outstanding Common Stock as of October 12, 1998. The
Partnership disclaims beneficial ownership of the shares of Common Stock held by
each other Reporting Person.
(c) During the 60 days prior to the date of this Amendment No. 11, the
Company sold an aggregate of 1,800,000 shares of Common Stock to fund
requirements for investments in its core business. Such shares were sold in
public sales on the New York Stock Exchange and the Chicago Stock Exchange on
the dates and at the per-share prices (before brokerage commissions) indicated
below:
<TABLE>
<CAPTION>
DATE NO. OF SHARES PRICE
---- ------------- -----
<S> <C> <C>
10/1/98 40,000 30.2500
10/1/98 5,000 30.1875
10/1/98 75,000 30.1250
10/1/98 2,900 30.0625
10/1/98 87,500 30.0000
10/1/98 8,000 28.0000
10/2/98 175,900 26.5000
10/2/98 10,100 26.5625
10/2/98 9,000 26.6250
10/2/98 5,000 26.7500
10/2/98 50,000 27.0000
10/2/98 46,500 27.1250
10/2/98 22,000 27.1875
10/2/98 35,000 27.2500
10/2/98 46,500 27.3125
10/2/98 59,000 27.5000
10/2/98 8,000 27.5625
10/2/98 33,000 27.6250
10/2/98 20,000 27.9375
10/2/98 364,700 28.0000
10/2/98 8,300 28.0625
10/2/98 52,000 28.1250
10/2/98 106,000 28.1875
10/2/98 98,600 28.2500
10/2/98 45,000 28.3125
10/2/98 47,000 28.3750
10/2/98 100,000 28.5000
10/5/98 87,300 28.0000
10/6/98 152,700 28.5000
---------
Total 1,800,000
=========
</TABLE>
<PAGE> 10
(d) As previously reported, under the JRS Forward (as described in Item
6), Canadian Imperial Bank of Commerce ("CIBC") is entitled to receive (i) the
entire amount of any dividend on the 1996 JRS Shares that exceeds $0.50 per
share and (ii) non-cash distributions on the 1996 JRS Shares (excluding stock
splits, stock dividends and the like).
As previously reported, under an agreement between the Company and CIBC
dated July 29, 1996 (the "JRS Dividend Swap"), pursuant to an International Swap
Dealers Association, Inc. Master Agreement (Multicurrency--Cross Border) (1992)
between CIBC and the Company, (i) CIBC agreed to pay to the Company $250,000
within three business days after each payment of any dividend by Micron prior to
the termination of the JRS Dividend Swap, and (ii) the Company agreed to pay to
CIBC an amount equal to the product of (x) 5,000,000 and (y) the per share
amount of any dividend (but only in respect of dividends of $0.50 or less per
share) on the Common Stock prior to the termination of the JRS Dividend Swap.
As previously reported, under the SCL Forward, CIBC is entitled to
receive (i) the entire amount of any dividend on the 1996 SCL Shares that
exceeds $0.50 per share and (ii) non-cash distributions on the 1996 SCL Shares
(excluding stock splits, stock dividends and the like). As previously reported,
under an agreement between the Company and CIBC dated June 28, 1996 pursuant to
an International Swap Dealers Association, Inc. Master Agreement
(Multicurrency--Cross Border) (1992) between CIBC and the Company, (i) CIBC has
agreed to pay to the Company $90,170.79 within three business days after each
payment of any dividend by Micron prior to the SCL Termination Date, and (ii)
the Company agreed to pay to CIBC an amount equal to the product of (x)
2,600,000 and (y) the per share amount of any dividend (but only in respect of
dividends of $0.50 or less per share) on the Common Stock prior to the SCL
Termination Date.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer, is hereby amended and restated as follows:
As previously reported, on June 28, 1996, SCL entered into an agreement
with CIBC (the "SCL Forward") for the 1996 SCL Shares to CIBC pursuant to an
International Swap Dealers Association, Inc. Master Agreement
(Multicurrency--Cross Border) (1992) between CIBC and SCL, with delivery of the
SCL Shares to be made to CIBC on June 27, 2003 or sooner upon the occurrence of
certain events (the "SCL Termination Date"). The purchase price for the 1996 SCL
Shares to be paid by CIBC to SCL is Canadian $136,357,382.08 if the SCL
Termination Date occurs in June 2003, and is subject to reduction if the SCL
Termination Date occurs at
<PAGE> 11
an earlier date. Based on the exchange rate prevailing on June 28, 1996, this
purchase price represented approximately $99.9 million (approximately $38.42 per
share) in United States dollars payable in June 2003.
As previously reported, on July 29, 1996, the Company entered into an
agreement (the "JRS Forward") with CIBC for the sale of the 1996 JRS Shares to
CIBC pursuant to an International Swap Dealers Association, Inc. Master
Agreement (Multicurrency--Cross Border) (1992) between CIBC and the Company,
with delivery of the 1996 JRS Shares to be made to CIBC on July 29, 2003 or
sooner upon the occurrence of certain events (the "JRS Termination Date"). The
purchase price for the 1996 JRS Shares to be paid by CIBC to the Company is
$154,727,696 (approximately $30.95 per share) if the JRS Termination Date occurs
on July 29, 2003, and is subject to reduction in the event of an earlier JRS
Termination Date.
As previously reported, to secure the Company's obligations under the
JRS Forward, the JRS Dividend Swap and under a loan agreement between the
Company and CIBC dated July 29, 1996 (the "1996 Loan Agreement") pursuant to
which the Company borrowed from CIBC on such date $95,106,489.47 (the "1996
Loan") on a nonrecourse basis, the Company pledged the 1996 JRS Shares to CIBC
pursuant to a pledge agreement dated July 29, 1996 (the "1996 JRS Pledge"). The
Company is obligated to repay the 1996 Loan with accrued interest to CIBC on
June 29, 2003. In addition, under a separate provision of the 1996 Loan
Agreement, the Company has agreed to make an additional payment to CIBC of
$432,132 annually. Under the terms of the 1996 JRS Pledge, the Company retains
the right to vote the 1996 JRS Shares in the absence of an event of default
under the 1996 Loan Agreement.
On July 24, 1998, the Company entered into a Revolving Loan Agreement
with CIBC (the "1998 Revolving Loan") for an amount not to exceed the lesser of
70% of the fair market value of the 1998 JRS Shares or $50,000,000. The 1998
Revolving Loan matures on November 30, 2003, but the Company may terminate the
1998 Revolving Loan at any time, subject certain conditions.
To fulfill a condition to the 1998 Revolving Loan, the Company entered
into a Pledge Agreement with CIBC on July 24, 1998 ("1998 JRS Pledge") in which
the Company pledged 7,600,000 shares of Common Stock held by the Company (the
"1998 JRS Shares") to secure the Company's obligations of performance and
payment under the 1998 Revolving Loan. Under the 1998 JRS Pledge, CIBC has the
right to sell, pledge and/or assign the 1998 JRS Shares until the termination of
the 1998 JRS Pledge. CIBC also has the right to vote the 1998 JRS Shares. The
Company may terminate the 1998 JRS Pledge and reclaim the 1998 JRS Shares at any
time, subject to certain conditions.
On July 24, 1998, the Company entered into a Registration Rights
Agreement with Micron and CIBC (the "Registration Rights Agreement") relating to
the registration under the Securities Act of the 1998 JRS Shares. The
Registration Rights Agreement provides for the Company and CIBC to reimburse
Micron for certain registration expenses and also contains customary
indemnification provisions.
<PAGE> 12
Item 7. Material to be Filed as Exhibits, is hereby amended by adding the
following thereto:
Exhibit Number Exhibit
O. Revolving Loan Agreement between J.R. Simplot
Company and the Canadian Imperial Bank of Commerce
dated July 24, 1998.
P. Pledge given by J.R. Simplot Company in favor of
Canadian Imperial Bank of Commerce dated July 24,
1998.
