As filed with the Securities and Exchange Commission on August 5, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3 Registration Statement
Under the Securities Act of 1933
MICROVISION, INC.
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1600822
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
19910 North Creek Parkway
Bothell, WA 98011-3008
(425) 415-6847 (telephone)
(425) 415-0066 (facsimile)
(Address, including zip code, and telephone and facsimile numbers,
including area code, of principal executive offices)
Richard A. Raisig, Chief Financial Officer
19910 North Creek Parkway
Bothell, WA 98011-3008
(425) 415-6614 (telephone)
(425) 481-1625 (facsimile)
(Name, address, including zip code,
and telephone and facsimile numbers, including area
code, of agent for service)
Copy to:
Christopher J. Voss
Stoel Rives LLP
One Union Square, 36th Floor
Seattle, WA 98101-3197
(206) 624-0900 (telephone)
(206) 386-7500 (facsimile)
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective
If the only securities being registered on this Form are to be offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with a dividend or
interest reinvestment plan, check the following box. [X]
<PAGE>
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Amount Proposed Maximum Proposed Maximum Amount of
Class of Securities to be Offering Price Per Aggregate Offering Registration
Registered Registered Share Price Fee
- -------------------- -------------- --------------------- ------------------------- --------------
<S> <C> <C> <C> <C>
Common Stock, 268,600 $20.6875 (1) $5,556,663 (1) $1,545
no par value shares
<FN>
(1) The proposed maximum offering price per share and maximum aggregate offering
price are calculated in accordance with Rule 457(c) under the Securities Act.
</FN>
</TABLE>
The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS, Subject to Completion, dated August 5, 1999
MICROVISION, INC.
268,600 shares of Common Stock
These shares of common stock are being offered and sold from time to time
by one of our current shareholders. We issued the shares to the selling
shareholder in connection with an investment that the selling shareholder made
in the Company in May 1999.
The selling shareholder may sell the shares from time to time at fixed
prices, market prices, prices computed with formulas based on market prices, or
at negotiated prices, and may engage a broker or dealer to sell the shares. For
additional information on the selling shareholder's possible methods of sale,
you should refer to the section of this prospectus entitled "Plan of
Distribution" on page 12. We will not receive any proceeds from the sale of the
shares, but will bear the costs relating to the registration of the shares.
Our common stock is traded on the Nasdaq National Market under the symbol
"MVIS." On July 30, 1999, the closing price for our common stock was $19.875 per
share.
This shares offered in this prospectus involve a high degree of risk. You
should carefully consider the "Risk Factors" beginning on page 4 in determining
whether to purchase shares of our common stock or the common stock purchase
warrants.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved the shares, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is _____, 1999.
<PAGE>
TABLE OF CONTENTS
Section Page
Our Business 3
Risk Factors 4
Selling Shareholder 11
Plan of Distribution 12
Experts 13
Limitation of Liability and Indemnification 13
Information Incorporated by Reference 14
Available Information 14
You should rely only on information contained or incorporated by reference
in this prospectus. See "Information Incorporated by Reference" on page 14.
Neither Microvision nor the selling shareholder has authorized any other person
to provide you with information different from that contained in this
prospectus.
The shares of common stock are not being offered in any jurisdiction where
the offering is not permitted.
The information contained in this prospectus is correct only as of the date
on the cover, regardless of the date this prospectus was delivered to you or the
date on which you acquired any of the shares.
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OUR BUSINESS
Microvision develops information display technologies that allow
electronically generated images and information to be projected to the retina of
the viewer's eye. We have developed prototype Virtual Retinal DisplayTM
("VRDTM") devices, including portable color and monochrome versions, and
currently are refining, developing and marketing our VRD technology for
commercial applications. We expect to commercialize our technology through the
development of products and as a supplier of personal display technology to
original equipment manufacturers. We believe the VRD technology will be useful
in a variety of applications, including portable communications and visual
simulation for defense, medical, industrial and consumer markets that may
include superimposing images on the user's field of vision. We expect that our
technology will allow for the production of highly miniaturized, lightweight,
battery-operated displays that can be held or worn comfortably. Microvision's
scanning technology also may be applied to the capturing of images, in such
possible applications as a digital camera or a bar code reader.
Our objective is to be a leading provider of personal display products and
imaging technology in a broad range of professional and consumer applications.
We intend to achieve this objective and to generate revenues by licensing our
technology to original equipment manufacturers of consumer electronics products;
providing engineering services associated with cooperative development
arrangements and research contracts; and manufacturing and selling
high-performance personal display products to professional users, directly or
through joint ventures.
Microvision was incorporated in 1993. Our principal executive offices are
located at 19910 North Creek Parkway, Bothell, WA 98011-3008, and our telephone
number is (425) 415-6847.
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RISK FACTORS
You should carefully consider the following factors and other information
in this prospectus before deciding to invest in Microvision's common stock. You
should not purchase any of the shares of common stock unless you can afford a
complete loss of your investment.
Our Technology May Not Be Commercially Acceptable. Our success will depend
on the successful development and commercial acceptance of the VRD technology.
To achieve commercial success, this technology and products incorporating this
technology must be accepted by original equipment manufacturers and end users,
and must meet the expectations of our potential customer base. We cannot be
certain that the VRD technology or products incorporating this technology will
achieve market acceptance.
We Have Not Completed Development of a Commercial Product. Although we have
developed prototype VRD displays, we must undertake significant additional
research, development and testing before we are able to produce any products for
commercial sale. We cannot be certain that we will be successful in further
refining the VRD technology to produce marketable products. In addition, product
development delays or the inability to enter into relationships with potential
product development partners may delay the introduction of, or prevent us from
introducing, commercial products. Any delay in developing and producing, or the
failure to develop and produce, commercially viable products would have a
material adverse effect on our business, operating results, and financial
condition.
We Have Experienced Net Losses in Each Year of Operations and Do Not Expect
to Have Earnings At Least Through 2000. We have experienced net losses in each
year of operations and, as of December 31, 1998, had an accumulated deficit
since inception of $22.8 million. We incurred net losses of $3.5 million in
1996, $4.9 million in 1997, and $7.3 million in 1998. Our revenues to date have
been generated from development contracts. We do not expect to generate
significant revenues from product sales in the near future. The likelihood of
our success must be considered in light of the expenses, difficulties, and
delays frequently encountered by businesses formed to develop new technologies.
In particular, our operations to date have focused primarily on research and
development of the VRD technology and prototypes, and we have developed
marketing capabilities only during the past year. We are unable to estimate
future operating expenses and revenues based upon historical performance. Our
operating results will depend, in part, on matters over which we have no
control, including, without limitation:
o our ability to achieve market acceptance of the VRD technology and
products incorporating that technology;
o our ability to develop and manufacture commercially viable products
incorporating the VRD technology;
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o the level of contract revenues in any given period;
o our expense levels and manufacturing costs; and
o technological and other developments in the electronics, computing,
information display and imaging industries.
We cannot be certain that we will be successful in obtaining additional
development contracts, or that we will be able to generate purchase orders for
products incorporating the VRD technology. In light of these factors, we expect
to continue to incur substantial losses and negative cash flow at least through
2000 and possibly thereafter. We cannot be certain that the Company will become
profitable or cash flow positive at any time in the future.
