EXHIBIT 1.1
MICRON TECHNOLOGY, INC.
CONVERTIBLE DEBT SECURITIES
UNDERWRITING AGREEMENT
June 19, 1997
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxxxx & Company LLC
Xxxxxxxxxx Securities
c/o Goldman, Xxxxx & Co.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
From time to time Micron Technology, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its convertible debt securities (the
"Securities"), convertible into Common Stock, par value $0.10 per share, of the
Company (the "Common Stock"), specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Firm Securities"). If specified
in such Pricing Agreement, the Company may grant to the Underwriters the right
to purchase at their election an additional number of Securities, specified in
such Pricing Agreement as provided in Section 3 hereof (the "Optional
Securities"). The Firm Securities and the Optional Securities, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the "Designated Securities."
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Firm Securities, the maximum
aggregate principal amount of Optional Securities, if any, the initial public
offering price of such Firm Securities and Optional Securities or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Firm Securities and Optional Securities, if any, and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-18441) (the
"Initial Registration Statement") in respect of the Securities and the shares of
Common Stock issuable upon conversion thereof has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated by reference in
the prospectus contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form; no
other document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed or transmitted for
filing with the Commission other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became effective upon filing (and other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a)
under the Act, is hereinafter called a "Preliminary Prospectus;" the various
parts of the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the Initial Registration Statement
at the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, but excluding Form T-1, each as amended at the time such part
of the registration statement became effective, are hereinafter collectively
called the "Registration Statement;" the prospectus relating to the Securities,
in the form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus;" any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the Act,
as of the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall
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be deemed to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development that would
reasonably be expected to cause a prospective material adverse change, in the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(e) Each of the Company and Micron Electronics, Inc. ("MEI") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the state of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
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(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable; the shares of Common Stock initially issuable upon conversion of the
Securities (the "Conversion Shares") have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with the
provisions of the Securities and the Indenture, will be duly and validly issued,
fully paid and non-assessable and will conform to the description of the Common
Stock contained in the Prospectus;
(g) When the Firm Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated Securities,
and in the case of any Optional Securities, pursuant to the Over-allotment
Options (as defined in Section 3 hereof) with respect to such Securities, such
Designated Securities will have been duly authorized, executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust Indenture
Act and, at the Time of Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms and the Designated
Securities will conform in all material respects to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(h) The issue and sale of the Securities, the issuance of the
Conversion Shares and the compliance by the Company with its obligations
pursuant to the Securities, the Indenture, this Agreement, any Pricing Agreement
and each Over-allotment Option, if any, will not result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement (other than as disclosed in
the Prospectus) or other agreement or instrument to which the Company or MEI is
a party or by which the Company or MEI is bound or to which any of the property
or assets of the Company or MEI is subject, nor will such action result in any
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or MEI or any
of their properties, except where such breach, violation or default would not
have a material adverse effect on the Company's business and results of
operations, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or MEI; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Securities or the performance by the Company of its obligations
pursuant to this Agreement or any Pricing Agreement or the Indenture or any
Over-allotment Option, except (i) such as have been, or will have been prior to
the Time of Delivery, obtained under the Act and the Trust Indenture Act, (ii)
the approval of the listing of the Conversion Shares on the New York Stock
Exchange and (iii) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters and except where the failure to obtain such consents would not have
a material adverse effect on the offering of the Designated Securities;
(i) The statements set forth in the Prospectus under the captions
"Description of Securities", "Description of Notes" and "Description of Capital
Stock", insofar as they purport to constitute a summary of the terms of the
Designated Securities and the Common Stock, and under the captions "Certain
Federal Income Tax Considerations", "Underwriting" and "Plan of Distribution",
insofar as they purport to
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summarize certain provisions of the laws and documents referred to therein,
fairly summarize such terms, laws and documents in all material respects;
(j) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or By-laws or, in any material respect, in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries; and, to the
best of the Company's knowledge, no such proceedings are threatened by
governmental authorities or by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Coopers & Xxxxxxx, L.L.P., who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(n) The Company and its subsidiaries own or possess or can acquire on
commercially reasonable terms adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights, mask work rights,
technology and know-how necessary to conduct the business now or proposed to be
conducted by the Company and its subsidiaries as described in the Prospectus,
and except as disclosed in the Prospectus, the Company has not received any
notice of infringement of or conflict with (and knows of no such infringement of
or conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights, mask work rights or know-how
which would be reasonably likely to result in any material adverse effect upon
the Company and its subsidiaries; and
(o) The Company and its subsidiaries have obtained any permits,
consents and authorizations required to be obtained by them under laws or
regulations relating to the protection of the environment or concerning the
handling, storage, disposal or discharge of toxic materials (collectively
"Environmental Laws"), and any such permits, consents and authorizations remain
in full force and effect. The Company and its subsidiaries are in compliance
with the Environmental Laws in all material respects, and there is no pending
or, to the Company's knowledge, threatened, action or proceeding against the
Company and its subsidiaries alleging violations of the Environmental laws.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
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The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
principal amount of Optional Securities set forth in such Pricing Agreement, on
the terms set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to
purchase Optional Securities may be exercised by written notice from the
Representatives to the Company given within a period specified in the Pricing
Agreement, setting forth the aggregate principal amount of Optional Securities
to be purchased and the date on which such Optional Securities are to be
delivered, as determined by the Representatives but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives and the Company otherwise agree in writing, earlier than or
later than the respective number of days after the date of such notice set forth
in such Pricing Agreement.
