FORM 10-Q

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC  20549

 

 (Mark One)

 

Micron Technology, Inc.

(Exact name of registrant as specified in its charter)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes ý No o

 

Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).  Yes ý    No o

 

The number of outstanding shares of the registrant’s common stock as of July 12, 2004, was 611,481,449.

 

PART I.  FINANCIAL INFORMATION

 

Item 1.           Financial Statements

 

MICRON TECHNOLOGY, INC.

 

CONSOLIDATED STATEMENTS OF OPERATIONS

(Amounts in millions except per share amounts)

(Unaudited)

 

		Quarter ended						Nine months ended
		June 3, 2004			May 29, 2003			June 3, 2004			May 29, 2003
Net sales		$	1,116.8		$	732.7		$	3,215.0		$	2,202.8
Cost of goods sold		728.9			661.7			2,292.9			2,393.0
Gross margin		387.9			71.0			922.1			(190.2		)
Selling, general and administrative		94.3			87.2			257.3			276.0
Research and development		181.4			161.7			555.7			490.3
Restructure		(0.7		)	(5.4		)	(21.9		)	102.5
Other operating expense, net		3.2			11.2			6.7			21.9
Operating income (loss)		109.7			(183.7		)	124.3			(1,080.9		)
Interest income		3.5			3.9			10.8			15.0
Interest expense		(8.9		)	(12.2		)	(26.6		)	(24.9		)
Other non-operating income, net		0.6			1.0			2.2			3.7
Income (loss) before taxes		104.9			(191.0		)	110.7			(1,087.1		)
Income tax provision		(14.0		)	(23.9		)	(47.0		)	(62.9		)
Net income (loss)		$	90.9		$	(214.9	)	$	63.7		$	(1,150.0	)
Earnings (loss) per share:
Basic		$	0.14		$	(0.36	)	$	0.10		$	(1.90	)
Diluted		0.13			(0.36		)	0.10			(1.90		)
Number of shares used in per share calculations:
Basic		644.2			608.3			640.3			606.9
Diluted		705.4			608.3			645.1			606.9

 

See accompanying notes to consolidated financial statements.

 

1

 

MICRON TECHNOLOGY, INC.

 

CONSOLIDATED BALANCE SHEETS

(Amounts in millions except par value amounts)

(Unaudited)

 

As of		June 3, 2004			August 28, 2003
Assets
Cash and equivalents		$	329.1		$	570.3
Short-term investments		802.8			351.5
Receivables		769.7			642.5
Inventories		532.3			417.4
Prepaid expenses		32.9			27.7
Deferred income taxes		18.1			27.6
Total current assets		2,484.9			2,037.0
Intangible assets, net		280.3			289.6
Property, plant and equipment, net		4,613.0			4,510.5
Deferred income taxes		60.8			83.7
Restricted cash		127.5			125.2
Other assets		71.2			112.2
Total assets		$	7,637.7		$	7,158.2
Liabilities and shareholders’ equity
Accounts payable and accrued expenses		$	750.5		$	714.7
Deferred income		34.0			22.7
Equipment purchase contracts		82.7			166.7
Current portion of long-term debt		71.6			88.9
Total current liabilities		938.8			993.0
Long-term debt		1,036.6			997.1
Deferred income taxes		42.8			41.3
Other liabilities		110.0			89.3
Total liabilities		2,128.2			2,120.7
Commitments and contingencies
Redeemable common stock		—			66.5
Common stock, $0.10 par value, authorized 3.0 billion shares, issued and outstanding 610.6 million and 609.9 million shares		61.1			60.8
Additional capital		4,652.1			4,176.3
Retained earnings		796.6			733.8
Accumulated other comprehensive income (loss)		(0.3		)	0.1
Total shareholders’ equity		5,509.5			4,971.0
Total liabilities and shareholders’ equity		$	7,637.7		$	7,158.2

 

See accompanying notes to consolidated financial statements.

 

2

 

MICRON TECHNOLOGY, INC.

 

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Amounts in millions)

(Unaudited)

 

Nine months ended		June 3, 2004			May 29, 2003
Cash flows from operating activities
Net income (loss)		$	63.7		$	(1,150.0	)
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
Depreciation and amortization		908.2			911.1
Noncash restructure and other charges (benefits)		(34.8		)	82.2
Provision to write down inventories to estimated market values		—			302.8
Loss (gain) from write-down or disposition of equipment		(3.6		)	22.4
Loss (gain) from write-down or disposition of investments		0.6			(0.6		)
Change in operating assets and liabilities:
(Increase) decrease in receivables		(127.4		)	43.1
Increase in inventories		(114.1		)	(204.4		)
Increase (decrease) in accounts payable and accrued expenses		(19.6		)	71.4
Deferred income taxes		37.8			63.0
Other		32.8			31.3
Net cash provided by operating activities		743.6			172.3
Cash flows from investing activities
Purchases of available-for-sale securities		(1,456.8		)	(584.8		)
Expenditures for property, plant and equipment		(739.7		)	(674.0		)
Proceeds from maturities of available-for-sale securities		784.8			687.1
Proceeds from sales of available-for-sale securities		219.2			319.1
Proceeds from sales of property, plant and equipment		79.7			9.0
Decrease (increase) in restricted cash		1.7			(50.0		)
Other		(19.4		)	(27.6		)
Net cash used for investing activities		(1,130.5		)	(321.2		)
Cash flows from financing activities
Proceeds from issuance of stock rights		450.0			—
Proceeds from issuance of debt		63.5			667.5
Proceeds from equipment sale-leaseback transactions		37.6			60.6
Proceeds from issuance of common stock		25.6			45.0
Payments on equipment purchase contracts		(268.9		)	(123.4		)
Repayments of debt		(94.3		)	(92.8		)
Redemption of common stock		(67.5		)	—
Debt issuance costs		(0.3		)	(17.3		)
Purchase of call spread options		—			(109.1		)
Net cash provided by financing activities		145.7			430.5
Net increase (decrease) in cash and equivalents		(241.2		)	281.6
Cash and equivalents at beginning of period		570.3			398.2
Cash and equivalents at end of period		$	329.1		$	679.8
Supplemental disclosures
Income taxes refunded, net		$	4.5		$	105.2
Interest paid, net of amounts capitalized		(24.2		)	(19.0		)
Noncash investing and financing activities:
Equipment acquisitions on contracts payable and capital leases		211.6			250.4

 

See accompanying notes to consolidated financial statements.

 

3

 

MICRON TECHNOLOGY, INC.

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(All tabular amounts in millions except per share amounts)

(Unaudited)

 

Significant Accounting Policies

 

Basis of presentation:  Micron Technology, Inc. and its subsidiaries (hereinafter referred to collectively as the “Company”) manufacture and market DRAM, CMOS image sensors, Flash memory and other semiconductor components.  The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles and include the accounts of the Company and its consolidated subsidiaries.  All significant intercompany transactions and balances have been eliminated.  In the opinion of management, the accompanying unaudited consolidated financial statements contain all adjustments necessary to present fairly the consolidated financial position of the Company and its consolidated results of operations and cash flows.

 

The Company’s fiscal year is the 52 or 53-week period ending on the Thursday closest to August 31.  The Company’s fiscal 2004 contains 53 weeks and its first quarter of fiscal 2004 contained 14 weeks.  The Company’s third quarter of fiscal 2004 and 2003 ended on June 3, 2004, and May 29, 2003, respectively, and its fiscal 2003 ended on August 28, 2003.  All period references are to the Company’s fiscal periods unless otherwise indicated.  These interim financial statements should be read in conjunction with the consolidated financial statements and accompanying notes included in the Company’s Annual Report on Form 10-K for the year ended August 28, 2003.

 

Reclassifications:  Certain reclassifications have been made, none of which affected results of operations, to present the financial statements on a consistent basis.

 

Recently issued accounting standards:  In December 2003, the Financial Accounting Standards Board (“FASB”) issued a revised Interpretation No. 46, “Consolidation of Variable Interest Entities – an interpretation of ARB No. 51,” which provides guidance on the identification of and reporting for variable interest entities.  The Company adopted Interpretation No. 46 in the third quarter of 2004.  Adoption of Interpretation No. 46 did not have a significant impact on the Company’s results of operations or financial condition.

 

Segment information:  The Company has determined, based on the nature of its operations and products offered to customers, that its only reportable segment is Semiconductor Operations.  The Semiconductor Operations segment’s primary product is DRAM.

 

Stock-based compensation:  Employee stock plans are accounted for using the intrinsic value method prescribed by APB No. 25, “Accounting for Stock Issued to Employees.”  The Company utilizes the Black-Scholes option valuation model to value stock options for pro forma presentation of income and per share data as if the fair value based method in Statement of Financial Accounting Standards (“SFAS”) No. 123, “Accounting for Stock-Based Compensation,” had been used to account for stock-based compensation.  The following presents pro forma income (loss) and per share data as if a fair value based method had been used to account for stock-based compensation:

 

4

 

		Quarter ended						Nine months ended
		June 3, 2004			May 29, 2003			June 3, 2004			May 29, 2003
Net income (loss), as reported		$	90.9		$	(214.9	)	$	63.7		$	(1,150.0	)
Redeemable common stock accretion		—			(1.6		)	(0.5		)	(4.7		)
Redeemable common stock fair value adjustment		—			—			(0.4		)	—
Net income (loss) available to common shareholders		$	90.9		(216.5		)	62.8			(1,154.7		)
Stock-based employee compensation expense included in reported net income (loss)		0.0			0.3			0.0			0.1
Less total stock-based employee compensation expense determined under a fair value based method for all awards		(51.0		)	(77.9		)	(164.3		)	(217.6		)
Pro forma net income (loss) available to common shareholders		$	39.9		$	(294.1	)	$	(101.5	)	$	(1,372.2	)
Earnings (loss) per share:
Basic, as reported		$	0.14		$	(0.36	)	$	0.10		$	(1.90	)
Basic, pro forma		0.06			(0.48		)	(0.16		)	(2.26		)
Diluted, as reported		$	0.13		$	(0.36	)	$	0.10		$	(1.90	)
Diluted, pro forma		0.06			(0.48		)	(0.16		)	(2.26		)

 

Stock-based compensation expense in the above presentation does not reflect a benefit for income taxes, which is consistent with the Company’s treatment of income or loss from its U.S. operations.  (See “Income Taxes” note.)

 

Supplemental Balance Sheet Information

 

Receivables		June 3, 2004			August 28, 2003
Trade receivables		$	701.6		$	552.5
Joint venture		25.0			53.1
Taxes other than income		19.2			21.8
Income taxes		10.6			11.3
Other		17.7			8.6
Allowance for doubtful accounts		(4.4		)	(4.8		)
		$	769.7		$	642.5

 

Inventories		June 3, 2004			August 28, 2003
Finished goods		$	132.2		$	124.6
Work in process		305.3			211.3
Raw materials and supplies		110.7			102.9
Allowance for obsolescence		(15.9		)	(21.4		)
		$	532.3		$	417.4

 

In the fourth, third, second and first quarters of 2003, the Company recognized write-downs of $4.2 million,  $14.6 million, $197.4 million and $90.8 million, respectively, to record work in process and finished goods inventories at their estimated market values.

 

5

 

		June 3, 2004						August 28, 2003
Intangible Assets		Gross Amount			Accumulated Amortization			Gross Amount			Accumulated Amortization
Product and process technology		$	356.3		$	(144.7	)	$	328.1		$	(118.2	)
Joint venture supply arrangement		105.0			(40.1		)	105.0			(31.2		)
Other		5.3			(1.5		)	14.7			(8.8		)
		$	466.6		$	(186.3	)	$	447.8		$	(158.2	)

 

During the first nine months of 2004, the Company capitalized $28.8 million for product and process technology with a weighted average useful life of ten years.  During the first nine months of 2003, the Company capitalized $25.8 million for product and process technology and $2.5 million for other intangible assets with weighted average useful lives of ten and three years, respectively.

 

Amortization expense for intangible assets was $12.2 million and $38.0 million for the third quarter and first nine months of 2004, respectively, and $12.7 million and $38.3 million for the third quarter and first nine months of 2003, respectively.  Annual amortization expense is estimated to be $50.3 million for 2004, $48.5 million for 2005, $46.8 million for 2006, $44.9 million for 2007 and $44.2 million for 2008.