We Rely on Our Patents and Other Proprietary Technology and May Be Unable
to Protect Them Adequately. Our success will depend in part on the ability of
the Company, the University of Washington, and the Company's other licensors to
maintain the proprietary nature of the VRD and related technologies. Although
our licensors have patented various aspects of the VRD technology and we
continue to file our own patent applications covering VRD features and related
technologies, we cannot be certain as to the degree of protection offered by
these patents or as to the likelihood that patents will be issued from the
pending patent applications. Moreover, these patents may have limited commercial
value or may lack sufficient breadth to protect adequately the aspects of our
technology to which the patents relate.
We cannot be certain that our competitors, many of which have substantially
greater resources than us and have made substantial investments in competing
technologies, will not apply for and obtain patents that will prevent, limit or
interfere with our ability to make and sell our products. In addition, we are
aware of several patents held by third parties that relate to certain aspects of
retinal scanning devices. These patents could be used as a basis to challenge
the validity of the University of Washington's patent rights, to limit the scope
of the University's patent rights or to limit the University's ability to obtain
additional or broader patent rights. A successful challenge to the validity of
the University's patents could limit our ability to commercialize the VRD
technology and, consequently, materially and adversely effect our business,
operating results, and financial condition.
Moreover, we cannot be certain that such patent holders or other third
parties will not claim infringement by the Company or by the University with
respect to current and future technology. Because U.S. patent applications are
held and examined in secrecy, it is also possible that presently pending U.S.
applications will eventually issue with claims that will be infringed by the
Company's products or the VRD technology. The defense and prosecution of a
patent suit would be costly and time-consuming, even if the outcome were
ultimately favorable to us. An adverse outcome in the defense of a patent suit
could subject us to significant liabilities, require the Company and others to
cease selling products that incorporate VRD technology or cease licensing the
VRD technology, or require disputed rights to be licensed from third parties.
Such
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licenses may not be available on satisfactory terms, or at all. Moreover,
if claims of infringement are asserted against future co-development partners or
customers of the Company, those partners or customers may seek indemnification
from us for damages or expenses they incur.
We also rely on unpatented proprietary technology. Third parties could
develop the same or similar technology or otherwise obtain access to our
proprietary technology. We cannot be certain that we will be able to adequately
protect our trade secrets, know-how or other proprietary information or to
prevent the unauthorized use, misappropriation or disclosure of such trade
secrets, know-how or other proprietary information.
Our Rights to the VRD Technology Are Subject to Our License Agreement with
the University of Washington. Our success depends on technology that we have
licensed from the University of Washington. If the University of Washington were
to violate the terms of our license agreement, our business, operations, and
prospects could be materially and adversely affected. In addition, we could lose
the exclusivity under the UW License Agreement if we fail to respond timely to
claims of infringement with respect to the VRD technology. The loss of
exclusivity under the UW License Agreement could have a materially adverse
effect on the Company's business, operating results, and financial condition.
Our Future Success Depends on Collaboration with Third Parties. Our
strategy for developing, testing, manufacturing and commercializing the VRD
technology and products incorporating the VRD technology includes entering into
cooperative development and sales and marketing arrangements with corporate
partners, original equipment manufacturers, and other third parties. We cannot
be certain that we will be able to negotiate such arrangements on acceptable
terms, if at all, or that such arrangements will be successful in yielding
commercially viable products. If we are unable to establish such arrangements,
we would require additional working capital to undertake such activities on our
own and would require extensive manufacturing, sales and marketing expertise
that we do not currently possess. In addition, we could encounter significant
delays in introducing the VRD technology into certain markets or find that the
development, manufacture or sale of products incorporating the VRD technology in
such markets would not be feasible without, or would be adversely affected by
the absence of, such arrangements. To the extent that we enter into cooperative
development, sales and marketing or other joint venture arrangements, our
revenues will depend upon the efforts of third parties. We cannot be certain
that any such arrangements will be successful.
The Information Display Industry Is Highly Competitive and We May Not Be
Able to Keep Up With Rapid Technological Change. Our products and the VRD
technology will compete with established manufacturers of miniaturized CRT and
flat panel display devices, many of which have substantially greater financial,
technical and other resources than us and many of which are developing
alternative miniature display technologies. We also will compete with other
developers of miniaturized display devices.
The electronic information display industry has been characterized by
rapidly changing technology, accelerated product obsolescence, and continuously
evolving industry standards. Our
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success will depend upon our ability to further develop the VRD technology and
to introduce new products and features in a timely manner to meet evolving
customer requirements. We may not succeed in these efforts. Our business and
results of operations will be materially and adversely affected if we incur
delays in developing our products or if such products do not gain broad market
acceptance. In addition, our competitors may develop information display
technologies and products that would render the VRD technology or our proposed
products commercially infeasible or technologically obsolete. We cannot be
certain that the VRD technology or our proposed products will remain competitive
with such advances or that we will have sufficient funds to invest in new
technologies or processes.
We Lack Manufacturing Capability. Our success depends in part on our
ability to manufacture our components and future products to meet high quality
standards in commercial quantities at competitive prices. To date, we only have
produced prototype products for research, development and demonstration
purposes, and currently lack the capability to manufacture products in
commercial quantities. Accordingly, we will be required to obtain access through
our partners or contract manufacturers to manufacturing capacity and processes
for the commercial production of our future products. We cannot be certain that
the Company will successfully obtain access to these manufacturing resources or,
if it does, that these resources will be able to manufacture components to our
design and quality specifications. Future manufacturing difficulties or
limitations of our suppliers could result in:
o a limitation on the number of products incorporating the VRD
technology that can be produced;
o unacceptably high prices for components, with a resulting loss of
profitability and loss of competitiveness for our products; and
o increased demands on our financial resources, possibly requiring
additional equity and/or debt financings to sustain our business
operations.
We Are Substantially Dependent on Partners in the Defense and Aerospace
Industries. Our revenues to date have been derived principally from product
development research relating to defense and aerospace applications of the VRD
technology. The Company believes that development programs and sales of
potential products in these markets will represent a significant portion of our
future revenues. Developments that adversely affect the defense and aerospace
sectors, including delays in government funding and a general economic downturn,
could, in turn, materially and adversely affect the Company's business and
operating results.
We May Require Additional Capital to Continue Implementing Our Business
Plan. The Company believes that its current cash and investment balances will
satisfy its budgeted capital and operating requirements for at least the next 12
months, based on our current operating plan. Actual expenses, however, may
exceed budgeted amounts and we may require additional capital to fund long-term
operations and business development. Our capital requirements will depend on
many factors, including, but not limited to, the rate at which we can develop
the VRD
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technology, our ability to attract partners for product development and
licensing arrangements, and the market acceptance and competitive position of
products that incorporate the VRD technology. We cannot be certain that we will
be able to obtain financing when needed or that we will be able to obtain
financing on satisfactory terms. If additional funds are raised through the
issuance of equity, convertible debt or similar securities, shareholders may
experience additional dilution and such securities may have rights or
preferences senior to those of the Common Stock. Moreover, if adequate funds
were not available to satisfy our short-term or long-term capital requirements,
we would be required to limit our operations significantly.
A Substantial Number of Our Shares Are Eligible for Future Sale and Could
Depress Market Prices. The sale of a substantial number of shares of our common
stock in the public market or the prospect of such sales could materially and
adversely affect the market price of the common stock. As of July 31, 1999, we
had outstanding:
o 9,843,905 shares of common stock;
o 1,600 shares of Series B Convertible Preferred Stock convertible into
100,000 shares of common stock, subject to adjustment for stock
splits, stock dividends, recapitalizations, reclassifications, and
similar events, and excluding unpaid and accrued dividends payable in
shares of common stock;
o privately placed warrants to purchase 688,813 shares of common
stock; and
o "representative warrants" to purchase 186,250 shares of common
stock.