Q. Registration Rights Agreement between Micron
Technology, Inc., J.R. Simplot Company and the
Canadian Imperial Bank of Commerce dated July 24,
1998.
<PAGE> 13
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: October 15, 1998 Dated: October 15, 1998
J.R. Simplot Company Simplot Canada Limited
By: /s/ RONALD N. GRAVES By: /s/ RONALD N. GRAVES
--------------------------- -----------------------------
Title: Secretary Title: Secretary
Dated: October 15, 1998 Dated: October 15, 1998
JRS Properties L.P. John R. Simplot
By: /s/ JOHN R. SIMPLOT /s/ JOHN R. SIMPLOT
-------------------------- --------------------------------
John R. Simplot,
as General Partner
Dated: October __, 1998
J.R. Simplot Self-
Declaration of Revocable
Trust dated December 21, 1989
By: /s/ JOHN R. SIMPLOT
---------------------------
John R. Simplot, as
Trustee
<PAGE> 14
Annex I
The names and principal occupations of the executive officers and
directors of the Company (all of whom are U.S. citizens) and their respective
holdings of Common Stock are as follows :
<TABLE>
<CAPTION>
Name and Business Position and Principal Common Stock
Address Occupation Holdings
- ----------------- ----------------------- -------------
<S> <C> <C>
Stephen A. Beebe Director; President and None
Chief Executive Officer
Scott R. Simplot Director None
A. Dale Dunn Director 500
Don J. Simplot Director; Vice President 167,020*
Gay C. Simplot Director 55,250
James D. Crawford Controller None
John Edward Simplot Director 1,000
Ronald N. Graves Vice President; Secretary 700
Dennis R. Mogensen Sr. Vice President; None
Chief Financial Officer
Thomas J. Sorge Treasurer 1304
James R. Munyon Sr. Vice President None
Lawrence S. Hlobik Sr. Vice President None
</TABLE>
* Includes (i) 149,020 shares held by Mr. Don Simplot directly, (ii)
5,000 shares held by him as custodian for his minor child, and (iii)
13,000 shares that he has a right to acquire within the next 60 days.
Unless otherwise indicated, the business address of each such executive officer
and director is 999 Main Street, Suite 1300, Boise, Idaho 83702.
---------------------
To the best of the Reporting Persons' knowledge, none of such persons
has, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
<PAGE> 15
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
<PAGE> 16
Annex II
The names and principal occupations of the executive officers and
directors of Simplot Canada Limited ("SCL"), and their respective holdings of
the Common Stock are as follows:
<TABLE>
<CAPTION>
Name, Business Address Position and Principal Common Stock
and Citizenship Occupation Holdings
- ----------------------- ---------------------- ------------
<S> <C> <C>
Kenneth Watson (Canada) Treasurer; Director None
1400-17th Street East
Brandon, Manitoba R7A 7C4
Ronald N. Graves (USA) Secretary See Annex I
Stephen A. Beebe (USA) Director; Vice President See Annex I
Warren Gray (Canada) Director None
1400-17th Street East
Brandon, Manitoba R7A 7C4
Lawrence S. Hlobik Director; President See Annex I
John Malinowski Director None
</TABLE>
Unless otherwise indicated, the business address of each such executive officer
and director is 999 Main Street, Suite 1300, Boise, Idaho 83702.
To the best of the Reporting Persons' knowledge, none of such persons
has, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
<PAGE> 1
EXHIBIT O
THIS REVOLVING LOAN AGREEMENT dated July 24, 1998
B E T W E E N:
J.R. SIMPLOT COMPANY
(the "Borrower")
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
Acting through its New York Agency
(the "Bank")
WHEREAS the Bank has agreed to establish a revolving credit in favor
of the Borrower upon the terms and conditions hereinafter set forth;
FOR GOOD AND VALUABLE CONSIDERATION the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, the following terms will have the meanings set
out below unless the context requires otherwise:
(1) "ADVANCE" has the meaning set forth in Section 2.1(2) hereof.
(2) "AGREEMENT" means this Agreement (including the schedules to this
Agreement) as it (or they) may be amended, supplemented or restated from time to
time, and the expressions
<PAGE> 2
"hereof", "herein", "hereto", "hereunder", "hereby" and similar expressions
refer to this Agreement and not to any particular Section or other portion of
this Agreement.
(3) "BUSINESS DAY" means any day except Saturday, Sunday or any
statutory holiday in New York, New York or in Boise, Idaho.
(4) "COLLATERAL" has the meaning specified in the Pledge Agreement.
(5) "COLLATERAL MAINTENANCE REQUIREMENT" means, as of any date of
determination, 80% of the Market Value of the Collateral on such determination
date.
(6) "CONSENTS" means any consent, approval, authorization, permit,
license, franchise, privilege, grant, exemption and other similar concession of,
by or from any Official Body and "CONSENT" means any one of the Consents.
(7) "DESIGNATED MATURITY" has the meaning set forth in the 1991
Definitions.
(8) "EVENT OF DEFAULT" means an event specified in Section 7.1 hereof.
(9) "FEDERAL RESERVE BOARD" shall mean the Board of Governors of the
Federal Reserve System as constituted from time to time.
(10) "FUNDING DATE" has the meaning set forth in Section 2.1(2) hereof.
(11) "INTEREST PAYMENT DATE" means the first day of March, June,
September and December of each year during the term of this Agreement,
commencing September 1, 1998; provided that if such day is not a Business Day,
the Interest Payment Date shall be the following Business Day.
(12) "INTEREST PERIOD" means the period from and including an Interest
Payment Date (or, for the first Interest Period as to each Advance, a Funding
Date) to but excluding the next Interest Payment Date (or, for the last Interest
Period, the Maturity Date).
(13) "LIABILITIES" means all present and future indebtedness, liabilities
and obligations of every kind, nature and description (whether direct or
indirect, joint or several, absolute or contingent, matured or unmatured) of the
Borrower to the Bank under this Agreement, the Note and the Pledge Agreement
between the Parties dated contemporaneously herewith.
(14) "LIBOR" means, for each Interest Period, the rate determined
according to the 1991 Definitions published by the International Swaps and
Derivatives Association, Inc. (the "1991 Definitions") as USD-LIBOR-BBA for a
Designated Maturity of three months with the Reset Date (as such term is defined
in the 1991 Definitions) being the first day of such Interest Period; provided
that, if any Interest Period in respect of any Advance is a period of less than
three calendar months, then LIBOR for such Interest Period means the rate that
would be determined according to the 1991 Definitions as USD-LIBOR-BBA for a
Designated Maturity for a period equal to the period from the Funding Date for
such Advance to the next Interest
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Payment Date and, if such Designated Maturity is other than a number of whole
calendar months, by straight-line interpolation between the rates that would be
so determined on the basis of Designated Maturities of the next shorter and the
next longer number of whole calendar months.
(15) "LOAN" has the meaning given to it in Section 2.1(1).
(16) "LOAN COMMITMENT" means, as of any date of determination, the lesser
of 70% of the aggregate Market Value of the Collateral on such determination
date or $50,000,000.
(17) "MARGIN STOCK" has the meaning provided such term in Regulation U of
the Federal Reserve Board as in effect from time to time.
(18) "MARKET VALUE" has the meaning set forth in the Pledge Agreement.
(19) "MATURITY DATE" means November 30, 2003.
(20) "MICRON" means Micron Technology, Inc., or any successor thereof.
(21) "NOTE" means a note of the Borrower in favor of the Bank as
described in Section 2.3(1) hereof and in substantially the form annexed hereto
as Schedule A.
(22) "OFFICIAL BODY" means any government or political subdivision or any
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator
whether foreign or domestic.
(23) "PARTY" means a party to this Agreement and any reference to a Party
includes its successors and permitted assigns; "PARTIES" means every Party.
