UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ______)
PIXTECH, INC.
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
72583 K109
(CUSIP Number)
CAROL FORSYTE
MOTOROLA, INC., 1303 EAST ALGONQUIN ROAD, SCHAUMBURG, IL 60196
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
FEBRUARY 6, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box __.
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
CUSIP NO. 72583 K109
1. NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Motorola, Inc.
F.E.I.N. 36-1115800
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC, 00
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7. SOLE VOTING POWER
927,416
8. SHARED VOTING POWER
-0-
9. SOLE DISPOSITIVE POWER
927,416
10. SHARED DISPOSITIVE POWER
-0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
927,416
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.8%
14. TYPE OF REPORTING PERSON
CO
Item 1. Securities and Issuer
This statement relates to the common stock, $.01 par value (the
"Shares"), of PixTech, Inc., a Delaware corporation ("PixTech"). PixTech's
principal executive offices are located at Avenue Olivier Perroy, 13790
Rousset, France.
Item 2. Identity and Background
This statement is being filed by Motorola, Inc., a Delaware
corporation ("Motorola"). Motorola's principal executive offices are
located at 1303 East Algonquin Road, Schaumburg, IL 60196. Motorola, one
of the world's leading providers of electronic equipment, systems,
components and services for worldwide markets, is engaged in the design,
manufacture and sale, principally under the Motorola brand, of a
diversified line of such products.
The names, business addresses and present principal occupations of the
directors and executive officers of Motorola are set forth in the attached
Appendix I, which is incorporated by reference. Appendix I also lists the
principal business of any employer that employs a director who is not also an
executive officer of Motorola. To the best of Motorola's knowledge, all
directors and executive officers of Motorola are citizens of the United
States.
Neither Motorola nor, to the best of Motorola's knowledge, any
director or executive officer of Motorola listed on the attached Appendix I
has been, during the last five years, (a) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The consideration for the 463,708 Shares and the Warrant (as defined
in Item 4) acquired by Motorola consists of $686,686 cash and the
assignment to PixTech of Motorola's right to receive $1,500,000 from a
subsidiary of PixTech, under the terms of the DLC Patent Cross-License
Agreement dated June 13, 1996 between Motorola and PixTech, S.A., a
subsidiary of PixTech (the "Diamond License"). Motorola has funded the
cash consideration for the purchase of such Shares and the Warrant out of
working capital. As further consideration for Motorola's investment,
Motorola and PixTech will amend certain licensing and other terms in their
existing Cooperation and Licensing Agreement dated June 13, 1995 (the
"Cooperation Agreement").
Item 4. Purpose of Transaction
Motorola and PixTech have entered into a Stock Purchase Agreement
dated February 6, 1997 (the "SPA") pursuant to which Motorola agreed to
purchase 463,708 Shares. In addition, Motorola received a Warrant to
purchase an additional 463,708 Shares at an exercise price per share of
$5.50, exercisable at any time up to December 31, 1998 (the "Warrant"). The
transactions contemplated by the SPA were consummated as of February 14, 1997.
Pursuant to the SPA, upon Motorola's exercise of the Warrant, PixTech
will use its best efforts, at the next regularly scheduled meeting of the
Board of Directors, to enlarge the number of members of the Board and to elect
a representative designated by Motorola in writing to fill the vacancy so
created. Prior to the exercise of the Warrant a representative of Motorola
will be permitted to observe (but not vote at) the board meetings.
Since 1995 Motorola has participated, with PixTech and other parties,
in a flat emission display alliance (the "FED Alliance"). In June, 1995
Motorola and PixTech entered into the Cooperation Agreement pursuant to
which Motorola has licensed certain flat emission display technology to
PixTech (granting PixTech further rights to sublicense such technology to
FED Alliance members and others subject to the terms of the Cooperation
License). In connection with the purchase of the Shares and Warrants,
PixTech and Motorola are amending the Cooperation Agreement.
Motorola has acquired the Shares and the Warrant and entered into the
amendment of the Cooperation Agreement described in this Item 4 in order to
provide additional working capital to PixTech and to participate to a
greater extent in any future growth and success of PixTech. Except as set
forth in this Item 4, neither Motorola, nor to the best of Motorola's
knowledge, any of its executive officers or directors, has any plans or
proposals that relate to or would result in any of the actions or events
specified in clauses (a) through (j) of Item 4 of Schedule 13D.
Notwithstanding the foregoing, Motorola may determine to change its
investment intent with respect to PixTech at any time in the future. In
reaching any conclusion as to its future course of action, Motorola will
take into consideration such factors as it deems relevant, including the
business and prospects of PixTech, future developments concerning PixTech,
other business opportunities available to Motorola, developments with
respect to the business of Motorola, and general economic, financial and
market conditions. Motorola reserves the right to acquire additional
securities of PixTech in the open market, in privately negotiated
transactions (which may be with PixTech or third parties) or otherwise, to
dispose of all or a portion of its holdings of securities of PixTech or to
change its intention with respect to any or all of the matters referred to
in this Item 4.
Item 5. Interest in Securities of the Issuer
(a) As of February 14, 1997, Motorola was the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of 927,416 Shares, of which 463,708 Shares are issuable upon
exercise of Motorola's Warrant. This total represents 6.8% of all
outstanding Shares, based on information furnished to Motorola by PixTech
as of February 14, 1997 stating that 13,248,807 Shares were outstanding as
of February 14, 1997 and, after giving effect to the transactions described
in Item 4, 13,712,515 Shares were outstanding as of February 14, 1997. To
the best knowledge of Motorola, no Shares are beneficially owned by any of
its executive officers or directors, nor do such executive officers and
directors have the right to acquire any shares.
(b) Motorola has the sole power to vote or direct the vote and to
dispose or direct the disposition of the 927,416 Shares listed as
beneficially owned by Motorola in Item 5(a).
(c) Motorola had no transactions in Shares during the past 60 days.
To the best of Motorola's knowledge, no director or executive officer of
Motorola has engaged in any transactions in Shares during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
See Item 4 for a description of the SPA and Warrant. All statements
made in the body of this Schedule 13D which relate to the terms of the SPA
and Warrant are qualified in their entirety by the terms of such documents
which are filed hereto as Exhibits A and B, respectively.
Except as set forth in this Schedule 13D, to the best of Motorola's
knowledge, no other contracts, arrangements, understandings or
relationships (legal or otherwise) exist among the persons named in Item 2
or between such persons and any other person with respect to any securities
of PixTech, including but not limited to, the transfer or voting of any
such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, the division of profits
or loss or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits
EXHIBIT DESCRIPTION
Exhibit 4.1 Stock Purchase Agreement dated February 6, 1997 between
Motorola, Inc. and PixTech, Inc.
