COMMON STOCK AND WARRANT PURCHASE AGREEMENT
between
PIXTECH, INC.
and
MOTOROLA, INC.
dated as of February 6, 1997
TABLE OF CONTENTS
SECTION 1. Authorization of Sale of the Shares 1
SECTION 2. Authorization of Issuance of the Warrant 1
SECTION 3. Sale of the Shares 2
SECTION 4. Sale of the Warrant 2
SECTION 5. Delivery of the Shares at the Closing 2
SECTION 6. Assignment of Rights to Receive Payments under Diamond
License 2
SECTION 7. Representations, Warranties and Covenants of PixTech 2
7.1 Organization and Qualification 2
7.2 Authorized Capital Stock 2
7.3 Consents; Due Execution; Delivery and Performance
of the Agreement 3
7.4 Issuance, Sale and Delivery of the Shares 3
7.5 Exempt Transaction 3
7.6 Compliance with Rule 144 3
7.7 Disclosure 3
7.8 Additional Information 4
7.9 No Material Changes 4
SECTION 8. Representations, Warranties and Covenants of Motorola 4
8.1 Investment Considerations 4
8.2 Due Execution, Delivery and Performance of the
Agreement 5
SECTION 9. Conditions to the Obligations of the Purchasers. 6
9.1 Accuracy of Representations and Warranties 6
9.2 Performance 6
9.3 Opinion of Counsel 6
9.4 Closing of the Offering 6
9.5 Amendment of Cooperation and License Agreement 6
9.6 Certificates and Documents 6
9.7 Other Matters 6
SECTION 10. Conditions to the Obligations of PixTech 7
10.1 Accuracy of Representations and Warranties 7
10.2 Amendment of Cooperation Agreement 7
SECTION 11. Registration Rights 7
11.1 Registration of Shares and Warrant Shares 7
11.2 Indemnification 8
11.3 "Stand-Off" Agreement 9
11.4 Termination 9
SECTION 12. Board Attendance and Representation 10
12.1 Observation Rights 10
12.2 Election of Board Representative 10
SECTION 13. Survival of Representations, Warranties and Agreements;
Assignibility of Rights 10
SECTION 14. Miscellaneous 10
14.1 Notices 10
14.2 Entire Agreement 11
14.3 Assignment 11
14.4 Amendments and Waivers 12
14.5 Headings 12
14.6 Severability 12
14.7 Governing Law 12
14.8 Counterparts 12
14.9 Expenses 12
14.10 Publicity 12
14.11 Confidentiality 12
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT dated as of February
6, 1997 (the "Agreement") is made between PIXTECH, INC., a corporation
organized under the laws of the State of Delaware having its principal
offices at Avenue Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxxxx xx Xxxxxxx, 00000
Xxxxxxx Xxxxxx, ("PixTech"), and MOTOROLA, INC., a corporation organized
under the laws of the State of Delaware having its principal offices at
0000 X. Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Motorola").
R E C I T A L
PixTech desires to sell to Motorola, and Motorola desires to purchase
from PixTech, shares of PixTech's common stock and warrants to purchase
shares of PixTech's common stock on the terms described herein.
NOW THEREFORE, in consideration of the premises and of the covenants
herein contained, the parties hereto mutually agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the
terms and conditions of this Agreement, PixTech has authorized the sale to
Motorola of up to that number of shares of the Common Stock, par value
$0.01 per share (the "Common Stock"), of PixTech equal to 3.5% of the
Outstanding Shares of Common Stock, as defined below. Collectively, the
shares of Common Stock which may be purchased pursuant to this Section 1
are referred to herein as the "Shares." As used herein, the "Outstanding
Shares of Common Stock" shall mean a number of Shares equal to the sum of
(i) the number of shares of PixTech Common Stock issued and outstanding on
the third business day prior to the Closing Date, as defined below, as
reported in writing by American Stock Transfer & Trust Company, PixTech's
transfer agent, and (ii) the aggregate number of shares sold by PixTech in
(A) its European offering (the "European Offering") pursuant to PixTech's
Preliminary Prospectus dated November 28, 1996, and any amendments or
supplements thereto (the "Prospectus") and (B) any other public or private
offering of shares of Common Stock which together result in net proceeds to
PixTech of at least $15 million (collectively with the European Offering,
the "Offering").
