EXHIBIT 10.125
MICRON TECHNOLOGY, INC.
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REGISTRATION RIGHTS AGREEMENT
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Dated as of July 20, 1998
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 20, 1998 among Micron
Technology, Inc., a Delaware corporation ("Micron" or the "Company"), J.R.
Simplot Company, a Nevada corporation ("Simplot"), and Canadian Imperial Bank of
Commerce ("CIBC").
1. INTRODUCTION. Pursuant to a Revolving Loan Agreement and a Pledge
Agreement, each dated or to be dated on or shortly after the date hereof between
Simplot and CIBC, Simplot proposes to pledge to CIBC an aggregate of 7,600,000
shares (the "Shares") of the Company's common stock, par value $.10 per share
("Micron Stock"), and CIBC proposes to subsequently deliver such Shares to
satisfy its obligations to return shares of Micron Stock borrowed from third
parties. Micron is willing to provide certain registration rights to Simplot
and CIBC with respect to the Shares, and Simplot is willing to pay or cause to
be paid certain of the Company's expenses under this Agreement on the terms set
forth herein. Certain capitalized terms used in this Agreement are defined in
section 3 hereof; references to sections shall be to sections of this Agreement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION ON REQUEST.
(a) REGISTRATION OF THE SHARES. At any time before the first
anniversary of this Agreement, upon the written request of Simplot, requesting
that the Company effect the registration under the Securities Act of all or part
of the Shares and specifying the intended method of disposition thereof, the
Company will, subject to the terms of this Agreement, use commercially
reasonable efforts to effect the registration under the Securities Act of the
Shares for disposition in accordance with the intended method of disposition
stated in Simplot's request (which method may include dispositions of the Shares
by CIBC), so as to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Common Stock so to be registered; provided,
however, that (i) the Company shall not be required to effect more than one
registration pursuant to this section 2.1(a) and that the registration statement
filed by the Company on June 29, 1998, as amended through the date of this
Agreement (File No. 333-57973), may be utilized by the Company to effect such
registration.
(b) REGISTRATION STATEMENT FORM. Registrations under this section 2.1
shall be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and (ii) as shall permit the disposition of the Shares
in accordance with the intended method or methods of disposition specified in
the request for such registration.
(c) EXPENSES. The party requesting a registration under this section
2.1 shall pay or cause to be paid all Registration Expenses in connection with
any registration requested pursuant to this section 2.1. Simplot and CIBC may by
separate agreement allocate such Registration Expenses among themselves and, in
any event, shall be responsible for the fees and disbursements of any counsel
and accountants retained by them.
(d) OTHER SHARES. The Company may register other securities in a
registration statement filed pursuant to this section 2.1.
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2.2 REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF COMPANY. If and whenever the Company is required to
use commercially reasonable efforts to effect the registration of the Shares
under the Securities Act as provided in section 2.1, the Company shall, as
expeditiously as possible:
(i) prepare and within 10 days after Micron's receipt of a request
pursuant to section 2.1 file with the Commission the requisite registration
statement to effect such registration; provided, however, that before
filing such registration statement or any amendments thereto, the Company
will furnish to the counsel for Simplot (and counsel for CIBC if Simplot or
CIBC has notified Micron that the intended method of distribution includes
dispositions of the Shares by CIBC) copies of all such documents proposed
to be filed, which documents will be subject to the review of such counsel;
(ii) cause such registration statement to become and remain effective
for a period of not more than five business days after the DTC Deposit Date
(as defined in subdivision (iii) below) and to comply with the provisions
of the Securities Act with respect to the disposition of all Shares covered
by such registration statement, including without limitation the
preparation and filing with the Commission of all required amendments and
supplements to such registration statement or the related prospectus;
(iii) cooperate with Simplot and CIBC to facilitate the preparation and
delivery to The Depository Trust Company ("DTC") (the date of such delivery
being hereinafter referred to as the "DTC Deposit Date") as soon as
practicable after the effectiveness of the registration statement of
certificates representing Shares to be disposed of, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with DTC; and to enable such Shares to be registered in such names