(24) "PERSON" or "PERSON" includes an individual, partnership,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity or any Official Body.
(25) "PLEDGE AGREEMENT" means the agreement referred to in Section 4.1
hereof, and any amendments, restatements, substitutions or consolidations
thereof.
(26) "RESTRICTED SUBSIDIARY" means a "Restricted Subsidiary", from time
to time, as such term is used in the Credit Agreement dated as of October 23,
1997 among J.R. Simplot Company, Simplot Australia (Holdings) PTY Limited and
the various lenders named therein.
(27) "SELECTED SECURITIES" means 7,600,000 shares of common stock, $.10
par value (U.S.$) of Micron (New York Stock Exchange ticker symbol "MU").
(28) "UNITED STATES DOLLARS" and "$" mean the lawful currency of the
United States of America, unless otherwise specified.
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1.2 HEADINGS
The division of this Agreement into Sections, the insertion of
headings, and the provision of any table of contents are for convenience of
reference only and will not affect the construction or interpretation of this
Agreement.
1.3 STATUTE REFERENCES
Any reference in this Agreement to any statute or any section
thereof will, unless otherwise expressly stated, be deemed to be a reference to
such statute or section as amended, restated or re-enacted from time to time.
1.4 NUMBER AND GENDER
Unless the context requires otherwise, words importing the singular
number include the plural and vice versa. Any words importing gender includes
all genders.
1.5 BUSINESS DAYS
If any payment is required to be made or other action is required to
be taken pursuant to this Agreement on a day which is not a Business Day, then
such payment or action will be made or taken on the next Business Day.
1.6 CURRENCY AND PAYMENT OBLIGATIONS
Unless otherwise specified, all dollar amounts referred to in this
Agreement are stated in United States Dollars. All payments due on a particular
day must be received and available to the Bank not later than 2:00 p.m. on the
due date and any payment made after that time will be deemed to have been made
and received on the next Business Day.
1.7 CALCULATION OF INTEREST
In calculating interest payable under this Agreement for any period
of time, the first day of such period will be included and the last day of such
period will be excluded.
1.8 TIME
Unless otherwise expressly stated, any reference herein to a time
will mean New York, New York, local time.
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ARTICLE 2
THE CREDIT
2.1 ESTABLISHMENT OF CREDIT; LOAN FUNDING
(1) Upon the terms and conditions contained herein the Bank hereby
agrees to make a loan to Borrower (the "Loan") at the request of the Borrower,
and to increase the amount of such Loan from time to time at the Borrower's
request; provided that the Lender need not increase the amount of the Loan to
the extent the principal amount of the Loan, together with accrued interest,
would exceed the Loan Commitment.
(2) The Borrower may request the Bank to make an initial advance or to
make one or more subsequent advances (each, an "Advance") to increase the
principal amount of the Loan on any Business Day prior to the Maturity Date with
one Business Day's prior notice. If the Bank has received such notice by 2:00
p.m. on any Business Day, and subject to Section 2.1(1), the Bank shall send the
amount of the requested Advance to the account directed by the Borrower in such
notice in immediately available funds by 2:00 p.m. on the following Business Day
(each, a "Funding Date"). Amounts borrowed hereunder may be repaid and
reborrowed from time to time, subject to the terms of this Agreement.
2.2 UTILIZATION OF PROCEEDS
The Loan proceeds will be used by the Borrower for its general
corporate business purposes. By making any request to the Bank to make an
Advance, the Borrower represents that the proceeds of such Advance will not be
used to purchase or carry Margin Stock.
2.3 NOTE
(1) The Loan will be evidenced by a Note in favor of the Bank. The Note
will be substantially in the form set out in Schedule A hereto. The Bank is
hereby authorized to record the date and amount of each Advance and principal
and interest payment in respect of the Loan in its books and records. Such books
and records shall constitute prima facie evidence of the accuracy of the
information contained therein.
(2) Subject to Section 9.6, the Borrower agrees to execute and deliver
to the Bank such replacement Note as may be requested from time to time. In such
event, the Bank will return to the Borrower either the Note so replaced or, if
such Note has been lost or stolen, appropriate indemnities with respect to the
lost or stolen Note.
2.4 INTEREST RATE
The outstanding amount of the Loan for each applicable Interest
Period will bear interest at LIBOR minus .20% per annum; provided that interest
on any amounts not paid when due (including, to the extent permitted by
applicable law, interest on overdue interest) shall
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accrue at a rate per annum equal to LIBOR plus .30%. Such rate will be
calculated based on the actual number of days in each Interest Period and a
calendar year of 360 days. Interest on the Loan shall accrue from and including
the Funding Date of each Advance to but excluding the date of any repayment
thereof and shall be payable in arrears on each Interest Payment Date, on the
date of any principal repayment, at maturity (whether by demand, acceleration or
otherwise) and, after such maturity, on demand.
ARTICLE 3
REPAYMENT AND PREPAYMENT
3.1 MATURITY DATE
On the Maturity Date the Borrower will repay the Loan and will pay
all accrued but unpaid interest on the Loan.
3.2 PREPAYMENT
The Loan shall be prepayable by the Borrower at its option in
whole or in part on any Business Day with one Business Day's prior notice to the
Bank.
3.3 PREPAYMENT ON DEMAND BY THE BANK
(a) The Bank shall have the right to demand prepayment of the Loan
in whole or in part at any time; provided that the Bank shall give the Borrower
written notice (or telephone notice promptly confirmed in writing) of its intent
to demand prepayment of the Loan at least 15 days prior to the date of any such
prepayment.
(b) If on any day the amount of the Loan exceeds the Collateral
Maintenance Requirement the Borrower shall, within two Business Days following
receipt of notice from the Bank, prepay a portion of the Loan such that,
following such prepayment, the amount of the Loan is equal to or less than the
Loan Commitment.
3.4 BREAKAGE COSTS
If the Bank demands prepayment of, or if the Borrower prepays, all
or any part of the Loan pursuant to this Article 3, Article 7 or otherwise, the
Borrower will forthwith reimburse the Bank for actual costs and out-of-pocket
expenses (but not lost profits) reasonably incurred by the Bank as a result of
any matched funding or interest rate hedging arrangements entered into by the
Bank in support of the Loan.
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3.5 TERMINATION
(a) Notwithstanding the prepayment in full of the Loan, amounts paid
or prepaid on the Loan may be reborrowed in accordance with Article 2, and this
Agreement shall terminate prior to the Maturity Date only after notice given in
compliance with Section 3.5(b).
(b) The Borrower or the Bank may terminate this Agreement prior to
the Maturity Date on any Business Day by giving written notice (or telephone
notice promptly confirmed in writing) thereof at least 15 days prior to the
termination day specified in such notice; provided that, no termination of this
Agreement by the Borrower shall be effective until all of the Liabilities of the
Borrower shall have been discharged in full.
ARTICLE 4
SECURITY
4.1 PLEDGE AGREEMENT
As continuing collateral security for the payment and performance of
the obligations of the Borrower under this Agreement, the Borrower will pledge,
and grant a first charge and security interest in, the Collateral to the Bank.
Such Pledge Agreement will be in form and substance satisfactory to the Bank.
4.2 FILING OF SECURITY INTEREST
The Borrower covenants and agrees that it will, at Bank's expense,
upon thirty (30) days' prior written notice and in such manner and form as the
Bank may reasonably require, execute and deliver to the Bank for filing and
recordation any financing statement, and take any other action that may be
necessary or desirable in order to create, preserve, perfect or validate any
security interests granted or to enable the Bank to exercise and enforce its
rights under the Pledge Agreement with respect to any of the Collateral.
4.3 MAINTENANCE OF PERFECTION
The Borrower will not change its name or change the location of its
chief executive office unless it has provided the Bank with thirty (30) days'
prior written notice of such change.
