RENDITION AFFILIATE AGREEMENT
This Rendition Affiliate Agreement (the "Affiliate Agreement") is made and
entered into as of June 22, 1998 (the "Effective Date") by and among Micron
Technology, Inc., a Delaware corporation ("Micron"), Rendition, Inc., a
California corporation ("Rendition"), and each of the undersigned shareholders
of Rendition (each a "Shareholder" and collectively the "Shareholders").
RECITALS
A. This Affiliate Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of June 22, 1998, as such may be
amended (the "Plan of Reorganization"), entered into by and between Micron and
Rendition. The Plan of Reorganization provides, among other things, for the
statutory merger of Rendition with and into Micron (the "Merger"), in accordance
with the terms and conditions of the Plan of Reorganization and the Agreement of
Merger in the form attached thereto to be entered into between Micron and
Rendition (the "Agreement of Merger"). The Plan of Reorganization and the
Agreement of Merger are collectively referred to herein as the "Merger
Agreements." Capitalized terms used herein and not defined herein shall have the
meanings that such terms have in the Plan of Reorganization.
B. The Merger Agreements provide for the conversion of all of the issued
and outstanding capital stock of Rendition at the Effective Time of the Merger
into shares of Micron Common Stock, all as more particularly set forth in the
Merger Agreements.
C. As a condition to Micron entering into, and performing its obligations
under, the Plan of Reorganization, Micron has required that the Shareholders
agree, and in order to induce Micron to enter into and perform its obligations
arising under the Plan of Reorganization the Shareholders have agreed, to enter
into this Affiliate Agreement.
D. Each Shareholder understands that because the Merger is intended by the
parties to qualify for "pooling-of-interests" accounting treatment and such
Shareholder may be deemed to be an "affiliate" of Rendition within the meaning
of the Securities Act of 1933, as amended (the "1933 Act"), the shares of
Rendition Common Stock and/or Preferred Stock which such Shareholder owns, any
shares of Rendition Common or Preferred Stock which such Shareholder may
hereafter acquire, and any shares of Micron Common Stock acquired by Shareholder
pursuant to the Merger may be disposed of only in conformity with the
limitations described herein. Each Shareholder has been informed that the
treatment of the Merger as a "pooling-of-interests" for financial accounting
purposes is dependent upon the accuracy of certain of the
representations and warranties and compliance with certain of the agreements set
forth herein.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. RENDITION SECURITIES
--------------------
Exhibit A hereto sets forth all shares of Rendition capital stock and any
other securities of Rendition owned by each Shareholder, including all
securities of Rendition as to which such Shareholder has sole or shared voting
or investment power, and all rights, options and warrants to acquire shares of
capital stock or other securities of Rendition granted to or held by such
Shareholder (such shares of Rendition capital stock, other securities of
Rendition and rights, options and warrants to acquire shares of capital stock or
other securities of Rendition are hereinafter collectively referred to as
"Rendition Stock"). As used herein, the term "New Rendition Securities" means,
collectively, any and all shares of Rendition capital stock, other securities of
Rendition and rights, options and warrants to acquire shares of Rendition
capital stock or other securities of Rendition that a Shareholder may purchase
or otherwise acquire any interest in (whether of record or beneficially), on and
after the Effective Date of this Affiliate Agreement and prior to the Expiration
Date (as defined below). All New Rendition Securities will be subject to the
terms of this Affiliate Agreement to the same extent and in the same manner as
if they were Rendition Stock. The Rendition Stock and the New Rendition
Securities shall be collectively referred to herein as the "Rendition
Securities." As used herein, the term "Expiration Date" means the earliest to
occur of (i) the closing, consummation and effectiveness of the Merger, or (ii)
such time as the Plan of Reorganization may be terminated in accordance with its
terms.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER
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2.1 Reliance upon Representations, Warranties and Covenants. Each
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Shareholder has been informed that a "pooling of interests" for accounting
purposes requires that "affiliates" (as defined below) of Rendition maintain
their equity ownership interest in Rendition and Micron for a specified period
of time before and after the Merger, subject to certain exceptions. Each
Shareholder understands that the representations, warranties and covenants of
such Shareholder set forth herein will be relied upon by Micron and Rendition
and their respective shareholders, legal counsel and accounting firms.
