EXHIBIT 1
ACQUISITION AGREEMENT*
dated as of
March 19, 1999
between
MICRON TECHNOLOGY, INC.
and
PIXTECH, INC.
relating to the purchase and sale
of
Micron's Display Division Business
* CERTAIN CONFIDENTIAL INFORMATION
IN THIS EXHIBIT HAS BEEN OMITTED AND
SEPARATELY FILED WITH
THE COMMISSION. CONFIDENTIAL
TREATMENT REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS................................................ 1
SECTION 1.1. Definitions........................................... 1
ARTICLE II PURCHASE AND SALE OF DISPLAY DIVISION BUSINESS............ 7
SECTION 2.1. Purchase and Sale.................................... 7
SECTION 2.2. Excluded Assets...................................... 7
SECTION 2.3. Assumed Liabilities.................................. 7
SECTION 2.4. Excluded Liabilities................................. 7
SECTION 2.5. Display Division Purchase Consideration.............. 7
SECTION 2.6. Assignment of Contracts and Rights................... 8
ARTICLE III......................................................... 8
ARTICLE IV CLOSING.................................................. 8
SECTION 4.1. Closing............................................. 8
ARTICLE V REPRESENTATIONS AND WARRANTIES OF MICRON.................. 9
SECTION 5.1. Corporate Existence and Power....................... 9
SECTION 5.2. Corporate Authorization............................. 9
SECTION 5.3. Governmental Authorization.......................... 10
SECTION 5.4. Noncontravention.................................... 10
SECTION 5.5. Required Consents................................... 10
SECTION 5.6. Absence of Certain Changes.......................... 10
SECTION 5.7. Material Contracts.................................. 11
SECTION 5.8. Licenses and Permits................................ 12
SECTION 5.9. Litigation.......................................... 13
SECTION 5.10. Properties......................................... 13
SECTION 5.11. Environmental Matters.............................. 13
SECTION 5.12. Purchase for Investment............................ 14
SECTION 5.13. Accredited Investor................................ 14
SECTION 5.14. Exempt from Registration; Restricted Securities.... 14
SECTION 5.15. Legends............................................ 14
SECTION 5.16. Employees.......................................... 15
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PIXTECH................ 15
SECTION 6.1. Corporate Existence and Power....................... 15
SECTION 6.2. Corporate Authorization............................. 15
SECTION 6.3. Governmental Authorization.......................... 15
SECTION 6.4. Noncontravention.................................... 16
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TABLE OF CONTENTS
(continued)
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SECTION 6.5. Required Consents................................... 16
SECTION 6.6. SEC Filings......................................... 16
SECTION 6.7. Capitalization...................................... 18
SECTION 6.8. Valid Issuance of Securities........................ 18
SECTION 6.9. Compliance with Securities Laws..................... 18
SECTION 6.10. Litigation......................................... 18
SECTION 6.11. Finders' Fees...................................... 19
SECTION 6.12. Full Disclosure.................................... 19
SECTION 6.13. Investment Company Act............................. 19
SECTION 6.14. No Investment Advisor Affiliation.................. 19
SECTION 6.15. Possession of Intellectual Property................ 19
SECTION 6.16. Possession of Licenses and Permits................. 19
SECTION 6.17. Taxes.............................................. 20
ARTICLE VII COVENANTS OF MICRON WITH RESPECT TO ACQUIRED BUSINESS... 20
SECTION 7.1. Conduct of the Acquired Business.................... 20
SECTION 7.2. Access to Information, Confidentiality.............. 21
SECTION 7.3. Notices of Certain Events........................... 21
SECTION 7.4. Covenant Not to Compete............................. 22
SECTION 7.5. Transferred Employees............................... 22
ARTICLE VIII COVENANTS OF PIXTECH................................... 22
SECTION 8.1. Stockholder Approval................................ 22
SECTION 8.2. Access to Information; Confidentiality.............. 23
SECTION 8.3. Notices of Certain Events........................... 23
SECTION 8.4. Cooperation......................................... 23
ARTICLE IX COVENANTS OF MICRON AND PIXTECH.......................... 23
SECTION 9.1. Commercially Reasonable Efforts;
Further Assurances................................. 24
SECTION 9.2. Certain Filings..................................... 24
SECTION 9.3. Public Announcements................................ 24
SECTION 9.4. Required Consents................................... 24
SECTION 9.5. Display Division Personnel.......................... 25
SECTION 9.6. Display Division Financing Arrangements............. 26
SECTION 9.7. Tax matters......................................... 27
ARTICLE X LICENSED INTELLECTUAL PROPERTY............................ 28
SECTION 10.1. Licensed Intellectual Property..................... 28
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TABLE OF CONTENTS
(continued)
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ARTICLE XI CONDITIONS TO CLOSING.................................... 29
SECTION 11.1. Conditions to Obligations of Micron and PixTech.... 29
SECTION 11.2. Conditions to Obligations of Micron................ 29
SECTION 11.3. Conditions to Obligations of PixTech............... 30
ARTICLE XII SURVIVAL; INDEMNIFICATION............................... 31
SECTION 12.1. Survival........................................... 31
SECTION 12.2. Indemnification.................................... 31
