Exhibit 10.2


 


SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT


 


Between


 


MICRON TECHNOLOGY, INC.


 


and


 


INTEL CAPITAL CORPORATION


 


Dated as of September 24, 2003


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1 DEFINITIONS

  
	
   

  	
   

  
	
  1.1

  	
  Certain Definitions

  
	
   

  	
   

  
	
  SECTION 2 STANDSTILL AND RELATED
  COVENANTS

  
	
   

  	
   

  
	
  2.1

  	
  Intel Ownership of Micron Securities

  
	
   

  	
   

  
	
  2.2

  	
  Standstill Provisions

  
	
   

  	
   

  
	
  2.3

  	
  Voting Trust

  
	
   

  	
   

  
	
  2.4

  	
  Solicitation of Proxies

  
	
   

  	
   

  
	
  2.5

  	
  Acts in Concert with Others

  
	
   

  	
   

  
	
  2.6

  	
  Termination

  
	
   

  	
   

  
	
  SECTION 3 RESTRICTIONS ON TRANSFER OF
  SECURITIES; COMPLIANCE WITH SECURITIES LAWS

  
	
   

  	
   

  
	
  3.1

  	
  Restrictions on Transfer of Voting
  Securities of Micron

  
	
   

  	
   

  
	
  3.2

  	
  Restrictive Legends

  
	
   

  	
   

  
	
  3.3

  	
  Procedures for Certain Transfers

  
	
   

  	
   

  
	
  3.4

  	
  Covenant Regarding Exchange Act Filings

  
	
   

  	
   

  
	
  3.5

  	
  Termination

  
	
   

  	
   

  
	
  SECTION 4 REGISTRATION RIGHTS

  
	
   

  	
   

  
	
  4.1

  	
  Demand Registration

  
	
   

  	
   

  
	
  4.2

  	
  Shelf Registration

  
	
   

  	
   

  
	
  4.3

  	
  Piggyback Registration

  
	
   

  	
   

  
	
  4.4

  	
  Demand and Shelf Registration Procedures,
  Rights and Obligations

  
	
   

  	
   

  
	
  4.5

  	
  Expenses

  
	
   

  	
   

  
	
  4.6

  	
  Indemnification

  



 


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  4.7

  	
  Issuances by Micron or Other Holders

  
	
   

  	
   

  
	
  4.8

  	
  Information by Intel Capital

  
	
   

  	
   

  
	
  4.9

  	
  Market Standoff Agreements

  
	
   

  	
   

  
	
  4.10

  	
  Termination

  
	
   

  	
   

  
	
  SECTION 5 MISCELLANEOUS

  
	
   

  	
   

  
	
  5.1

  	
  Governing Law

  
	
   

  	
   

  
	
  5.2

  	
  Successors and Assigns

  
	
   

  	
   

  
	
  5.3

  	
  Entire Agreement; Amendment

  
	
   

  	
   

  
	
  5.4

  	
  Notices and Dates

  
	
   

  	
   

  
	
  5.5

  	
  Language Interpretation

  
	
   

  	
   

  
	
  5.6

  	
  Table of Contents; Titles; Headings

  
	
   

  	
   

  
	
  5.7

  	
  Counterparts

  
	
   

  	
   

  
	
  5.8

  	
  Severability

  
	
   

  	
   

  
	
  5.9

  	
  Injunctive Relief

  
	
   

  	
   

  
	
  5.10

  	
  Dispute Resolution

  



 


ii

















 


SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT


 


THIS SECURITIES RIGHTS AND RESTRICTIONS AGREEMENT (this “Agreement”) is made as of
September 24, 2003, between MICRON TECHNOLOGY, INC., a Delaware
corporation (“Micron”), and INTEL
CAPITAL CORPORATION, a Cayman Islands corporation (“Intel Capital”).


 


RECITALS


 


A.                                   Intel
Capital has agreed to purchase from Micron, and Micron has agreed to sell and
issue to Intel Capital, stock rights (the “Rights”)
to be issued by Micron pursuant to that certain Stock Rights Agreement, dated
of even date herewith (the “Stock Rights
Agreement”), on the terms and conditions set forth in that certain
Securities Purchase Agreement, dated September 24, 2003, by and between
Micron and Intel Capital (the “Securities
Purchase Agreement”).  The
Rights are exchangeable for Common Stock (the “Common
Stock”) of the Company.


 


B.                                     The
Securities Purchase Agreement provides for the execution and delivery of this
Agreement at the closing of the transactions contemplated thereby.


 


NOW, THEREFORE, in consideration of the representations, warranties,
covenants and conditions herein and in the Securities Purchase Agreement, the
parties hereto hereby agree as follows:


 


SECTION 1

DEFINITIONS


 


1.1                                 Certain Definitions. As used in this
Agreement:


 


(a)                                  “Additional Adjustment Rights” has the
meaning set forth in Section 2.3 of the Securities Purchase Agreement.


 


(b)                                 “Affiliate” means, with respect to any
Person, any Person directly or indirectly controlling, controlled by, or under
common control with, such other Person. For purposes of this definition, “control” when used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; the terms
“controlling” and “controlled” have meanings correlative to
the foregoing. Notwithstanding the above, unless expressly provided to the
contrary herein, the term Affiliate shall exclude officers, directors and any
employee benefit plan or pension plan of a Person.


 


(c)                                  “Beneficial ownership” or “beneficial owner” has the meaning provided
in Rule 13d-3 promulgated under the Exchange Act. References to ownership of
Voting Securities hereunder mean beneficial ownership.


 


(d)                                 “Business Agreement” means that certain
Business Agreement dated the date hereof between Intel Corporation and Micron.


 


1

















 


(e)                                  “Change in Control of Micron” shall mean a
merger, consolidation or other business combination or the sale of all or
substantially all of the assets of Micron (other than a transaction pursuant to
which the holders of the voting stock of Micron outstanding immediately prior
to such transaction have the entitlement to exercise, directly or indirectly,
fifty percent (50%) or more of the Total Voting Power of the continuing,
surviving entity or transferee immediately after such transaction).


 


(f)                                    “Common Stock” has the meaning set forth in
paragraph A of the Recitals hereto.


 


(g)                                 “Demand Registration Statement” has the
meaning set forth in Section 4.1(a).


 


(h)                                 “Demand Request” has the meaning set forth
in Section 4.1(a).


 


(i)                                     “Demand/Tranche Managing Underwriters” has
the meaning set forth in Section 4.4(c).


 


(j)                                     “Demand/Tranche Market Cut-Back” has the
meaning set forth in Section 4.4(d).


 


(k)                                  “Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


(l)                                     “Group” or “group” shall have the meaning provided in
Section 13(d)(3) of the Exchange Act and the rules and regulations
promulgated thereunder, but shall exclude any institutional underwriter
purchasing Voting Securities of Micron in connection with an underwritten registered
offering for purposes of a distribution of such securities.


 


(m)                               “Hedging Transactions” means engaging in
short sales and the purchase and sale of puts and calls and other derivative
securities, so long as Intel Capital retains beneficial ownership of the
Shares.


 


(n)                                 “Indemnified Party” has the meaning set
forth in Section 4.6(c).


 


(o)                                 “Indemnifying Party” has the meaning set
forth in Section 4.6(c).


 


(p)                                 “Intel Capital Public Offering Lock-up” has
the meaning set forth in Section 4.9(a).


 


(q)                                 “Issuance Date” has the meaning set forth
in Section 4.10(b).


 


(r)                                    “Micron Public Offering Lock-up” has the
meanings specified in Section 4.9(b).


 


(s)                                  “Parent” has the meaning set forth in
Section 3.1(b).


 


(t)                                    “Person” shall mean any person, individual,
corporation, partnership, trust or other nongovernmental entity or any
governmental agency, court, authority or other body (whether foreign, federal,
state, local or otherwise).


 


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(u)                                 “Piggyback Market Cut-Back” has the meaning
set forth in Section 4.3(c).


 


(v)                                 “Piggyback Registrable Securities” has the
meaning set forth in Section 4.3(a).


 


(w)                               “Piggyback Registration Statement” has the
meaning set forth in Section 4.3(a).


 


(x)                                   “Piggyback Request” has the meaning set
forth in Section 4.3(a).


 


(y)                                 “Piggyback Underwriting Agreement” has the
meaning set forth in Section 4.3(b).


 


(z)                                   “Qualified Subsidiary” shall mean a
corporation or other Person, at least 90% of the outstanding Voting Securities
of which are owned, directly or indirectly, by Parent.


 


(aa)                            “Register,”  “registered” and “registration”
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.


 


(bb)                          “Registrable Securities” means (i) (1)
all the shares of Common Stock of Micron issued or issuable upon conversion,
exchange or exercise of the Rights or any Additional Adjustment Rights (as
defined in the Securities Purchase Agreement), and (2) any shares of Common
Stock of Micron issued as (or issuable upon the conversion, exchange or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
any such securities described in clause (1) of this subsection (bb).  Notwithstanding the foregoing, Registrable
Securities shall exclude any Registrable Securities sold by a Person in a transaction
in which rights under Section 4 hereof are not assigned in accordance with
this Agreement or any Registrable Securities sold in a public offering, whether
sold pursuant to Rule 144 promulgated under the Securities Act, in a registered
offering, or otherwise.