as Simplot or CIBC, as applicable, may request;
(iv) furnish to Simplot (and CIBC if Simplot or CIBC has notified
Micron that the intended method of distribution includes dispositions of
Shares by CIBC) such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as Simplot or CIBC, as applicable, may reasonably request in
order to facilitate the disposition of the Shares in accordance with the
intended method of disposition;
(v) register or qualify the Shares under such other securities laws or
blue sky laws of such jurisdictions as Simplot (or CIBC if Simplot or CIBC
has notified Micron that the intended method of distribution includes
dispositions of Shares by CIBC) shall reasonably request, to keep such
registrations or qualifications in effect for so long as such registration
statement remains in effect, and take any other action which may be
reasonably necessary or advisable to enable Simplot or CIBC, as applicable,
to consummate the disposition in such jurisdictions of the Shares, except
that the Company shall not for any such purpose be
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required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not otherwise be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(vi) for so long as such registration statement remains in effect, use
all commercially reasonable efforts to cause all the Shares to be
registered with or approved by such governmental agencies or authorities as
Simplot (and CIBC if Simplot or CIBC has notified Micron that the intended
method of distribution includes dispositions of Shares by CIBC) shall
reasonably request to enable Simplot or CIBC, as applicable, to consummate
the disposition of the Shares;
(vii) notify Simplot (and CIBC if Simplot or CIBC has notified Micron
that the intended method of distribution includes dispositions of Shares by
CIBC) promptly and confirm such advice in writing promptly thereafter:
(1) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed, and, with respect to the
registration statement or any post-effective amendment thereto, when
the same has become effective;
(2) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose; and
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Shares for sale
under the securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(viii) notify Simplot and CIBC, at any time when with respect to the
Shares a prospectus relating thereto is required to be delivered under the
Securities Act, upon the Company's discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and promptly prepare, file with
the Commission and furnish to Simplot and CIBC a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing;
(ix) obtain the withdrawal of any order suspending the effectiveness of
the registration statement at the earliest possible moment; and
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(x) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first full
calendar month after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder, and furnish to Simplot (and
CIBC if Simplot or CIBC has notified Micron that the intended method of
distribution includes dispositions of Shares by CIBC) at least five
business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall not file
any thereof to which Simplot (or CIBC, if applicable) shall have reasonably
objected on the grounds that such amendment or supplement does not comply
in all material respects with the requirements of the Securities Act.
(b) INFORMATION TO BE FURNISHED TO COMPANY. Simplot (and CIBC if
Simplot or CIBC has notified Micron that the intended method of distribution
includes dispositions of Shares by CIBC) shall furnish the Company such
information regarding itself, its ownership of the Company's securities and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
(c) DOCUMENTS NOT TO BE FILED. The Company will not file any
registration statement or amendment thereto or any prospectus or any supplement
thereto (including such documents incorporated by reference and proposed to be
filed after the initial filing of the registration statement) in satisfaction of
its obligations pursuant to this section 2 to which Simplot (or CIBC if Simplot
or CIBC has notified Micron that the intended method of distribution includes
dispositions of Shares by CIBC) shall reasonably object, provided that the
Company may file such document in a form required by law or upon the advice of
its counsel.
(d) DISCONTINUANCE OF DISPOSITION. Upon receipt of any notice from
the Company of the occurrence of any event of the kind described in subdivision
(viii) of section 2.2(a), each of Simplot and CIBC will forthwith discontinue
its disposition of the Shares pursuant to the registration statement relating
thereto until its receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (viii) of section 2.2(a) and, if so
directed by the Company, will at its own expense deliver to the Company all
copies, other than permanent file copies, then in its possession of the
prospectus relating to the Shares current at the time of receipt of such notice.