Exhibit 4.2 Warrant dated February 14, 1997 issued by PixTech, Inc.
to Motorola, Inc.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Date: February 17, 1997 /s/ Linda B. Valentine
Signature
Vice President,
Law Department
Name/Title
APPENDIX I
Executive Officers and Directors of Motorola
Set forth below are the names and present principal occupation or
employment of each executive officer and director of Motorola. Except for
the persons whose business address is set forth below following their
occupations, the business address of each of the persons listed below is
the same as that set forth in Item 2 for Motorola.
EXECUTIVE OFFICERS:
PRESENT PRINCIPAL OCCUPATION
NAME AND BUSINESS ADDRESS
Gary L. Tooker Chairman of the Board (Director)
Christopher B. Galvin Chief Executive Officer (Director)
Robert W. Galvin Chairman of the Executive Committee
of the Board
Keith J. Bane Executive Vice President, and Chief
Corporate Staff Officer
Arnold S. Brenner Executive Vice President and
General Manager, Japanese Group;
business address: 3102 N. 56th
Street, Phoenix, AZ 85018
Thomas D. George Executive Vice President and
President and General Manager,
Semiconductor Products Sector:
business address: 3102 N. 56th
Street, Phoenix, AZ 85018
Glenn A.Gienko Executive Vice President and
Director, Human Resources
Merle L. Gilmore Executive Vice President, President
and General Manager, Land Mobile
Products Sector; business
address: 1301 E. Algonquin
Road, Schaumburg, IL 60196
Robert L. Growney President and Chief Operating Officer
(Director);
Carl F. Koenemann Executive Vice President and Chief
Financial Officer
A. Peter Lawson Senior Vice President, General
Counsel and Secretary
James A. Norling Executive Vice President, President
and General Manager, Messaging,
Information and Media Sector;
and President, Motorola Europe,
Middle East and Africa; business
address: 1301 E. Algonquin Road,
Schaumburg, IL 60196
Hector de J. Ruiz Executive Vice President, Semiconductor
Products Sector; business address:
6501 William Cannon Drive, Austin,
TX, 78735
Jack M. Scanlon Executive Vice President, President
and General Manager, Cellular
Networks and Space Sector; business
address: 1501 W. Shure Drive,
Arlington Heights, IL 60004
Frederick T. Tucker Executive Vice President, President
and General Manager, Automotive,
Energy and Components Sector;
business address: 4000
Commercial Drive, Northbrook, IL
60062
Robert N. Weisshappel Executive Vice President, President
and General Manager, Cellular
Subscriber Sector; business address:
600 North U.S. Highway 45,
Libertyville, IL 60048
Richard W. Younts Executive Vice President and
Corporate Executive Director,
International-Asia and Americas
DIRECTORS OF MOTOROLA (WHO ARE NOT ALSO EXECUTIVE OFFICERS OF MOTOROLA):
William J. Weisz Vice Chairman of Board of Directors
H. Laurance Fuller Chairman of the Board and Chief
Executive Officer, Amoco
Corporation; 200 East Randolph
Drive, Chicago, IL 60601
Anne P. Jones Consultant; 5716 Bent Branch Road
Bethesda, MD 20816
Donald R. Jones Retired; 1776 Beaver Pond Road,
Inverness, IL 60067
Judy C. Lewent Senior Vice President and Chief
Financial Officer; Merck & Co.,
Inc., One Merck Drive,
Whitehouse Station, NJ 08889
Walter E. Massey President, Morehouse College
830 Westview Drive, SW
Atlanta, GA 30314
John F. Mitchell Vice Chairman of the Board
Thomas J. Murrin Dean of Duquesne University's
School of Business
Administration; Room 405,
Rockwell Hall, 600 Forbes
Avenue, Pittsburgh, PA 15282
Nicholas Negroponte Director of Media Laboratory of
Massachusetts Institute of
Technology;
Massachusetts Institute of
Technology Media Lab, 20 Ames
Street, E15-210 Cambridge, MA
02139
John E. Pepper, Jr. Chairman of the Board, and Chief
Executive, Procter and Gamble
Co.; One Procter and Gamble
Plaza, Cincinnati, OH 45202
Samuel C. Scott III President, CRB of CPC International
and Corporate Vice President of
CPC International, Inc.
(consumer food products); 6500
Archer Road, Summit-Argo, IL
60501
B. Kenneth West Senior Consultant for Corporate
Governance to Teachers Insurance
and Annuity Association, College
Retirement Equities Fund; Harris
Bankcorp, Inc., P.O. Box 775,
Chicago, IL 60609
Dr. John A. White Dean of Engineering, Georgia
Institute of Technology, 225
North Avenue, Atlanta GA 30332
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
between
PIXTECH, INC.
and
MOTOROLA, INC.
dated as of February 6, 1997
TABLE OF CONTENTS
SECTION 1. Authorization of Sale of the Shares 1
SECTION 2. Authorization of Issuance of the Warrant 1
SECTION 3. Sale of the Shares 2
SECTION 4. Sale of the Warrant 2
SECTION 5. Delivery of the Shares at the Closing 2
SECTION 6. Assignment of Rights to Receive Payments under Diamond
License 2
SECTION 7. Representations, Warranties and Covenants of PixTech 2
7.1 Organization and Qualification 2
7.2 Authorized Capital Stock 2
7.3 Consents; Due Execution; Delivery and Performance
of the Agreement 3
7.4 Issuance, Sale and Delivery of the Shares 3
7.5 Exempt Transaction 3
7.6 Compliance with Rule 144 3
7.7 Disclosure 3
7.8 Additional Information 4
7.9 No Material Changes 4
SECTION 8. Representations, Warranties and Covenants of Motorola 4
8.1 Investment Considerations 4
8.2 Due Execution, Delivery and Performance of the
Agreement 5
SECTION 9. Conditions to the Obligations of the Purchasers. 6
9.1 Accuracy of Representations and Warranties 6
9.2 Performance 6
9.3 Opinion of Counsel 6
9.4 Closing of the Offering 6
9.5 Amendment of Cooperation and License Agreement 6
9.6 Certificates and Documents 6
9.7 Other Matters 6
SECTION 10. Conditions to the Obligations of PixTech 7
10.1 Accuracy of Representations and Warranties 7
10.2 Amendment of Cooperation Agreement 7
SECTION 11. Registration Rights 7
11.1 Registration of Shares and Warrant Shares 7
11.2 Indemnification 8
11.3 "Stand-Off" Agreement 9
11.4 Termination 9
SECTION 12. Board Attendance and Representation 10
12.1 Observation Rights 10
12.2 Election of Board Representative 10
SECTION 13. Survival of Representations, Warranties and Agreements;
Assignibility of Rights 10
SECTION 14. Miscellaneous 10
14.1 Notices 10
14.2 Entire Agreement 11
14.3 Assignment 11
14.4 Amendments and Waivers 12
14.5 Headings 12
14.6 Severability 12
14.7 Governing Law 12
14.8 Counterparts 12
14.9 Expenses 12
14.10 Publicity 12
14.11 Confidentiality 12
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT dated as of February
6, 1997 (the "Agreement") is made between PIXTECH, INC., a corporation
organized under the laws of the State of Delaware having its principal
offices at Avenue Olivier Perroy, Zone Industrielle de Rousset, 13790
Rousset France, ("PixTech"), and MOTOROLA, INC., a corporation organized
under the laws of the State of Delaware having its principal offices at
1303 E. Algonquin Road, Schaumburg, IL 60196 ("Motorola").
R E C I T A L
PixTech desires to sell to Motorola, and Motorola desires to purchase
from PixTech, shares of PixTech's common stock and warrants to purchase
shares of PixTech's common stock on the terms described herein.
