<PAGE>
As filed with the Securities and Exchange Commission on March 30, 2000
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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
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> <C> <C>
Common Stock, 613,251 shares $54.9375 (1) $33,690,477 (1) $8,894
no par value
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(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.
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 March 30, 2000.
MICROVISION, INC.
613,251 shares of Common Stock
These shares of common stock are being offered and sold from time to
time by certain of our shareholders. For information about these selling
shareholders, you should refer to the section of this prospectus entitled
"Selling Shareholders" on page 4.
The selling shareholders 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 shareholders' possible methods of sale,
you should refer to the section of this prospectus entitled "Plan of
Distribution" on page 6. 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 March 29, 2000, the closing price for our common stock was
$53.94 per share.
-------------------------------
THE SHARES OFFERED IN THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK.
YOU SHOULD CAREFULLY CONSIDER THE "RISK FACTORS" INCLUDED IN OUR ANNUAL REPORT
ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999 AND OUR OTHER FILINGS
WITH THE SECURITIES AND EXCHANGE COMMISSION, WHICH ARE INCORPORATED BY REFERENCE
IN THIS PROSPECTUS, IN DETERMINING WHETHER TO PURCHASE SHARES OF OUR COMMON
STOCK.
-------------------------------
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 March 30, 2000.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
SECTION PAGE
------- -----
<S> <C>
Our Business .............................................................. 3
Selling Shareholders ...................................................... 4
Plan of Distribution ...................................................... 6
Experts ................................................................... 7
Limitation of Liability and Indemnification ............................... 7
Information Incorporated by Reference ..................................... 8
Available Information .................................................... 8
</TABLE>
You should rely only on information contained or incorporated by
reference in this prospectus. See "Information Incorporated by Reference" on
page 8. Neither Microvision nor the selling shareholders 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.
-2-
<PAGE>
OUR BUSINESS
Microvision develops information display and related technologies that
allow electronically generated images and information to be projected to a
viewer's eye. We have developed prototype Retinal Scanning Display (RSD)
technology devices, including portable color and monochrome versions and a full
color table-top version, are currently refining and developing our RSD
technology for defense and commercial applications, and expect to commercialize
our technology through the development of products and as a supplier of personal
display technology to original equipment manufacturers. We believe that our RSD
technology will be useful in a variety of applications, including portable
communications and visual simulation for defense, medical, industrial and
entertainment that include applications requiring the superimposing of images on
the user's field of vision. We expect that our RSD technology will allow for the
production of highly miniaturized, lightweight, battery-operated displays that
can be held or worn comfortably. Our scanning technology also may be applied to
the capturing of images, in such products as digital cameras or bar code
readers. We may expend funds in evaluating and developing solutions for possible
future products involving this application.
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
through a combination of the following activities: the licensing of technology
to original equipment manufacturers of electronics products; the provision of
engineering services associated with cooperative development arrangements and
research contracts; and the manufacture and sale of 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.
-3-
<PAGE>
SELLING SHAREHOLDERS
On February 17, 1999, Thomas Furness acquired 25,000 shares of our
common stock in connection with our acquisition of a license. On April 1,
1999, Josephthal & Co., Inc. acquired warrants to purchase 32,695 shares of
our common stock. These warrants were issued to Josephthal in connection with
financial advisory services provided to us.
On March 17, 2000, we agreed to issue and sell 250,000 shares of our
common stock to each of Cree, Inc. ("Cree") and General Electric Pension Trust
("GEPT"). The closing of the sale to Cree will occur on the earlier of April 17,
2000 or three business days after the date on which the registration statement
of which this prospectus forms a part is declared effective by the Securities
and Exchange Commission (the "Effective Date"). The closing of the sale to
GEPT will occur three business days after the Effective date.
Pursuant to the stock purchase agreement among Microvision, Cree and
GEPT, we may be required to issue up to an additional 27,778 shares of common
stock to each of Cree and GEPT if the volume weighted average closing price of
our common stock, as reported on the Nasdaq National Market, during the
twenty-five trading days immediately preceding the respective closing dates of
the sales to Cree and GEPT, ("Market Price") is less than $50.00 per share.