 

Property, Plant and Equipment		June 3, 2004			August 28, 2003
Land		$	109.0		$	106.4
Buildings		2,335.8			2,305.9
Equipment		7,098.6			6,488.2
Construction in progress		241.3			240.8
Software		216.8			205.1
		10,001.5			9,346.4
Accumulated depreciation		(5,388.5		)	(4,835.9		)
		$	4,613.0		$	4,510.5

 

Depreciation expense was $287.7 million and $869.4 million for the third quarter and first nine months of 2004, respectively, and $287.8 million and $872.2 million for the third quarter and first nine months of 2003, respectively.

 

The Company has manufacturing facilities in Virginia and Utah that are only partially utilized.  As of June 3, 2004, the Virginia and Utah facilities had net book values of $489.5 million and $769.1 million, respectively.  A portion of the Virginia facility is being used for 300 mm wafer fabrication and a portion of the Utah facility is being used for component test operations.  The Company is depreciating substantially all assets at the Virginia and Utah facilities other than $195.7 million of construction in progress in Utah as of June 3, 2004.  Increased utilization of these facilities is dependent upon market conditions, including, but not limited to, worldwide market supply of, and demand for, semiconductor products and the Company’s operations, cash flows and alternative capacity utilization opportunities.

 

Accounts Payable and Accrued Expenses		June 3, 2004			August 28, 2003
Accounts payable		$	390.8		$	340.8
Salaries, wages and benefits		147.5			116.9
Joint venture		55.5			102.5
Taxes other than income		16.7			23.8
Other		140.0			130.7
		$	750.5		$	714.7

 

6

 

Debt		June 3, 2004			August 28, 2003
Convertible subordinated notes payable, interest rate of 2.5%, due February 2010		$	631.5		$	632.5
Subordinated notes payable, face amount of $210.0 million and stated interest rate of 6.5%, due September 2005, with an effective yield to maturity of 10.7%, net of unamortized discount of $10.3 million and $15.8 million		199.7			194.2
Notes payable in periodic installments through July 2015, weighted average interest rate of 2.9% and 2.3%		193.2			192.9
Capital lease obligations payable in monthly installments through May 2008, weighted average imputed interest rate of 6.3% and 6.0%		83.8			66.4
		1,108.2			1,086.0
Less current portion		(71.6		)	(88.9		)
		$	1,036.6		$	997.1

 

As of June 3, 2004, notes payable and capital lease obligations of $111.3 million and $3.1 million, respectively, denominated in Japanese yen, were at weighted average interest rates of 1.3% and 1.8%, respectively.

 

Interest Rate Swap:  The Company entered into an interest rate swap agreement (the “Swap”) that effectively converted, beginning August 29, 2003, the fixed interest rate on the Company’s 2.5% Convertible Subordinated Notes (the “Notes”) to a variable interest rate based on the 3-month London Interbank Offering Rate (“LIBOR”) less 65 basis points (0.47% for the third quarter of 2004).  The Swap qualifies as a fair-value hedge under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities.”  The gain or loss from changes in the fair value of the Swap is expected to be highly effective at offsetting the gain or loss from changes in the fair value of the Notes attributable to changes in interest rates.  The Company measures the effectiveness of the Swap using regression analysis.  The Company recognizes changes in the fair value of the Swap and changes in the fair value of the Notes since inception of the Swap in the consolidated balance sheets.  For the first nine months of 2004, the Company recognized a net loss of $0.3 million, which is included in other non-operating income, representing the difference between the change in the fair value of the Notes and the change in the fair value of the Swap.  As of June 3, 2004, the Company had pledged $25.8 million as collateral for the Swap which is included in restricted cash in the accompanying consolidated balance sheet.  The amount of collateral fluctuates based on the fair value of the Swap.  The Swap will terminate if the closing price of the Company’s common stock is at or exceeds $14.15 after February 6, 2006.

 

Contingencies

 

As is typical in the semiconductor and other high technology industries, from time to time, others have asserted, and may in the future assert, that the Company’s products or manufacturing processes infringe their intellectual property rights.  The Company is engaged in litigation with Rambus, Inc. (“Rambus”) relating to certain of Rambus’ patents and certain of the Company’s claims and defenses.  Lawsuits between Rambus and the Company are pending in the United States, Germany, France, the United Kingdom and Italy.  The Company also is engaged in litigation with Motorola, Inc. (“Motorola”) and Freescale Semiconductor, Inc., a subsidiary of Motorola (“Freescale”), relating to certain of the Company’s patents and certain of Freescale’s patents.   Lawsuits between Motorola and Freescale and the Company are pending in the U.S. District Courts for the Western District of Texas (Austin) and for the Western District of Wisconsin (Madison).  The above lawsuits pertain to certain of the Company’s SDRAM and DDR DRAM products, which account for a significant portion of net sales.  The Company is unable to predict the outcome of these suits or of other assertions of infringement made against the Company.  A court determination that the Company’s products or manufacturing processes infringe the intellectual property rights of others could result in significant liability and/or require the Company to make material changes to its products and/or manufacturing processes.  Any of the foregoing results could have a material adverse effect on the Company’s business, results of operations or financial condition.

 

7

 

On June 17, 2002, the Company received a grand jury subpoena from the U.S. District Court for the Northern District of California seeking information regarding an investigation by the Antitrust Division of the Department of Justice (the “DOJ”) into possible antitrust violations in the “Dynamic Random Access Memory” or “DRAM” industry.  The Company is cooperating fully and actively with the DOJ in its investigation.  Subsequent to the commencement of the DOJ investigation, twenty-five purported class action lawsuits were filed against the Company and other DRAM suppliers in various federal and state courts alleging violations of the Sherman Act, violations of state unfair competition law, and unjust enrichment relating to the sale and pricing of DRAM products.  The complaints seek treble damages for the alleged damages sustained by purported class members, in addition to restitution, costs and attorneys’ fees, as well as an injunction against the allegedly unlawful conduct.  The Company is unable to predict the outcome of these suits.  Based upon the Company’s analysis of the claims made and the nature of the DRAM industry, the Company believes that class treatment of these cases is not appropriate and that any purported injury alleged by plaintiffs would be more appropriately resolved on a customer-by-customer basis.  The final resolution of these alleged violations of federal or state antitrust laws could result in significant liability and could have a material adverse effect on the Company’s business, results of operations or financial condition.

 

On May 5, 2004, Rambus filed a complaint in the Superior Court of the State of California (San Francisco County) against the Company and other DRAM suppliers.  The complaint alleges certain causes of action under California state law including conspiracy to restrict output and fix prices on Rambus DRAM (“RDRAM”), conspiracy to monopolize various relevant markets, intentional interference with prospective economic advantage relating to RDRAM, and unfair competition to disadvantage RDRAM.  The complaint seeks treble damages, punitive damages, attorneys’ fees, costs, and a permanent injunction enjoining the defendants from the conduct alleged in the complaint.  The Company is unable to predict the outcome of the suit.  A court determination against the Company could result in significant liability and could have a material adverse effect on the Company’s business, results of operations or financial condition.

 

The Company has accrued a liability and charged operations for the estimated costs of adjudication or settlement of various asserted and unasserted claims existing as of the balance sheet date.  The Company is currently a party to other legal actions arising out of the normal course of business, none of which is expected to have a material adverse effect on the Company’s business, results of operations or financial condition.

 

In the normal course of business, the Company is a party to a variety of agreements pursuant to which it may be obligated to indemnify the other party.  It is not possible to predict the maximum potential amount of future payments under these types of agreements due to the conditional nature of the Company’s obligations and the unique facts and circumstances involved in each particular agreement.  Historically, payments made by the Company under these types of agreements have not had a material effect on the Company’s business, results of operations or financial condition.

 

Redeemable Common Stock

 

In connection with the Company’s acquisition on April 22, 2002, of substantially all of the assets of Toshiba Corporation’s (“Toshiba”) DRAM business as conducted by Dominion Semiconductor L.L.C., the Company issued Toshiba 1.5 million shares of common stock and granted Toshiba an option to require the Company to repurchase the shares for $67.5 million in cash.  During the first quarter of 2004, Toshiba exercised its option and the Company redeemed the 1.5 million shares.

 

Stock Rights

 

On September 24, 2003, the Company received $450.0 million, which is included in additional capital in the accompanying consolidated balance sheet, from Intel Corporation (“Intel”) in exchange for the issuance of stock rights exchangeable into approximately 33.9 million shares of the Company’s common stock.  In conjunction with the issuance of the stock rights, the Company agreed to achieve operational objectives through May 2005, including certain levels of DDR2 production and 300 mm wafer processing capacity, and dedication of resources to advanced product development.  In the event the Company fails to achieve certain 2005 milestones and the Company’s common stock price is then below Intel’s purchase price of $13.29, the Company could be obligated to pay Intel amounts not to exceed $135 million, a substantial portion of which is payable, at the Company’s election, in the

 

8

 

Company’s common stock.  The shares issuable pursuant to the stock rights are included in weighted average common shares outstanding in the computations of earnings per share.

 

Restructure and Other Charges

 

In the second quarter of 2003, the Company announced a plan to restructure its operations.  The restructure plan included the shutdown of the Company’s 200 mm production line in Virginia, the discontinuance of certain memory products, including SRAM and TCAM products, and an approximate 10% reduction of the Company’s worldwide workforce.  In connection with the plan, the Company recorded $102.5 million of restructure charges and additional restructure related charges of $7.1 million, which are included in cost of goods sold, in the first nine months of 2003.  The credit to restructure of $21.9 million in the first nine months of 2004 primarily reflects gains on sales of equipment associated with operations shut down in the restructure.  The Company has substantially completed the restructure plan but expects to record gains and losses in future periods as residual equipment associated with the restructure is sold.  The components of the restructure charge and additional restructure related charges in the second quarter and first nine months of 2003 were as follows:

 

		Quarter ended February 27, 2003			Adjustments			Nine months ended May 29, 2003
Restructure charge:
Write-down of equipment		$	53.9		$	(9.3	)	$	44.6
Severance and other termination benefits		25.5			0.7			26.2
Write-down of intangible assets		18.6			—			18.6
Other		9.9			3.2			13.1
Total restructure charge		107.9			(5.4		)	102.5
Other charges to write down raw materials and work in process inventories		7.8			(0.7		)	7.1
Total restructure and other charges		$	115.7		$	(6.1	)	$	109.6

 

Other Operating Expense, Net

 

Other operating expense for the first nine months of 2004 includes net losses of $16.2 million from changes in currency exchange rates.  Other operating expense for the first nine months of 2003 includes net losses of $19.1 million on write-downs and disposals of semiconductor equipment and losses of $12.2 million from changes in currency exchange rates.  Other operating income for the first nine months of 2003 includes $14.4 million in receipts in the second quarter of 2003 from the U.S. government in connection with anti-dumping tariffs.

 

Income Taxes

 

Income taxes for 2004 and 2003 primarily reflect taxes on the Company’s non-U.S. operations.  The Company has a valuation allowance for its net deferred tax asset associated with its U.S. operations.  The provision for taxes on U.S. operations in the third quarter of 2004 was substantially offset by a reduction in the valuation allowance.  Until such time as the Company utilizes its U.S. net operating loss carryforwards and unused tax credits, the provision for taxes on the Company’s U.S. operations is expected to be substantially offset by a reduction in the valuation allowance.  As of June 3, 2004, the Company had aggregate U.S. tax net operating loss carryforwards of $2.7 billion and unused U.S. tax credits of $112.7 million, which expire through 2024.  The Company also has unused state tax net operating loss carryforwards of $1.7 billion for tax purposes which expire through 2024 and unused state tax credits of $123.3 million for tax and financial reporting purposes, which expire through 2018.

 

9

 

Earnings (Loss) Per Share

 

Basic earnings per share is computed based on the weighted average number of common shares outstanding.  Diluted earnings per share is computed based on the weighted average number of common shares outstanding plus the dilutive effects of stock options, warrants and convertible notes.  Potential common shares that would increase earnings per share amounts or decrease loss per share amounts are antidilutive and are, therefore, excluded from earnings per share calculations.  Antidilutive potential common shares that could dilute basic earnings per share in the future were 89.2 million and 143.3 million for the third quarter and first nine months of 2004, respectively, and 178.5 million for both the third quarter and first nine months of 2003.  Basic and diluted earnings per share computations reflect the effect of accretion of, and fair value adjustment to, redeemable common stock.