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\
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 To induce the Bank to enter into this Agreement, the Borrower hereby
represents and warrants to the Bank, upon each of which representations and
warranties the Bank specifically relies, as follows:
(a) Good Standing: It is a corporation duly incorporated and organized,
is validly existing under the laws of Nevada, is in good standing
and has its principal place of business in Boise, Idaho.
(b) Corporate Power: It has the corporate power to:
(i) own the Selected Securities; and
(ii) enter into and perform this Agreement, the Note and
the Pledge Agreement.
(c) Corporate Authorization: It has taken all necessary corporate action
to authorize the execution, delivery and performance of this
Agreement, the Note and the Pledge Agreement to which it is a party.
(d) Consents and Authorization: To the best of its knowledge, no
Consents of, or filing with, any person (including, without
limitation, any Official Body) are required in connection with the
execution, delivery or performance of its obligations under this
Agreement, the Note and the Pledge Agreement or the validity or
enforceability against it of them, except for such filings as may be
required under the federal or state securities laws of the United
States of America.
(e) Due Execution: It has duly executed and delivered this Agreement,
the Note and the Pledge Agreement.
(f) No Legal Bar: To the best of its knowledge, the execution, delivery
and performance of this Agreement and the borrowing of money by the
Borrower hereunder, the use by it of the proceeds of such borrowing,
the creation by the Pledge Agreement of the charge, pledge and
security interest over the Collateral and the realization process
contemplated in the Pledge Agreement will not violate any
requirement of law or any of its contractual obligations.
(g) No Material Litigation: To the best of its knowledge, no
investigation or proceeding of any Official Body is pending against
it or against any of its properties or revenues, existing or future,
which could reasonably be expected to have an adverse effect on the
Collateral, the Borrower's ownership of the
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<PAGE> 9
Collateral or the Borrower's ability to perform its obligations
under the Pledge Agreement or this Agreement, and no litigation,
investigation or proceeding of or before any Official Body is, to
the best of the Borrower's knowledge, pending or threatened by or
against it or against any of its properties or revenues, existing or
future, which has or could reasonably be expected to have an adverse
effect on the Collateral, the Borrower's ownership of the Collateral
or its ability to perform its obligations under this Agreement or
the Pledge Agreement.
(h) Full Disclosure: To the best of its knowledge, there is no fact
which has not been disclosed to the Bank which will, so far as the
Borrower can now reasonably foresee, materially adversely affect the
Borrower's ability to perform its obligations under the Pledge
Agreement or this Agreement; to the best of its knowledge, but
without any review, investigation or participation by the Borrower
in the preparation of the filings of Micron Technology, Inc. with
the United States Securities and Exchange Commission pursuant to
section 13(a) of the United States Securities Exchange Act of 1934,
as amended, such filings do not contain any untrue statements of
material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, or in light of current circumstances, not
misleading.
(i) No Default: To the best of its knowledge, neither the execution nor
the delivery by it of this Agreement or the Pledge Agreement, the
consummation of the transactions herein and therein contemplated,
nor the compliance with the terms, conditions and provisions hereof
and thereof conflicts with, or will conflict with, or results or
will result in, any breach of, or constitutes a default under, any
of the provisions of its charter documents or by-laws or of any
material agreement or instrument to which it is a party or by which
it or the Collateral are bound.
(j) Financial Information: To the best of its knowledge, any financial
information regarding the Borrower that has been delivered by it to
the Bank is true and accurate in all material respects.
(k) Title: The Borrower has good and marketable title to the Collateral,
subject only to the Pledge Agreement.
(l) Security Interest: Upon execution of the Pledge Agreement and
transfer of the Selected Securities to the Bank in accordance with
the provisions of the Pledge Agreement, the Bank will have a valid
and perfected first priority security interest in the Selected
Securities as security for the Liabilities. The Selected Securities
are fully paid and non-assessable.
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ARTICLE 6
COVENANTS
6.1 AFFIRMATIVE COVENANTS
(a) Notice of Defaults: In addition to the covenants set out
elsewhere in this Agreement, the Borrower covenants and agrees with the Bank
that, except as otherwise permitted by the prior written consent of the Bank, it
will forthwith notify the Bank in writing of the occurrence of any Event of
Default or any event that with the giving of notice by the Bank or the passage
of time would become an Event of Default.
(b) Consents: Each party agrees it will use all reasonable efforts
to maintain in full force and effect all consents of any governmental or other
authority that are required to be obtained by it with respect to the Agreement
and will use all reasonable efforts to obtain any that may become necessary in
the future.
(c) Compliance: Each party agrees it will comply in all material
respects with all applicable laws and orders to which it may be subject if
failure so to comply would materially impair its ability to perform its
obligations under the Agreement.
(d) Requirements: Borrower shall from time to time forthwith on
Bank's request do, make and execute all documents, acts, matters and things as
may be required by Bank with respect to the Agreement or any part hereof or as
may be required to give effect to these presents.
(e) Inspection: Borrower shall permit any authorized representative
designated by the Bank to visit and inspect any of the properties of the
Borrower, including any financial and accounting records, and to make copies and
extracts therefrom, and to discuss its affairs, finances and accounts with its
officers and independent public accountants, upon reasonable notice, all at such
reasonable times during normal business hours and as often as may be reasonably
requested.
(f) Existence: Borrower agrees that it will maintain and preserve
its existence and organization. Borrower additionally covenants that it will not
voluntarily dissolve or wind up without first discharging its obligation under
the Agreement.
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ARTICLE 7
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events will
constitute an Event of Default under this Agreement:
(a) Payment Default: If the Borrower shall: (i) fail to pay any
principal due hereunder or under the Note, whether at maturity, upon
demand for prepayment by the Bank or otherwise, as and when due and
payable; (ii) fail to pay interest due hereunder or under the Note
as and when due and payable; or (iii) fail to pay any fee or other
amount due hereunder, within 3 Business Days after written notice
thereof;
(b) Failure to Perform Terms: If the Borrower defaults in the
performance or observance of any term, condition or covenant
contained in any of this Agreement, the Note or the Pledge
Agreement, other than as described in clause (a) of this Section
7.1, and in the case of a default capable of being remedied, such
default is not remedied within 30 days after written notice thereof
has been delivered by the Bank to the Borrower (or in the case of a
default under Section 12 of the Pledge Agreement, not remedied
within 3 Business Days after written notice thereof);
(c) Cross Default. If there shall occur (1) a default, event of default
or other similar condition or event (however described) in respect
of the Borrower or any Restricted Subsidiary of the Borrower under
one or more agreements or instruments relating to indebtedness of
any of them (individually or collectively) in an aggregate amount of
not less than the $5,000,000 which has resulted in such indebtedness
becoming due and payable under such agreements or instruments,
before it would otherwise have been due and payable or (2) a default
by such party or such Restricted Subsidiary (individually or
collectively) in making one or more payments on the due date thereof
in an aggregate amount of not less than the $5,000,000 under such
agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
(d) Default under Specified Transaction: The Borrower or any Restricted
Subsidiary of the Borrower (1) defaults under any swap, derivative
or other notional contract with the Bank and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or any early
termination of any such contract, (2) defaults, after giving effect
to any applicable notice requirement or grace period, in making any
payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of any such contract
(or such default continues for at least
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three Business Days if there is no applicable notice requirement or
grace period) or (3) disaffirms, disclaims, repudiates or rejects,
in whole or in part, any such contract (or such action is taken by
any person or entity appointed or empowered to operate it or act on
its behalf);
(e) Representations and Warranties: If any representation, warranty or
statement which is made in this Agreement or the Pledge Agreement is
untrue or incorrect in any material respect when made;
(f) Documents Not Legally Binding: If any obligation or other provision
in this Agreement, the Note or the Pledge Agreement that is material
in the opinion of the Bank acting reasonably terminates or ceases to
be legally valid, binding and enforceable against the Borrower or if
the security interest created by the Pledge Agreement ceases to be a
first priority perfected security interest in favor of the Bank
other than by reason of the Bank's action or inaction;
(g) Withdrawal of Necessary Consents: If any Consents required to
make this Agreement, the Note or the Pledge Agreement legal, valid,
binding and enforceable, in any material respect, or required in
order to enable the Borrower to perform its obligations thereunder,
in any material respect, are withdrawn or cease to be in full force
and effect;
(h) Bankruptcy: The Borrower generally does not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit
of creditors; or a proceeding shall be instituted by or against the
Borrower seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under the United States Bankruptcy Code or any other law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official over a
material portion of the assets of the Borrower (such materiality
determination to be made against the assets of the Borrower at the
time of such appointment) and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Borrower shall take any corporate action to authorize
any of the actions set forth above in this paragraph; or
(i) The Bank shall fail to have a first priority perfected security
interest in the Collateral for any reason within the control of
Borrower.