Additional shares would be issued to reduce the effective purchase price to the
Market Price, with a minimum effective price of $45.00 per share. We are
registering the maximum number of shares issuable to Cree and GEPT under the
terms of the stock purchase agreement in the registration statement of which
this prospectus forms a part.
Mr. Furness, Josephthal & Co., Inc., Cree and GEPT are referred to in
this prospectus individually as a "selling shareholder" and collectively as the
"selling shareholders." We are registering the selling shareholders' shares
(including the shares issuable upon exercise of Josephthal's warrants) in the
registration statement of which this prospectus forms a part.
The following table sets forth certain information as of March 28,
2000, regarding the ownership of the common stock by the selling shareholders
and as adjusted to give effect to the sale of the shares offered hereby.
<TABLE>
<CAPTION>
Shares Ownership After
Beneficially Shares Being Offering if All Shares Offered
Owned Prior to Offered Hereby Are Sold
Selling Shareholder Offering
Shares Percent
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Thomas Furness 27,563 25,000 2,563 *
Josephthal & Co., Inc. 32,695 32,695 0 *
Cree, Inc. 546,378 277,778 268,600 2.5
General Electric Pension Trust 277,778 277,778 0 *
</TABLE>
* Less than one percent.
-4-
<PAGE>
Except for (i) Josephthal & Co., Inc. , which makes a market in our
common stock, and (ii) with respect to a technology joint development program
undertaken by Cree and us, neither the selling shareholders nor the officers,
directors or trustees thereof have 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 shareholders may wish to be
legally permitted to publicly resell the shares of our common stock when they
deem appropriate, we agreed with the selling shareholders 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 shareholders.
-5-
<PAGE>
PLAN OF DISTRIBUTION
We are registering the shares covered by this prospectus for the
selling shareholders. As used in this prospectus, "selling shareholders"
includes the pledgees, donees, transferees or others who may later hold the
selling shareholders' interest. We will pay the costs and fees of registering
the shares, but the selling shareholders will pay any brokerage commissions,
discounts or other expenses relating to the sale of the shares. Microvision and
the selling shareholders 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 shareholders 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 shareholders may sell some or all of their shares through:
- a block trade in which a broker-dealer may resell a portion of
the block, as principal, in order to facilitate the
transaction;
- purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
- ordinary brokerage transactions and transactions in which a
broker solicits purchases.
When selling the shares, the selling shareholders may enter into
hedging transactions. For example, the selling shareholders may:
- enter into transactions involving short sales of the shares by
broker-dealers;
- sell shares short themselves and redeliver such shares to
close out their short positions;
- enter into option or other types of transactions that require
the selling shareholders to deliver shares to a broker-dealer,
who will then resell or transfer the shares under this
prospectus; or
- 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 shareholders may negotiate and pay broker-dealers
commissions, discounts or concessions for their services. Broker-dealers engaged
by the selling shareholders may allow other broker-dealers to participate in
resales. However, the selling shareholders and any broker-dealers involved in
the sale or resale of the shares may qualify as "underwriters" within the
-6-
<PAGE>
meaning of 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 shareholders
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
shareholders may:
- 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;
- transfer its shares in other ways not involving market makers
or established trading markets, including directly by gift,
distribution, or other transfer; or
- sell its shares under Rule 144 of the Securities Act rather
than under this prospectus, if the transaction meets the
requirements of Rule 144.
Upon notification by a selling shareholder that any material
arrangement has been entered into with a broker-dealer for the sale of the
shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, we will file a
supplement to this prospectus, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing the material terms of the transaction. In addition,
we will file a supplement to this prospectus if a selling shareholder notifies
us that a donee or pledgee intends to sell more than 500 shares.
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, 1999, 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.
-7-
<PAGE>
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 shareholders
have 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, 1999; and
(2) 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.
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.