SECTION 2. Authorization of Issuance of the Warrant. Subject to
the terms and conditions of this Agreement, PixTech has authorized the
issuance to Motorola of a warrant, substantially in the form attached
hereto as Exhibit A (the "Warrant"), to purchase a number of shares of
Common Stock equal to the number of Shares purchased by Motorola pursuant
to this Agreement.
SECTION 3. Sale of the Shares. Concurrently with the closing of
the Offering (the "Closing"), or at such other time to be mutually agreed
upon by PixTech and Motorola, PixTech shall sell to Motorola, and Motorola
shall purchase from PixTech, upon the terms and conditions hereinafter set
forth, the Shares, at a price per share equal to the lesser of (i) $5.50 or
(ii) the lowest price per share at which PixTech sells any shares of Common
Stock in the Offering (as so determined, the "Per Share Price") The
aggregate purchase price for the Shares, determined by multiplying the
total number of Shares to be sold to Motorola pursuant to Section 1 by the
Per Share Price, is referred to herein as the "Aggregate Purchase Price".
SECTION 4. Sale of the Warrant. Subject to the terms and
conditions hereinafter set forth, at the Closing, PixTech shall issue to
Motorola the Warrant.
SECTION 5. Delivery of the Shares at the Closing. The closing of
the purchase and sale of Shares shall occur on the date of the Closing of
the Offering (the "Closing Date") or at such other time and at a place to
be agreed upon by PixTech and Motorola. Subject to the terms and
conditions of this Agreement, at the Closing, Motorola shall pay to PixTech
an amount in cash equal to the Aggregate Purchase Price less $1.4 million
and PixTech shall deliver to Motorola one or more stock certificates
registered in the name of Motorola, or in such nominee name(s) as
designated by Motorola, representing the number of Shares being purchased.
SECTION 6. Assignment of Rights to Receive Payments under Diamond
License. As additional consideration for the Shares, the parties hereto
agree that upon the Closing Motorola's rights to receive payments of $1.5
million from PixTech S.A. after the Closing Date pursuant to Section 3.1 of
the DLC Patent Cross-License Agreement between PixTech S.A. and Motorola
dated as of June 13, 1996 (the "Diamond License") shall hereby be assigned
to PixTech. PixTech, PixTech S.A. and Motorola agree that the provisions
of this Section 6 shall constitute an amendment of Section 3.1 of the
Diamond License, effective as of the Closing.
SECTION 7. Representations, Warranties and Covenants of PixTech.
PixTech hereby represents and warrants to, and covenants with, Motorola as
follows:
7.1 Organization and Qualification. PixTech is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
conduct its business as currently conducted.
7.2 Authorized Capital Stock. As of the date hereof, the
authorized capital stock of PixTech consists of (a) 30,000,000 shares of
common stock, $0.01 par value per share, of which on January 27, 1997,
8,146,696 shares were validly issued and outstanding, fully paid and non-
assessable, and (b) 1,000,000 shares of undesignated preferred stock, $0.01
par value per share, none of which are issued and outstanding.