2.2 Representations, Warranties and Covenants of Shareholders. Each
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Shareholder represents, warrants and covenants as follows:
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(a) Authority; Affiliate Status. Shareholder has full power and
---------------------------
authority to enter into, execute, deliver and perform Shareholder's obligations
under this Affiliate Agreement and to make the representations, warranties and
covenants herein contained. Shareholder further understands and agrees that
Shareholder may be deemed to be an "affiliate" of Rendition within the meaning
of the 1933 Act and, in particular, Rule 145 promulgated under the 1933 Act
("Rule 145"). However, nothing herein shall be construed as an admission as to
any Shareholder's status as an affiliate of Rendition.
(b) Rendition Securities Owned. Except as otherwise disclosed in
--------------------------
the Rendition Disclosure Letter, at the date hereof, all the Rendition Stock
owned by Shareholder is, and at all times until and through the Expiration Date
all the Rendition Securities owned by Shareholder will be, free and clear of any
rights of first refusal, co-sale rights, security interests, liens, pledges,
claims, options, charges or other encumbrances.
(c) Further Assurances. Shareholder agrees to execute and deliver
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any additional documents reasonably necessary or desirable, in the opinion of
Rendition or Micron, to carry out the purposes and intent of this Affiliate
Agreement.
(d) Transfer Restrictions on Merger Securities. As used herein,
------------------------------------------
the term "Merger Securities" means collectively, all shares of Micron Common
Stock that are or may be issued by Micron in connection with the Merger or the
transactions contemplated by the Merger Agreements, or to any former holder of
Rendition options, warrants or rights to acquire shares of Rendition Common
Stock or other Rendition capital stock, and any securities that may be paid as a
dividend or otherwise distributed thereon or with respect thereto or issued or
delivered in exchange or substitution therefor or upon conversion thereof.
Shareholder agrees not to sell, transfer, exchange, pledge, or otherwise dispose
of, or make any offer or agreement relating to, any of the Merger Securities
and/or any option, right or other interest with respect to any Merger Securities
that Shareholder may acquire, unless the transaction is not prohibited under the
terms of this Agreement and: (i) such sale, transfer, exchange, pledge or
disposition is permitted pursuant to Rule 145(d) under the 1933 Act (as
contemplated by Section 3 hereof); (ii) Micron's legal counsel or legal counsel
representing Shareholder, which counsel is reasonably satisfactory to Micron,
shall have advised Micron in a written opinion letter reasonably satisfactory to
Micron and Micron's legal counsel, and upon which Micron and its legal counsel
may rely, that no registration under the 1933 Act would be required in
connection with the proposed sale, transfer, exchange, pledge or other
disposition of Merger Securities by Shareholder; (iii) a registration statement
under the 1933 Act covering the Merger Securities proposed to be sold,
transferred, exchanged, pledged or otherwise disposed of, describing the manner
and terms of the proposed sale, transfer, exchange, pledge or other disposition,
and containing a
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current prospectus, shall have been filed with the Securities and Exchange