 

		Quarter ended						Nine months ended
		June 3, 2004			May 29, 2003			June 3, 2004			May 29, 2003
Net income (loss)		$	90.9		$	(214.9	)	$	63.7		$	(1,150.0	)
Redeemable common stock accretion		—			(1.6		)	(0.5		)	(4.7		)
Redeemable common stock fair value adjustment		—			—			(0.4		)	—
Net income (loss) available to common shareholders – Basic		90.9			(216.5		)	62.8			(1,154.7		)
Net effect of assumed conversions		3.4			—			—			—
Net income (loss) available to common shareholders – Diluted		$	94.3		$	(216.5	)	$	62.8		$	(1,154.7	)
Weighted average common shares outstanding –Basic		644.2			608.3			640.3			606.9
Net effect of dilutive stock options and convertible debt		61.2			—			4.8			—
Weighted average common shares outstanding – Diluted		705.4			608.3			645.1			606.9
Earnings (loss) per share:
Basic		$	0.14		$	(0.36	)	$	0.10		$	(1.90	)
Diluted		0.13			(0.36		)	0.10			(1.90		)

 

Comprehensive Income (Loss)

 

Comprehensive income for the third quarter and first nine months of 2004 was $90.6 million and $63.3 million, respectively, and included $0.3 million and $0.4 million net of tax, respectively, of unrealized losses on investments.  Comprehensive loss for the third quarter and first nine months of 2003 was $215.0 million and $1,150.7 million, respectively, and included $0.1 million and $0.7 million net of tax, respectively, of unrealized losses on investments.

 

Joint Venture

 

Since 1998, the Company has participated in TECH Semiconductor Singapore Pte. Ltd. (“TECH”), a semiconductor memory manufacturing joint venture in Singapore among the Company, the Singapore Economic Development Board, Canon Inc. and Hewlett-Packard Company.  As of June 3, 2004, the Company had a 39.12% ownership interest in TECH.  Significant financing, investment and operating decisions for TECH typically require approval from TECH’s Board of Directors.  The shareholders’ agreement for the TECH joint venture expires in 2011.  The Company adopted Interpretation No. 46 in the third quarter of 2004, under which TECH does not qualify for consolidation.

 

TECH’s semiconductor manufacturing facilities use the Company’s product and process technology.  Subject to specific terms and conditions, the Company has agreed to purchase all of the products manufactured by TECH.  The

 

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Company generally purchases semiconductor memory products from TECH at prices determined quarterly, based on a discount from average selling prices realized by the Company for the immediately preceding quarter.  The Company performs assembly and test services on product manufactured by TECH.  The Company also provides certain technology, engineering and training to support TECH.  All of these transactions with TECH are recognized as part of the net cost of products purchased from TECH.  The net cost of products purchased from TECH amounted to $88.3 million and $336.2 million for the third quarter and first nine months of 2004, respectively, and $77.5 million and $225.0 million for the third quarter and first nine months of 2003, respectively.  Amortization expense resulting from the TECH supply arrangement, included in the cost of products purchased from TECH, was $3.9 million and $8.9 million for the third quarter and first nine months of 2004, respectively, and $2.4 million and $7.2 million for the third quarter and first nine months of 2003, respectively.  Receivables from TECH were $25.0 million and payables to TECH were $55.5 million as of June 3, 2004.  Receivables from TECH were $53.1 million and payables to TECH were $102.5 million as of August 28, 2003.  TECH supplied approximately 30% of the total megabits of memory produced by the Company in the first nine months of 2004.  As of June 3, 2004, the Company had intangible assets with a net book value of $64.9 million relating to the supply arrangement to purchase product from TECH.

 

The Company has pledged $100.0 million as cash collateral for TECH’s $250.0 million credit facility.  In the event the cash collateral is used to discharge obligations of TECH that are unpaid and due under the TECH credit facility, certain shareholders of TECH have agreed to indemnify the Company for approximately one-half of the amount of the cash collateral used to satisfy such obligations.

 

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Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following discussion contains trend information and other forward-looking statements that involve a number of risks and uncertainties.  Forward-looking statements include, but are not limited to, statements such as those made in “Net Sales” regarding future megabit production growth, production increases and allocation of wafer starts to DDR2 products, CMOS image sensors, PSRAM products and Flash memory products; “Gross Margin” regarding manufacturing cost reductions in future periods and cost of products purchased from TECH in the fourth quarter of 2004;  in “Selling, General and Administrative” regarding the level of expected selling, general and administrative expenses in the fourth quarter of 2004;  in “Research and Development” regarding the level of expected research and development expenses in the fourth quarter of 2004;  in “Income Taxes” regarding future provisions for income taxes and in “Liquidity and Capital Resources” regarding capital spending in 2004 and 2005.  The Company’s actual results could differ materially from the Company’s historical results and those discussed in the forward-looking statements.  Factors that could cause actual results to differ materially include, but are not limited to, those identified in “Certain Factors.”  This discussion should be read in conjunction with the Consolidated Financial Statements and accompanying notes and with the Company’s Annual Report on Form 10-K for the year ended August 28, 2003.  All period references are to the Company’s fiscal periods unless otherwise indicated.  All per share amounts are presented on a diluted basis.  All tabular dollar amounts are in millions.  Unless otherwise stated, all production data reflects production of the Company and its TECH joint venture.

 

Overview

 

The Company is a global manufacturer and marketer of DRAM, CMOS image sensors, Flash memory and other semiconductor components.  Many of these semiconductor components have characteristics similar to commodities that are generally standardized products with selling prices that fluctuate significantly based on industry-wide relationships of supply and demand.  Success in the semiconductor memory market is typically driven by achieving the most cost-efficient delivery of products.  Delivery of semiconductor memory products at the lowest cost is dependent upon utilization of advanced design and process technology and extensive capital investments in silicon processing capacity as well as timely development of new products and cost-effective capital access.

 

Results of Operations

 

		Third Quarter										Second Quarter					Nine Months
		2004			% of net sales		2003			% of net sales		2004			% of net sales		2004			% of net sales		2003			% of net sales
Net sales		$	1,116.8		100.0	%	$	732.7		100.0	%	$	991.0		100.0	%	$	3,215.0		100.0	%	$	2,202.8		100.0	%
Gross margin		387.9			34.7	%	71.0			9.7	%	248.2			25.0	%	922.1			28.7	%	(190.2		)	(8.6	)%
SG&A		94.3			8.4	%	87.2			11.9	%	81.8			8.3	%	257.3			8.0	%	276.0			12.5	%
R&D		181.4			16.2	%	161.7			22.1	%	187.9			19.0	%	555.7			17.3	%	490.3			22.3	%
Restructure		(0.7		)	(0.1	)%	(5.4		)	(0.7	)%	(0.1		)	(0.0	)%	(21.9		)	(0.7	)%	102.5			4.7	%
Operating income (loss) Loss		109.7			9.8	%	(183.7		)	(25.1	)%	(7.1		)	(0.7	)%	124.3			3.9	%	(1,080.9		)	(49.1	)%

 

The Company’s fiscal year is the 52 or 53-week period ending on the Thursday closest to August 31.  The Company’s fiscal 2004 contains 53 weeks and its first quarter of fiscal 2004 contained 14 weeks.

 

Net Sales

 

Net sales for the third quarter of 2004 increased by 13% as compared to the second quarter of 2004 primarily due to a 17% increase in average per megabit selling prices for the Company’s memory products as a result of generally improved market conditions.  During the third quarter of 2004, the Company continued to increase its allocation of manufacturing capacity to specialty memory products, including pseudo-static RAM (“PSRAM”), CMOS image sensors and legacy DRAM products.  The shift in product mix

 

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contributed to the increase in average per megabit selling prices for the third quarter of 2004 as specialty memory products and legacy DRAM products on average had significantly higher selling prices per megabit than the Company’s primary DRAM products.  The Company’s overall megabit production in the third quarter of 2004 decreased approximately 5% from the second quarter of 2004 primarily due to the wafer allocations to CMOS image sensors, specialty memory products and legacy DRAM products.  Megabit output per wafer is significantly lower for specialty memory and legacy DRAM products because of their relatively low density and the inherent complexity of specialty memory products.  Further, the Company’s diversification of product mix and prioritization of specialty DRAM products necessitated production changes to optimize long-term wafer process efficiency that resulted in a temporary reduction of wafer output for the third quarter of 2004.

 

Growth in future megabit production over the next several quarters is expected to be adversely affected by an increased allocation of wafers to the manufacture of DDR2 products, which have a relatively larger die size, CMOS image sensors, specialty memory products and Flash memory products.  The Company expects DDR2 production to increase significantly over the next several quarters.  The Company expects to allocate approximately 20% of its total wafer starts to CMOS image sensors, specialty memory products and Flash memory products by the end of calendar 2004.  For the third quarter of 2004, megabit production was slightly higher than megabit sales.  Finished goods inventories at the end of the quarter remained at relatively low levels.  DDR products constituted 67% of the Company’s megabits sold in the third quarter of 2004 and 71% of megabits sold in the second quarter of 2004.

 

Net sales for the third quarter of 2004 increased by 52% as compared to the third quarter of 2003 primarily due to a 44% increase in average per megabit selling prices for the Company’s memory products.  Megabits produced in the third quarter of 2004 increased 6% as compared to the third quarter of 2003 principally due to increased manufacturing efficiencies, which were partially offset by the Company’s increased allocation of wafer production to CMOS image sensors and PSRAM products.  DDR products constituted 67% of the Company’s megabits sold in the third quarter of 2003.

 

Net sales for first nine months of 2004 increased by 46% as compared to the first nine months of 2003 primarily due to a 25% increase in megabits of memory sold and a 14% increase in average per megabit selling prices for the Company’s memory products.  Megabits produced in the first nine months of 2004 increased 29% as compared to the first nine months of 2003 principally due to increased manufacturing efficiencies partially offset by the effects of changes in the Company’s product mix.

 

Gross Margin

 

The Company’s reported gross margin percentage for the third quarter of 2004 increased to 35% as compared to 25% for the second quarter of 2004 primarily due to the 17% increase in average selling prices per megabit.  In addition, compared to the second quarter of 2004, reported gross margin in the third quarter of 2004 benefited from relatively higher margins on sales of products purchased from the Company’s TECH joint venture.  The Company’s gross margin in the third quarter of 2004 was affected by a higher level of sales of CMOS image sensors, legacy DRAM products and PSRAM products, which generally had higher margins than the Company’s primary high-volume DRAM products.  The legacy DRAM and PSRAM products had higher average selling prices per megabit, which more than offset their higher manufacturing costs per megabit.  The Company was able to maintain its overall average cost per megabit for the third quarter despite the shift in product mix away from its primary high-volume DRAM products through manufacturing efficiencies.  The Company achieved these manufacturing efficiencies by improving product yields and continuing its transition to products utilizing 110 nm process technology and 6f² technology.  The Company’s 6f² technology enables it to produce approximately 20% more potential die per wafer than standard products, which use 8f² technology.  Per megabit cost reductions in the near term will be limited by the effects of increased production of DDR2 products and specialty memory products as well as higher costs associated with the limited volumes of production at the Company’s 300 mm manufacturing facility in Virginia.  The Company also expects that per megabit costs for the fourth quarter of 2004 will be adversely affected by higher costs of products purchased from TECH as compared to the third quarter of 2004.

 

The Company’s reported gross margin for the third quarter and first nine months of 2004 as compared to the corresponding periods of 2003 improved by $316.9 million and $1,112.3 million, respectively, primarily due to higher average selling prices and increased megabit production, partially offset by the net effects of inventory write-downs.

 

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Inventory write-downs:  The Company records charges to cost of goods sold in accordance with generally accepted accounting principles to write down the carrying values of work in process and finished goods inventories when they exceed their estimated market values.  The inventory write-downs reflect estimates of future market pricing relative to the costs of production and inventory carrying values and projected timing of product sales.  Many of the Company’s semiconductor components have characteristics similar to commodities that are generally standardized products with selling prices that fluctuate significantly based on industry-wide relationships of supply and demand.  In recent years, a combination of global economic conditions and a slowing growth rate in demand for personal computers, coupled with worldwide increases in semiconductor production capacity, caused significant declines in average selling prices for semiconductor components.  In all quarters of fiscal 2002 and 2003, market values of products held in finished goods and work in process inventories at a quarter end date were below the Company’s manufacturing cost of these products and the Company recognized a charge to cost of goods sold to write down the carrying value of inventories to their estimated market values.  As such charges are recorded in advance of when inventory subject to the write-down is sold, gross margins in the period of sale are higher than they would be absent the effect of the previous write-downs.  No write-down was necessary for the first three quarters of 2004 and, as of June 3, 2004, a de minimis amount of previous write-downs remains in ending inventory.  As a result, write-downs of inventories prior to 2004 are not expected to have a significant effect on operating results in future periods.

