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As filed with the Securities and Exchange Commission on May 15, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PIXTECH, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-3214691
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
AVENUE OLIVIER PERROY, ZONE INDUSTRIELLE DE ROUSSET,
13790 ROUSSET, FRANCE, 011-334-42-29-10-00
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
YVES MOREL, CHIEF FINANCIAL OFFICER
PixTech, Inc.
Avenue Olivier Perroy
Zone Industrielle de Rousset
13790 Rousset, France
011-334-42-29-10-00
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
with copies to:
MICHAEL LYTTON, ESQ.
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
Approximate date of commencement of proposed sale to the public: From time to
time after the Registration Statement is declared effective.
If the only securities being registered on this form are being 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 the dividend or
interest reinvestment plans, check the following box. [X]
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 statement number of the earlier effective registration statement
for the same offering. [ ]
---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed maximum Proposed maximum Amount of
Title of each class of securities to Amount to be registered offering price per aggregate offering registration
be registered share(1) price(1) fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 3,052,527 shares $6.50 $19,841,425.50 $5,853.22
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(1) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h) based upon the average of the high and low
sale prices on May 12, 1998 as reported by the Nasdaq National Market.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH 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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PROSPECTUS
PIXTECH, INC.
3,052,527 Shares of Common Stock
______________________
This Prospectus relates to the offer and sale (the "Offering") of 3,052,527
shares (the "Shares") of Common Stock, $.01 par value per share (the "Common
Stock"), of PixTech, Inc. ("PixTech" or the "Company"). The Shares may be
offered by certain stockholders of the Company identified herein and their
pledgees, donees, transferees or other successors in interest (the "Selling
Stockholders") from time to time in transactions on the Nasdaq National Market,
in privately negotiated transactions, or by a combination of such methods of
sale, at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Stockholders may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholders or the purchasers of the Shares for whom such broker-
dealer may act as agent or to whom they sell as principal or both (which
compensation to a particular broker-dealer might be in excess of customary
commissions). See "Selling Stockholders" and "Plan of Distribution."
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company will bear certain
expenses (other than fees and expenses of counsel or advisors to the Selling
Stockholders) in connection with the registration and sale of the Shares being
offered by the Selling Stockholders.
The Common Stock is quoted on the Nasdaq National Market under the symbol
"PIXT." On May 12, 1998, the last sale price of the Company's Common Stock was
$6.5625 per share.
______________________
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF
RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5 OF THIS PROSPECTUS.
______________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN AS CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS IS NOT
AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, BY ANY PERSON IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH AN OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALES MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
The date of this Prospectus is May 15, 1998.
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Page
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Available Information.............................. 3
Incorporation of Certain Infomration by Reference.. 3
The Company........................................ 5
Risk Factors....................................... 5
Selling Stockholders............................... 10
Plan of Distribution............................... 11
Legality of Common Stock........................... 11
Experts............................................ 11
</TABLE>
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement under the Securities Act of 1933, as
amended, with respect to the shares of Common Stock offered hereby. This
Prospectus does not contain all of the information set forth in such
Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Company and the Common Stock offered hereby,
reference is made to such Registration Statement and the exhibits and schedules
thereto. Statements made in this Prospectus as to the contents of any contract,
agreement or other document filed as an exhibit to the Registration Statement
are not necessarily complete, and in each such instance reference is made to
such document filed as an exhibit to the Registration Statement, each such
statement being deemed qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Commission. A copy of the Registration Statement of which this Prospectus is a
part and reports, proxy statements and other information filed by the Company
may be inspected and copied at the public reference facilities of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the following
regional offices of the Commission: Suite 1300, 7 World Trade Center, New York,
New York 10007 and Suite 1400, 500 West Madison Street, Chicago, Illinois 60661.
Copies may be obtained at prescribed rates from the Commission's Public
Reference Section at 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, certain material filed by the Company should also be available for
inspection at the offices of the NASD Reports' Section, 1735 K Street, N.W.,
Washington, D.C. 20006. Such information can also be reviewed through the
Commission's Electronic Data Gathering Analysis and Retrieval System which is
publicly available through the Commission's Web site (http://www.sec.gov).
______________________
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission under the Exchange Act
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (File No. 0-26380) filed with the Commission on February 18,
1998.
(b) The Company's Current Report on Form 8-K, dated February 21, 1997,
filed with the Commission on February 21, 1997.
(c) All other reports of the Company filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal quarter covered by the quarterly report referred to
in (e) above.
(d) The description of the Company's Common Stock contained in Registration
Statement on Form 8-A (File No. 0-26380) filed with the Commission on July 7,
1995, including any amendment or report filed hereafter for the purpose of
updating such description.
All documents filed after the date of this Registration Statement by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act and
prior to the filing of a post-effective amendment that indicates that all
shares of Common Stock offered hereunder have been sold or which deregisters all
shares of Common Stock remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents. Any statement contained in any document incorporated or
deemed to be incorporated
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by reference herein shall be deemed to be modified or superseded, for purposes
of this Prospectus, to the extent that a statement contained herein (or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein) modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person, including
beneficial owners, to whom this Prospectus is delivered, on written or oral
request, copies of the documents incorporated in this Prospectus by reference,
other than exhibits to such documents. Requests should be directed to Yves
Morel, Chief Financial Officer, PixTech, Inc., Avenue Olivier Perroy, 13790
Rousset, France. Telephone: 011 33 4-42-29-1000.
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THE COMPANY
PixTech, Inc. was incorporated in Delaware in November 1993 as the parent
company of PixTech S.A., a French corporation formed in June 1992. The
Company's principal executive offices are located at Avenue Olivier Perroy,
13790, Rousset, France. The Company's main telephone numbers are 011-33-(0)442-
29-10-00 and (408) 986-8868.
RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a high
degree of risk. The following factors, in addition to the other information in
this Prospectus, should be carefully considered in evaluating the Company and
its business before purchasing the shares of Common Stock offered hereby.
DEVELOPMENT STAGE OF THE COMPANY; HISTORY OF OPERATING LOSSES. The Company
is a development stage company and has been engaged principally in research and
development activities since its incorporation in 1992. The Company has
incurred operating losses in every quarter since inception. The Company does
not anticipate receiving any significant revenues from the sale of its products
or from license royalties until the commencement of volume production by the
Company or one or more of the Company's licensees. The development and
commercialization of its products will require substantial expenditures by the
Company for the foreseeable future. The Company expects to continue to incur
operating losses, and there can be no assurance that the Company will be
profitable in the future. The magnitude and duration of the Company's losses
will depend on a number of factors within and outside of the Company's control,
including the Company's ability to expand an alliance it has formed with leading
companies that have proprietary display related technology (the "FED Alliance")
and the rate at which it can successfully manufacture and commercialize its
FEDs, if at all, and the related costs of such efforts. Successful
commercialization of such displays will in turn depend on a number of factors.
DEPENDENCE ON PRODUCTS AND MANUFACTURING PROCESSES UNDER DEVELOPMENT. The
Company's future success depends on the successful development and production of
Field Emission Display ("FED") products by the Company and its licensees. The
Company's products and its manufacturing processes are in the early stages of
development and testing, and the Company has only limited quantities of
products, manufactured at its pilot manufacturing facility, that are available
for sale incorporating the Company's technology. The Company's products and
manufacturing processes will require significant additional development prior to
volume product commercialization, and no assurance can be given that the results
of such development efforts will be successful. Even if the Company is
successful in completing the development of its products and manufacturing
processes, no assurance can be given that the favorable characteristics
demonstrated by its current prototypes will be reproduced on a cost-effective
basis in commercial production. The Company has to date encountered a number of
delays in the development of its products and processes. No assurance can be
given that further delays will not occur. Any significant delays could prevent
the Company from capitalizing on market opportunities, and could have a material
adverse effect on the Company.
RISKS ASSOCIATED WITH CONTRACT MANUFACTURING OF FEDS. The Company believes
that its ability to commercialize medium to large volumes of FEDs is highly
dependent on its ability to have FEDs manufactured by a major manufacturer in
the Active Matrix Liquid Crystal Display ("AMLCD") industry. On May 22, 1997,
the Company signed a display foundry agreement (the"Foundry Agreement") with
Unipac Optoelectronics Corp., an AMLCD manufacturer based in Taiwan. Under the
agreement, Unipac will install volume production equipment to produce FEDs at
its manufacturing line, and will begin production for exclusive delivery of FED
displays to PixTech. Expectations about the timing of this manufacturing plan
with Unipac are forward-looking statements that involve risks and uncertainties,
including the ease or difficulty of the transfer of the FED technology to
Unipac. If such contract manufacturing agreement is not implemented on a timely
basis, the Company will not be able to ship medium to large volumes of FED
products, or to obtain a commercially acceptable cost for its FED displays.