7.3 Consents; Due Execution; Delivery and Performance of the
Agreement. PixTech's execution, delivery and performance of this Agreement
and the Warrant (a) has been duly authorized under Delaware law by all
requisite corporate action by PixTech, (b) will not violate any law or the
Restated Certificate of Incorporation or Restated By-laws of PixTech or any
other corporation of which PixTech owns at least 50% of the outstanding
voting stock (a "PixTech Subsidiary") or any provision of any material
indenture, mortgage, agreement, contract or other material instrument to
which PixTech or any PixTech Subsidiary is a party or by which any of their
respective properties or assets is bound as of the date hereof or (c)
require any consent by any person under, constitute or result (upon notice
or lapse of time or both) in a breach of any term, condition or provision
of, or constitute a default or give rise to any right of termination or
acceleration under any such indenture, mortgage, agreement, contract or
other material instrument or result in the creation or imposition of any
lien, security interest, mortgage, pledge, charge or other encumbrance, of
any material nature whatsoever, upon any properties or assets of PixTech or
any PixTech Subsidiary. Upon its execution and delivery, and assuming the
valid execution thereof by Motorola, the Agreement will constitute a valid
and binding obligation of PixTech, enforceable against PixTech in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
7.4 Issuance, Sale and Delivery of the Shares. When issued
and paid for, the Shares to be sold hereunder by PixTech, and the shares
issuable upon exercise of the Warrant (the "Warrant Shares"), will be
validly issued and outstanding, fully paid and non-assessable.
7.5 Exempt Transaction. Subject to the accuracy of
Motorola's representations in Section 8.1 of this Agreement, the issuance
of the Shares, the Warrant and the Warrant Shares (upon exercise of the
Warrant) will constitute a transaction exempt from (i) the registration
requirements of Section 5 of the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon Section 4(2) of the Securities Act and
the regulations promulgated pursuant thereto and (ii) the qualification
requirements of the Illinois Securities Law, in reliance upon Section 4
(5/4) (C) thereof.
7.6 Compliance with Rule 144. At the written request of
Motorola, PixTech shall furnish to Motorola, within ten days after receipt
of such request, a written statement confirming PixTech's compliance with
the filing requirements of the Securities and Exchange Commission (the
"SEC") set forth in SEC Rule 144 as amended from time to time.
7.7 Disclosure. Neither this Agreement, nor any other items
prepared or supplied to Motorola by or on behalf of PixTech with respect to
the transactions contemplated hereby contain any untrue statement of a
material fact or omit a material fact necessary to make each statement
contained herein or therein not misleading. There is no fact which PixTech
has not disclosed to Motorola in writing and of which any of its directors
or executive officers is aware (other than general economic conditions) and
which has had or would reasonably be expected to have a material adverse
effect upon the financial condition, operating results, assets, customer or
supplier relations, employee relations or business prospects of PixTech or
PixTech Subsidiaries taken as a whole.
7.8 Additional Information. All reports filed by PixTech
with the SEC pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), when filed, did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading. PixTech has made all filings with the SEC which it is
required to make, and PixTech has not received any request from the SEC to
file any amendment or supplement to any such reports.
7.9 No Material Changes. As of the date hereof, there has
been no material adverse change in the financial condition or results of
operations of PixTech since the filing date of PixTech's last report with
the Securities and Exchange Commission pursuant to the reporting
requirements of the Exchange Act.
SECTION 8. Representations, Warranties and Covenants of Motorola.
8.1 Investment Considerations. Motorola represents and
warrants to, and covenants with, PixTech that:
(a) Motorola is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with
respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares,
including investments in securities issued by companies
comparable to PixTech, and has requested, received, reviewed and
considered all information it deems relevant in making an
informed decision to purchase the Shares;
(b) Motorola is acquiring the number of Shares set forth
in Section 2 above, and the Warrant Shares, in the ordinary
course of its business and for its own account for investment
only and with no present intention of distributing any of such
Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares;
(c) Motorola understands that the Shares it is
purchasing, and the Warrant Shares, are, and will be, "restricted
securities" under the federal securities laws inasmuch as they
are being acquired from PixTech in a transaction not involving a
public offering and that under such laws and applicable
regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances.
In this connection Motorola represents that it is familiar with
SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act;
(d) Motorola will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of)
any of the Shares except in compliance with the Securities Act,
and the rules and regulations promulgated thereunder.
