EXHIBIT 3.2
CERTIFICATE OF SIXTH AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
MICRON TECHNOLOGY, INC.
The undersigned, Steven R. Appleton, Chairman, Chief Executive Officer
and President of Micron Technology, Inc. a Delaware corporation, hereby
certifies that the following amendment to the Certificate of Incorporation of
Micron Technology, Inc. has been duly adopted in accordance with Section 242
of the General Corporation Law of the State of Delaware, as amended. Said
amendment was adopted by a resolution of the Board of Directors on November
23, 1998 which set forth the proposed amendment, declared its advisability and
directed that it be considered at the Company's Annual Meeting of
Shareholders. At the regularly scheduled 1998 Annual Meeting of Shareholders
duly held on January 14, 1999, after due notice thereof in accordance with
applicable law, a majority of the outstanding stock entitled to vote thereon
voted in favor of said amendment. Said amendment as adopted and approved
amends the first paragraph of Section 4 of the Certificate of Amendment to
read as follows:
4. (a) Shares Authorized. The total number of shares of stock
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which the corporation shall have the authority to issue is one billion thirty
two million (1,032,000,000), consisting of (i) one billion (1,000,000,000)
shares of Common Stock, par value $0.10 per share (the "Common Stock") and
(ii) thirty two million (32,000,000) shares of Class A Common Stock, par value
$0.10 per share (the "Class A Common Stock").
(b) Class A Common Stock.
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Section 1. Liquidation Rights. In the event of any voluntary or
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involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of each share of Class A Common Stock shall be
entitled to share ratably in any distribution of any of the assets or funds of
the Corporation to the holders of the Common Stock (each share of the Class A
Common Stock being treated as the number of shares of Common Stock into which
it could then be converted for such purpose).
Section 2. Transfer of Class A Common Stock. No person or entity holding
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shares of Class A Common Stock may transfer, sell, assign, devise or bequeath
any of such holder's interest in his or its Class A Common Stock, and the
Corporation and the transfer agent for the Class A Common Stock shall not
register the transfer of such shares of Class A Common Stock, whether by sale,
assignment, gift, devise, bequest, appointment or otherwise, except to a
Permitted Transferee (as defined below) of such holder. For purposes of this
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Section 2, the term "Permitted Transferee" with respect to any holder of Class
A Common Stock shall mean (i) the Corporation, (ii) a Qualified Subsidiary
(provided that if at any time such Qualified Subsidiary ceases to be a
Qualified Subsidiary such Class A Common Stock will automatically convert into
Common Stock pursuant to Section 3.b) or (iii) Intel Corporation.
Notwithstanding the foregoing, the provisions of this Section 2 do not
prohibit transfers that result in automatic conversion pursuant to Section
3.b, provided, that the transfer agent shall not register the transfer of such
shares of Class A Common Stock or the Common Stock into which they
automatically convert unless concurrently with such transfer, the certificate
representing such shares of Class A Common Stock to be so transferred shall be
surrendered and exchanged for a certificate
representing the applicable number of shares of Common Stock into which such
shares of Class A Common Stock are automatically converted by virtue of such
transfer.
Section 3. Conversion of Class A Common Stock.
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a. Voluntary Conversion. At any time and from time to time after the
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issuance of the Class A Common Stock, any holder of Class A Common Stock may
convert any or all of the shares of Class A Common Stock held by such holder
into shares of Common Stock at the then effective conversion ratio. The
conversion ratio at which shares of Common Stock shall be deliverable upon
conversion (the "Conversion Ratio") shall initially be one-for-one. Such
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initial Conversion Ratio shall be subject to adjustment, in order to adjust
the number of shares of Common Stock into which the Class A Common Stock is
convertible, as hereinafter provided.
b. Automatic Conversion. Each share of Class A Common Stock shall
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automatically be converted into shares of Common Stock at the then effective
Conversion Ratio upon the transfer by any holder of Class A Common Stock to a
person or entity who is not a Permitted Transferee of such holder.