Significant capital expenditure will be required in order to install, at the
contract manufacturers' facility, equipment that is not common to the AMLCD
manufacturing process. A minimum of $15 million of capital expenditures will be
required. Pursuant to the Foundry Agreement, Unipac will purchase and fund
equipment within a $15 million limit, with PixTech providing a bank guaranty in
favor of Unipac on the value of a majority of the required equipment. The
equipment value covered by such bank guaranty will decrease over time. To date,
there can be no assurance that the Company will be able to provide such a
guaranty. Should the Company fail in obtaining this bank guaranty, the entire
implementation of the contract manufacturing could be threatened, unless the
Company is successful in providing alternative financings to fund the capital
expenditures required. In addition, the amount actually expended on capital
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expenditures could vary significantly depending upon numerous factors, including
the inherent unpredictability of the total amount of a large scale capital
expenditure program. Should the Company be successful in implementing this
contract manufacturing relationship, the Company's reliance on a single contract
manufacturer will involve several risks, including a potential inability to
obtain an adequate supply of required products, and reduced control over the
price, timeliness of delivery, reliability and quality of finished products. Any
inability to manage this contract manufacturing relationship or any circumstance
that would cause the Company to delay the shipment of its products would have an
adverse effect on the Company.
LIMITED MANUFACTURING EXPERIENCE AND CAPABILITY. The Company's future
operating results are highly dependent on its ability to manufacture, or to
contract with a third party to manufacture, medium volumes of displays at
commercially viable yields. The Company's manufacturing processes are in the
early stages of development and testing by the Company. There can be no
assurance that the Company will be able to successfully complete the development
of such processes.
Moving from pilot production to medium volume production involves a number
of steps and challenges. The Company has contracted with a third party for the
manufacture of its displays. Increasing production beyond medium volume levels
will involve substantial investment and time for the design and acquisition of
new facilities and custom equipment by the Company or its contract manufacturer.
Should the Company or its contract manufacturer experience delays or
difficulties in establishing or operating its manufacturing facilities for the
manufacture of its displays, the Company would be materially adversely affected.
The Company's manufacturing process involves many complex steps, each of
which is essential to the production of commercial volumes of the Company's
products at commercially viable yields. The Company's technology requires
manufacturing to extremely fine tolerances and maintenance of an extremely clean
environment during most steps of the manufacturing process. Minute impurities or
defects in materials used as well as other production problems can significantly
reduce production yield. If the Company is unable to successfully implement and
manage these complex manufacturing processes, the Company would be adversely
affected.
SUBSTANTIAL FUTURE CAPITAL NEEDS; AVAILABILITY OF CAPITAL. The Company will
require substantial funds to conduct research, development and testing, to
develop and expand commercial scale manufacturing systems and to market any
resulting products. Changes in technology or a growth of sales beyond currently
anticipated levels will also require further investment. The Company's capital
requirements will depend on many factors, including the rate at which the
Company can develop its products, the market acceptance of such products, the
levels of promotion and advertising required to launch such products and attain
a competitive position in the marketplace, and the response of competitors to
the Company's products. To the extent that the Company's existing available
funds and internally generated funds are insufficient to fund the Company's
operating requirements, it may be necessary for the Company to seek additional
funding either through licensing agreements, collaborative arrangements or
through public or private financing. There can be no assurance that additional
financing will be available on acceptable terms or at all. If additional funds
are raised by issuing equity securities, dilution to the existing stockholders
may result. If adequate funds are not available, the Company would be materially
adversely affected, and, as a result, the Company may be required to curtail its
operations.
DEPENDENCE ON FED ALLIANCE. A fundamental element of the Company's business
strategy has been the formation of the FED Alliance with leading companies that
have proprietary display related technology, as discussed elsewhere in the
Company's reports under the Securities Exchange Act of 1934, as amended. Future
technology transfer payments to the Company under the FED Alliance agreements
are based on the achievement by specified dates of certain technical,
manufacturing and marketing milestones. There can be no assurance as to whether
or when such milestones will be attained.
The Company will be entitled to royalty revenue under the FED Alliance
agreements only to the extent the members of the FED Alliance successfully
incorporate the cross-licensed technology into products, succeed in
manufacturing products in volume, and successfully commercialize such products.
The Company's future success is substantially dependent on such revenues and on
the technological and marketing benefits the FED Alliance is intended to
provide.
The success of the FED Alliance is dependent upon the general business
condition of each of the members, each member's commitment to the relationship,
and the skills and experience of such member's employees who are
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responsible for the relationship. A decision by any member of the FED Alliance
to limit or terminate its development efforts in the area of FEDs could have a
material adverse effect on the Company, and the Company could lose a material
portion of its revenue base while still bearing significant fixed costs. The
withdrawal of a member of the FED Alliance would also result in the Company's
inability to obtain access to any further improvements in FED technology
developed by the withdrawing member after such withdrawal.
The Company plans to expand the FED Alliance by entering into contracts
with three additional companies. There can be no assurance that the Company will
be successful in entering into such contracts.
COMPETITION AND COMPETING TECHNOLOGIES. The market for FPD products is
intensely competitive and is expected to remain intensely competitive. The
market is currently dominated by products utilizing liquid crystal display
("LCD") technology. LCD technology has continued to improve, and there can be no
assurance that advances in LCD technology will not overcome its current
limitations. Certain LCD manufacturers, such as Sharp, NEC and Hitachi, have
substantially greater name recognition and financial, technological, marketing
and other resources than the Company, and LCD manufacturers have made and
continue to make substantial investments in improving LCD technology and
manufacturing processes and in the construction of manufacturing facilities for
displays. The Company believes that over time this will have the effect of
reducing average selling prices of FPDs. In addition, the recent substantial
increases in world-wide manufacturing capacity of FPDs and the entrance of new
competitors in the FPD market may cause over-supply conditions leading to
dramatic reductions in the price of FPDs. In order to effectively compete, the
Company could be required to increase the performance of its products or to
reduce prices. In the event of price reductions, the Company's ability to
maintain gross margins would depend on its ability to reduce its cost of sales.
There are a number of domestic and international companies developing and
marketing display devices using alternative technologies, such as vacuum
fluorescent displays, electroluminescent panels and plasma panels. In addition,
some of the basic FED technology is in the public domain and, as a result, the
Company has a number of potential direct competitors developing FED displays.
Although the Company has proprietary rights to significant technological
advances in FED technology, there can be no assurance that such potential
competitors have not developed or will not develop comparable or superior FED
technology. Many of these developers of alternative FPD and competing FED
technologies have substantially greater name recognition and financial, research
and development, manufacturing and marketing resources than the Company, and
have made and continue to make substantial investments in improving their
technologies and manufacturing processes. The members of the FED Alliance may
also sell FED products based on the cross-licensed technology of the FED
Alliance in markets that the Company has targeted or will target for sales of
its own FED products.
The Company's technology and products are still in the development stage,
and there can be no assurance that the Company's competitors will not succeed in
developing products that outperform the Company's displays or that are more cost
effective. In the event that efforts by the Company's competitors result in the
development of products that offer significant advantages over the Company's
products, and the Company is unable to improve its technology or develop or
acquire alternative technology that is more competitive, the Company would be
adversely affected.
NO ASSURANCE OF MARKET ACCEPTANCE. The potential size and timing of market
opportunities targeted by PixTech and the members of the FED Alliance are
uncertain. The Company anticipates marketing its displays to OEMs, and its
success will depend on whether OEMs select the Company's products for
incorporation into their products and upon their successful introduction of such
products, as well as the successful commercialization of products developed by
members of the FED Alliance. There can be no assurance that demand for any
particular product will be sustained or that new markets will develop as
expected by the Company, or at all. The failure of existing and new markets to
develop as expected by the Company or to be receptive to PixTech's products
would have a material adverse effect on the Company.
The time frame necessary to achieve market success for any individual
product is long and uncertain. The introduction of new products is subject to
the inherent delays caused by the need to have such products selected by an OEM
and designed into the OEM's products. Factors affecting the length of this delay
include the size of the manufacturer, the type of application, and whether the
displays are being designed into new products or fitted into existing
applications. For certain products, this delay attributable to a manufacturer's
design cycle may be a year or longer. If volume production of such products is
delayed for any reason, the Company's competitors may introduce new technologies
or refine existing technologies which could materially adversely affect the
market acceptance of the
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Company's products. Although the Company has made efforts to design its products
to be compatible with the electronic products with which they will be used and
has targeted smaller markets where the design cycle may be shorter, unforeseen
difficulty in incorporating the Company's products and technology would
adversely impact market acceptance of the Company's products. The Company also
expects that the OEMs to which it will market its products will require
manufacturing quality assurance and controls and evidence of the Company's
ability to manufacture adequate quantities of displays on a timely and reliable
basis.