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All periods contained in this Section which allow the Borrower an
opportunity to cure an Event of Default will, subject to applicable law, run
concurrently with any requirements for notice under any U.S. or other applicable
law.
7.2 ACCELERATION AND ENFORCEMENT
Upon the occurrence of an Event of Default, all obligations of the
Borrower to the Bank under this Agreement and the Note will, at the sole option
of the Bank and without written notice to the Borrower (except as required by
law), immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the Borrower, the
charge, pledge and security interest created by the Pledge Agreement will
thereupon become enforceable by the Bank or its duly authorized agent, and the
Bank may, at its option, enforce the Pledge Agreement and security interest.
ARTICLE 8
CONDITIONS PRECEDENT
8.1 GENERAL
(1) The obligation of the Bank to establish the Loan and to permit the
Borrower to draw the Loan is subject to the fulfillment of the following
conditions precedent to the satisfaction of the Bank, it being understood that
the said conditions are included for the exclusive benefit of the Bank and may
be waived in writing in whole or in part by the Bank at any time:
(a) Pledge Agreement: The Borrower will have duly authorized, executed
and delivered to the Bank the Pledge Agreement together with any
other reasonable documentation required by the Bank (including
delivery to the Bank of the Selected Securities in accordance with
the Pledge Agreement).
(b) Note: The Borrower will have executed and delivered the Note to the
Bank.
(c) Corporate Proceedings: The Borrower will have delivered to the Bank
all records of all corporate proceedings in connection herewith,
including without limitation, the following:
(i) certified copies of all corporate action taken by the Borrower
to authorize the borrowing hereunder and the execution and
delivery of this Agreement, the Note and the Pledge Agreement;
and
(ii) an incumbency Certificate.
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(d) Corporate Opinion: Counsel for the Borrower will have delivered to
the Bank an opinion with respect to the due authorization, execution
and delivery of this Agreement, the Note and the Pledge Agreement,
including an opinion that they are legally valid, binding and
enforceable obligations, and that the security interest in the
Collateral is perfected.
(e) Registration: The Securities and Exchange Commission ("SEC") shall
have declared effective a registration statement (File No. 333-5773)
filed by Micron on June 29, 1998 with the SEC under the Securities
Act of 1933 (the "Securities Act") with respect to all of the
Selected Securities, which registration statement has the effect of
permitting the transfer of the Selected Securities by the Bank as
permitted by this Agreement and the Pledge Agreement and as set
forth in the section of such registration statement captioned "Plan
of Distribution" without further registration under the federal
securities laws, subject to the Bank's delivery of any prospectus
required to be delivered by the Securities Act.
(f) UCC Financing Statements: The Borrower shall have filed UCC
financing statements in form acceptable to the Bank in all
jurisdictions necessary to perfect, for the benefit of the Bank, a
security interest in the Collateral.
8.2 REGISTRATION RIGHTS
Micron, the Bank and the Borrower have entered into a Registration
Rights Agreement dated as of the date hereof (the "Rights Agreement") pursuant
to which Micron has granted to the Bank and the Borrower certain rights to
request that Micron effect the registration under the Securities Act of the
7,600,000 shares of Micron common stock (the "Loan Shares") that are the subject
of this Agreement.
The Bank and the Borrower acknowledge that the rights to request
registration granted under the Rights Agreement are intended by the Bank and the
Borrower to facilitate transactions between the Bank and the Borrower involving
the common stock of Micron, including the Loan contemplated by this Agreement.
Accordingly, the Borrower agrees that it will, take all other actions under the
Rights Agreement reasonably required to permit Micron to effect the registration
of the Loan Shares as contemplated therein.
The Bank and the Borrower have agreed in the Rights Agreement to pay
any Registration Expenses, as defined therein, incurred by Micron in connection
with any registration requested under the Rights Agreement. The Borrower and the
Bank agree that the Bank shall pay to Micron, or to the Borrower for payment to
Micron, the first $200,000.00 of such Registration Expenses and that the
Borrower shall pay to Micron any such Registration Expenses in excess of
$200,000.00. Each of the Bank and the Borrower shall pay its own fees and
expenses.
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ARTICLE 9
MISCELLANEOUS
9.1 NOTICES
(a) Any notice, certificate, consent, determination or other
communication required or permitted to be given or made under this Agreement
will be in writing and will be effectively given and made if (i) delivered
personally, (ii) sent by prepaid courier service or certified or registered
mail, return receipt requested or (iii) sent prepaid by fax or other similar
means of electronic communication, in each case to the applicable address set
out below:
(i) if to the Bank, to:
Mr. Ronald Jost
Executive Director
Canadian Imperial Bank of Commerce
425 Lexington Avenue - 6th Floor
New York, New York 10017
Fax: (212) 856-6098
Phone: (212) 856-6591
with a copy to:
Mr. Alexander Bakal
Executive Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
5th floor
New York, N.Y. 10017
Fax: (212) 856-6526
Phone: (212) 885-4349
(ii) if to the Borrower, to:
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7295
Phone: (208) 389-2110
Attn: Treasurer
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and
Ronald Graves, Esq.
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7464
Phone: (208) 389-7312
with a copy to:
Jacques K. Meguire, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Fax: (312) 876-7934
Phone: (312) 876-8000
(b) Any such communication so given or made will be deemed to have been
given or made and to have been received on the day of delivery if delivered, or
on the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business Day and the
communication is so delivered, faxed or sent prior to 4:30 p.m. on such day. If
so delivered, faxed or sent on or after 4:30 p.m. on such day, such
communication will be deemed to have been given and made and to have been
received on the next following Business Day. Any such communication sent by mail
will be deemed to have been given and made and to have been received on the
fifth Business Day following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended disruption of
postal services. Any such communication given or made in any other manner will
be deemed to have been given or made and to have been received only upon actual
receipt.
(c) Any Party may from time to time change its address under this
Section by notice to the other Party given in the manner provided by this
Section.
9.2 TIME OF ESSENCE
Time will be of the essence of this Agreement in all respects.
9.3 NON-MERGER
The obligations of the Borrower contained in this Agreement (and to
the extent that those obligations are not repeated in the Pledge Agreement) will
survive the execution of
16
<PAGE> 17
the Pledge Agreement and the drawdown of the Loan, and the Borrower agrees that
those obligations will not be deemed to be merged in the execution of the Pledge
Agreement.
9.4 INTERPRETATION
This Agreement will be governed by and construed in accordance with
the laws of the State of New York without reference to conflict of law
provisions (other than Section 5- 1401 of the New York General Obligations Law).
9.5 SUBMISSION TO JURISDICTION
Any legal action or proceeding with respect to this agreement may be
brought in the courts of the State of New York, in the Borough of Manhattan, or
of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the parties hereby accept for
themselves and in respect of their property, generally and unconditionally, the
jurisdiction of the aforesaid courts and any appellate courts to which any
decisions of such courts may be appealed. Each party hereto hereby 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 9.1. The parties hereto hereby
irrevocably waive trial by jury, and the parties hereby irrevocably waive any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non conveniens, which they may now or hereafter
have to the bringing of any such action or proceeding in such jurisdiction.