c. Mechanics of Conversion. No fractional shares of Common Stock shall
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be issued upon conversion of the Class A Common Stock. In lieu of any fractional
shares to which the holder would otherwise be entitled, the Corporation shall
pay cash equal to such fraction multiplied by the then fair market value of
one share of Common Stock, as determined in good faith by the Board of
Directors. Before any holder of Class A Common Stock shall be entitled to
receive certificates for the shares of Common Stock issued upon conversion,
such holder shall surrender the certificate or certificates for such Class A
Common Stock, duly endorsed, at the principal office of the Corporation and
shall state therein his name or the name, or names, of his nominees in which
he wishes the certificate or certificates for shares of Common Stock to be
issued. No voluntary conversion shall be permitted unless and until the holder
shall submit to the Corporation either (i) evidence of compliance with the
filing and waiting period requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act") or (ii) a certificate of an
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officer of the holder that the conversion does not require any filing under
the HSR Act. The Corporation shall, as soon as practicable thereafter, issue
and deliver at such office to such holder of Class A Common Stock or to such
holder's nominee or nominees, a certificate or certificates for the number of
shares of Common Stock to which such holder or such holder's nominee shall be
entitled as aforesaid, together with cash in lieu of any fraction of a share.
Subject to the foregoing, in the case of automatic conversion under Section
3.b, such conversion shall be deemed to have been made immediately prior to
the close of business on the date of such automatic conversion and upon
surrender of the certificate representing the Class A Common Stock to be
converted in the case of a voluntary conversion pursuant to Section 3.a above
(the "Conversion Date"). The person or persons entitled to receive the shares
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of Common Stock issuable upon conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock on such date;
provided that the certificates representing the Class A Common Stock have been
duly endorsed for transfer and delivered to the Corporation or its transfer
agent.
d. Stock Splits, Mergers, etc. In case of any subdivision (by stock
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split, stock dividend or otherwise) of the Common Stock or any combination of
the Class A Common Stock (by reverse stock split or otherwise), the Conversion
Ratio shall be proportionately increased, and conversely in the case of
combination of the Common Stock (by reverse stock split or otherwise) or any
subdivision of the Class A Common Stock (by stock split, stock dividend or
otherwise), the Conversion Ratio shall be proportionately decreased, with such
adjustment to the Conversion Ratio to be effective immediately after the
opening of business on the day following the day which such subdivision or
combination, as the case may be, becomes effective. In case of any
reorganization, reclassification or change of shares of the Common Stock
(other than a change in par value or from par value to no par value as a
result of a subdivision or combination), or in the case of any consolidation
of the Corporation with one or more corporations or a merger of the
Corporation with another corporation (other than a consolidation or merger in
which the Corporation is the resulting or surviving corporation and which does
not result in any reclassification or change of outstanding shares of Common
Stock), provision shall be made so that each holder of a share of Class A
Common Stock shall have the right at any time thereafter as nearly as
practicable, so long as the conversion right hereunder with respect to such
share would exist had such event not occurred, to convert such share into the
kind and amount of shares of stock and other securities and properties
(including cash) receivable upon such reorganization, reclassification,
change, consolidation or merger by a holder of the number of shares of Common
Stock into which such shares of Class A Common Stock might have been converted
immediately prior to such reorganization, reclassification, change,
consolidation or merger. In the event of such a reorganization,
reclassification, change, consolidation or merger, effective provision shall
be made in the certificate of incorporation of the resulting or surviving
corporation or otherwise for the protection of the conversion rights of the
shares of Class A Common Stock that shall be applicable, as nearly as
reasonably may be, to any such other shares of stock and other securities and
property (including cash) deliverable upon conversion of shares of Common
Stock into which Class A Common Stock might have been converted immediately
prior to such event.