PATENTS AND PROTECTION OF PROPRIETARY TECHNOLOGY. The Company's ability to
compete effectively with other companies will depend, in part, on the ability of
the Company to maintain the proprietary nature of its technology. Although the
Company has been granted, has filed applications for and has been licensed under
a number of patents in the United States and foreign countries, there can be no
assurance as to the degree of protection offered by these patents, as to the
likelihood that pending patents will be issued or as to the validity or
enforceability of any issued patents. Patent applications in the United States
are maintained in secrecy until patents issue, and since publication of
discoveries in the scientific or patent literature tends to lag behind actual
discoveries by several months, the Company cannot be certain that it was the
first creator of inventions covered by pending patent applications or the first
to file patent applications on such inventions.
Competitors in both the United States and foreign countries, many of which
have substantially greater resources and have made substantial investments in
competing technologies, may have applied for or obtained, or may in the future
apply for and obtain, patents that will prevent, limit or interfere with the
Company's ability to make and sell its products. The Company has not conducted
an independent review of patents issued to third parties. In addition, because
of the developmental stage of the Company, claims that the Company's products
infringe on the proprietary rights of others are more likely to be asserted
after commencement of commercial sales incorporating the Company's technology.
Although the Company believes that its products do not infringe the patents or
other proprietary rights of third parties, there can be no assurance that other
third parties will not assert infringement claims against the Company or that
such claims will not be successful. There can also be no assurance that
competitors will not infringe the Company's patents. Even successful defense and
prosecution of patent suits are both costly and time consuming. An adverse
outcome in the defense of a patent suit could subject the Company to significant
liabilities to third parties, require disputed rights to be licensed from third
parties or require the Company to cease selling its products. Further, with
respect to licensed patents, which, in the case of the Company, represent a
significant portion of the Company's proprietary technology, the defense and
prosecution of patent suits may not be in the Company's control. An adverse
outcome in a suit in which the Company asserts its patent rights could result in
the loss of such rights, and could subject the Company to substantial costs and
diversion of Company resources.
The Company also relies on unpatented proprietary technology which is
significant to the development and manufacture of the Company's displays, and
there can be no assurance that others may not independently develop the same or
similar technology or otherwise obtain access to the Company's unpatented
technology. To protect its trade secrets and other proprietary information, the
Company requires employees, consultants, advisors and collaborators to enter
into confidentiality agreements. There can be no assurance that these agreements
will provide meaningful protection for the Company's trade secrets, know-how or
other proprietary information in the event of any unauthorized use,
misappropriation or disclosure of such trade secrets, know-how or other
proprietary information. If the Company is unable to maintain the proprietary
nature of its technologies, the Company could be adversely affected.
While there is currently no pending intellectual property litigation
against the Company, the Company receives from time to time notices of potential
infringement of third party rights and there can be no assurance that third
parties will not assert claims against the Company with respect to existing or
future products or that licenses will be available on reasonable terms, or at
all, with respect to any third-party technology including third-party
technology. In the event of litigation to determine the validity of any
third-party claims, such litigation could result in significant expense to the
Company and divert the efforts of the Company's technical and management
personnel, whether or not such litigation is determined in favor of the Company.
In the event of an adverse result in any such litigation, the Company could be
required to pay substantial amounts in damages and to cease selling the
infringing product unless and until the Company is able to develop
non-infringing technology or to obtain licenses to the technology which was the
subject of the litigation.
DEPENDENCE ON SUPPLIERS. The Company has and will continue to rely on
outside vendors to manufacture (i) certain electronic components and
subassemblies used in the production of the Company's products, (ii) certain
specialized materials, including phosphors and (iii) key pieces of manufacturing
equipment. Certain components, subassemblies, services, materials and equipment
necessary for the manufacture of the Company's products are obtained from a
limited group of suppliers. The Company's reliance on a limited group of
suppliers involves several risks, including a potential inability to obtain an
adequate supply of required products and services, and reduced control over the
price, timeliness of delivery, reliability and quality of finished products. The
Company generally does not have any long-term supply agreements with electronics
suppliers. Certain of the Company's suppliers have relatively limited financial
and other resources. Any inability to obtain timely deliveries of products and
services having acceptable qualities or any other circumstance that would
require the Company to seek alternative sources of supply or to manufacture its
own electronic components, subassemblies and manufacturing equipment internally,
could delay the Company's ability to ship its products. Any such delay could
damage relationships with customers and such delay could have a material adverse
effect on the Company.
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DEPENDENCE ON KEY PERSONNEL; HIRING SKILLED PERSONNEL. The Company is
dependent on certain members of its management and engineering staff. No
employee, including key scientific and management personnel, is bound to any
specific term of employment. Although the Company currently maintains a key man
life insurance policy on the life of Jean-Luc Grand-Clement, the loss of the
services of one or more key individuals, including Mr. Grand-Clement, could have
a material adverse effect on the Company. The Company's success will also depend
on its ability to attract and retain other highly qualified scientific,
marketing, manufacturing and other key management personnel. The Company faces
competition for such personnel, and there can be no assurance that the Company
will be able to attract or retain such personnel.
In addition, the production of FEDs will require employees skilled in
highly technical and precise production processes with expertise specific to the
processes involved in FED production. There can be no assurance that the Company
will be able to adequately staff the Montpellier facility with qualified
personnel to support volume manufacturing. If the Company is unable to hire and
train adequate numbers of skilled employees, the Company would be adversely
impacted.
MANAGEMENT OF GROWTH. In order to achieve its objectives, the Company will
need to expand its business rapidly and add sales, marketing, manufacturing,
administrative and management personnel, as well as establish and manage its
international operations. The Company has had little or no experience with the
manufacturing, sales or marketing of its products. These demands are expected to
require the addition of new management and the development of additional
expertise by existing management. The Company's ability to manage growth
effectively will also require it to continue to implement and improve its
operational and financial systems and to hire and train new employees. The
failure to manage growth effectively could have a material adverse effect on the
Company. In addition, the Company may consider acquisitions of complementary
businesses, and the Company's results of operations could be adversely affected
if the Company were to encounter difficulties or unexpected costs in integrating
the operations of any such acquired businesses.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS. The Company's facilities
are currently located in France. In addition, currently one of the members of
the FED Alliance is located in Japan, and the Company anticipates that the two
future members of the FED Alliance will be located outside of the United States.
The Company's international operations are therefore subject to inherent risks,
including unexpected changes in regulatory requirements and tariffs and
difficulties in staffing and managing foreign operations. Although a significant
portion of the Company's revenues are expected to be denominated in U.S.
dollars, a substantial portion of the Company's operating expenses will be
denominated in French francs. Gains and losses on the conversion to U.S.
dollars of assets and liabilities denominated in French francs may contribute to
fluctuations in the Company's results of operations, which are reported in U.S.
dollars. Finally, the laws of certain countries do not protect the Company's
products and intellectual property rights to the same extent as do the laws of
the United States. There can be no assurance that these factors will not have a
material adverse effect on the Company.
ABSENCE OF DIVIDENDS. The Company has never declared or paid cash
dividends on its capital stock and does not intend to pay any cash dividends in
the foreseeable future.
VOLATILITY OF SHARE PRICE. The market price of the Common Stock has been
highly volatile. Publicity regarding actual or potential results relating to
products under development by the Company and market conditions for emerging
growth companies have had and may continue to have a significant impact on the
price of the Common Stock. Announcements of technological innovations or new
commercial products by the Company or its competitors, developments or disputes
concerning patent or proprietary rights, general regulatory developments
affecting the Company's products, period-to-period fluctuations in financial
results, and economic and other internal and external factors may also have a
significant impact on the price of the Common Stock. The Company has never
declared or paid any cash dividends on its Common Stock and does not intend to
do so for the foreseeable future.
9
<PAGE>
SELLING STOCKHOLDERS
The Shares being offered hereby were or will be acquired by the persons
listed in the table below (the "Selling Stockholders") in private placements of
the Company's Common Stock. 1,574,819 Shares were acquired on February 14,
1997, and 463,708 shares are issuable by the Company upon the exercise of an
outstanding warrant. All of the Shares are being registered for resale pursuant
to a Registration Statement on Form S-3, of which this Prospectus is a part.
Selling Stockholders may offer the Shares for resale from time to time after the
date hereof. See "Plan of Distribution."