SECTION 12.3. Procedures......................................... 32
SECTION 12.4. Calculation of Damages............................. 33
SECTION 12.5. Assignment of Claims............................... 33
SECTION 12.6. Exclusivity........................................ 33
ARTICLE XIII TERMINATION............................................ 33
SECTION 13.1. Grounds for Termination............................ 33
SECTION 13.2. Effect of Termination.............................. 34
ARTICLE XIV MISCELLANEOUS........................................... 34
SECTION 14.1. Notices............................................ 35
SECTION 14.2. Amendments and Waivers............................. 36
SECTION 14.3. Expenses........................................... 36
SECTION 14.4. Successors and Assigns............................. 36
SECTION 14.5. Governing Law...................................... 36
SECTION 14.6. Counterparts; Third Party Beneficiaries............ 36
SECTION 14.7. Entire Agreement................................... 36
SECTION 14.8. Captions........................................... 36
SECTION 14.9. Disclosure Schedules............................... 36
Schedules and Exhibits
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Schedule 1.1-A Acquired Assets
Schedule 1.1-B Assumed Contracts
Schedule 1.1-C Excluded Liabilities
Schedule 9.6 Secured Assets
Exhibit A Intellectual Property License
Exhibit B Investor Rights Agreement
Exhibit C Lease Agreement
Exhibit D PixTech Warrant Agreement
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ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT, dated as of March 19, 1999, is between Micron
Technology, Inc., a Delaware corporation ("Micron"), and PixTech, Inc., a
Delaware corporation ("PixTech").
W I T N E S S E T H :
WHEREAS, Micron desires to sell to PixTech and PixTech desires to purchase
from Micron substantially all of the assets of Micron's Display Division
Business, upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) The following terms, as used herein, have the following meanings:
"Acquired Assets" means all of Micron's right, title and interest in (i)
the assets relating primarily or solely to the Display Division Business located
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Boise, Idaho and which are more
particularly described on Schedule 1.1-A to this Agreement, and (ii) all of
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Micron's rights under the Assumed Contracts.
"Acquired Business" means the Acquired Assets and the Assumed Liabilities.
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with such Person.
For purposes of this definition, "control" when used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Ancillary Agreements" means the Lease Agreement, the Patent Cross License
Agreement, the Micron Noncompete Agreement, the PixTech Warrant, the Investor
Rights Agreement, the Micron Guaranty, the PixTech Security Agreement and the
Consulting Agreement, and each other document or agreement delivered by Micron
or PixTech in connection with this Agreement.
"Assumed Contracts" means those contracts, agreements, leases, commitments
and sales and purchase orders of Micron relating to the Display Division
Business listed on Schedule 1.1-B to this Agreement.
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"Assumed Liabilities" means those debts, obligations, contracts and
liabilities of Micron of related to or arising out of the conduct of the Display
Division Business listed on Schedule 1.1-C to this Agreement.
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"BancBoston" means BancBoston Leasing, Inc.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended on or prior to the date hereof, and any rules
or regulations promulgated thereunder.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consulting Agreement" means the consulting agreement among Micron, PixTech
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in form and substance reasonably satisfactory to Micron,
PixTech and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, containing, among other terms, the terms contained
in Schedule 9.5.
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"DARPA" means the United States Defense Advance Research Projects Agency.
"DARPA Contract" means the agreements, as amended, between Micron and DARPA
relating to the development of a field emission display for use in an M1A2 tank
(Contract Nos. DABT 63-97-C-0001, DAB 63-94-C-0012, DAAB 07-97-C-J033 and DABT
63-93-C-0025).
"Display Division Business" means Micron's worldwide operations relating to
its Display Division, including the development, manufacture and sale of field
emission displays.
"Display Division Financing Agreements" means (i) the Security Agreement
dated February 21, 1997 by and between Micron Display Technology, Inc. and
BancBoston, the Promissory Note #1, dated February 21, 1997 by Micron Display
Technology, Inc. in favor of BancBoston, and the Assumption Agreement dated
December 30, 1997 by and between BancBoston and Micron; and (ii) the Amended and
Restated Promissory Note H-1D dated October 31, 1997 by Micron in favor of
▇▇▇▇▇▇, the Amended and Restated Master Security Agreement dated October 31,
1997 by and between Micron and ▇▇▇▇▇▇, and the Assumption Agreement dated
October 31, 1997, by and between Micron and ▇▇▇▇▇▇.
"Environmental Laws" means any and all statutes, laws, regulations and
rules, in each case as in effect on the date hereof, that have as their
principal purpose the protection of human health, safety and the environment.
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"Excluded Liabilities" means those debts, obligations, contracts and
liabilities of Micron other than Assumed Liabilities listed on Schedule 1.1-C to
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this Agreement.