In the event the Company shall give any such notice, the period mentioned in
subdivision (ii) of section 2.2(a) shall be extended by the length of the period
from and including the date Simplot and CIBC shall have received such notice to
the date on which Simplot and CIBC shall have received the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of section
2.2(a).
2.3 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give Simplot and its counsel (and
CIBC and its counsel if Simplot or CIBC has notified Micron that the intended
method of distribution includes dispositions of Shares by CIBC) the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each amendment
thereof or supplement thereto, and will give each of them such access to its
financial books and records and such opportunities to discuss the business of
the Company with its officers and the independent public accountants who
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have certified its financial statements as shall be necessary, in the opinion of
counsel to Simplot or CIBC, as applicable, to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not be responsible
for any cost or expense incurred by Simplot, CIBC or their respective counsel
pursuant to this section 2.3. All information obtained by Simplot, CIBC or their
respective counsel pursuant to this section 2.3 shall be subject to the
confidentiality provisions of section 4.
2.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration of
the Shares under the Securities Act pursuant to the terms of this Agreement, the
Company shall indemnify and hold harmless (i) Simplot, its directors and
officers and each other Person, if any, who controls Simplot within the meaning
of the Securities Act (Simplot and all such directors, officers and controlling
persons collectively, "Simplot Indemnitees"), and (ii) CIBC, its directors and
officers and each other Person, if any, who controls CIBC within the meaning of
the Securities Act (CIBC and all such directors, officers and controlling
persons collectively, "CIBC Indemnitees"), against any losses, claims, damages
or liabilities, joint or several ("Indemnifiable Losses"), to which any Simplot
Indemnitee or CIBC Indemnitee may become subject under the Securities Act or
otherwise, insofar as such Indemnifiable Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse each Simplot Indemnitee and each CIBC Indemnitee for
any legal or any other expenses ("Indemnifiable Expenses") reasonably incurred
by them in connection with investigating or defending any such Indemnifiable
Loss, provided that the Company shall not be liable to any Simplot Indemnitee or
CIBC Indemnitee in any such case to the extent that any such Indemnifiable Loss
(or action or proceeding in respect thereof) or Indemnifiable Expense arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, in any related
preliminary prospectus or final prospectus, or in any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by Simplot (in the case of a
Simplot Indemnitee) or CIBC (in the case of a CIBC Indemnitee). Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Simplot Indemnitee or CIBC Indemnitee and shall survive the
transfer of the Shares by Simplot or CIBC.
(b) INDEMNIFICATION BY SIMPLOT. Simplot shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this section 2.4) the Company, each director of the Company, each officer
of the Company and each other person, if any, who controls the Company within
the meaning of the Securities Act (the Company and all such directors, officers
and controlling persons collectively, "Micron Indemnitees"), with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any related preliminary prospectus or final prospectus,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by Simplot specifically stating that it is for use in the preparation of such
registration
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statement, preliminary prospectus, final prospectus, amendment or supplement.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Micron Indemnitee and shall survive
the transfer of such securities by Simplot or CIBC.
(c) INDEMNIFICATION BY CIBC. CIBC shall indemnify and hold harmless (in
the same manner and to the same extent as set forth in subdivision (a) of this
section 2.4) each Micron Indemnitee, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any related preliminary prospectus or final prospectus, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by CIBC
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment or supplement.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director, officer
or controlling person and shall survive the transfer of such securities by
Simplot or CIBC.
(d) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving an
Indemnifiable Loss, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party, give written notice to the latter
of the commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subdivisions of this section 2.4, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that the indemnifying party may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any Indemnifiable Expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation. No indemnified party shall
consent to entry of any judgment or enter into any settlement of any such action
the defense of which has been assumed by an indemnifying party without the
consent of such indemnifying party.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
section 2.4 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense upon 30 days' written invoice of such
Indemnifiable Loss or Indemnifiable Expense.