The following table sets forth the name of each Selling Stockholder and the
number of Shares beneficially owned by each such holder as of April 14,
1998. All of such Shares may be offered and sold by the Selling Stockholders in
this offering.
<TABLE>
<CAPTION>
Shares Owned Prior Shares Owned After
to Offering (1) Offering (2)
--------------------- Number of Shares ------ ------------
Selling Stockholder Number Percent Being Offered Number Percent
- ---------------------------------- ------------ ------- ------------------- ------ ------------
<S> <C> <C> <C> <C> <C>
United Microelectronics Corp. 1,111,111 7.52 1,111,111 0 --
2F, NO. 76 SEC 2, Tunhwa S. RD.,
Taipei, Taiwan, R.O.C.
Motorola, Inc. 927,416(3) 6.09 927,416(3) 0 --
1303 E. Algonquin Road
Schaumburg, Illinois 60196
The Kaufmann Fund, Inc. 1,678,169 11.36 1,000,000 678,169 4.6
140 East 45th Street
43rd Floor
New York, New York 10017
Standard Energy Company 10,500 0.07 10,500 0 --
1105 Schrock Road, Suite 602
Columbus, OH 43229
SRI International 3,500 0.02 3,500 0 --
333 Ravenswood Avenue
Menlo Park, CA 94025
</TABLE>
(1) Each of the entities named in the table has sole voting and investment
power with respect to the shares beneficially owned by it.
(2) Assumes all Shares offered by each of the Selling Stockholders are sold in
the offering.
(3) Includes 463,708 shares of Common Stock issuable upon exercise of a warrant
held by Motorola, Inc. which warrant was exercisable as of February 14,
1997.
10
<PAGE>
PLAN OF DISTRIBUTION
The Company has filed with the Commission under the Securities Act of 1933,
as amended (the "Securities Act"), a Registration Statement on Form S-3, of
which this Prospectus is a part, with respect to the resale of the Shares from
time to time on the Nasdaq National Market or in privately-negotiated
transactions.
1,574,819 of the Shares were issued to the Selling Stockholders on February
14, 1997, and 463,708 of the Shares are issuable from time to time upon exercise
of an outstanding Warrant issued on February 14, 1997. The Warrant is
immediately exercisable and expires on December 31, 1998. The Warrant contains a
net exercise provision whereby the holder may receive upon exercise, without any
payment, a number of shares having a fair market value equal to the difference
between the fair market value of the Common Stock and the exercise price of the
Warrant. 14,000 of the Shares were issued to the Selling Stockholders on
March 16, 1998. 1,000,000 of the Shares were issued to the Selling Stockholders
on March 30, 1998.
The Company has been advised that the Selling Stockholders may sell the
Shares from time to time in transactions on the Nasdaq National Market, in
privately negotiated transactions, or by a combination of such methods of sale,
at fixed prices that may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Stockholders may effect such transactions by selling the
Shares to or through broker-dealers and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders or the purchasers of the Shares for whom such broker-dealer
may act as agent or to whom they sell as principal or both (which compensation
to a particular broker-dealer might be in excess of customary commissions).
In the event of an underwritten public offering for the account of the
Company, certain of the Selling Stockholders may, upon the written request of
the managing underwriter of such offering, be prohibited from selling any of the
shares offered hereby for a period beginning 10 days prior to the effective date
of the registration statement relating to such public offering and ending 180
days after such effective date.
The Selling Stockholders and any broker-dealer who acts in connection with
the sale of Shares hereunder may be deemed to be "underwriters" as that term is
defined in the Securities Act, and any commissions received by them and profit
on any resale of the Shares as principal might be deemed to be underwriting
discounts and commissions under the Securities Act.
The Selling Stockholders may also sell Shares from time to time in
accordance with Rule 144 under the Securities Act.
The Company has agreed to indemnify the Selling Stockholders against
certain liabilities, including certain liabilities under the Securities Act.
LEGALITY OF COMMON STOCK
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Palmer & Dodge LLP, Boston, Massachusetts. Michael
Lytton, the Secretary of the Company and Lynnette Fallon, an Assistant Secretary
of the Company, are partners of Palmer & Dodge LLP.
EXPERTS
The consolidated financial statements of PixTech, Inc. appearing in
PixTech's Annual Report (Form 10-K) for the year ended December 31, 1997, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
11
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 14. Other Expenses of Issuance and Distribution.
- -----------------------------------------------------
The following expenses incurring in connection with the sale of the
securities being registered will be borne by the Company. Other than the
registration fee, the amounts stated below are estimates.
<TABLE>
<S> <C>
Registration Fee................................. $ 2,349
Legal Fees and Expenses.......................... 7,500
Printing Fee..................................... 2,400
--------
TOTAL......................................... $ 12,249
</TABLE>
The Selling Stockholders will bear the expense of their own legal counsel
and miscellaneous fees and expenses, if any.
Item 15. Indemnification of Directors and Officers
- --------------------------------------------------
Section 145 of the Delaware General Corporation Law permits the Company to
indemnify directors, officers, employees and agents of the Company against
actual and reasonable expenses (including attorneys' fees) incurred by them in
connection with any action, suit or proceeding brought against them by reason of
their status or service as a director, officer, employee or agent by or on
behalf of the Company, and against expenses (including attorneys' fees),
judgments, fines and settlements actually and reasonably incurred by him in
connection with any such action, suit or proceeding, if (i) he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and (ii) in the case of a criminal proceeding, he had
no reasonable cause to believe his conduct was unlawful. Except as ordered by a
court, no indemnification shall be made in connection with any proceeding
brought by or in the right of the corporation where the person involved is
adjudged to be liable to the Company.
Article FIFTH of the Company's Certificate of Incorporation provides that
the Company shall, to the fullest extent permitted by the General Corporation
Law of the State of Delaware, as amended from time to time, indemnify each
person who was or is a party to any action, suit or proceeding by reason of the
fact that he is or was, or has agreed to become a director or officer of the
Company. The indemnification provided for in Article FIFTH is expressly not
exclusive of any other rights to which those seeking indemnification may be
entitled under any law, agreement or vote of shareholders or directors or
otherwise, and shall inure to the benefit of the heirs, executors and
administrators of such persons. Article FIFTH also permits the Board of
Directors to authorize the grant of indemnification rights to other employees
and agents of the Company and such rights may be equivalent to, or greater or
less than, those set forth in Article FIFTH.
Article V, Section 1 of the Company's Restated by-laws provides that the
Company shall have the power to purchase and maintain insurance on behalf of its
officers, directors, employees and agents, against any liability asserted
against and incurred by such persons in any such capacity.
The Company has entered into indemnification agreements with each of its
directors and has obtained insurance covering the officers and directors of the
Company against certain losses and insuring the Company against certain of its
obligations to indemnify its directors and officers.
Pursuant to the Delaware General Corporation Law, Article FIFTH of the
Company's Certificate of Incorporation eliminates a director's personal
liability for monetary damages to the Company and its shareholders for breach of
fiduciary duty as a director, except in circumstances involving a breach of the
director's duty of loyalty to the Company or shareholders, acts or omissions not
in good faith, intentional misconduct, knowing violations of the law, self-
dealing or the unlawful payment of dividends or repurchase of stock.
II-1
<PAGE>
The Company believes that courts in Europe and the US may have jurisdiction
in an action against the Company, its directors or officers. Such jurisdiction
will be delivered by the laws of the jurisdiction in effect at that time.
Item 16. Exhibits.
- ------------------
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<C> <S>
4.1 Restated Certificate of Incorporation of the Registrant. Filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (File No. 33-93024) and
incorporated herein by reference.
4.2 Restated By-laws of the Registrant. Filed as Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 33-93024) and incorporated herein
by reference.
4.3 Specimen Certificate of the Registrant's Common Stock. Filed as Exhibit 4.1 to
the Registrant's Registration Statement on Form S-1 (File No. 33-93024) and
incorporated herein by reference.
4.4 Warrant to Purchase Shares of Common Stock dated as of February 14, 1997.
Filed as Exhibit 10.26 to the Registrant's Registration Statement on Form 10-K
(File No. 000-26380) and incorporated herein by reference.
4.5 Common Stock Purchase Agreement between PixTech, Inc. and United
Microelectronics Corp. dated as of February 14, 1997. Filed as Exhibit 10.27 to
the Registrant's Registration Statement on Form 10-K (File No. 000-26380) and
incorporated herein by reference.
4.6 Common Stock and Warrant Purchase Agreement between PixTech, Inc. and
Motorola, Inc. dated as of February 6, 1997. Filed as Exhibit 10.28 to the
Registrant's Registration Statement on Form 10-K (file No. 000-26380) and
incorporated herein by reference.