NOW THEREFORE, in consideration of the premises and of the covenants
herein contained, the parties hereto mutually agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the
terms and conditions of this Agreement, PixTech has authorized the sale to
Motorola of up to that number of shares of the Common Stock, par value
$0.01 per share (the "Common Stock"), of PixTech equal to 3.5% of the
Outstanding Shares of Common Stock, as defined below. Collectively, the
shares of Common Stock which may be purchased pursuant to this Section 1
are referred to herein as the "Shares." As used herein, the "Outstanding
Shares of Common Stock" shall mean a number of Shares equal to the sum of
(i) the number of shares of PixTech Common Stock issued and outstanding on
the third business day prior to the Closing Date, as defined below, as
reported in writing by American Stock Transfer & Trust Company, PixTech's
transfer agent, and (ii) the aggregate number of shares sold by PixTech in
(A) its European offering (the "European Offering") pursuant to PixTech's
Preliminary Prospectus dated November 28, 1996, and any amendments or
supplements thereto (the "Prospectus") and (B) any other public or private
offering of shares of Common Stock which together result in net proceeds to
PixTech of at least $15 million (collectively with the European Offering,
the "Offering").
SECTION 2. Authorization of Issuance of the Warrant. Subject to
the terms and conditions of this Agreement, PixTech has authorized the
issuance to Motorola of a warrant, substantially in the form attached
hereto as Exhibit A (the "Warrant"), to purchase a number of shares of
Common Stock equal to the number of Shares purchased by Motorola pursuant
to this Agreement.
SECTION 3. Sale of the Shares. Concurrently with the closing of
the Offering (the "Closing"), or at such other time to be mutually agreed
upon by PixTech and Motorola, PixTech shall sell to Motorola, and Motorola
shall purchase from PixTech, upon the terms and conditions hereinafter set
forth, the Shares, at a price per share equal to the lesser of (i) $5.50 or
(ii) the lowest price per share at which PixTech sells any shares of Common
Stock in the Offering (as so determined, the "Per Share Price") The
aggregate purchase price for the Shares, determined by multiplying the
total number of Shares to be sold to Motorola pursuant to Section 1 by the
Per Share Price, is referred to herein as the "Aggregate Purchase Price".
SECTION 4. Sale of the Warrant. Subject to the terms and
conditions hereinafter set forth, at the Closing, PixTech shall issue to
Motorola the Warrant.
SECTION 5. Delivery of the Shares at the Closing. The closing of
the purchase and sale of Shares shall occur on the date of the Closing of
the Offering (the "Closing Date") or at such other time and at a place to
be agreed upon by PixTech and Motorola. Subject to the terms and
conditions of this Agreement, at the Closing, Motorola shall pay to PixTech
an amount in cash equal to the Aggregate Purchase Price less $1.4 million
and PixTech shall deliver to Motorola one or more stock certificates
registered in the name of Motorola, or in such nominee name(s) as
designated by Motorola, representing the number of Shares being purchased.
SECTION 6. Assignment of Rights to Receive Payments under Diamond
License. As additional consideration for the Shares, the parties hereto
agree that upon the Closing Motorola's rights to receive payments of $1.5
million from PixTech S.A. after the Closing Date pursuant to Section 3.1 of
the DLC Patent Cross-License Agreement between PixTech S.A. and Motorola
dated as of June 13, 1996 (the "Diamond License") shall hereby be assigned
to PixTech. PixTech, PixTech S.A. and Motorola agree that the provisions
of this Section 6 shall constitute an amendment of Section 3.1 of the
Diamond License, effective as of the Closing.
SECTION 7. Representations, Warranties and Covenants of PixTech.
PixTech hereby represents and warrants to, and covenants with, Motorola as
follows:
7.1 Organization and Qualification. PixTech is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
conduct its business as currently conducted.
7.2 Authorized Capital Stock. As of the date hereof, the
authorized capital stock of PixTech consists of (a) 30,000,000 shares of
common stock, $0.01 par value per share, of which on January 27, 1997,
8,146,696 shares were validly issued and outstanding, fully paid and non-
assessable, and (b) 1,000,000 shares of undesignated preferred stock, $0.01
par value per share, none of which are issued and outstanding.
7.3 Consents; Due Execution; Delivery and Performance of the
Agreement. PixTech's execution, delivery and performance of this Agreement
and the Warrant (a) has been duly authorized under Delaware law by all
requisite corporate action by PixTech, (b) will not violate any law or the
Restated Certificate of Incorporation or Restated By-laws of PixTech or any
other corporation of which PixTech owns at least 50% of the outstanding
voting stock (a "PixTech Subsidiary") or any provision of any material
indenture, mortgage, agreement, contract or other material instrument to
which PixTech or any PixTech Subsidiary is a party or by which any of their
respective properties or assets is bound as of the date hereof or (c)
require any consent by any person under, constitute or result (upon notice
or lapse of time or both) in a breach of any term, condition or provision
of, or constitute a default or give rise to any right of termination or
acceleration under any such indenture, mortgage, agreement, contract or
other material instrument or result in the creation or imposition of any
lien, security interest, mortgage, pledge, charge or other encumbrance, of
any material nature whatsoever, upon any properties or assets of PixTech or
any PixTech Subsidiary. Upon its execution and delivery, and assuming the
valid execution thereof by Motorola, the Agreement will constitute a valid
and binding obligation of PixTech, enforceable against PixTech in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
7.4 Issuance, Sale and Delivery of the Shares. When issued
and paid for, the Shares to be sold hereunder by PixTech, and the shares
issuable upon exercise of the Warrant (the "Warrant Shares"), will be
validly issued and outstanding, fully paid and non-assessable.