 


(cc)                            “Registration Expenses” has the meaning set
forth in Section 4.5(a).


 


(dd)                          “Restricted Securities” has the meaning set
forth in Section 3.2(a).


 


(ee)                            “Rights” has the meaning set forth in
paragraph A of the recitals hereto.


 


(ff)                                “SEC” means the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.


 


(gg)                          “Securities Act” means the Securities Act
of 1933, as amended.


 


(hh)                          “Securities Purchase Agreement” has the
meaning set forth in paragraph A of the recitals hereto.


 


(ii)                                  “Shares” means the shares of Common Stock
of Micron issued or issuable upon exercise, exchange or conversion of the
Rights or Additional Adjustment Rights pursuant to the Securities Purchase
Agreement and the Business Agreement.


 


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(jj)                                  “Shelf Registrable Securities” has the
meaning set forth in Section 4.2(a).


 


(kk)                            “Shelf Registration Statement” has the
meaning set forth in Section 4.2(a).


 


(ll)                                  “Shelf Request” has the meaning set forth
in Section 4.2(a).


 


(mm)                      “Stock Rights Agreement” has the meaning
set forth in paragraph A of the recitals hereto.


 


(nn)                          “Suspension Condition” has the meaning set
forth in Section 4.4(f).


 


(oo)                          “Tranche Registrable Securities” has the
meaning set forth in Section 4.2(b).


 


(pp)                          “Tranche Request” has the meaning set forth
in Section 4.2(b).


 


(qq)                          “Transaction Related Securities” means
(i) Shares, (ii) the Rights, (iii) the Additional Adjustment Rights, and
(iv) shares of Common Stock and other securities of Micron issued as (or
issuable upon conversion, exchange or exercise of any warrant, right or other
security as) a dividend or other distribution with respect to or in exchange
for or in replacement of, or upon conversion, exchange or exercise of any such
securities.


 


(rr)                                “Voting Power” or “Total Voting Power” of Micron (or any
other corporation) refer to the votes or total number of votes which at the
time of calculation may be cast in the election of directors of Micron (or such
corporation) at any meeting of stockholders of Micron (or such corporation) if
all securities entitled to vote in the election of directors of Micron (or such
corporation) were present and voted at such meeting; provided that for purposes
of references herein made to any Person’s “Voting Power” or percentage
beneficial ownership of “Total Voting Power,” any rights (other than rights
referred to in any rights plan of Micron (or any such other corporation) or a
successor to such rights plan so long as such rights can only be transferred
together with the Voting Securities to which they attach) of such Person to
acquire Voting Securities (whether or not the exercise, exchange or conversion
of any such right shall be conditioned upon the passage of time or any other
contingency) shall be deemed to have been exercised, exchanged or converted in
full.


 


(ss)                            “Voting Securities” means (i) all
securities of Micron, entitled in the ordinary course, to vote in the election
of directors of Micron and (ii) for the purposes of this Agreement only,
all securities of Micron, directly or indirectly, convertible into or
exchangeable or exercisable for shares of Common Stock (including the Rights
and any Additional Adjustment Rights), the Voting Power of which shall be
deemed equal to the number of shares of Common Stock, directly or indirectly,
issuable upon the conversion, exchange or exercise of such securities.  Voting Securities shall not include
stockholder rights or other comparable securities having Voting Power only upon
the happening of a trigger event or comparable contingency and which can only
be transferred together with the Voting Securities to which they attach.
References herein to meetings of holders of Voting Securities shall include
meetings of any class or type thereof.


 


(tt)                                “180-Day Limitation” has the meaning set
forth in Section 4.4(a).


 


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All capitalized terms used and not defined herein shall have the
respective meanings assigned to such terms in the Securities Purchase
Agreement.


 


SECTION 2

STANDSTILL AND RELATED COVENANTS


 


2.1                                 Intel Capital Ownership of Micron
Securities.  On the date hereof,
and without giving effect to the transactions contemplated by the Securities
Purchase Agreement, neither Intel Capital nor any Affiliate of Intel Capital
beneficially owns any Voting Securities of Micron, other than Voting Securities
held in equity index funds or by employee benefit plans or pension plans.


 


2.2                                 Standstill Provisions.


 


(a)                                  Intel
Capital shall not acquire, directly or indirectly, and shall not cause or
permit any Affiliate of Intel Capital to acquire, directly or indirectly
(through market purchases or otherwise), record or beneficial ownership of any
Voting Securities of Micron representing, when taken together with all
securities owned by such Persons, in excess of a percentage greater than
nineteen and ninety nine hundredths (19.99%) (the “Standstill Percentage”) of the Total Voting Power of Micron
without the prior written consent or approval of Micron’s Board of Directors; provided, however, that the prior written
consent or approval of the Board of Directors of Micron shall not be required
for the acquisition of any Voting Securities of Micron pursuant to the
conversion, exchange or exercise of any of the Rights or any of the Additional
Adjustment Rights or resulting from a stock split, stock dividend or similar
recapitalization by Micron or resulting from any issuance to Intel Capital of
Common Stock or other securities of Micron pursuant to the terms and conditions
of the Business Agreement. Nothing contained in this Section 2.2 shall
adversely affect any right of Intel Capital to acquire record or beneficial
ownership of Voting Securities of Micron pursuant to any rights plan instituted
by Micron. Ownership of Voting Securities by employee benefit plans or pension
plans shall not be beneficial ownership by Intel Capital for purposes of this
Section 2.2.


 


(b)                                 Intel
Capital and its Affiliates will not be obliged to dispose of any Voting
Securities to the extent that the aggregate percentage of the Total Voting
Power of Micron represented by Voting Securities beneficially owned by Intel
Capital and its Affiliates or which Intel Capital and its Affiliates has a
right to acquire is increased beyond the Standstill Percentage (i) as a
result of a recapitalization of Micron or a repurchase or exchange of
securities by Micron or its Affiliates; (ii) as a result of any issuance
to Intel Capital of Common Stock or other securities of Micron pursuant to the
terms and conditions of the Business Agreement; (iii) as a result of an
equity index transaction, provided that Intel Capital and its Affiliates shall
not vote such shares; (iv) by way of stock dividends or other
distributions or rights or offerings made available to holders of shares of
Voting Securities generally; or (v) with the prior written consent or
approval of Micron’s Board of Directors.


 


2.3                                 Voting
Trust. Intel Capital shall not, and shall not cause or permit any
Affiliate of Intel Capital to, deposit any Voting Securities of Micron in a
voting trust or, except as otherwise provided herein, subject any Voting
Securities of Micron to any arrangement or agreement with respect to the voting
of such Voting Securities of Micron.


 


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2.4                                 Solicitation of Proxies. Without the
prior written consent or approval of Micron’s Board of Directors, Intel Capital
shall not, and shall not cause or permit any Affiliate of Intel Capital to,
directly or indirectly (i) initiate, propose or otherwise solicit Micron
stockholders for the approval of one or more stockholder proposals with respect
to Micron or induce or attempt to induce any other Person to initiate any
stockholder proposal, (ii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are defined or
used in Rule 14a-1 under the Exchange Act) with respect to any Voting
Securities of Micron, or become a “participant”
in any “election contest” (as such
terms are used in the proxy rules of the SEC), with respect to Micron or
(iii) call or seek to have called any meeting of the holders of Voting
Securities of Micron.


 


2.5                                 Acts in Concert with Others. Except as
contemplated herein, Intel Capital shall not, and shall not cause or permit any
Affiliate of Intel Capital to, participate in the formation of any Person which
owns or seeks to acquire beneficial ownership of, or otherwise acts in concert
in respect of the voting or disposition of, Voting Securities of Micron.
Without limiting the generality of the foregoing, and except as contemplated
herein, Intel Capital shall not, and shall not cause or permit any Affiliate of
Intel Capital to: (i) join a partnership, limited partnership, syndicate
or other group, or otherwise act in concert with any third person, for the
purpose of acquiring, holding, or disposing of Voting Securities of Micron;
(ii) seek election to or seek to place a representative on the Board of
Directors of Micron; (iii) seek the removal of any member of the Board of
Directors of Micron; (iv) otherwise seek control of the management, Board
of Directors or policies of Micron; (v) solicit, propose or seek to effect
any form of business combination transaction with Micron or any Affiliate
thereof, or any restructuring, recapitalization or similar transaction with
respect to Micron or any Affiliate thereof; (vi) solicit, make or propose
or announce an intent to make, any tender offer or exchange offer for any
Voting Securities of Micron; (vii) disclose an intent, purpose, plan or
proposal with respect to Micron or any Voting Securities of Micron inconsistent
with the provisions of this Agreement, including an intent, purpose, plan or
proposal that is conditioned on or would require Micron to waive the benefit of
or amend any provision of this Agreement; or (vii) assist, participate in,
or solicit any effort or attempt by any Person to do or seek to do any of the
foregoing.  Intel Capital shall not, and
shall not cause or permit any Affiliate of Intel Capital to, make any
recommendation or proposal to any Person to engage in any of the actions
covered by Section 2.4 hereof and this Section 2.5.