Almost all of our outstanding shares of common stock may be sold without
substantial restrictions. In addition, as of July 31, 1999, we had granted
options under our option plans to purchase an aggregate of 2,370,164 shares of
common stock. All of the shares purchased under the option plans are available
for sale in the public market, subject in some cases to volume and other
limitations. We also have granted the holder of our Series B Stock options to
purchase 1,920 additional shares of Series B Stock convertible into 100,000
shares of common stock.
Sales in the public market of substantial amounts of common stock,
including sales of common stock issuable upon conversion of the Series B Stock
or the exercise of the outstanding warrants, could depress prevailing market
prices for the common stock. Even the perception that such sales could occur may
adversely impact market prices.
Continued Development Funding is Uncertain; Our Quarterly Performance May
Vary Significantly. Our revenues to date have been generated from a limited
number of development contracts with U.S. government agencies and commercial
partners. If the U.S. government or our current and prospective commercial
partners were to reduce or delay funding of development programs involving new
information display technologies, our business, operating results, and financial
condition could be materially and adversely affected. In addition, our quarterly
operating results may vary significantly based on the status of particular
development
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programs and the timing of deliverables under specific development
agreements. Because of these factors, revenue, net income or loss and cash flow
may fluctuate significantly from quarter to quarter.
We Rely on Our Key Personnel. Our success depends on our officers and other
key personnel and on the ability to attract and retain qualified new personnel.
Achievement of our business objectives will require substantial additional
expertise in the areas of sales and marketing, technology and product
development, and manufacturing. Competition for qualified personnel in these
fields is intense, and the inability to attract and retain additional highly
skilled personnel, or the loss of key personnel, could have a material adverse
effect on our business, operating results and financial condition.
We Face Potential Year 2000-Related Risks. The effect on the Company of an
internal Y2K failure, a third party Y2K failure or a combination of internal and
external Y2K failures could range from a minor disruption in our purchases to an
extended interruption in the information technology ("IT") and non-IT systems of
third parties whose operations materially impact our operations. Such an
interruption could result in a material adverse effect on the Company's
business, operating results, and financial position.
Our Products May Be Subject to Future Health and Safety Regulation. Except
for regulations related to the labeling of devices that emit electro-magnetic
radiation, we are not aware of any health or safety regulations applicable to
products incorporating the VRD technology. We cannot be certain, however, that
new health and safety regulations will not be promulgated that might materially
and adversely affect the Company's ability to commercialize the VRD technology.
Any such regulation could have a material and adverse effect on our business,
operating results, and financial condition.
Our Stock Price May Be Volatile. The trading price of our common stock
could be subject to significant fluctuations in response to, among other
factors:
o variations in quarterly operating results;
o changes in analysts' estimates;
o announcements of technological innovations by us or our competitors;
and
o general conditions in the information display and electronics
industries.
In addition, the stock market is subject to price and volume fluctuations that
particularly affect the market prices for small capitalization, high technology
companies. These fluctuations are often unrelated to the operating performance
of these companies.
Certain Provisions of our Articles Could Make a Proposed Acquisition That
is Not Approved by Our Board of Directors More Difficult. Our Amended and
Restated Articles of
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Incorporation give our Board of Directors the authority to issue, and to fix the
rights and preferences of, shares of our preferred stock without shareholder
action, which may have the effect of delaying, deterring or preventing a change
in control of the Company. Furthermore, the Articles of Incorporation provide
that the written demand of at least 25% of the outstanding shares is required to
call a special meeting of the shareholders. In addition, certain provisions of
Washington law could have the effect of delaying, deterring or preventing a
change in control of the Company.
We Do Not Anticipate Declaring Any Dividends. We have not previously paid
any dividends on our common stock and for the foreseeable future expect to
retain any earnings to finance the development and expansion of our business.
Special Note Regarding Forward-Looking Statements
Some of the statements contained in this prospectus discuss future expectations,
contain projections or results of operations or financial condition or state
other "forward-looking" information. These statements are subject to known and
unknown risks, uncertainties and other factors that could cause the actual
results to differ from those contemplated by the statements and, therefore,
these statements are not guarantees of our future performance.
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SELLING SHAREHOLDER
On May 6, 1999, Cree Research, Inc. (the "selling shareholder") acquired
268,600 shares of our common stock. The material terms of this transaction are
described in our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1999, which is incorporated by reference in this prospectus. We are
registering the selling shareholder's shares in the registration statement of
which this prospectus is a part.
The following table sets forth certain information as of July 30, 1999,
regarding the ownership of the common stock by the selling shareholder and as
adjusted to give effect to the sale of the shares offered hereby.
<TABLE>
<CAPTION>
Shares Shares Being Ownership After
Beneficially Offered Offering if All Shares Offered
Selling Shareholder Owned Prior to Hereby Are Sold
Offering
Shares Percent
<S> <C> <C> <C> <C>
Cree Research, Inc. 268,600 268,600 -0- -
</TABLE>
The selling shareholder and its officers and directors have not held any
positions or office or had any other material relationship with us or any of our
affiliates within the past three years.
In recognition of the fact that the selling shareholder may wish to be
legally permitted to sell its shares when it deems appropriate, we agreed with
the selling shareholder to file with the Securities and Exchange Commission,
under the Securities Act, a registration statement on Form S-3, of which this
prospectus forms a part, with respect to the resale of the shares, and to
prepare and file such amendments and supplements to the registration statement
as may be necessary to keep the registration statement effective until the
shares are no longer required to be registered for sale by the selling
shareholder.
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PLAN OF DISTRIBUTION
We are registering the shares covered by this prospectus for the selling
shareholder. As used in this prospectus, "selling shareholder" includes the
pledgees, donees, transferees or others who may later hold the selling
shareholder's interest. We will pay the costs and fees of registering the
shares, but the selling shareholder will pay any brokerage commissions,
discounts or other expenses relating to the sale of the shares. Microvision and
the selling shareholder each have agreed to indemnify the other against certain
liabilities, including liabilities arising under the Securities Act, that relate
to statements or omissions in the registration statement of which this
prospectus forms a part.
The selling shareholder may sell the shares in the over-the-counter market
or otherwise, at market prices prevailing at the time of sale, at prices related
to prevailing market prices, or at negotiated prices. In addition, the selling
shareholder may sell some or all of their shares through:
o a block trade in which a broker-dealer may resell a portion of the
block, as principal, in order to facilitate the transaction;
o purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
o ordinary brokerage transactions and transactions in which a broker
solicits purchases.
When selling the shares, the selling shareholder may enter into hedging
transactions. For example, the selling shareholder may:
o enter into transactions involving short sales of the shares by
broker-dealers;
o sell shares short themselves and redeliver such shares to close out
their short positions;
o enter into option or other types of transactions that require the
selling shareholder to deliver shares to a broker-dealer, who will
then resell or transfer the shares under this prospectus; or
o loan or pledge the shares to a broker-dealer, who may sell the loaned
shares or, in the event of default, sell the pledged shares.
The selling shareholder may negotiate and pay broker-dealers commissions,
discounts or concessions for their services. Broker-dealers engaged by the
selling shareholder may allow other broker-dealers to participate in resales.
However, the selling shareholder and any broker-dealers involved in the sale or
resale of the shares may qualify as "underwriters" within the meaning of
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the Section 2(a)(11) of the Securities Act. In addition, the broker-dealers'
commissions, discounts or concessions may qualify as underwriters' compensation
under the Securities Act. If the selling shareholder qualifies as an
"underwriter," it will be subject to the prospectus delivery requirements of
Section 5(b)(2) of the Securities Act.