7.5 Exempt Transaction. Subject to the accuracy of
Motorola's representations in Section 8.1 of this Agreement, the issuance
of the Shares, the Warrant and the Warrant Shares (upon exercise of the
Warrant) will constitute a transaction exempt from (i) the registration
requirements of Section 5 of the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon Section 4(2) of the Securities Act and
the regulations promulgated pursuant thereto and (ii) the qualification
requirements of the Illinois Securities Law, in reliance upon Section 4
(5/4) (C) thereof.
7.6 Compliance with Rule 144. At the written request of
Motorola, PixTech shall furnish to Motorola, within ten days after receipt
of such request, a written statement confirming PixTech's compliance with
the filing requirements of the Securities and Exchange Commission (the
"SEC") set forth in SEC Rule 144 as amended from time to time.
7.7 Disclosure. Neither this Agreement, nor any other items
prepared or supplied to Motorola by or on behalf of PixTech with respect to
the transactions contemplated hereby contain any untrue statement of a
material fact or omit a material fact necessary to make each statement
contained herein or therein not misleading. There is no fact which PixTech
has not disclosed to Motorola in writing and of which any of its directors
or executive officers is aware (other than general economic conditions) and
which has had or would reasonably be expected to have a material adverse
effect upon the financial condition, operating results, assets, customer or
supplier relations, employee relations or business prospects of PixTech or
PixTech Subsidiaries taken as a whole.
7.8 Additional Information. All reports filed by PixTech
with the SEC pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), when filed, did not
contain any untrue statement of a material fact or omit to state any
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. PixTech has made all filings with the SEC which it is
required to make, and PixTech has not received any request from the SEC to
file any amendment or supplement to any such reports.
7.9 No Material Changes. As of the date hereof, there has
been no material adverse change in the financial condition or results of
operations of PixTech since the filing date of PixTech's last report with
the Securities and Exchange Commission pursuant to the reporting
requirements of the Exchange Act.
SECTION 8. Representations, Warranties and Covenants of Motorola.
8.1 Investment Considerations. Motorola represents and
warrants to, and covenants with, PixTech that:
(a) Motorola is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with
respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares,
including investments in securities issued by companies
comparable to PixTech, and has requested, received, reviewed and
considered all information it deems relevant in making an
informed decision to purchase the Shares;
(b) Motorola is acquiring the number of Shares set forth
in Section 2 above, and the Warrant Shares, in the ordinary
course of its business and for its own account for investment
only and with no present intention of distributing any of such
Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares;
(c) Motorola understands that the Shares it is
purchasing, and the Warrant Shares, are, and will be, "restricted
securities" under the federal securities laws inasmuch as they
are being acquired from PixTech in a transaction not involving a
public offering and that under such laws and applicable
regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances.
In this connection Motorola represents that it is familiar with
SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act;
(d) Motorola will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of)
any of the Shares except in compliance with the Securities Act,
and the rules and regulations promulgated thereunder.
(e) Motorola qualifies as an "accredited investor"
within the meaning of Rule 501(a)(3) of Regulation D promulgated
under the Securities Act and constitutes a purchaser described in
Section 4 (5/4) (C) of the Illinois Securities Law; and
(f) It is understood that the certificates evidencing
the Shares shall bear the following legend unless and until the
resale of the Shares pursuant to an effective Registration
Statement or until the Shares may be sold under Rule 144 without
restrictions:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR, IF REQUESTED BY PIXTECH, AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO PIXTECH AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
8.2 Due Execution, Delivery and Performance of the Agreement.
Motorola further represents and warrants to, and covenants with, PixTech
that (a) Motorola is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full right,
power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement, (b) the execution, delivery and performance of this Agreement
will not violate any law or the charter documents of Motorola or any other
corporation of which Motorola owns at least 50% of the outstanding voting
stock (a "Motorola Subsidiary") or any provision of any material indenture,
mortgage, agreement, contract or other material instrument to which
Motorola or any Motorola Subsidiary is a party or by which Motorola, any
Motorola Subsidiary, or any of their respective properties or assets is
bound as of the date hereof, or result in a breach of or constitute (upon
notice or lapse of time or both) a default under any such indenture,
mortgage, agreement, contract or other material instrument or result in the
creation or imposition of any lien, security interest, mortgage, pledge,
charge or encumbrance, of any material nature whatsoever, upon any assets
of Motorola or any Motorola Subsidiary, and (c) upon the execution and
delivery of this Agreement, and assuming the valid execution thereof by
PixTech, this Agreement shall constitute a valid and binding obligation of
Motorola enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' and contracting parties'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 9. Conditions to the Obligations of the Purchasers.
The obligations of Motorola under this Agreement are subject to
the fulfillment, or the waiver by Motorola, of the conditions set forth in
this Section 9 on or before the Closing Date.
9.1 Accuracy of Representations and Warranties. Each
representation and warranty of PixTech contained in this Agreement shall be
true on and as of the Closing Date with the same effect as though such
representation and warranty had been made on and as of that date.
9.2 Performance. PixTech shall have performed and complied
with all agreements and conditions contained in this Agreement required to
be performed or complied with by PixTech prior to or at the Closing.
9.3 Opinion of Counsel. Motorola shall have received an
opinion from Palmer & Dodge LLP, counsel to PixTech, dated as of the
Closing Date, addressed to Motorola, and substantially in the form attached
hereto as Exhibit B.
9.4 Closing of the Offering. The Offering shall have
closed and resulted in net proceeds to PixTech of not less than
$15,000,000.
9.5 Amendment of Cooperation and License Agreement. The
Amendment No. 1 to the Cooperation and License Agreement between PixTech
S.A. and Motorola dated June 12, 1995 (the "Cooperation Agreement") shall
have been executed in a form mutually acceptable to Motorola, PixTech and
PixTech S.A.
9.6 Certificates and Documents. PixTech shall have delivered
to counsel to Motorola:
(a) a certificate of the Secretary or Assistant
Secretary of PixTech dated as of the Closing Date, certifying as
to (i) the incumbency of officers of PixTech executing this
Agreement and all other documents executed and delivered in
connection herewith, (ii) a copy of the By-Laws of PixTech, as in
effect on and as of the Closing Date, and (iii) a copy of the
resolutions of the Board of Directors of PixTech authorizing and
approving PixTech's execution, delivery and performance of this
Agreement, all matters in connection with this Agreement, and the
transactions contemplated thereby.
(b) a certificate, executed by the President of PixTech
as of the Closing Date, certifying to the fulfillment of all of
the conditions to Motorola's obligations under this Agreement, as
set forth in this Section 9.
9.7 Other Matters. All corporate and other proceedings in
connection with the transactions contemplated at the Closing by this
Agreement, and all documents and instruments incident to such transactions,
shall be reasonably satisfactory in substance and form to Motorola and its
counsel, and Motorola and its counsel shall have received all such
counterpart originals or certified or other copies of such documents as
they may reasonably request.