(e) Motorola qualifies as an "accredited investor"
within the meaning of Rule 501(a)(3) of Regulation D promulgated
under the Securities Act and constitutes a purchaser described in
Section 4 (5/4) (C) of the Illinois Securities Law; and
(f) It is understood that the certificates evidencing
the Shares shall bear the following legend unless and until the
resale of the Shares pursuant to an effective Registration
Statement or until the Shares may be sold under Rule 144 without
restrictions:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR, IF REQUESTED BY PIXTECH, AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO PIXTECH AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
8.2 Due Execution, Delivery and Performance of the Agreement.
Motorola further represents and warrants to, and covenants with, PixTech
that (a) Motorola is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full right,
power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement, (b) the execution, delivery and performance of this Agreement
will not violate any law or the charter documents of Motorola or any other
corporation of which Motorola owns at least 50% of the outstanding voting
stock (a "Motorola Subsidiary") or any provision of any material indenture,
mortgage, agreement, contract or other material instrument to which
Motorola or any Motorola Subsidiary is a party or by which Motorola, any
Motorola Subsidiary, or any of their respective properties or assets is
bound as of the date hereof, or result in a breach of or constitute (upon
notice or lapse of time or both) a default under any such indenture,
mortgage, agreement, contract or other material instrument or result in the
creation or imposition of any lien, security interest, mortgage, pledge,
charge or encumbrance, of any material nature whatsoever, upon any assets
of Motorola or any Motorola Subsidiary, and (c) upon the execution and
delivery of this Agreement, and assuming the valid execution thereof by
PixTech, this Agreement shall constitute a valid and binding obligation of
Motorola enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' and contracting parties'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
SECTION 9. Conditions to the Obligations of the Purchasers.
The obligations of Motorola under this Agreement are subject to
the fulfillment, or the waiver by Motorola, of the conditions set forth in
this Section 9 on or before the Closing Date.
9.1 Accuracy of Representations and Warranties. Each
representation and warranty of PixTech contained in this Agreement shall be
true on and as of the Closing Date with the same effect as though such
representation and warranty had been made on and as of that date.
9.2 Performance. PixTech shall have performed and complied
with all agreements and conditions contained in this Agreement required to
be performed or complied with by PixTech prior to or at the Closing.
9.3 Opinion of Counsel. Motorola shall have received an
opinion from Xxxxxx & Dodge LLP, counsel to PixTech, dated as of the
Closing Date, addressed to Motorola, and substantially in the form attached
hereto as Exhibit B.
9.4 Closing of the Offering. The Offering shall have
closed and resulted in net proceeds to PixTech of not less than
$15,000,000.
9.5 Amendment of Cooperation and License Agreement. The
Amendment No. 1 to the Cooperation and License Agreement between PixTech
S.A. and Motorola dated June 12, 1995 (the "Cooperation Agreement") shall
have been executed in a form mutually acceptable to Motorola, PixTech and
PixTech S.A.
9.6 Certificates and Documents. PixTech shall have delivered
to counsel to Motorola:
(a) a certificate of the Secretary or Assistant
Secretary of PixTech dated as of the Closing Date, certifying as
to (i) the incumbency of officers of PixTech executing this
Agreement and all other documents executed and delivered in
connection herewith, (ii) a copy of the By-Laws of PixTech, as in
effect on and as of the Closing Date, and (iii) a copy of the
resolutions of the Board of Directors of PixTech authorizing and
approving PixTech's execution, delivery and performance of this
Agreement, all matters in connection with this Agreement, and the
transactions contemplated thereby.
(b) a certificate, executed by the President of PixTech
as of the Closing Date, certifying to the fulfillment of all of
the conditions to Motorola's obligations under this Agreement, as
set forth in this Section 9.
9.7 Other Matters. All corporate and other proceedings in
connection with the transactions contemplated at the Closing by this
Agreement, and all documents and instruments incident to such transactions,
shall be reasonably satisfactory in substance and form to Motorola and its
counsel, and Motorola and its counsel shall have received all such
counterpart originals or certified or other copies of such documents as
they may reasonably request.