 


2.6                                 Termination.
The provisions of this Section 2 shall terminate upon the earlier to
occur of: (i) such time as Intel Capital (together with all Affiliates of
Intel Capital) beneficially owns in the aggregate Voting Securities of Micron
representing less than three percent (3%) of the Total Voting Power of Micron,
or (ii) the closing or other completion of a Change in Control of Micron.


 


SECTION 3

RESTRICTIONS ON TRANSFER OF

SECURITIES; COMPLIANCE WITH SECURITIES LAWS


 


3.1                                 Restrictions on Transfer of Voting
Securities of Micron. 
Intel Capital shall not, and shall not cause or permit any Affiliate of
Intel Capital to, directly or indirectly, offer to sell, contract to sell, make
any short sale of, or otherwise sell, dispose of, loan, gift, pledge or grant


 


6

















 


any options or rights with
respect to, any Transaction Related Securities of Micron, now or hereafter
acquired, or with respect to which Intel Capital (or any Affiliate of Intel
Capital) has or hereafter acquires the power of disposition (or enter into any
agreement or understanding with respect to the foregoing), except as set forth
in the following clauses (a) through (g):


 


(a)                                  to
Micron, or any Person or group approved in writing in advance by Micron’s Board
of Directors;


 


(b)                                 to
any Qualified Subsidiary or Intel Corporation, a Delaware corporation (“Parent”), so long as such subsidiary or
Parent agrees in writing (in form reasonably acceptable to counsel for Micron)
to hold such Voting Securities of Micron subject to all the provisions of this
Agreement, and also agrees to transfer such Voting Securities of Micron to
Intel Capital or another Qualified Subsidiary of Parent or to Parent if it
ceases to be a Qualified Subsidiary of Parent;


 


(c)                                  pursuant to a public
offering of Voting Securities of Micron registered under the Securities Act; provided, however, that such offering is
structured to distribute such securities in accordance with procedures reasonably
designed to ensure that beneficial ownership of the Voting Securities of Micron
with aggregate Voting Power of more than five percent (5%) of the Total Voting
Power of Micron then in effect shall not be transferred during such
distribution to any single Person or group, unless such Person or group is an
institutional investor that acquires such Voting Securities solely for
investment;


 


(d)                                 through a sale of
Voting Securities of Micron pursuant to Rule 144 under the Securities Act;
provided, however, that any such
sale (i) complies with the manner of sale provisions under paragraph (f)
of Rule 144 or (ii) is of securities with Voting Power aggregating less
than five percent (5%) of the Total Voting Power of Micron and is not made
knowingly directly or indirectly to: (A) any Person or group which has
theretofore filed a Schedule 13D with the SEC with respect to any class of
“equity
security” (as defined in Rule 13a11-1 under the Exchange Act)
of Micron and which, at the time of such sale, continues to reflect beneficial
ownership in excess of five percent (5%) of the Total Voting Power of Micron,
unless such Person or group is an institutional investor that acquires such
Voting Securities solely for investment; (B) any Person or group known to
Intel Capital (without inquiry or investigation) to beneficially own in excess
of five percent (5%) of any Voting Securities of Micron or to be accumulating
stock on behalf of or acting in concert with any such Person or group or a
Person or group contemplated by clause (A) above, unless such Person or group
is an institutional investor that acquires such Voting Securities solely for
investment; or (C) any Person or group that has announced or commenced an
unsolicited offer for any Voting Securities of Micron or publicly initiated,
proposed or otherwise solicited Micron stockholders for the approval of one or
more stockholder proposals with respect to Micron or publicly made, or in any
way participated in, any “solicitation” of “proxies” (as such terms are
defined or used in Regulation 14A under the Exchange Act) with respect to
any Voting Securities of Micron, or become a “participant” in any “election
contest” (as such terms are used in the proxy rules of the SEC);


 


(e)                                  pursuant to any
private sale of Voting Securities of Micron exempt from the registration
requirements under the Securities Act, provided that no such sale may be made
to


 


7

















 


any Person or group which,
after giving effect to such sale, will beneficially own or have the right to
acquire Voting Securities of Micron with aggregate Voting Power of more than
five percent (5%) of the Total Voting Power of Micron unless such Person or
group is an institutional investor that acquires such Voting Securities solely for
investment, in which case the total number of Voting Securities that may be
sold to such Person or group shall be limited so that such Person or group
shall not own or have the right to acquire more than ten percent (10%) of the
Total Voting Power of Micron after giving effect to the proposed sale; and,
provided, further, that, if such securities are “restricted securities” as
defined in Rule 144, any such purchaser (and any transferee of such purchaser)
shall agree to take and hold such securities subject to the provisions and upon
the conditions specified in this Section 3, and it will be a condition
precedent to the effectiveness of any such transfer that Intel Capital shall
have delivered to Micron a written agreement of such purchaser to that effect
in form and substance reasonably satisfactory to Micron (which may contain a
representation by such purchaser as to the beneficial ownership of Voting
Securities of Micron, which may be relied upon by Intel Capital (absent actual
knowledge to the contrary) for purposes of compliance with the applicable
requirements of this Section 3.1(e));


 


(f)                                    in response to an
offer to purchase or exchange for cash or other consideration any Voting
Securities, in any case which is not opposed by the Board of Directors of
Micron within the time such Board is required, pursuant to regulations under
the Exchange Act, to advise the stockholders of Micron of such Board’s position
with respect to such offer, or, if no such regulations are applicable, within
ten (10) business days of the commencement of such offer, or pursuant to a
merger, consolidation or other business combination involving Micron approved
by the Board of Directors of Micron; or


 


(g)                                 subject to Micron’s
prior consent (which shall not be unreasonably withheld), pursuant to bona fide
pledges of such Voting Securities to institutional lenders (provided that the
number of such lenders to which, or for the benefit of which, such pledges may
be made, shall not exceed twenty (20) in the aggregate), to secure a loan, guarantee,
letter of credit facility or other indebtedness or financial support; provided
that each such lender to which, or for the benefit of which, such pledge is
made agrees in writing to hold such Voting Securities subject to all provisions
of this Agreement, including the limitations on any sale or other disposition
of such Voting Securities.


 


Subject to Section 4.10 of the
Securities Purchase Agreement, nothing in this Section 3.1 shall be
construed to prohibit Hedging Transactions with respect to securities of Micron
provided that such transactions do not result in non-compliance with  the foregoing restrictions insofar such
provisions relate to, and are limited in their application to, the Transaction
Related Securities.


 


8

















 


3.2                                 Restrictive Legends.


 


(a)                                  The
certificate or certificates representing the (i) the Shares, (ii) the
Rights, including any Additional Adjustment Rights, and (iii) any
securities issued in respect of the foregoing as a result of any stock split,
stock dividend, recapitalization, reclassification or similar transaction
(collectively, the “Restricted Securities”)
shall be stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under applicable state
securities laws):


 


THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER AS TO THE AVAILABILITY OF AN EXEMPTION FROM
REGISTRATION.


 


(b)                                 The
certificate or certificates representing the Restricted Securities also shall
be stamped or otherwise imprinted with a legend substantially in the following
form:


 


THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING ANY SALE, PLEDGE
OR OTHER HYPOTHECATION, SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND INTEL
CAPITAL CORPORATION, A COPY OF WHICH AGREEMENT MAY BE OBTAINED AT NO COST
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.


 


(c)                                  The
certificate or certificates representing the Rights and any Additional
Adjustment Rights also shall be stamped or otherwise imprinted with a legend
substantially in the following form:


 


THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO PROVISIONS OF THE STOCK RIGHTS AGREEMENT WHICH
CONTAINS CERTAIN RESTRICTIONS ON TRANSFER AND OTHER RIGHTS AND
OBLIGATIONS.  COPIES OF THE STOCK RIGHTS
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICES.


 


3.3                                 Procedures for Certain Transfers.


 


(a)                                  The
holder of each certificate representing Restricted Securities, by acceptance
thereof, agrees to comply in all respects with the provisions of this
Section 3.


 


(b)                                 Prior
to any proposed transfer of any Restricted Securities pursuant to
Sections 3.1(a), (b), (e) and (g) hereof, Intel Capital shall give written
notice to Micron of its intention to effect such transfer.  Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall be
accompanied by either: (i) a written


 


9

















 


opinion of legal counsel
(including in-house counsel), who shall be reasonably satisfactory to Micron,
addressed to Micron and reasonably satisfactory in form and substance to
Micron’s counsel, to the effect that the proposed transfer of the Restricted
Securities may be effected without registration under the Securities Act; or
(ii) a “no action” letter from the SEC and a copy of any request by Intel
Capital (together with all supplements or amendments thereto), which shall have
been provided to Micron at or prior to the time of first delivery to the SEC’s
staff, to the effect that the transfer of such securities without registration
will not result in a recommendation by the staff of the SEC that action be
taken with respect thereto, whereupon Micron shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by
Intel Capital to Micron.


 


(c)                                  In
connection with any proposed transfer of Restricted Securities pursuant to
Section 3.1(d) hereof, Intel Capital shall comply with all applicable
requirements of Rule 144 under the Securities Act and the reasonable
requirements of Micron’s transfer agent with respect to sales of Restricted
Securities pursuant to Rule 144.


