EXHIBIT 3
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
310,000 Shares (subject to adjustment)
COMMON STOCK WARRANT
THIS WARRANT (the "Warrant"), dated as of the 19th day of May, 1999, is
made by PixTech, Inc, a Delaware corporation (the "Company"), pursuant to the
Acquisition Agreement (the "Acquisition Agreement"), dated as of March 19, 1999,
between the Company and Micron Technology, Inc., a Delaware corporation (the
"Warrantholder").
ARTICLE 1.
GRANT OF WARRANT AND EXERCISE PRICE
1.1 Grant of Warrant and Exercise Price. This Warrant entitles the
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Warrantholder to subscribe for and purchase from the Company up to Three Hundred
Ten Thousand (310,000) shares (subject to adjustment as provided herein) of
fully paid and nonassessable common stock, par value $0.01 per share (the
"Common Stock"), of the Company (the "Warrant Shares") at a purchase price per
share of $2.25313 (the "Exercise Price," subject to adjustment as provided
herein). The right of the Warrantholder to subscribe for and purchase the
Warrant Shares shall become exercisable as provided in Article 2 hereof.
ARTICLE 2.
EXERCISE OF WARRANT
2.1 Exercise Period; Expiration Date. This Warrant may be exercised, from
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time to time, in whole or in part during the period commencing on May 19, 1999
(the "Effective Date") and ending at 5:30 p.m. (California time) on the second
anniversary thereof (unless such date is not a business day, in which case such
period will end on the first business day thereafter (the "Expiration Date")).
2.2 Procedure for Exercising the Warrant. The Warrantholder may exercise
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this Warrant by executing the Notice of Exercise attached hereto as Exhibit A
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and delivering it to the Company and tendering the requisite aggregate Exercise
Price for the number of Warrant Shares to be purchased on any business day
during normal business hours.
2.3 Payment of Exercise Price. At the option of the Warrantholder,
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payment of the Exercise Price shall be made by (a) wire transfer of funds to an
account in a bank located in the United States designated by the Company for
such purpose, (b) certified check payable to the order of the Company or (c) by
any combination of such methods.
2.4 Delivery of shares of Common Stock and Remaining Warrant. In the
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event of any exercise of this Warrant, certificates for the shares of Common
Stock so exercised shall be delivered to the holder hereof within five (5)
business days thereafter and, unless this Warrant has been fully exercised,
converted or expired, a new Warrant representing the portion of the shares of
Common Stock, if any, with respect to which this Warrant shall not then have
been exercised, shall also be issued to the holder hereof within such five (5)
business day period. All other terms and conditions of such amended Warrant
shall be identical to those contained herein, including, but not limited to the
Effective Date hereof. If the Warrant Shares are to be registered in the name
of any entity or person other than the Warrantholder, the Company may require
evidence of compliance by the Warrantholder with all applicable securities laws.
ARTICLE 3.
AVAILABILITY OF WARRANT SHARES
3.1 Reservation of Common Stock. The Company covenants and agrees that it
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will cause to be kept available out of its authorized and unissued Common Stock
a number of shares of Common Stock that will be sufficient to permit the
exercise in full of this Warrant.
3.2 Authorization of Common Stock. The Company covenants and agrees that
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it will take all such action as may be necessary to ensure that all shares of
Common Stock delivered upon exercise or conversion of this Warrant shall, at the
time of delivery of the certificates for such Warrant Shares, be duly and
validly authorized and issued and fully paid and non-assessable shares.
3.3 Stockholder Rights. Each person or entity in whose name any
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certificate for Warrant Shares is issued upon the exercise of this Warrant shall
for all purposes be deemed to have become the holder of record of the Warrant
Shares represented thereby on, and such certificate shall be dated, the date
upon which the Subscription Agreement was duly executed and payment of the
aggregate Exercise Price was made. Prior to the exercise of this Warrant, the
Warrantholder shall not be entitled to any rights of a stockholder of the
Company with respect to the Warrant Shares for which this Warrant shall be
exercisable, including, without limitation, the right to vote, and to receive
dividends or other distributions and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.
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3.4 Adjustments. If the Company shall, at any time or from time to time,
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(i) pay a dividend in Common Stock, or make a distribution in Common Stock, (ii)
subdivide its outstanding Common Stock into a greater number of shares, or (iii)
otherwise combine its outstanding Common Stock into a smaller number of shares
(including through a recapitalization or otherwise), (a) the Exercise Price in
effect on the record date for such dividend or on the effective date of such
subdivision or combination shall be adjusted by multiplying such Exercise Price
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately prior to such event and the denominator of which is the
number of shares of Common Stock outstanding immediately after such event and
(b) the number of Warrant Shares for which this Warrant may be exercised
immediately before such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the Exercise Price immediately before such
event and the denominator of which is the Exercise Price immediately after such
event.
