Securities Rights and Restrictions Agreement - Micron Technology Inc. and Intel Corp.
SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
Between
MICRON TECHNOLOGY, INC.
and
INTEL CORPORATION
DATED AS OF OCTOBER 19, 1998
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TABLE OF CONTENTS
Page
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SECTION 1 - DEFINITIONS..................................................... 1
1.1 Certain Definitions............................................. 1
SECTION 2 - STANDSTILL AND RELATED COVENANTS................................ 5
2.1 Paris Ownership of Milan Securities............................. 5
2.2 Standstill Provisions........................................... 5
2.3 Voting Trust.................................................... 6
2.4 Solicitation of Proxies......................................... 6
2.5 Acts in Concert with Others..................................... 6
2.6 Termination..................................................... 6
SECTION 3 - RESTRICTIONS ON TRANSFER OF SECURITIES;
COMPLIANCE WITH SECURITIES LAWS................................. 7
3.1 Restrictions on Transfer of Voting Securities of Milan.......... 7
3.2 Restrictive Legends............................................. 9
3.3 Procedures for Certain Transfers................................ 10
3.4 Covenant Regarding Exchange Act Filings......................... 10
3.5 Termination..................................................... 11
SECTION 4 - REGISTRATION RIGHTS............................................. 11
4.1 Demand Registration............................................. 11
4.2 Shelf Registration.............................................. 12
4.3 Piggyback Registration.......................................... 13
4.4 Demand and Shelf Registration Procedures, Rights and Obligations 14
4.5 Expenses........................................................ 19
4.6 Indemnification................................................. 20
4.7 Issuances by Milan or Other Holders............................. 22
4.8 Information by Paris............................................ 22
4.9 Market Standoff Agreements...................................... 22
4.10 Termination..................................................... 23
SECTION 5 - BOARD REPRESENTATION............................................ 24
5.1 Board of Directors.............................................. 24
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TABLE OF CONTENTS
(continued)
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5.2 Termination..................................................... 24
SECTION 6 - MISCELLANEOUS................................................... 25
6.1 Governing Law................................................... 25
6.2 Successors and Assigns.......................................... 25
6.3 Entire Agreement; Amendment..................................... 25
6.4 Notices and Dates............................................... 25
6.5 Language Interpretation......................................... 26
6.6 Table of Contents; Titles; Headings............................. 27
6.7 Counterparts.................................................... 27
6.8 Severability.................................................... 27
6.9 Injunctive Relief............................................... 27
6.10 Dispute Resolution.............................................. 27
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SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT
THIS SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT (this "AGREEMENT") is
made as of October 19, 1998, between MICRON TECHNOLOGY, INC., a Delaware
corporation ("MICRON"), and INTEL CORPORATION, a Delaware corporation ("INTEL").
RECITALS
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A. Intel has agreed to purchase from Micron, and Micron has agreed to sell
to Intel, Class A Common Stock ("CLASS A COMMON STOCK") or, pending
authorization and creation of the Class A Common Stock, stock rights (the
"RIGHTS") to be issued by the Company pursuant to that certain Stock Rights
Agreement, dated of even date herewith (the "STOCK RIGHTS AGREEMENT"), on the
terms and conditions set forth in that certain Securities Purchase Agreement,
dated October 15, 1998, by and between Micron and Intel (the "SECURITIES
PURCHASE AGREEMENT"). The Rights are exchangeable for Class A Common Stock or
Common Stock (the "COMMON STOCK") of the Company, and the Class A Common Stock
is convertible into Common Stock of the Company.
B. The Securities Purchase Agreement provides for the execution and
delivery of this Agreement at the closing of the transactions contemplated
thereby.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and conditions herein and in the Securities Purchase Agreement, the
parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement:
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(a) "AFFILIATE" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under common control with,
such other Person. For purposes of this definition, "CONTROL" when used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to
the foregoing. Notwithstanding the above, unless expressly provided to the
contrary herein, the term Affiliate shall exclude officers, directors and any
employee benefit plan or pension plan of a Person.
(b) "BENEFICIAL OWNERSHIP" or "beneficial owner" has the meaning
provided in Rule 13d-3 promulgated under the Exchange Act. References to
ownership of Voting Securities hereunder mean beneficial ownership.
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(c) "CLASS A COMMON STOCK" has the meaning set forth in paragraph A
of the Recitals hereto.
(d) "COMMON STOCK" has the meaning set forth in paragraph A of the
Recitals hereto.
(e) "CHANGE IN CONTROL OF MICRON" shall mean a merger, consolidation
or other business combination or the sale of all or substantially all of the
assets of Micron (other than a transaction pursuant to which the holders of the
voting stock of Micron outstanding immediately prior to such transaction have
the entitlement to exercise, directly or indirectly, fifty percent (50%) or more
of the Total Voting Power of the continuing, surviving entity or transferee
immediately after such transaction).
(f) "DEMAND REGISTRATION STATEMENT" has the meaning set forth in
Section 4.1(a).
(g) "DEMAND REQUEST" has the meaning set forth in Section 4.1(a).
(h) "DEMAND/TRANCHE MANAGING UNDERWRITERS" has the meaning set forth
in Section 4.4(c).
(i) "DEMAND/TRANCHE MARKET CUT-BACK" has the meaning set forth in
Section 4.4(d).
(j) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(k) "GROUP" or "GROUP" shall have the meaning provided in Section
13(d)(3) of the Exchange Act and the rules and regulations promulgated
thereunder, but shall exclude any institutional underwriter purchasing Voting
Securities of Micron in connection with an underwritten registered offering for
purposes of a distribution of such securities.
(l) "HEDGING TRANSACTIONS" means engaging in short sales and the
purchase and sale of puts and calls and other derivative securities, so long as
Intel retains beneficial ownership of the Shares.
(m) "INDEMNIFIED PARTY" has the meaning set forth in Section 4.6(c).
(n) "INDEMNIFYING PARTY" has the meaning set forth in Section
4.6(c).
(o) "INTEL POOLING TRANSACTION LOCK-UP" has the meaning set forth in
Section 4.9(a).
(p) "INTEL PUBLIC OFFERING LOCK-UP" has the meaning set forth in
Section 4.9(a).
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(q) "MICRON PUBLIC OFFERING LOCK-UP" has the meaning set forth in
Section 4.9(b).
(r) "PERSON" shall mean any person, individual, corporation,
partnership, trust or other nongovernmental entity or any governmental agency,
court, authority or other body (whether foreign, federal, state, local or
otherwise).
(s) "PIGGYBACK MARKET CUT-BACK" has the meaning set forth in Section
4.3(c).
(t) "PIGGYBACK REGISTRABLE SECURITIES" has the meaning set forth in
Section 4.3(a).
(u) "PIGGYBACK REGISTRATION STATEMENT" has the meaning set forth in
Section 4.3(a).
(v) "PIGGYBACK REQUEST" has the meaning set forth in Section 4.3(a).
(w) "PIGGYBACK UNDERWRITING AGREEMENT" has the meaning set forth in
Section 4.3(b).
(x) "QUALIFIED SUBSIDIARY" shall mean a corporation or other Person
at least 90% of the outstanding Voting Securities of which are owned,
directly or indirectly, by Intel.
(y) "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(z) "REGISTRABLE SECURITIES" means (i) the (1) all the shares of
Common Stock of the Company issued or issuable upon exercise or conversion of
the Rights or the Class A Common Stock and (2) any shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, any such securities
described in clause (1) of this subsection (w). Notwithstanding the foregoing,
Registrable Securities shall exclude any Registrable Securities sold by a person
in a transaction in which rights under this Section 4 are not assigned in
accordance with this Agreement or any Registrable Securities sold in a public
offering, whether sold pursuant to Rule 144 promulgated under the Securities
Act, in a registered offering, or otherwise.
(aa) "REGISTRATION EXPENSES" has the meaning set forth in Section
4.5(a).
(bb) "RESTRICTED SECURITIES" has the meaning set forth in Section
3.3(a).
(cc) "RIGHTS" has the meaning set forth in paragraph A of the
recitals hereto.
(dd) "SECURITIES ACT" means the Securities Act of 1933, as amended.
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(ee) "SECURITIES PURCHASE AGREEMENT" has the meaning set forth in
paragraph A of the Recitals hereto.
(ff) "SEC" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
(gg) "SHARES" means the shares of Common Stock of the Company issued
or issuable upon exercise or conversion of the Rights or the Class A Common
Stock.
(hh) "SHELF REGISTRABLE SECURITIES" has the meaning set forth in
Section 4.2(a).
(ii) "SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 4.2(a).
(jj) "SHELF REQUEST" has the meaning set forth in Section 4.2(a).