In addition to selling its shares under this prospectus, the selling
shareholder may:
o agree to indemnify any broker-dealer or agent against certain
liabilities related to the selling of the shares, including
liabilities arising under the Securities Act;
o transfer its shares in other ways not involving market makers or
established trading markets, including directly by gift, distribution,
or other transfer; or
o sell its shares under Rule 144 of the Securities Act rather than under
this prospectus, if the transaction meets the requirements of Rule
144.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K of Microvision, Inc., for the year ended December
31, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Our Amended and Restated Articles of Incorporation provide that, to the
fullest extent permitted by the Washington Business Corporation Act, our
directors will not be liable for monetary damages to us or our shareholders,
excluding, however, liability for acts or omissions involving intentional
misconduct or knowing violations of law, illegal distributions or transactions
from which the director receives benefits to which the director is not legally
entitled. Our Amended and Restated Bylaws authorize us to indemnify our
directors, officers, employees and agents to the fullest extent permitted by
applicable law, except for any legal proceeding that is initiated by such
directors, officers, employees or agents without authorization of the Board of
Directors.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons pursuant to
the foregoing provisions, or otherwise, we have been advised that, in the SEC's
opinion, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
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INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" our public filings into
this prospectus, which means that information included in those documents is
considered part of this prospectus. Information that we file with the SEC
subsequent to the date of this prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until the selling shareholder
has sold all the shares.
The following documents filed with the SEC are incorporated by reference in
this prospectus:
(1) Annual Report on Form 10-K for the year ended December 31, 1998;
(2) Current Report on Form 8-K for the event of January 14, 1999, as
filed with the SEC on January 28, 1999;
(3) Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1999;
(4) Definitive proxy statement for the 1999 Annual Meeting of
Shareholders, as filed on April 30, 1999; and
(5) The description of our common stock set forth in Amendment No. 1
to our Registration Statement on Form SB-2 (Registration No.
33-5276-LA), including any amendment or report filed for the
purpose of updating such description, as incorporated by
reference in our Registration Statement on Form 8-A (Registration
No. 0-21221).
We will furnish without charge to you, on written or oral request, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents. You should direct any requests for documents to Investor
Relations, Microvision, Inc., 19910 North Creek Parkway, Bothell, WA 98011-3008,
telephone (425) 415-6847.
The information relating to the Company contained in this prospectus is not
comprehensive and should be read together with the information contained in the
incorporated documents.
AVAILABLE INFORMATION
This prospectus is part of a Registration Statement on Form S-3 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with SEC rules.
14
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We file annual, quarterly and special reports and other information with
the SEC. You may read and copy the Registration Statement and any other document
that we file at the SEC's public reference rooms located at Room 1024, Judiciary
Plaza, 450 Fifth Street N.W., Washington, D.C. 20549; 7 World Trade Center,
Suite 1300, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to you free of charge at the SEC's web site at
http://www.sec.gov.
Statements contained in this prospectus as to the contents of any contract
or other document referred to are not necessarily complete and in each instance
you should refer to the copy of such contract or other document filed as an
exhibit to the Registration Statement.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
All expenses in connection with the issuance and distribution of the
securities being registered will be paid by the Company. The following is an
itemized statement of these expenses (all amounts are estimated except for the
SEC and Nasdaq listing fees):
SEC Registration fee....................................... $ 1,545
Nasdaq listing fee......................................... $ 5,372
Legal fees................................................. $ 5,000
Accountant's Fees.......................................... $ 2,500
Printing Fees.............................................. $ 0
Miscellaneous.............................................. $ 583
---------
Total...................................................... $ 15,000
Item 15. Indemnification of Officers and Directors.
Article 7 of the Company's Amended and Restated Articles of Incorporation
and Section 10 of the Company's Restated Bylaws authorize the Company to
indemnify its directors, officers, employees and agents to the fullest extent
permitted by the Washington Business Corporation Act (the "Act"). Sections
23B.08.500 through 23B.08.000 of the Act authorize a court to award, or a
corporation's board of directors to grant, indemnification to directors and
officers on terms sufficiently broad to permit indemnification under certain
circumstances for liabilities arising under the Securities Act.
Section 23B.08.320 of the Act authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article 6 of the Company's Amended and Restated Articles of
Incorporation contains provisions implementing, to the fullest extent permitted
by Washington law, such limitations on a director's liability to the Company and
its shareholders.
II-1
<PAGE>
Item 16. Exhibits.
3.1 Amended and Restated Articles of Incorporation of the Company (1)
3.1.1 Articles of Amendment Containing the Statement of Rights and
Preferences of the Series B Convertible Preferred Stock of the
Company (2)
3.2 Amended and Restated Bylaws of the Company (3)
4.1 Stock Purchase Agreement dated May 5, 1999, by and between the
Company and Cree Research, Inc.
4.2 Registration Rights Agreement dated May 5, 1999, by and between the
Company and Cree Research, Inc.
5 Opinion on Legality
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Stoel Rives LLP (included in Exhibit 5)
24 Power of Attorney (included on the signature page hereof)
1/ Incorporated by reference to the Registration Statement on Form SB-2,
Registration No. 33-5276-LA.
2/ Incorporated by reference to the Current Report on Form 8-K for the
event of January 14, 1999, as filed on January 28, 1999
3/ Incorporated by reference to the Quarterly Report on Form 10-QSB for
the quarterly period ending June 30, 1998
II-2
<PAGE>
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration statement
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration statement (or
the most recent post-effective amendment thereof) that,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
statement; and
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the
II-3
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offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question,
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bothell, State of Washington, on July 30, 1999.
MICROVISION, INC.
By: /s/ RICHARD F. RUTOWSKI
--------------------------------------------
Richard F. Rutkowski
President and Chief Executive Officer
<PAGE>
KNOW ALL BY THESE PRESENTS that each person whose signature appears below
hereby authorizes and appoints Richard F. Rutkowski and Richard A. Raisig, and
each of them, with full power of substitution and full power to act without the
other, as his true and lawful attorney-in-fact and agent to act in his name,
place and stead and to execute in the name and on behalf of each file, any and
all amendments to this Registration Statement, including any and all
post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated below on the 30th day of July, 1999:
Signature and Title
/s/ RICHARD F. RUTKOWSKI /s/ ROBERT A. RATLIFFE
- --------------------------------------- ------------------------------------
Richard F. Rutkowski Robert A. Ratliffe
President, Chief Executive Officer Director
and Director
/s/ STEPHEN R. WILLEY /s/ JACOB BROUWER
- --------------------------------------- -------------------------------------
Stephen R. Willey Jacob Brouwer
Director Director
/s/ RICHARD A. RAISIG
- --------------------------------------- -------------------------------------
Richard A. Raisig Richard A. Cowell
Chief Financial Officer (Principal Director
financial and accounting officer)
and Director
/s/ WALTER J. LACK /s/ DOUGLAS TRUMBULL
- --------------------------------------- --------------------------------------
Walter J. Lack Douglas Trumbull
Director Director
/s/ WILLIAM A. OWEN /s/ MARGARET ELARDI
- --------------------------------------- --------------------------------------
William A. Owen Margaret Elardi
Director Director
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of May 5,
1999, by and among MICROVISION, INC., a Washington corporation (the "Company"),
and CREE RESEARCH, INC., a North Carolina corporation ("Purchaser").