(f) CONTRIBUTION. If the indemnification provided for in the preceding
subdivisions of this section 2.4 is unavailable to an indemnified party in
respect of any Indemnifiable Loss, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Indemnifiable Loss in such
proportion as is appropriate to reflect the relative fault of the Company,
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Simplot and CIBC, respectively, in connection with the statements or omissions
which resulted in such Indemnifiable Loss, as well as any other relevant
equitable considerations. The relative fault of the Company, Simplot and CIBC,
respectively, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, Simplot or CIBC,
as applicable, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
provided that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the provisions contained in the first sentence of
subdivision (a) of this section 2.4, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (g) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a), (b)
or (c) of this section 2.4 had been available under the circumstances.
The Company, Simplot and CIBC agree that it would not be just and equitable if
contribution pursuant to this subdivision (g) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the
Indemnifiable Losses shall be deemed to include, subject to the limitations set
forth in the preceding sentence and subdivision (d) of this section 2.4, any
Indemnifiable Expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (g), neither Simplot nor
CIBC shall be required to contribute any amount in excess of the amount by which
the net proceeds (including loan repayments) received by Simplot or CIBC, as
applicable, from the disposition of the Shares exceeds, in any such case, the
amount of any damages that Simplot or CIBC, as applicable, has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
3. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
Person: A corporation, association, partnership, limited liability
company, organization, business, individual, government or political
subdivision thereof or a governmental agency.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with section 2, including, without limitation,
all registration and filing fees, all
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fees and expenses of complying with securities or blue sky laws, all
duplicating and printing expenses, messenger and delivery expenses, the
reasonable fees and disbursements of a single outside counsel for the
Company. Such expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, or other expenses
for the preparation of financial statements or other data normally prepared
by the Company in the ordinary course of its business or which the Company
would have incurred in any event.
Securities Act: The Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as shall be in effect at the
time.
Shares: As defined in section 1.
4. CONFIDENTIAL INFORMATION. Each of Simplot and CIBC agrees that any
information obtained pursuant to this Agreement which is, or would reasonably be
perceived to be, proprietary to the Company or otherwise confidential will not
be disclosed without the prior written consent of the Company, except that (i)
Simplot or CIBC, as applicable, may disclose such information, on a need-to-know
basis, to its employees, accountants or attorneys (so long as each such person
to whom confidential information is disclosed agrees to keep such information
confidential), or (ii) as required by applicable law or regulation based on the
written advice of counsel (a copy of which shall be provided to the Company
unless Simplot or CIBC, as applicable, is prevented from revealing such
disclosure by such applicable law or regulation or the relevant government
agency requesting such disclosure) or in compliance with a court order or when
otherwise necessary to enforce any of their rights hereunder. Each of Simplot
and CIBC further acknowledges, understands and agrees that any confidential
information will not be utilized in connection with purchases and/or sales of
the Company's securities except in compliance with applicable state and federal
antifraud statutes.
5. RESTRICTIVE LEGEND. During all periods of time in which an effective
registration statement of the Shares under the Securities Act is not in effect,
each certificate representing any portion or all of the Shares and any
certificate reflecting any stock split, stock dividend, recapitalization,
merger, consolidation or similar event with respect to the Shares shall (unless
otherwise permitted by the provisions of section 6) be stamped or otherwise
imprinted with the following legend (in addition to any legend required under
applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, ASSIGNED, PLEDGED
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT
SUCH SALE, PLEDGE OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF SAID ACT."
Each party consents to the Company making a notation on its records and giving
instructions to any transfer agent of the Company Shares in order to implement
the restrictions on transfer established in this Agreement.