SECTION 10. Conditions to the Obligations of PixTech.
The obligations of PixTech under this Agreement are subject to
the fulfillment, or the waiver by PixTech, of the conditions set forth in
this Section 10 on or before the Closing Date.
10.1 Accuracy of Representations and Warranties. Each
representation and warranty of Motorola contained in this Agreement shall
be true on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date.
10.2 Amendment of Cooperation Agreement. The Amendment
No. 1 to the Cooperation Agreement shall have been executed by Motorola and
PixTech S.A.
SECTION 11. Registration Rights.
11.1 Registration of Shares and Warrant Shares. PixTech
covenants and agrees that it will:
(a) promptly following the Closing, prepare and file a
registration statement on one or more Forms S-3 covering the
resale of the Shares and the Warrant Shares by Motorola, and use
its best efforts to cause such registration statement to become
effective in order that Motorola may sell its Shares in
accordance with the proposed plan of distribution;
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement(s) and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective\
and to comply with the provisions of the Securities Act with
respect to the resale of the Shares and Warrant Shares covered by
such registration statement(s) until such time as Motorola no
longer holds any of the Shares or the Warrants Shares;
(c) furnish Motorola such number of copies of such
prospectus as it may reasonably request in order to facilitate
the resale of the Shares or the Warrant Shares;
(d) file documents required of PixTech for blue sky
clearance in states specified in writing by Motorola; provided,
however, that PixTech shall not be required to qualify to do
business or consent to service of process in any jurisdiction in
which it is now not so qualified or has not so consented; and
(e) bear all expenses in connection with the procedures
set forth in paragraphs (a) through (d) of this Section 11 and
the registration of the Shares pursuant to the registration
statement, other than fees and expenses, if any, of counsel or
other advisors to Motorola.
11.2 Indemnification. For the purpose of this Section 11.2,
(a) the term "Selling Stockholder" shall mean Motorola
and any officer, director, employee, agent, affiliate or person
deemed to be in control of Motorola within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act;
(b) the term "Registration Statement" shall mean any
final prospectus, exhibit, supplement or amendment included in or
relating to the registration statement referred to in Section
11.1; and
(c) the term "untrue statement" shall mean any untrue
statement or alleged untrue statement of, or any omission or
alleged omission to state, in the Registration Statement a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
PixTech agrees to indemnify and hold harmless each Selling Stockholder
from and against any losses, claims, damages or liabilities to which such
Selling Stockholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon,
any untrue statement of a material fact contained in the Registration
Statement on the effective date thereof, or arise out of any failure by
PixTech to fulfill any undertaking included in the Registration Statement
and PixTech will reimburse such Selling Stockholder for any reasonable
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim; provided,
however, that PixTech shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon,
an untrue statement made in such Registration Statement in reliance upon
and in conformity with written information furnished to PixTech by or on
behalf of such Selling Stockholder specifically for use in preparation of
the Registration Statement, or any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to
Motorola prior to the pertinent sale or sales by Motorola.
Motorola agrees to indemnify and hold harmless PixTech (and each
person, if any, who controls PixTech within the meaning of Section 15 of
the Securities Act, each officer of PixTech who signs the Registration
Statement and each director of PixTech) from and against any losses,
claims, damages or liabilities to which PixTech (or any such officer,
director or controlling person) may become subject (under the Securities
Act or otherwise), insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement of a material fact contained in the Registration
Statement on the effective date thereof if such untrue statement was made
in reliance upon and in conformity with written information furnished by or
on behalf of Motorola specifically for use in preparation of the
Registration Statement, and Motorola will reimburse PixTech (or such
officer, director or controlling person, as the case may be), for any legal
or other expenses reasonably incurred in investigating, defending, or
preparing to defend any such action, proceeding or claim; provided,
however, that Motorola shall not be liable for any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was
delivered to Motorola prior to the pertinent sale or sales by Motorola.
Promptly after receipt by any indemnified person of a notice of a
claim or the commencement of any action in respect of which indemnity is to
be sought against an indemnifying person pursuant to this Section 11.2,
such indemnified person shall notify the indemnifying person in writing of
such claim or of the commencement of such action, and, subject to the
provisions hereinafter stated, in case any such action shall be brought
against an indemnified person and such indemnifying person shall have been
notified thereof, such indemnifying person shall be entitled to participate
therein, and, to the extent it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified persons of its
election to assume the defense thereof, such indemnifying person shall not
be liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense thereof;
provided, however, that if there exists or shall exist a conflict of
interest that would make it inappropriate, in the opinion of counsel to the
indemnified person, for the same counsel to represent both the indemnified
person and such indemnifying person or any officer, director, employee,
agent, affiliate or person deemed to be in control of such indemnifying
person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person. It is
understood, however, that PixTech shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits, or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to
any local counsel) at any time for all such indemnified parties not having
actual or potential differing interests with PixTech or among themselves.
11.3 "Stand-Off" Agreement. If Motorola holds any Shares at
such time as PixTech proposes to offer shares of its Common Stock or other
securities for sale in a registered public offering, then Motorola agrees
not to sell or otherwise transfer or dispose of any such Shares or other
securities of PixTech held by it during the period commencing 10 days prior
to, and expiring 180 days after, such registered public offering has become
effective, provided, that all executive officers and directors of PixTech
enter into similar agreements. PixTech may impose stop transfer
instructions with respect to the Shares or other securities subject to the
foregoing restriction until the end of any stand-off period.
11.4 Termination. Motorola's registration rights hereunder
shall terminate as to any Shares or Warrant Shares when such Shares or
Warrant Shares are no longer held by Motorola.
SECTION 12. Board Attendance and Representation.
12.1 Observation Rights. Until the earlier of (i) the
expiration of the Warrant, (ii) the sale by Motorola of any of the Shares
or (iii) the election of a representative of Motorola to the Board of
Directors of PixTech pursuant to Section 12.2 hereof, PixTech shall permit
one representative of Motorola to attend, at Motorola's expense, all
meetings of the Board of Directors of PixTech, and of any other committee
or group exercising responsibilities comparable to those exercised by the
Board of Directors, as non-participating observers of such meetings. The
Company shall give each Purchaser such notice and materials of any such
meeting as shall be given to members of the Board of Directors or
committees thereof.