SECTION 10. Conditions to the Obligations of PixTech.
The obligations of PixTech under this Agreement are subject to
the fulfillment, or the waiver by PixTech, of the conditions set forth in
this Section 10 on or before the Closing Date.
10.1 Accuracy of Representations and Warranties. Each
representation and warranty of Motorola contained in this Agreement shall
be true on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date.
10.2 Amendment of Cooperation Agreement. The Amendment
No. 1 to the Cooperation Agreement shall have been executed by Motorola and
PixTech S.A.
SECTION 11. Registration Rights.
11.1 Registration of Shares and Warrant Shares. PixTech
covenants and agrees that it will:
(a) promptly following the Closing, prepare and file a
registration statement on one or more Forms S-3 covering the
resale of the Shares and the Warrant Shares by Motorola, and use
its best efforts to cause such registration statement to become
effective in order that Motorola may sell its Shares in
accordance with the proposed plan of distribution;
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement(s) and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective\
and to comply with the provisions of the Securities Act with
respect to the resale of the Shares and Warrant Shares covered by
such registration statement(s) until such time as Motorola no
longer holds any of the Shares or the Warrants Shares;
(c) furnish Motorola such number of copies of such
prospectus as it may reasonably request in order to facilitate
the resale of the Shares or the Warrant Shares;
(d) file documents required of PixTech for blue sky
clearance in states specified in writing by Motorola; provided,
however, that PixTech shall not be required to qualify to do
business or consent to service of process in any jurisdiction in
which it is now not so qualified or has not so consented; and
(e) bear all expenses in connection with the procedures
set forth in paragraphs (a) through (d) of this Section 11 and
the registration of the Shares pursuant to the registration
statement, other than fees and expenses, if any, of counsel or
other advisors to Motorola.
11.2 Indemnification. For the purpose of this Section 11.2,
(a) the term "Selling Stockholder" shall mean Motorola
and any officer, director, employee, agent, affiliate or person
deemed to be in control of Motorola within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act;
(b) the term "Registration Statement" shall mean any
final prospectus, exhibit, supplement or amendment included in or
relating to the registration statement referred to in Section
11.1; and
(c) the term "untrue statement" shall mean any untrue
statement or alleged untrue statement of, or any omission or
alleged omission to state, in the Registration Statement a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
PixTech agrees to indemnify and hold harmless each Selling Stockholder
from and against any losses, claims, damages or liabilities to which such
Selling Stockholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon,
any untrue statement of a material fact contained in the Registration
Statement on the effective date thereof, or arise out of any failure by
PixTech to fulfill any undertaking included in the Registration Statement
and PixTech will reimburse such Selling Stockholder for any reasonable
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim; provided,
however, that PixTech shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon,
an untrue statement made in such Registration Statement in reliance upon
and in conformity with written information furnished to PixTech by or on
behalf of such Selling Stockholder specifically for use in preparation of
the Registration Statement, or any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to
Motorola prior to the pertinent sale or sales by Motorola.
Motorola agrees to indemnify and hold harmless PixTech (and each
person, if any, who controls PixTech within the meaning of Section 15 of
the Securities Act, each officer of PixTech who signs the Registration
Statement and each director of PixTech) from and against any losses,
claims, damages or liabilities to which PixTech (or any such officer,
director or controlling person) may become subject (under the Securities
Act or otherwise), insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement of a material fact contained in the Registration
Statement on the effective date thereof if such untrue statement was made
in reliance upon and in conformity with written information furnished by or
on behalf of Motorola specifically for use in preparation of the
Registration Statement, and Motorola will reimburse PixTech (or such
officer, director or controlling person, as the case may be), for any legal
or other expenses reasonably incurred in investigating, defending, or
preparing to defend any such action, proceeding or claim; provided,
however, that Motorola shall not be liable for any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was
delivered to Motorola prior to the pertinent sale or sales by Motorola.