4.7 Common Stock Purchase Agreement between PixTech, Inc. and The Kaufmann
Fund, Inc. dated as of March 25, 1998. Filed herewith.
5.1 Opinion of Palmer & Dodge LLP as to the legality of the securities registered
hereunder. Filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors. Filed herewith.
23.2 Consent of Palmer & Dodge LLP (contained in Opinion of Palmer & Dodge LLP,
filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (set forth on the signature page to this Registration Statement).
24.2 Certified resolution of the Board of Directors authorizing Power of Attorney.
Filed herewith.
24.3 Certified resolution of the Board of Directors authorizing Power of Attorney.
Filed herewith.
</TABLE>
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-2
<PAGE>
(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) which, individually or in the aggregate,
represents a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this 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 by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which 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 this
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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 hereof, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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 Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 on this 15th day of May, 1998.
PIXTECH, INC.
By: /s/ Jean-Luc Grand-Clement
-------------------------------
Jean-Luc Grand-Clement
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of PixTech, Inc. hereby
severally constitute and appoint Jean-Luc Grand-Clement, Yves Morel and Michael
Lytton, and each of them singly, our true and lawful attorneys-in-fact, with
full power to them in any and all capacities, to sign any and all amendments to
this Registration Statement on Form S-3 including any post-effective amendments
thereto, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Jean-Luc Grand-Clement Chief Executive Officer May 15, 1998
- -------------------------- and Chairman of the Board
Jean-Luc Grand-Clement (Principal Executive
Officer)
/s/ Yves Morel Chief Financial Officer May 15, 1998
- -------------------------- (Principal Financial and
Yves Morel Accounting Officer)
/s/ Jean-Pierre Noblanc Director April 6, 1998
- --------------------------
Jean-Pierre Noblanc
/s/ William C. Schmidt Director May 15, 1998
- --------------------------
William C. Schmidt
/s/ John A. Hawkins Director April 3, 1998
- --------------------------
John A. Hawkins
II-4
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<C> <S>
4.1 Restated Certificate of Incorporation of the Registrant. Filed
as Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1 (File No. 33-93024) and incorporated herein by
reference.
4.2 Restated By-laws of the Registrant. Filed as Exhibit 3.4 to
the Registrant's Registration Statement on Form S-1 (File
No. 33-93024) and incorporated herein by reference.
4.3 Specimen Certificate of the Registrant's Common Stock.
Filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 33-93024) and incorporated
herein by reference.
4.4 Warrant to Purchase Shares of Common Stock dated as of
February 14, 1997. Filed as Exhibit 10.26 to the
Registrant's Registration Statement on Form 10-K (File No.
000-26380) and incorporated herein by reference.
4.5 Common Stock Purchase Agreement between PixTech, Inc.
and United Microelectronics Corp. dated as of February 14,
1997. Filed as Exhibit 10.27 to the Registrant's Registration
Statement on Form 10-K (File No. 000-26380) and
incorporated herein by reference.
4.6 Common Stock and Warrant Purchase Agreement between
PixTech, Inc. and Motorola, Inc. dated as of February 6,
1997. Filed as Exhibit 10.28 to the Registrant's Registration
Statement on Form 10-K (file No. 000-26380) and
incorporated herein by reference.
4.7 Common Stock Purchase Agreement between PixTech, Inc. and The
Kaufmann Fund, Inc. dated as of March 25, 1998. Filed herewith.
5.1 Opinion of Palmer & Dodge LLP as to the legality of the
securities registered hereunder. Filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors.
Filed herewith.
23.2 Consent of Palmer & Dodge LLP (contained in Opinion of
Palmer & Dodge LLP, filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (set forth on the signature page to this
Registration Statement).
24.2 Certified resolution of the Board of Directors authorizing
Power of Attorney. Filed herewith.
24.3 Certified resolution of the Board of Directors authorizing
Power of Attorney. Filed herewith.
</TABLE>
<PAGE>
EXHIBIT 4.7
COMMON STOCK PURCHASE AGREEMENT
between
PIXTECH, INC.
and
THE KAUFMANN FUND, INC.
dated as of March 25, 1998
<PAGE>
TABLE OF CONTENTS
Page No.
--------
1. Authorization of Sale of the Shares............................. 1
-----------------------------------
2. Delivery of the Shares at the Closing............................ 1
-------------------------------------
3. Representations, Warranties and Covenants of PixTech............. 1
----------------------------------------------------
3.1. Organization and Qualification............................ 2
------------------------------
3.2. Authorized Capital Stock.................................. 2
------------------------
3.3. Consents; Due Execution; Delivery and Performance of
----------------------------------------------------
the Agreement............................................. 2
-------------
3.4. Issuance, Sale and Delivery of the Shares................. 2
-----------------------------------------
3.5. Exempt Transaction........................................ 2
------------------
3.6. Compliance with Rule 144.................................. 3
------------------------
3.7. Disclosure................................................ 3
----------
3.8. Additional Information; Eligibility for Use of Form S-3... 3
-------------------------------------------------------
3.9. No Material Changes....................................... 3
-------------------
3.10. Investment Company Act.................................... 4
----------------------
3.11. No Investment Advisor Affiliation......................... 4
---------------------------------
3.12. Possession of Intellectual Property....................... 4
-----------------------------------
3.13. Possession of Licenses and Permits........................ 4
----------------------------------
3.14. Legal Proceedings......................................... 4
-----------------
3.15. Taxes..................................................... 4
-----
4. Representations, Warranties and Covenants of Kaufmann............ 5
-----------------------------------------------------
4.1. Investment Considerations.................................. 5
-------------------------
4.2. Due Execution, Delivery and Performance of the Agreement... 6
--------------------------------------------------------
5. Conditions to the Obligations of the Purchaser................... 6
----------------------------------------------
5.1. Accuracy of Representations and Warranties................. 6
------------------------------------------
5.2. Performance................................................ 6
-----------
5.3. Opinion of Counsel......................................... 6
------------------
5.4. Certificates and Documents................................. 7
--------------------------
5.5. Sumitomo Consent........................................... 7
----------------
5.6. Extraordinary Events....................................... 7
--------------------
5.7. Material Changes........................................... 7
----------------
5.8. Other Matters.............................................. 7
-------------
6. Conditions to the Obligations of PixTech......................... 7
----------------------------------------
6.1. Accuracy of Representations and Warranties................. 7
--------------------------------------------
6.2. Performance................................................ 8
-----------
7. Survival of Representations, Warranties and Agreements;
-------------------------------------------------------
Assignability of Rights.......................................... 8
-----------------------
<PAGE>
8. Registration Rights.............................................. 8
-------------------
8.1. Registration of Shares on Form S-3.......................... 8
----------------------------------
8.2. Information by Holder....................................... 9
---------------------
8.3. Indemnification............................................. 9
---------------
8.4. Contribution................................................ 11
------------
8.5. Non-Exclusivity............................................. 11
---------------
8.6. Termination................................................. 12
-----------
8.7. Public Availability of Information.......................... 12
----------------------------------
8.8. Supplying Information....................................... 12
---------------------
9. Miscellaneous.................................................... 12
-------------
9.1. Notices.................................................... 12
-------
9.2. Entire Agreement........................................... 13
----------------
9.3. Assignment................................................. 13
----------
9.4. Amendments and Waivers..................................... 13
----------------------
9.5. Headings................................................... 13
--------
9.6. Severability............................................... 14
------------
9.7. Governing Law.............................................. 14
-------------
9.8. Counterparts............................................... 14
------------
9.9. Expenses................................................... 14
--------
9.10. Publicity.................................................. 14
---------
9.11. Specific Performance....................................... 14
--------------------
Exhibit A Form of Opinion of Palmer & Dodge LLP
- ---------
Exhibit B Form of Secretary's Certificate
- ---------
Exhibit C Form of Officer's Certificate
- ---------
<PAGE>
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT dated as of March 25, 1998 (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 The
Kaufmann Fund, Inc., a corporation organized under the laws of Maryland having
its principal offices at 140 East 45th Street, New York, New York ("Kaufmann").
R E C I T A L
WHEREAS, PixTech desires to sell to Kaufmann, and Kaufmann desires to
purchase from PixTech, shares of PixTech's common stock on the terms described
herein.
NOW THEREFORE, in consideration of the promises and of the covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually agree
as follows:
1. Authorization of Sale of the Shares. Subject to the terms and
-----------------------------------
conditions of this Agreement, PixTech has authorized the issuance and sale of
one million (1,000,000) shares (the "Shares") of the Common Stock, par value
$0.01 per share (the "Common Stock"), of PixTech to Kaufmann at a price of four
dollars ($4.00) per share. The aggregate purchase price for the Shares (the
"Stock Purchase Price")shall be four million dollars ($4,000,000.00).