(kk) "STOCK RIGHTS AGREEMENT" has the meaning set forth in paragraph
A of the Recitals hereto.
(ll) "SUSPENSION CONDITION" has the meaning set forth in Section
4.4(f).
(mm) "TRANCHE REGISTRABLE SECURITIES" has the meaning set forth in
Section 4.2(b).
(nn) "TRANCHE REQUEST" has the meaning set forth in Section 4.2(b).
(oo) "TRANSACTION RELATED SECURITIES" means (i) Shares, (ii) shares
of Class A Common Stock issued or issuable upon exercise or conversion of the
Rights, (iii) the Rights and (iv) shares of Common Stock and other securities of
the Company issued as (or issuable upon conversion or exercise of any warrant,
right or other security as) a dividend or other distribution with respect to or
in exchange for or in replacement of, or upon conversion or exercise of any such
securities.
(pp) "VOTING SECURITIES" means (i) all securities of Micron,
entitled, in the ordinary course, to vote in the election of directors of Micron
and (ii) for the purposes of this Agreement only, all securities of Micron,
directly or indirectly, convertible into or exchangeable or exercisable for
shares of Common Stock (including the Rights), the Voting Power of which shall
be deemed equal to the number of shares of Common Stock, directly or indirectly,
issuable upon the conversion, exchange or exercise of such securities. Voting
Securities shall not include stockholder rights or other comparable securities
having Voting Power only upon the happening of a trigger event or comparable
contingency and which can only be transferred together with the Voting
Securities to which they attach. References herein to meetings of holders of
Voting Securities shall include meetings of any class or type thereof,
(qq) "VOTING POWER" or "TOTAL VOTING POWER" of Micron (or any other
corporation) refer to the votes or total number of votes which at the time of
calculation may be cast
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in the election of directors of Micron (or such corporation) at any meeting of
stockholders of Micron (or such corporation) if all securities entitled to vote
in the election of directors of Micron (or such corporation) were present and
voted at such meeting; provided that for purposes of references herein made to
any Person's "Voting Power" or percentage beneficial ownership of "Total Voting
Power," any rights (other than rights referred to in any rights plan of Micron
(or any such other corporation) or a successor to such rights plan so long as
such rights can only be transferred together with the Voting Securities to which
they attach) of such Person to acquire Voting Securities (whether or not the
exercise of any such right shall be conditioned upon the passage of time or any
other contingency) shall be deemed to have been exercised in full.
(rr) "180-DAY LIMITATION" has the meaning set forth in Section
4.4(a).
All capitalized terms used and not defined herein shall have the respective
meanings assigned to such terms in the Securities Purchase Agreement.
SECTION 2
STANDSTILL AND RELATED COVENANTS
2.1 Intel Ownership of Micron Securities. On the date hereof, and
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without giving effect to the transactions contemplated by the Securities
Purchase Agreement, neither Intel nor any Affiliate of Intel beneficially owns
any Voting Securities of Micron, other than Voting Securities held in equity
index funds or by employee benefit plans or pension plans.
2.2 Standstill Provisions.
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(a) Intel shall not acquire, directly or indirectly, and shall not
cause or permit any Affiliate of Intel to acquire, directly or indirectly
(through market purchases or otherwise), record or beneficial ownership of any
Voting Securities of Micron representing, when taken together with all
securities owned by such Persons, in excess of a percentage greater than
nineteen and ninety nine hundredths (19.99%) (the "STANDSTILL PERCENTAGE") of
the Total Voting Power of Micron without the prior written consent of Micron's
Board of Directors; provided, however, that the prior written consent of the
Board of Directors of Micron shall not be required for the acquisition of any
Voting Securities of Micron pursuant to the conversion of any of the shares of
Class A Common Stock or the exercise of any of the Rights or resulting from a
stock split, stock dividend or similar recapitalization by Micron. Nothing
contained in this Section 2.2 shall adversely affect any right of Intel to
acquire record or beneficial ownership of Voting Securities of Micron pursuant
to any rights plan instituted by Micron. Ownership of Voting Securities by
employee benefit plans or pension plans shall not be beneficial ownership by
Intel for purposes of this Section 2.2.
(b) Intel and its Affiliates will not be obliged to dispose of any
Voting Securities to the extent that the aggregate percentage of the Total
Voting Power of Micron represented by Voting Securities beneficially owned by
Intel and its Affiliates or which Intel and its Affiliates has a
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right to acquire is increased beyond the Standstill Percentage (i) as a result
of a recapitalization of Micron or a repurchase or exchange of securities by
Micron or its Affiliates; (ii) as a result of an equity index transaction,
provided that Intel and its Affiliates shall not vote such shares; (iii) by way
of stock dividends or other distributions or rights or offerings made available
to holders of shares of Voting Securities generally; or (iv) with the prior
written consent of Micron's Board of Directors.
2.3 Voting Trust. Intel shall not, and shall not cause or permit any
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Affiliate of Intel to, deposit any Voting Securities of Micron in a voting trust
or, except as otherwise provided herein, subject any Voting Securities of Micron
to any arrangement or agreement with respect to the voting of such Voting
Securities of Micron.
2.4 Solicitation of Proxies. Without the prior written consent of
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Micron's Board of Directors, Intel shall not, and shall not cause or permit any
Affiliate of Intel to, directly or indirectly (i) initiate, propose or otherwise
solicit Micron stockholders for the approval of one or more stockholder
proposals with respect to Micron or induce or attempt to induce any other Person
to initiate any stockholder proposal, (ii) make, or in any way participate in,
any "SOLICITATION" of "PROXIES" (as such terms are defined or used in Regulation
14a-1 under the Exchange Act) with respect to any Voting Securities of Micron,
or become a "PARTICIPANT" in any "ELECTION CONTEST" (as such terms are used in
Rule 14a-11 of Regulation 14A under the Exchange Act), with respect to Micron or
(iii) call or seek to have called any meeting of the holders of Voting
Securities of Micron.
2.5 Acts in Concert with Others. Except as contemplated herein, Intel
---------------------------
shall not, and shall not cause or permit any Affiliate of Intel to, participate
in the formation of any Person which owns or seeks to acquire beneficial
ownership of, or otherwise acts in concert in respect of the voting or
disposition of, Voting Securities of Micron. Without limiting the generality of
the foregoing, and except as contemplated herein, Intel shall not, and shall not
cause or permit any Affiliate of Intel to: (i) join a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
third person, for the purpose of acquiring, holding, or disposing of Voting
Securities of Micron; (ii) seek election to or seek to place a representative on
the Board of Directors of Micron; (iii) seek the removal of any member of the
Board of Directors of Micron; (iv) otherwise seek control of the management,
Board of Directors or policies of Micron; (v) solicit, propose or seek to effect
any form of business combination transaction with Micron or any Affiliate
thereof, or any restructuring, recapitalization or similar transaction with
respect to Micron or any Affiliate thereof; (vi) solicit, make or propose or
announce an intent to make, any tender offer or exchange offer for any Voting
Securities of Micron; (vii) disclose an intent, purpose, plan or proposal with
respect to Micron or any Voting Securities of Micron inconsistent with the
provisions of this Agreement, including an intent, purpose, plan or proposal
that is conditioned on or would require Micron to waive the benefit of or amend
any provision of this Agreement; or (vii) assist, participate in, or solicit any
effort or attempt by any Person to do or seek to do any of the foregoing. Intel
shall not, and shall not cause or permit any Affiliate of Intel to, make any
recommendation or proposal to any Person to engage in any of the actions covered
by Section 2.4 and this Section 2.5 hereof.
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2.6 Termination. The provisions of this Section 2 shall terminate upon
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the earlier to occur of: (i) such time as Intel (together with all Affiliates of
Intel) beneficially owns in the aggregate Voting Securities of Micron
representing less than five percent (5%) of the Total Voting Power of Micron; or
(ii) the closing or other completion of a Change in Control of Micron.