3.5 Reorganizations. In case of any capital reorganization or
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reclassification of the Common Stock, or any consolidation or merger of the
Company with or into another corporation or the sale of all or substantially all
of the assets of the Company as an entirety or substantially as an entirety
(collectively such actions being hereinafter referred to as "Reorganizations"),
lawful provision shall be made so that there shall thereafter be deliverable
upon exercise of this Warrant (in lieu of the number of Warrant Shares
theretofore deliverable) the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock which would
otherwise have been deliverable upon the exercise of this Warrant would have
been entitled upon such Reorganization if this Warrant had been exercised
immediately prior to such Reorganization.
3.6 Notice of Adjustments. Whenever the Exercise Price or number of
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shares deliverable upon exercise of this Warrant shall be adjusted pursuant to
this Article 3, the Company shall promptly prepare a certificate signed by the
principal financial officer of the Company setting forth, in reasonable detail,
the event regarding the adjustment, the amount of the adjustment, and the method
by which such adjustment was calculated, and shall promptly cause copies of such
certificate to be provided to the holder of this Warrant as provided in Section
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5.1.
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ARTICLE 4.
WARRANTHOLDER REPRESENTATIONS AND WARRANTIES
The Warrantholder represents and warrants to, and covenants with, the
Company as follows:
4.1 Representations. It is acquiring the Warrant for investment for its
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own account and not with the view to, or for resale in connection with, any
distribution thereof. It understands that the Warrant and the Warrant Shares
have not been registered under the Act, or any state blue sky laws, by reason of
specified exemptions from the registration provisions of the Act and such laws.
It acknowledges that the Warrant and the Warrant Shares thereof must be held
indefinitely unless they are subsequently registered under the Act or an
exemption from such registration is available. It has been advised or is aware
of the provisions of Rule 144 promulgated under the Act, which permit the resale
of shares purchased in a private placement subject to the satisfaction of
certain conditions.
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4.2 Restrictive Legend. Unless and until the resale of the Warrant Shares
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pursuant to an effective Registration Statement, or until the Warrant Shares may
be sold under an exemption from registration, including Rule 144, without
restrictions, each certificate representing Warrant Shares, or any other
securities issued in respect of the Warrant Shares, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall be
stamped or otherwise imprinted with a legend in substantially the following form
(in addition to any legend required under applicable state securities laws):
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 Restrictions On and Notice of Proposed Transfers. The Warrantholder
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agrees that prior to any proposed transfer of any of the Warrant Shares, the
Warrantholder shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall, if
requested by the Company, be accompanied by either (a) an opinion of legal
counsel which counsel shall be reasonably satisfactory to the Company, addressed
to the Company and reasonably satisfactory in form and substance to the
Company's counsel, to the effect that the proposed transfer of the Warrant
Shares may be effected without registration under the Act or under any
applicable state or other securities laws or (b) a "no-action" letter from the
staff of the Securities and Exchange Commission to the effect that the
distribution of such securities without registration will not result in a
recommendation by the Staff of the Securities and Exchange Commission that
action be taken with respect thereto, whereupon the Warrantholder shall be
entitled to transfer such Warrant Shares in accordance with the terms of the
notice delivered to the Company. Each certificate evidencing the Warrant Shares
transferred as provided above shall bear the appropriate restrictive legend set
forth in Section 4.2 above, except that such certificate shall not bear such
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restrictive legend if the opinion of counsel or "no-action" letter referred to
above is to the further effect that such legend is not required in order to
comply with any provisions of the Act.
ARTICLE 5.
MISCELLANEOUS
5.1 Notices. Notices or demands relating to this Warrant shall be
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sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows, or telexed, telecopied, or delivered by overnight or other
courier:
If to the Company: PixTech, Inc.
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Avenue Xxxxxxx Xxxxxx
Zone Xxxxxxxxxxxx xx Xxxxxxx
Xxxxxxx 00000 XXXXXX
Attn: President
Telephone: 011-33-4-42-29-10-00
Telecopy: 011-33-4-42-29-05-09
If to the Warrantholder: Micron Technology, Inc.
0000 X. Xxxxxxx Xxx
Xxxxx, Xxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or such other address as may be provided by one party to the other in writing.
5.2 Successors and Assigns.
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(a) All the covenants and provisions of this Warrant by or for the
benefit of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder and this Warrant may be
freely assigned; provided that the assignor shall execute a Transfer Notice as
attached hereto as Exhibit B.
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(b) If requested by the Company, any such form of assignment shall be
accompanied by either (i) an opinion of legal counsel, which counsel shall be
reasonably satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of this Warrant may be effected without registration under
the Act or under any applicable state or other securities laws or (ii) a "no-
action" letter from the staff of the Securities and Exchange Commission to the
effect that the distribution of such securities without registration will not
result in a recommendation by the Staff of the Securities and Exchange
Commission that action be taken with respect thereto, whereupon the
Warrantholder shall be entitled to transfer such Warrant in accordance with the
terms of the notice delivered to the Company.