 


(d)                                 Each
certificate evidencing the Restricted Securities transferred as herein provided
(other than a transfer pursuant to Section 3.1(c)) shall bear the
appropriate restrictive legend set forth in Section 3.3(a) above, except
that such certificate shall not bear such restrictive legend if: (i) in
the opinion of counsel for Micron, such legend is not required in order to
establish compliance with any provisions of the Securities Act; (ii) the
Restricted Securities have been held by the holder for more than two years, and
the holder represents to counsel for Micron that it has not been an “affiliate” (as such term is defined for
purposes of Rule 144) of Micron during the three-month period prior to the
sale and shall not become an affiliate (as such term is defined for purposes of
Rule 144) of Micron without resubmitting the Restricted Securities for
reimposition of the legend; (iii) the Restricted Securities have been sold
pursuant to Rule 144 and in compliance with Section 3.1(d).  In addition, each certificate evidencing the
Restricted Securities transferred pursuant to this Section 3 (other than
transfers pursuant to Sections 3.1(c) and 3.1(d)) hereof shall bear the
legend set forth in Section 3.2(b) above.


 


3.4                                 Covenant Regarding Exchange Act
Filings. With a view to making available to Intel Capital the
benefits of Rule 144 promulgated under the Securities Act, and any other rules
or regulations of the SEC which may at any time permit Intel Capital to sell
any Restricted Securities without registration, until the date of termination
of this Agreement, Micron agrees to use commercially reasonable efforts to file
with the SEC in a timely manner all reports and other documents required to be
filed under the Exchange Act.


 


3.5                                 Termination.
The provisions of this Section 3 (other than Sections 3.2 and 3.3)
shall terminate upon the later to occur of: (i) the fifth anniversary date
of this Agreement and (ii) such time as Intel Capital (together with all
Affiliates of Intel Capital) beneficially owns in the aggregate Voting
Securities of Micron representing less than five percent (5%) of the Total
Voting Power of Micron or upon the closing or other completion of a Change in
Control of Micron.


 


10

















 


SECTION 4

REGISTRATION RIGHTS


 


4.1                                 Demand Registration.


 


(a)                                  If
at any time after ninety (90) days after the date hereof, Micron shall receive
from Intel Capital a written request (a “Demand
Request”) that Micron register on Form S-3 under the Securities Act
(or if such form is not available, any registration statement form then
available to Micron) Registrable Securities equal to at least the lesser of two
percent (2%) of the Voting Securities outstanding on the date of such Demand
Request and securities having an aggregate market value of $100 million or more
on such date, then Micron shall use commercially reasonable efforts to cause
the Registrable Securities specified in such Demand Request (the “Demand Registrable Securities”) to be
registered as soon as reasonably practicable so as to permit the offering and
sale thereof and, in connection therewith, shall prepare and file with the SEC
as soon as practicable after receipt of such Demand Request, a registration
statement (a “Demand Registration Statement”)
to effect such registration, and to obtain any desired acceleration of the
effective date of such Demand Registration Statement; provided, however, that each such Demand
Request shall: (i) specify the number of Demand Registrable Securities
intended to be offered and sold by Intel Capital pursuant thereto (which number
of Demand Registrable Securities shall not be less than the lesser of two
percent (2%) of the Voting Securities outstanding on the date of such Demand
Request and securities having an aggregate market value in excess of $100
million on such date); (ii) express the present intention of Intel Capital
to offer or cause the offering of such Demand Registrable Securities pursuant
to such Demand Registration Statement, (iii) describe the nature or method
of distribution of such Demand Registrable Securities pursuant to such Demand
Registration Statement (including, in particular, whether Intel Capital plans
to effect such distribution by means of an underwritten offering or other
method); and (iv) contain the undertaking of Intel Capital to provide all
such information and materials and take all such actions as may be required in
order to permit Micron to comply with all applicable requirements of the
Securities Act, the Exchange Act and the rules and regulations of the SEC
thereunder.


 


(b)                                 The
procedures to be followed by Micron and Intel Capital, and the respective
rights and obligations of Micron and Intel Capital, with respect to the
preparation, filing and effectiveness of Demand Registration Statements and the
distribution of Demand Registrable Securities pursuant to Demand Registration
Statements under this Section 4.1 are set forth in Section 4.4
hereof.


 


4.2                                 Shelf Registration.


 


(a)                                  If
at any time after ninety (90) days after the date hereof, Micron shall receive
from Intel Capital a written request (a “Shelf
Request”) that Micron register pursuant to Rule 415(a)(1)(i) under
the Securities Act (or any successor rule with similar effect) a delayed
offering of all Registrable Securities held by Intel Capital, then Micron shall
use commercially reasonable efforts to cause the Registrable Securities
specified in such Shelf Request (the “Shelf
Registrable Securities”) to be registered as soon as reasonably
practicable so as to permit the sale thereof and, in connection therewith,
shall (i) prepare and file with the SEC as soon as practicable after
receipt of such Shelf Request, a shelf registration statement on Form S-3


 


11

















 


relating to such Shelf
Registrable Securities, if such Form S-3 is available for use by Micron (or any
successor form of registration statement to such Form S-3), to effect such
registration (a “Shelf Registration
Statement”), to enable the distribution of such Shelf Registrable
Securities, and to obtain any desired acceleration of the effective date of
such Shelf Registration Statement; provided,
however, that each such Shelf Request shall: (i) express the
intention of Intel Capital to offer or cause the offering of such Shelf
Registrable Securities pursuant to such Shelf Registration Statement on a
delayed basis in the future; (ii) describe the nature or method of the
proposed offer and sale of such Shelf Registrable Securities pursuant to such
Shelf Registration Statement (including, in particular, whether Intel Capital
plans to effect such distribution by means of an underwritten offering or other
method); and (iii) contain the undertaking of Intel Capital to provide all
such information and materials and take all such actions as may be required in
order to permit Micron to comply with all applicable requirements of the
Securities Act, the Exchange Act and the rules and regulations of the SEC
thereunder.  Intel Capital shall not be
entitled to make more than one Shelf Request during any three hundred
sixty-five (365) day period.


 


(b)                                 It
is expressly agreed by the parties that the sole purpose of Micron filing and
maintaining an effective a Shelf Registration Statement for the delayed
offering of Shelf Registrable Securities by Intel Capital is to make the
process of distributing Registrable Securities by Intel Capital more convenient
for both parties by reducing or eliminating the need to file a new Demand
Registration Statement each time that Intel Capital decides to sell Registrable
Securities. After a Shelf Registration Statement has been declared effective
under the Securities Act by the SEC, then, upon the written request of Intel
Capital (a “Tranche Request”),
Micron shall prepare such amendments to such Shelf Registration Statement
(including post-effective amendments), if any, and such amendments or
supplements to the prospectus relating to the Registrable Securities to be
offered thereunder pursuant to such Tranche Request (the “Tranche Registrable Securities”), as is
necessary to facilitate the distribution of such Tranche Registrable Securities
pursuant to such Tranche Request; provided,
however, that such Tranche Request shall: (i) specify the
number of Tranche Registrable Securities intended to be offered and sold by
Intel Capital pursuant thereto (which number of Tranche Registrable Securities
shall not be less than the lesser of two percent (2%) of the Voting Securities
outstanding on the date of such Tranche Request and securities having an
aggregate market value in excess of $100 million on such date);
(ii) express the present intention of Intel Capital to offer or cause the
offering of such Tranche Registrable Securities pursuant to the Shelf
Registration Statement, (iii) describe the nature or method of
distribution of such Tranche Registrable Securities pursuant to the Shelf
Registration Statement (including, in particular, whether Intel Capital plans
to effect such distribution by means of an underwritten offering or other
method); and (iv) contain the undertaking of Intel Capital to provide all
such information and materials and take all such actions as may be required in
order to permit Micron to comply with all applicable requirements of the
Securities Act, the Exchange Act and the rules and regulations of the SEC
thereunder.


 


(c)                                  The
procedures to be followed by Micron and Intel Capital, and the respective
rights and obligations of Micron and Intel Capital, with respect to the
preparation, filing and effectiveness of Shelf Registration Statements and the
distribution of Tranche Registrable Securities pursuant to Shelf Registration
Statements under this Section 4.2 are set forth in Section 4.4
hereof.


 


12

















 


4.3                                 Piggyback Registration.


 


(a)                                  If
at any time after ninety (90) days after the date hereof, Micron shall
determine to register any of its equity or equity-linked securities (other than
registration statements relating to (i) employee, consultant or
distributor compensation or incentive arrangements (including employee benefit
plans), (ii) acquisitions or any transaction or transactions under Rule
145 under the Securities Act (or any successor rule with similar effect),
(iii) distributions by principal stockholders, their Affiliates or
transferees (unless consented to by such principal stockholders, Affiliates or
transferees), or (iv) pursuant to Rule 415 under the Securities Act), then
Micron will promptly give Intel Capital written notice thereof and include in
such Micron-initiated, non-shelf, registration statement (a “Piggyback Registration Statement”), and in
any underwriting involved therein, all Registrable Securities (the “Piggyback Registrable Securities”)
specified in a written request made by Intel Capital (a “Piggyback Request”) within five (5)
business days after receipt of such written notice from Micron; provided, however, that nothing in this
Section 4.3(a), or any other provision of this Agreement, shall be
construed to limit the absolute right of Micron, for any reason and in its sole
discretion: (i) to delay, suspend or terminate the filing of any Piggyback
Registration Statement; (ii) to delay the effectiveness of any Piggyback
Registration Statement; (iii) to terminate or reduce the number of Piggyback
Registrable Securities to be distributed pursuant to any Piggyback Registration
Statement (including, without limitation, pursuant to
Section 4.3(c) hereof); or (iv) to withdraw such Piggyback
Registration Statement.