SECTION 3
RESTRICTIONS ON TRANSFER OF
SECURITIES; COMPLIANCE WITH SECURITIES LAWS
3.1 Restrictions on Transfer of Voting Securities of Micron. Intel shall
not, and shall not cause or permit any Affiliate of Intel to, directly or
indirectly, offer to sell, contract to sell, make any short sale of, or
otherwise sell, dispose of, loan, gift, pledge or grant any options or rights
with respect to, any Transaction Related Securities of Micron, now or hereafter
acquired, or with respect to which Intel (or any Affiliate of Intel) has or
hereafter acquires the power of disposition (or enter into any agreement or
understanding with respect to the foregoing), except, in the case of the Shares
and shares of Class A Common Stock, as set forth in the following clauses (a)
through (g), and, in the case of the Rights, as set forth in clause (a) and (b):
(a) to Micron, or any Person or group approved in writing in advance
by Micron's Board of Directors;
(b) to any Qualified Subsidiary of Intel, so long as such subsidiary
agrees in writing (in form reasonably acceptable to counsel for Micron) to hold
such Voting Securities of Micron subject to all the provisions of this
Agreement, and also agrees to transfer such Voting Securities of Micron to Intel
or another Qualified Subsidiary of Intel if it ceases to be a Qualified
Subsidiary of Intel;
(c) pursuant to a public offering of Voting Securities of Micron
registered under the Securities Act; provided, however, that such offering is
structured to distribute such securities in accordance with procedures
reasonably designed to ensure that beneficial ownership of the Voting Securities
of Micron with aggregate Voting Power of more than five percent (5%) of the
Total Voting Power of Micron then in effect shall not be transferred during such
distribution to any single Person or group;
(d) through a sale of Voting Securities of Micron pursuant to Rule
144 under the Securities Act; provided, however, that any such sale (i) complies
with the manner of sale provisions under paragraph (f) of Rule 144 or (ii) is of
securities with Voting Power aggregating less than five percent (5%) of the
Total Voting Power of Micron and is not made knowingly directly or indirectly
to: (A) any Person or group which has theretofore filed a Schedule 13D with the
SEC with respect to any class of "EQUITY SECURITY" (as defined in Rule 13a11-1
under the Exchange Act) of Micron and which, at the time of such sale, continues
to reflect beneficial ownership in excess of five percent (5%) of the Total
Voting Power of Micron; (B) any Person or group known to Intel (without inquiry
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or investigation) to beneficially own in excess of five percent (5%) of any
Voting Securities of Micron or to be accumulating stock on behalf of or acting
in concert with any such Person or group or a Person or group contemplated by
clause (A) above; or (C) any Person or group that has announced or commenced an
unsolicited offer for any Voting Securities of Micron or publicly initiated,
proposed or otherwise solicited Micron stockholders for the approval of one or
more stockholder proposals with respect to Micron or publicly made, or in any
way participated in, any "SOLICITATION" of "PROXIES" (as such terms are defined
or used in Regulation 14A under the Exchange Act) with respect to any Voting
Securities of Micron, or become a "PARTICIPANT" in any "ELECTION CONTEST" (as
such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act);
(e) pursuant to any private sale of Voting Securities of Micron
exempt from the registration requirements under the Securities Act, provided
that no such sale may be made to any Person or group which, after giving effect
to such sale, will beneficially own or have the right to acquire Voting
Securities of Micron with aggregate Voting Power of more than five percent (5%)
of the Total Voting Power of Micron unless such Person or group is an
institutional investor that acquires such Voting Securities solely for
investment, in which case the total number of Voting Securities that may be sold
to such Person or group shall be limited so that such Person or group shall not
own or have the right to acquire more than ten percent (10%) of the Total Voting
Power of Micron after giving effect to the proposed sale; and, provided,
further, that, if such securities are "restricted securities" as defined in Rule
144, any such purchaser (and any transferee of such purchaser) shall agree to
take and hold such securities subject to the provisions and upon the conditions
specified in this Section 3, and it will be a condition precedent to the
effectiveness of any such transfer that Intel shall have delivered to Micron a
written agreement of such purchaser to that effect in form and substance
reasonably satisfactory to Micron (which may contain a representation by such
purchaser as to the beneficial ownership of Voting Securities of Micron, which
may be relied upon by Intel (absent actual knowledge to the contrary) for
purposes of compliance with the applicable requirements of this Section 3.1(e));
(f) in response to an offer to purchase or exchange for cash or
other consideration any Voting Securities, in any case which is not opposed by
the Board of Directors of Micron within the time such Board is required,
pursuant to regulations under the Exchange Act, to advise the stockholders of
Micron of such Board's position with respect to such offer, or, if no such
regulations are applicable, within ten (10) business days of the commencement of
such offer, or pursuant to a merger, consolidation or other business combination
involving Micron approved by the Board of Directors of Micron; or
(g) subject to Micron's prior consent (which shall not be
unreasonably withheld), pursuant to bona fide pledges of such Voting Securities
to institutional lenders (provided that the number of such lenders to which, or
for the benefit of which, such pledges may be made, shall not exceed twenty (20)
in the aggregate), to secure a loan, guarantee, letter of credit facility or
other indebtedness or financial support; provided that each such lender to
which, or for the benefit of which, such pledge is made agrees in writing to
hold such Voting Securities subject to all provisions
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of this Agreement, including the limitations on any sale or other disposition of
such Voting Securities.
Nothing in this Section 3.1 shall be construed to prohibit Hedging
Transactions with respect to securities of Micron provided that such
transactions do not result in non-compliance with the foregoing restrictions
insofar such provisions relate to, and are limited in their application to, the
Transaction Related Securities.
3.2 Restrictive Legends.
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(a) The certificate or certificates representing the (i) the Shares,
(ii) the Rights, (iii) any shares of Class A Common Stock issued or issuable
upon exercise or conversion of the Rights and (iv) any securities issued in
respect of the foregoing as a result of any stock split, stock dividend,
recapitalization, reclassification or similar transaction (collectively, the
"RESTRICTED SECURITIES") shall be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER AS TO THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION.
(b) The certificate or certificates representing the Restricted
Securities also shall be stamped or otherwise imprinted with a legend
substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE, PLEDGE OR
OTHER HYPOTHECATION, SET FORTH IN AN AGREEMENT BETWEEN THE
ISSUER AND INTEL CORPORATION, A COPY OF WHICH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY
AT ITS PRINCIPAL EXECUTIVE OFFICES.
(c) The certificate or certificates representing the Rights also
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO PROVISIONS OF THE STOCK RIGHTS AGREEMENT WHICH CONTAINS
CERTAIN RESTRICTIONS ON TRANSFER AND OTHER RIGHTS AND
OBLIGATIONS. COPIES OF THE STOCK RIGHTS AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
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OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY
AT ITS PRINCIPAL EXECUTIVE OFFICES.
(d) The certificate or certificates representing shares of Class A
Common Stock also shall be stamped or otherwise imprinted with a legend
substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
PROVISIONS OF THE COMPANY'S CERTIFICATE OF INCORPORATION WHICH
CONTAINS CERTAIN RESTRICTIONS ON TRANSFER AND OTHER RIGHTS AND
OBLIGATIONS. COPIES OF THE CERTIFICATE OF INCORPORATION MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES.
3.3 Procedures for Certain Transfers.
--------------------------------
(a) The holder of each certificate representing Restricted
Securities, by acceptance thereof, agrees to comply in all respects with the
provisions of this Section 3.
(b) Prior to any proposed transfer of any Restricted Securities
pursuant to Sections 3.1(a), (b), (e) and (g) hereof, Intel shall give written
notice to Micron of its 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 by either: (i) a written opinion of
legal counsel (including in-house counsel), who shall be reasonably satisfactory
to Micron, addressed to Micron and reasonably satisfactory in form and substance
to Micron's counsel, to the effect that the proposed transfer of the Restricted
Securities may be effected without registration under the Securities Act; or
(ii) a "no action" letter from the SEC and a copy of any request by Intel
(together with all supplements or amendments thereto), which shall have been
provided to Micron at or prior to the time of first delivery to the SEC's staff,
to the effect that the transfer of such securities without registration will not
result in a recommendation by the staff of the SEC that action be taken with
respect thereto, whereupon Intel shall be entitled to transfer such Restricted
Securities in accordance with the terms of the notice delivered by Intel to
Micron.
(c) In connection with any proposed transfer of Restricted
Securities pursuant to Section 3.1(d) hereof, Intel shall comply with all
applicable requirements of Rule 144 under the Securities Act and the reasonable
requirements of Micron's transfer agent with respect to sales of Restricted
Securities pursuant to Rule 144.
(d) Each certificate evidencing the Restricted Securities
transferred as herein provided (other than a transfer pursuant to Section
3.1(c)) shall bear the appropriate restrictive legend set forth (or described)
in Section 3.3(a) above, except that such certificate shall not bear such
restrictive legend if: (i) in the opinion of counsel for Micron, such legend is
not required in order to establish compliance with any provisions of the
Securities Act; (ii) the Restricted Securities have
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been held by the holder for more than two years, and the holder represents to
counsel for Micron that it has not been an "AFFILIATE" (as such term is defined
for purposes of Rule 144) of Micron during the three-month period prior to the
sale and shall not become an affiliate (as such term is defined for purposes of
Rule 144) of Micron without resubmitting the Restricted Securities for
reimposition of the legend; or (iii) the Restricted Securities have been sold
pursuant to Rule 144 and in compliance with Section 3.1(d). In addition, each
certificate evidencing the Restricted Securities transferred pursuant to this
Section 3 (other than transfers pursuant to Sections 3.1(c) and 3.1(d) hereof)
shall bear the legend set forth in Section 3.2(b) above.