2. Delivery of the Shares at the Closing. The closing of the purchase
-------------------------------------
and sale of the Shares (the "Closing") shall occur on March 30, 1998 (the
"Closing Date") at 10:00 a.m., eastern standard time at the offices of Palmer &
Dodge LLP, One Beacon Street, Boston, Massachusetts, or on such other business
day thereafter on or prior to March 31, 1998 as may be agreed upon by PixTech
and Kaufmann. Subject to the terms and conditions of this Agreement, at the
Closing, Kaufmann shall pay to PixTech an amount in cash or by wire transfer
equal to the Stock Purchase Price and PixTech shall deliver to Kaufmann or its
agent one or more stock certificates (the "Stock Certificates") registered in
the name of Kaufmann, or in such nominee name(s) as designated by Kaufmann,
representing the aggregate number of Shares. If prior to the Closing, the Stock
Certificate(s) has already been provided to Kaufmann, Kaufmann, or its agent,
agrees to hold such Stock Certificates in escrow until PixTech has given oral
confirmation of receipt of the funds required to be delivered by Kaufmann under
this Agreement. If at the Closing, PixTech shall fail to tender the Stock
Certificates to Kaufmann as provided above in this Section 2 or any of the
conditions specified in Section 5 shall not have been fulfilled to the
satisfaction of Kaufmann, Kaufmann, in its sole discretion, may elect to be
relieved of all further obligations under this Agreement, without thereby
waiving any rights it may have by reason of such failure or such nonfulfillment.
3. Representations, Warranties and Covenants of PixTech. PixTech hereby
----------------------------------------------------
represents and covenants with Kaufmann as follows:
1
<PAGE>
3.1. Organization and Qualification. PixTech (a) 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, (b) has the power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct its business in which it is currently engaged and (c)
is duly qualified as a foreign corporation and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a material
adverse effect on PixTech.
3.2. 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 March 12, 1998, 13,762,732 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.
3.3. Consents; Due Execution; Delivery and Performance of the
--------------------------------------------------------
Agreement. PixTech's execution, delivery and performance of this Agreement (a)
- ---------
has been duly authorized by all requisite corporate action by PixTech, (b) will
not violate any material 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, (c) will not require any consent, except as stated in Section 5.5 below,
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 and (d) will not require any
consent, authorization, approval, filing, notice to, or other act, by or in
respect of any governmental authority. Upon its execution and delivery, and
assuming the valid execution thereof by Kaufmann, the Agreement will constitute
a valid and binding obligation of PixTech, enforceable against PixTech in accor
dance 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).
3.4. Issuance, Sale and Delivery of the Shares. When issued and
-----------------------------------------
paid for, the Shares to be sold hereunder by PixTech will be validly issued and
outstanding, fully paid and non-assessable.
2
<PAGE>
3.5. Exempt Transaction. Subject to the accuracy of Kaufmann's
------------------
represen tations in Section 4.1 of this Agreement, the issuance and sale of the
Shares will constitute a transaction exempt from 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 state securities laws; and neither PixTech nor any
affiliate (as defined in Rule 501(b) of Regulation D of the Securities Act) or
any agent acting on behalf of PixTech or any such affiliate has directly, or
through any agent, sold, offered for sale or solicited offers to buy or
otherwise negotiated in respect of, any security (as defined in the Securities
Act) which is or will be integrated with the sale of the Shares in a manner that
would require registration under the Securities Act of the offering of the
Shares contemplated by this Agreement.
3.6. Compliance with Rule 144. At the written request of Kaufmann
-------------------------
at any time and from time to time, PixTech shall furnish to Kaufmann, within
three 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 Rule 144 of the Securities Act as amended
from time to time.
3.7. Disclosure. Neither this Agreement, nor any other items
-----------
prepared or supplied to Kaufmann by or on behalf of PixTech with respect to the
transactions contemplated hereby contain any untrue statement of a material fact
required to be stated therein 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 Kaufmann 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, results of operations, earnings,
assets, properties, customer, supplier or employee relations or business
prospects (a "Material Adverse Effect") of PixTech or PixTech Subsidiaries taken
as a whole.
3.8. Additional Information; Eligibility for Use of Form S-3. 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. PixTech meets the eligibility
requirements set forth in paragraph I of the General Instructions to Form S-3
for the use of such Form for the registration of securities in a transaction
involving secondary offerings, as described in such General Instructions.
3.9. No Material Changes. As of the date hereof, there has been no
--------------------
material adverse change in the financial condition, or any development involving
a prospective material adverse change in the financial condition, results of
operations, earnings, assets, operations, properties, customer, supplier or
employee relations (a "Material Adverse Change") of
3
<PAGE>
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.
3.10. Investment Company Act. PixTech is not an "investment company"
----------------------
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act"), and PixTech will
not be required to register as an "investment company" as a result of the
transactions contemplated herein.
3.11. No Investment Advisor Affiliation. PixTech is not an
---------------------------------
"investment advisor," "affiliated company" or an "affiliated person" of an
"investment advisor" within the meaning of the 1940 Act.
3.12. Possession of Intellectual Property. PixTech owns or
-----------------------------------
possesses, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, the "Intellectual Property") necessary to carry on the business
now operated by PixTech, and PixTech has not received or is otherwise aware of
any infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of
PixTech, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
3.13. Possession of Licenses and Permits. PixTech possesses such
----------------------------------
permits, licenses, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it; PixTech is in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure to so comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and PixTech has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
3.14. Legal Proceedings. There are no legal, governmental,
-----------------
administrative or arbitration proceedings pending to which PixTech is a party or
to which any of the properties of PixTech are subject or, to the best of
PixTech's knowledge, threatened against it, that would, if adversely determined
against it, have a Material Adverse Effect on PixTech or on the power of PixTech
to perform its obligations hereunder or to consummate the transactions
contemplated hereby.
4
<PAGE>
3.15. Taxes. PixTech has filed or caused to be filed all tax returns
-----
which, to the knowledge of PixTech, are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any property and all other taxes, fees or other charges imposed on
it any property by an governmental authority in the jurisdictions in which it
operates, except for (a) any taxes and assessments the amount of which is not
individually or in the aggregate material to the business or operations of
PixTech or (b) the amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
PixTech has established adequate reserves in accordance with generally accepted
accounting principles.
4. Representations, Warranties and Covenants of Kaufmann
-----------------------------------------------------
4.1. Investment Considerations. Kaufmann represents and warrants
--------------------------
to, and covenants with, PixTech that:
(a) Kaufmann 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) Kaufmann is acquiring the 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) Kaufmann understands that the Shares are "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 Kaufmann 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) Kaufmann 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) Kaufmann qualifies as an "accredited investor" within the
meaning of Rule 501(a) of Regulation D promulgated under the Securities Act and
is a resident of the state of New York and the state of Maryland; and
5
<PAGE>
(f) It is understood that the Stock Certificates 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.
4.2. Due Execution, Delivery and Performance of the Agreement.
---------------------------------------------------------
Kaufmann further represents and warrants to, and covenants with, PixTech that
(a) Kaufmann is a corporation duly organized, validly existing and in good
standing under the laws of the Maryland 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 Kaufmann or any other corporation of which Kaufmann owns at
least 50% of the outstanding voting stock (a "Kaufmann Subsidiary") or any
provision of any material indenture, mortgage, agreement, contract or other
material instrument to which Kaufmann or any Kaufmann Subsidiary is a party or
by which Kaufmann, any Kaufmann 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
Kaufmann or any Kaufmann 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 Kaufmann
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).
5. Conditions to the Obligations of the Purchaser.
-----------------------------------------------
The obligations of Kaufmann under this Agreement are subject to the
fulfillment, or the waiver by Kaufmann, of the conditions set forth in this
Section 5 on or before the Closing Date.
5.1. 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
6
<PAGE>
with the same effect as though such representation and warranty had been made on
and as of that date.
5.2. 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.
5.3. Opinion of Counsel. Kaufmann shall have received an opinion
------------------
from Palmer & Dodge LLP, counsel to PixTech, dated as of the Closing Date,
addressed to Kaufmann, and substantially in the form attached hereto as
Exhibit A.