12.2 Election of Board Representative. In the event that
Motorola exercises the Warrant in full, and has not at such time sold any
of the Shares, PixTech will use its best efforts to (i) at the next
regularly scheduled meeting of the Board of Directors following such
exercise, cause the Directors to enlarge the number of members of the Board
and to elect a representative designated by Motorola in writing to fill the
vacancy so created (to the extent permitted by PixTech's Restated By-laws
and Restated Certificate of Incorporation and applicable law) and (ii)
thereafter support the reelection of such representative until Motorola
sells any of its shares of PixTech Common Stock; provided that the cashless
exercise of the Warrant pursuant to the Conversion Right (as defined in
Section 2.3 of the Warrant) shall not constitute a sale of any shares of
PixTech Common Stock for purposes of this Section 12.2. If such
representative of Motorola resigns or is removed from the Board of
Directors at any time that PixTech remains obligated pursuant to this
Section 12.2, then PixTech shall use its best efforts to cause a successor
designated by Motorola in writing to be elected to fill the vacancy created
by such resignation or removal.
SECTION 13. Survival of Representations, Warranties and Agreements;
Assignibility of Rights. Notwithstanding any investigation made by any
party to this Agreement, all covenants, agreements, representations and
warranties made by PixTech and Motorola herein, except as otherwise
provided herein, shall survive the execution of this Agreement, the
delivery to Motorola of the Shares and the Warrant being purchased and the
payment therefor. Except as otherwise provided herein, (i) the covenants,
agreements, representations and warranties of the Company made herein shall
bind the Company's successors and assigns and shall insure to the benefit
of Motorola's successors and assigns and to transferees of the Warrant and
(ii) the covenants, agreements, representations and warranties of Motorola
made herein shall bind Motorola's successors and assigns and shall insure
to the benefit of PixTech's successors and assigns.
SECTION 14. Miscellaneous.
14.1 Notices. Any consent, notice or report required or
permitted to be given or made under this Agreement by one of the parties
hereto to the other shall be in writing, delivered personally or by
facsimile (and promptly confirmed by telephone, personal delivery or
courier) or courier, postage prepaid (where applicable), addressed to such
other party at its address indicated below, or to such other address as the
addressee shall have last furnished in writing to the addressor and shall
be effective upon receipt by the addressee.
If to PixTech: PixTech, Inc.
Avenue Olivier Perroy
Zone Industrielle de Rousset
13790 Rousset France
Telephone: 011 334 4229 1000
Telecopy: 011 334 4229 0509
with a copy to: Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Attention: Michael Lytton
Telephone: (617) 573-0100
Telecopy: (617) 227-4420
If to Motorola: Motorola, Inc.
1303 E. Algonquin Road
Schaumburg, IL 60196
Attn: Vice President and Director,
Corporate Business Development
Telephone: (847) 576-6600
Telecopy: (847) 576-8890
with a copy to: Motorola, Inc.
1303 E. Algonquin Road
Schaumburg, IL 60196
Attn: Law Department
Telephone: (847) 576-5012
Telecopy: (847) 576-3628
14.2 Entire Agreement. This Agreement, the Cooperation
Agreement and the Amendment No. 1 to the Cooperation Agreement contain the
entire understanding of the parties with respect to the subject matter
hereof. All express or implied agreements and understandings, either oral
or written, heretofore made are expressly merged in and made a part of this
Agreement.
14.3 Assignment. Neither this Agreement nor any of the
rights and obligations contained herein may be assigned or otherwise
transferred by either party without the consent of the other party;
provided, however, that either PixTech or Motorola may, without such
consent, assign its rights and obligations under this Agreement (i) to any
Affiliate, all or substantially all of the equity interest of which is
owned and controlled by such party or its direct or indirect parent
corporation, or (ii) in connection with a merger, consolidation or sale of
substantially all of such party's assets to an unrelated third party;
provided, however, that such party's rights and obligations under this
Agreement shall be assumed by its successor in interest in any such
transaction and shall not be transferred separate from all or substantially
all of its other business assets, including those business assets that are
the subject of the License Agreement. Any purported assignment in
violation of the preceding sentence shall be void. Any permitted assignee
shall assume all obligations of its assignor under this Agreement.
14.4 Amendments and Waivers. This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by
PixTech and Motorola. The waiver by either party hereto of any right
hereunder or the failure to perform or of a breach by the other party shall
not be deemed a waiver of any other right hereunder or of any other breach
or failure by said other party whether of a similar nature or otherwise.
14.5 Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
14.6 Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
14.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without
giving effect to the choice of law provisions thereof) and the federal law
of the United States of America.
14.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties.
14.9 Expenses. Except as otherwise specifically provided
herein, each party shall bear its own expenses in connection with this
Agreement.
14.10 Publicity. Neither party hereto shall issue any press
releases or otherwise make any public statement with respect to the
transactions contemplated by this Agreement without the prior written
consent of the other party, except as may be required by applicable law or
regulation.
14.11 Confidentiality. Motorola acknowledges and agrees that
any information or data it has acquired from PixTech, not otherwise
properly in the public domain, was received in confidence. Motorola agrees
not to divulge, communicate or disclose, except as may be required by law
or for the performance of this Agreement, or use to the detriment of
PixTech or for the benefit of any other person or persons, or misuse in any
way, any confidential information of PixTech.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
PIXTECH, INC.
By: /s/ Jean Luc Grand-Clement
Jean Luc Grand-Clement
President and Chief Executive Officer
MOTOROLA, INC.
By: /s/ John R. Owings
Title: Corporate Vice President
and Director Finance, AECG
PixTech S.A. has executed this Agreement below solely for the purposes of
Section 6.
PIXTECH S.A.
By: /s/ Jean Luc Grand-Clement
Jean Luc Grand-Clement
President and Chief Executive Officer
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (ii)
UPON FIRST FURNISHING TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY
TO IT THAT SUCH TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION
REQUIREMENTS OF THE ACT OR ANY STATE SECURITIES LAW.
Warrant No. 2 463,708 Shares (subject to adjustment)
COMMON STOCK WARRANT
THIS WARRANT dated as of the 14th day of February, 1997 is made by and
between PixTech, Inc., a Delaware corporation (the "Company") and Motorola,
Inc., a Delaware corporation (the "Warrantholder") pursuant to a Common
Stock and Warrant Purchase Agreement (the "Purchase Agreement") dated as of
February 6, 1997 between the Company and the Warrantholder.
ARTICLE 1. GRANT OF WARRANT AND EXERCISE PRICE
1. Grant of Warrant and Exercise Price. This Warrant entitles
the Warrantholder to subscribe for and purchase from the Company up to Four
Hundred Sixty-Three Thousand Seven Hundred Eight (463,708) shares of Common
Stock, $0.01 par value, of the Company (the "Warrant Shares") at a purchase
price per share of $5.50, subject to adjustment (the "Exercise Price").
The right of the Warrantholder to subscribe for and purchase the Warrant
Shares shall become exercisable as provided in Article 2.
ARTICLE 2. EXERCISE OF WARRANT
1. Exercise Period, Expiration Date. This Warrant may be
exercised or converted in whole or in part during the period commencing on
or after February 7, 1997 and ending on December 31, 1998 (the "Expiration
Date").