3.4 Covenant Regarding Exchange Act Filings. With a view to making
---------------------------------------
available to Intel the benefits of Rule 144 promulgated under the Securities
Act, and any other rules or regulations of the SEC which may at any time permit
Intel to sell any Restricted Securities without registration, until the date of
termination of this Agreement, Micron agrees to use commercially reasonable
efforts to file with the SEC in a timely manner all reports and other documents
required to be filed under the Exchange Act.
3.5 Termination. The provisions of this Section 3 (other than Sections
-----------
3.2 and 3.3) shall terminate upon the later to occur of: (i) the fifth
anniversary date of this Agreement and (ii) such time as Intel (together with
all Affiliates of Intel) beneficially owns in the aggregate Voting Securities of
Micron representing less than five percent (5%) of the Total Voting Power of
Micron or upon the closing or other completion of a Change in Control of Micron.
SECTION 4
REGISTRATION RIGHTS
4.1 Demand Registration.
-------------------
(a) If at any time after March 31, 1999, Micron shall receive from
Intel a written request (a "DEMAND REQUEST") that Micron register on Form S-3
under the Securities Act (or if such form is not available, any registration
statement form then available to Micron) Registrable Securities equal to at
least the lesser of two percent (2%) of the Voting Securities outstanding on the
date of such Demand Request and securities having an aggregate market value of
in excess of $100 million on such date, then Micron shall use commercially
reasonable efforts to cause the Registrable Securities specified in such Demand
Request (THE "DEMAND REGISTRABLE SECURITIES") to be registered as soon as
reasonably practicable so as to permit the offering and sale thereof and, in
connection therewith, shall prepare and file with the SEC as soon as practicable
after receipt of such Demand Request, a registration statement (a "DEMAND
REGISTRATION STATEMENT") to effect such registration; provided, however, that
each such Demand Request shall: (i) specify the number of Demand Registrable
Securities intended to be offered and sold by Intel pursuant thereto (which
number of Demand Registrable Securities shall not be less than the lesser of two
percent (2%) of the Registrable Securities outstanding on the date of such
Demand Request and securities having an aggregate market value of in excess of
$100 million on such date); (ii) express the present intention
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of Intel to offer or cause the offering of such Demand Registrable Securities
pursuant to such Demand Registration Statement, (iii) describe the nature or
method of distribution of such Demand Registrable Securities pursuant to such
Demand Registration Statement (including, in particular, whether Intel plans to
effect such distribution by means of an underwritten offering or other method);
and (iv) contain the undertaking of Intel to provide all such information and
materials and take all such actions as may be required in order to permit Micron
to comply with all applicable requirements of the Securities Act, the Exchange
Act and the rules and regulations of the SEC thereunder, and to obtain any
desired acceleration of the effective date of such Demand Registration
Statement.
(b) The procedures to be followed by Micron and Intel, and the
respective rights and obligations of Micron and Intel, with respect to the
preparation, filing and effectiveness of Demand Registration Statements and the
distribution of Demand Registrable Securities pursuant to Demand Registration
Statements under this Section 4.1 are set forth in Section 4.4 hereof.
4.2 Shelf Registration.
------------------
(a) If at any time after March 31, 1999, Micron shall receive from
Intel a written request (a "SHELF REQUEST") that Micron register pursuant to
Rule 415(a)(1)(i) under the Securities Act (or any successor rule with similar
effect) a delayed offering of all Registrable Securities held by Intel, then
Micron shall use commercially reasonable efforts to cause the Registrable
Securities specified in such Shelf Request (the "SHELF REGISTRABLE SECURITIES")
to be registered as soon as reasonably practicable so as to permit the sale
thereof and, in connection therewith, shall (i) prepare and file with the SEC as
soon as practicable after receipt of such Shelf Request, a shelf registration
statement on Form S-3 relating to such Shelf Registrable Securities, if such
Form S-3 is available for use by Micron (or any successor form of registration
statement to such Form S-3), to effect such registration (a "SHELF REGISTRATION
STATEMENT"), to enable the distribution of such Shelf Registrable Securities;
provided, however, that each such Shelf Request shall: (i) express the intention
of Intel to offer or cause the offering of such Shelf Registrable Securities
pursuant to such Shelf Registration Statement on a delayed basis in the future;
(ii) describe the nature or method of the proposed offer and sale of such Shelf
Registrable Securities pursuant to such Shelf Registration Statement (including,
in particular, whether Intel plans to effect such distribution by means of an
underwritten offering or other method); and (iii) contain the undertaking of
Intel to provide all such information and materials and take all such actions as
may be required in order to permit Micron to comply with all applicable
requirements of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder, and to obtain any desired acceleration of the
effective date of such Shelf Registration Statement. Intel shall not be entitled
to make more than one Shelf Request during any three hundred sixty-five (365)
day period.
(b) It is expressly agreed by the parties that the sole purpose of
Micron filing and maintaining an effective a Shelf Registration Statement for
the delayed offering of Shelf Registrable Securities by Intel is to make the
process of distributing Registrable Securities by Intel more convenient for both
parties by reducing or eliminating the need to file a new Demand Registration
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Statement each time that Intel decides to sell Registrable Securities. After a
Shelf Registration Statement has been declared effective under the Securities
Act by the SEC, then, upon the written request of Intel (a "TRANCHE REQUEST"),
Micron shall prepare such amendments to such Shelf Registration Statement
(including post-effective amendments), if any, and such amendments or
supplements to the prospectus relating to the Registrable Securities to be
offered thereunder pursuant to such Tranche Request (the "TRANCHE REGISTRABLE
SECURITIES"), as is necessary to facilitate the distribution of such Tranche
Registrable Securities pursuant to such Tranche Request; provided, however, that
such Tranche Request shall: (i) specify the number of Tranche Registrable
Securities intended to be offered and sold by Intel pursuant thereto (which
number of Tranche Registrable Securities shall not be less than the lesser of
two percent (2%) of the Voting Securities outstanding on the date of such
Tranche Request and securities having an aggregate market value of in excess of
$100 million on such date); (ii) express the present intention of Intel to offer
or cause the offering of such Tranche Registrable Securities pursuant to the
Shelf Registration Statement, (iii) describe the nature or method of
distribution of such Tranche Registrable Securities pursuant to the Shelf
Registration Statement (including, in particular, whether Intel plans to effect
such distribution by means of an underwritten offering or other method); and
(iv) contain the undertaking of Intel to provide all such information and
materials and take all such actions as may be required in order to permit Micron
to comply with all applicable requirements of the Securities Act, the Exchange
Act and the rules and regulations of the SEC thereunder.
(c) The procedures to be followed by Micron and Intel, and the
respective rights and obligations of Micron and Intel, with respect to the
preparation, filing and effectiveness of Shelf Registration Statements and the
distribution of Tranche Registrable Securities pursuant to Shelf Registration
Statements under this Section 4.2 are set forth in Section 4.4 hereof.
4.3 Piggyback Registration.
----------------------
(a) If at any time after March 31, 1999, Micron shall determine to
register any of its equity or equity-linked securities (other than registration
statements relating to (i) employee, consultant or distributor compensation or
incentive arrangements (including employee benefit plans), (ii) acquisitions or
any transaction or transactions under Rule 145 under the Securities Act (or any
successor rule with similar effect), (iii) distributions by principal
stockholders, their Affiliates or transferees (unless consented to by such
principal stockholders, Affiliates or transferees), or (iv) pursuant to Rule 415
under the Securities Act), then Micron will promptly give Intel written notice
thereof and include in such Micron-initiated, non-shelf, registration statement
(a "PIGGYBACK REGISTRATION STATEMENT"), and in any underwriting involved
therein, all Registrable Securities (the "PIGGYBACK REGISTRABLE SECURITIES")
specified in a written request made by Intel (a "PIGGYBACK REQUEST") within five
(5) business days after receipt of such written notice from Micron; provided,
however, that nothing in this Section 4.3(a), or any other provision of this
Agreement, shall be construed to limit the absolute right of Micron, for any
reason and in its sole discretion: (i) to delay, suspend or terminate the filing
of any Piggyback Registration Statement; (ii) to delay the effectiveness of any
Piggyback Registration Statement; (iii) to terminate or reduce the number of
Piggyback Registrable Securities to be distributed pursuant to any Piggyback
Registration Statement
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(including, without limitation, pursuant to Section 4.3(c) hereof); or (iv) to
withdraw such Piggyback Registration Statement.