 

The following table sets forth adjusted gross margins absent the inventory write-downs and the estimated effect of previous write-downs.  These write-downs may not be infrequent or nonrecurring in nature but are a result of significant market-driven declines in average selling prices.  The presentation of these adjusted amounts vary from numbers presented in accordance with U.S. GAAP and therefore may not be comparable to measures reported by other companies.  However, the Company believes this information is significant to understanding the Company’s gross margins and analyzing the Company’s gross margin trends.  This non-GAAP information is important to analyzing the Company’s cost of goods sold since the effect of inventory write-downs must be separated from the manufacturing cost component in order to have a reasonable basis for understanding trends in cost of goods sold.  When evaluating performance and making decisions on how to allocate Company resources, management uses this non-GAAP data and believes investors should have access to similar data when making their investment decisions.

 

		Third Quarter										Nine Months
		2004			% of net sales		2003			% of net sales		2004			% of net sales		2003			% of net sales
Gross margin:
As reported		$	387.9		34.7	%	$	71.0		9.7	%	$	922.1		28.7	%	$	(190.2	)	(8.6	)%
Inventory write-downs		—					14.6					—					302.8
Estimated effect of previous write-downs		(13.4		)			(168.1		)			(59.3		)			(405.6		)
As adjusted		$	374.5		33.5	%	$	(82.5	)	(11.3	)%	$	862.8		26.8	%	$	(293.0	)	(13.3	)%

 

“Inventory write-downs” are calculated based on estimates of future market pricing relative to the Company’s costs of production and inventory carrying values and the projected timing of product sales.  The reduction in cost of goods sold resulting from sales of written-down inventory is reflected as the “Estimated effect of previous write-downs” in the table above.  The estimated effect of previous write-downs is calculated by computing cost of goods sold for each applicable period as if no write-downs had been recorded and comparing it to cost of goods sold as calculated in accordance with generally accepted accounting principles.  In calculating the estimated effect of previous write-downs, the Company uses the same judgments and estimates that are used to calculate cost of goods sold.

 

TECH Semiconductor Singapore Pte. Ltd. (“TECH”):  The TECH joint venture supplied approximately 25% of the total megabits of memory produced by the Company in the third quarter of 2004 and 30% of the total megabits produced in the second quarter of 2004 and third quarter of 2003.  The Company generally purchases memory products from TECH at prices determined quarterly, based on a discount from average selling prices realized by the Company for the immediately preceding quarter.  Per unit costs of products purchased from TECH were lower in the third quarter of 2004 than in the second quarter of 2004.  Depending on market conditions, the gross margin from the sale of TECH products may be higher or lower than the gross margin from the sale of

 

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products manufactured by the Company’s wholly-owned operations.  In the third quarter and first nine months of both 2004 and 2003, the Company realized higher gross margin percentages on sales of TECH products than for products manufactured by its wholly-owned operations.  In the second quarter of 2004, the gross margin percentages realized by the Company on sales of TECH products were approximately the same as gross margins realized on products manufactured by its wholly-owned facilities.

 

Selling, General and Administrative

 

Selling, general and administrative (“SG&A”) expenses for the third quarter of 2004 were 15% higher than for the second quarter of 2004 primarily due to higher levels of performance based compensation expense and other personnel costs.  SG&A expenses for the third quarter of 2004 were 8% higher than for the third quarter of 2003 primarily due to higher levels of performance based compensation expense and other personnel costs, which were partially offset by lower costs associated with outstanding legal matters.  SG&A expenses decreased 7% in the first nine months of 2004 as compared to the first nine months of 2003 primarily due to lower costs associated with outstanding legal matters, which was partially offset by increased performance based compensation costs.  SG&A expenses for the fourth quarter of 2004 are expected to decrease slightly from the third quarter of 2004.

 

Research and Development

 

Research and development (“R&D”) expenses vary primarily with the number of development wafers processed, the cost of advanced equipment dedicated to new product and process development, and personnel costs.  Because of the lead times necessary to manufacture the Company’s products, the Company typically begins to process wafers before completion of performance and reliability testing.  The Company deems development of a product complete once the product has been thoroughly reviewed and tested for performance and reliability.  R&D expenses can vary significantly depending on the timing of product qualification.

 

R&D expenses for the third quarter of 2004 decreased 3% from the second quarter of 2004 primarily due to the Company’s initial qualification of a 512 Meg DDR product on its 300 mm production line during the quarter and a decrease in the number of other development wafers processed.  R&D expenses for the third quarter and first nine months of 2004 increased 12% and 13%, respectively, from the corresponding periods of 2003 primarily due to an increase in development wafers processed.  The increase in development wafers processed during the first nine months of 2004 was the result of a higher level of development wafers run on the Company’s 300 mm production line and a relatively large number of products nearing qualification during the period.  Higher R&D costs in 2004 also reflect a higher level of expenses related to CMOS image sensors, Flash memory and specialty memory products.  R&D expenses for the fourth quarter of 2004 are expected to decrease slightly from the third quarter of 2004.

 

The Company’s process technology R&D efforts are focused primarily on development of 95 nm, 78 nm and smaller line-width process technologies, which are designed to facilitate the Company’s transition to next generation products.  Additional R&D efforts include process development to support the Company’s 300 mm wafer manufacturing, CMOS image sensors, Flash memory products, specialty memory products including PSRAM and reduced latency DRAM (“RLDRAM”) and new manufacturing materials.  Efforts toward the design and development of new products are concentrated on the Company’s 512 Meg and 1 Gig DDR, DDR2 DRAM products as well as NAND and other Flash memory, CMOS image sensors and specialty memory products.

 

Restructure and Other Charges

 

In the second quarter of 2003 the Company announced a plan to restructure its operations.  The restructure plan included the shutdown of the Company’s 200 mm production line in Virginia, the discontinuance of certain memory products, including SRAM and TCAM products, and an approximate 10% reduction of the Company’s worldwide workforce.  In connection with the plan, the Company recorded $102.5 million of restructure charges and additional restructure-related charges of $7.1 million, which are included in cost of goods sold, for the first nine months of 2003.  The credit to restructure of $21.9 million in the first nine months of 2004 primarily reflects gains on sales of equipment associated with operations shut down in the restructure.  Higher equipment sales prices reflect improved market conditions across the semiconductor industry.  The Company has substantially completed the restructure plan but expects to record gains and losses in future periods as residual equipment associated with the restructure is sold.

 

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The components of the restructure charge and additional restructure related charges in the second quarter and first nine months of 2003 were as follows:

 

 

Other Operating Expense, Net

 

Other operating expense for the first nine months of 2004 includes net losses of $16.2 million from changes in currency exchange rate.  Other operating expense for the first nine months of 2003 includes net losses of $19.1 million related to write-downs and disposals of semiconductor equipment and losses of $12.2 million from changes in currency exchange rates.  Other operating income for the first nine months of 2003 also includes $14.4 million in receipts from the U.S. government during the second quarter of 2003 in connection with anti-dumping tariffs.  The Company estimates that, based on its assets and liabilities denominated in currencies other than U.S. dollar as of June 3, 2004, a 1% change in the exchange rate versus the U.S. dollar would result in foreign currency gains or losses of approximately $2 million for the Japanese yen and $1 million for the euro.

 

Income Taxes

 

Income taxes for 2004 and 2003 primarily reflect taxes on the Company’s non-U.S. operations.  The Company has a valuation allowance for its net deferred tax asset associated with its U.S. operations.  The provision for taxes on U.S. operations in the third quarter of 2004 was substantially offset by a reduction in the valuation allowance.  Until such time as the Company utilizes its U.S. net operating loss carryforwards and unused tax credits, the provision for taxes on the Company’s U.S. operations is expected to be substantially offset by a reduction in the valuation allowance.  As of June 3, 2004, the Company had aggregate U.S. tax net operating loss carryforwards of $2.7 billion and unused U.S. tax credits of $112.7 million.  The Company also has unused state tax net operating loss carryforwards of $1.7 billion for tax purposes which expire in various years through 2024 and unused state tax credits of $123.3 million for tax and financial reporting purposes.

 

 

Liquidity and Capital Resources

 

The Company’s liquidity is highly dependent on average selling prices for its semiconductor memory products and the timing of capital expenditures which can vary significantly from period to period.  As of June 3, 2004, the Company had cash and marketable investments totaling $1,131.9 million compared to $921.8 million as of August 28, 2003.

 

Operating Activities:  For the first nine months of 2004, net cash provided by operating activities was $743.6 million primarily reflecting improved average selling prices for semiconductor memory products.  Cash generated from operations in the first nine months of 2004 principally reflects the Company’s $63.7 million of income adjusted by $908.2 million for non-cash depreciation and amortization expense partially offset by a $127.4 million increase in accounts receivable associated with the Company’s higher level of sales and a $114.1 million increase in inventories consisting primarily of work in process inventories resulting from transitions in the Company’s product mix.

 

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Investing Activities:  For the first nine months of 2004, net cash used by investing activities was $1,130.5 million including expenditures for property, plant and equipment of $739.7 million.  The Company believes that to develop new product and process technologies, support future growth, achieve operating efficiencies and maintain product quality, it must continue to invest in manufacturing technology, facilities and capital equipment, research and development, and product and process technology.  The Company expects 2004 capital spending to approximate $1.5 billion.  The Company expects 2005 capital spending to exceed $1.5 billion.  As of June 3, 2004, the Company had commitments extending into 2005 of approximately $500 million for the acquisition of property, plant and equipment.

 

Financing Activities:  For the first nine months of 2004, net cash provided by financing activities was $145.7 million including $450 million received from Intel Corporation (“Intel”).  Payments on equipment purchase contracts and debt were $363.2 million for the first nine months of 2004.  In the first nine months of 2004, the Company received $101.1 million in net proceeds from the issuance of notes payable and sales-leaseback transactions.  In the first quarter of 2004, the Company paid $67.5 million to Toshiba Corporation to redeem the 1.5 million shares of common stock issued in connection with the acquisition of the Company’s Virginia facility from Toshiba.

 

In the first quarter of 2004, the Company received $450 million from Intel in exchange for the issuance of stock rights exchangeable into approximately 33.9 million shares of the Company’s common stock.  In conjunction with the issuance of the stock rights, the Company agreed to achieve operational objectives through May 2005, including certain levels of DDR2 production and 300 mm wafer processing capacity and dedication of resources to advanced product development.  In the event the Company fails to achieve certain 2005 milestones and the Company’s common stock price is then below Intel’s per share purchase price of $13.29, the Company could be obligated to pay Intel amounts not to exceed $135 million, a substantial portion of which is payable, at the Company’s election, in the Company’s common stock.

 

In the second quarter of 2003, the Company issued $632.5 million of 2.5% Convertible Subordinated Notes (the “Notes”).  Holders of the Notes may convert all or some of their Notes at any time prior to maturity, unless previously redeemed or repurchased, into the Company’s common stock at a conversion rate of 84.8320 shares for each $1,000 principal amount of the Notes.  This conversion rate is equivalent to a conversion price of approximately $11.79 per share.  The Company may redeem the Notes at any time after February 6, 2006, at declining premiums to par.

 

Concurrent with the issuance of the Notes, the Company purchased call spread options (the “Call Spread Options”) covering 53.7 million shares of the Company’s common stock, which is the number of shares issuable upon conversion of the Notes in full.  The Call Spread Options have a lower strike price of $11.79, a higher strike price of $18.19, may be settled at the Company’s option either in cash or net shares and expire on January 29, 2008.  Settlement of the Call Spread Options in cash on January 29, 2008, would result in the Company receiving an amount ranging from zero if the market price per share of the Company’s common stock is at or below $11.79 to a maximum of $343.4 million if the market price per share of the Company’s common stock is at or above $18.19.

 

Access to capital markets has historically been important to the Company.  Depending on market conditions, the Company may, from time to time, issue registered or unregistered securities to raise capital to fund a portion of its operations.

 

The Company has pledged $100 million as cash collateral for a $250 million credit facility of TECH.  In the event the cash collateral is used to discharge obligations of TECH that are unpaid and due under the TECH credit facility, certain shareholders of TECH have agreed to indemnify the Company for approximately one-half of the amount of the cash collateral used to satisfy such obligations.

 

As of June 3, 2004, future maturities of notes payable, minimum lease payments under capital leases and minimum commitments under operating leases were as follows:

 

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Recently Issued Accounting Standards

 

In December 2003, the Financial Accounting Standards Board (“FASB”) issued a revised Interpretation No. 46, “Consolidation of Variable Interest Entities – an interpretation of ARB No. 51,” which provides guidance on the identification of and reporting for variable interest entities.  The Company adopted Interpretation No. 46 in the third quarter of 2004.  Adoption of Interpretation No. 46 did not have a significant impact on the Company’s results of operations or financial condition.