W I T N E S S E T H
WHEREAS, the Company proposes to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company, shares of the Company's common
stock on the terms and subject to the conditions set forth herein; and
WHEREAS, the Company and Purchaser desire to enter into a Registration
Rights Agreement of even date herewith in the form attached hereto as Exhibit A,
pursuant to which the Purchaser shall have certain registration rights.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1.
Definitions
1.1 Defined Terms. Except as otherwise defined herein, capitalized terms
uses in this Agreement shall have the following meanings:
"Common Stock" means the Company's Common Stock, no par value.
"Development Agreement" means the Development Agreement between the Company
and Purchaser dated the date hereof.
"Director Plan" means the Microvision, Inc. 1996 Independent Director Stock
Plan, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Lien" means any lien, pledge, mortgage, deed of trust, security interest,
claim, lease, charge, option, right of first refusal, easement, servitude,
transfer restriction under any shareholder or similar agreement, encumbrance or
any other restriction or limitation whatsoever.
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"Material Adverse Effect" means any materially adverse effect on the
business, assets, liabilities, condition (financial or otherwise), results of
operations or prospects of the Company.
"1996 Stock Plan" means the Microvision, Inc. 1996 Stock Option Plan, as
amended.
"Person" means an individual, partnership, limited liability company,
corporation, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Preferred Stock" means the Company's Series A Convertible Preferred Stock,
no par value and Series B Convertible Preferred Stock, no par value.
"Prior Plans" means the Company's 1993 Stock Option Plan, 1994 Combined
Incentive and Nonqualified Stock Option Plan and 1995 Combined Incentive and
Nonqualified Stock Option Plan.
"Registration Rights Agreement" means the Registration Rights Agreement
between the Company and Purchaser dated the date hereof.
"SEC" means the United States Securities and Exchange Commission.
SECTION 2.
Sale and Purchase of Common Stock
In reliance on the representations and warranties of the Company and of
Purchaser contained herein and subject to the terms and conditions hereof,
Purchaser agrees to purchase from the Company, and the Company agrees to issue
and sell to Purchaser, 268,600 shares (the "Shares") of Common Stock at a
purchase price of $16.7535 per share, for an aggregate purchase price of Four
Million Five Hundred Thousand Dollars ($4,500,000) (the "Purchase Price").
SECTION 3.
Closing; Deliveries
3.1 Closing Date. The closing of the purchase and sale of the Shares (the
"Closing") shall be held at the offices of Stoel Rives LLP, 600 University
Street, Suite 3600, Seattle, Washington 98101 on May 6, 1999 (the "Closing
Date"), or on such other date or at such other place as Purchaser and the
Company shall mutually agree.
2
<PAGE>
3.2 Deliveries. At the Closing, the Purchaser shall pay the Purchase
Price to the Company by wire transfer, in accordance with the Company's written
instructions, and the Company shall deliver to Purchaser a certificate
evidencing the Shares.
SECTION 4.
Representations and Warranties of the Company
The Company hereby represents and warrants to, and agrees with Purchaser
that, as of each of the date of this Agreement and the Closing Date, as follows:
4.1 Organization, Good Standing and Qualification. The Company (i) is an
entity duly organized, validly existing and in good standing under the laws of
Washington, (ii) has all requisite power and authority to carry on its business,
(iii) is duly qualified to transact business and is in good standing in all
jurisdictions where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to do so
would not be material to the Company. The Company has no subsidiaries. The
Company has the corporate power and authority and is in possession of all
material franchises, grants, authorizations, licenses, permits, easements,
consents, certificates, approvals and orders (a) to own, lease and operate its
properties and to carry on its business as now being conducted and (b) to
execute and deliver this Agreement and the documents and instruments
contemplated hereby and to consummate the transactions contemplated hereby.
4.2 Capitalization.
4.2.1 The capitalization of the Company as of the date hereof is set
forth on Schedule 4.2, including the authorized capital stock, the number of
shares issued and outstanding, the number of shares issuable and reserved for
issuance pursuant to the Company's stock option plans, the number of shares
issuable and reserved for issuance pursuant to securities exercisable for, or
convertible into or exchangeable for any shares of capital stock, except for
additional shares outstanding from the exercise of various employee stock
options subsequent to March 31, 1999 for which the reserve is reflected on
Schedule 4.2. All of such outstanding shares of capital stock have been, or upon
issuance will be, validly issued, fully paid and nonassessable. Except as set
forth on Schedule 4.2, no shares of capital stock of the Company (including the
Shares) are subject to preemptive rights or any other similar rights of the
shareholders of the Company or any liens or encumbrances. Except for the Shares
and as disclosed in Schedule 4.2 and as described in the first sentence of this
Section 4.2.1, as of the date of this Agreement, (i) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into or
exercisable or exchangeable for, any shares of capital stock of the Company, or
arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company, and (ii) there are no agreements or
arrangements under which the Company is obligated to register the sale of any of
its or their securities under the Securities Act (except the Registration Rights
Agreement). There are no securities or instruments
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<PAGE>
containing antidilution or similar provisions that may be triggered by the
issuance of the Shares in accordance with the terms of this Agreement.
4.2.2 The issued and outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and non-assessable. The
shares of Common Stock to be issued pursuant to this Agreement, upon delivery to
Purchaser of certificates therefor against payment in accordance with the terms
of this Agreement, (i) will be validly issued, fully paid and non-assessable,
(ii) will be free and clear of all Liens, (iii) will not be subject to
preemptive rights or other similar rights of shareholders, and (iv) assuming
that the representations of Purchaser in Section 5 hereof are true and correct,
will be issued in compliance with all applicable federal and state securities
laws.
4.3 Authorization. The Company has all requisite corporate power and
authority to execute and deliver this Agreement and each agreement, document or
instrument adopted, entered into or delivered by it as contemplated herein,
including but not limited to the Development Agreement and the Registration
Rights Agreement (the "Transaction Documents") and to perform its obligations
hereunder and thereunder. The execution, delivery, and performance of the
Agreement and the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Company. This Agreement and
each Transaction Document to which the Company is a party has been duly and
validly executed and delivered by the Company and constitutes the legal, valid,
and binding obligation of the Company, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
4.4 Governmental Consents. To the Company's knowledge, the execution,
delivery and performance of this Agreement and each of the Transaction Documents
by the Company, and the consummation by the Company of the transactions
contemplated hereby and thereby will not (i) conflict with or result in a
violation of the Articles of Incorporation or Bylaws or (ii) conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any agreement, indenture or
instrument to which the Company is a party, or result in a violation of any law,
rule, regulation, order, judgment or decree (including United States federal and
state securities laws and regulations) applicable to the Company or by which any
property or asset of the Company is bound or affected (except, with respect to
clause (ii), for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). The Company is in compliance with
its Articles of Incorporation, Bylaws and other organizational documents and is
not in default (and no event has occurred which, with notice or lapse of time or
both, would put the Company in default) under, nor has there occurred any event
giving others (with notice or lapse of time or both) any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to
4
<PAGE>
which the Company is a party, except for actual or possible violations, defaults
or rights as would not, individually or in the aggregate, have a Material
Adverse Effect. To the Company's knowledge, the business of the Company is not
being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for actual or possible violations, if any, the
sanctions for which either singly or in the aggregate would not have a Material
Adverse Effect. As of the date of this Agreement, the Company is not in
violation of the listing requirements of the Nasdaq National Market ("NASDAQ")
and does not reasonably anticipate that the Common Stock will be delisted by
NASDAQ in the foreseeable future based on its rules (and interpretations
thereof) as currently in effect. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority on the part of the Company is
required in connection with the valid execution and delivery by the Company of
this Agreement and the Transaction Documents to which it is a party, or the
consummation by the Company of the transactions contemplated by this Agreement
and the Transaction Documents to which it is a party, except for (i) filings
pursuant to federal or state securities laws and (ii) the filing of registration
statements with the SEC and any applicable state securities commission.