(b) If the Piggyback Registration Statement of which Micron gives
notice is for an underwritten offering, Micron shall so advise Intel as a part
of the written notice given pursuant to Section 4.3(a). In such event, the right
of Intel to registration pursuant to this Section 4.3 shall be conditioned upon
the agreement of Intel to participate in such underwriting and in the inclusion
of such Piggyback Registrable Securities in the underwriting to the extent
provided herein. Intel shall (together with Micron and any other holders
distributing securities in such Piggyback Registration Statement, if any) enter
into an underwriting agreement (the "PIGGYBACK UNDERWRITING AGREEMENT") in
customary form with the underwriter or underwriters selected for such
underwriting by Micron.
(c) Notwithstanding any other provision of this Agreement, if the
managing underwriters of any underwritten offering pursuant to a Piggyback
Request determine, in their sole discretion that, after including all the shares
to be offered by Micron and all the shares of any other Persons entitled to
registration rights with respect to such Piggyback Registration Statement
(pursuant to other agreements with Micron), marketing factors require a
limitation of the number of Piggyback Registrable Securities to be underwritten,
the managing underwriters of such offering may exclude any and all of the
Piggyback Registrable Securities, provided that such cut-back is made pro rata
with respect to any other securities proposed to be included in such
registration statement pursuant to "piggy-back" registration rights (a
"PIGGYBACK MARKET CUT-BACK"). If Intel disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to Micron and
the managing underwriters. Any Piggyback Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such Piggyback
Registration Statement.
(d) Except to the extent specifically provided in this Section 4.3
hereof, the procedures to be followed by Micron and Intel, and the respective
rights and obligations of Micron and Intel, with respect to the distribution of
any Piggyback Registrable Securities by Intel pursuant to any Piggyback
Registration Statement filed by Micron shall be as set forth in the Piggyback
Underwriting Agreement, or any other agreement or agreements governing the
distribution of such Piggyback Registrable Securities pursuant to such Piggyback
Registration Statement.
4.4 Demand and Shelf Registration Procedures, Rights and Obligations. The
----------------------------------------------------------------
procedures to be followed by Micron and Intel, and the respective rights and
obligations of Micron and Intel, with respect to the preparation, filing and
effectiveness of Demand Registration Statements and Shelf Registration
Statements, respectively, and the distribution of Demand Registrable Securities
and Tranche Registrable Securities, respectively, pursuant thereto, are as
follows:
(a) Intel shall not be entitled to make more than one Demand Request
or Tranche Request during any one hundred eighty (180) day period (the "180-DAY
LIMITATION"); provided, however, that (i) any Demand Request that: (A) does not
result in the corresponding Demand Registration Statement being declared
effective by the SEC; (B) is withdrawn by Intel following the
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imposition of a stop order by the SEC with respect to the corresponding Demand
Registration Statement; (C) is withdrawn by Intel as a result of the exercise by
Micron of its suspension rights pursuant to Sections 4.4(e) or (f) hereof; or
(D) is withdrawn by Intel as a result of a Demand/Tranche Market Cut-Back (as
defined in Section 4.4(d) hereof); and (ii) any Tranche Request that: (A) is
withdrawn by Intel following the imposition of a stop order by the SEC with
respect to the corresponding Shelf Registration Statement; (B) is withdrawn by
Intel as a result of the exercise by Micron of its suspension rights pursuant to
Sections 4.4(e) or (f) hereof; or (C) s withdrawn by Intel as a result of a
Demand/Tranche Market Cut-Back, shall not count for the purposes of determining
compliance with the 180-Day Limitation. Any Demand Request or Tranche Request
that is withdrawn by Intel for any reason other than as set forth in the
previous sentence shall count for purposes of determining compliance with the
180-Day Limitation. Piggyback Requests shall not count for purposes of
determining compliance with the 180-Day Limitation regardless of whether a
Piggyback Registration Statement is filed, declared effective or withdrawn or
whether any distribution of Piggyback Registrable Securities is effected,
terminated or cut-back (pursuant to Section 4.3(c) hereof, or otherwise). Intel
shall not be entitled to offer or sell any securities pursuant to a Demand
Registration Statement or Shelf Registration Statement unless and until,
following a Demand Request or a Tranche Request, as applicable, Micron has made
all required filings with the SEC with respect to the distribution of
Registrable Securities contemplated by such Demand Request or Tranche Request,
as applicable, such filings have become effective and Micron has notified Intel
of the foregoing and that no Suspension Condition then exists.
(b) Micron shall use commercially reasonable efforts to cause each
Demand Registration Statement and Shelf Registration Statement to be declared
effective promptly and to keep such Demand Registration Statement and Shelf
Registration Statement continuously effective until the earlier to occur of: (i)
the sale or other disposition of the Registrable Securities so registered; (ii)
(X) in the case of a firmly committed, underwritten offering, sixty (60) days
after (A) if pursuant to a Demand Registration Statement, the effective date of
any Demand Registration Statement or (B) if pursuant to a Tranche Request, the
date of the final prospectus used to confirm sales in connection with the
underwritten offering of Tranche Registrable Securities, and (Y) in the case of
all other plans of distribution, (A) if pursuant to a Demand Registration
Statement, fifteen (15) business days after the effective date of such Demand
Registration Statement or (B) if pursuant to a Tranche Request, fifteen (15)
business days after the earlier of the effectiveness of the amendment to the
Shelf Registration Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to facilitate such
distribution and the date of the notice required by the last sentence of Section
4.4(a) hereof if no such amendment or supplement is so required; and (iii) the
termination of Intel's registration rights pursuant to Section 4.10 hereof.
Micron shall prepare and file with the SEC such amendments and supplements to
each Demand Registration Statement and Shelf Registration Statement and each
prospectus used in connection therewith as may be necessary to make and to keep
such Demand Registration Statement and Shelf Registration Statement effective
and to comply with the provisions of the Securities Act with respect to the sale
or other disposition of all Registrable Securities proposed to be distributed
pursuant to such Demand Registration Statement and Shelf Registration Statement
until the earlier to occur of: (i) the sale or other disposition of the
Registrable Securities so
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registered; (ii) (X) in the case of a firmly committed, underwritten offering,
sixty (60) days after (A) if pursuant to a Demand Registration Statement, the
effective date of any Demand Registration Statement or (B) if pursuant to a
Tranche Request, the date of the final prospectus used to confirm sales in
connection with the underwritten offering of Tranche Registrable Securities, and
(Y) in the case of all other plans of distribution, (A) if pursuant to a Demand
Registration Statement, fifteen (15) business days after the effective date of
such Demand Registration Statement or (B) if pursuant to a Tranche Request,
fifteen (15) business days after the earlier of the effectiveness of the
amendment to the Shelf Registration Statement or the filing of the amendment or
supplement to the prospectus included in such registration statement required to
facilitate such distribution and the date of the notice required by the last
sentence of Section 4.4(a) hereof if no such amendment or supplement is so
required; and (iii) the termination of Intel's registration rights pursuant to
Section 4.10 hereof.
(c) In connection with any underwritten offering pursuant to a
Demand Registration Statement or a Shelf Registration Statement which Intel has
requested be underwritten, Micron, on the one hand, and Intel, on the other
hand, shall each select one investment banking firm to serve as co-manager of
such offering. The co-manager selected by Micron shall be subject to the prior
approval of Intel, which approval shall not be unreasonably withheld, and the
co-manager selected by Intel shall be subject to the prior approval of Micron,
which approval shall not be unreasonably withheld. Each of the co-managers so
selected by Micron and Intel are hereinafter collectively referred to as the
"DEMAND/TRANCHE MANAGING UNDERWRITERS." The Demand/Tranche Underwriter selected
by Intel shall be the lead Demand/Tranche Managing Underwriter, whose
responsibilities shall include running the "books" for any offering. Micron
shall, together with Intel, enter into an underwriting agreement with the
Demand/Tranche Managing Underwriters, which agreement shall contain
representations, warranties, indemnities and agreements then customarily
included by an issuer in underwriting agreements with respect to secondary
distributions under demand registration statements or shelf registration
statements, as the case may be, and shall stipulate that the Demand/Tranche
Managing Underwriters will receive equal commissions and fees and other
remuneration in connection with the distribution of any Demand Registrable
Securities or Tranche Registrable Securities thereunder.
