THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (ii)
UPON FIRST FURNISHING TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY
TO IT THAT SUCH TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION
REQUIREMENTS OF THE ACT OR ANY STATE SECURITIES LAW.
Warrant No. 2 463,708 Shares (subject to adjustment)
COMMON STOCK WARRANT
THIS WARRANT dated as of the 14th day of February, 1997 is made by and
between PixTech, Inc., a Delaware corporation (the "Company") and Motorola,
Inc., a Delaware corporation (the "Warrantholder") pursuant to a Common
Stock and Warrant Purchase Agreement (the "Purchase Agreement") dated as of
February 6, 1997 between the Company and the Warrantholder.
ARTICLE 1. GRANT OF WARRANT AND EXERCISE PRICE
1. Grant of Warrant and Exercise Price. This Warrant entitles
the Warrantholder to subscribe for and purchase from the Company up to Four
Hundred Sixty-Three Thousand Seven Hundred Eight (463,708) shares of Common
Stock, $0.01 par value, of the Company (the "Warrant Shares") at a purchase
price per share of $5.50, subject to adjustment (the "Exercise Price").
The right of the Warrantholder to subscribe for and purchase the Warrant
Shares shall become exercisable as provided in Article 2.
ARTICLE 2. EXERCISE OF WARRANT
1. Exercise Period, Expiration Date. This Warrant may be
exercised or converted in whole or in part during the period commencing on
or after February 7, 1997 and ending on December 31, 1998 (the "Expiration
Date").
2. Procedure for Exercising the Warrant. The Warrantholder may
exercise this Warrant by executing the Subscription Agreement attached
hereto as Exhibit A and delivering it to the Company and tendering the
requisite aggregate Exercise Price for the number of Warrant Shares to be
purchased on any business day during normal business hours.
3. Net Exercise of Warrant. In lieu of exercising this Warrant
for cash as provided in the preceding Section, the Warrantholder may
convert this Warrant (the "Conversion Right"), in whole or in part, into
the number of Warrant Shares calculated pursuant to the following formula
by surrendering this Warrant (with the Subscription Agreement in the form
attached hereto duly executed) at the principal office of the Company
specifying the number of Warrant Shares the rights to purchase which the
Warrantholder desires to convert:
X = Y (A - B)
__________
A
where: X = the number of shares of Common Stock, $0.01 par value,
of the Company (the "Common Stock") to be issued to
the Warrantholder;
Y = the number of shares of Common Stock subject to this
Warrant for which the Conversion Right is being
exercised;
A = the fair market value of one share of Common Stock;
B = the Exercise Price
As used herein, the fair market value of a share of Common Stock shall
mean, with respect to each share of Common Stock, the closing price per
share of the Company's Common Stock on the Nasdaq National Market System
averaged over the 15 trading days ending on the second trading day prior to
the date of such conversion. If at any time such quotations are not
available, the current fair market value of a share of Common Stock shall
be the highest price per share which the Company could obtain from a
willing buyer (not a Warrant Holder, any assignee thereof, current employee
or director) for shares of Common Stock sold by the Company, as determined
in good faith by the Board of Directors of the Company, unless (i) the
Company shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the surviving party, in
which case the current fair market value of a share of Common Stock shall
be deemed to be the value received by the holders of the Company's Common
Stock for each share of Common Stock pursuant to such transaction; or (ii)
the Warrantholder shall exercise its Conversion Right to purchase such
shares in conjunction with an underwritten public offering of the Company's
Common Stock pursuant to a registration statement filed under the
Securities Act, in which case, the fair market value of a share of Common
Stock shall be the price per share at which all registered shares are sold
to the public in such offering.
4. Delivery of Shares and Remaining Warrant. In the event of any
exercise or conversion of this Warrant, certificates for the shares of
stock so exercised or converted shall be delivered to the holder hereof
within twenty (20) business days thereafter and, unless this Warrant has
been fully exercised, converted or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant shall not
then have been exercised or converted, shall also be issued to the holder
hereof within such twenty (20) business day period. If the Warrant Shares
are to be registered in the name of any entity or person other than the
Warrantholder, the Company may require evidence of compliance by the
Warrantholder with all applicable securities laws.
ARTICLE 3. AVAILABILITY OF WARRANT SHARES
1. Reservation of Common Stock. The Company covenants and agrees
that it will cause to be kept available out of its authorized and unissued
Common Stock a number of shares of Common Stock that will be sufficient to
permit the exercise in full of this Warrant.
2. Authorization of Common Stock. The Company covenants and
agrees that it will take all such action as may be necessary to ensure that
all shares of Common Stock delivered upon exercise or conversion of this
Warrant shall, at the time of delivery of the certificates for such Warrant
Shares, be duly and validly authorized and issued and fully paid and non-
assessable shares.