9.5 ASSIGNMENT
Without the prior written consent of the other Party, no Party may
assign or transfer, encumber or otherwise dispose of (whether by security or
otherwise) any part of its respective rights or obligations under this
Agreement, the Note or the Pledge Agreement.
9.6 AMENDMENTS TO AGREEMENT
Any amendments to this Agreement must be in writing and signed by an
officer of each of the Parties, duly authorized for such purpose.
9.7 EXPENSES OF ENFORCEMENT
(1) The Borrower agrees that the Bank may charge on its own behalf
and pay to others reasonable sums for expenses incurred and for services
rendered (expressly including reasonable legal expenses) in or in connection
with maintaining, protecting, disposing of, retaining, collecting or realizing
upon the Collateral and the Pledge Agreement or any part
17
<PAGE> 18
thereof and may apply the proceeds of realizing, disposing of or collecting upon
such Collateral or Pledge Agreement to the payment of such sums.
(2) The Bank agrees that the Borrower may charge on its own behalf
and pay to others reasonable sums for expenses incurred and for services
rendered (expressly including reasonable legal expenses) in or in connection
with recovering the Collateral or any part thereof in the event of the failure
by the Bank to return such Collateral to the Borrower in accordance with the
terms hereof.
9.8 RIGHTS AND WAIVERS
The rights and remedies of the Bank under this Agreement and the
Pledge Agreement:
(a) are cumulative;
(b) may be exercised as often and in such order as the Bank
considers appropriate;
(c) are in addition to its rights and remedies under applicable law;
and
(d) will not be capable of being waived or varied except by virtue
of an expressed waiver or variation in writing signed by an
officer of the Bank.
In particular, any failure to exercise or any delay in exercising any of such
rights and remedies will not operate as a waiver or variation of that or any
other such right or remedy; any defective or partial exercise of any of such
rights will not preclude any other or future exercise of that or any other such
right or remedy; and no act or course of conduct or negotiation on the part of
the Bank or on its behalf will in any way preclude it from exercising any such
right or remedy or constitute a suspension or variation of any such right or
remedy.
9.9 FURTHER ASSURANCES
The Borrower will promptly do, execute, deliver or will cause to be
done, executed and delivered all such further acts, documents and things in
connection with this Agreement that the Bank may reasonably require for the
purposes of giving effect to the provisions and purposes of the Agreement.
9.10 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction will, as to that jurisdiction, be ineffective to the extent
of such prohibition or unenforceability and will be severed from the balance of
this Agreement, all without affecting
18
<PAGE> 19
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
9.11 COUNTERPARTS
This Agreement may be executed in counterparts, each of which will
be deemed to be an original and all of which taken together will be deemed to
constitute one and the same instrument.
9.12 NO OFFSET
The Bank agrees that it will not offset the Collateral, or any
obligations it owes to the Borrower to return the Collateral, against any
obligations owing by the Borrower to the Bank other than the Liabilities.
19
<PAGE> 20
IN WITNESS WHEREOF the Parties have caused this Agreement to be
executed as of the date first written above.
J.R. SIMPLOT COMPANY
By: /s/ DENNIS R. MOGENSEN
---------------------------------
Name: Dennis R. Mogensen
Title: Sr. Vice-President
CANADIAN IMPERIAL BANK OF
COMMERCE,
Acting through its New York Agency
By: /s/ RONALD JOST
---------------------------------
Name: Ronald Jost
Title: Executive Director
20
<PAGE> 21
SCHEDULE A
NOTE
July 24, 1998
FOR VALUE RECEIVED, the undersigned unconditionally promises
to pay to Canadian Imperial Bank of Commerce acting through its New York Agency
(the "Bank") or order at 425 Lexington Avenue, New York, New York 10017, or such
other place as the Bank may direct in writing in accordance with the provisions
of the Revolving Loan Agreement (as amended or restated from time to time, the
"Loan Agreement") dated July 24, 1998 between J. R. Simplot Company and the
Bank, on the Maturity Date, or such earlier date as is provided in the Loan
Agreement, the amount the Bank has advanced to J. R. Simplot Company under the
Loan Agreement which remains unpaid from time to time with interest and
additional payments thereon in accordance with and on the dates set forth in the
Loan Agreement both before and after maturity, default and judgment, until paid.
This note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Loan Agreement, pursuant to which
the indebtedness evidenced hereby may become payable at any time. All initially
capitalized terms used herein and not otherwise defined have the meanings given
to them in the Loan Agreement.
J. R. SIMPLOT COMPANY
By:
------------------------
Name:
Title:
c/s
21
<PAGE> 1
EXHIBIT P
PLEDGE AGREEMENT
THIS PLEDGE dated July 24, 1998
BETWEEN:
J. R. SIMPLOT COMPANY
(the "Pledgor"),
- and -
CANADIAN IMPERIAL BANK OF COMMERCE.
Acting through its New York Agency
(the "Bank")
WHEREAS the Pledgor has or may have Liabilities owing to the Bank;
AND WHEREAS the Pledgor has agreed to enter into this Agreement in
order to provide the Bank with security for the Liabilities;
AND WHEREAS the Pledgor has agreed to pledge to the Bank as
security for the Liabilities 7,600,000 shares of common stock of Micron
Technology, Inc. ("Micron"), and the other collateral described in this
Agreement, which shares of common stock may be transferred by the Bank pursuant
to an effective registration statement filed by Micron pursuant to the
Securities Act of 1933, as amended (the "Securities Act").
AND WHEREAS the Bank is willing to compensate the Pledgor for the
use of certain assets;
NOW THEREFORE for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Bank hereby
agree as follows:
<PAGE> 2
1. DEFINITIONS
In this Agreement, capitalized terms not otherwise defined will
have the meanings set forth in the Loan Agreement, and the following terms will
have the meanings set out below, unless the context requires otherwise:
(a) "BUSINESS DAY" means any day except Saturday, Sunday or any statutory
holiday in New York, New York or Boise, Idaho;
(b) "COLLATERAL" has the meaning specified in Section 2;
(c) "EVENT OF DEFAULT" has the meaning given to it in the Loan Agreement;
(d) "LIABILITIES" means all present and future indebtedness, liabilities
and obligations of every kind, nature and description (whether direct or
indirect, joint or several, absolute or contingent, matured or unmatured) of the
Pledgor to the Bank under the Loan Agreement and the note issued pursuant
thereto and this Agreement;
(e) "LOAN AGREEMENT" means that certain Revolving Loan Agreement between
the Parties dated contemporaneously herewith, as such Revolving Loan Agreement
may be amended or restated from time to time;
(f) "MARKET VALUE" means, when used in reference to the Selected
Securities, the number of shares of the Selected Securities times the closing
sale price per share of the Selected Securities as reported on the primary
exchange on which such shares are listed on the Business Day prior to the date
of determination and when used in reference to other Collateral, the market
value thereof determined in a commercially reasonable matter by the Bank;
(g) "PARTY" means a party to this Agreement and any reference to a Party
includes its successors and permitted assigns; "PARTIES" means every Party;
(h) "SELECTED SECURITIES" means 7,600,000 shares of common stock, $.10
par value (U.S.$) of Micron Technology, Inc. (New York Stock Exchange ticker
symbol "MU") including any security entitlements thereto; and
(i) "UCC" means the Uniform Commercial Code as in effect in the State of
New York.
2. SECURITY INTEREST
As security for the prompt and complete payment when due of the
Liabilities, the Pledgor hereby pledges, assigns, conveys, grants and transfers
to the Bank a first and prior security interest in, and a general first lien
upon, all of the Pledgor's right, title and interest in and to the Selected
Securities and all securities entitlements in respect thereof, together with all
proceeds thereof and substitutions therefor, all cash, dividends, stock and
other moneys and property paid thereon, all rights to subscribe for securities
declared or granted in connection
2
<PAGE> 3
therewith, and all other cash and noncash proceeds of the foregoing and in any
other cash, securities or property delivered to the Bank or its agent pursuant
to this Agreement (all of the foregoing, the "Collateral").