Promptly after receipt by any indemnified person of a notice of a
claim or the commencement of any action in respect of which indemnity is to
be sought against an indemnifying person pursuant to this Section 11.2,
such indemnified person shall notify the indemnifying person in writing of
such claim or of the commencement of such action, and, subject to the
provisions hereinafter stated, in case any such action shall be brought
against an indemnified person and such indemnifying person shall have been
notified thereof, such indemnifying person shall be entitled to participate
therein, and, to the extent it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified persons of its
election to assume the defense thereof, such indemnifying person shall not
be liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense thereof;
provided, however, that if there exists or shall exist a conflict of
interest that would make it inappropriate, in the opinion of counsel to the
indemnified person, for the same counsel to represent both the indemnified
person and such indemnifying person or any officer, director, employee,
agent, affiliate or person deemed to be in control of such indemnifying
person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person. It is
understood, however, that PixTech shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits, or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to
any local counsel) at any time for all such indemnified parties not having
actual or potential differing interests with PixTech or among themselves.
11.3 "Stand-Off" Agreement. If Motorola holds any Shares at
such time as PixTech proposes to offer shares of its Common Stock or other
securities for sale in a registered public offering, then Motorola agrees
not to sell or otherwise transfer or dispose of any such Shares or other
securities of PixTech held by it during the period commencing 10 days prior
to, and expiring 180 days after, such registered public offering has become
effective, provided, that all executive officers and directors of PixTech
enter into similar agreements. PixTech may impose stop transfer
instructions with respect to the Shares or other securities subject to the
foregoing restriction until the end of any stand-off period.
11.4 Termination. Motorola's registration rights hereunder
shall terminate as to any Shares or Warrant Shares when such Shares or
Warrant Shares are no longer held by Motorola.
SECTION 12. Board Attendance and Representation.
12.1 Observation Rights. Until the earlier of (i) the
expiration of the Warrant, (ii) the sale by Motorola of any of the Shares
or (iii) the election of a representative of Motorola to the Board of
Directors of PixTech pursuant to Section 12.2 hereof, PixTech shall permit
one representative of Motorola to attend, at Motorola's expense, all
meetings of the Board of Directors of PixTech, and of any other committee
or group exercising responsibilities comparable to those exercised by the
Board of Directors, as non-participating observers of such meetings. The
Company shall give each Purchaser such notice and materials of any such
meeting as shall be given to members of the Board of Directors or
committees thereof.
12.2 Election of Board Representative. In the event that
Motorola exercises the Warrant in full, and has not at such time sold any
of the Shares, PixTech will use its best efforts to (i) at the next
regularly scheduled meeting of the Board of Directors following such
exercise, cause the Directors to enlarge the number of members of the Board
and to elect a representative designated by Motorola in writing to fill the
vacancy so created (to the extent permitted by PixTech's Restated By-laws
and Restated Certificate of Incorporation and applicable law) and (ii)
thereafter support the reelection of such representative until Motorola
sells any of its shares of PixTech Common Stock; provided that the cashless
exercise of the Warrant pursuant to the Conversion Right (as defined in
Section 2.3 of the Warrant) shall not constitute a sale of any shares of
PixTech Common Stock for purposes of this Section 12.2. If such
representative of Motorola resigns or is removed from the Board of
Directors at any time that PixTech remains obligated pursuant to this
Section 12.2, then PixTech shall use its best efforts to cause a successor
designated by Motorola in writing to be elected to fill the vacancy created
by such resignation or removal.
SECTION 13. Survival of Representations, Warranties and Agreements;
Assignibility of Rights. Notwithstanding any investigation made by any
party to this Agreement, all covenants, agreements, representations and
warranties made by PixTech and Motorola herein, except as otherwise
provided herein, shall survive the execution of this Agreement, the
delivery to Motorola of the Shares and the Warrant being purchased and the
payment therefor. Except as otherwise provided herein, (i) the covenants,
agreements, representations and warranties of the Company made herein shall
bind the Company's successors and assigns and shall insure to the benefit
of Motorola's successors and assigns and to transferees of the Warrant and
(ii) the covenants, agreements, representations and warranties of Motorola
made herein shall bind Motorola's successors and assigns and shall insure
to the benefit of PixTech's successors and assigns.