Commission ("SEC") and been declared effective by the SEC under the 1933 Act; or
(iv) an authorized representative of the SEC shall have rendered written advice
to Shareholder (sought by Shareholder or counsel to Shareholder, with a copy
thereof and all other related communications delivered to Micron and its legal
counsel) to the effect that the SEC would taken no action, or that the staff of
the SEC would not recommend that the SEC take action, with respect to the
proposed disposition of Merger Securities, if consummated. Nothing herein
imposes upon Micron any obligation to register any Merger Securities under the
1933 Act.
(e) Pooling Lock-Up. Shareholder will not sell, transfer, exchange,
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pledge or otherwise dispose of, or in any other way reduce Shareholder's risk of
ownership or investment in, or make any offer or agreement relating to any of
the foregoing with respect to any Rendition Securities or any rights, options or
warrants to acquire Rendition Securities or any Merger Securities or other
securities of Micron during the time period beginning thirty (30) days
immediately preceding the Effective Time of the Merger and ending at such time
after the Effective Time as Micron has publicly released the combined financial
results of Micron and Rendition for a period of at least thirty (30) days of
combined post-Merger operations. Micron agrees to publish such financial results
in a manner consistent with Micron's prior practices. Notwithstanding the
foregoing, Micron agrees that any "affiliates" of Rendition within the meaning
of Rule 145 will be allowed as a group to sell up to an aggregate of one percent
(1%) of Rendition Stock under the "de minimis" exceptions to the pooling-of-
interest requirements, with no single affiliate being allowed to sell more than
ten percent (10%) of the Rendition Stock held by such affiliate, provided each
transaction is approved in advance by Micron's auditors.
(f) Partnership Distributions. Notwithstanding the foregoing
-------------------------
provisions of this Section 2.2, if the Shareholder is organized as a
partnership, Rendition and Micron hereby agree that such partnership shall be
permitted to make a distribution to its partners of shares of Rendition capital
stock (if made prior to the effectiveness of the Merger) or of shares of Micron
capital stock received in the Merger, so long as the Shareholder and its
partnership distributees (i) agree to be bound by all of the terms and
obligations of this Affiliate Agreement; and (ii) provide assurances, acceptable
to Micron and Rendition in their reasonable discretion, that such distributions:
are permissible under Rule 145 (if after the Merger); and will not prevent the
Merger from being accounted for as a pooling-of-interests.
2.3 Transfers. Without limiting, in any way, any of the restrictions,
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terms, conditions and other provisions of this Affiliate Agreement, from the
Effective Date hereof through and including the Expiration Date, if Shareholder
sells, encumbers or otherwise disposes of any Rendition Securities, shall (i)
provide written notice to Micron, as provided herein,
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immediately prior to any such sale, transfer, encumbrance or other disposition,
in connection with an exchange for Merger Securities, (ii) if requested by
Micron or Rendition, require the purchaser or other transferee of any such
securities to be bound by all of the terms and obligations of this Affiliate
Agreement, and (iii) if requested by Micron or Rendition, provided assurances,
acceptable to Micron and Rendition in their reasonable discretion, that such
sale, transfer, encumbrance or other disposition will not prevent the Merger
from being accounted for as a pooling-of-interests.
3. RESTRICTIONS ON RESALES
-----------------------
Each Shareholder understands that, in addition to the restrictions imposed
under Section 2 of this Affiliate Agreement, the provisions of Rule 145
currently limit public resales of Merger Securities by a Shareholder, in the
manner set forth in subsections (a), (b) and (c) below, until such time as a
Shareholder has beneficially owned, within the meaning of Rule 144(d) under the
1933 Act, the Merger Securities for a period of at least one (1) year (or in
some cases two (2) years) after the Effective Time of the Merger, and thereafter
if and for so long as such Shareholder is an affiliate of Micron:
(a) 145(d)(1). Unless and until the restriction "cut-off" provisions
---------
of Rule 145(d)(2) or Rule 145(d)(3) set forth below become available, public
resales of Merger Securities may be made by a Shareholder only in compliance
with the requirements of Rule 145(d)(1). Rule 145(d)(1) permits such resales
only: (i) if Micron meets the public information requirements of Rule 144(c);
(ii) in brokers' transactions or in transactions with a market maker; and (iii)
where the aggregate number of Merger Securities sold at any time together with
all sales of restricted Micron Common Stock sold by or for a Shareholder's
account during the preceding three-month period does not exceed the greater of:
(i) one percent (1%) of the shares of Micron Common Stock outstanding as shown
by the most recent report or statement published by Micron, or (ii) the average
weekly volume of trading in Micron Common Stock on all national securities
exchanges, or reported through the automated quotation system of a registered
securities association, during the four calendar weeks preceding the date of
receipt of the order to execute the sale.