 

 

Critical Accounting Policies

 

The preparation of financial statements and related disclosures in conformity with U.S. GAAP requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues, expenses and related disclosures.  Estimates and judgments are based on historical experience, forecasted future events and various other assumptions that the Company believes to be reasonable under the circumstances.  Estimates and judgments may vary under different assumptions or conditions.  The Company evaluates its estimates and judgments on an ongoing basis.  Management believes the accounting policies below are critical in the portrayal of the Company’s financial condition and results of operations and require management’s most difficult, subjective or complex judgments.

 

Contingencies:  The Company is subject to the possibility of losses from various contingencies.  Considerable judgment is necessary to estimate the probability and amount of any loss from such contingencies.  An accrual is made when it is probable that a liability has been incurred or an asset has been impaired and the amount of loss can be reasonably estimated.  The Company accrues a liability and charges operations for the estimated costs of adjudication or settlement of asserted and unasserted claims existing as of the balance sheet date.

 

Income taxes:  The Company is required to estimate its provision for income taxes and amounts ultimately payable or recoverable in numerous tax jurisdictions around the world.  Estimates involve interpretations of regulations and are inherently complex.  Resolution of income tax treatments in individual jurisdictions may not be known for many years after completion of any fiscal year.  The Company is also required to evaluate the realizability of its deferred tax assets on an ongoing basis in accordance with U.S. GAAP, which requires the assessment of the Company’s performance and other relevant factors when determining the need for a valuation allowance with respect to these deferred tax assets.  Realizability of deferred tax assets is dependent on the Company’s ability to generate future taxable income.

 

Inventories:  Inventories are stated at the lower of average cost or market value.  Cost includes labor, material and overhead costs, including product and process technology costs.  Determining market value of inventories involves numerous judgments, including projecting average selling prices and sales volumes for future periods and costs to complete products in work in process inventories.  To project average selling prices and sales volumes, the Company reviews recent sales volumes, existing customer orders, current contract prices, industry analysis of supply and demand, seasonal factors, general economic trends and other information.  When these analyses reflect estimated market values below the Company’s manufacturing costs, the Company records a charge to cost of goods sold in advance of when the inventory is actually sold.  Differences in forecasted average selling prices used in calculating lower of cost or market adjustments can result in significant changes in the estimated net realizable value of product inventories and accordingly the amount of write-down recorded.  Due to the volatile nature of the

 

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semiconductor memory industry, actual selling prices and volumes often vary significantly from projected prices and volumes and, as a result, the timing of when product costs are charged to operations can vary significantly.

 

U.S. GAAP provides for products to be grouped into categories in order to compare costs to market values.  The amount of any inventory write-down can vary significantly depending on the determination of inventory categories.  The Company’s inventory has been categorized as semiconductor memory products or CMOS image sensors.  The major characteristics the Company considers in determining inventory categories are product type and markets.

 

Product and process technology:  Costs incurred to acquire product and process technology or to patent technology developed by the Company are capitalized and amortized on a straight-line basis over periods currently ranging up to 10 years.  The Company capitalizes a portion of costs incurred based on its analysis of historical and projected patents issued as a percent of patents filed.  Capitalized product and process technology costs are amortized over the shorter of (i) the estimated useful life of the technology, (ii) the patent term or (iii) the term of the technology agreement.

 

Property, plant and equipment:  The Company reviews for impairment the carrying value of property, plant and equipment when events and circumstances indicate that the carrying value of an asset or group of assets may not be recoverable from the estimated future cash flows expected to result from its use and/or disposition.  In cases where undiscounted expected future cash flows are less than the carrying value, an impairment loss is recognized equal to the amount by which the carrying value exceeds the estimated fair value of the assets.  The estimation of future cash flows involves numerous assumptions which require judgment by the Company, including, but not limited to, future use of the assets for Company operations versus sale or disposal of the assets, future selling prices for the Company’s products and future production and sales volumes.  In addition, judgment is required by the Company in determining the groups of assets for which impairment tests are separately performed.

 

Research and development:  Costs related to the conceptual formulation and design of products and processes are expensed as research and development when incurred.  Determining when product development is complete requires judgment by the Company.  The Company deems development of a product complete once the product has been thoroughly reviewed and tested for performance and reliability.

 

 

Certain Factors

 

In addition to the factors discussed elsewhere in this Form 10-Q, the following are important factors which could cause actual results or events to differ materially from those contained in any forward- looking statements made by or on behalf of the Company.

 

We have experienced dramatic declines in average selling prices for our memory products which have adversely affected our business.

 

In six of the last seven fiscal years, we experienced annual decreases in per megabit average selling prices for our semiconductor memory products as follows:  17% in 2003, 53% in 2002, 60% in 2001, 37% in 1999, 60% in 1998 and 75% in 1997.  At times, average selling prices for our semiconductor products have been below our costs.  If average selling prices for our memory products decrease faster than we can decrease per megabit costs, our business, results of operations or financial condition could be materially adversely affected.

 

Increased worldwide DRAM production or lack of demand for DRAM could lead to further declines in average selling prices for DRAM.

 

The transition to smaller line-width process technologies and 300 mm wafers in the industry could, depending upon the rate of transition, lead to a significant increase in the worldwide supply of DRAM.  Increases in worldwide supply of DRAM also result from DRAM fab capacity expansions, either by way of new facilities, increased capacity utilization or reallocation of other semiconductor production to DRAM production.  Several of our competitors have announced plans to increase production through construction of new facilities or expansion of existing facilities.  Increases in worldwide supply of DRAM, if not offset by increases in demand, could lead to further declines in average selling prices for our products and could materially adversely affect our business, results of operations or financial condition.

 

19

 

If the growth rate of either computers sold or the amount of semiconductor memory included in each computer decreases, sales of our semiconductor products could decrease.

 

We are dependent on the computing market as most of the semiconductor products we sell are used in computers, servers or peripheral products.  Approximately 70% of our sales of semiconductor products for the third quarter of 2004 were to the computing market.  DRAMs are the most widely used semiconductor components in computers.  In recent years, the growth rate of computers sold has slowed or declined.  If we experience a sustained reduction in the growth rate of either computers sold or the average amount of semiconductor memory included in each computer, sales of our semiconductor products could decrease, and our business, results of operations or financial condition could be materially adversely affected.

 

We may not be able to generate sufficient cash flows to fund our operations and make adequate capital investments.

 

Our cash flows from operations depend primarily on the volume of semiconductor memory sold, average selling prices and per megabit manufacturing costs.  To develop new product and process technologies, support future growth, achieve operating efficiencies and maintain product quality, we must make significant capital investments in manufacturing technology, facilities and capital equipment, research and development, and product and process technology.  In addition to cash provided by operations, we have from time to time utilized external sources of financing.  Depending on general market and economic conditions or other factors, we may not be able to generate sufficient cash flows to fund our operations and make adequate capital investments or access capital markets for funds on acceptable terms.

 

The semiconductor memory industry is highly competitive.

 

We face intense competition from a number of companies, including Elpida Memory, Inc., Hynix Semiconductor Inc., Infineon Technologies AG and Samsung Electronics Co., Ltd.  Some of these competitors are large corporations or conglomerates that may have greater resources to withstand downturns in the semiconductor markets in which we compete, invest in technology and capitalize on growth opportunities.  These competitors seek to increase silicon capacity, improve yields, reduce die size and minimize mask levels in their product designs.  These factors have significantly increased worldwide supply and put downward pressure on prices.

 

Historically, various governments have provided economic assistance to international competitors, which has enabled, or artificially supported, competitors’ production of semiconductor memory, particularly DRAM.  This factor is expected to lead to a continued increase in the supply of DRAM and other semiconductor products in future periods.

 

We may be unable to reduce our per megabit manufacturing costs at the same rate as we have in the past.

 

Historically, we have decreased per megabit manufacturing costs through improvements in our manufacturing processes, including reducing the die size of our existing products.  In future periods, we may be unable to reduce our per megabit manufacturing costs or reduce costs at historical rates.  Reduction of per megabit manufacturing costs in future periods is dependent on our ability to:

 

•                  successfully implement product and process technology improvements, including future transitions to 95 nm and smaller line-width process technologies,

 

•                  achieve acceptable levels of manufacturing wafer output and yields, which may decrease as we implement more complex technologies, including our transition to 300 mm wafer processing,

 

•                  ramp the latest reduced die size versions of existing devices or new generation devices and

 

•                  offset increases in per megabit manufacturing costs resulting from shifts in product mix to CMOS image sensors, specialty memory products and flash memory products.

 

20

 

If we are unable to timely and efficiently convert our manufacturing operations to 300 mm wafer processing, our business, results of operations or financial condition could be materially adversely affected.

 

In the past, we have reduced our per megabit manufacturing costs by converting our wafer processing operations to use larger wafers.  By converting to larger wafers, we should be able to produce significantly more die for each wafer, ultimately resulting in substantially reduced costs for each die.  Our conversion to 300 mm wafer processing across a significant portion of our operations will require us to make substantial capital investments, which will depend on our ability to generate funds from operations or to obtain additional funds from external sources.  We may also experience disruptions in manufacturing operations and reduced yields during our conversion to larger wafer sizes.  If our conversion to 300 mm wafer processing is not timely and efficient, we could be at a cost disadvantage with respect to our competitors and our business, results of operations or financial condition could be materially adversely affected.  In addition, we may decide not to convert all of our wafer processing to 300 mm and, as a result, we could be at a cost disadvantage with respect to our competitors.

 

If any one of our major computing customers significantly reduces its purchases of DRAM from us, our business, results of operations or financial condition could be materially adversely affected.

 

Aggregate sales to two of our computing customers approximated 27% of our net sales for the third quarter of 2004.  If any one of our major computing customers significantly reduces its purchases of DRAM from us, our business, results of operations or financial condition could be materially adversely affected.

 

Changes in foreign currency exchange rates could materially adversely affect our business, results of operations or financial condition.

 

Our financial statements are prepared in accordance with U.S. GAAP and are reported in U.S. dollars.  Across our multi-national operations there are transactions and balances denominated in other currencies, primarily the Japanese yen and euro.  In the event that the U.S. dollar weakens significantly compared to the Japanese yen or euro, reported results of operations or financial condition will be adversely affected.

 

Current economic and political conditions may harm our business.

 

Global economic conditions and the effects of military or terrorist actions may cause significant disruptions to worldwide commerce.  If these disruptions result in delays or cancellations of customer orders, a decrease in corporate spending on information technology or our inability to effectively market, manufacture or ship our products, our business, results of operations or financial condition could be materially adversely affected.  If, for any reason, we are unable to access the capital markets over an extended period of time, we may be unable to make property, plant and equipment expenditures, implement our research and development efforts or fund our operations, which could materially adversely affect our business, results of operations or financial condition.

 

If our TECH joint venture experiences financial difficulty, or if our supply of semiconductor products from TECH is disrupted, our business, results of operations or financial condition could be materially adversely affected.

 

TECH supplied approximately 25% of our total megabits of memory produced in the third quarter of 2004.  We have agreements to purchase all of the products manufactured by TECH subject to specific terms and conditions.  In recent periods, we have realized higher margins on products purchased from TECH than products manufactured by our wholly-owned facilities.  Any reduction in supply could materially adversely affect our business, results of operations or financial condition.

 

We have pledged $100 million as cash collateral for TECH’s credit facility.  In the event the cash collateral is used to discharge obligations of TECH that are unpaid and due under the TECH credit facility, certain shareholders of TECH have agreed to indemnify us for approximately one-half of the amount of the cash collateral used to satisfy such obligations.  As of June 3, 2004, we had intangible assets with a net book of $64.9 million relating to the supply arrangement to purchase product from TECH.  In the event that our supply of semiconductor products from TECH is reduced or eliminated, we may be required to write off part or all of these assets and our revenues and results of operations would be adversely affected.

 

21

 

If we are unable to respond to customer demand for diversified semiconductor memory products or are unable to do so in a cost-effective manner, we may lose market share and our business, results of operations or financial condition could be materially adversely affected.

 

In recent periods, the semiconductor memory market has become increasingly segmented, with diverse memory needs being driven by the different requirements of desktop and notebook computers, servers, workstations, handheld devices, and communications, industrial and other applications that demand specific memory solutions.  We offer customers a variety of semiconductor memory products, including DDR, DDR2, SDRAM, EDO, Flash and PSRAM.