 


(b)                                 If
the Piggyback Registration Statement of which Micron gives notice is for an
underwritten offering, Micron shall so advise Intel Capital as a part of the
written notice given pursuant to Section 4.3(a). In such event, the right
of Intel Capital to registration pursuant to this Section 4.3 shall be
conditioned upon the agreement of Intel Capital to participate in such
underwriting and in the inclusion of such Piggyback Registrable Securities in
the underwriting to the extent provided herein. Intel Capital shall (together
with Micron and any other holders distributing securities in such Piggyback
Registration Statement, if any) enter into an underwriting agreement (the “Piggyback Underwriting Agreement”) in
customary form with the underwriter or underwriters selected for such
underwriting by Micron.


 


(c)                                  Notwithstanding
any other provision of this Agreement, if the managing underwriters of any
underwritten offering pursuant to a Piggyback Request determine, in their sole
discretion that, after including all the shares to be offered by Micron and all
the shares of any other Persons entitled to registration rights with respect to
such Piggyback Registration Statement (pursuant to other agreements with
Micron), marketing factors require a limitation of the number of Piggyback
Registrable Securities to be underwritten, the managing underwriters of such
offering may exclude any and all of the Piggyback Registrable Securities,
provided that such cut-back is made pro rata with respect to any other
securities proposed to be included in such registration statement pursuant to
“piggy-back” registration rights (a “Piggyback
Market Cut-Back”).  If Intel
Capital disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to Micron and the managing underwriters. Any
Piggyback Registrable Securities excluded or withdrawn from such underwriting
shall be withdrawn from such Piggyback Registration Statement.


 


13

















 


(d)                                 Except
to the extent specifically provided in this Section 4.3 hereof, the
procedures to be followed by Micron and Intel Capital, and the respective
rights and obligations of Micron and Intel Capital, with respect to the
distribution of any Piggyback Registrable Securities by Intel Capital pursuant
to any Piggyback Registration Statement filed by Micron shall be as set forth
in the Piggyback Underwriting Agreement, or any other agreement or agreements
governing the distribution of such Piggyback Registrable Securities pursuant to
such Piggyback Registration Statement.


 


4.4                                 Demand and Shelf Registration
Procedures, Rights and Obligations.  The procedures to be followed by Micron and Intel Capital, and
the respective rights and obligations of Micron and Intel Capital, with respect
to the preparation, filing and effectiveness of Demand Registration Statements
and Shelf Registration Statements, respectively, and the distribution of Demand
Registrable Securities and Tranche Registrable Securities, respectively,
pursuant thereto, are as follows:


 


(a)                                  Intel
Capital shall not be entitled to make more than one Demand Request or Tranche
Request during any one hundred eighty (180) day period (the “180-Day Limitation”); provided, however, that (i) any
Demand Request that: (A) does not result in the corresponding Demand Registration
Statement being declared effective by the SEC; (B) is withdrawn by Intel
Capital following the imposition of a stop order by the SEC with respect to the
corresponding Demand Registration Statement; (C) is withdrawn by Intel
Capital as a result of the exercise by Micron of its suspension rights pursuant
to Sections 4.4(e) or (f) hereof; or (D) is withdrawn by Intel
Capital as a result of a Demand/Tranche Market Cut-Back (as defined in
Section 4.4(d) hereof); and (ii) any Tranche Request that:
(A) is withdrawn by Intel Capital following the imposition of a stop order
by the SEC with respect to the corresponding Shelf Registration Statement;
(B) is withdrawn by Intel Capital as a result of the exercise by Micron of
its suspension rights pursuant to Sections 4.4(e) or (f) hereof; or
(C) is withdrawn by Intel Capital as a result of a Demand/Tranche Market
Cut-Back, shall not count for the purposes of determining compliance with the
180-Day Limitation. Any Demand Request or Tranche Request that is withdrawn by
Intel Capital for any reason other than as set forth in the previous sentence
shall count for purposes of determining compliance with the 180-Day Limitation.
Piggyback Requests shall not count for purposes of determining compliance with
the 180-Day Limitation regardless of whether a Piggyback Registration Statement
is filed, declared effective or withdrawn or whether any distribution of
Piggyback Registrable Securities is effected, terminated or cut back (pursuant
to Section 4.3(c) hereof, or otherwise).  Intel Capital shall not be entitled to offer or sell any
securities pursuant to a Demand Registration Statement or Shelf Registration
Statement unless and until, following a Demand Request or a Tranche Request, as
applicable, Micron has made all required filings with the SEC with respect to
the distribution of Registrable Securities contemplated by such Demand Request
or Tranche Request, as applicable, such filings have become effective and
Micron has promptly notified Intel Capital of the foregoing and that no
Suspension Condition then exists.


 


(b)                                 Micron
shall use commercially reasonable efforts to cause each Demand Registration
Statement and Shelf Registration Statement to be declared effective promptly
and to keep such Demand Registration Statement and Shelf Registration Statement
continuously effective until the earlier to occur of: (i) the sale or
other disposition of the Registrable Securities so registered; (ii) (X) in
the case of a firmly committed, underwritten offering, sixty (60) days


 


14

















 


after (A) if pursuant to a
Demand Registration Statement, the effective date of any Demand Registration
Statement or (B) if pursuant to a Tranche Request, the date of the final
prospectus used to confirm sales in connection with the underwritten offering
of Tranche Registrable Securities, and (Y) in the case of all other plans of
distribution, (A) if pursuant to a Demand Registration Statement, fifteen
(15) business days after the effective date of such Demand Registration
Statement or (B) if pursuant to a Tranche Request, fifteen (15) business
days after the earlier of the effectiveness of the amendment to the Shelf
Registration Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to facilitate such
distribution and the date of the notice required by the last sentence of
Section 4.4(a) hereof if no such amendment or supplement is so
required; and (iii) the termination of Intel Capital’s registration rights
pursuant to Section 4.10 hereof. 
Micron shall prepare and file with the SEC such amendments and
supplements to each Demand Registration Statement and Shelf Registration
Statement and each prospectus used in connection therewith as may be necessary
to make and to keep such Demand Registration Statement and Shelf Registration
Statement effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
proposed to be distributed pursuant to such Demand Registration Statement and
Shelf Registration Statement until the earlier to occur of (i) the sale or
other disposition of the Registrable Securities so registered; (ii) (X) in
the case of a firmly committed, underwritten offering, sixty (60) days after
(A) if pursuant to a Demand Registration Statement, the effective date of
any Demand Registration Statement or (B) if pursuant to a Tranche Request,
the date of the final prospectus used to confirm sales in connection with the underwritten
offering of Tranche Registrable Securities, and (Y) in the case of all other
plans of distribution, (a) if pursuant to a Demand Registration Statement,
fifteen (15) business days after the effective date of such Demand Registration
Statement or (b) if pursuant to a Tranche Request, fifteen (15) business
days after the earlier of the effectiveness of the amendment to the Shelf
Registration Statement or the filing of the amendment or supplement to the
prospectus included in such registration statement required to facilitate such
distribution and the date of the notice required by the last sentence of
Section 4.4(a) hereof if no such amendment or supplement is so
required; and (iii) the termination of Intel Capital’s registration rights
pursuant to Section 4.10 hereof.


 


(c)                                  In
connection with any underwritten offering pursuant to a Demand Registration
Statement or a Shelf Registration Statement which Intel Capital has requested
be underwritten, Micron, on the one hand, and Intel Capital, on the other hand,
shall each select one investment banking firm to serve as co-manager of such
offering. The co-manager selected by Micron shall be subject to the prior
approval of Intel Capital, which approval shall not be unreasonably withheld,
and the co-manager selected by Intel Capital shall be subject to the prior
approval of Micron, which approval shall not be unreasonably withheld. Each of
the co-managers so selected by Micron and Intel Capital are hereinafter
collectively referred to as the “Demand/Tranche
Managing Underwriters.”  The
Demand/Tranche Underwriter selected by Intel Capital shall be the lead
Demand/Tranche Managing Underwriter, whose responsibilities shall include
running the “books” for any offering. Micron shall, together with Intel
Capital, enter into an underwriting agreement with the Demand/Tranche Managing
Underwriters, which agreement shall contain representations, warranties,
indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary distributions under demand
registration statements or shelf registration statements, as the case may be,
and shall stipulate that the Demand/Tranche Managing Underwriters will receive
equal commissions and fees and other


 


15

















 


remuneration in connection with
the distribution of any Demand Registrable Securities or Tranche Registrable
Securities thereunder.