(b) 145(d)(2). A Shareholder may make unrestricted resales of Merger
---------
Securities pursuant to Rule 145(d)(2) if: (i) such Shareholder has beneficially
owned (within the meaning of Rule 144(d) under the 0000 Xxx) the Merger
Securities for at least one (1) year after the Effective Time of the Merger;
(ii) such Shareholder is not an affiliate of Micron; and (iii) Micron meets the
public information requirements of Rule 144(c).
(c). 145(d)(3). A Shareholder may make unrestricted resales of Merger
---------
Securities pursuant to Rule 145(d)(3) if Shareholder has beneficially
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owned (within the meaning of Rule 144(d) under the 0000 Xxx) the Merger
Securities for at least two (2) years after the Effective Time of the Merger and
is not, and has not been for at least three (3) months, an affiliate of Micron.
Micron acknowledges that the provisions of Section 2.2(d) of this Affiliate
Agreement will be satisfied as to any sale by a Shareholder of Merger Securities
pursuant to Rule 145(d) by a broker's letter and a letter from the Shareholder
with respect to that sale stating either that (i) each of the above-described
requirements of Rule 145(d)(1) has been met or (ii) are inapplicable by virtue
of Rule 145(d)(2) or Rule 145(d)(3) and each of the above-described requirements
of Rule 145(d)(2) or (d)(3) (as applicable) have been met; provided that in each
case Micron has no reasonable basis to believe such sales were not made in
compliance with such provisions of Rule 145(d).
4. LEGENDS
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Each Shareholder also understands and agrees that stop transfer
instructions will be given to Micron's transfer agent with respect to
certificates evidencing the Merger Securities to enforce (i) each Shareholder's
compliance with such Shareholder's representations in Section 2.2(e), (ii) each
Shareholder's agreements in Section 3 and (iii) each Shareholder's compliance
with applicable securities laws regarding the Merger Securities, and that there
will be placed on the certificates evidencing such Merger Securities such
legends as Micron or its counsel may reasonably require, including without
limitation, a legend providing substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
ANY APPLICABLE STATE SECURITIES LAWS, AND THE OTHER CONDITIONS SPECIFIED IN
THAT CERTAIN AFFILIATE AGREEMENT DATED AS OF , 1998 AMONG MICRON
TECHNOLOGY, INC., RENDITION, INC. AND THE HOLDER OF SUCH SHARES, A COPY OF
WHICH MAY BE INSPECTED BY THE HOLDER OF THIS CERTIFICATE AT THE OFFICES OF
MICRON. MICRON WILL FURNISH, WITHOUT CHARGE, A COPY THEREOF TO THE HOLDER
OF THIS CERTIFICATE, UPON WRITTEN REQUEST THEREFOR."
It is understood and agreed that the legend set forth above shall be modified or
removed, consistent with the provisions hereof, at the written request of
Shareholder, under circumstances deemed reasonable by Micron and its legal
counsel.
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5. MISCELLANEOUS
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5.1 Notices. Any notice or other communication required or permitted to
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be given under this Affiliate Agreement will be in writing, will be delivered
personally, by telecopier (with a hard copy also mailed), or by registered or
certified mail, postage prepaid and will be deemed given upon delivery, if
delivery personally, one business day after transmission by telecopier with
confirmation of receipt, or three (3) business days after deposit in the mails,
if mailed, to the following addresses:
(i) If to Micron:
Micron Technology, Inc.