5.3 Warrantholder Registry; Ownership. The Company shall maintain a
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registry showing the name and address of the registered holder of this Warrant.
The Company and any agent of the Company may treat the person or entity in whose
name this Warrant is registered on the register kept at the principal office of
the Company as the owner and holder thereof for all purposes, notwithstanding
any notice to the contrary, except that, if and when this Warrant is properly
assigned in blank, the Company may (but shall not be obligated to) treat the
bearer thereof as the owner of this Warrant for all purposes, notwithstanding
any notice to the contrary. This Warrant, if properly assigned, may be
exercised by a new holder without first having a new Warrant issued.
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5.4 No Fractional Shares or Script. No fractional Warrant Shares or scrip
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representing fractional Warrant Shares shall be issued upon the exercise of the
Warrant, but in lieu of such fractional Warrant Shares the Company shall make a
cash payment therefor upon the basis of the Exercise Price then in effect.
5.5 Replacement. Upon receipt of evidence reasonably satisfactory to the
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Company of the loss, theft, destruction or mutilation of this Warrant and (a) in
the case of any such loss, theft or destruction upon delivery of indemnity
reasonably satisfactory to the Company in form and amount or (b) in the case of
any such mutilation, upon surrender of such Warrant for cancellation at the
principal office of the Company, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant.
5.6 Governing Law. This agreement and the Warrant, and all questions
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relating to the interpretation, construction and enforceability of this
agreement, shall be governed in all respects by the substantive laws of the
State of Delaware, without regard to the conflicts of law rules of the State of
Delaware.
5.7 Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Warrant may not be amended, modified or supplemented, other
than by a written instrument executed by the Company and the Warrantholder.
5.8 No Impairment of Rights. The Company will not, by amendment of its
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Certificate of Incorporation or through any other means, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate in order to
protect the rights of the Warrantholder against impairment.
5.9 Survival. The representations, warranties, covenants and conditions
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of the respective parties contained herein or made pursuant to this Warrant
shall survive the execution and delivery of this Warrant.
5.10 Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Warrantholder shall be enforceable to the fullest extent permitted by law.
5.11 Notice of Capital Changes. In case:
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(i) the Company shall declare any dividend or distribution (whether
payable in cash, securities, assets or otherwise) payable to the holder of its
Common Stock;
(ii) there shall be any Reorganization of the Company; or
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(iii) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give the holder of
this Warrant written notice, in the manner set forth in Section 5.1, of the date
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on which a record shall be taken for such dividend or distribution or for
determining stockholders entitled to vote upon such Reorganization, dissolution,
liquidation or winding up and of the date when any such transaction shall take
place, as the case may be. Such written notice shall be given at least thirty
(30) days prior to the closing of the transaction in question and not less than
twenty (20) days prior to the record day in respect thereof.
5.12 Additional Information. During the period from the Closing until the
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termination of this Warrant, the Warrantholder shall be entitled to receive such
financial and other information as the Warrantholder would be entitled to
receive under the Acquisition Agreement if the Warrantholder were a holder of
that number of shares of Common Stock issuable upon full exercise of this
Warrant.
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IN WITNESS WHEREOF, PixTech, Inc. has caused this Warrant to be duly
executed and delivered, all as of the date and year first above written.
PIXTECH, INC.
By: /s/ Xxxxxx Xxxxxx
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President and Chief Executive Officer
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EXHIBIT A
NOTICE OF EXERCISE
To: PixTech, Inc.
(i) The undersigned Warrantholder hereby elects to purchase _______ shares
of the Common Stock of PixTech, Inc., pursuant to the terms of the
Warrant dated the 19th day of May, 1999 (the "Warrant") between PixTech,
Inc. and the Warrantholder, and tenders herewith payment of the purchase
price for such shares in full, together with all applicable transfer
taxes, if any.
(ii) In exercising its rights to purchase the Common Stock of PixTech, Inc.,
the undersigned hereby confirms and acknowledges the investment
representations and warranties made in Article 5 of the Warrant.
(iii) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below.
___________________________________
(Name)
___________________________________
(Address)
Warrantholder: Micron Technology, Inc.
By:
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Title:
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Date:
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EXHIBIT B
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant execute this form and supply
required Information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby transferred and assigned to
_______________________________________________________
(Please Print)
whose address is_______________________________________
_______________________________________________________
Dated:
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Warrantholder's Signature:
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Warrantholder's Address:
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Signature Guaranteed:
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NOTE: The signature to this Transfer Notice must correspond with the name as
it appears on the face of the Warrant, without alteration or
enlargement or any change whatever. Officers of corporations and those
acting in a fiduciary or other representative capacity should file
proper evidence of authority to assign the foregoing Warrant.
