Exhibit 2.1
FIRST AMENDMENT
dated as of February 29, 2000
TO THE
COMMON STOCK PURCHASE AGREEMENT
by and between
PIXTECH, INC.,
and
the PURCHASERS IDENTIFIED ON SCHEDULE A THERETO
dated as of October 6, 1999
This First Amendment (the "Amendment") to the Common Stock Purchase
Agreement dated as of October 6, 1999 (the "Agreement") among 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 the purchaser identified on Schedule A thereto,
is made among PixTech, United Microelectronics Corporation ("UMC") and Unipac
Optoelectronics Corporation ("Unipac" and, together with UMC, the "Purchasers").
Capitalized terms not otherwise defined in this Amendment shall have the
meanings assigned to them in the Agreement.
In consideration of the promises and of the covenants herein contained,
the parties hereto mutually agree as follows:
1. That Section 3 of the Agreement be, and hereby is, amended and restated to
read in its entirety as follows:
"Delivery of the Shares at the Closing. The closing of the purchase and
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sale of the Shares (the "Closing") shall occur no later than five business days
after the date of this Agreement or at such other time and date and at a place
to be agreed upon by PixTech and the Purchasers (the "Closing Date"). Subject to
the terms and conditions of this Agreement, at the Closing, each Purchaser shall
pay to PixTech an amount in cash or by wire transfer equal to the amount set
forth opposite each such Purchaser's name on Schedule A hereto and PixTech shall
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deliver to each Purchaser one or more stock certificates registered in the name
of such purchaser, or in such nominee name(s) as designated by such Purchaser,
representing the number of Shares being purchased by such Purchaser. Subject to
the terms hereof, PixTech and the Purchasers agree that there shall be one
subsequent closing of the transactions contemplated by this Agreement (the
"Subsequent Closing"), which shall be held at a time and date and at a place to
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be agreed upon (the "Subsequent Closing Date"), for the sale of Shares on the
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same terms and conditions set forth above to one or more investors. PixTech may
schedule the Subsequent Closing at its discretion, but no later than February
29, 2000. Investors who acquire Shares at the Subsequent Closing shall be
included as a "Purchaser" hereunder, execute a counterpart of this Agreement
and, at the Subsequent Closing, Schedule A hereto shall be amended to reflect
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the Purchasers in such Subsequent Closing."
2. That a new Section 7.3 be added to the Agreement be, to read in its entirety
as follows:
"7.3. PixTech Stockholder Approval. PixTech shall have received the
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approval of its stockholders (i) to amend its Restated Certificate of
Incorporation to increase the authorized shares of Common Stock thereunder and
(ii) as may be required by the rules of the Nasdaq
National Market to consummate the transactions hereunder (the "PixTech
Stockholder Approval")."
3. That Section 10 of the Agreement be, and hereby is, amended and restated to
read in its entirety as follows:
"SECTION 10. Standstill Agreement.
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10.1 Certain Definitions. Unless the context otherwise
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requires, the following terms, for all purposes of this Section 10, shall have
the meanings specified in this Section 10.1:
Affiliate shall mean any entity which controls, is controlled by
or is under common control with a Purchaser.
Outstanding Voting Stock of PixTech, or another entity as the
context requires, shall mean (i) the Common Stock or other securities of PixTech
(or such other entity) then outstanding and (ii) any other securities
convertible into Common Stock of PixTech (or such other entity) then
outstanding, having the power to vote on any matter brought before shareholders
at a meeting or by written consent, other than securities having such power only
upon the happening of a contingency which has not yet occurred.
Voting Power shall mean the number of votes entitled to then be
cast by the Outstanding Voting Stock of PixTech at any election of directors of
PixTech.
Voting Stock shall mean the Common Stock outstanding, assuming the
exercise or conversion of all outstanding securities convertible into or
exercisable or exchangeable for Common Stock and any other securities issued by
PixTech having the power to vote in the election of directors of PixTech other
than securities having such power only upon the happening of a contingency which
has not yet occurred.
10.2 Prohibited Acquisitions. Each Purchaser agrees that,
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unless it has obtained the prior written consent of PixTech, it will not:
(a) directly or indirectly acquire beneficial
ownership of any Voting Stock, any securities convertible
into or exchangeable for Voting Stock, or any other right to
acquire Voting Stock (except, in any case, by way of stock
dividends or other distributions or offerings made available
to holders of any Voting Stock generally), without the
written consent of a majority of PixTech's Board of
Directors, if the effect of such acquisition would be to
increase the Voting Power of all Voting Stock then
beneficially owned by a Purchaser and its Affiliates, or
which such Purchaser and its Affiliates have a right to
acquire, to an aggregate number of shares having Voting
Power in excess of the total Voting Power held by such
Purchaser and its Affiliates immediately after the Closing
or any Subsequent Closing; provided that a Purchaser will
not be obligated to dispose of any Voting Stock if the
aggregate percentage of the total Voting Power of PixTech
represented by Voting Stock beneficially owned by a
Purchaser or which a Purchaser has a right to acquire is
increased as a result of a recapitalization of PixTech or
after the date of this Agreement or any other action taken
by PixTech or its affiliates; or
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(b) initiate or encourage any person to initiate any
"election contest" relating to the election of directors of
PixTech, as such terms are defined in Regulation 14A under
the Exchange Act.