The principal amount of Optional Securities to be added to the principal
amount of Firm Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the principal amount of Optional Securities which the
Company has been advised by the Representatives have been attributed to such
Underwriter; provided that, if the Company has not been so advised, the
principal amount of Optional Securities to be so added shall be, in each case,
that proportion of Optional Securities which the principal amount of Firm
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate principal amount of Firm Securities. The total principal
amount of Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate principal amount of Firm
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
principal amount of Optional Securities which the Underwriters elect to
purchase.
4. Firm Securities and Optional Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
thirty-six hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company in the funds specified in such Pricing Agreement,
(i) with respect to the Firm Securities, all in the manner and at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "First Time of Delivery" for such
Securities and (ii) with respect to the Optional Securities, if any, in the
manner and at the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "Second Time of Delivery." Each such time
and date for delivery is herein called a "Time of Delivery."
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form reasonably approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of
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the Pricing Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be disapproved by the Representatives
for such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities or the Conversion Shares for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities and the
Conversion Shares for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) At or prior to 3:00 p.m., New York City time, on the New York
Business Day immediately following the date of the Pricing Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus in New
York City as amended or supplemented in such quantities as the Representatives
may reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities and the
Conversion Shares and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
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(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing for a period of 90 days from the
date of such Pricing Agreement, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company which are substantially
similar to the Designated Securities, including but not limited to any
securities that are exchangeable or exercisable for or convertible into Common
Stock or Designated Securities or substantially similar securities, without the
prior written consent of Xxxxxxx, Sachs & Co. (other than the issuance of Common
Stock upon conversion of the Designated Securities, or pursuant to stock option
or purchase plans existing on, or upon the conversion of convertible or
exchangeable securities outstanding as of, the date hereof, or in connection
with the acquisition of another corporation or entity (including any subsidiary
of the Company)).
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of the Pricing
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act;
(g) To reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to
satisfy any obligation to issue the Conversion Shares; and
(h) To use its best efforts to list, subject to notice of issuance,
the Conversion Shares on the New York Stock Exchange.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities and the Conversion Shares
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities and
the Conversion Shares for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Securities; (vii) listing of the
Conversion Shares on the New York Stock Exchange; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery for such
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Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of the Pricing Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions dated each Time of Delivery for such
Designated Securities, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel for the Company, shall have furnished to the Representatives their
written opinion, dated each Time of Delivery for such Designated Securities, in
form and substance reasonably satisfactory to the Representatives, to the effect
that:
(i) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by the
Company;
(ii) The Designated Securities are in the form contemplated by
the Indenture, have been duly authorized by the Company and, when executed by
the Company and authenticated by the Trustee in the manner provided for in the
Indenture and delivered against the purchase price therefor specified herein and
in the Pricing Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture; and the
Designated Securities and the Indenture conform to the descriptions thereof in
the Prospectus as amended or supplemented;
(iii) The Conversion Shares (based on the initial conversion rate)
have been duly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Designated Securities and the
Indenture, will be duly and validly issued and fully paid and non-assessable,
and will conform in all material respects to the description of the Common Stock
contained in the Prospectus;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and delivery
by the Trustee, and constitutes a valid and legally binding instrument,
enforceable against the Company in accordance with its terms; and the Indenture
has been duly qualified under the Trust Indenture Act;
(v) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities, the issuance of
the Conversion Shares or the performance by the Company of its obligations set
forth in this Agreement or such Pricing Agreement or the Indenture, except (w)
as contemplated by the terms thereof, (x) such as have been obtained under the
Act and the Trust Indenture Act, (y) the approval of the
-9-
listing of the Conversion Shares on the New York Stock Exchange and (z) such
consents, approvals, authorizations, orders, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
(vi) The statements set forth in the Prospectus under the
captions "Description of Securities," "Description of Notes" and "Description of
Capital Stock," insofar as they purport to constitute a summary of the terms of
the Designated Securities and the Common Stock, fairly summarize such terms in
all material respects; and under the captions "Underwriting" and "Plan of
Distribution", insofar as they purport to summarize certain provisions of the
laws and documents referred to therein, fairly summarize such terms, laws and
document in all material respects;
(vii) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Considerations", insofar as they purport to describe
the provisions of the laws and documents referred to therein, fairly summarize
such laws and documents in all material respects;
(viii) To such counsel's knowledge, the Company is not an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act;
(ix) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and
(x) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated Securities (other than
the financial statements and related schedules therein and financial data
derived therefrom, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder.