 

We need to dedicate significant resources to product design and development to respond to customer demand for the continued diversification of semiconductor products.  If we are unable to invest sufficient resources to meet the diverse memory needs of customers, we may lose market share.  In addition, as we diversify our product lines we may encounter difficulties penetrating certain markets, particularly markets where we do not have existing customers.  If we are unable to respond to customer demand for market diversification in a cost-effective manner, our business, results of operations or financial condition could be materially adversely affected.

 

An adverse determination that our products or manufacturing processes infringe the intellectual property rights of others could materially adversely affect our business, results of operations or financial condition.

 

As is typical in the semiconductor and other high technology industries, from time to time, others have asserted, and may in the future assert, that our products or manufacturing processes infringe their intellectual property rights.  We are engaged in litigation with Rambus, Inc. (“Rambus”) relating to certain of Rambus’ patents and certain of our claims and defenses.  On February 1, 2001, we filed a complaint (amended) against Rambus in U.S. District Court for the District of Delaware seeking monetary damages and declaratory and injunctive relief.  Among other things, our amended complaint alleges violation of federal antitrust laws, breach of contract, fraud, deceptive trade practices, and negligent misrepresentation.  The complaint also seeks a declaratory judgment (a) that certain Rambus patents are not infringed by us, are invalid, and/or are unenforceable (b) that we have an implied license to those patents and (c) that Rambus is estopped from enforcing those patents against us.  On February 15, 2001, Rambus filed an answer and counterclaim in Delaware denying that we are entitled to relief, alleging infringement of the eight Rambus patents named in our declaratory judgment claim, and seeking monetary damages and injunctive relief.  A number of other suits are currently pending in Europe alleging that certain of our SDRAM and DDR SDRAM products infringe various of Rambus’ country counterparts to its European patent 525 068, including:  on September 1, 2000, Rambus filed suit against Micron Semiconductor (Deutschland) GmbH in the District Court of Mannheim, Germany; on September 13, 2000, Rambus filed suit against Micron Europe Limited in the High Court of Justice, Chancery Division in London, England;  on September 22, 2000, Rambus filed a complaint against us and Reptronic (a distributor of our products) in Court of First Instance of Paris, France; on September 29, 2000, we filed suit against Rambus in the Civil Court of Milan, Italy, alleging invalidity and non-infringement.  In addition, on December 29, 2000, we filed suit against Rambus in the Civil Court of Avezzano, Italy, alleging invalidity and non-infringement of the Italian counterpart to European patent 1 004 956.  On August 10, 2001, Rambus filed suit against us and Assitec (an electronics retailer) in the Civil Court of Pavia, Italy, alleging that certain DDR SDRAM products infringe the Italian counterpart to European patent 1 022 642.  In the European suits against us, Rambus is seeking monetary damages and injunctive relief.  We also are engaged in litigation with Motorola, Inc. (“Motorola”) and Freescale Semiconductor, Inc., a subsidiary of Motorola (“Freescale”), relating to certain of our patents and certain of Freescale’s patents.  On January 8, 2004, Motorola filed suit against us in the U.S. District Court for the Western District of Texas (Austin) alleging infringement of ten Motorola patents.  On March 15, 2004, we filed an answer and a counterclaim alleging infringement of seventeen of our patents.  Freescale was later added as a party with Motorola.  On March 30, 2004, we filed a separate action against Motorola in the U.S. District Court for the Western District of Wisconsin (Madison) alleging infringement of six additional of our patents, and we added a seventh patent in an amended complaint filed on April 23, 2004.  On June 10, 2004, the Wisconsin court granted Motorola’s motion to transfer the case to Texas, but a motion for reconsideration is pending.  The above lawsuits pertain to certain of our SDRAM and DDR DRAM products, which account for a significant portion of our net sales.  We are unable to predict the outcome of these suits.  A court determination that our products or manufacturing processes infringe the intellectual property rights of others could result in significant liability and/or require us to make material changes to our products and/or manufacturing processes.  Any of the foregoing results could have a material adverse effect on our business, results of operations or financial condition.

 

22

 

We have a number of patent and intellectual property license agreements.  Some of these license agreements require us to make one time or periodic payments.  We may need to obtain additional patent licenses or renew existing license agreements in the future.  We are unable to predict whether these license agreements can be obtained or renewed on acceptable terms.

 

Allegations of antitrust violations.

 

On June 17, 2002, we received a grand jury subpoena from the U.S. District Court for the Northern District of California seeking information regarding an investigation by the Antitrust Division of the Department of Justice (the “DOJ”) into possible antitrust violations in the “Dynamic Random Access Memory” or “DRAM” industry.  We are cooperating fully and actively with the DOJ in its investigation of the DRAM industry.

 

Subsequent to the commencement of the DOJ investigation, a number of purported class action lawsuits were filed against us and other DRAM suppliers.  Sixteen cases were filed between June 21, 2002, and September 19, 2002, in the following federal district courts:  one in the Southern District of New York, five in the District of Idaho and ten in the Northern District of California.  Each of the federal district court cases purports to be on behalf of a class of individuals and entities who purchased DRAM directly from the various DRAM suppliers during a specified time period commencing on or after October 1, 2001.  The complaints allege price-fixing in violation of the Sherman Act and seek treble monetary damages, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  The foregoing federal district court cases were transferred to the U.S. District Court for the Northern District of California (San Francisco) for consolidated proceedings.  On October 6, 2003, the plaintiffs filed a consolidated amended class action complaint.  The consolidated amended complaint purports to be on behalf of a class of individuals and entities who purchased DRAM directly from the various DRAM suppliers during the period from approximately November 1, 2001 through at least June 30, 2002.  The consolidated amended complaint alleges price-fixing in violation of the Sherman Act and seeks treble monetary damages, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  Eight additional cases were filed between August 2, 2002, and March 11, 2003, in the following California state superior courts:  five in San Francisco County, one in Santa Clara County, one in Los Angeles County and one in Humboldt County.  Each of the California state cases purports to be on behalf of a class of individuals and entities who indirectly purchased DRAM during a specified time period commencing December 1, 2001.  The complaints allege violations of California’s Cartwright Act and state unfair competition law and unjust enrichment and seek treble monetary damages, restitution, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  The foregoing California state cases were transferred to San Francisco County Superior Court for consolidated proceedings.  On October 15, 2003, the plaintiffs filed a consolidated amended class action complaint.  The consolidated amended complaint purports to be on behalf of a class of individuals and entities who purchased DRAM indirectly from the various DRAM suppliers during the period from November 1, 2001 through June 30, 2002.  The consolidated amended complaint alleges violations of California’s Cartwright Act and state unfair competition law and unjust enrichment and seeks treble monetary damages, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  An additional case was filed on March 16, 2004 in state court in Salem, Massachusetts.  It purports to be on behalf of a class of individuals and entities who indirectly purchased DRAM in Massachusetts between November 1, 2001 and June 30, 2002.  The complaint alleges unjust enrichment relating to the sale and pricing of DRAM products and seeks an unspecified amount of restitution.  We are unable to predict the outcome of these suits.  Based upon our analysis of the claims made and the nature of the DRAM industry, we believe that class treatment of these cases is not appropriate and that any purported injury alleged by plaintiffs would be more appropriately resolved on a customer-by-customer basis.

 

Although we do not know what actions the DOJ will take with respect to its investigation, or what determinations it may make with respect to other DRAM companies subject to the investigation, in some instances DOJ investigations involving other industries have resulted in indictments being brought against, or in plea agreements being entered into with, companies and/or individuals, resulting in fines and/or penalties against such companies or individuals.  While we do not expect to be subject to any such DOJ fines or penalties, the announcement by the DOJ of any indictments, or plea agreements, involving fines or penalties against or with other DRAM companies could have an adverse impact on settlement or resolution of our civil suits relating to the subject matter of the investigation.  We can give no assurance that final resolution of these civil suits will not result in significant liability and will not have a material adverse effect on our business, results of operations or financial condition.

 

23

 

Allegations of anticompetitive conduct.

 

On May 5, 2004, Rambus, Inc. (“Rambus”) filed a complaint in the Superior Court of the State of California (San Francisco County) against us and other DRAM suppliers.  The complaint alleges certain causes of action under California state law including conspiracy to restrict output and fix prices on Rambus DRAM (“RDRAM”), conspiracy to monopolize various relevant markets, intentional interference with prospective economic advantage relating to RDRAM, and unfair competition to disadvantage RDRAM.  The complaint seeks treble damages, punitive damages, attorneys’ fees, costs, and a permanent injunction enjoining the defendants from the conduct alleged in the complaint.  We are unable to predict the outcome of the suit.  A court determination against us could result in significant liability and could have a material adverse effect on our business, results of operations or financial condition.

 

New product development may be unsuccessful.

 

We are developing new products that complement our traditional memory products or leverage their underlying design or process technology.  We anticipate expending significant resources for new semiconductor product development over the next several years.  There can be no assurance that our product development efforts will be successful, that we will be able to cost-effectively manufacture these new products, that we will be able to successfully market these products or that margins generated from sales of these products will recover costs of development efforts.

 

We face risks associated with our international sales and operations that could materially adversely affect our business, results of operations or financial condition.

 

Sales to customers outside the United States approximated 61% of our consolidated net sales for the third quarter of 2004.  In addition, we have manufacturing operations in Italy, Japan, Puerto Rico, Scotland and Singapore.  Our international sales and operations are subject to a variety of risks, including:

 

•                  currency exchange rate fluctuations,

 

•                  export duties, changes to import and export regulations, and restrictions on the transfer of funds,

 

•                  political and economic instability,

 

•                  problems with the transportation or delivery of our products,

 

•                  issues arising from cultural or language differences and labor unrest,

 

•                  longer payment cycles and greater difficulty in collecting accounts receivable, and

 

•                  compliance with trade and other laws in a variety of jurisdictions.

 

These factors may materially adversely affect our business, results of operations or financial condition.

 

If our manufacturing process is disrupted, our business, results of operations or financial condition could be materially adversely affected.

 

We manufacture products using highly complex processes that require technologically advanced equipment and continuous modification to improve yields and performance.  Difficulties in the manufacturing process can reduce yields or disrupt production and may increase our per megabit manufacturing costs.  From time to time, we have experienced minor disruptions in our manufacturing process as a result of power outages.  If production at a fabrication facility is disrupted for any reason, manufacturing yields may be adversely affected or we may be unable to meet our customers’ requirements and they may purchase products from other suppliers.  This could result in a significant increase in manufacturing costs or loss of revenues or damage to customer relationships, which could materially adversely affect our business results of operations or financial condition.

 

24

 

Disruptions in our supply of raw materials could materially adversely affect our business, results of operations or financial condition.

 

Our operations require raw materials that meet exacting standards.  We generally have multiple sources of supply for our raw materials.  However, only a limited number of suppliers are capable of delivering certain raw materials that meet our standards.  Various factors could reduce the availability of raw materials such as silicon wafers, photomasks, chemicals, gases, lead frames and molding compound.  Shortages may occur from time to time in the future.  In addition, any transportation problems could delay our receipt of raw materials.  Lead times for the supply of raw materials have been extended in the past.  If our supply of raw materials is disrupted or our lead times extended, our business, results of operations or financial condition could be materially adversely affected.

 

If we fail to achieve certain milestones, we could be obligated to pay Intel Corporation amounts up to $135 million.

 

In conjunction with the issuance of stock rights to Intel in September 2003, we agreed to achieve operational objectives through May 2005, including certain levels of DDR2 production and 300 mm wafer processing capacity, and dedication of resources to advanced product development.  If we fail to achieve certain 2005 milestones and our common stock price is then below Intel’s purchase price of $13.29, we could be obligated to pay Intel amounts up to $135 million, a substantial portion of which is payable, at our election, in our common stock.

 

Products that do not meet specifications or that contain, or are perceived by our customers to contain, defects or that are otherwise incompatible with end uses could impose significant costs on us or otherwise materially adversely affect our business, results of operations or financial condition.

 

Because the design and production process for semiconductor memory is highly complex, it is possible that we may produce products that do not comply with customer specifications, contain defects or are otherwise incompatible with end uses.  If, despite design review, quality control and product qualification procedures, problems with nonconforming, defective or incompatible products occur after we have shipped such products, we could be adversely affected in the following ways:

 

•                  we may replace product or otherwise compensate customers for costs incurred or damages caused by defective or incompatible product, and

 

•                  we may encounter adverse publicity, which could cause a decrease in sales of our products.

 

We expect to make future acquisitions where advisable, which involve numerous risks.