3. Stockholder Rights. Each person or entity in whose name any
certificate for Warrant Shares is issued upon the exercise of this Warrant
shall for all purposes be deemed to have become the holder of record of the
Warrant Shares represented thereby on, and such certificate shall be dated,
the date upon which the Subscription Agreement was duly executed and
payment of the aggregate Exercise Price was made. Prior to the exercise of
this Warrant, the Warrantholder shall not be entitled to any rights of a
stockholder of the Company with respect to the Warrant Shares for which
this Warrant shall be exercisable, including, without limitation, the right
to vote, to receive dividends or other distributions and shall not be
entitled to receive any notice of any proceedings of the Company, except as
provided herein.
4. Adjustments. In case the Company shall, at any time or from
time to time, (i) pay a dividend in Common Stock, or make a distribution in
Common Stock, (ii) subdivide its outstanding Common Stock into a greater
number of shares, (iii) combine its outstanding Common Stock into a smaller
number of shares (including a recapitalization in connection with a
consolidation or merger in which the Company is the continuing
corporation), (a) the Exercise Price in effect on the record date for such
dividend or on the effective date of such subdivision or combination shall
be adjusted by multiplying such Exercise Price by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which is the number of shares of
Common Stock outstanding immediately after such event and (b) the number of
Warrant Shares for which this Warrant may be exercised immediately before
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the Exercise Price immediately before such event and
the denominator of which is the Exercise Price immediately after such
event.
5. Reorganizations. In case of any capital reorganization or
reclassification of the Common Stock, or any consolidation or merger of the
Company with or into another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and which
does not result in any reclassification of the outstanding shares of Common
Stock or the conversion of such outstanding shares of Common Stock into
shares of other stock or other securities or property), or the sale of all
or substantially all of the assets of the Company as an entirety or
substantially as an entirety (collectively such actions being hereinafter
referred to as "Reorganizations"), there shall thereafter be deliverable
upon exercise of this Warrant (in lieu of the number of Warrant Shares
theretofore deliverable) the number of shares of stock or other securities
or property to which a holder of the number of shares of Common Stock which
would otherwise have been deliverable upon the exercise of this Warrant
would have been entitled upon such Reorganization if this Warrant had been
exercised immediately prior to such Reorganization.
6. Notice of Adjustments. Whenever the Exercise Price or number
of shares deliverable upon exercise of this Warrant shall be adjusted
pursuant to this Article 3, the Company shall promptly prepare a
certificate signed by the principal financial officer of the Company
setting forth, in reasonable detail, the event regarding the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and shall promptly cause copies of such certificate to be
provided to the holder of this Warrant as provided in Section 6.1.
ARTICLE 4. WARRANTHOLDER REPRESENTATIONS AND WARRANTIES
The Warrantholder (including any assignee of a Warrantholder pursuant
to Section 6.2) represents and warrants to and covenants with, the Company,
as follows:
1. Representations. It understands the risks of investing in
developing companies such as the Company and can afford a loss of its
entire investment. It is acquiring the Warrant for investment for its own
account and not with the view to, or for resale in connection with, any
distribution thereof. It understands that the Warrant and the Warrant
Shares have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any state blue sky laws, by reason of
specified exemptions from the registration provisions of the Securities Act
and such laws. It acknowledges that the Warrant and the Warrant Shares
thereof must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. It has been advised or is aware of the provisions of Rules 144
and 144A promulgated under the Securities Act, which permit the resale of
shares purchased in a private placement subject to the satisfaction of
certain conditions and that such Rules may not be available for resale of
the shares. It has had an opportunity to discuss the Company's business,
management and financial affairs with its management. It has its principal
place of business in the State of Illinois.
2. Restrictions on Transferability. Neither the Warrant, nor the
Warrant Shares, shall be transferable, except upon the conditions specified
in and in accordance with the terms of this Article 4 and Section 6.2
hereof.
3. Restrictive Legend. Unless and until the resale of the Warrant
Shares pursuant to an effective Registration Statement under Section 11 of
the Purchase Agreement, or until the Warrant Shares may be sold under Rule
144 without restrictions, each certificate representing Warrant Shares, or
any other securities issued in respect of the Warrant Shares, upon any
stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall be stamped or otherwise imprinted with a legend in
substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED
EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR (ii) UPON FIRST FURNISHING TO THE COMPANY AN OPINION
OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT IN
VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY
STATE SECURITIES LAW.
4. Restrictions On and Notice of Proposed Transfers. The
Purchaser agrees that prior to any proposed transfer of any of the Warrant
Shares other than pursuant to the Registration Statement, as defined in
Section 11.2(b) of the Purchase Agreement, the Purchaser shall give written
notice to the Company of its intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer
in sufficient detail, and shall, if requested by the Company, be
accompanied by either (a) a written opinion of legal counsel who shall be
reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to
the effect that the proposed transfer of the Warrant Shares may be effected
without registration under the Securities Act or under any applicable state
or other securities laws or (b) a "no-action" letter from the staff of the
Securities and Exchange Commission to the effect that the distribution of
such securities without registration will not result in a recommendation by
the Staff of the Securities and Exchange Commission that action be taken
with respect thereto, whereupon the Purchaser shall be entitled to transfer
such Warrant Shares in accordance with the terms of the notice delivered to
the Company. Each certificate evidencing the Warrant Shares transferred as
provided above shall bear the appropriate restrictive legend set forth in
Section 4.3 above, except that such certificate shall not bear such
restrictive legend if the opinion of counsel or "no-action" letter referred
to above is to the further effect that such legend is not required in order
to comply with any provisions of the Securities Act.