-8-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Company will pay all expenses in connection with the issuance and
distribution of the securities being registered. The following is an itemized
statement of these expenses (all amounts are estimated except for the SEC and
Nasdaq listing fees):
<TABLE>
<CAPTION>
<S> <C>
SEC Registration fee............................................... $ 8,894
Nasdaq listing fee................................................. $ 12,625
Legal fees......................................................... $ 5,000
Accountant's Fees.................................................. $ 2,500
Printing Fees...................................................... $ 0
Miscellaneous...................................................... $ 1,000
-----------
Total.............................................................. $ 30,019
</TABLE>
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 Common Stock Purchase Warrant, dated as of April 1, 1999,
issued to Josephthal & Co., Inc.
5 Opinion on Legality
23 Consent of PricewaterhouseCoopers LLP
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 offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
(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 March 30,
2000.
MICROVISION, INC.
By: /s/ RICHARD F. RUTKOWSKI
--------------------------------------
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 March, 2000.
SIGNATURE AND TITLE
/s/ /s/
- ------------------------------ -----------------------------------
Richard F. Rutkowski Robert A. Ratliffe
President, Chief Executive Officer Director
and Director
/s/ /s/
- ------------------------------ -----------------------------------
Stephen R. Willey Jacob Brouwer
Director Director
/s/ /s/
- ------------------------------ -----------------------------------
Richard A. Raisig Richard A. Cowell
Chief Financial Officer (Principal Director
financial officer) and Director
/s/ /s/
- ------------------------------ -----------------------------------
Walter J. Lack Dennis J. Reimer
Director Director
/s/ /s/
- ------------------------------ -----------------------------------
William A. Owens Margaret Elardi
Director Director
/s/
- ------------------------------
Jeff Wilson
Controller (Principal
accounting officer)
<PAGE>
Exhibit 4.1
MICROVISION, INC.
a Washington corporation
COMMON STOCK PURCHASE WARRANT
Certificate No. 11
THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS. THESE WARRANTS ARE
"RESTRICTED SECURITIES" AS DEFINED IN RULE 144 UNDER THE ACT AND MAY NOT BE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
This is to certify that, for value received and subject to the terms and
conditions set forth below, Microvision, Inc., a Washington corporation (the
"Company"), promises and agrees to sell and issue to Josephthal & Co. Inc.
32,695 fully paid and nonassessable shares of Common Stock, at a price of $20.32
per share, at any time up to and until 5:00 p.m., Seattle, Washington time, on
April 1, 2004, as described more fully in Section 2 below.
This Warrant Certificate is issued subject to the following terms and
conditions:
1. DEFINITIONS OF CERTAIN TERMS. Except as may be otherwise clearly required
by the context, the following terms have the following meanings:
1.1 "Common Stock" means the common stock, no par value, of the Company.
1.2 "Company" means Microvision, Inc., a Washington corporation.
1.3 "Holder" means any person owning Registrable Shares.
1.4 "Exercise Price" means $20.32 per share, subject to adjustment from
time to time pursuant to the provisions hereof.
1.5 "Register," "registration," and "registered" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement by the U.S. Securities and Exchange Commission (the
"SEC").
-1-
<PAGE>
1.6 "Registrable Shares" means the shares of Common Stock issued or
issuable upon exercise of the Warrants.
1.7 "Securities" means the securities obtained or obtainable upon exercise
of the Warrants or securities obtained or obtainable upon exercise, exchange, or
conversion of such securities.
1.8 "Securities Act" means the Securities Act of 1933, as amended.
1.9 "Transfer Agent" means the transfer agent for the Common Stock.
1.10 "Warrant Certificate" means a certificate evidencing Warrants.
1.11 "Warrantholder" means a record holder of Warrants or Securities.
1.12 "Warrants" means the warrants evidenced by this certificate or any
similar certificate issued in replacement of any such certificate.
