EXHIBIT 10.139
MICRON TECHNOLOGY, INC.
1989 EMPLOYEE STOCK
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PURCHASE PLAN
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The following constitute the provisions of the 1989 Employee Stock Purchase
Plan of Micron Technology, Inc.:
1. Purpose. The purpose of the Plan is to provide employees of the
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Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the intention
of the Company to have the Plan qualify as an "Employee Stock Purchase Plan"
under Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. Definitions.
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(a) "Board" shall mean the Board of Directors of the Company.
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(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
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(c) "Common Stock" shall mean the Common Stock, $.10 no par value,
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of the Company.
(d) "Company" shall mean Micron Technology, Inc., a Delaware
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corporation.
(e) "Compensation" with respect to any Employee means such Employee's
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wages, salaries, fees for professional services and other amounts received for
personal services actually rendered in the course of employment with the Company
or its designated subsidiaries to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid to salesmen,
compensation for services on the basis of a percentage of profits, tips, and
bonuses).
Compensation shall exclude (a)(1) contributions made by the employer to a
plan of deferred compensation to the extent that, the contributions are not
includible in the gross income of the Employee for the taxable year in which
contributed, (2) employer contributions made on behalf of an Employee to a
simplified employee pension plan described in Code Section 408(k) to the extent
such contributions are excludable from the Employee's gross income, (3) any
distributions from a plan of deferred compensation; (b) amounts realized from
the exercise of a non-qualified stock option, or when restricted stock (or
property) held by an Employee either becomes freely transferable or is no longer
subject to substantial risk of forfeiture; (c) amounts realized from the sale,
exchange or other disposition of stock acquired under a qualified stock option;
(d) other amounts which receive special tax benefits, such as premiums for
group-term life insurance (but only to the extent that the premiums are not
includible in the gross income of
the employee), or contributions made by the employer (whether or not under a
salary reduction agreement) towards the purchase of any annuity contract
described in Code Section 403(b) (whether or not the contributions are actually
excludable from the Employee's gross income); (e) reimbursements or other
expense allowances; (f) fringe benefits (cash and noncash); (g) moving expenses;
and (h) welfare benefits.
(f) "Continuous Status as an Employee" shall mean the absence of any
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interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of a leave of absence
agreed to in writing by the Company, provided that such leave is for a period of
not more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute.
(g) "Designated Subsidiaries" shall mean the Subsidiaries which have
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been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(h) "Employee" shall mean any person, including an officer, who is
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continuously employed for at least twenty (20) hours per week and more than five
(5) months in a calendar year by the Company or one of its Designated
Subsidiaries; provided, however, that all employees of an Italian Designated
Subsidiary of the Company shall be considered "Employees" under the Plan,
without regard as to whether they are continuously employed for at least twenty
(20) hours per week or more than five (5) months in a calendar year by an
Italian Designated Subsidiary of the Company.
(i) "Enrollment Date" shall mean the first day of each Offering
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Period.
(j) "Exercise Date" shall mean the last day of each Offering Period
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of the Plan.
(k) "Offering Period" shall mean a period of three (3) months during
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which an option granted pursuant to the Plan may be exercised.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
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(m) "Subsidiary" shall mean a corporation, domestic or foreign, of
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which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
3. Eligibility.
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(a) Any Employee as defined in paragraph 2 who has been continuously
employed by the Company or any subsidiary of the Company for at least one (1)
consecutive month and who shall be employed by the Company on a given Enrollment
Date shall be eligible to participate in the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or of any subsidiary of the Company, or (ii) which permits his rights to
purchase stock under all employee stock purchase plans (described in Section 423
of the Code) of the Company and its subsidiaries to accrue at a rate which
exceeds Twenty-Five Thousand Dollars ($25,000) of fair market value of such
stock (determined at the time such option is granted) for each calendar year in
which such option is outstanding at any time.
4. Offering Periods. The Plan shall be implemented by consecutive
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Offering Periods with a new Offering Period commencing on or about January 1,
April 1, July 1, and October 1 of each year commencing on or about January 1,
1989 or, in the discretion of the committee, April 1, 1989, and continuing
thereafter until terminated in accordance with paragraph 20 hereof. Subject to
the shareholder approval requirements of paragraph 20, the Board of Directors of
the Company shall have the power to change the duration of offering periods with
respect to future offerings if such change is announced at least fifteen (15)
days prior to the scheduled beginning of the first offering period to be
affected.