 


(d)                                 Notwithstanding
any other provision of this Agreement, in connection with any underwritten
offering, the number of Demand Registrable Securities or Tranche Registrable
Securities proposed to be distributed by Intel Capital pursuant to any Demand
Request or Tranche Request may be limited by the Demand/Tranche Managing
Underwriters if such Demand/Tranche Managing Underwriters determine that the
sale of such Demand Registrable Securities or Tranche Registrable Securities
would significantly and adversely affect the market price of the Common Stock
(a “Demand/Tranche Market Cut-Back”).  If Intel Capital disapproves of the terms of
any proposed underwritten offering under a Demand Registration Statement or a
Shelf Registration Statement (including, without limitation, any reduction in
the number of Demand Registrable Securities or Tranche Registrable Securities,
as the case may be, to be sold by Intel Capital thereunder pursuant to this
Section 4.4(d)), Intel Capital may elect to withdraw therefrom by written
notice to Micron and the Demand/Tranche Managing Underwriters. Any Demand
Registrable Securities excluded or withdrawn from such underwriting shall also
be withdrawn from any applicable Demand Registration Statement.


 


(e)                                  Notwithstanding
any other provisions of this Agreement, in the event that Micron receives a
Demand Request, Shelf Request or Tranche Request at a time when Micron
(i) shall have filed, or has a bona fide intention to promptly file, a
registration statement with respect to a proposed public offering of equity or
equity-linked securities or (ii) has commenced, or has a bona fide
intention to promptly commence, a public offering of equity or equity-linked
securities pursuant to an existing effective shelf or other registration
statement, then Micron shall be entitled to suspend, for a period of up to
ninety (90) days after the receipt by Micron of such Demand Request, Shelf
Request or Tranche Request, the filing of any Demand Registration Statement or
Shelf Registration Statement or the implementation of any Tranche Request.


 


(f)                                    Notwithstanding
any other provision of this Agreement, in the event that Micron determines
that: (i) non-public material information regarding Micron exists, the
immediate disclosure of which would be significantly disadvantageous to Micron;
(ii) the prospectus constituting a part of any Demand Registration
Statement or Shelf Registration Statement covering the distribution of any
Demand Registrable Securities or Tranche Securities contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) an
offering of Demand Registrable Securities or Tranche Registrable Securities
would materially interfere with any proposed material acquisition, disposition
or other similar corporate transaction or event involving Micron (each of the
events or conditions referred to in clauses (i), (ii) and (iii) of
this sentence is hereinafter referred to as a “Suspension
Condition”), then Micron shall have the right to suspend the filing
or effectiveness of any Demand Registration Statement or Shelf Registration
Statement or to suspend any distribution of Demand Registrable Securities or
Tranche Registrable Securities pursuant to any effective Demand Registration
Statement or Shelf Registration Statement for so long as such Suspension
Condition exists. Micron will as promptly as practicable provide written notice
to Intel Capital when a Suspension Condition arises and when it ceases to
exist. Upon receipt of notice from Micron of the existence of any Suspension
Condition, Intel Capital shall forthwith discontinue efforts to: (i) file
or cause any Demand Registration Statement or Shelf Registration


 


16

















 


Statement to be declared
effective by the SEC (in the event that such Demand Registration Statement or
Shelf Registration Statement has not been filed, or has been filed but not
declared effective, at the time Intel Capital receives notice that a Suspension
Condition has arisen); or (ii) offer or sell Demand Registrable Securities
or Tranche Registrable Securities (in the event that such Demand Registration
Statement or Shelf Registration Statement has been declared effective at the
time Intel Capital receives notice that a Suspension Condition has
arisen).  In the event that Intel
Capital had previously commenced or was about to commence the distribution of
Demand Registrable Securities or Tranche Registrable Securities pursuant to a
prospectus under an effective Demand Registration Statement or Shelf
Registration Statement, then Micron shall, as promptly as practicable after the
Suspension Condition ceases to exist, make available to Intel Capital (and to
each underwriter, if any, participating in such distribution) an amendment or
supplement to such prospectus. If so directed by Micron, Intel Capital shall
deliver to Micron all copies, other than permanent file copies then in Intel
Capital’s possession, of the most recent prospectus covering such Demand
Registrable Securities or Tranche Registrable Securities at the time of receipt
of such notice.


 


(g)                                 Notwithstanding
any other provision of this Agreement, Micron shall not be permitted to
postpone (i) the filing or effectiveness of any Demand Registration
Statement or Shelf Registration Statement or (ii) the distribution of any
Demand Registrable Securities or Tranche Registrable Securities pursuant to an
effective Demand Registration Statement or an effective Shelf Registration
Statement pursuant to Sections 4.4(e), 4.4(f) or 4.9(a) hereof for an aggregate
of more than one hundred thirty-five (135) days in any one hundred eighty day
(180) day period (including any market standoff periods applicable to Intel
Capital pursuant to Section 4.9(a) hereof).


 


(h)                                 Micron
shall promptly notify Intel Capital of any stop order issued or, to Micron’s
knowledge, threatened to be issued by the SEC with respect to any Demand
Registration Statement or Shelf Registration Statement as to which a Tranche
Request is pending, and will use its best efforts to prevent the entry of such
stop order or to remove it if entered at the earliest possible date.


 


(i)                                     Micron
shall furnish to Intel Capital (and any underwriters in connection with any
underwritten offering) such number of copies of any prospectus (including any
preliminary prospectus and any amended or supplemented prospectus), in
conformity with the requirements of the Securities Act, as Intel Capital (and
such underwriters) shall reasonably request in order to effect the offering and
sale of any Demand Registrable Securities or Tranche Registrable Securities to
be offered and sold, but only while Micron shall be required under the
provisions hereof to cause the Demand Registration Statement or Shelf
Registration Statement pursuant to which such Demand Registrable Securities or
Tranche Registrable Securities are intended to be distributed to remain
current.


 


(j)                                     Micron
shall use commercially reasonable efforts to register or qualify the Demand
Registrable Securities and Tranche Registrable Securities covered by each
Demand Registration Statement and Shelf Registration Statement, respectively,
under the state securities or “blue sky” laws of such states as Intel Capital
shall reasonably request, maintain any such registration or qualification
current, until the earlier to occur of: (i) the sale or other disposition
of the Registrable Securities so registered; (ii) (X) in the case of a
firmly committed,


 


17

















 


underwritten offering, sixty
(60) days after (A) if pursuant to a Demand Registration Statement, the
effective date of any Demand Registration Statement or (B) if pursuant to
a Tranche Request, the date of the final prospectus used to confirm sales in
connection with the underwritten offering of Tranche Registrable Securities,
and (Y) in the case of all other plans of distribution, (A) if pursuant to
a Demand Registration Statement, thirty (30) business days after the effective
date of such Demand Registration Statement or (B) if pursuant to a Tranche
Request, thirty (30) business days after the earlier of the effectiveness of
the amendment to the Shelf Registration Statement or the filing of the
amendment or supplement to the prospectus included in such registration
statement required to facilitate such distribution and the date of the notice
required by the last sentence of Section 4.4(a) hereof if no such
amendment or supplement is so required; and (iii) the termination of Intel
Capital’s registration rights pursuant to Section 4.10 hereof; provided, however, that Micron shall not
be required to take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is not so subject or
to qualify as a foreign corporation in any jurisdiction where Micron is not so
qualified.


 


(k)                                  Micron
shall furnish to Intel Capital and to each underwriter engaged in an
underwritten offering of Demand Registrable Securities or Tranche Registrable
Securities, a signed counterpart, addressed to Intel Capital or such
underwriter, of (i) an opinion or opinions of counsel to Micron (with
respect to Micron and securities law compliance by Micron) and (ii) a
comfort letter or comfort letters from Micron’s independent public accountants,
each in customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as Intel Capital or
the managing underwriters may reasonably request.


 


(l)                                     Micron
shall use commercially reasonable efforts to make appropriate members of its
management reasonably available for due diligence purposes, “road show”
presentations and analyst presentations in connection with any distributions of
Demand Registrable Securities or Tranche Registrable Securities pursuant to a
Demand Registration Statement or a Shelf Registration Statement.


 


(m)                               Micron
shall use commercially reasonable efforts to cause all Demand Registrable
Securities and Tranche Registrable Securities to be listed on each securities
exchange on which similar securities of Micron are then listed.


 


(n)                                 Micron
shall make generally available to its securityholders, as soon as reasonably
practicable, an earnings statement covering a period of twelve (12) months,
beginning three months after the effective date of any Demand Registration
Statement relating to the distribution of Demand Registrable Securities or the
date of any final prospectus used to confirm sales in connection with any
offering of Tranche Registrable Securities, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.


 


(o)                                 Micron
shall take all such other actions either reasonably necessary or desirable to
permit the Registrable Securities held by Intel Capital to be registered and
disposed of in accordance with the methods of disposition described herein.