2. EXERCISE OF WARRANTS. All or any part of the Warrants evidenced by this
Certificate may be exercised by surrendering this Warrant Certificate, together
with appropriate instructions, duly executed by the Warrantholder or by his or
her duly authorized attorney-in-fact, at the office of the Company, 19910 North
Creek Parkway, Bothell, WA 98011, or at such other office or agency as the
Company may designate, accompanied by payment in U.S. funds in full, in cash or
certified or cashier's check, of the Exercise Price payable with respect to the
Warrants being exercised. Upon such surrender and payment, the Company will
provide the Warrantholder with a form of subscription for the Securities to be
obtained on exercise of the Warrants. Subject to the terms and conditions of
this Warrant Certificate, the Company will, as soon as practicable after said
surrender and payment and completion of such subscription by the Warrantholder,
make arrangements with its Transfer Agent to mail to the Warrantholder at the
address specified in the subscription a certificate or certificates evidencing
the Securities subscribed for. If fewer than all the Warrants evidenced by this
Warrant Certificate are exercised, the Company will, upon such exercise, execute
and deliver to the Warrantholder a new Warrant Certificate (dated the date
hereof), in form and tenor similar to this Warrant Certificate, evidencing the
Warrants not exercised. The Securities to be obtained on exercise of the
Warrants will be deemed to have been issued, and any person exercising the
Warrants will be deemed to have become a holder of record of those Securities,
as of the date of the issuance of a certificate or certificates evidencing the
Securities. The securities laws of the United States and certain states thereof
or other jurisdictions may require that a registration statement registering the
Securities to be issued on exercise of the Warrants be effective, or that an
exemption from registration be available, before the Company may issue the
Securities to the Warrantholder. The Company will use its best efforts to take
such actions under the Act and the laws of various states and other
jurisdictions as may be required to cause the issuance of Securities upon
exercise of Warrants to comply with applicable securities laws. However, the
Company will not be required to honor the exercise of Warrants if, in the
opinion of the Company's Board of Directors, upon advice of counsel, the
issuance of
-2-
<PAGE>
Securities upon such exercise would be unlawful. In such event, the Company may
elect to redeem Warrants submitted for exercise for a price equal to the
difference between (i) the closing price of the Securities on the date of
submission of the subscription for exercise of Warrants, as reported by the
principal exchange or quotation service upon or through which the Securities are
then principally traded or quoted (the "Exchange"), and (ii) the Exercise Price
at the time of submission of the Securities subscribed for. In the event of such
redemption, the Company will pay to the Warrantholder the above-described
redemption price within ten business days after the Warrantholder's submission
of the subscription for the Securities.
3. ADJUSTMENTS IN CERTAIN EVENTS. The number, class and price of Securities
for which this Warrant Certificate may be exercised are subject to adjustment
from time to time upon the happening of certain events as follows:
3.1 If the outstanding shares of Common Stock are divided into a
greater number of shares or a dividend in stock is paid on the Common Stock, the
number of shares of Common Stock for which the Warrants are then exercisable
will be proportionately increased and the Exercise Price will be proportionately
reduced. Conversely, if the outstanding shares of Common Stock are combined into
a smaller number of shares of Common Stock, the number of shares of Common Stock
for which the Warrants are then exercisable will be proportionately reduced and
the Exercise Price will be proportionately increased. The increases and
reductions provided for in this Section 3.1 will be made with the intent and, as
nearly as practicable, the effect that neither the percentage of the total
equity of the Company obtainable on exercise of the Warrants nor the price
payable for such percentage upon such exercise will be affected by any event
described in this Section 3.1.
3.2 In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, recapitalization, partial or
complete liquidation, or other change in the capital structure of the Company,
then, as a condition of the change in the capital structure of the Company,
lawful and adequate provision will be made so that the holder of this Warrant
Certificate will have the right thereafter to receive upon the exercise of the
Warrants the kind and amount of shares of stock or other securities or property
to which he would have been entitled if, immediately prior to such merger,
consolidation, reclassification, reorganization, recapitalization, liquidation,
or other change in capital structure, the Warrantholder had held the number of
shares of Common Stock obtainable upon the exercise of the Warrants. In such
event, the Exercise Price will be proportionately adjusted. In any such case,
appropriate adjustment will be made in the application of the provisions set
forth herein with respect to the rights and interest thereafter of the
Warrantholder, to the end that the provisions set forth herein will thereafter
be applicable, as nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon the exercise of the
Warrants. The Company will not permit any change in its capital structure to
occur unless the issuer of the shares of stock or other securities to be
received by the holder of this Warrant Certificate, if not the Company, agrees
to be bound by and comply with the provisions of this Warrant Certificate.