e. Special Conversion Adjustments. The number of shares of Common Stock
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receivable upon conversion of a share of Class A Common Stock shall be
adjusted in the event that the Corporation fails to achieve any one or more of
the Qualified Expenditures Milestone, the First Minimum Production Milestone
or the Second Minimum Production Milestone on the applicable milestone dates
in the manner described below. On or prior to twenty five (25) days after an
applicable milestone date, the Corporation shall deliver to Intel Corporation
a certificate of an executive officer of the Corporation certifying whether
the applicable milestone has been achieved, and if such milestone has not been
achieved, such additional data (including, but not limited to the amount of
Qualified Expenditures made and actual RDRAM production during the applicable
period) required to calculate the appropriate conversion adjustment. Upon
receipt of such certificate with the required information, Intel Corporation
shall have thirty (30) days in which to notify the Corporation in writing of
its irrevocable election to exercise a Special Conversion Adjustment. If Intel
Corporation has not provided an irrevocable written notice electing to
exercise a Special Conversion Adjustment within the such period, then no there
shall be no Special Conversion Adjustment with respect to the applicable
milestone. Except as specifically provided herein, the failure to exercise a
Special Conversion Adjustment with
respect to one milestone shall not impair Intel Corporation's ability to
exercise a Special Conversion Adjustment with respect to the failure to
achieve a different milestone.
f. Postponement of Milestone Dates; Modification of Milestones. (i) In
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the event that the Corporation's ability to achieve the Qualified Expenditure
Milestone by the Qualified Expenditures Milestone Date is significantly
impaired by events or circumstances outside of its control, such as Force
Majeure or limited availability of required equipment or materials, the
milestone date will be appropriately postponed.
(ii) In the event that any of the events specified in Section 7(f)(ii)
of the Stock Rights Agreement occur, the First Minimum Production Milestone or
the Second Minimum Production Milestone shall be either postponed or waived,
respectively, as appropriate. In addition, if on the Maximum FGI Date, the RDRAM
device finished goods inventory of the Corporation and its subsidiaries exceeds
the Maximum FGI, the Second Minimum Production Milestone will be modified, as
appropriate.
(iii) In the event of the occurrence of any of the foregoing events or
circumstances, as a result of which either a milestone date or milestone is to
be postponed, waived or modified, no Special Conversion Adjustment shall occur
as a result of the failure to achieve the applicable milestone by the
applicable milestone date, unless and until the Corporation and Intel
Corporation shall have agreed upon the appropriate postponement, waiver or
modification. Notwithstanding the above, upon such agreement, the Special
Conversion Adjustment shall be applied as of the agreed upon date,
notwithstanding that such agreement is reached after such date. If no
agreement can be reached, the dispute will be settled in accordance with
Section 8.12 of the Securities Purchase Agreement.
g. Failure to Achieve Qualified Expenditures Milestone. Subject to the
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provisions hereof:
(i) If the Corporation fails to make at least the Minimum
Qualified Expenditures on or prior to the Qualified Expenditures Milestone
Date, the Conversion Ratio shall be adjusted by multiplying the current
Conversion Ratio by a fraction, the numerator of which shall be the Initial
Purchase Price and the denominator of which shall be the greater of (i) the
average closing sales price on the New York Stock Exchange for the Common
Stock during the 20 trading day period ending two trading days prior to the
Qualified Expenditures Milestone Date, or (ii) 50% of the Initial Purchase
Price.
(ii) If the Corporation makes Qualified Expenditures of more than
the Minimum Qualified Expenditures but less than the Required Qualified
Expenditures on or prior to the Qualified Expenditures Milestone Date, the
Conversion Ratio shall be increased. The amount of the increase in the
Conversion Ratio (expressed as a decimal) shall be determined by first (w)
dividing the Initial Purchase Price by the greater of (i) the average closing
sales price on the New York Stock Exchange for the Common Stock during the 20
trading day period ending two trading days prior to the applicable milestone
date, or (ii) 50% of the Initial Purchase Price, then (x) subtracting 1.0 from
the result, then (y) multiplying this result by a fraction, the numerator of
which shall be (A) the Required Qualified Expenditures minus (B) the amount of
Qualified
Expenditures and the denominator of which shall be the Required Qualified
Expenditures, and (z) dividing the result by 2. The new Conversion Ratio shall
then be the result of the above calculation plus the prior Conversion Ratio.
h. Failure to Achieve First Minimum Production Milestone. Subject to
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the provisions hereof, if the Corporation fails to achieve the First Minimum
Production Milestone, the increase in the Conversion Ratio (expressed as a
decimal) shall be determined by first (w) dividing the Initial Purchase Price
by the greater of (i) the average closing sales price on the New York Stock
Exchange for the Common Stock during the 20 trading day period ending two
trading days prior to the applicable milestone date, or (ii) 50% of the
Initial Purchase Price, then (x) subtracting 1.0 from the result, then (y)
multiplying this result by a fraction, the numerator of which shall be the
First Minimum Production Milestone for the quarter minus the actual RDRAM
production achieved during the quarter and the denominator of which shall be
the First Minimum Production Milestone for the quarter, and (z) dividing the
result by 2. The new Conversion Ratio shall then be the result of the above
calculation plus the prior Conversion Ratio.