4.5 Company SEC Reports and Financial Statements.
4.5.1 The Company has made available to Purchaser true and complete
copies of all periodic reports, statements and other documents that the Company
has filed with the SEC under the Exchange Act since August 30, 1996
(collectively, the "Company SEC Reports"), each in the form (including exhibits
and any amendments thereto) required to be filed with the SEC. As of their
respective dates, each of the Company's SEC Reports (i) complied in all respects
with all applicable requirements of the Exchange Act, and the rules and
regulations promulgated thereunder, respectively, (ii) were filed in a timely
manner, and (iii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
4.5.2 The audited financial statements of the Company (including any
related notes and schedules thereto) included (or incorporated by reference) in
its Annual Report on Form 10-K for the fiscal year ended December 31, 1998, are
accurate and complete and fairly present, in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
period involved (except as may be noted therein), and in conformity with the
SEC's Regulation S-X, the financial position of the Company as of December 31,
1998, and the results of operations and changes in financial position for the
period then ended.
4.5.3 Except as and to the extent set forth (or incorporated by
reference) in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (the "Balance Sheet Date"), the Company has not incurred any
liability or obligation of any nature whatsoever (whether due or to become due,
accrued, fixed, contingent, liquidated, unliquidated
5
<PAGE>
or otherwise) that would be required by GAAP to be accrued on, reflected on, or
reserved against it on, a balance sheet (or in the applicable notes thereto) of
the Company prepared in accordance with GAAP consistently applied as of the date
thereof and for the period then ended.
4.6 Changes. Since the Balance Sheet Date, there has not been:
4.6.1 any change in the assets, liabilities, financial condition or
operating results of the Company, except changes in the ordinary course of
business;
4.6.2 any damage, destruction or loss to real or personal property,
whether or not covered by insurance;
4.6.3 any waiver by the Company of a legal or contractual valuable
right or of a debt owed to it outside of the ordinary course of business;
4.6.4 any satisfaction or discharge of any Lien or payment of any
obligation by the Company;
4.6.5 any change or amendment to a contract or arrangement by which
the Company or any of its respective assets or properties is bound or subject;
4.6.6 other than in the ordinary course of business, any material
increase in excess of $10,000 annually in any compensation arrangement or
agreement with any employee of the Company receiving compensation;
4.6.7 any events or circumstances that otherwise could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect;
and
4.6.8 the Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock or equity interests, (ii) incurred any indebtedness for
money borrowed other than capital leases in the ordinary course of business,
(iii) made any loans or advances to any Person, other than ordinary advances for
travel expenses not exceeding $5,000, or (iv) sold, exchanged or otherwise
disposed of any of its assets or rights for consideration in excess of $50,000
in any one transaction or series of related transactions.
4.7 Absence of Litigation. Except as disclosed in the Company SEC Reports,
there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory organization or body
pending or, to the Company's knowledge, threatened against or affecting the
Company, or any of its directors or officers in their capacities as such which
would have a Material Adverse Effect or which would adversely affect the
validity, enforceability of, or the authority or ability of the Company to
perform its obligations under this Agreement (including the issuance of the
Shares) or the Transaction Documents.
6
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4.8 Intellectual Property. To the Company's knowledge, the Company owns or
is licensed to use all patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, copyright applications,
licenses, permits, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) and
other similar rights and proprietary knowledge (collectively, "Intangibles")
necessary for the conduct of its business as now being conducted. To the
Company's knowledge, the Company is not infringing or in conflict with any other
person with respect to any Intangibles which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect. The Company has complied, in all material respects,
with its contractual obligations relating to the protection of the Intangibles
used pursuant to licenses.
4.9 Foreign Corrupt Practices. Neither the Company, nor any director,
officer, agent, employee or other person acting on behalf of the Company has, in
the course of such person's actions for, or on behalf of, the Company, used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the United
States Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
4.10 Environment. Except as disclosed in the Company SEC Reports, to the
Company's knowledge (i) there is no environmental liability, nor factors likely
to give rise to any environmental liability, affecting any of the properties of
the Company that, individually or in the aggregate, would have a Material
Adverse Effect and (ii) the Company has not violated or infringed any
environmental law applicable to it now or previously in effect, other than such
violations or infringements that, individually or in the aggregate, have not had
and will not have a Material Adverse Effect.
4.11 Title. The Company has good title in fee simple to all real property
and good title to all personal property owned by it which is material to the
business of the Company, in each case free and clear of all liens, encumbrances
and defects except for such defects in title that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Any real property and facilities held under lease by the Company are held by it
under valid, subsisting and enforceable leases with such exceptions which have
not had and will not have a Material Adverse Effect.
4.12 Insurance. The Company has its assets insured against loss or damage
as is appropriate to its business and assets, in such amounts and against such
risks as are customarily carried and insured against by owners of comparable
businesses and assets, and such insurance coverages will be continued in full
force and effect to and including the Closing Date other than those insurance
coverages in respect of which the failure to continue in full force and effect
could not reasonably be expected to have a Material Adverse Effect.
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4.13 Acknowledgment Regarding the Purchaser's Purchase of the Shares. The
Company acknowledges and agrees that the Purchaser is not acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect to
this Agreement or the transactions contemplated hereby, and the relationship
between the Company and the Purchaser is "arms length" and that any statement
made by the Purchaser or any of its representatives or agents in connection with
this Agreement and the transactions contemplated hereby is not advice or a
recommendation and is merely incidental to the Purchaser's purchase of Shares
and has not been relied upon by the Company, its officers or directors in any
way. The Company further represents to the Purchaser that the Company's decision
to enter into this Agreement has been based solely on an independent evaluation
by the Company and its representatives.
4.14 No General Solicitation. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation," as such term is defined in Regulation
D, with respect to any of the Shares being offered hereby.
4.15 Private Offering. Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf, has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security
under circumstances that would require registration of the Shares being offered
hereby under the Securities Act.
4.16 Brokers. Except to Marion Bass Securities Corporation, the Company is
not obligated to pay a brokerage fee.
SECTION 5.
Representations and Warranties of the Purchaser
Purchaser hereby represents and warrants to and agrees with the Company
that, as of each of the date of this Agreement and the Closing Date, as follows:
5.1 Accredited Investor; Information; Legend.
5.1.1 Accredited Investor. Purchaser is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D. The Purchaser is not
registered as a broker or dealer under Section 15(a) of the Exchange Act, or a
member of the National Association of Securities Dealers.
5.1.2 Information. The Purchaser has been furnished all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Shares which have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask questions of
the Company and has received what the Purchaser believes to be satisfactory
answers to any such inquiries.
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5.1.3 Purchase for Own Account. The Purchaser is purchasing the Shares
for the Purchaser's own account and not with a present view towards the
distribution thereof in violation of federal or state securities laws.
5.1.4 Legend. The certificates representing the Shares shall bear a
legend evidencing such restriction on transfer substantially in the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
TRANSFERRED EXCEPT PURSUANT TO REGISTRATION UNDER THE
ACT OR AN EXEMPTION THEREFROM."