-3-
<PAGE>
3.3 When any adjustment is required to be made in the number of
shares of Common Stock, other securities or the property purchasable upon
exercise of the Warrants, the Company will promptly determine the new number of
such shares or other securities or property purchasable upon exercise of the
Warrants and (i) prepare and retain on file a statement describing in reasonable
detail the method used in arriving at the new number of such shares or other
securities or property purchasable upon exercise of the Warrants and (ii) cause
a copy of such statement to be mailed to the Warrantholder within 30 days after
the date when the event giving rise to the adjustment occurred.
3.4 No fractional shares of Common Stock or other securities will be
issued in connection with the exercise of any Warrants, but the Company will
pay, in lieu of fractional shares, a cash payment therefor on the basis of the
closing price of the Securities as reported by the Exchange on the day
immediately prior to exercise.
4. REGISTRATION RIGHTS.
4.1 PIGGYBACK REGISTRATION. At any time during the period commencing
on September 28, 1999, and expiring at 5:00 p.m., Seattle, Washington time, on
April 1, 2004, whenever the Company proposes to register any of its securities
under the Securities Act (other than pursuant to a registration on Form S-8 or
S-4) and the Company is not prohibited from including the Registrable Shares on
such registration statement, the Company will give by registered mail at least
30 days prior written notice to all Holders of Registrable Shares of its
intention to effect such a registration, and the Company will include in such
registration all Registrable Shares with respect to which the Company has
received written requests for inclusion therein within 20 days after the Company
has effectively given notice of the proposed registration, except that if, in
connection with any underwritten public offering for the account of the Company
the managing underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included in the registration statement
because, in such underwriter(s)' judgment, marketing or other factors dictate
such limitation is necessary to facilitate public distribution, then the Company
shall be obligated to include in such registration statement only such limited
portion of the Registrable Shares with respect to which such Holder has
requested inclusion hereunder as the underwriter shall permit. Any exclusion of
Registrable Shares shall be made pro rata among the Holders seeking to include
Registrable Shares, in proportion to the number of Registrable Shares sought to
be included by such Holders; provided, however, that the Company shall not
exclude any Registrable Shares unless the Company has first excluded all
outstanding securities, the holders of which are not entitled to inclusion of
such securities in such registration statement or are not entitled to pro rata
inclusion with the Registrable Shares; and provided, further, however, that,
after giving effect to the immediately preceding proviso, any exclusion of
Registrable Shares shall be made pro rata with holders of other securities
having the right to include such securities in the registration statement other
than holders of securities entitled to inclusion of their securities in such
registration statement by reason of demand registration rights (except to the
extent any existing agreements otherwise provide). No right to registration of
Registrable Shares under this Section 4.1 shall be construed to limit any
registration required under Section 4.2 hereof. If an offering in connection
with which a Holder is entitled to registration under this Section
-4-
<PAGE>
4.1 is an underwritten offering, then each Holder whose Registrable Shares are
included in such registration statement shall, unless otherwise agreed by the
Company, offer and sell such Registrable Shares in an underwritten offering
using the same underwriter or underwriters and, subject to the provisions of
this Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering. Notwithstanding the provisions of this
Section 4.1, the Company shall have the right at any time after it shall have
given written notice pursuant to this Section 4.1 to elect not to file any such
proposed registration statement, or to withdraw the same after the filing but
prior to the effective date thereof.
4.2 DEMAND REGISTRATION. At any time during the period commencing on
September 28, 1999, and expiring at 5:00 p.m., Seattle, Washington time, on
April 1, 2004, the Holder(s) of at least 50% of the Registrable Shares then
outstanding shall have the right, exercisable by written notice to the Company,
to have the Company prepare and file with the SEC, on one occasion, a
registration statement on Form S-3 covering the resale of the Registrable
Shares. Upon receipt of such request, provided that the Company is a registrant
entitled to use Form S-3 to register the Registrable Shares for such resale, the
Company shall promptly give written notice of the proposed registration to all
other Holders. The Company shall use its best efforts to file a registration
statement on Form S-3 covering the resale of the Registrable Shares, together
with all or such portion of the Registrable Shares of any other Holders joining
in such request as are specified in a written request given within 15 days after
the Company has effectively given notice of the proposed registration, and to
cause such registration statement to become effective and remain effective for
180 days, subject to the terms of this Agreement.