 


18

















 


4.5                                 Expenses.


 


(a)                                  All
of the out-of-pocket costs and expenses incurred by Micron in connection with
any registration pursuant to Sections 4.1 and 4.2 (up to $100,000 in the
case of a Demand Registration Statement, $75,000 in the case of a Shelf
Registration Statement and $50,000 in the case of any amendments or supplements
required in connection with a Tranche Request, plus, in all instances, the
actual amount of any filing fees) shall (subject to Section 4.7) be borne
by Intel Capital; provided that Intel Capital shall not be required to
reimburse Micron for compensation of Micron’s officers and employees, regular
audit expenses, and normal corporate costs incurred in connection with such
registration.  The costs and expenses of
any such registration shall include, without limitation, the reasonable fees
and expenses of Micron’s counsel and its accountants and all other
out-of-pocket costs and expenses of Micron incident to the preparation,
printing and filing of the registration statement and all amendments and
supplements thereto and the cost of furnishing copies of each preliminary
prospectus, each final prospectus and each amendment or supplement thereto to
underwriters, dealers and other purchasers of the securities so registered, the
costs and expenses incurred in connection with the qualification of such
securities so registered under the securities or “blue sky” laws of various
jurisdictions, the fees and expenses of Micron’s transfer agent and all other
costs and expenses of complying with the provisions of this Section 4 with
respect to such registration (collectively, the “Registration Expenses”).


 


(b)                                 Micron
shall pay all Registration Expenses incurred by Micron in connection with any
registration statements that are initiated pursuant to Section 4.3 of this
Agreement, other than incremental filing fees associated with the inclusion of
the Registrable Securities in the registration statement.  Intel Capital shall pay all expenses
incurred on its behalf with respect to any registration pursuant to
Section 4.3, including, without limitation, any counsel for Intel Capital
and all underwriting discounts and selling commissions with respect to the
Registrable Securities sold by it pursuant to such registration statement.


 


4.6                                 Indemnification.


 


(a)                                  In
the case of any offering registered pursuant to this Section 4, Micron
hereby indemnifies and agrees to hold harmless Intel Capital (and its officers
and directors), any underwriter (as defined in the Securities Act) of
Registrable Securities offered by Intel Capital, and each Person, if any, who
controls Intel Capital or any such underwriter within the meaning of
Section 15 of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which any such Persons may be subject, under
the Securities Act or otherwise, and to reimburse any of such Persons for any
legal or other expenses reasonably incurred by them in connection with
investigating any claims or defending against any actions, insofar as such
losses, claims, damages or liabilities arise out of or are based upon
(a) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement under which such Registrable Securities
were registered under the Securities Act pursuant to this Section 4, the
prospectus contained therein (during the period that Micron is required to keep
such prospectus current), or any amendment or supplement thereto, or the
omission or alleged omission to state therein (if so used) a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances in which they were made, not misleading or
(b) any violation or alleged violation by Micron of the Securities Act,
the Exchange Act, any


 


19

















 


federal or state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any federal or state securities law in connection with the offering
covered by such registration statement, except insofar as such losses, claims,
damages or liabilities arise out of or are (i) based upon any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon information furnished to Micron in writing by Intel Capital or any
underwriter for Intel Capital specifically for use therein, or (ii) made
in any preliminary prospectus, and the prospectus contained in the registration
statement as declared effective or in the form filed by Micron with the SEC
pursuant to Rule 424 under the Securities Act shall have corrected such
statement or omission and a copy of such prospectus shall not have been sent or
otherwise delivered to such Person at of prior to the confirmation of such sale
to such Person.


 


(b)                                 By
requesting registration under this Section 4, Intel Capital agrees, if
Registrable Securities held by Intel Capital are included in the securities as
to which such registration is being effected, and each underwriter shall agree,
in substantially the same manner and to substantially the same extent as set
forth in the preceding paragraph, to indemnify and to hold harmless Micron (and
its directors and officers) and each Person, if any, who controls Micron within
the meaning of Section 15 of the Securities Act against any losses,
claims, damages or liabilities, joint or several, to which any, of such Persons
may be subject under the Securities Act or otherwise, and to reimburse any of
such Persons for any legal or other expenses reasonably incurred by them in
connection with investigating or defending against any such losses, claims,
damages or liabilities, but only to the extent it arises out of or is based
upon (a) an untrue statement or alleged untrue statement or omission or
alleged omission of a material fact in any registration statement under which
the Registrable Securities were registered under the Securities Act pursuant to
this Section 4, any prospectus contained therein, or any amendment or
supplement thereto, which was based upon and made in conformity with
information furnished to Micron in writing by Intel Capital or any underwriter
for Intel Capital expressly for use therein or (b) any violation or alleged
violation by Intel Capital of the Securities Act, the Exchange Act, any federal
or state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state securities law in
connection with the offering covered by such registration statement.


 


(c)                                  Each
party entitled to indemnification under this Section 4.6 (the “Indemnified Party”) shall give notice to
the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be approved
by the Indemnified Party (whose approval shall not be unreasonably withheld),
and the Indemnified Party may participate in such defense at its own expense,
provided, that that an Indemnified Party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the Indemnifying Party, to
the extent that representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential conflict of interests between such Indemnified Party and any other
party represented by such counsel in such proceeding, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under this Section 4
unless such failure resulted in actual material detriment to the Indemnifying
Party. No Indemnifying Party, (i) in the defense of any such claim or
litigation, shall, except with the


 


20

















 


consent of each Indemnified
Party, which consent shall not be unreasonably withheld, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation, or (ii) shall be liable for amounts paid in any settlement if
such settlement is effected without the consent of the Indemnifying Party,
which consent shall not be unreasonably withheld.


 


(d)                                 In
order to provide for just and equitable contribution to joint liability under
the Securities Act or the Exchange Act in any case in which either (i) any
Person exercising rights under this Agreement, or any controlling person of any
such Person, makes a claim for indemnification pursuant to this Section 4
but it is judicially determined (by the entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal)                      that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 4 provides for indemnification in such case, or
(ii) contribution under the Securities Act or the Exchange Act may be
required on the part of any such selling Person or any such controlling Person
in circumstances for which indemnification is provided under this
Section 4; then, and in each such case, Micron and such Person will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that such
Person is responsible for the portion represented by the percentage that the
public offering price of its Registrable Securities offered by and sold under
the registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and Micron and other
selling Persons are responsible for the remaining portion; provided, however, that in any such case:
(A) no such Person will be required to contribute any amount in excess of
the public offering price of all such Registrable Securities offered and sold
by such Person pursuant to such registration statement; and (B) no Person
or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from
any Person or entity who was not guilty of such fraudulent misrepresentation.


 


4.7                                 Issuances by Micron or Other Holders.
As to each registration or distribution referred to in Sections 4.1 and 4.2,
additional shares of the Common Stock to be sold for the account of Micron or
other holders may be included therein, provided that the inclusion of such
securities in such registration or distribution may be conditioned or
restricted if, in the opinion of the Demand/Tranche Managing Underwriters,
marketing factors require a limitation of the number of shares to be
underwritten. The Registration Expenses incurred by Micron, Intel Capital and
any other holders participating in such registration or distribution shall be
borne by Micron, Intel Capital and any other holders participating in such
registration or distribution in proportion to the aggregate number of shares to
be sold by Micron, Intel Capital and such other holders.


 


4.8                                 Information by Intel Capital.  Intel Capital shall furnish to Micron such
information regarding Intel Capital in the distribution of Registrable
Securities proposed by Intel Capital as Micron may reasonably request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 4.


 


21

















 


4.9                                 Market Standoff Agreements.


 


(a)                                  In
connection with the public offering by Micron of any of its securities, Intel
Capital agrees that, upon the request the underwriters managing any
underwritten offering of Micron securities, Intel Capital shall agree in
writing (the “Intel Capital Public Offering
Lock-Up”) that neither Intel Capital (nor any Affiliate of Intel
Capital) will, directly or indirectly, offer to sell, contract to sell, make
any short sale of, or otherwise sell, dispose of, loan, gift, pledge or grant
any options or rights with respect to, any securities of Micron (other than
those included in such registration statement, if any) now or hereafter
acquired by Intel Capital (or any Affiliate of Intel Capital) or with respect
to which Intel Capital (or any Affiliate of Intel Capital) has or hereafter
acquires the power of disposition without the prior written consent of Micron)
and such underwriters for such period of time (not to exceed fourteen (14) days
prior to the date such offering is expected to commence and ninety (90) days
after the date of the final prospectus delivered to the underwriters for use in
confirming sales in such offering) as may be requested by Micron and the
underwriters, except that Intel Capital and its Affiliates shall be permitted
to enter into transactions that have the effect of maintaining or continuing
pre-existing Hedging Transaction positions by continuing, renewing or replacing
any such positions on substantially equivalent terms; provided, however, that in no event shall
Intel Capital (or any Affiliate of Intel Capital) be required to enter into
such an agreement more than once during any twelve (12) month period.  Intel Capital agrees that Micron may
instruct its transfer agent to place stop-transfer notations in its records to
enforce the provisions of the Intel Capital Public Offering Lock-Up contained
in this Section 4.9(a).