2. Procedure for Exercising the Warrant. The Warrantholder may
exercise this Warrant by executing the Subscription Agreement attached
hereto as Exhibit A and delivering it to the Company and tendering the
requisite aggregate Exercise Price for the number of Warrant Shares to be
purchased on any business day during normal business hours.
3. Net Exercise of Warrant. In lieu of exercising this Warrant
for cash as provided in the preceding Section, the Warrantholder may
convert this Warrant (the "Conversion Right"), in whole or in part, into
the number of Warrant Shares calculated pursuant to the following formula
by surrendering this Warrant (with the Subscription Agreement in the form
attached hereto duly executed) at the principal office of the Company
specifying the number of Warrant Shares the rights to purchase which the
Warrantholder desires to convert:
X = Y (A - B)
__________
A
where: X = the number of shares of Common Stock, $0.01 par value,
of the Company (the "Common Stock") to be issued to
the Warrantholder;
Y = the number of shares of Common Stock subject to this
Warrant for which the Conversion Right is being
exercised;
A = the fair market value of one share of Common Stock;
B = the Exercise Price
As used herein, the fair market value of a share of Common Stock shall
mean, with respect to each share of Common Stock, the closing price per
share of the Company's Common Stock on the Nasdaq National Market System
averaged over the 15 trading days ending on the second trading day prior to
the date of such conversion. If at any time such quotations are not
available, the current fair market value of a share of Common Stock shall
be the highest price per share which the Company could obtain from a
willing buyer (not a Warrant Holder, any assignee thereof, current employee
or director) for shares of Common Stock sold by the Company, as determined
in good faith by the Board of Directors of the Company, unless (i) the
Company shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the surviving party, in
which case the current fair market value of a share of Common Stock shall
be deemed to be the value received by the holders of the Company's Common
Stock for each share of Common Stock pursuant to such transaction; or (ii)
the Warrantholder shall exercise its Conversion Right to purchase such
shares in conjunction with an underwritten public offering of the Company's
Common Stock pursuant to a registration statement filed under the
Securities Act, in which case, the fair market value of a share of Common
Stock shall be the price per share at which all registered shares are sold
to the public in such offering.
4. Delivery of Shares and Remaining Warrant. In the event of any
exercise or conversion of this Warrant, certificates for the shares of
stock so exercised or converted shall be delivered to the holder hereof
within twenty (20) business days thereafter and, unless this Warrant has
been fully exercised, converted or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant shall not
then have been exercised or converted, shall also be issued to the holder
hereof within such twenty (20) business day period. If the Warrant Shares
are to be registered in the name of any entity or person other than the
Warrantholder, the Company may require evidence of compliance by the
Warrantholder with all applicable securities laws.
ARTICLE 3. AVAILABILITY OF WARRANT SHARES
1. Reservation of Common Stock. The Company covenants and agrees
that it will cause to be kept available out of its authorized and unissued
Common Stock a number of shares of Common Stock that will be sufficient to
permit the exercise in full of this Warrant.
2. Authorization of Common Stock. The Company covenants and
agrees that it will take all such action as may be necessary to ensure that
all shares of Common Stock delivered upon exercise or conversion of this
Warrant shall, at the time of delivery of the certificates for such Warrant
Shares, be duly and validly authorized and issued and fully paid and non-
assessable shares.
3. Stockholder Rights. Each person or entity in whose name any
certificate for Warrant Shares is issued upon the exercise of this Warrant
shall for all purposes be deemed to have become the holder of record of the
Warrant Shares represented thereby on, and such certificate shall be dated,
the date upon which the Subscription Agreement was duly executed and
payment of the aggregate Exercise Price was made. Prior to the exercise of
this Warrant, the Warrantholder shall not be entitled to any rights of a
stockholder of the Company with respect to the Warrant Shares for which
this Warrant shall be exercisable, including, without limitation, the right
to vote, to receive dividends or other distributions and shall not be
entitled to receive any notice of any proceedings of the Company, except as
provided herein.
4. Adjustments. In case the Company shall, at any time or from
time to time, (i) pay a dividend in Common Stock, or make a distribution in
Common Stock, (ii) subdivide its outstanding Common Stock into a greater
number of shares, (iii) combine its outstanding Common Stock into a smaller
number of shares (including a recapitalization in connection with a
consolidation or merger in which the Company is the continuing
corporation), (a) the Exercise Price in effect on the record date for such
dividend or on the effective date of such subdivision or combination shall
be adjusted by multiplying such Exercise Price by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which is the number of shares of
Common Stock outstanding immediately after such event and (b) the number of
Warrant Shares for which this Warrant may be exercised immediately before
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the Exercise Price immediately before such event and
the denominator of which is the Exercise Price immediately after such
event.
5. Reorganizations. In case of any capital reorganization or
reclassification of the Common Stock, or any consolidation or merger of the
Company with or into another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and which
does not result in any reclassification of the outstanding shares of Common
Stock or the conversion of such outstanding shares of Common Stock into
shares of other stock or other securities or property), or the sale of all
or substantially all of the assets of the Company as an entirety or
substantially as an entirety (collectively such actions being hereinafter
referred to as "Reorganizations"), there shall thereafter be deliverable
upon exercise of this Warrant (in lieu of the number of Warrant Shares
theretofore deliverable) the number of shares of stock or other securities
or property to which a holder of the number of shares of Common Stock which
would otherwise have been deliverable upon the exercise of this Warrant
would have been entitled upon such Reorganization if this Warrant had been
exercised immediately prior to such Reorganization.
6. Notice of Adjustments. Whenever the Exercise Price or number
of shares deliverable upon exercise of this Warrant shall be adjusted
pursuant to this Article 3, the Company shall promptly prepare a
certificate signed by the principal financial officer of the Company
setting forth, in reasonable detail, the event regarding the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and shall promptly cause copies of such certificate to be
provided to the holder of this Warrant as provided in Section 6.1.
ARTICLE 4. WARRANTHOLDER REPRESENTATIONS AND WARRANTIES
The Warrantholder (including any assignee of a Warrantholder pursuant
to Section 6.2) represents and warrants to and covenants with, the Company,
as follows:
1. Representations. It understands the risks of investing in
developing companies such as the Company and can afford a loss of its
entire investment. It is acquiring the Warrant for investment for its own
account and not with the view to, or for resale in connection with, any
distribution thereof. It understands that the Warrant and the Warrant
Shares have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any state blue sky laws, by reason of
specified exemptions from the registration provisions of the Securities Act
and such laws. It acknowledges that the Warrant and the Warrant Shares
thereof must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. It has been advised or is aware of the provisions of Rules 144
and 144A promulgated under the Securities Act, which permit the resale of
shares purchased in a private placement subject to the satisfaction of
certain conditions and that such Rules may not be available for resale of
the shares. It has had an opportunity to discuss the Company's business,
management and financial affairs with its management. It has its principal
place of business in the State of Illinois.