5.2 Authorization; Enforcement. The Purchaser has the requisite power and
authority to enter into and perform its obligations under this Agreement and
each of the Transaction Documents. This Agreement and each Transaction Document
has been duly and validly authorized, executed and delivered on behalf of the
Purchaser and is a valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other laws affecting creditors' rights and remedies generally and to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
5.3 Governmental Consents. No consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority on the part of Purchaser is
required in connection with the valid execution and delivery by Purchaser of the
Transaction Documents to which Purchaser is a party, or the consummation by such
Purchaser of the transactions contemplated by the Transaction Documents to which
Purchaser is a party, except for such filings as have been made prior to the
Closing.
SECTION 6.
Disposition Restriction
6.1 Lock-up. Purchaser agrees not to make any disposition of all or any
portion of the Shares until January 6, 2000.
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SECTION 7.
Miscellaneous
7.1 Amendment; Waiver. Neither this Agreement nor any provision hereof may
be amended, modified, supplemented or waived, except by a written instrument
executed by the Company and the Purchaser.
7.2 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if in writing and delivered in person,
transmitted by facsimile transmission (fax) or sent by registered or certified
mail (return receipt requested) or recognized overnight delivery service,
postage pre-paid, addressed as follows, or to such other address has such party
may notify to the other parties in writing:
7.2.1 if to the Company:
Microvision, Inc.
19910 North Creek Parkway
Bothell, WA 98011
Attn: Richard A. Raisig
Telephone No.: (425) 415-6847
Facsimile No.: (425) 481-1625
with a copy to:
Stoel Rives, LLP
600 University Street, Suite 3600
Seattle, Washington 98101
Attn: John J. Halle
Telephone No.: 206-386-7656
Facsimile No.: 206-386-7500
7.2.2 if to the Purchaser:
Cree Research, Inc.
4600 Silicon Drive
Durham, North Carolina 27703
Attn: Adam Broome
Telephone No.: (919) 333-5339
Facsimile No.: (919) 313-5456
with a copy to:
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Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P.
2500 First Union Capitol Center
Raleigh, North Carolina 27601
Attn: Gerald Roach
Telephone No.: (919) 821-1220
Facsimile No.: (919) 821-6800
A notice or communication will be effective (i) if delivered in person or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
telecopier or E-mail, on the business day of actual confirmed receipt by the
addressee thereof, and (iii) if sent by registered or certified mail, three (3)
business days after dispatch.
7.3 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
7.4 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors and permitted assigns of the parties hereto. No party hereto may
assign its rights or delegate its obligations under this Agreement without the
prior written consent of the other parties hereto.
7.5 Survival of Representations, Warranties and Covenants. All
representations and warranties made in, pursuant to or in connection with this
Agreement shall survive the execution and delivery of this Agreement and the
sale and purchase of the Shares and payment therefor for a period of two (2)
years and thereafter shall terminate, except that all representations and
warranties shall survive indefinitely with respect to claims based upon the
assertion that either the Company or Purchaser had actual knowledge that a
representation or warranty made by either of them was materially false when
made. The Company agrees to indemnify and hold harmless Purchaser and
Purchaser's officers, directors, employees, agents and affiliates for loss or
damage relating to the shares purchased hereunder arising as a result of or
related to any material breach by the Company of any of its representations set
forth herein, including advancement of expenses as they are incurred.
7.6 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof and thereof and
supersede and cancel all prior representations, alleged warranties, statements,
negotiations, undertakings, letters, acceptances, understandings, contracts and
communications, whether verbal or written, among the parties hereto and thereto
or their respective agents with respect to or in connection with the subject
matter hereof.
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7.7 Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Washington, without regard to
principles of conflict of laws.
7.8 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
7.9 Fees and Expenses. Each party shall bear its own fees and expenses in
connection with the negotiation and execution of this Agreement and the
Transaction Documents.
7.10 No Third-Party Beneficiaries. Nothing in this Agreement will confer
any third party beneficiary or other rights upon any Person or entity that is
not a party to this Agreement.
7.11 Press Releases. The Company and the Purchaser shall consult with each
other before issuing any press releases or making any public statement with
respect to the transactions contemplated by this Agreement and the Transaction
Documents and shall not issue any such press release or such public statement
prior to such consultation and without the approval of the other (which approval
shall not unreasonably be withheld), except as may be required by applicable law
or obligations pursuant to any listing agreement with any national securities
exchange.
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STOCK PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the Company and Purchaser have caused this Agreement to
be executed effective as of the date first above written.
MICROVISION, INC.
By:_____________________________________
Its:_______________________________
CREE RESEARCH, INC.
By:_____________________________________
Its:_______________________________
<PAGE>
Exhibit A
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
May 5, 1999, by and between MICROVISION, INC. a Washington corporation (the
"Company"), and CREE RESEARCH, INC., a North Carolina corporation (the
"Investor").
RECITAL
WHEREAS, the Investor is purchasing shares of the Company's common stock,
no par value per share ("Common Stock") pursuant to that certain Stock Purchase
Agreement, dated the date hereof (the "Purchase Agreement").
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Definitions
For purposes of this Agreement:
(a) The term "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means the shares of Common Stock
purchased by Investor pursuant to the Purchase Agreement;
(c) The term "Closing" means the closing of the transactions contemplated
by the Purchase Agreement;
(d) The term "Closing Date" means May 6, 1999.
(e) The term "Holder" means any person owning Registrable Securities who is
a party to this Agreement as of the date hereof or who may be added as a party
hereto pursuant to the terms of this Agreement; and
(f) The term "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the
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Securities and Exchange Commission (the "SEC") that similarly permits inclusion
or incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
2. Form S-3 Registration
(a) The Company shall file a registration statement on Form S-3 covering
the resale of the Registrable Securities within ninety (90) days of the Closing
Date, provided that the Company is a registrant entitled to use Form S-3 to
register the Registrable Securities for such resale. The Company shall cause
such Form S-3 to become effective as soon as practicable thereafter and to
remain effective until the second anniversary of the Closing, subject to Section
2(b) below.
(b) If, at a time at which the Company would otherwise be obligated to
register Registrable Securities or to maintain the effectiveness of any such
registration, there shall occur one or more events that, in the reasonable
judgment of the Board of Directors of the Company, (A) would be required to be
publicly disclosed in order to cause such registration statement to contain the
required disclosure; and (B) cannot be so disclosed without material adverse
consequences to the Company, (i) the Company shall furnish to the Investor a
certificate to that effect signed by the President of the Company; and (ii) the
Company may defer filing of such registration statement or, if such registration
statement is effective, may require any Holder of Registrable Securities to
refrain from making any offers or sales in reliance on such registration
statement for a period reasonably required in the circumstances but not to
exceed 90 days; provided, however, that the Company shall require any Holder to
refrain from such offers and sales for any such period not more than once in the
twelve-month period following the Closing Date; and, provided further, that each
Holder shall be free to sell any of the Registrable Securities held by such
Holder during the period commencing on April 6, 2000 and expiring on the first
anniversary hereof ("Selling Period") if, prior to the Selling Period there has
not been a period of thirty consecutive (30) days during which such Holder was
free to sell Registrable Securities pursuant to an effective registration
statement of the Company that was not subject to a suspension notice issued
pursuant to this Section 2(b).
(c) Notwithstanding anything to the contrary in this Section 2, the Company
shall not be required to register or qualify the Registrable Securities in any
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration or qualification.
(d) All reasonable expenses incurred in connection with a registration
pursuant to this Section 2, including, without limitation, all registration,
filing, qualification, printing and accounting fees, shall be borne by the
Company.