 


(b)                                 In
connection with any proposed public offering by Intel Capital of any
Registrable Securities, Micron agrees that, upon the request of Intel Capital
or the underwriters managing any underwritten offering of Intel Capital’s
securities, Micron shall agree in writing the (“Micron Public Offering Lock-Up”) that neither Micron (nor any
Affiliate of Micron) will, directly or indirectly, offer to sell, contract to
sell, make any short sale of, or otherwise sell, dispose of, loan, gift, pledge
or grant any options or rights with respect to, any securities of Micron (other
than those included in such registration statement, if any, or grants of stock
options or issuances of Common Stock upon the exercise of outstanding stock
options under Micron’s existing employee benefit plans) now or hereafter
acquired by Micron (or any Affiliate of Micron) or with respect to which Micron
(or any Affiliate of Micron) has or hereafter acquires the power of disposition
without the prior written consent of Intel Capital and such underwriters for
such period of time (not to exceed fourteen (14) days prior to the date such
offering is expected to commence and ninety (90) days) after the date of the
final prospectus delivered to the underwriters for use in confirming sales in
such offering) as may be requested by Intel Capital and the underwriters; provided, however,  that neither Micron (nor any Affiliate of
Micron) shall be bound by such Micron Public Offering Lock-Up more than once
during any 180-day period.


 


4.10                           Termination.


 


(a)                                  The
provisions of this Section 4 (other than Sections 4.5 and 4.6) shall
terminate upon the earliest to occur of: (i) the fifth anniversary date of
this Agreement, (ii) such time as Intel Capital (and any Affiliates of
Intel Capital) beneficially own in the aggregate less than 5,000,000 shares of
Common Stock (including all Shares issuable upon exercise, exchange or


 


22

















 


conversion of Rights and any
Additional Adjustment Rights), and (iii) in the case of Sections 4.1
through 4.4, Section 4.7 and Section 4.8, the end of a period of
twenty (20) consecutive trading days commencing any time after August 29,
2004 during which on each such trading day Intel Capital would have been
permitted to sell under either (x) the volume limitations of Rule 144(e)
(assuming satisfaction of the holding period required under Rule 144(d) (1)),
or (y) under Rule 144(k), as applicable, a number of shares of Common Stock at
least equal to 110% of the shares of Common Stock underlying the Rights
acquired by Intel Capital pursuant to the Securities Purchase Agreement (and
any Additional Adjustment Rights) that it continued to own on such trading day
(assuming compliance by Intel Capital with all other applicable requirements of
Rule 144, including the notice and manner of sale requirements set forth in
Rule 144(f) and (h), respectively).


 


(b)                                 Notwithstanding
any termination of Section 4 pursuant to the provisions of
subsection (a) of this Section 4.10, if Additional Adjustment Rights
are issued to Intel Capital or its Affiliates, the provisions of this
Section 4 shall remain effective, or become effective if previously
terminated pursuant to subsection (a) above, as of the date of the
issuance (the “Issuance Date”) of such
Additional Adjustment Rights, with respect to such Additional Adjustment Rights
and the underlying Common Stock.  The
provisions of this Section 4 (other than Sections 4.5 and 4.6) shall
terminate with respect to the Additional Adjustment Rights and the underlying
Common Stock upon the earliest to occur of: (i) the fifth anniversary of
the Issuance Date, and (ii) such time that all Registrable Securities held
by and issuable to Intel Capital (and any Affiliates of Intel Capital) may be
sold in a three-month period under Rule 144.


 


SECTION 5

MISCELLANEOUS


 


5.1                                 Governing
Law. This Agreement shall be governed in all respects by the laws of
the State of Delaware as applied to contracts entered into solely between
residents of, and to be performed entirely within, such state.


 


5.2                                 Successors and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.  This Agreement may not be assigned by a party without the prior
written consent of the other party; provided
that, without the consent of Micron, Intel Capital may assign this
Agreement (and the rights and obligations hereunder) to any Qualified
Subsidiary or Parent in connection with a transfer of Voting Securities of
Micron to such Affiliate of Intel Capital pursuant to Section 3.1(b), and
without the consent of Intel Capital, Micron may assign all or part of this
Agreement (and the rights and obligations hereunder) to the successor or an
assignee of all or substantially all of Micron’s business; provided that, in
each case, such assignee expressly assumes the relevant obligations of this
Agreement (by a written instrument delivered to the other party, in form and
substance reasonably acceptable to it) and, notwithstanding such assignment,
the parties hereto shall each continue to be bound by all of their respective
obligations hereunder. This Agreement is not intended and shall not be
construed to create any rights or remedies in any parties other than Intel
Capital and Micron and no Person shall assert any rights as third party
beneficiary hereunder.


 


23

















 


5.3                                 Entire Agreement; Amendment.
This Agreement contains the entire understanding and agreement between the
parties with regard to the subject matter hereof and thereof and supersedes all
prior agreements and understandings among the parties relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the party against whom enforcement of any such amendment, waiver, discharge or
termination is sought.


 


5.4                                 Notices and Dates.


 


(a)                                  All
notices, requests, demands, and other communications under this Agreement shall
be in writing and shall be delivered personally (including by courier) or given
by facsimile transmission to the parties at the following addresses (or to such
other address as a party may have specified by notice given to the other
pursuant to this provision) and shall be deemed given when so received:


 


if to Micron,
to:


 


Micron
Technology, Inc.


8000 South
Federal Way


P.O. Box 6


Boise,
Idaho  83716-9632


Attention:                 Roderic W. Lewis,
Esq.

General Counsel


Facsimile:                    (208) 368-4540


 


 


with a copy
to:


 


Wilson Sonsini Goodrich &
Rosati

650 Page Mill Road

Palo Alto, California  94304

Attention:                 John
A. Fore, Esq.

Facsimile:                    (650) 493-6811


 


if to Intel Capital, to:


 


Intel Capital Corporation

c/o Intel Corporation

Attn: Intel Capital Portfolio Manager

2200 Mission College Blvd., M/S RN6-46

Santa Clara, California 95052

Facsimile:                    (408)
765-6038


 


24

















 


with a copy by e-mail to:


 


portfolio.manager@intel.com


 


All such notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt. Each Person making a communication hereunder by facsimile shall
promptly confirm by telephone to the Person to whom such communication was
addressed each communication made by it by facsimile pursuant hereto but the
absence of such confirmation shall not affect the validity of any such
communication. A party may change or supplement the addresses given above, or
designate additional addresses, for purposes of this Section 5.4 by giving
the other party written notice of the new address in the manner set forth
above.


 


(b)                                 In
the event that any date provided for in this Agreement falls on a Saturday,
Sunday or legal holiday, such date shall be deemed extended to the next
business day.


 


5.5                                 Language Interpretation. In the
interpretation of this Agreement, unless the context otherwise requires, (a)
words importing the singular shall be deemed to import the plural and vice
versa, (b) words denoting gender shall include all genders, (c) references to Persons
shall include corporations or other entities and vice versa, and (d) references
to parties, sections, schedules, paragraphs and exhibits shall mean the
parties, sections, schedules, paragraphs and exhibits of and to this Agreement,
unless otherwise indicated by the context.


 


5.6                                 Table of Contents; Titles; Headings.
The table of contents and Section headings of this Agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement. All references herein to Sections, unless
otherwise identified, are to Sections of this Agreement.


 


5.7                                 Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement, and shall become a binding agreement
when one or more counterparts have been signed by each party and delivered to
the other party.


 


5.8                                 Severability.
If any provision of this Agreement or portion thereof is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.


 


5.9                                 Injunctive Relief. Intel Capital, on the
one hand, and Micron, on the other, acknowledge and agree that irreparable
damage may occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to seek
an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specific performance of the terms and provisions
hereof in any court of the United States or any state thereof having jurisdiction,
this being in addition to any other remedy to which they may be entitled at law
or equity.


 


25

















 


5.10                           Dispute
Resolution. The parties agree to negotiate in good faith to resolve any
dispute between them regarding this Agreement. If the negotiations do not
resolve the dispute to the reasonable satisfaction of both parties, then each
party shall nominate one senior officer of the rank of Vice President or higher
as its representative. These representatives shall, within thirty (30) days of
a written request by either party to call such a meeting, meet in person and
alone (except for one assistant for each party) and shall attempt in good faith
to resolve the dispute. If the disputes cannot be resolved by such senior
managers in such meeting, the parties agree that they shall, if requested in
writing by either party, meet within thirty (30) days after such written
notification for one day with an impartial mediator and consider dispute
resolution alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days after the one day
mediation, either party may begin litigation proceedings. This procedure shall
be a prerequisite before taking any additional action hereunder.


 


26

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date aforesaid.


 


 


	
  INTEL
  CAPITAL CORPORATION

  	
  MICRON
  TECHNOLOGY, INC.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  By:

  	
  /s/ Arvind Sodhani

  	
   

  	
  By:

  	
  /s/ W.G. Stover, Jr.

  	
   

  	 

	
   

  	
  Name: Arvind Sodhani

  	
   

  	
  Name: W.G. Stover, Jr.

  
	
   

  	
  Title: Vice President and Treasurer

  	
   

  	
  Title: 

  	
  Vice President of Finance and

  Chief Financial Officer

  	 

										



 


 


[Signature Page to Securities Rights and Restrictions Agreement]