i. Failure to Achieve Second Minimum Production Milestone. Subject to
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the provisions hereof, if the Corporation fails to achieve the Second Minimum
Production Milestone the increase in the Conversion Ratio (expressed as a
decimal) shall be determined by first (w) dividing the Initial Purchase Price
by greater of (A) the average closing sales price on the New York Stock
Exchange for the Common Stock during the 20 trading day period ending two
trading days prior to the applicable milestone date, or (ii) 50% of the
Initial Purchase Price, then (x) subtracting 1.0 from the result, then (y)
multiplying this result by a fraction, the numerator of which shall be the
Second Minimum Required Production for the quarter minus the actual RDRAM
production achieved during the quarter and the denominator of which shall be
the Second Minimum Required Production for the quarter and (z) dividing the
result by 2. The new Conversion Ratio shall then be the result of the above
calculation plus the prior Conversion Ratio.
j. Multiple Special Conversion Adjustments; Prior Adjustments. If more
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than one Special Conversion Adjustment occurs hereunder (or comparable
adjustments under the Stock Rights Agreement ("Rights Special Conversion
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Adjustments"), subsequent Special Conversion Adjustments shall be calculated
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as provided herein, but only the number of additional shares in excess of the
number issuable using the Initial Conversion Ratio (as defined in this Section
3.j) (appropriately adjusted to reflect the effect of any stock splits,
reclassifications, stock dividends, recapitalizations, combinations or other
similar events affecting the Common Stock occurring after the creation of the
Class A Common Stock), shall be issuable in respect of such subsequent Special
Conversion Adjustment upon conversion of the Class A Common Stock. For
purposes of this Section 3.j, the "Initial Conversion Ratio" will be one-to-
one (appropriately adjusted to reflect the effect of any stock splits,
reclassifications, stock dividends, recapitalizations, combinations or other
similar events affecting the Common Stock occurring after the creation of the
Class A Common Stock), provided, however, that in the event of the occurrence
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of a Rights Special Conversion Adjustment that resulted in an adjustment to
the Exchange Ratio in accordance with the provisions of the Stock Rights
Agreement prior to the creation of the Class A Common Stock, the Initial
Conversion Ratio shall be equal to a fraction, the numerator of
which shall be one (appropriately adjusted to reflect the effect of any stock
splits, reclassifications, stock dividends, recapitalizations, combinations or
other similar events affecting the Common Stock occurring after creation of
the Class A Common Stock), and the denominator of which shall be the exchange
ratio in effect under the Stock Rights Agreement immediately prior to the
creation of the Class A Common Stock. Notwithstanding anything else to the
contrary set forth herein, the Conversion Ratio shall not be adjusted for any
events, circumstances or milestones for which adjustments have been made (or
may be made as a result of completion of an audit or resolution of any dispute
as to the appropriate amount of an adjustment required thereunder) pursuant to
the Stock Rights Agreement.
k. Cash Option. In lieu of all or a portion of a Special Conversion
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Adjustment, the Corporation may elect to make a cash payment in respect of all
or a portion of the dollar amount of the Special Conversion Adjustment (such
election to be made within five (5) business days of Intel Corporation's
Special Conversion Adjustment election, and such amount shall be paid within
five (5) business days of the Corporation's election). The dollar amount in
respect of any Special Conversion Adjustment to be paid in cash shall be
calculated by multiplying the additional shares issuable to Intel Corporation
upon conversion of the Class A Common Stock following the Special Conversion
Adjustment by the average closing sales price on the New York Stock Exchange
for the Common Stock during the 20 trading day period ending two trading days
prior to the applicable milestone date.