10.3 Mergers, Tender Offers or Similar Transactions. Each
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Purchaser agrees that, for a period of five (5) years following the Closing
Date, it will not initiate or encourage another person to initiate a proposal,
without the prior approval of PixTech's Board of Directors, regarding a business
combination or similar transaction with, or a change of control of, PixTech or
to make a tender offer for shares of PixTech's Common Stock or other Voting
Stock.
10.4 Notice of Purchases. Without limiting the restrictions in
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Section 10.2 herein, each Purchaser shall notify PixTech as to such Purchaser's
acquisition of additional shares of Voting Stock, or rights thereto within two
(2) days after such acquisitions, regardless of whether such transaction is
otherwise required to be reported under law. Such notice shall be made in
accordance with Section 11.1 herein.
10.5 No Voting Arrangements. Without PixTech's prior written
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consent, no Purchaser shall deposit any shares of Voting Stock in a voting trust
or subject any Voting Stock to any arrangement or agreement with respect to the
voting of such Voting Stock other than pursuant to the provisions of this
Agreement.
10.6 No Partnership. No Purchaser shall join a partnership,
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limited partnership, syndicate or other group, or otherwise act in concert with
any third person for the purpose of acquiring, holding or disposing of Voting
Stock.
10.7 Prohibited Transfer. Any purchase which causes a Purchaser
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to be in violation of the terms of Section 10.2 above ("Prohibited Acquisition")
shall not be effected by PixTech and shall be voidable at the option of PixTech
by its giving written notice to the transferor, his transferee and such
Purchaser.
10.8 Affiliates of Each Purchaser. Each Purchaser represents to
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PixTech that there is no Affiliate of such Purchaser, other than an Affiliate
which is itself a Purchaser, which, as of the date of this Agreement, owns of
record or beneficially any (a) Common Stock or other Voting Stock of PixTech, or
(b) any other securities convertible or exchangeable (with or without the
payment of additional consideration) into Voting Stock of PixTech. Each
Purchaser covenants to PixTech that, if at any time while this Section 10 is in
effect, any Affiliate of such Purchaser becomes or intends to become the
beneficial owner, as defined in regulations promulgated by the Securities and
Exchange Commission, of any Common Stock or Voting Stock of PixTech, or any
securities convertible or exchangeable into Voting Stock, such Purchaser will,
whether prior to such ownership if possible, or, if not possible, as soon as
practicable after such ownership, cause such Affiliate to agree to be bound by
Section 10 of this Agreement.
10.9 Equitable Remedies. Each Purchaser agrees that irreparable
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damage would occur if any provision of this Section 10 were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that PixTech shall be entitled to an injunction or injunctions to prevent
breaches of this Section 10 and to enforce specifically the terms and provisions
hereof in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which it may be entitled at law
or equity.
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Each Purchaser agrees to waive and hereby waives any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
10.10 Term. Except as otherwise expressly provided herein, the
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provisions of this Section 10 shall terminate and be of no further force and
effect upon the date ten years after the Subsequent Closing Date.
4. That Schedule A of the Agreement be, and hereby is, amended and restated to
read in its entirety as Schedule A attached hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed in counterparts by their duly authorized representatives as of the day
and year first above written.
PIXTECH, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: President and CEO
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UNIPAC OPTOELECTRONICS CORPORATION
By: /s/ X. Xxxx
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Name: Xxxxxx X.X. Xxxx
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Title: Chairman
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The undersigned agrees to the terms of this First Amendment and hereby
represents and warrants to, and covenants with, PixTech as to the matters set
forth in Section 5 of the Agreement.
UNITED MICROELECTRONICS CORPORATION
By: /s/ X. Xxxx
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Name: Xxxxxx X.X. Xxxx
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Title: Chairman
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Schedule A
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Name and Address of Purchaser Purchase Price Number of Shares
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Unipac Optoelectronics Corporation $20,000,000 12,427,146
No. 5 Li Hsin Road VI
Science Based Industrial Park
Xxxx Xxx City Taiwan R.O.C.
Tel: 000 0 000-0000
Fax: 000 0 000-0000
United Microelectronics Corporation $15,000,000 9,320,359
2F, XX. 00 XXX 0, Xxxxxx X. XX.,
Xxxxxx, Xxxxxx, X.X.X.
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