(e) The Company represents and warrants that it meets the requirements for
the use of Form S-3 for registration of the sale by the Investor of the
Registrable Securities and the
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Company shall use its reasonable best efforts to file all reports required to be
filed by the Company with the SEC in a timely manner so as to maintain its
eligibility for the use of Form S-3.
3. Obligations of the Company.
Subject to the terms and conditions set forth in Section 2, when required
by this Agreement to register any Registrable Securities, the Company shall, as
promptly as reasonably possible:
(a) Prepare and file with the SEC a registration statement covering such
Registrable Securities and cause such registration statement to become effective
as soon as practicable thereafter, and keep such registration statement
continuously effective until the second anniversary of the Closing or such
shorter period as will terminate when all the Registrable Securities covered by
the registration statement have been sold.
(b) Prepare and file with the SEC any amendments and supplements to the
registration statement and the prospectus used in connection with it needed to
comply with the Securities Act with respect to the sale of all Registrable
Securities covered by such registration statement.
(c) Give the Holders the number of copies of preliminary and final
prospectuses, in conformity with the requirements of the Securities Act, and
other documents that they reasonably request to facilitate the sale of their
Registrable Securities.
(d) Use its best efforts to register and qualify the Registrable Securities
covered by such registration statement under securities or Blue Sky laws of such
jurisdictions that the Holders request, provided that the Company shall not be
required in connection therewith to qualify to do business or to file a general
consent to service of process in any such jurisdictions.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(f) Cause all Registrable Securities registered hereunder to be listed on
each securities exchange or market on which similar securities issued by the
Company are then listed.
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4. Currency of Registration and Public Information.
In case any Registrable Securities are registered pursuant to this
Agreement, to the extent permitted by law, the Company will register such
Registrable Securities for offer on a continuous basis until the second
anniversary of Closing and, during that period will maintain the currency of all
registration and other public information required by law in connection with
sales of Registrable Securities, except that the Company shall not be obligated
to maintain the currency of such registration and public information during the
period referred to in Section 2(b).
5. Information by Holder; Copies of Prospectus.
The Holder or Holders of Registrable Securities included in any
registration pursuant to this Agreement shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request and as shall be required in connection with such registration. In
connection with any such registration, the Company shall furnish to such Holder
or Holders such numbers of copies as it or they may request, in order to
facilitate the disposition of Registrable Securities owned by them, of any
prospectus or preliminary prospectus prepared in conformity with the Securities
Act.
6. Indemnification.
(a) To the extent permitted by law, the Company will indemnify each Holder,
each of its officers and directors and partners, and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, with respect
to which registration, qualification or compliance has been effected pursuant to
Section 2, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, and the Company will reimburse or pay for the account of each
such Holder, each of its officers and directors, each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred (as and when incurred)
in connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue
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<PAGE>
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling person or underwriter and
stated to be specifically for use therein.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
or pay for the account of the Company, such Holders, such directors, officers,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred (as and when incurred) in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (which approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 6 except to the extent that the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
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(d) The obligations of the Company and the Holders under this Section 6
shall survive the completion of any offering of Registrable Securities in a
registration statement pursuant to this Agreement.
7. Transferability of Registration Rights
The rights to cause the Company to register Registrable Securities pursuant
to this Agreement may be transferred by a Holder to a transferee or assignee
only with the transfer or assignment of all, but not less than all, of such
Holder's Registrable Securities. A transferee or assignee of registration rights
pursuant to this Section 7 shall, upon such transfer or assignment, be deemed a
"Holder" under this Agreement, provided that (i) the Company is, within a
reasonable period of time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (ii) such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act; and (iii) the transferee or assignee
executes an endorsement to this Agreement agreeing to be bound by all the terms
and conditions hereof as Holder.
8. "Market Stand-Off" Agreement.
(a) If requested by the Company and an underwriter managing an underwritten
offering of the Company's securities, each Holder agrees that, except for such
sales, transfers and other dispositions which, in the aggregate, do not exceed
1% of the Company's outstanding Common Stock at the time of effectiveness, such
Holder shall not sell or otherwise transfer or dispose of any Registrable
Securities held by such Holder without the prior written consent of the Company
and such underwriter for a period not to exceed ninety (90) days following the
effective date of a registration statement of the Company filed under the
Securities Act (the "Lock-up Period"); provided, however, that no such Holder
shall be subject to such restriction if any other holder of the Company's
securities who holds a greater or equal percentage of the Company's outstanding
Common Stock than such Holder is not similarly restricted; and, provided
further, that each Holder shall be free to sell any of the Registrable
Securities held by such Holder during the Selling Period if, prior to the
Selling Period there has not been a period of thirty consecutive (30) days
during which such Holder was free to sell Registrable Securities pursuant to an
effective registration statement of the Company that was not subject to a
suspension notice issued pursuant to Section 2(b).
(b) Such agreement shall apply to any underwritten registration of the
Company.
(c) The obligations described in this Section 8 shall not apply to a
registration relating solely to the sale of securities to participants in a
stock option or stock purchase plan, a registration on any form that does not
include substantially the same information that would be required to be included
in a registration statement covering the sale of the Registrable
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Securities, or a registration on Form S-4. The Company may impose stop-transfer
instructions with respect to the Registrable Securities subject to the foregoing
restriction until the end of the Lock-up Period. The Company may not waive or
terminate its rights under any market stand-off agreement with any employee,
director, Holder, or other shareholder unless each Holder is granted a similar
waiver on a pro rata basis or unless the Holders of a majority of the
Registrable Securities consent to such waiver or termination.
9. Notices
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or upon deposit with the United
States Post Office, postage prepaid, registered or certified with return receipt
requested and addressed to the party to be notified at the address indicated for
such party on the signature page hereof or on Schedule A hereto, or at such
other address as such party may designate by ten days' advance written notice to
the other parties given in the foregoing manner.
10. Amendments and Waivers
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the Holders of not less than 80% of the Registrable Securities. Additional
Holders may be added to this Agreement with such consent by adding a Schedule A
hereto listing each such Holder's name and address and adding a signature page
executed by such additional Holder.
11. Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
12. Governing Law
This Agreement shall be governed by and construed under the laws of the
State of Washington as applied to agreements among Washington residents entered
into and to be performed entirely within the State of Washington.
13. Counterparts
This Agreement may be executed in two or more counterparts, each of which
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<PAGE>
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
14. Entire Agreement
This Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements with respect to the subject matter hereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first above written.
COMPANY:
MICROVISION, INC.
By:_________________________________________
Its: ___________________________________
INVESTOR:
CREE RESEARCH, INC.
By:_________________________________________
Its: ___________________________________
August 2, 1999
Board of Directors
Microvision, Inc.
19910 North Creek Parkway
Bothell, WA 98011-0066
Ladies and Gentlemen:
We have acted as counsel for Microvision, Inc. (the "Company"), in
connection with the filing of a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933 covering an aggregate
of 268,600 shares of Common Stock, no par value, of the Company (the "Shares").
We have reviewed the corporate action of the Company in connection with this
matter and have examined such documents, corporate records, and other
instruments as we have deemed necessary for the purposes of this opinion.
Based upon the foregoing, it is our opinion that the Shares are duly
authorized, validly issued, and fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STOEL RIVES LLP
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated April 1, 1999 relating to the
financial statements, which appears in Microvision, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1998. We also consent to the reference to
us under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Seattle, Washington
August 4, 1999