Such counsel shall also include a statement to the effect that, although
such counsel does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in subsection (v) of
this Section 7(c), such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein and financial data derived therefrom,
as to which such counsel need express no belief) contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that, as
of its date, the Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein and financial data
derived therefrom, as to which such counsel need express no belief) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related schedules
therein and financial data derived therefrom, as to which such counsel need
express no belief) contains an untrue statement
-10-
of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering the opinions set forth herein, such counsel may rely with
respect to matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they have no reason to believe both
you and they are not justified in relying upon such certificates and a copy of
such certificate shall be delivered to you. Such counsel's opinion that any
agreement is valid, binding or enforceable in accordance with its terms may be
qualified as to: (1) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other laws
relating to or affecting the rights of creditors generally; (2) rights to
indemnification and contribution which may be limited by applicable law or
equitable principles; and (3) general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair dealing,
and the possible unavailability of specific performance or injunctive relief,
regardless of whether such validity and binding effect are considered in a
proceeding in equity or at law.
(d) Xxxxxxx X. Xxxxx, the Company's General Counsel, shall have
furnished to you his written opinion, dated each Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory to you, to
the effect that:
(i) Each of the Company and MEI has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
state of its incorporation with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iii) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually have a
material adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole;
(iv) The issue and sale of the Designated Securities, the
issuance of the Conversion Shares and the performance by the Company of its
obligations pursuant to the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with respect to the Designated Securities will not
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement (other than as disclosed in the Prospectus) or other agreement or
instrument filed as an exhibit to the Registration Statement or to the Company's
most recent Annual Report on Form 10-K, nor will such actions result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or, to such counsel's knowledge, any statute, order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties; and
(v) Such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by
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reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or described as
required.
Such counsel shall also include a statement to the effect that, although
such counsel does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus, such counsel has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Company prior to the Time of Delivery (other than the financial statements and
related schedules therein and financial data derived therefrom, as to which such
counsel need express no belief) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein and financial data derived
therefrom, as to which such counsel need express no belief) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules therein and
financial data derived therefrom, as to which such counsel need express no
belief) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at each Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the effect set
forth in Annex I hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives (the executed copy
of the letter delivered prior to the execution of the Pricing Agreement is
attached as Annex I(a) hereto and a draft of the form of letter to be delivered
on the effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information is given
in the Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change
or any development that would reasonably be expected to cause a prospective
change, in the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to the date
of the
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Pricing Agreement relating to the Designated Securities, the effect of which, in
any such case described in Clause (i) or (ii), is in the reasonable judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Securities or Optional Securities or both on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to the
Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or on the Nasdaq National Market ("Nasdaq"); (ii) a
suspension or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York state authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the reasonable judgment of
the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may reasonably
request;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement; and
(k) The Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from each officer and director of the Company
listed on Schedule III of the Pricing Agreement substantially to the effect set
forth on Schedule IV of the Pricing Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or
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defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commence ment thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party) and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
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or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company pursuant to this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters pursuant to this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Securities or the Optional Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Securities or
Optional Securities, as the case may be, then the Company shall be entitled to a
further period of thirty-six
-15-
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the reasonable opinion of the Company and the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such Firm Securities
or Optional Securities, as the case may be, which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of
Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under the Pricing Agreement relating to such Firm
Securities or Optional Securities, as the case may be, and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Firm Securities or Optional Securities, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement) of
the Firm Securities or Optional Securities, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of Firm Securities or
Optional Securities, as the case may be, which remains unpurchased exceeds one-
eleventh of the aggregate principal amount of the Firm Securities or Optional
Securities, as the case may be, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Firm Securities or Optional
Securities, as the case may be, shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
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11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, or if the Underwriters do not purchase Designated
Securities under the Pricing Agreement or Over-allotment Option relating to such
Designated Securities because the condition set forth in Section 7(b), 7(f),
7(g), 7(h) or 7(i) hereof shall not have been satisfied, the Company shall not
then be under any liability to any Underwriter with respect to the Firm
Securities or Option Securities, as the case may be, covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us seven (7) counterparts hereof.
Very truly yours,
MICRON TECHNOLOGY, INC.
By: /s/ X.X. Xxxxxx, Xx.
---------------------------------
Name: X.X. Xxxxxx, Xx.
-------------------------------
Title: Vice President of Finance and
Chief Financial Officer
-----------------------------
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
XXXXXXXXXX SECURITIES
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------
(Xxxxxxx, Sachs & Co.)
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