5. Participation.
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(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the Company's payroll or
administrative office at least ten (10) business days prior to the applicable
Enrollment Date, unless a different time for filing the subscription agreement
is set by the Board for all eligible Employees with respect to a given Offering
Period.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in paragraph 11.
6. Payroll Deductions.
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(a) At the time a participant files his subscription agreement, he or
she shall elect to have payroll deductions made on each payday during the
Offering Period in an amount not less than one percent (1%) and not greater than
twenty percent (20%) of the Compensation which he or she received on the payday
immediately preceding the Enrollment Date, and the aggregate of such payroll
deductions during the Offering Period shall not exceed twenty percent (20%) of
his or her aggregate Compensation during said Offering Period.
(b) All payroll deductions made by a participant shall be credited to
his or her account under the Plan. A participant may not make any additional
payments into such account.
(c) A participant may discontinue his or her participation in the Plan
as provided in paragraph 11, but may not otherwise change, their rate of payroll
deductions during the Offering Period. A participant's subscription agreement
shall remain in effect for successive Offering Periods unless revised as
provided herein or terminated as provided in paragraph 11.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and paragraph 3(b) herein, a participant's
payroll deductions may be decreased to 0% at such time during any Offering
Period which is scheduled to end during the current calendar year that the
aggregate of all payroll deductions accumulated with respect to such Offering
Period and any other Offering Period ending within the same calendar year equal
$21,250. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in paragraph 11.
7. Grant of Option.
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(a) On the Enrollment Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period up to a number of
shares of the Company's Common Stock determined by dividing such Employee's
payroll deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the lower of (i) eighty-five
percent (85%) of the fair market value of a share of the Company's Common Stock
on the Enrollment Date or (ii) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Exercise Date; provided
that in no event shall an Employee be permitted to purchase during each Offering
Period more than a number of shares determined by dividing $6,250 by the fair
market value of a share of the Company's Common Stock on the Enrollment Date,
and provided further that such purchase shall be subject to the limitations set
forth in Section 3(b) and 13 hereof. Exercise of the option shall occur as
provided in Section 8, unless the participant has withdrawn pursuant to Section
11, and shall expire on the last day of the Offering Period. Fair market value
or a share of the Company's Common Stock shall be determined as provided in
Section 7(b) herein.
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 85% of the fair market value of a
share of the Common Stock of the Company on the Enrollment Date; or (ii) 85% of
the fair market value of a share of the Common Stock of the Company on the
Exercise Date. The fair market value of the Company's Common Stock on a given
date shall be determined by the Board in its discretion; provided, however that
where there is a public market for the Common Stock, the fair market value per
share shall be the closing price for the Company's Common Stock (or the closing
bid, if no sales were reported) as quoted on any established stock exchange,
including without limitation the New York Stock Exchange ("NYSE"), or a national
market system (or the exchange with the greatest volume of trading in Common
Stock) on the day of determination, as reported by Bloomberg, L.P. or such other
source as the Administrator deems reliable.
8. Exercise of Option. Unless a participant withdraws from the Plan as
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provided in paragraph 11, his or her option for the purchase of shares will be
exercised automatically on the
Exercise Date of the Offering Period, and the maximum number of full shares
subject to option will be purchased for him or her at the applicable option
price with the accumulated payroll deductions in his account. The shares
purchased upon exercise of an option hereunder shall be deemed to be transferred
to the participant on the Exercise Date. During his or her lifetime, a
participant's option to purchase shares hereunder is exercisable only by such
participant.
9. Restriction on Transfer of Shares. Effective April 1, 1993, shares
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purchased upon exercise of a participant's option may not be transferred by the
participant for a period of one (1) year from the Exercise Date. This transfer
restriction shall be earlier terminated in the event of a participant's
permanent disability or death, or upon the involuntary transfer of the shares
due to divorce, judicial declaration of insolvency or bankruptcy or other form
of involuntary transfer.