(d) Notwithstanding any other provision of this Agreement, in
connection with any underwritten offering, the number of Demand Registrable
Securities or Registrable Securities proposed to be distributed by Intel
pursuant to any Demand Request or Tranche Request may be limited by the
Demand/Tranche Managing Underwriters if such Demand/Tranche Managing
Underwriters determine that the sale of such Demand Registrable Securities or
Tranche Registrable Securities would significantly and adversely affect the
market price of the Common Stock (a "DEMAND/TRANCHE MARKET CUT-BACK"). If Intel
disapproves of the terms of any proposed underwritten offering under a Demand
Registration Statement or a Shelf Registration Statement (including, without
limitation, any reduction in the number of Demand Registrable Securities or
Tranche Registrable Securities, as the case may be, to be sold by Intel
thereunder pursuant to this Section 4.4(d)), Intel may elect to withdraw
therefrom by written notice to Micron and the Demand/Tranche Managing
Underwriters. Any Demand Registrable Securities excluded or
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withdrawn from such underwriting shall also be withdrawn from any applicable
Demand Registration Statement.
(e) Notwithstanding any other provisions of this Agreement, in the
event that Micron receives a Demand Request, Shelf Request or Tranche Request at
a time when Micron (i) shall have filed, or has a bona fide intention to file, a
registration statement with respect to a proposed public offering of equity or
equity-linked securities or (ii) has commenced, or has a bona fide intention to
commence, a public offering of equity or equity-linked securities pursuant to an
existing effective shelf or other registration statement, then Micron shall be
entitled to suspend, for a period of up to ninety (90) days after the receipt by
Micron of such Demand Request, Shelf Request or Tranche Request, the filing of
any Demand Registration Statement or Shelf Registration Statement or the
implementation of any Tranche Request.
(f) Notwithstanding any other provision of this Agreement, in the
event that Micron determines that: (i) non-public material information regarding
Micron exists, the immediate disclosure of which would be significantly
disadvantageous to Micron; (ii) the prospectus constituting a part of any Demand
Registration Statement or Shelf Registration Statement covering the distribution
of any Demand Registrable Securities or Tranche Securities contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) an offering
of Demand Registrable Securities or Tranche Registrable Securities would
materially interfere with any proposed material acquisition, disposition or
other similar corporate transaction or event involving Micron (each of the
events or conditions referred to in clauses (i), (ii) and (iii) of this sentence
is hereinafter referred to as a "SUSPENSION CONDITION"), then Micron shall have
the right to suspend the filing or effectiveness of any Demand Registration
Statement or Shelf Registration Statement or to suspend any distribution of
Demand Registrable Securities or Tranche Registrable Securities pursuant to any
effective Demand Registration Statement or Shelf Registration Statement for so
long as such Suspension Condition exists. Micron will as promptly as practicable
provide written notice to Intel when a Suspension Condition arises and when it
ceases to exist. Upon receipt of notice from Micron of the existence of any
Suspension Condition, Intel shall forthwith discontinue efforts to: (i) file or
cause any Demand Registration Statement or Shelf Registration Statement to be
declared effective by the SEC (in the event that such Demand Registration
Statement or Shelf Registration Statement has not been filed, or has been filed
but not declared effective, at the time Intel receives notice that a Suspension
Condition has arisen); or (ii) offer or sell Demand Registrable Securities or
Tranche Registrable Securities (in the event that such Demand Registration
Statement or Shelf Registration Statement has been declared effective at the
time Intel receives notice that a Suspension Condition has arisen). In the event
that Intel had previously commenced or was about to commence the distribution of
Demand Registrable Securities or Tranche Registrable Securities pursuant to a
prospectus under an effective Demand Registration Statement or Shelf
Registration Statement, then Micron shall, as promptly as practicable after the
Suspension Condition ceases to exist, make available to Intel (and to each
underwriter, if any, participating in such distribution) an amendment or
supplement to such prospectus. If so directed by Micron, Intel shall deliver to
Micron all copies, other than permanent file copies then in Intel's
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possession, of the most recent prospectus covering such Demand Registrable
Securities or Tranche Registrable Securities at the time of receipt of such
notice.
(g) Notwithstanding any other provision of this Agreement, Micron
shall not be permitted to postpone (i) the filing or effectiveness of any Demand
Registration Statement or Shelf Registration Statement or (ii) the distribution
of any Demand Registrable Securities or Tranche Registrable Securities pursuant
to an effective Demand Registration Statement or an effective Shelf Registration
Statement pursuant to Sections 4.4(e), 4.4(f) or 4.9(a) hereof for an aggregate
of more than one hundred thirty-five (135) days in any one hundred eighty day
(180) day period (including any market standoff periods applicable to Intel
pursuant to Section 4.9(a) hereof); provided, however, that in the event that
any Intel Pooling Transaction Lock-Up (as defined in Section 4.9(a) hereof)
would expire by its terms on a date that would extend beyond the one hundred
thirty-five (135) day limitation, then Micron shall have the right to (i)
postpone the filing or effectiveness of any Demand Registration Statement or
Shelf Registration Statement or (ii) the distribution of any Demand Registrable
Securities or Tranche Registrable Securities pursuant to an effective Demand
Registration Statement or an effective Shelf Registration Statement until such
time as such Intel Pooling Transaction Lock-Up expires.
(h) Micron shall promptly notify Intel of any stop order issued or,
to Micron's knowledge, threatened to be issued by the SEC with respect to any
Demand Registration Statement or Shelf Registration Statement as to which a
Tranche Request is pending, and will use its best efforts to prevent the entry
of such stop order or to remove it if entered at the earliest possible date.
(i) Micron shall furnish to Intel (and any underwriters in
connection with any underwritten offering) such number of copies of any
prospectus (including any preliminary prospectus and any amended or supplemented
prospectus), in conformity with the requirements of the Securities Act, as Intel
(and such underwriters) shall reasonably request in order to effect the offering
and sale of any Demand Registrable Securities or Tranche Registrable Securities
to be offered and sold, but only while Micron shall be required under the
provisions hereof to cause the Demand Registration Statement or Shelf
Registration Statement pursuant to which such Demand Registrable Securities or
Tranche Registrable Securities are intended to be distributed to remain current.
(j) Micron shall use commercially reasonable efforts to register or
qualify the Demand Registrable Securities and Tranche Registrable Securities
covered by each Demand Registration Statement and Shelf Registration Statement,
respectively, under the state securities or "blue sky" laws of such states as
Intel shall reasonably request, maintain any such registration or qualification
current, until the earlier to occur of: (i) the sale or other disposition of the
Registrable Securities so registered; (ii) (X) in the case of a firmly
committed, underwritten offering, sixty (60) days after (A) if pursuant to a
Demand Registration Statement, the effective date of any Demand Registration
Statement or (B) if pursuant to a Tranche Request, the date of the final
prospectus used to confirm sales in connection with the underwritten offering of
Tranche Registrable Securities, and (Y) in the case of all other plans of
distribution, (A) if pursuant to a Demand Registration Statement,
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fifteen (15) business days after the effective date of such Demand Registration
Statement or (B) if pursuant to a Tranche Request, fifteen (15) business days
after the earlier of the effectiveness of the amendment to the Shelf
Registration Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to facilitate such
distribution and the date of the notice required by the last sentence of Section
4.4(a) hereof if no such amendment or supplement is so required; and (iii) the
termination of Intel's registration rights pursuant to Section 4.10 hereof;
provided, however, that Micron shall not be required to take any action that
would subject it to the general jurisdiction of the courts of any jurisdiction
in which it is not so subject or to qualify as a foreign corporation in any
jurisdiction where Micron is not so qualified.
(k) Micron shall furnish to Intel and to each underwriter engaged in
an underwritten offering of Demand Registrable Securities or Tranche Registrable
Securities, a signed counterpart, addressed to Intel or such underwriter, of (i)
an opinion or opinions of counsel to Micron (with respect to Micron and
securities law compliance by Micron) and (ii) a comfort letter or comfort
letters from Micron's independent public accountants, each in customary form and
covering such matters of the type customarily covered by opinions or comfort
letters, as the case may be, as Intel or the managing underwriters may
reasonably request.
(l) Micron shall use commercially reasonable efforts to make
appropriate members of its management reasonably available for due diligence
purposes, "road show" presentations and analyst presentations in connection with
any distributions of Demand Registrable Securities or Tranche Registrable
Securities pursuant to a Demand Registration Statement or a Shelf Registration
Statement.
(m) Micron shall use commercially reasonable efforts to cause all
Demand Registrable Securities and Tranche Registrable Securities to be listed on
each securities exchange on which similar securities of Micron are then listed.
(n) Micron shall make generally available to its securityholders, as
soon as reasonably practicable, an earnings statement covering a period of
twelve (12) months, beginning three months after the effective date of any
Demand Registration Statement relating to the distribution of Demand Registrable
Securities or the date of any final prospectus used to confirm sales in
connection with any offering of Tranche Registrable Securities, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(o) Micron shall take all such other actions either reasonably
necessary or desirable to permit the Registrable Securities held by Intel to be
registered and disposed of in accordance with the methods of disposition
described herein.