 

We expect to make future acquisitions where we believe it is advisable to enhance our shareholder value.  Acquisitions involve numerous risks, including:

 

•                  increasing our exposure to changes in average selling prices for semiconductor memory products,

 

•                  difficulties in integrating the operations, technologies and products of the acquired companies,

 

•                  increasing capital expenditures to upgrade and maintain facilities,

 

•                  increasing debt to finance any acquisition,

 

•                  diverting management’s attention from normal daily operations,

 

•                  managing larger operations and facilities and employees in separate geographic areas, and

 

•                  hiring and retaining key employees.

 

Mergers and acquisitions of high-technology companies are inherently risky, and future acquisitions may not be successful and may materially adversely affect our business, results of operations or financial condition.

 

25

 

Item 3.  Quantitative and Qualitative Disclosures about Market Risk

 

Interest Rate Risk

 

Substantially all of the Company’s investments are at fixed interest rates; therefore, the fair value of these instruments is affected by changes in market interest rates.  The Company believes that the market risk arising from its holdings of investments is minimal as the Company’s investments generally mature within one year.

 

Substantially all of the Company’s debt is at fixed interest rates; therefore, the fair value of the debt fluctuates based on changes in market interest rates.  The estimated fair market value of the Company’s debt approximated $1.3 billion as of June 3, 2004 and August 28, 2003.  The Company entered into an interest rate swap agreement (the “Swap”) that effectively converted, beginning August 29, 2003, the 2.5% fixed interest rate on the Company’s $632.5 million Convertible Subordinated Notes (the “Notes”) to a variable interest rate based on the 3-month London Interbank Offering Rate (“LIBOR”) less 65 basis points.  The Swap qualifies as a fair-value hedge under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities.”  The gain or loss from changes in the fair value of the Swap is expected to be highly effective at offsetting the gain or loss from changes in the fair value of the Notes attributable to changes in interest rates.

 

Foreign Currency Exchange Rate Risk

 

The functional currency for substantially all of the Company’s operations is the U.S. dollar.  The Company held aggregate cash and other assets in foreign currency valued at U.S. $147.5 million as of June 3, 2004, and U.S. $203.1 million as of August 28, 2003 (including deferred income tax assets denominated in Japanese yen valued at U.S. $71.7 million as of June 3, 2004, and U.S. $105.4 million as of August 28, 2003).  The Company also held aggregate foreign currency liabilities valued at U.S. $389.8 million as of June 3, 2004, and U.S. $513.2 million as of August 28, 2003 (including debt denominated in Japanese yen valued at U.S. $114.4 million as of June 3, 2004, and U.S. $170.5 million as of August 28, 2003).  Foreign currency receivables and payables as of June 3, 2004, were comprised primarily of Japanese yen, euros, Singapore dollars and British pounds.  The Company estimates that, based on its assets and liabilities denominated in currencies other than U.S. dollar as of June 3, 2004, a 1% change in the exchange rate versus the U.S. dollar would result in foreign currency gains or losses of approximately $2 million for the Japanese yen and $1 million for the euro.

 

Item 4.  Controls and Procedures

 

An evaluation was carried out under the supervision and with the participation of the Company’s management, including its Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in Rule 13a-14 and 15d-14 under the Securities Exchange Act of 1934) as of the end of the period covered by this report.  Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that those disclosure controls and procedures were effective to ensure that material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.

 

During the quarterly period covered by this report, there were no significant changes in the Company’s internal controls over financial reporting that have materially affected, or are reasonably likely to materially affect, the Company’s internal controls over financial reporting.

 

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PART II.  OTHER INFORMATION

 

Item 1.  Legal Proceedings

 

On February 1, 2001, the Company filed a complaint (amended) against Rambus, Inc. (“Rambus”) in U.S. District Court for the District of Delaware seeking monetary damages and declaratory and injunctive relief.  Among other things, the Company’s amended complaint alleges violation of federal antitrust laws, breach of contract, fraud, deceptive trade practices, and negligent misrepresentation.  The complaint also seeks a declaratory judgment (a) that certain Rambus patents are not infringed by the Company, are invalid, and/or are unenforceable (b) that the Company has an implied license to those patents and (c) that Rambus is estopped from enforcing those patents against the Company.  On February 15, 2001, Rambus filed an answer and counterclaim in Delaware denying that the Company is entitled to relief, alleging infringement of the eight Rambus patents named in the Company’s declaratory judgment claim, and seeking monetary damages and injunctive relief.  A number of other suits are currently pending in Europe alleging that certain of the Company’s SDRAM and DDR SDRAM products infringe various of Rambus’ country counterparts to its European patent 525 068, including:  on September 1, 2000, Rambus filed suit against Micron Semiconductor (Deutschland) GmbH in the District Court of Mannheim, Germany; on September 13, 2000, Rambus filed suit against Micron Europe Limited in the High Court of Justice, Chancery Division in London, England;  on September 22, 2000, Rambus filed a complaint against the Company and Reptronic (a distributor of our products) in Court of First Instance of Paris, France; on September 29, 2000, the Company filed suit against Rambus in the Civil Court of Milan, Italy, alleging invalidity and non-infringement.  In addition, on December 29, 2000, the Company filed suit against Rambus in the Civil Court of Avezzano, Italy, alleging invalidity and non-infringement of the Italian counterpart to European patent 1 004 956.  On August 10, 2001, Rambus filed suit against the Company and Assitec (an electronics retailer) in the Civil Court of Pavia, Italy, alleging that certain DDR SDRAM products infringe the Italian counterpart to European patent 1 022 642.  In the European suits against the Company, Rambus is seeking monetary damages and injunctive relief.  These lawsuits pertain to certain of our SDRAM and DDR DRAM products, which account for a significant portion of our net sales.  The Company is unable to predict the outcome of these suits.

 

On January 8, 2004, Motorola, Inc. (“Motorola”) filed suit against the Company in the U.S. District Court for the Western District of Texas (Austin) alleging infringement of ten Motorola patents.  On March 15, 2004, the Company filed an answer and a counterclaim alleging infringement of seventeen of the Company’s patents.  Freescale Semiconductor, Inc., a subsidiary of Motorola (“Freescale”), was later added as a party with Motorola.  On March 30, 2004, the Company filed a separate action against Motorola in the U.S. District Court for the Western District of Wisconsin (Madison) alleging infringement of six additional of the Company’s patents, and the Company added a seventh patent in an amended complaint filed on April 23, 2004.  On June 10, 2004, the Wisconsin court granted Motorola’s motion to transfer the case to Texas, but a motion for reconsideration is pending.  These lawsuits pertain to certain of the Company’s SDRAM and DDR DRAM products, which account for a significant portion of the Company’s net sales.  The Company is unable to predict the outcome of these suits.

 

A court determination that the Company’s products or manufacturing processes infringe the product or process intellectual property rights of others could result in significant liability and/or require the Company to make material changes to its products and/or manufacturing processes.  Any of the foregoing results could have a material adverse effect on the Company’s business, results of operations or financial condition.

 

On June 17, 2002, the Company received a grand jury subpoena from the U.S. District Court for the Northern District of California seeking information regarding an investigation by the Antitrust Division of the Department of Justice (the “DOJ”) into possible antitrust violations in the “Dynamic Random Access Memory” or “DRAM” industry.  The Company is cooperating fully and actively with the DOJ in its investigation.  Subsequent to the commencement of the DOJ investigation, a number of purported class action lawsuits were filed against the Company and other DRAM suppliers.  Sixteen cases were filed between June 21, 2002, and September 19, 2002, in the following federal district courts:  one in the Southern District of New York, five in the District of Idaho and ten in the Northern District of California.  Each of the federal district court cases purports to be on behalf of a class of individuals and entities who purchased DRAM directly from the various DRAM suppliers during a specified time period commencing on or after October 1, 2001.  The complaints allege price-fixing in violation of the Sherman Act and seek treble monetary damages, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  The foregoing federal district court cases were transferred to the U.S. District Court for the Northern District of

 

27

 

California (San Francisco) for consolidated proceedings.  On October 6, 2003, the plaintiffs filed a consolidated amended class action complaint.  The consolidated amended complaint purports to be on behalf of a class of individuals and entities who purchased DRAM directly from the various DRAM suppliers during the period from approximately November 1, 2001 through at least June 30, 2002.  The consolidated amended complaint alleges price-fixing in violation of the Sherman Act and seeks treble monetary damages, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  Eight additional cases were filed between August 2, 2002, and March 11, 2003, in the following California state superior courts:  five in San Francisco County, one in Santa Clara County, one in Los Angeles County and one in Humboldt County.  Each of the California state cases purports to be on behalf of a class of individuals and entities who indirectly purchased DRAM during a specified time period commencing December 1, 2001.  The complaints allege violations of California’s Cartwright Act and state unfair competition law and unjust enrichment and seek treble monetary damages, restitution, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  The foregoing California state cases were transferred to San Francisco County Superior Court for consolidated proceedings.  On October 15, 2003, the plaintiffs filed a consolidated amended class action complaint.  The consolidated amended complaint purports to be on behalf of a class of individuals and entities who purchased DRAM indirectly from the various DRAM suppliers during the period from November 1, 2001 through June 30, 2002.  The consolidated amended complaint alleges violations of California’s Cartwright Act and state unfair competition law and unjust enrichment and seeks treble monetary damages, costs, attorneys’ fees, and an injunction against the allegedly unlawful conduct.  An additional case was filed on March 16, 2004 in state court in Salem, Massachusetts.  It purports to be on behalf of a class of individuals and entities who indirectly purchased DRAM in Massachusetts between November 1, 2001 and June 30, 2002.  The complaint alleges unjust enrichment relating to the sale and pricing of DRAM products and seeks an unspecified amount of restitution.  The Company is unable to predict the outcome of these suits.  Based upon the Company’s analysis of the claims made and the nature of the DRAM industry, the Company believes that class treatment of these cases is not appropriate and that any purported injury alleged by plaintiffs would be more appropriately resolved on a customer-by-customer basis.  The Company can give no assurance that the final resolution will not result in significant liability and will not have a material adverse effect on the Company’s business, results of operations or financial condition.

 

On May 5, 2004, Rambus filed a complaint in the Superior Court of the State of California (San Francisco County) against the Company and other DRAM suppliers.  The complaint alleges certain causes of action under California state law including a conspiracy to restrict output and fix prices on Rambus DRAM (“RDRAM”), a conspiracy to monopolize various relevant markets, intentional interference with prospective economic advantage relating to RDRAM, and unfair competition to disadvantage RDRAM.  The complaint seeks treble damages, punitive damages, attorneys’ fees, costs, and a permanent injunction enjoining the defendants from the conduct alleged in the complaint.  The Company is unable to predict the outcome of the suit.  A court determination against the Company could result in significant liability and could have a material adverse effect on the Company’s business, results of operations or financial condition.

 

(See “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations - Certain Factors.”)

 

Item 6.  Exhibits and Reports on Form 8-K

 

(a)          The following are filed as a part of this report:

 

Exhibit Number			Description of Exhibit
3.1			Restated Certificate of Incorporation of the Registrant (1)
3.7			Bylaws of the Registrant, as amended
31.1			Rule 13a-14(a) Certification of Chief Executive Officer
31.2			Rule 13a-14(a) Certification of Chief Financial Officer
32.1			Certification of Chief Executive Officer Pursuant to 18 U.S.C. 1350
32.2			Certification of Chief Financial Officer Pursuant to 18 U.S.C. 1350

 

(1)          Incorporated by reference to Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 2001

 

28

 

(b)         The registrant filed the following reports on Form 8-K during the fiscal quarter ended June 3, 2004:

 

Date		Item
March 24, 2004		Item 7, Financial Statements and Exhibits
		Item 12, Disclosure of Results of Operations and Financial Condition

 

29

 

SIGNATURES

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

	Micron Technology, Inc.
	(Registrant)
Dated:  July 16, 2004	/s/ W. G. Stover, Jr.
	W. G. Stover, Jr., Vice President of Finance and
	Chief Financial Officer (Principal Financial and
	Accounting Officer)

 

30

EXHIBIT 3.7

 

BYLAWS

OF

MICRON TECHNOLOGY, INC.

 

ARTICLE I

 

OFFICES

 

SECTION 1.                                The registered office shall be 100 West Tenth Street, in the City of Wilmington, County of New Castle, State of Delaware.

 

SECTION 2.                                The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

SECTION 1.                                All meetings of the stockholders shall be held at the principal office of the corporation in the City of Boise, State of Idaho, or at such other place either within or without the State of Delaware as shall be designated in the notice of the meeting or in a duly executed waiver of notice thereof.