2. Restrictions on Transferability. Neither the Warrant, nor the
Warrant Shares, shall be transferable, except upon the conditions specified
in and in accordance with the terms of this Article 4 and Section 6.2
hereof.
3. Restrictive Legend. Unless and until the resale of the Warrant
Shares pursuant to an effective Registration Statement under Section 11 of
the Purchase Agreement, or until the Warrant Shares may be sold under Rule
144 without restrictions, each certificate representing Warrant Shares, or
any other securities issued in respect of the Warrant Shares, upon any
stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall be stamped or otherwise imprinted with a legend in
substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED
EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR (ii) UPON FIRST FURNISHING TO THE COMPANY AN OPINION
OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT IN
VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY
STATE SECURITIES LAW.
4. Restrictions On and Notice of Proposed Transfers. The
Purchaser agrees that prior to any proposed transfer of any of the Warrant
Shares other than pursuant to the Registration Statement, as defined in
Section 11.2(b) of the Purchase Agreement, the Purchaser shall give written
notice to the Company of its intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall, if requested by the Company, be
accompanied by either (a) a written opinion of legal counsel who shall be
reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to
the effect that the proposed transfer of the Warrant Shares may be effected
without registration under the Securities Act or under any applicable state
or other securities laws or (b) a "no-action" letter from the staff of the
Securities and Exchange Commission to the effect that the distribution of
such securities without registration will not result in a recommendation by
the Staff of the Securities and Exchange Commission that action be taken
with respect thereto, whereupon the Purchaser shall be entitled to transfer
such Warrant Shares in accordance with the terms of the notice delivered to
the Company. Each certificate evidencing the Warrant Shares transferred as
provided above shall bear the appropriate restrictive legend set forth in
Section 4.3 above, except that such certificate shall not bear such
restrictive legend if the opinion of counsel or "no-action" letter referred
to above is to the further effect that such legend is not required in order
to comply with any provisions of the Securities Act.
ARTICLE 5. REGISTRATION RIGHTS
The Warrant Shares issuable hereunder are entitled to the benefits of
certain registration rights set forth in Section 11 of the Purchase
Agreement.
ARTICLE 6. MISCELLANEOUS
1. Notices. Notices or demands relating to this Warrant shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows, or telexed, telecopied, or delivered by overnight or
other courier:
If to the Company: PixTech, Inc.
Avenue Olivier Perroy
Zone Industrielle de Rousset
13790 Rousset France
Telephone: 011 334 4229 1000
Telecopy: 011 334 4229 0509
If to the Warrantholder: Motorola, Inc.
1303 E. Algonquin Road
Schaumburg, IL 60196
Attn: Vice President and Director,
Corporate Business Development
Telephone: (847) 576-6600
Telecopy: (847) 576-8890
or such other address as may be provided by one party to the other in
writing.
2. Successors and Assigns. (a) All the covenants and provisions
of this Warrant by or for the benefit of the Company or the Warrantholder
shall bind and inure to the benefit of their respective successors and
assigns hereunder and this Warrant may be freely assigned; provided that
(i) this Warrant, together with all other Warrants issued pursuant to the
Asset Purchase Agreement may not be held by greater than fifty (50)
entities or individuals in the aggregate, and (ii) the assignor shall
execute a Form of Assignment as attached hereto as Exhibit B. Any
assignment of this Warrant other than in compliance with this Section 6.2
shall be null and void.
(b) If requested by the Company, any such Form of Assignment
shall be accompanied by either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company, addressed to the Company
and reasonably satisfactory in form and substance to the Company's counsel,
to the effect that the proposed transfer of this Warrant may be effected
without registration under the Securities Act or under any applicable state
or other securities laws or (ii) a "no-action" letter from the staff of the
Securities and Exchange Commission to the effect that the distribution of
such securities without registration will not result in a recommendation by
the Staff of the Securities and Exchange Commission that action be taken
with respect thereto, whereupon the Warrantholder shall be entitled to
transfer such Warrant in accordance with the terms of the notice delivered
to the Company.
3. Governing Law. This Agreement and the Warrants, and all
questions relating to the interpretation, construction and enforceability
of this Agreement, shall be governed in all respects by the substantive
laws of the State of Delaware, without regard to the conflicts of law rules
of the State of Delaware.
4. Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or
supplemented, other than by a written instrument executed by the Company
and the Warrantholder.
5. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein
shall not be in any way impaired thereby, it being intended that all of the
rights and privileges of the Warrantholder shall be enforceable to the
fullest extent permitted by law.
6. Notice of Capital Changes. In case:
(i) the Company shall declare any dividend or distribution
(whether payable in cash, securities, assets or otherwise) payable to the
holder of its Common Stock;
(ii) there shall be any Reorganization of the Company; or
(iii) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give the holder
of this Warrant written notice, in the manner set forth in Section 5.1, of
the date on which a record shall be taken for such dividend or distribution
or for determining stockholders entitled to vote upon such Reorganization,
dissolution, liquidation or winding up and of the date when any such
transaction shall take place, as the case may be. Such written notice
shall be given at least thirty (30) days prior to the closing of the
transaction in question and not less than twenty (20) days prior to the
record day in respect thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
duly executed and delivered, all as of the date and year first above
written.
PIXTECH, INC.
By: /s/ Jean Luc Grand-Clement
Name: Jean Luc Grand-Clement
Title: President and
Chief Executive Officer
WARRANTHOLDER
By: /s/ John R. Owings
Name: John R. Owings
Title: Corporate Vice President
and Director Finance, AECG
EXHIBIT A SUBSCRIPTION AGREEMENT
(To be executed if holder desires to
exercise the Warrant)
To PIXTECH, INC.
1. Check Box that Applies:
The undersigned hereby elects to purchase ______ shares of
Common Stock of pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full.
The undersigned hereby elects to convert the attached warrant
into _________ shares of Common Stock of PixTech, Inc. pursuant to the
terms of the attached Warrant.
2. Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
(Name)
(Address)
Dated: , 19 .
WARRANTHOLDER
By:
Name:
Title:
EXHIBIT B FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _______________________ the right represented by the within
Warrant to purchase ______ shares of Common Stock of PixTech, Inc. to which
the within Warrant relates, and appoints _________________ as its Attorney
to transfer such right on the books of PixTech, Inc. with full power of
substitution in the premises.
Dated:
______________________________
(Signature must conform to name of
holder as specified on the face of
this Warrant)
Signed in the presence of:
___________________________