4.5 Expenses.
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(a) All of the out-of-pocket costs and expenses incurred by Micron
in connection with any registration pursuant to Sections 4.1 and 4.2 (up to
$100,000 in the case of a Demand Registration Statement, $75,000 in the case of
a Shelf Registration Statement and $50,000 in the
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case of any amendments or supplements required in connection with a Tranche
Request, plus, in all instances, the actual amount of any filing fees) shall
(subject to Section 4.7) be borne by Intel; provided that Intel shall not be
required to reimburse Micron for compensation of Micron's officers and
employees, regular audit expenses, and normal corporate costs incurred in
connection with such registration. The costs and expenses of any such
registration shall include, without limitation, the reasonable fees and expenses
of Micron's counsel and its accountants and all other out-of-pocket costs and
expenses of Micron incident to the preparation, printing and filing of the
registration statement and all amendments and supplements thereto and the cost
of furnishing copies of each preliminary prospectus, each final prospectus and
each amendment or supplement thereto to underwriters, dealers and other
purchasers of the securities so registered, the costs and expenses incurred in
connection with the qualification of such securities so registered under the
securities or "blue sky" laws of various jurisdictions, the fees and expenses of
Micron's transfer agent and all other costs and expenses of complying with the
provisions of this Section 4 with respect to such registration (collectively,
the "REGISTRATION EXPENSES").
(b) Micron shall pay all Registration Expenses incurred by Micron in
connection with any registration statements that are initiated pursuant to
Section 4.3 of this Agreement, other than incremental filing fees associated
with the inclusion of the Registrable Securities in the registration statement.
Intel shall pay all expenses incurred on its behalf with respect to any
registration pursuant to Section 4.3, including, without limitation, any counsel
for Intel and all underwriting discounts and selling commissions with respect to
the Registrable Securities sold by it pursuant to such registration statement.
4.6 Indemnification.
---------------
(a) In the case of any offering registered pursuant to this Section
4, Micron hereby indemnifies and agrees to hold harmless Intel (and its officers
and directors), any underwriter (as defined in the Securities Act) of
Registrable Securities offered by Intel, and each Person, if any, who controls
Intel or any such underwriter within the meaning of Section 15 of the Securities
Act against any losses, claims, damages or liabilities, joint or several, to
which any such Persons may be subject, under the Securities Act or otherwise,
and to reimburse any of such Persons for any legal or other expenses reasonably
incurred by them in connection with investigating any claims or defending
against any actions, insofar as such losses, claims, damages or liabilities
arise out of or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Securities were registered under the Securities Act pursuant to
this Section 4, the prospectus contained therein (during the period that Micron
is required to keep such prospectus current), or any amendment or supplement
thereto, or the omission or alleged omission to state therein (if so used) a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading or (b) any violation or alleged violation by Micron of the Securities
Act, the Exchange Act, any federal or state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any federal
or state securities law in connection with the offering covered by such
registration statement, except insofar as such losses, claims, damages or
liabilities
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arise out of or are (i) based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon information furnished
to Micron in writing by Intel or any underwriter for Intel specifically for use
therein, or (ii) made in any preliminary prospectus, and the prospectus
contained in the registration statement as declared effective or in the form
filed by Micron with the SEC pursuant to Rule 424 under the Securities Act shall
have corrected such statement or omission and a copy of such prospectus shall
not have been sent or otherwise delivered to such Person at or prior to the
confirmation of such sale to such Person.
(b) By requesting registration under this Section 4, Intel agrees,
if Registrable Securities held by Intel are included in the securities as to
which such registration is being effected, and each underwriter shall agree, in
substantially the same manner and to substantially the same extent as set forth
in the preceding paragraph, to indemnify and to hold harmless Micron and its
directors and officers and each Person, if any, who controls Micron within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which any of such Persons may be subject under
the Securities Act or otherwise, and to reimburse any of such Persons for any
legal or other expenses incurred in connection with investigating or defending
against any such losses, claims, damages or liabilities, but only to the extent
it arises out of or is based upon (a) an untrue statement or alleged untrue
statement or omission or alleged omission of a material fact in any registration
statement under which the Registrable Securities were registered under the
Securities Act pursuant to this Section 4, any prospectus contained therein, or
any amendment or supplement thereto, which was based upon and made in conformity
with information furnished to Micron in writing by Intel or such underwriter
expressly for use therein or (b) any violation or alleged violation by Intel of
the Securities Act, the Exchange Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the offering covered by such
registration statement.
(c) Each party entitled to indemnification under this Section 4.6
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at its own
expense, provided, that that an Indemnified Party shall have the right to retain
its own counsel, with the fees and expenses to be paid by the Indemnifying
Party, to the extent that representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential conflict of interests between such Indemnified Party and any other
party represented by such counsel in such proceeding], and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 4 unless
such failure resulted in actual material detriment to the Indemnifying Party. No
Indemnifying Party, (i) in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, which consent
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shall not be unreasonably withheld, consent to entry of any judgment or enter
into any settlement 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, or (ii) shall be liable
for amounts paid in any settlement if such settlement is effected without the
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act or the Exchange Act in any case in which
either (i) any Person exercising rights under this Agreement, or any controlling
person of any such Person, makes a claim for indemnification pursuant to this
Section 4 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 4 provides for
indemnification in such case, or (ii) contribution under the Securities Act or
the Exchange Act may be required on the part of any such selling Person or any
such controlling Person in circumstances for which indemnification is provided
under this Section 4; then, and in each such case, Micron and such Person will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that such
Person is responsible for the portion represented by the percentage that the
public offering price of its Registrable Securities offered by and sold under
the registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and Micron and other
selling Persons are responsible for the remaining portion; provided, however,
-------- -------
that, in any such case: (A) no such Person will be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by such Person pursuant to such registration statement; and (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
4.7 Issuances by Micron or Other Holders. As to each registration or
------------------------------------
distribution referred to in Sections 4.1 and 4.2, additional shares of the
Common Stock to be sold for the account of Micron or other holders may be
included therein, provided that the inclusion of such securities in such
registration or distribution may be conditioned or restricted if, in the opinion
of the Demand/Tranche Managing Underwriters, marketing factors require a
limitation of the number of shares to be underwritten. The Registration Expenses
incurred by Micron, Intel and any other holders participating in such
registration or distribution shall be borne by Micron, Intel and any other
holders participating in such registration or distribution in proportion to the
aggregate number of shares to be sold by Micron, Intel and such other holders.
4.8 Information by Intel. Intel shall furnish to Micron such
--------------------
information regarding Intel in the distribution of Registrable Securities
proposed by Intel as Micron may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 4.
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4.9 Market Standoff Agreements.
--------------------------
(a) In connection with the public offering by Micron of any of its
securities, Intel agrees that, upon the request the underwriters managing any
underwritten offering of Micron's securities, Intel shall agree in writing (the
"INTEL PUBLIC OFFERING LOCK-UP") that neither Intel (nor any Affiliate of Intel)
will, directly or indirectly, offer to sell, contract to sell, make any short
sale of, or otherwise sell, dispose of, loan, gift, pledge or grant any options
or rights with respect to, any securities of Micron (other than those included
in such registration statement, if any) now or hereafter acquired by Intel (or
any Affiliate of Intel) or with respect to which Intel (or any Affiliate of
Intel) has or hereafter acquires the power of disposition without the prior
written consent of Micron and such underwriters for such period of time (not to
exceed fourteen (14) days prior to the date such offering is expected to
commence and ninety (90) days after the date of the final prospectus delivered
to the underwriters for use in confirming sales in such offering) as may be
requested by Micron and the underwriters, except that Intel and its Affiliates
shall be permitted to enter into transactions that have the effect of
maintaining or continuing pre-existing Hedging Transaction positions by
continuing, renewing or replacing any such positions on substantially equivalent
terms; provided, however, that in no event shall Intel (or any Affiliate of
Intel) be required to enter into such an agreement more than once during any
twelve (12) month period. Furthermore, if Intel is an Affiliate of Micron, Intel
agrees that, at the request of Micron, Intel shall agree in writing (the "INTEL
POOLING TRANSACTION LOCK-UP") that, except for transactions that have the effect
of maintaining or continuing pre-existing Hedging Transactions positions which
transactions Micron's independent accountants determine (which determination
shall be conclusive) may be permitted without affecting the accounting of a
proposed business combination as a pooling of interests, neither Intel (nor any
Affiliate of Intel) shall, directly or indirectly, offer to sell, contract to
sell, make any short sale of, or otherwise sell, dispose of, loan, pledge or
grant any options or rights with respect to, any securities of Micron now or
hereafter acquired directly by Intel (or any Affiliate of Intel) or with respect
to which Intel (or any Affiliate of Intel) has or hereafter acquires the power
of disposition without the prior written consent of Micron for such period of
time as shall be necessary for Micron to complete any business combination
transaction in the form of a pooling of interests; provided that Micron's
independent accountants shall have concluded, after reasonable inquiry, that, at
the relevant time with respect to such proposed pooling of interests
transaction, Intel is or was an "affiliate" of Micron for purposes of the
accounting rules governing pooling of interests transactions. Intel agrees that
Micron may instruct its transfer agent to place stop-transfer notations in its
records to enforce the provisions of the Intel Public Offering Lock-Up and the
Intel Pooling Transaction Lock-Up contained in this Section 4.9(a).