4.3 Notwithstanding the foregoing: (i) the Company shall not be
obliged to effect a registration pursuant to Section 4.2 in the period starting
60 days before the Company's good faith estimated date of filing of, and ending
90 days after the effective date of, a registration statement pertaining to an
underwritten public offering of securities for the account of the Company (other
than a registration relating solely to the sale of securities to participants in
a Company stock option or stock purchase plan, or 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
Shares, or a registration on Form S-4), if the Company is at all times during
such period diligently and in good faith pursuing such registration, PROVIDED,
HOWEVER, that the Company shall promptly notify the Holders of any decision to
abandon or indefinitely delay such public offering; (ii) the Company shall not
be obliged to register for any Holder such number of Registrable Shares as such
Holder may sell freely in a broker's transaction pursuant to Rule 144 under the
Securities Act within three months of the date of the request for registration;
(iii) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it could be seriously detrimental to the Company
and its shareholders for such Form S-3 registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 90 days after receipt
of the request of the Holders under this Section 4; and (iv) the Company shall
not be obliged to effect a registration in any particular jurisdiction in which
the Company would be required to qualify to do business or to
-5-
<PAGE>
execute a general consent to service of process in effecting such registration
qualification or compliance.
5. EXPENSES OF REGISTRATION. The Company shall pay all expenses other than
underwriting discounts, commissions and fees and disbursements of legal counsel
for the selling Holders relating to the Registrable Shares incurred in
connection with registrations, filings or qualifications pursuant to this
Agreement, including (without limitation) all registration, filing and
qualification fees, printing and accounting fees, and fees and disbursements of
counsel for the Company.
6. OBLIGATIONS OF THE COMPANY. When required by this Agreement to register
Registrable Shares, the Company shall, as promptly as reasonably possible:
6.1 Prepare and file with the SEC a registration statement covering such
Registrable Shares and use its best efforts to cause such registration statement
to become effective, and, keep such registration statement continuously
effective for up to 180 days or such shorter period as will terminate when all
the Registrable Shares covered by the registration statement have been sold.
6.2 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
Shares covered by such registration statement.
6.3 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 Shares.
6.4 Use its best efforts to register and qualify the Registrable Shares
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.
6.5 Notify each holder of Registrable Shares 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.
6.6 Cause all Registrable Shares registered hereunder to be listed in each
securities exchange or market in which similar securities issued by the Company
are listed.
6.7 Furnish, at the request of any Holder requesting registration of
Registrable Shares, on the date that such Registrable Shares are delivered to
the underwriters for sale in
-6-
<PAGE>
connection with a registration, if such Registrable Shares are being sold
through underwriters, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, and to the Holders requesting
registration of Registrable Shares, and (ii) a letter, dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters
and to the Holders requesting registration of Registrable Shares.
6.8 Indemnify and hold any Holder harmless against any losses, claims,
damages or liabilities to which such Holder may become subject under the
Securities Act insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, or any amendment or supplement thereto, or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Holder specifically for use in the preparation
thereof.
6.9 Deliver promptly to each Holder participating in the offering, upon
request thereby, copies of all correspondence between the SEC and the Company,
its counsel or auditors and all memoranda relating to discussions with the SEC
or its staff with respect to the registration statement, and permit each Holder
to do such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement, as it deems
reasonably necessary to comply with applicable securities laws or rules of the
National Association of Securities Dealers, Inc. ("NASD"). Such investigation
shall include access to books, records and properties of the Company, and the
opportunity to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable times
as any such Holder shall reasonably request.
7. HOLDER'S INFORMATION. The Company is obliged to take actions to register
Registrable Shares under this Agreement only if the Holders requesting
registration give the Company on a timely basis all information regarding
themselves, their Registrable Shares, and their intended method of disposition
of such securities as shall be reasonably required to effect the registration of
their Registrable Shares.