- ---------
5.4. Certificates and Documents. PixTech shall have delivered to
--------------------------
counsel to Kaufmann:
(a) a certificate of the Secretary or Assistant Secretary of
PixTech dated as of the Closing Date, substantially in the form attached hereto
as Exhibit B 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, (iii) a copy of the resolutions of the Board of
Directors of PixTech, and (iv) a copy of the authorization of Sumitomo approving
PixTech's execution, delivery and performance of this Agreement, all matters in
connection with this Agreement, and the transactions contemplated thereby; and
(b) a certificate substantially in the form attached hereto as
Exhibit C, executed by the Chief Financial Officer of PixTech as of the Closing
- ---------
Date, certifying to the fulfillment of all of the conditions to Kaufmann's
obligations under this Agreement, as set forth in this Section 5.
5.5. Sumitomo Consent. PixTech shall have received the written
----------------
consent or waiver by Sumitomo Corporation under the Credit Agreement dated July
21, 1997 between Sumitomo Corporation and PixTech, permitting PixTech to enter
into this Agreement, the sale of the Shares to Kaufmann and the transactions
contemplated thereby.
5.6. Extraordinary Events. Since the date of this Agreement, there
--------------------
shall not have occurred (a) a suspension or material limitation in the trading
in securities generally on the Nasdaq National Market System or the
establishment of minimum prices on such exchange, (b) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (c) any outbreak or escalation of hostilities involving the
United States or any other national or international calamity or emergency.
5.7. Material Changes. Since the date of this Agreement, there has
----------------
not been any Material Adverse Change in PixTech.
5.8. Other Matters. All corporate and other proceedings in
--------------
connection with the transactions contemplated at the Closing by this Agreement,
and all documents and
7
<PAGE>
instruments incident to such transactions, shall be reasonably satisfactory in
substance and form to Kaufmann and its counsel, and Kaufmann and its counsel
shall have received all such counterpart originals or certified or other copies
of such documents as they may reasonably request.
6. 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 6 on or before the Closing Date.
6.1. Accuracy of Representations and Warranties. Each
------------------------------------------
representation and warranty of Kaufmann 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.
6.2. Performance. Kaufmann shall have performed and complied with
-----------
all agreements and conditions contained in this Agreement required to be
performed or complied with by Kaufmann prior to or at the Closing.
7. Survival of Representations, Warranties and Agreements; Assignability
---------------------------------------------------------------------
of Rights. Notwithstanding any investigation made by any party to this
- ---------
Agreement, all covenants, agreements, representations and warranties made by
PixTech and Kaufmann herein, except as otherwise provided herein, shall survive
the execution of this Agreement, the delivery to Kaufmann of the Shares being
purchased and the payment therefor. Except as otherwise provided herein, (i)
the covenants, agreements, representations and warranties of Pixtech made herein
shall bind the Company's successors and assigns and shall insure to the benefit
of Kaufmann and Kaufmann's successors and assigns and (ii) the covenants,
agreements, representations and warranties of Kaufmann made herein shall bind
Kaufmann's successors and assigns and shall insure to the benefit of Pixtech and
PixTech's successors and assigns.
8. Registration Rights
-------------------
8.1. Registration of Shares on Form S-3. 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 by Kaufmann (or, if PixTech is not then eligible to use such Form, on any
other form of registration statement promulgated by the SEC which would cover
the resale of the Shares) and use its best efforts to cause such registration
statement to become effective in order that Kaufmann may sell its Shares in
accordance with the proposed plan of distribution; provided, however, that
-------- -------
PixTech will furnish to Kaufmann and its counsel copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel, and PixTech will give reasonable
8
<PAGE>
consideration in good faith to any comments of Kaufmann and such counsel
regarding such registration statement.
(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 covered by such
registration statement(s) until such time as Kaufmann no longer holds any
Shares, subject to earlier termination as provided in Section 8.6, and to
correct an untrue statement of a material fact or omission to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances then existing, not misleading; provided, however,
-------- -------
that PixTech will furnish to Kaufmann and its counsel copies of all such
amendments and supplements proposed to be filed and the proposed prospectus and
any supplements thereto, which documents will be subject to the review of such
counsel, and PixTech will give reasonable consideration in good faith to any
comments of Kaufmann and such counsel regarding such registration statement.
(c) furnish Kaufmann such number of copies of such prospectus as it
may reasonably request in order to facilitate the resale of the Shares;
(d) file documents required of PixTech to comply with state
securities laws regarding the registration and offering of the Shares in states
specified in writing by Kaufmann; 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) do any and all other reasonable acts and things which may be
reasonably necessary or advisable to enable Kaufmann to consummate the sale of
the Shares as contemplated in this Section 8.1;
(f) bear all expenses in connection with the procedures set forth
in paragraphs (a) through (e) of this Section 8.1 and the registration of the
Shares covered by the registration statement, other than fees and expenses, if
any, of counsel or other advisors to Kaufmann.
8.2. Information by Holder. Kaufmann shall promptly furnish to
---------------------
PixTech such information regarding Kaufmann and the distribution proposed by
Kaufmann as PixTech may request in writing and as shall be required from time to
time in connection with any registration, qualification or compliance referred
to in this Section 8.
8.3. Indemnification. For the purpose of this Section 8.3,
----------------
(a) the term "Selling Stockholder" shall mean Kaufmann and any
officer, director, employee, agent, affiliate or person deemed to be in control
of Kaufmann within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act;
9
<PAGE>
(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 Sections 8.1; 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 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 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 Kaufmann prior to
the pertinent sale or sales by Kaufmann. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Selling Stockholder and shall survive the transfer of such securities by the
seller.
Kaufmann 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) and each underwriter (if any) from and against any losses,
claims, damages or liabilities to which PixTech (or any such officer, director
or controlling person) or each underwriter (if any) 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 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 Kaufmann specifically for use in preparation of the
Registration Statement, and Kaufmann will reimburse PixTech (or such officer,
director or controlling person, as the case may be) or each underwriter (if
any), for any legal or other expenses reasonably incurred in investigating,
defending, or preparing to defend any such action, proceeding or claim;
provided, however, that (i) no Selling Stockholder shall be liable for any
- -------- -------
untrue statement that is corrected by any Selling Stockholder in writing to
PixTech or its agents prior to the sale of the Shares, whether or not such
correction was made in any amendment or supplement to any Registration Statement
by PixTech; and (ii) in no event shall the liability of any Selling Stockholder
exceed
10
<PAGE>
the amount of the proceeds of the sale of the Shares received by such Selling
Stockholder giving rise to such indemnification obligation.
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 8.3, 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; provided that the failure of any indemnified person to give
--------
notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section 8.3, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice; provided, however,
-------- -------
that the indemnifying person shall not agree to a settlement of any such action
without the consent of the indemnified person, which consent shall not be
unreasonably withheld. 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.
8.4. Contribution. If the indemnification provided for in this
------------
Section 8 for any reason is held by a court of competent jurisdiction to be
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then the indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative fault of the
indemnified party in connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by
11
<PAGE>
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party under this Section
8.4 as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
8.5. Non-Exclusivity. The obligations of the parties under this
---------------
Section 8 shall be in addition to any liability which any party may otherwise
have to any other party.
8.6. Termination. Kaufmann's rights under Section 8.1 hereunder
------------
shall terminate as to any Shares upon the earlier of (i) the time that such
Shares may be sold pursuant to Rule 144 of the Securities Act or (ii) at such
time as no such Shares are held by Kaufmann.
8.7. Public Availability of Information. PixTech shall comply with
----------------------------------
all public information reporting requirements of the Commission, to the extent
required from time to time to enable Kaufmann to sell the Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Commission.
8.8. Supplying Information. PixTech shall cooperate with Kaufmann
---------------------
in supplying such information as may be necessary for Kaufmann to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of an exemption from the
Securities Act for the sale of any Shares.
9. Miscellaneous.
-------------
9.1. 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.
12
<PAGE>
If to PixTech: PixTech, Inc.
Avenue Olivier Perroy
Zone Industrielle de Rousset
13790 Rousset France
Attention: Chief Executive Officer
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, Esq.
Telephone: (617) 573-0100
Telecopy: (617) 227-4420
13
<PAGE>
If to Kaufmann: The Kaufmann Fund, Inc.
140 East 45th Street
43rd Floor
New York, New York 10017
Attention: Jonathan Art
Telephone: (212) 922-0123
Telecopy: (212) 661-2266
with a copy to: Gary S. Schpero, Esq.
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Telephone: (212) 455-2000
Telecopy: (212) 455-2502
9.2. Entire Agreement. This Agreement contains 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.
9.3. 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 Kaufmann may, without such consent, assign its rights and obligations
under this Agreement (i) to any entity, 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. 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.
9.4. Amendments and Waivers. This Agreement may not be modified or
-----------------------
amended except pursuant to an instrument in writing signed by PixTech and
Kaufmann. 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.