10. Delivery. Prior to April 1, 1993, as promptly as practicable after
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the Exercise Date of each Offering Period, the Company shall arrange the
delivery to each participant of a certificate representing the full shares
purchased upon exercise of the participant's option. Subsequent to April 1,
1993, immediately following the Exercise Date of each Offering Period, unless a
participant requests the issuance of a certificate representing the
participant's shares, the Company shall promptly record the participant's full
shares in book entry form. Upon request from a participant, or upon the
involuntary transfer of a participant's shares, the Company shall arrange for
the delivery to the participant of a certificate representing the full shares
purchased. Certificates issued upon a participant's request which are subject to
the transfer restriction referred to in paragraph 9 shall bear a legend in a
conspicuous place referencing the restriction. Any cash remaining to the credit
of a participant's account under the Plan after a purchase by the participant of
shares at the termination of each Offering Period, which is insufficient to
purchase a full share of Common Stock of the Company, shall be returned to said
participant or retained in the participant's account for the subsequent Offering
Period, as determined by the Company as to all participants for a given Offering
Period.
11. Withdrawal; Termination of Employment.
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(a) A participant may withdraw all but not less than all the payroll
deductions credited to such participant's account under the Plan at any time
prior to the Exercise Date of the Offering Period by giving written notice to
the Company in the form of Exhibit B to this Plan. All of the participant's
payroll deductions credited to his or her account will be paid to him or her
promptly after receipt of the notice of withdrawal and the participant's option
for the current Offering Period will be automatically terminated, and no further
payroll deductions for the purchase of shares will be made during the Offering
Period. If a participant withdraws from an Offering Period, payroll deductions
will not resume at the beginning of the succeeding Offering Period unless the
participant delivers to the Company a new subscription agreement as described in
Section 5(a).
(b) Upon termination of the participant's Continuous Status as an
Employee prior to the Exercise Date of the Offering Period for any reason,
including retirement or death, the payroll deductions credited to such
participant's account will be returned to him or her or, in the case of his or
her death, to the person or persons entitled thereto under paragraph 15, and
such participant's option will be automatically terminated.
(c) In the event an Employee fails to remain in Continuous Status as
an Employee of the Company for at least twenty (20) hours per week during the
Offering Period in which the Employee is a participant, he or she will be deemed
to have elected to withdraw from the Plan and the payroll deductions credited to
his or her account will be returned to him or her and the option terminated.
(d) A participant's withdrawal from an Offering Period will not have
any effect upon his or her eligibility to participate in a succeeding Offering
Period or in any similar plan which may hereafter be adopted by the Company.
12. Interest. No interest shall accrue on the payroll deductions of a
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participant in the Plan.
13. Stock.
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(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 9,250,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in paragraph 19. If the total number of shares which would otherwise be subject
to options granted pursuant to Section 7(a) hereof on the Enrollment Date of an
Offering Period exceeds the number of shares then available under the Plan
(after deduction of all shares for which options have been exercised or are then
outstanding), the Company shall make a pro rata allocation of the shares
remaining available for option grant in as uniform a manner as shall be
practicable and as it shall determine to be equitable. In such event, the
Company shall give written notice of such reduction of the number of shares
subject to the option to each participant affected thereby and shall similarly
reduce the rate of payroll deductions, if necessary.
(b) The participant will have no interest or voting right in shares
covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his or her spouse.
14. Administration. The Plan shall be administered by the Board of the
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Company or a committee of members of the Board appointed by the Board. The
administration, interpretation or application of the Plan by the Board or its
committee shall be final, conclusive and binding upon all participants. Members
of the Board who are eligible Employees are permitted to participate in the
Plan, provided that:
(a) Members of the Board who are eligible to participate in the Plan
may not vote on any matter affecting the administration of the Plan or the grant
of any option pursuant to the Plan.
(b) If a Committee is established to administer the Plan, no member of
the Board who is eligible to participate in the Plan may be a member of the
Committee.
15. Designation of Beneficiary.
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(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account under
the Plan in the event of such participant's death subsequent to the end of the
Offering Period but prior to delivery to him of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to the Exercise Date of the Offering Period.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may deliver such shares and/or
cash to the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
16. Transferability of Rights. Neither payroll deductions credited to a
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participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in paragraph 15 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds in accordance with paragraph 11.