8. RESERVATION OF SECURITIES. The Company agrees that the number of shares of
Common Stock and other Securities sufficient to provide for the exercise of the
Warrants upon the basis set forth above will at all times during the term of the
Warrants be reserved for exercise.
9. VALIDITY OF SECURITIES. All Securities delivered upon the exercise of the
Warrants will be duly and validly issued in accordance with their terms, and the
Company will pay all
-7-
<PAGE>
documentary and transfer taxes, if any, in respect of the original issuance
thereof upon exercise of the Warrants.
10. LEGENDING OF SECURITIES. All certificates representing Securities delivered
upon the exercise of the Warrants shall be impressed with a legend indicating
that the Securities are not registered under the Act and reciting that the
transfer thereof is restricted, such legend to be in a form acceptable to
counsel for the Company.
11. TRANSFER PROHIBITED. This Warrant and all rights hereunder may not be
transferred or assigned without prior written approval of the Company. Any
transfer effected without the prior written approval of the Company shall be
void.
12. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of Warrants, be entitled to any
rights as a shareholder of the Company.
13. OWNERSHIP. The Company, and its Transfer Agent, and any agent of the
Company or its Transfer Agent may treat the bearer of this Warrant Certificate
as the absolute owner of the Warrants evidenced hereby for the purpose of
exercising the Warrants and for all other purposes whatsoever, and
notwithstanding any notice of ownership or writing thereon, or any notice of
previous loss or theft or other interest therein.
14. NOTICE. Any notices required or permitted to be given hereunder may be
given in writing personally or by mail or other comparable delivery service at
the address determined below or at such other address as the party receiving
notice has theretofore furnished to the notifying party:
If to the Company:
19910 North Creek Parkway
Bothell, WA 98011
Attn: Richard A. Raisig, Chief Financial Officer
If to the Warrantholder:
at the address furnished
by the Warrantholder in such
Warrantholder's Subscription
Agreement.
Any notice given by mail will be deemed effectively given 48 hours after mailing
when deposited in the United States mail, registered or certified mail, return
receipt requested, postage prepaid and addressed as specified above. Any notice
given by courier or other comparable form of delivery service will be deemed
effectively given at the date and time recorded for such delivery in the records
of the delivery service.
-8-
<PAGE>
15. APPLICABLE LAW. This Certificate will be governed by and construed in
accordance with the laws of the State of Washington.
Dated as of April 1, 1999.
MICROVISION, INC.
By:____________________________________
Richard A. Raisig
Chief Financial Officer
-9-
<PAGE>
March 29, 2000
Microvision, Inc.
19910 North Creek Parkway
Bothell, WA 98011-0066
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Microvision, Inc., a Washington corporation
(the "Company"), in connection with the following transactions:
1. The proposed issuance by the Company of up to 555,556 shares of common
stock, no par value, of the Company (the "Common Stock"), pursuant to
the Stock Purchase Agreement, dated as of March 17, 2000 (the "Stock
Purchase Agreement"), between the Company and Cree, Inc., a North
Carolina corporation, and General Electric Pension Trust, an employee
pension trust organized under the laws of New York (the "Cree/GE
Shares");
2. The issuance by the Company to Josephthal & Co., Inc., of a warrant,
dated as of April 1, 1999, to purchase 32,695 shares of Common Stock
(the "Josepthal Warrant"); and
3. The issuance by the Company of 25,000 shares of Common Stock to Thomas
Furness (the "Furness Shares").
We have reviewed the corporate action of the Company in connection with the
foregoing issuances 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:
1. The Cree/GE Shares, when issued and delivered in accordance with the
Stock Purchase Agreement against payment therefor, will be validly
issued, fully paid, and nonassessable.
2. The shares of Common Stock issuable upon exercise of the Josepthal
Warrant, when issued and delivered in accordance therewith against
<PAGE>
payment for such shares, will be validly issued, fully paid, and
nonassessable.
3. The Furness Shares are validly issued, 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
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 20, 2000 relating to the
financial statements, which appears in Microvision, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1999. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Seattle, Washington
March 28, 2000