0000 Xxxxx Xxxxxxx Xxx
Xxxxx, XX 00000-0000
Attention: General Counsel
With a copy to:
Xxxxx Xxxxxxxx
Holland & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000-0000
(ii) If to Rendition:
Rendition, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
With a copy to:
Xxxxx Xxxx
Fenwick & West LLP
Two Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
If to a Shareholder:
To the address for notice for such Shareholder set forth
in Exhibit A hereto.
Or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 5.1.
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5.2 Termination. This Affiliate Agreement shall be terminated and shall
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be of no further force and effect upon the termination of the Plan of
Reorganization pursuant to its terms.
5.3 Counterparts. This Affiliate Agreement may be executed in any
------------
number of counterparts, each of which will be an original as regards any party
whose signature appears thereon and all of which together will constitute one
and the same instrument. This Affiliate Agreement will become binding when one
or more counterparts hereof, individually or taken together, will bear the
signatures of all parties reflected hereon as signatories.
5.4 Assignment; Binding Upon Successors and Assigns. No party hereto may
-----------------------------------------------
assign any of its rights or obligations hereunder without the prior written
consent of the other parties hereto. This Affiliate Agreement will be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
5.5 Waiver and Amendment. The waiver by a party of any breach hereof or
--------------------
default in the performance hereof will not be deemed to constitute a waiver of
any other default or any succeeding breach or default. This Affiliate Agreement
may be amended by the parties hereto upon the execution and delivery of a
written agreement executed by the parties hereto at any time before or after
approval of the Merger by the Rendition shareholders, but, after such approval,
no amendment will be made which by applicable law requires the further approval
of the Rendition shareholders without obtaining such further approval.
5.6 Governing Law. The internal laws of the State of Delaware
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(irrespective of its choice of law principles) will govern the validity of this
Affiliate Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
5.7 Severability. If any term, provision, covenant or restriction of
------------
this Affiliate Agreement 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 Affiliate Agreement will remain in full force
and effect and will in no way be effected, impaired or invalidated. The parties
further agree to replace such invalid or unenforceable term with a valid and
enforceable provision that will achieve, the greatest extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
5.8 Construction of Agreement. This Affiliate Agreement has been
-------------------------
negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A reference to a
Section will mean a Section in this Affiliate Agreement unless otherwise
explicitly set forth. The titles and headings herein are for reference purposes
only and will not
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in any manner limit the construction of this Affiliate Agreement which will
be considered as a whole.
5.9 Attorneys' Fees. Should suit be brought to enforce or interpret any
---------------
part of this Affiliate Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including without limitation, costs,
expenses and fees on any appeal). The prevailing party will be entitled to
recover its costs of suit, regardless of whether such suit proceeds to final
judgment.
IN WITNESS WHEREOF, the parties hereto have executed this Affiliate
Agreement as of the date first set forth above.
APA EXCELSIOR IV, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX & CO. (CAYMAN) LTD,
Custodian for APA Excelsior IV/Offshore
By: Patricof & Co. Ventures, Inc.
its Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Managing Director
THE P/A FUND III, L.P.
By: APA Pennsylvania Partners III, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
9
PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXX XXXX
/s/ Xxxx Xxxx
-------------
MATRIX PARTNERS III, L.P.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Partner
Company: Matrix Partners III, L.P.
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
OCEAN PARK VENTURES, L.P.
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: General Partner
ENTERPRISE PARTNERS III, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
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ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
XXX XXXXX
/s/ Xxx Xxxxx
INTERWEST PARTNERS V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
INTERWEST INVESTORS V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
XXXX XXXXXX
/s/ Xxxx Xxxxxx
11
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
XXXXXXX XxXXXXXX
/s/ Xxxxxxx XxXxxxxx
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
XXX X. XXXXXXXXX
/s/ Xxx X. Xxxxxxxxx
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
XXXX XXXXX
/s/ Xxxx Xxxxx
XXXX-XXXXX TRUST 10-8-91
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Trustee
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/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
MICRON TECHNOLOGY, INC.,
a Delaware corporation
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, CEO and President
RENDITION, INC.,
a California corporation
By /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: CEO
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