ARTICLE 5. REGISTRATION RIGHTS
The Warrant Shares issuable hereunder are entitled to the benefits of
certain registration rights set forth in Section 11 of the Purchase
Agreement.
ARTICLE 6. MISCELLANEOUS
1. Notices. Notices or demands relating to this Warrant shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows, or telexed, telecopied, or delivered by overnight or
other courier:
If to the Company: PixTech, Inc.
Avenue Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx xx Xxxxxxx
00000 Xxxxxxx Xxxxxx
Telephone: 000 000 0000 0000
Telecopy: 011 334 4229 0509
If to the Warrantholder: 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
or such other address as may be provided by one party to the other in
writing.
2. Successors and Assigns. (a) All the covenants and provisions
of this Warrant by or for the benefit of the Company or the Warrantholder
shall bind and inure to the benefit of their respective successors and
assigns hereunder and this Warrant may be freely assigned; provided that
(i) this Warrant, together with all other Warrants issued pursuant to the
Asset Purchase Agreement may not be held by greater than fifty (50)
entities or individuals in the aggregate, and (ii) the assignor shall
execute a Form of Assignment as attached hereto as Exhibit B. Any
assignment of this Warrant other than in compliance with this Section 6.2
shall be null and void.
(b) If requested by the Company, any such Form of Assignment
shall be accompanied by either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company, addressed to the Company
and reasonably satisfactory in form and substance to the Company's counsel,
to the effect that the proposed transfer of this Warrant may be effected
without registration under the Securities Act or under any applicable state
or other securities laws or (ii) a "no-action" letter from the staff of the
Securities and Exchange Commission to the effect that the distribution of
such securities without registration will not result in a recommendation by
the Staff of the Securities and Exchange Commission that action be taken
with respect thereto, whereupon the Warrantholder shall be entitled to
transfer such Warrant in accordance with the terms of the notice delivered
to the Company.
3. Governing Law. This Agreement and the Warrants, and all
questions relating to the interpretation, construction and enforceability
of this Agreement, shall be governed in all respects by the substantive
laws of the State of Delaware, without regard to the conflicts of law rules
of the State of Delaware.
4. Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or
supplemented, other than by a written instrument executed by the Company
and the Warrantholder.
5. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein
shall not be in any way impaired thereby, it being intended that all of the
rights and privileges of the Warrantholder shall be enforceable to the
fullest extent permitted by law.
6. Notice of Capital Changes. In case:
(i) the Company shall declare any dividend or distribution
(whether payable in cash, securities, assets or otherwise) payable to the
holder of its Common Stock;
(ii) there shall be any Reorganization of the Company; or
(iii) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give the holder
of this Warrant written notice, in the manner set forth in Section 5.1, of
the date on which a record shall be taken for such dividend or distribution
or for determining stockholders entitled to vote upon such Reorganization,
dissolution, liquidation or winding up and of the date when any such
transaction shall take place, as the case may be. Such written notice
shall be given at least thirty (30) days prior to the closing of the
transaction in question and not less than twenty (20) days prior to the
record day in respect thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
duly executed and delivered, all as of the date and year first above
written.
PIXTECH, INC.
By: /s/ Xxxx Xxx Grand-Xxxxxxx
Name: Xxxx Xxx Grand-Xxxxxxx
Title: President and
Chief Executive Officer
WARRANTHOLDER
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Corporate Vice President
and Director Finance, AECG
EXHIBIT A SUBSCRIPTION AGREEMENT
(To be executed if holder desires to
exercise the Warrant)
To PIXTECH, INC.
1. Check Box that Applies:
The undersigned hereby elects to purchase ______ shares of
Common Stock of pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full.
The undersigned hereby elects to convert the attached warrant
into _________ shares of Common Stock of PixTech, Inc. pursuant to the
terms of the attached Warrant.
2. Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
(Name)
(Address)
Dated: , 19 .
WARRANTHOLDER
By:
Name:
Title:
EXHIBIT B FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _______________________ the right represented by the within
Warrant to purchase ______ shares of Common Stock of PixTech, Inc. to which
the within Warrant relates, and appoints _________________ as its Attorney
to transfer such right on the books of PixTech, Inc. with full power of
substitution in the premises.
Dated:
______________________________
(Signature must conform to name of
holder as specified on the face of
this Warrant)
Signed in the presence of:
___________________________