(b) In connection with any proposed public offering by Intel of any
Registrable Securities, Micron agrees that, upon the request of Intel or the
underwriters managing any underwritten offering of Intel's securities, Micron
shall agree in writing (the "MICRON PUBLIC OFFERING LOCK-UP") that neither
Micron (nor any Affiliate of Micron) will, directly or indirectly, offer to
sell, contract to sell, make any short sale of, or otherwise sell, dispose of,
loan, gift, pledge or grant any options or rights with respect to, any
securities of Micron (other than those included in such registration statement,
if any, or grants of stock options or issuances of Common Stock upon
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the exercise of outstanding stock options under Micron's existing employee
benefit plans) now or hereafter acquired by Micron (or any Affiliate of Micron)
or with respect to which Micron (or any Affiliate of Micron) has or hereafter
acquires the power of disposition without the prior written consent of Intel and
such underwriters for such period of time (not to exceed fourteen (14) days
prior to the date such offering is expected to commence and ninety (90) days)
after the date of the final prospectus delivered to the underwriters for use in
confirming sales in such offering) as may be requested by Intel and the
underwriters; provided, however, that neither Micron (nor any Affiliate of
Micron) shall bound by such Micron Public Offering Lock-Up more than once during
any 180-day period.
4.10 Termination. The provisions of this Section 4 (other than Sections
-----------
4.5 and 4.6) shall terminate upon the earlier to occur of: (i) the fifth
anniversary date of this Agreement, (ii) such time as Intel (and any Affiliates
of Intel) beneficially own in the aggregate less than 5,000,000 shares of Common
Stock (including all Shares issuable upon exercise or conversion of Rights or
Class A Common Stock), and (iii) in the case of Sections 4.1 through 4.4,
Section 4.7 and Section 4.8, such time as Intel may sell all securities of
Micron acquired pursuant to the Securities Purchase Agreement which it which it
continues to own within a ninety (90) day period under Rule 144.
SECTION 5
BOARD REPRESENTATION
5.1 Board of Directors. Upon the written request of Intel, Micron shall
------------------
use reasonable efforts to cause one person designated by Intel and reasonably
acceptable to the Chief Executive Officer of Micron to be elected to the Micron
Board of Directors (either by creating a vacancy on the Board of Directors or
including such Person on the slate at Micron's next annual meeting of
stockholders). For purposes of this Section 6.1, reasonable bases for rejecting
a proposed nominee include, among others, concerns about competence, failure to
have significant and direct experience in or with the semiconductor memory
business, business or personal conflicts (actual or potential), and evidence of
business or personal relationships with existing or former directors or
executive officers, evidencing an inability to function on a congenial basis
with any existing directors. Any nominee who is an employee or officer of Intel
or of any Affiliate of Intel will be an officer of Intel holding the position of
corporate vice president or higher.
5.2 Termination. The provisions of this Section 5 shall terminate on the
-----------
earlier of (i) the fifth anniversary of the date of this Agreement; (ii) at such
time as Intel (together with all Affiliates of Intel) beneficially owns in the
aggregate Transaction Related Securities of Micron representing less than five
percent (5%) of the Total Voting Power of Micron or upon the closing or other
completion of a Change in Control of Micron, or (iii) upon exercise of the
Conversion Adjustment in accordance with Section 4.b.3 of the Certificate of
Amendment or Section 7 of the Stock Rights Agreement (notwithstanding settlement
of any such adjustment with cash).
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SECTION 6
MISCELLANEOUS
6.1 Governing Law. This Agreement shall be governed in all respects by
-------------
the laws of the State of Delaware as applied to contracts entered into solely
between residents of, and to be performed entirely within, such state.
6.2 Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns. This Agreement may not be assigned by a party without the prior
written consent of the other party; provided that, without the consent of
Micron, Intel may assign this Agreement (and the rights and obligations
hereunder) to any Qualified Subsidiary in connection with a transfer of Voting
Securities of Micron to such Affiliate of Intel pursuant to Section 3.1(b), and
without the consent of Intel, Micron may assign all or part of this Agreement
(and the rights and obligations hereunder) to the successor or an assignee of
all or substantially all of Micron's business; provided that, in each case, such
assignee expressly assumes the relevant obligations of this Agreement (by a
written instrument delivered to the other party, in form and substance
reasonably acceptable to it) and, notwithstanding such assignment, the parties
hereto shall each continue to be bound by all of their respective obligations
hereunder. This Agreement is not intended and shall not be construed to create
any rights or remedies in any parties other than Intel and Micron and no Person
shall assert any rights as third party beneficiary hereunder.
6.3 Entire Agreement; Amendment. This Agreement contains the entire
---------------------------
understanding and agreement between the parties with regard to the subject
matter hereof and thereof and supersedes all prior agreements and understandings
among the parties relating to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
6.4 Notices and Dates.
-----------------
(a) All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be delivered personally (including
by courier) or given by facsimile transmission to the parties at the following
addresses (or to such other address as a party may have specified by notice
given to the other pursuant to this provision) and shall be deemed given when so
received:
if to Micron, to:
Micron, Inc.
8000 South Federal Way
Boise, Idaho 83716-9632
Attention: Roderic W. Lewis, Esq.
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General Counsel
Telephone: (208) 368-4517
Facsimile: (208) 368-4540
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Attention: John A. Fore, Esq.
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
if to Intel, to:
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052
Attention: Treasury Portfolio Manager
Facsimile: (408) 765-1859
with a copy to:
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052
Attention: General Counsel
Facsimile: (408) 765-6038
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
Each person making a communication hereunder by facsimile shall promptly confirm
by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 6.4 by giving the other party written
notice of the new address in the manner set forth above.
(b) In the event that any date provided for in this Agreement falls
on a Saturday, Sunday or legal holiday, such date shall be deemed extended to
the next business day.
6.5 Language Interpretation. In the interpretation of this Agreement,
-----------------------
unless the context otherwise requires, (a) words importing the singular shall be
deemed to import the plural and vice
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versa, (b) words denoting gender shall include all genders, (c) references to
persons shall include corporations or other entities and vice versa, and (d)
references to parties, sections, schedules, paragraphs and exhibits shall mean
the parties, sections, schedules, paragraphs and exhibits of and to this
Agreement, unless otherwise indicated by the context.
6.6 Table of Contents; Titles; Headings. The table of contents and
-----------------------------------
section headings of this Agreement are for reference purposes only and are to be
given no effect in the construction or interpretation of this Agreement. All
references herein to Sections, unless otherwise identified, are to Sections of
this Agreement.
6.7 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other party.
6.8 Severability. If any provision of this Agreement or portion thereof
------------
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
6.9 Injunctive Relief. Intel, on the one hand, and Micron, on the other,
-----------------
acknowledge and agree that irreparable damage may occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent or
cure breaches of the provisions of this Agreement and to enforce specific
performance of the terms and provisions hereof in any court of the United States
or any state thereof having jurisdiction, this being in addition to any other
remedy to which they may be entitled at law or equity.
6.10 Dispute Resolution. The parties agree to negotiate in good faith to
------------------
resolve any dispute between them regarding this Agreement. If the negotiations
do not resolve the dispute to the reasonable satisfaction of both parties, then
each party shall nominate one senior officer of the rank of Vice President or
higher as its representative. These representatives shall, within thirty (30)
days of a written request by either party to call such a meeting, meet in person
and alone (except for one assistant for each party) and shall attempt in good
faith to resolve the dispute. If the disputes cannot be resolved by such senior
managers in such meeting, the parties agree that they shall, if requested in
writing by either party, meet within thirty (30) days after such written
notification for one day with an impartial mediator and consider dispute
resolution alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days after the one day
mediation, either party may begin litigation proceedings. This procedure shall
be a prerequisite before taking any additional action hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date aforesaid.
MICRON TECHNOLOGY, INC.,
a Delaware corporation
By:__________________________________
Name:________________________________
Title:_______________________________
INTEL CORPORATION,
a Delaware corporation
By:__________________________________
Name:________________________________
Title:_______________________________
[Signature Page to Securities Rights and Restrictions Agreement]
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