3. RESPECTING COLLATERAL
(a) Upon the execution hereof and thereafter from time to time as
required, the Pledgor shall deliver to the Bank, or to any person nominated by
the Bank as its agent for the purpose of holding the Collateral as security,
certificates representing all shares included in the Collateral, duly endorsed
for transfer in blank or, if directed by the Bank, to the Bank or the agent of
the Bank, or to such person as the Bank may determine upon enforcement of the
security hereby constituted or if such Collateral is a "security entitlement"
(as defined in the UCC), the Pledgor shall cause such Collateral to be
transferred, in accordance with instructions of the Bank, to a "securities
intermediary" (as also defined in the UCC) of the Bank which shall credit such
Collateral to a securities account of the Bank. The Bank is hereby authorized to
transfer any Collateral to any securities account of the Bank and, with respect
to any Collateral held in certificated form, to exchange certificates
representing or evidencing any Collateral for certificates of smaller or larger
denominations or to cause such securities to be registered in street name to be
held in an account with The Depositary Trust Company whereupon such securities
shall be held indirectly in the form of a security entitlement (as defined in
the UCC).
(b) Unless otherwise specified herein and without limiting the rights
and obligations of the parties under Section 9, the Bank is hereby further
authorized, notwithstanding Section 9-207 of the UCC, to:
(i) sell, pledge, rehypothecate, assign, invest, use, commingle or
otherwise dispose of, or otherwise use in its business any
Collateral it holds, free from any claim or right of any nature
whatsoever of the Pledgor, including any equity or right of
redemption by the Pledgor; and/or
(ii) register any Collateral in the name of the Bank, its agent or a
nominee for either.
The Bank will be deemed to continue to hold all Collateral and, subject to
Section 4, to receive dividends, distributions and other money payments made
thereon, regardless of whether the Bank has exercised any rights with respect to
any Collateral pursuant to (i) or (ii) above.
4. DIVIDENDS
All cash dividends, distributions and other money payments in
respect of the Collateral shall be paid to or at the direction of the Bank, and
transferred by the Bank to the Pledgor, except that (i) to the extent that there
are unpaid Liabilities that are then due and owing by the Pledgor to the Bank,
the amounts necessary to satisfy such unpaid Liabilities will be retained by the
Bank and applied to any unpaid Liabilities; and (ii) to the extent that
following such transfer the Market Value of the Collateral would be less than
the Collateral Maintenance Requirement, the amount necessary to cause the Market
Value of the Collateral to equal or exceed the Collateral Maintenance
Requirement shall be retained by the Bank as additional
3
<PAGE> 4
Collateral. Notwithstanding the foregoing, the Bank shall have no duty to
collect any distributions on the Collateral or enforce or preserve any rights
pertaining to the Collateral or in general to monitor the performance of any
Collateral.
5. VOTING
Until the enforcement or release of the security constituted hereby
in accordance with the terms hereof, all voting rights attaching to any Selected
Securities included in the Collateral shall be exercised (i) during the period,
if any, that the Selected Securities are registered in the name of the Pledgor,
the Bank or any agent or nominee of the Bank, by the Bank, and (ii) during any
period that the Selected Securities are registered in the name of any other
person, by such other registered holder, or by such person or persons to whom
such other registered holder shall have delivered a proxy (whether before or
after the date hereof) to exercise such voting rights. The Pledgor shall
deliver, or cause to be delivered, to the Bank such instruments of proxy or
power of attorney as shall be necessary or appropriate to permit the Bank to
exercise such voting rights. As used in this Section, "voting rights" includes
the right to attend and vote at any meeting, or to execute a written consent in
lieu thereof, and the right to assign a proxy, including the execution of
appropriate instruments of proxy and/or powers of attorney and the right to
exercise any option and any rights given to the holder of the Selected
Securities. Upon enforcement of the security constituted hereby in accordance
with the terms hereof, all voting rights attaching to the shares included in the
Collateral shall be exercised by the registered holder thereof for the time
being, or by such person or persons to whom such registered holder shall have
delivered a proxy to exercise such voting rights.
6. REGISTRATION AND DISCHARGE
(a) The Pledgor covenants and agrees that it will, at the Bank's
expense, upon thirty (30) days' prior written notice and in such manner and form
as the Bank may reasonably require, execute and deliver to the Bank for filing
and recordation any financing statement, specific assignment and take any other
action that may be necessary or desirable in order to create, preserve, perfect
or validate any security interests granted or to enable the Bank to exercise and
enforce its rights under this Agreement with respect to any of the Collateral.
(b) The Pledgor will not change its name or change the location of its
principal place of business unless it has provided the Bank with thirty (30)
days' prior written notice of such change.
(c) The Bank agrees to release the security interest created by this
Agreement at its expense forthwith after all the Liabilities have been satisfied
in full and the Loan Agreement shall have terminated and to return to the
Pledgor the Collateral which, in the case of the Selected Securities, may be in
the form of certificated securities or securities that have not been registered
under the Securities Act; provided that, immediately prior to such return, all
such securities that have not been registered under the Securities Act satisfy
the holding period requirements of Rule 144(d) of the Securities and Exchange
Commission.
4
<PAGE> 5
7. APPLICATION OF PROCEEDS
Any income or dividends or other proceeds realized by the Bank on or
in respect of the Collateral in connection with the exercise of any rights or
remedies of the Bank shall be applied in the following order:
(i) to the payment of the expenses of realization and
enforcement;
(ii) to the satisfaction of Liabilities (other than such
Liabilities satisfied in clause (i) above), in the order
determined by the Bank in its sole discretion; and
(iii) the balance, if any, shall be returned to the Pledgor.
8. ENFORCEMENT
(a) The Bank shall be entitled to enforce the security interest granted
herein upon the occurrence of an Event of Default.
(b) In connection with the enforcement of the security interest granted
herein constituted hereby, the Bank may:
(i) subject to the limitations of this Agreement and the Loan
Agreement, exercise all the rights and remedies of a secured
party under the UCC (whether or not the UCC applies to the
Collateral) and all other applicable law;
(ii) subject to applicable law, complete the blanks in any transfer
in blank or power of attorney in respect of any shares
included in the Collateral with such names and in such manner
as the Bank may determine, and the Bank may seal and deliver
the same after such blanks have been filled in;
(iii) subject to applicable law, realize upon the Collateral, or any
of it, by directing the relevant corporation to register the
shares included in the Collateral in the name of the Bank (or
its agent as aforesaid) to enable it to enforce the security
hereof;
(iv) subject to applicable law, exercise all rights of ownership of
and all other rights attaching to the Collateral, or any of
it, as if the Bank were the absolute owner thereof; and
(v) sell, transfer, assign, grant an option or options to purchase
or otherwise dispose of or deal in all or any part of the
Collateral in one or more parcels at public or private sale or
sales, at any exchange, broker's board or at any of the Bank's
offices or elsewhere, upon such terms as shall be
5
<PAGE> 6
commercially reasonable, subject to applicable law (including
without limitation compliance by the Bank with applicable
securities laws).
(c) The Bank may exercise any of its rights and remedies in respect of
the Collateral independently or in combination and at any time and from time to
time once the Bank is entitled to enforce the security constituted hereby
pursuant to Section 9(a) hereof. The exercise of any particular right or remedy
in respect of the Collateral shall not preclude the further exercise of that or
any other right or remedy available pursuant to this Agreement or the Loan
Agreement.