l. Limitations on Special Conversion Adjustments. Anything in Sections
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3.h and 3.j to the contrary notwithstanding, no Special Conversion Adjustment
will be made for failure to achieve the First Minimum Production Milestone or
Second Minimum Production Milestone if a Special Conversion Adjustment
election pursuant to clause (i) of Section 3.g above is made by Intel
Corporation. In addition, anything in Sections 3.e through 3.j
notwithstanding, Special Conversion Adjustments will be limited, and not given
effect, to the extent required to ensure (1) that the value of additional
shares of Common Stock and other securities or property and any related
payments (including payments in lieu of adjustments pursuant to Section 3.k
hereof) issued or issuable or payable as a result of such adjustments,
together with any shares of Common Stock and other securities or property and
any related payments issued or issuable or payable as a result of the Special
Conversion Adjustments with respect to the Rights, does not exceed the Maximum
Adjustment Amount (with the value of such additional shares, securities and
property measured as of the milestone date with respect to the applicable
Special Conversion Adjustments resulting in such additional shares, securities
or property and any related payments, which, in the case of the Common Stock,
shall be based on the average closing sales price on the New York Stock
Exchange for the Common Stock during the 20 trading day period ending two
trading days prior to the milestone date corresponding to such Special
Conversion Adjustment); and (2) that the aggregate number of shares of Common
Stock issued or issuable upon exercise of Rights or upon conversion of Class A
Common Stock does not exceed the lesser of (i) the Maximum Percentage and (ii)
the Maximum Shares.
m. Existing Stock Certificates. Irrespective of any adjustments in the
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number or kind of shares issuable upon the conversion of the Class A Common
Stock, certificates representing Class A Common Stock theretofore or
thereafter issued may continue to express the same number and kind of shares
as are stated in the certificates initially issuable pursuant hereto.
n. Payment of Taxes. The Corporation will pay all documentary stamp
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taxes and other governmental charges (excluding all foreign, federal, state or
local income, franchise, property, net worth, capital, estate, inheritance,
gift or similar taxes) in connection with the issuance or delivery of the
Class A Common Stock, as well as all such taxes attributable to the initial
issuance or delivery of Common Stock upon the conversion of Class A Common
Stock. The Corporation shall not, however, be required to pay any tax that may
be payable in respect of any subsequent transfer of the Class A Common Stock
or any transfer involved in the issuance and delivery of Common Stock in a
name other than that in which the Class A Common Stock or Common Stock to
which such issuance relates were registered, and, if any such tax would
otherwise be payable by the Corporation, no such issuance or delivery shall be
made unless and until the person requesting such issuance has paid to the
Corporation the amount of any such tax, or it is established to the reasonable
satisfaction of the Corporation that any such tax has been paid.
o. Common Stock Reserved. The Corporation shall reserve and keep
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available out of its authorized but not outstanding Common Stock such number
of shares of Common Stock as shall, from time to time be, sufficient for
conversion of the Class A Common Stock.
Section 4. No Redemption. The Class A Common Stock shall not be
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redeemable.
Section 5. Voting Rights; Non-Voting Security. The holders of shares of
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Class A Common Stock shall have no voting rights except as provided in the
Certificate of Incorporation or by applicable law.
Section 6. Dividend Rights. In the event any dividend or other distribution
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payable in cash or other property is declared on the Common Stock (excluding
any dividend or other distribution for which adjustment to the Conversion
Ratio is provided by Section 3.d hereof), each holder of shares of Class A
Common Stock on the record date for such dividend or distribution shall be
entitled to receive on the date of payment or distribution of such dividend or
other distribution the same cash or other property which such holder would
have received if on such record date such holder was the holder of record of
the number (including for purposes of this Section 6 any fraction) of shares
of Common Stock into which the shares of Class A Common Stock then held by
such holder are then convertible.
Section 7. Certain Definitions; Interpretation.
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For purposes hereof the following terms shall have the meanings set
forth below.
First Minimum Production Milestone. The First Minimum Production
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Milestone shall have the meaning ascribed to such term in the Securities
Purchase Agreement.
First Minimum Required Production. First Minimum Required Production
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shall have the meaning ascribed to such term in the Securities Purchase
Agreement.
First Production Milestone Date. The First Production Milestone Date
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shall have the meaning ascribed to such term in the Securities Purchase
Agreement.