 

SECTION 2.                                Annual meetings of stockholders shall be held on such day and such hour as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.  At such meeting, the stockholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting.

 

SECTION 3.                                Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

 

SECTION 4.                                The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

 

SECTION 5.                                Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the Board of Directors, the Chairman of the Board, the president, or by the holders of shares entitled to cast not less than twenty percent (20%) of the votes at the meeting.  Such request shall state the purpose or purposes of the proposed meeting.

 

SECTION 6.                                Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

 

 

SECTION 7.                                Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

 

SECTION 8.                                The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation.  If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.  At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.  If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

SECTION 9.                                When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the Certificate of Incorporation, a different vote is required in which case such express provision shall govern and control the decision of the question.

 

SECTION 10.                          Unless otherwise provided in the Certificate of Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, regardless of class, but no proxy shall be voted on or after three years from its date, unless the proxy provides for a longer period.  Vote may be viva voice or by ballot; provided, however, that elections for directors must be by ballot upon demand by a shareholder at the meeting and before the voting begins. At all elections of directors of the corporation each stockholder having voting power shall be entitled to exercise the right of cumulative voting as provided in the Certificate of Incorporation.

 

SECTION 11.                          Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, of a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

ARTICLE III

 

DIRECTORS

 

SECTION 1.                                The authorized number of directors of the corporation shall be nine.  The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

SECTION 2.                                The directors shall be elected at each annual meeting of shareholders, but if any such annual meeting is not held, or the directors are not elected thereat, the directors may be elected at any special meeting of the shareholders held for that purpose.  All directors shall hold office until the expiration of the term for which elected and until their respective successors are elected, except in the case of death, resignation or removal of any director.  A director need not be a shareholder.

 

SECTION 3.                                Any director may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary or the Board of Directors of the corporation, unless the notice specifies a late time for the effectiveness of such resignation.  If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective.

 

 

SECTION 4.                                The entire Board of Directors or any individual director may be removed from office, prior to the expiration of their or his term of office only in the manner and within the limitations provided by the General Corporation Law of Delaware.

 

No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.

 

SECTION 5.                                A vacancy in the Board of Directors shall be deemed to exist in case of the death, resignation or removal of any director, or if the authorized number of directors be increased, or if the shareholders fail at any annual or special meeting of shareholders at which any director or directors are elected to elect the full authorized number of directors to be voted for at that meeting.

 

Vacancies in the Board of Directors may be filled by a majority of the directors then in office, whether or not less than a quorum, or by a sole remaining director.  Each director so elected shall hold office until the expiration of the term for which he was elected and until his successor is elected at an annual or a special meeting of the shareholders, or until his death, resignation or removal.

 

The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors.  Any such election by written consent shall require the consent of a majority of the outstanding shares entitled to vote.

 

SECTION 6.                                The business of the corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or these Bylaws directed or required to be exercised or done by the stockholders.

 

MEETINGS OF THE BOARD OF DIRECTORS

 

SECTION 7.                                The Board of Directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware.

 

SECTION 8.                                The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present.  In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors.

 

SECTION 9.                                Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board.

 

SECTION 10.                          Special meetings of the Board may be called by the president on two days’ notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the Chairman of the Board or two directors.

 

SECTION 11.                          At all meetings of the Board a majority of the authorized number of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation.  If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

 

 

SECTION 12.                          Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

 

SECTION 13.                          Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

 

COMMITTEES OF DIRECTORS

 

SECTION 14.                          The Board of Directors may, by resolution passed by a majority of the authorized number of directors, appoint an executive committee consisting of two or more of the directors of the corporation.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  The executive committee, to the extent provided in the resolution of the Board of Directors and subject to any limitation by statute, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but it shall not have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the Bylaws of the corporation; and, unless the resolution or the Certificate of Incorporation expressly so provide, it shall not have the power or authority to declare a dividend or to authorize the issuance of stock.

 

SECTION 15.                          The Board of Directors may, by resolution adopted by a majority of the authorized number of directors, designate such other committees, each consisting of 2 or more directors, as it may from time to time deem advisable to perform such general or special duties as may from time to time be delegated to any such committee by the Board of Directors, subject to the limitations imposed by statute or by the Certificate of Incorporation or by these Bylaws.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee.

 

COMPENSATION OF DIRECTORS

 

SECTION 17.                          Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors.  The directors may be paid their expenses, if any, of attendance of each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director.  No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor.  Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

ARTICLE IV

 

NOTICES

 

SECTION 1.                                Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail.  Notice to directors may also be given by telegram.

 

 

SECTION 2.                                Whenever any notice is required to be given under the provisions of the Delaware statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

ARTICLE V

 

OFFICERS

 

SECTION 1.                                The officers of the corporation shall be chosen by the Board of Directors, and shall be a president, a vice-president, a secretary, and a treasurer.  The Board of Directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.

 

SECTION 2.                                The Board of Directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer.

 

SECTION 3.                                The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.

 

SECTION 4.                                The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors.

 

SECTION 5.                                The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors.  Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors.

 

Any officer may resign at any time by giving written notice to the corporation.  Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

THE CHAIRMAN OF THE BOARD

 

SECTION 6.                                The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors, and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by these Bylaws.

 

THE PRESIDENT

 

SECTION 7.     Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the general manager of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and officers of the corporation.  He shall preside at all meetings of the shareholders and in the absence of the Chairman of the Board or if there be none, at all meetings of the Board of Directors.  He shall be ex officio a member of all the standing committees, including the executive committee, if any, and shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or by these Bylaws.

 

SECTION 8.                                He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation.

 

 

THE VICE-PRESIDENTS

 

SECTION 9.                                In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

 

SECRETARY AND ASSISTANT SECRETARY

 

SECTION 10.                          The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required.  He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision he shall be placed.  He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature.

 

SECTION 11.                          The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

 

THE TREASURER AND ASSISTANT TREASURERS

 

SECTION 12.                          The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors.

 

SECTION 13.                          He shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the president and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation.

 

SECTION 14.                          If required by the Board of Directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.

 

SECTION 15.                          If the assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

 

 

ARTICLE VI

 

CERTIFICATE OF STOCK

 

SECTION 1.                                Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice chairman of the Board of Directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation.

 

Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon shall be specified.

 

If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualification, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face of back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

SECTION 2.                                Any or all of the signatures on the certificate may be facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature have been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

 

LOST CERTIFICATES

 

SECTION 3.                                The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issues by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit to that fact by the person claiming the certificate of stock to be lost, stolen or destroyed.  When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

 

TRANSFER OF STOCK

 

SECTION 4.                                Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

FIXING RECORD DATE

 

SECTION 5.                                In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any such other action.  A

 

 

determination of shareholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

REGISTERED STOCKHOLDERS

 

SECTION 6.                                The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

 

SECTION 7.                                The accounting books and records, and minutes of proceedings of the shareholders and the Board of Directors and committees of the Board shall be open to inspection upon written demand made upon the corporation by any shareholder or the holder of a voting trust certificate, at any reasonable time during usual business hours, for a purpose reasonably related to his interest as a shareholder, or as the holder of such voting trust certificate.  The record of shareholders shall also be open to inspection by any shareholder or holder of a voting trust certificate at any time during usual business hours upon written demand on the corporation, for a purpose reasonably related to such holder’s interest as a shareholder or holder of a voting trust certificate.  Such inspection may be made in person or by an agent or attorney, and shall include the right to copy and to make extracts.

 

ARTICLE VII

 

GENERAL PROVISIONS

 

DIVIDENDS

 

SECTION 1.                                Dividends upon the capital stock of the corporation, subject to the provision of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law.  Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

 

SECTION 2.                                Before payment of any dividend, there may be set aside out of funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.

 

CHECKS

 

SECTION 3.                                All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

 

FISCAL YEAR

 

SECTION 4.                                The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.

 

SEAL

 

SECTION 5.                                The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware.”  The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

 

INDEMNIFICATION

 

SECTION 6.                                The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware.

 

ARTICLE VIII

 

AMENDMENTS

 

SECTION 1.                                These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the stockholders or by the Board of Directors at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or the Board of Directors if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such special meeting.  If the power to adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal Bylaws.

 

I, Nancy A. Stanger, the secretary of Micron Technology, Inc., a Delaware corporation, hereby certify:

 

The foregoing bylaws, comprising 14 pages, were adopted as the bylaws of Micron Technology on May 21, 1984.

 

DATED:   May 25, 1984

Nancy A. Stanger

Nancy A. Stanger

SEAL

 

 

CERTIFICATE OF FIRST AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

We, the undersigned, being the President and Secretary, respectively, of MICRON TECHNOLOGY, INC., a corporation organized and existing under the laws of the State of Delaware, do hereby certify that a meeting of the Board of Directors of this Corporation was held on December 17, 1984 and an amendment to the Bylaws of MICRON TECHNOLOGY, INC. was unanimously adopted.

 

The amendment adopted was pursuant to a Resolution reading as follows:

 

RESOLVED:  The Board hereby approves that the second paragraph of Article II Section 10 of the Bylaws of the Company be amended to read as follows:

 

“At all elections of directors of the corporation each stockholder having voting power shall be entitled to exercise the right of cumulative voting as provided in the Certificate of Incorporation. However, no stockholder shall be entitled to cumulate votes for a candidate or candidates unless such candidate’s name or candidate’s names have been placed in nomination prior to the voting and a stockholder has given notice at the meeting prior to the voting of the stockholder’s intention to cumulate votes.  If any stockholder has given such notice, all stockholders may cumulate their votes for candidates in nomination.”

 

IN WITNESS WHEREOF, we have hereunto set our hands and the seal of the Corporation this 5th day of July, 1985.

 

MICRON TECHNOLOGY, INC.
BY:	Joseph L. Parkinson
Joseph L. Parkinson, President
(SEAL)
BY:	Cathy L. Smith
Cathy L. Smith, Secretary
STATE OF IDAHO		)
		)  ss.
County of Ada		)

 

On this 5th day of July, 1985, before me, the undersigned, personally appeared JOSEPH L. PARKINSON and CATHY L. SMITH, known to me to be the President and Secretary, respectively, of MICRON TECHNOLOGY, INC., the corporation that executed the instrument or the persons who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in said County the day and year first above written.

 

Jill L. Henson

Notary Public for Idaho Residing at Boise

 

 

CERTIFICATE OF SECOND AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on March 3, 1986:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be ten. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of said corporation effective as of the 3rd day of March, 1986.

 

Cathy L. Smith

Corporate Secretary

(SEAL)

 

 

CERTIFICATE THIRD AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on November 24, 1986:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be nine. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 24th day of November, 1986.

 

Cathy L. Smith

Corporate Secretary

(SEAL)

 

 

CERTIFICATE OF FOURTH AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on September 28, 1987:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be eight. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 28th day of September, 1987.

 

Cathy L. Smith

Cathy L. Smith

Corporate Secretary

(SEAL)

 

 

CERTIFICATE OF FIFTH AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on March 28, 1988:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be nine. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 28th day of March, 1988.

 

Cathy L. Smith

Corporate Secretary

(SEAL)

 

 

CERTIFICATE OF SIXTH AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on October 3, 1988:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be ten. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 17th day of October, 1988.

 

Cathy L. Smith

Corporate Secretary

(SEAL)

 

 

CERTIFICATE OF SEVENTH AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on September 25, 1989:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be nine. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 28th day September, 1989.

 

Cathy L. Smith

Corporate Secretary

(SEAL)

 

 

CERTIFICATE OF EIGHTH AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on October 30, 1989:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be eight. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 30th day of October, 1989.

 

Cathy L. Smith—

Corporate Secretary

(SEAL)

 

 

CERTIFICATE OF NINTH AMENDMENT

TO THE BYLAWS OF

MICRON TECHNOLOGY, INC.

 

I, Cathy L. Smith, Corporate Secretary of Micron Technology, Inc., a Delaware corporation, hereby certify that the following resolution was adopted by the Board of Directors on August 27, 1990:

 

RESOLVED:  Article III Section 1 of the Bylaws of this corporation are hereby amended to read as follows:

 

SECTION 1.  The authorized number of directors of the Corporation shall be nine. The number of directors provided in this Section 1 may be changed by a Bylaw duly adopted by the affirmative vote of a majority of the outstanding shares entitled to vote or by a resolution of the Board of Directors.

 

IN WITNESS WHEREOF, I hereunto set my hand and affixed the corporate seal of said corporation effective as of the 27th day of August, 1990.

 

Cathy L. Smith

Corporate Secretary

(SEAL)