17. Use of Funds. All payroll deductions received or held by the Company
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under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions.
18. Reports. Individual accounts will be maintained for each participant
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in the Plan. Statements of account will be given to participating Employees; on
no less than an annual basis, promptly following the Exercise Date, which
statements will set forth the amounts of payroll deductions, the per share
purchase price, the number of shares purchased and the remaining cash balance,
if any.
19. Adjustments Upon Changes in Capitalization. Subject to any required
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action by the shareholders of the Company, the number of shares of Common Stock
covered by each option under the Plan which has not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but have not yet been placed under option (collectively, the
"Reserves"), as well as the price per share of Common Stock covered by each
option under the Plan which has not yet been exercised, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common
Stock, or any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each option under the
Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Board determines, in the exercise of its sole discretion and in lieu
of such assumption or substitution, that the participant shall have the right to
exercise the option as to all of the optioned stock, including shares as to
which the option would not otherwise be exercisable. If the Board makes an
option fully exercisable in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify the participant that the option
shall be fully exercisable for a period of thirty (30) days from the date of
such notice, and the option will terminate upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves, as well as the price per share
of Common Stock covered by each outstanding option, in the event that the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any other
corporation.
20. Amendment or Termination. The Board of Directors of the Company may
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at any time terminate or amend the Plan. Except as provided in paragraph 19, no
such termination can affect options previously granted, nor may an amendment
make any change in any option theretofore granted which adversely affects the
rights of any participant, nor may an amendment be made without prior approval
of the shareholders of the Company (obtained in the manner described in
paragraph 22) if such amendment would:
(a) Increase the number of shares that may be issued under the Plan;
(b) Change the designation of the employees (or class of employees)
eligible for participation in the Plan; or
(c) Materially increase the benefits which may accrue to participants
under the Plan.
(d) In the event that the Board determines that the ongoing operation
of the Plan may result in unfavorable financial accounting consequences, the
Board may, in its discretion and, to the extent necessary or desirable, modify
or amend the Plan by means of the following to reduce or eliminate such
unfavorable accounting consequence including, but not limited to:
(i) altering the option price per share for any Offering Period,
including an Offering Period underway at the time of the change in Purchase
Price including an alteration of the option price under paragraph 7(b) to 85% of
the fair market value of a share of the Common Stock of the Company on the
Exercise Date (without a lookback to the fair market value on the Enrollment
Date); and
(ii) shortening any Offering Period so that Offering Period ends
on a new Exercise Date, including an Offering Period underway at the time of the
Board action.
Such modifications or amendments shall not require stockholder approval or
the consent of any Plan participants.
21. Notices. All notices or other communications by a participant to the
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Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
22. Shareholder Approval. Continuance of the Plan shall be subject to
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approval by the shareholders of the Company within twelve months before or after
the date the Plan is adopted. If such shareholder approval is obtained at a duly
held shareholders' meeting, it may be obtained by the affirmative vote of the
holders of a majority of the shares of the Company present or represented and
entitled to vote thereon, which approval shall be:
(a) (1) solicited substantially in accordance with Section 14(a) of
the Securities Act of 1934, as amended (the "Act") and the rules and regulations
promulgated thereunder, or (2) solicited after the Company has furnished in
writing to the holders entitled to vote substantially the same information
concerning the Plan as that which would be required by the rules and regulations
in effect under Section 14(a) of the Act at the time such information is
furnished; and
(b) obtained at or prior to the first annual meeting of shareholders
held subsequent to the first registration of Common Stock under Section 12 of
the Act.
In the case of approval by written consent, it must be obtained by the
unanimous written consent of all shareholders of the Company, or by written
consent of a smaller percentage of shareholders but only if the Board
determines, on the basis of advice of the Company's legal counsel, that the
written consent of such a smaller percentage of shareholders will comply with
all applicable laws and will not adversely affect the qualifications of the Plan
under Section 423 of the Code.
23. Conditions Upon Issuance of Shares. Shares shall not be issued with
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respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
24. Term of Plan. The Plan shall become effective upon the earlier to
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occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company as described in paragraph 22. It shall continue in
effect for a term of twenty (20) years unless sooner terminated under paragraph
20.