Force Majeure. Force Majeure shall mean an act of God, fire, flood,
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accident, riot war, government intervention, embargoes, strikes, labor
difficulties, equipment failure, late delivery of supplies, supplier shortages
or other difficulties which are beyond the reasonable control and without the
fault or negligence of a party whose performance has been affected.
Initial Purchase Price. Initial Purchase Price means $31.625,
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appropriately adjusted to reflect the effect of any stock splits,
reclassifications, stock dividends, recapitalizations, combinations or other
similar events affecting the Common Stock occurring after October 19, 1998.
Maximum Adjustment Amount. Maximum Adjustment Amount shall have the
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meaning ascribed to such term in the Securities Purchase Agreement.
Maximum FGI. Maximum FGI shall have the meaning ascribed to such term
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in the Securities Purchase Agreement.
Maximum FGI Date. Maximum FGI Date shall have the meaning ascribed to
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such term in the Securities Purchase Agreement.
Maximum Percentage. Maximum Percentage shall have the meaning
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ascribed to such term in the Securities Purchase Agreement.
Maximum Shares. Maximum Shares shall have the meaning ascribed to
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such term in the Securities Purchase Agreement.
Minimum Qualified Expenditures. Minimum Qualified Expenditures shall
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have the meaning ascribed to such term in the Securities Purchase Agreement.
Qualified Expenditures. Qualified Expenditures shall have the
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meaning ascribed to such term in the Securities Purchase Agreement.
Qualified Expenditures Milestone. The Qualified Expenditures Milestone
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means the expenditure of at least the Required Qualified Expenditures on or
before the Qualified Expenditures Milestone Date.
Qualified Expenditures Milestone Date. The Qualified Expenditures
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Milestone Date shall have the meaning ascribed to such term in the Securities
Purchase Agreement.
Qualified Subsidiary. Qualified Subsidiary shall have the meaning
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ascribed to such term in the Rights and Restrictions Agreement.
Rambus. Rambus means Rambus, Inc. , a Delaware corporation, and any
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successor to all or substantially all of Rambus Inc.'s business (by acquisition
or otherwise).
RDRAM. RDRAM shall have the meaning ascribed to such term in the
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Supply Agreement.
Required Qualified Expenditures. Required Qualified Expenditures
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shall have the meaning ascribed to such term in the Securities Purchase
Agreement.
Rights. Rights shall have the meaning ascribed to such term in the
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Stock Rights Agreement.
Rights and Restrictions Agreement. Rights and Restrictions
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Agreement shall mean that certain Securities Rights and Restrictions
Agreement, dated as of October 19, 1998, as amended from time to time, by and
between the Corporation and Intel Corporation.
Second Minimum Production Milestone. The Second Minimum Production
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Milestone shall have the meaning ascribed to such term in the Securities
Purchase Agreement.
Second Minimum Required Production. Second Minimum Required
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Production shall have the meaning ascribed to such term in the Securities
Purchase Agreement.
Second Production Milestone Date. The Second Production Milestone
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Date shall have the meaning ascribed to such term in the Securities Purchase
Agreement.
Securities Purchase Agreement. Securities Purchase Agreement shall
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mean that certain Securities Purchase Agreement, dated October 15, 1998, as
amended from time to time, by and between the Corporation and Intel
Corporation.
Special Conversion Adjustment. A Special Conversion Adjustment shall
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mean an adjustment to the number of shares of Common Stock receivable upon
conversion of Class A Common Stock, as provided in Section 3 hereof.
Stock Rights Agreement. Stock Rights Agreement shall mean that
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certain Stock Rights Agreement, dated as of October 19, 1998, as amended from
time to time, by and between the Corporation and Intel Corporation.
Supply Agreement. Supply Agreement shall mean that certain Supply
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Agreement, dated as of October 19, 1998, as amended from time to time, by and
between the Corporation and Intel Corporation.
Volume Production. Volume Production shall have the meaning ascribed
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to such term in the Securities Purchase Agreement.
IN WITNESS WHEREOF, this Certificate of Sixth Amendment to the
Certificate of Incorporation of Micron Technology, Inc. has been executed this
27th day of January, 1999.
/s/ Steven R. Appleton
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Steven R. Appleton, Chairman, Chief
Executive Officer and President