9. PLEDGOR A TRUSTEE
Any income, dividends, distributions and accretions upon, to or of
the Collateral received by the Pledgor at any time after the enforcement of the
security constituted hereby shall be received by the Pledgor as trustee for the
Bank and shall be forthwith paid over to the Bank to be dealt with on the terms
hereof.
10. REPRESENTATIONS AND WARRANTIES AND COVENANT
The Pledgor represents and warrants to the Bank, and acknowledges
that the Bank is relying on such representations and warranties, that as of the
date hereof the Pledgor is the beneficial and registered owner of the shares
constituting the Collateral, free and clear of all encumbrances apart from the
charge, pledge and security interest created in this Agreement.
11. RESTRICTIONS
In addition to the covenants set out elsewhere in this Agreement,
the Pledgor covenants and agrees with the Bank that, except as expressly
permitted or contemplated by this Agreement or as permitted by the prior written
consent of the Bank, it will not
(i) No Sale: sell, exchange, release, abandon, transfer or otherwise
dispose of the Collateral or the legal or beneficial ownership
thereof; or
(ii) No Further Encumbrances: grant, create or permit to exist any
mortgage, pledge, lien, hypothecation, security interest or other
encumbrance or charge (whether fixed, floating or otherwise) with
respect to the Collateral except in favor of the Bank.
12. NOTICES
(a) Any notice, certificate, consent, determination or other
communication required or permitted to be given or made under this Agreement
will be in writing and will be effectively given and made if (i) delivered
personally, (ii) delivered by prepaid courier service or certified or registered
mail, return receipt requested, or (iii) sent prepaid by fax or other similar
means of electronic communication, in each case to the applicable address set
out below:
6
<PAGE> 7
(1) if to the Bank, to:
Mr. Ronald Jost
Executive Director
Canadian Imperial Bank of Commerce
425 Lexington Avenue - 6th Floor
New York, New York 10017
Fax: (212) 856-6098
Phone: (212) 856-6591
with a copy to:
Mr. Alexander Bakal
Executive Director, Financial Products
Canadian Imperial Bank of Commerce
425 Lexington Avenue
5th floor
New York, N.Y. 10017
Fax: (212) 856-6526
Phone: (212) 885-4349
(2) if to the Pledgor, to:
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7295
Phone: (208) 389-2110
Attn: Treasurer
and
Ronald Graves, Esq.
J.R. Simplot Company
999 Main Street - Ste. 1300
Boise, Idaho 83702
Fax: (208) 389-7464
Phone: (208) 389-7312
with a copy to:
7
<PAGE> 8
Jacques K. Meguire, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Fax: (312) 876-7934
Phone: (312) 876-8000
(b) Any such communication so given or made will be deemed to have been
given or made and to have been received on the day of delivery if delivered, or
on the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business Day and the
communication is so delivered, faxed or sent prior to 4:30 p.m. on such day. If
so delivered, faxed or sent on or after 4:30 p.m. on such day, such
communication will be deemed to have been given and made and to have been
received on the next following Business Day. Any such communication sent by mail
will be deemed to have been given and made and to have been received on the
fifth Business Day following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended disruption of
postal services. Any such communication given or made in any other manner will
be deemed to have been given or made and to have been received only upon actual
receipt.
(c) Any Party may from time to time change its address under this
Section by notice to the other Party given in the manner provided by this
Section.
13. COVENANT OF THE BANK
The Bank shall hold the Collateral in accordance with the terms of
this Agreement.
14. FURTHER ASSURANCES
The Pledgor shall from time to time forthwith on the Bank's
request, do make and execute all such documents, acts, matters and things as may
be required by the Bank with respect to this Agreement or any part hereof or as
may be required by the Bank to give effect to these presents. Once the Bank is
entitled to enforce the security interest constituted hereby pursuant to Section
9(a) hereof, an officer of the Bank may, without further approval or
authorization of the Pledgor, be constituted and appointed by the Pledgor the
true and lawful attorney of the Pledgor irrevocable with full power of
substitution to do, make and execute all such statements, assignments,
documents, acts, matters or things with the right to use the name of the Pledgor
whenever and wherever it may be deemed necessary or expedient for the purposes
of enforcing this Agreement or protecting the security created hereby.
8
<PAGE> 9
15. GENERAL
(a) The Bank may grant extensions of time and other indulgences, take
and give up security, accept compositions and otherwise deal with the Pledgor
and with other persons without prejudice to the rights of the Bank hereunder and
without limitation to the debts, liabilities and obligations secured or to the
security constituted hereby.
(b) The security constituted hereby is taken in addition to and not in
substitution for and is independent of any other security taken by or granted to
the Bank by the Pledgor or any other person.
(c) The Bank may expend funds in connection with the protection of or
enforcement of the security constituted hereby (including without limitation
reasonable fees and disbursements of counsel. All such funds shall be added to
and form part of the Liabilities, and in case of the enforcement of the security
constituted hereby shall be deducted from and limited to the proceeds of any
such enforcement, and may be applied in the discretion of the Bank to such part
or parts of the Liabilities as to the Bank seems best.
(d) Any provision in this Agreement which is prohibited or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof.
(e) No waiver of any of the provisions of this Agreement shall be
effective unless given in writing by the party against which the same is to be
asserted.
(f) Headings have been inserted in this Agreement for reference only,
and shall not define, limit or enlarge the construction or interpretation
hereof.
(g) This Agreement and the rights of the parties hereunder shall be
governed by and construed and interpreted in accordance with the laws of State
of New York, without reference to conflict of law provisions (other than Section
5-1401 of the New York General Obligations Law).
9
<PAGE> 10
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
as of the day and year first above written.
J.R. SIMPLOT COMPANY
By: /s/ DENNIS R. MOGENSEN
---------------------------------------
Name: Dennis R. Mogensen
Title: Sr. Vice-President
CANADIAN IMPERIAL BANK OF
COMMERCE,
Acting through its New York Agency
By: /s/ RONALD JOST
---------------------------------------
Name: Ronald Jost
Title: Executive Director
10
<PAGE> 1
EXHIBIT Q
MICRON TECHNOLOGY, INC.
--------------------
REGISTRATION RIGHTS AGREEMENT
--------------------
Dated as of July 20, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Introduction........................................................ 1
2. Registration under Securities Act, etc.............................. 1
2.1 Registration on Request.................................... 1
2.2 Registration Procedures.................................... 2
2.3 Preparation; Reasonable Investigation...................... 5
2.4 Indemnification............................................ 5
3. Definitions......................................................... 8
4. Confidential Information............................................ 8
5. Restrictive Legend.................................................. 9
6. Notice of Proposed Transfers........................................ 9
7. Rule 144............................................................ 10
8. Amendments and Waivers.............................................. 10
9. Notices............................................................. 10
10. Assignment.......................................................... 10
11. Descriptive Headings................................................ 10
12. GOVERNING LAW....................................................... 10
13. Counterparts........................................................ 11
14. Entire Agreement.................................................... 11
15. SUBMISSION TO JURISDICTION.......................................... 11
16. Severability........................................................ 11
</TABLE>
-i-
<PAGE> 3
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.
<PAGE> 4
(d) OTHER SHARES. The Company may register other securities in
a registration statement filed pursuant to this section 2.1.
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
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<PAGE> 5
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 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
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<PAGE> 6
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
(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
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<PAGE> 7
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 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
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<PAGE> 8
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 specif ically 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 f orce
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
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<PAGE> 9
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,
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 f irst 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.
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<PAGE> 10
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 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
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<PAGE> 11
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.
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.
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<PAGE> 12
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;
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
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<PAGE> 13
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 the application of such provision
to Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
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<PAGE> 14
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: /s/ RODERIC W. LEWIS
----------------------------------------------
Title: Vice-President of Legal Affairs
J.R. SIMPLOT COMPANY
By: /s/ RONALD N. GRAVES
----------------------------------------------
Title: Vice-President and Secretary
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ [ILLEGIBLE]
----------------------------------------------
Title: Managing Director
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