SECTION 14. Miscellaneous.
14.1 Notices. Any consent, notice or report required or
permitted to be given or made under this Agreement by one of the parties
hereto to the other shall be in writing, delivered personally or by
facsimile (and promptly confirmed by telephone, personal delivery or
courier) or courier, postage prepaid (where applicable), addressed to such
other party at its address indicated below, or to such other address as the
addressee shall have last furnished in writing to the addressor and shall
be effective upon receipt by the addressee.
If to PixTech: PixTech, Inc.
Avenue Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx xx Xxxxxxx
00000 Xxxxxxx Xxxxxx
Telephone: 000 000 0000 0000
Telecopy: 011 334 4229 0509
with a copy to: Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Motorola: Motorola, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Vice President and Director,
Corporate Business Development
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Motorola, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Law Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
14.2 Entire Agreement. This Agreement, the Cooperation
Agreement and the Amendment No. 1 to the Cooperation Agreement contain the
entire understanding of the parties with respect to the subject matter
hereof. All express or implied agreements and understandings, either oral
or written, heretofore made are expressly merged in and made a part of this
Agreement.
14.3 Assignment. Neither this Agreement nor any of the
rights and obligations contained herein may be assigned or otherwise
transferred by either party without the consent of the other party;
provided, however, that either PixTech or Motorola may, without such
consent, assign its rights and obligations under this Agreement (i) to any
Affiliate, all or substantially all of the equity interest of which is
owned and controlled by such party or its direct or indirect parent
corporation, or (ii) in connection with a merger, consolidation or sale of
substantially all of such party's assets to an unrelated third party;
provided, however, that such party's rights and obligations under this
Agreement shall be assumed by its successor in interest in any such
transaction and shall not be transferred separate from all or substantially
all of its other business assets, including those business assets that are
the subject of the License Agreement. Any purported assignment in
violation of the preceding sentence shall be void. Any permitted assignee
shall assume all obligations of its assignor under this Agreement.
14.4 Amendments and Waivers. This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by
PixTech and Motorola. The waiver by either party hereto of any right
hereunder or the failure to perform or of a breach by the other party shall
not be deemed a waiver of any other right hereunder or of any other breach
or failure by said other party whether of a similar nature or otherwise.
14.5 Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
14.6 Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
14.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without
giving effect to the choice of law provisions thereof) and the federal law
of the United States of America.
14.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties.
14.9 Expenses. Except as otherwise specifically provided
herein, each party shall bear its own expenses in connection with this
Agreement.
14.10 Publicity. Neither party hereto shall issue any press
releases or otherwise make any public statement with respect to the
transactions contemplated by this Agreement without the prior written
consent of the other party, except as may be required by applicable law or
regulation.
14.11 Confidentiality. Motorola acknowledges and agrees that
any information or data it has acquired from PixTech, not otherwise
properly in the public domain, was received in confidence. Motorola agrees
not to divulge, communicate or disclose, except as may be required by law
or for the performance of this Agreement, or use to the detriment of
PixTech or for the benefit of any other person or persons, or misuse in any
way, any confidential information of PixTech.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
PIXTECH, INC.
By: /s/ Xxxx Xxx Grand-Xxxxxxx
Xxxx Luc Grand-Xxxxxxx
President and Chief Executive Officer
MOTOROLA, INC.
By: /s/ Xxxx X. Xxxxxx
Title: Corporate Vice President
and Director Finance, AECG
PixTech S.A. has executed this Agreement below solely for the purposes of
Section 6.
PIXTECH S.A.
By: /s/ Xxxx Xxx Grand-Xxxxxxx
Xxxx Luc Grand-Xxxxxxx
President and Chief Executive Officer