9.5. 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
<PAGE>
9.6. 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.
9.7. Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of Delaware, excluding
choice-of-law principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
9.8. 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.
9.9. Expenses. Except as otherwise specifically provided herein,
---------
each party shall bear its own expenses in connection with this Agreement.
9.10. Publicity. The parties to this Agreement agree that shortly
----------
after the Closing Date, PixTech will issue a press release to disclose the
transaction contemplated by this agreement, provided, however, that any such
-------- -------
press release does not cause the offering contemplated by this Agreement to
violate Section 5 of the Securities Act, including but not limited to Rule 135c
of the Securities Act. However, 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, which may not be unreasonably withheld, except as may be required by
applicable law or regulation.
9.11. Specific Performance. Each party hereto acknowledges and
--------------------
agrees that each other party hereto would be irreparably harmed and would have
no adequate remedy of law if any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, it is agreed that, in addition to any other remedies by law or in
equity which may be available, the parties hereto shall be entitled to obtain
temporary and permanent injunctive relief with respect to any breach or
threatened breach of, or otherwise obtain specific performance of the covenants
and other agreements contained in this Agreement.
15
<PAGE>
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/ Yves Morel
-------------------------------------------
Yves Morel
Chief Financial Officer
THE KAUFMANN FUND, INC.
By: /s/ Laurence Auriana
------------------------------------------
Title: Chairman
------------------------------------------
16
<PAGE>
EXHIBIT 5.1
PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
May 15, 1998
PixTech, Inc.
Avenue Olivier Perroy
13790 Rousset
FRANCE
Ladies and Gentlemen:
We are rendering this opinion in connection with the Registration Statement
on Form S-3 (the "Registration Statement") filed by PixTech, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, on or about the date hereof. The Registration Statement
relates to 3,052,527 shares of the Company's Common Stock, $0.01 par value per
share, consisting of 2,588,819 shares of Common Stock outstanding on the date
hereof (the "Shares") and 463,708 shares of Common Stock issuable upon exercise
of an outstanding Warrant (the "Warrant Shares"), for resale by certain
stockholders of the Company listed therein.
We have acted as your counsel in connection with the preparation of the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization of the issuance and sale of the
Shares and the Warrant Shares. We have examined all such documents as we
consider necessary to enable us to render this opinion.
Based upon the foregoing, we are of the opinion that the Shares and the
Warrant Shares have been duly authorized and that the Shares have been, and,
upon issuance following payment of the exercise price therefore pursuant to the
terms of the Warrant, the Warrant Shares will be, validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement and to the reference to our firm under Item 5 thereof.
Very truly yours,
/s/ Palmer & Dodge LLP
PALMER & DODGE LLP
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
-------------------------------
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-3 and related Prospectus of PixTech, Inc. for
the registration of 3,052,527 shares of its common stock and to the
incorporation by reference therein of our report dated February 9, 1998, with
respect to the consolidated financial statements of PixTech, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
May 14, 1998
<PAGE>
EXHIBIT 24.1
PIXTECH, INC.
Certificate of Secretary
------------------------
I, Michael Lytton, being the duly elected and acting secretary of PixTech,
Inc. (the "Corporation"), a Delaware corporation, hereby certify that the
following is a true, correct and complete copy of resolutions duly adopted by
the Board of Directors of the Corporation dated on September 9, 1997; and that
said resolutions have not been amended or rescinded and are now in full force
and effect.
REGISTRATION STATEMENTS ON FORM S-3
- -----------------------------------
RESOLVED: That the President, any Vice President and the Treasurer of the
Corporation, each acting singly, be and hereby are authorized in the
name and on behalf of the Corporation to execute and file with the
United States Securities and Exchange Commission (the "Commission")
registration statements on Form S-3 (the "Registration Statements")
relating to the registration under the Securities Act of 1933, as
amended (the "Act"), of 2,038,527 shares of the Corporation's Common
Stock $.01 par value per share ("Common Stock") such Registration
Statements and any amendments thereto to be in such form as may be
approved by the officer executing the same, his execution and filing
thereof to be conclusive evidence of this approval; and such officers,
and each acting singly, be and hereby are authorized to take any and
all other action as they or any of them may deem necessary or
advisable to effect such registration.
RESOLVED: That any officer of the Corporation executing, on behalf of the
Corporation or in any other capacity, the Registration Statements
referred to in the resolutions above and any and all amendments to
such registration statements and other documents to be filed with the
Commission in connection therewith is hereby authorized to execute the
same through or by Jean-Luc Grand-Clement, Yves Morel or Michael
Lytton, as attorney-in-fact, pursuant to a power of attorney
reflecting such authorization.
WITNESS my signature and the seal of the Corporation affixed this 2nd day
of December, 1997.
[CORPORATE SEAL] /s/ Michael Lytton
--------------------------
Michael Lytton, Secretary
<PAGE>
EXHIBIT 24.2
PIXTECH, INC.
Certificate of Secretary
------------------------
I, Michael Lytton, being the duly elected and acting secretary of PixTech,
Inc. (the "Corporation"), a Delaware corporation, hereby certify that the
following is a true, correct and complete copy of resolutions duly adopted by
the Board of Directors of the Corporation by unanimous written consent dated
March 31, 1998; and that said resolutions have not been amended or rescinded and
are now in full force and effect.
REGISTRATION STATEMENTS ON FORM S-3
- -----------------------------------
RESOLVED: That the Chief Executive Officer, President, any Vice President and
the Treasurer of the Corporation, each acting singly, be and hereby
are authorized in the name and on behalf of the Corporation to execute
and file with the United States Securities and Exchange Commission
(the "Commission") registration statements on Form S-3 (the
"Registration Statements") relating to the registration under the
Securities Act of 1933, as amended (the "Act"), of 1,000,000 shares of
the Corporation's Common Stock $.01 par value per share ("Common
Stock") such Registration Statements and any amendments thereto to be
in such form as may be approved by the officer executing the same, his
execution and filing thereof to be conclusive evidence of this
approval; and such officers, and each acting singly, be and hereby are
authorized to take any and all other action as they or any of them may
deem necessary or advisable to effect such registration.
RESOLVED: That any officer of the Corporation executing, on behalf of the
Corporation or in any other capacity, the Registration Statements
referred to in the resolutions above and any and all amendments to
such registration statements and other documents to be filed with the
Commission in connection therewith is hereby authorized to execute the
same through or by Jean-Luc Grand-Clement, Yves Morel or Michael
Lytton, as attorney-in-fact, pursuant to a power of attorney
reflecting such authorization.
WITNESS my signature and the seal of the Corporation affixed this 2nd day
of April, 1998.
[CORPORATE SEAL] /s/ Michael Lytton
----------------------------------
Michael Lytton, Secretary
<PAGE>
EXHIBIT 24.3
PIXTECH, INC.
Certificate of Secretary
------------------------
I, Michael Lytton, being the duly elected and acting secretary of PixTech,
Inc. (the "Corporation"), a Delaware corporation, hereby certify that the
following is a true, correct and complete copy of resolutions duly adopted by
the Board of Directors of the Corporation by unanimous written consent dated May
13, 1998; and that said resolutions have not been amended or rescinded and are
now in full force and effect.
REGISTRATION STATEMENTS ON FORM S-3
- -----------------------------------
RESOLVED: That the Chief Executive Officer, President, any Vice President and
the Treasurer of the Corporation, each acting singly, be and hereby
are authorized in the name and on behalf of the Corporation to execute
and file with the United States Securities and Exchange Commission
(the "Commission") registration statements on Form S-3 (the
"Registration Statements") relating to the registration under the
Securities Act of 1933, as amended (the "Act"), of 14,000 shares of
the Corporation's Common Stock $.01 par value per share ("Common
Stock") such Registration Statements and any amendments thereto to be
in such form as may be approved by the officer executing the same, his
execution and filing thereof to be conclusive evidence of this
approval; and such officers, and each acting singly, be and hereby are
authorized to take any and all other action as they or any of them may
deem necessary or advisable to effect such registration.
RESOLVED: That any officer of the Corporation executing, on behalf of the
Corporation or in any other capacity, the Registration Statements
referred to in the resolutions above and any and all amendments to
such registration statements and other documents to be filed with the
Commission in connection therewith is hereby authorized to execute the
same through or by Jean-Luc Grand-Clement, Yves Morel or Michael
Lytton, as attorney-in-fact, pursuant to a power of attorney
reflecting such authorization.
WITNESS my signature and the seal of the Corporation affixed this 15th day
of May, 1998.
[CORPORATE SEAL] /s/ Michael Lytton
------------------------------
Michael Lytton, Secretary