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6. NOTICE OF PROPOSED TRANSFERS. Prior to any proposed sale, pledge,
assignment or transfer (any of the foregoing, a "Transfer") of any Shares (other
than a Transfer not involving a change in beneficial ownership) unless there is
in effect a registration statement under the Securities Act covering the
proposed Transfer or unless such proposed transfer satisfies all of the then-
applicable requirements of Rule 144, the holder thereof shall give written
notice to the Company of such holder's intention to effect such Transfer. Each
such notice shall describe the manner and circumstances of the proposed Transfer
in sufficient detail, and shall be accompanied, at such holder's expense by
either an unqualified written opinion of legal counsel who shall, and whose
legal opinion shall, be reasonably satisfactory to the Company addressed to the
Company, to the effect that the proposed Transfer of the Shares may be effected
without registration under the Securities Act, whereupon the holder of such
Shares shall be entitled to transfer such Shares in accordance with the terms of
the notice delivered by the holder to the Company. Each certificate evidencing
the Shares transferred as above provided shall bear, unless such Transfer is
made pursuant to an effective registration statement, the appropriate
restrictive legend set forth in section 5, except that such certificate shall
not bear such restrictive legend if in the opinion of counsel for such holder
and the Company such legend is not required in order to establish compliance
with any provision of the Securities Act.
7. RULE 144. The Company shall timely file the reports required to be
filed by it under the Securities Act and the Exchange Act (including but not
limited to the reports referred to in subparagraph (c) of Rule 144 adopted by
the Commission under the Securities Act) and will take such further action as
Simplot may reasonably request, all to the extent required from time to time to
enable Simplot or CIBC to sell Shares without registration under the Securities
Act pursuant to Rule 144 under the Securities Act, as amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission.
8. AMENDMENTS AND WAIVERS. This Agreement may be amended only with the
written consent of the parties hereto.
9. NOTICES. Except as otherwise provided in this Agreement, all notices,
requests and other communications to any Person provided for hereunder shall be
in writing and shall be given to such Person as follows:
(a) in the case of Simplot: J.R. Simplot Company, Attn: General Counsel,
One Capital Center, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxx 00000-0000,
with a copy to Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, Attn: Xxxxxxx X. Xxxxxxx,
0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000;
(b) in the case of CIBC: Canadian Imperial Bank of Commerce, Attn:
Office of General Counsel, 000 Xxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx,
Xxxxxx, X0X 0X0, with copies to Canadian Imperial Bank of Commerce, Attn:
Xxxxxxxxx Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Xxxxxx
& Xxxxx, Attn: Xxxxxx X. XxXxxxx, Xx., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; or
(c) in the case of the Company: Micron Technology, Inc., Attn: General
Counsel, 0000 Xxxxx Xxxxxxx Xxx, X.X. Xxx 0, Xxxxx, Xxxxx 00000;
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or at such other address, or to the attention of such other officer, as such
Person shall have furnished to the other parties to this Agreement. Each such
notice, request or other communication shall be effective (i) if given by mail,
72 hours after such communication is deposited in the mails with first class,
postage prepaid, addressed as aforesaid or (ii) if given by any other means
(including, without limitation, by air courier), when delivered at the address
specified above.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
11. DESCRIPTIVE HEADINGS. The descriptive headings of the several sections
and subsections of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF IDAHO WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
13. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. ENTIRE AGREEMENT. This Agreement and the Registration Rights Agreement
dated as of June 28, 1996 between the Company and CIBC embody the entire
agreements and understandings among the Company, Simplot and CIBC relating to
the subject matter hereof and supersede all prior agreements and understandings
relating to such subject matter.
15. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF IDAHO OR
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE DISTRICT OF IDAHO OR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE PARTIES HEREBY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH PARTY BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH
PARTY AT ITS ADDRESS SPECIFIED IN SECTION 9. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND THE PARTIES HEREBY IRREVOCABLY WAIVE ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
16. SEVERABILITY. If any provision of this Agreement, or the application
of such provisions to any Person or circumstance, shall be held invalid, the
remainder of this Agreement, or
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the application of such provision to Persons or circumstances other than those
to which it is held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers thereunto duly authorized as of the date
first above written.
MICRON TECHNOLOGY, INC.
By:
----------------------------------------
Title:
J.R. SIMPLOT COMPANY
By:
----------------------------------------
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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Title: Managing Director
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