"Hazardous Substance" means (i) any chemicals, materials or substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes, " " toxic substances," "toxic pollutants," "hazardous air
pollutants," "contaminants," "toxic chemicals," "toxic," "hazardous chemicals,"
"extremely hazardous substances," "pesticides," "oil" or related materials as
defined in any applicable Environmental Law or (ii) any petroleum or petroleum
products, oil, natural or synthetic gas, radioactive materials, asbestos-
containing materials, urea formaldehyde foam insulation, and radon.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Financial, Inc.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended.
"Intellectual Property" means all rights arising out of: (i) patents,
pending patent applications and patent invention disclosures for which patent
applications have not yet been filed ("Patents"); (ii) trade secrets and know
how ("Trade Secrets"); (iii) trademarks, servicemarks and applications for
registration of such ("Trademarks"); (iv) copyrights, copyright registrations
and applications for registration ("Copyrights"); and (v) mask works, mask work
registrations and applications for such registration ("Mask Works"). "Non-
Patent Intellectual Property," as used in Section X shall consist of rights
arising out of the subject matter of forgoing categories (ii) through (v).
"Investor Rights Agreement" means the investor rights agreement
substantially in the form attached hereto as Exhibit A.
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"Lease Agreement" means the lease agreement substantially in the form
attached hereto as Exhibit B with respect to the real property and premises
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located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"Licensed Intellectual Property" means the Intellectual Property licensed
to PixTech pursuant to Section X herein.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest or other encumbrance in respect of such
property or asset.
"Material Adverse Effect" means (i) as to Micron, a material adverse effect
on the business, results of operations or financial condition of the Acquired
Business, taken as whole, except any such effect resulting from or arising in
connection with (x) this Agreement or the transactions contemplated hereby or
(y) changes in economic, regulatory or political conditions, and (ii) as to
PixTech, a material adverse effect on the business, results of operations or
financial condition, of
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PixTech, taken as whole, except any such effect resulting from or arising in
connection with (x) this Agreement or the transactions contemplated hereby or
(y) changes in economic, regulatory or political conditions.
"Micron Guaranty" means the guaranty or other credit support that may be
offered by Micron in favor of the lenders under the Display Division Financing
Agreements on terms required by such lenders and acceptable to Micron.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"Patent Cross License Agreement" means the patent cross license agreement
in the form attached hereto as Exhibit C.
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"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PixTech Closing Market Price"" means $1.825.
"PixTech Warrant Agreement" means the warrant agreement substantially in
the form attached hereto as Exhibit D.
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"Required Consents" means the Micron Required Consents and the PixTech
Required Consents.
"SEC" means the Securities and Exchange Commission or any successor agency.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shares" means the shares of PixTech Common Stock issued as part of the
Display Division Purchase Consideration and the PixTech Common Stock Purchase
Consideration.
"Small Area Display Business" means Micron's field emission display
business relating to flat panel screens of 0.55 inch or less diagonal size.
"Subsidiary" means a corporation, company or other entity:
(a) more than fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are, now or hereafter, owned or controlled by a party
hereto or such third party, but such
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corporation, company or other entity shall be deemed to be a Subsidiary
only so long as such ownership or control exists; or
(b) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association, but
more than fifty percent (50%) of whose ownership interest representing the
right to make the decisions for such corporation, company or other entity
is now or hereafter owned or controlled by a party hereto or such third
party (regardless of whether such right to make decisions is exercised or
delegated to another), but such corporation, company or other entity shall
be deemed to be a Subsidiary only so long as such ownership or control
exists.
"Tax" means any tax, impost, license, fee, charge, levy, rate, penalty or
other assessment (including, without limitation, any sales, use, income, gross
receipts, net income, bulk sale, franchise, excise, property, and valorem, motor
vehicle, custom, duty, payroll, employment, environmental, net worth, capital,
withholding, occupancy, value-added gains and transfer taxes, any similar tax
and including all interest, penalties, or additions thereto) imposed or asserted
by any governmental authority, whether or not disputed.
"Tax Return" means any return, declaration, report, claim for refund,
information statement relating to Taxes including any schedule attached thereto
and any amendment thereto.
"Transaction Agreements" means this Agreement and the Ancillary Agreements.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
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Term Section
Claim 12.3
Closing 4.1
Damages 12.2
Display Division Purchase Consideration 2.4
GAAP 6.6(b)
Indemnified Party 12.3
Indemnifying Party 12.3
Initial Period 9.6
Micron Disclosure Schedule Article V
Micron Required Consents 5.5
Nondisclosure Agreement 7.2
PixTech Balance Sheet Date 6.6(b)
PixTech Common Stock 2.4(a)
PixTech Disclosure Schedule Article VI
PixTech Required Consents 6.5
PixTech SEC Documents 6.6(a)
PixTech Security Agreement 9.6
PixTech Stockholder Approval 6.5
PixTech Taxes 9.7(b)
PixTech 10-K 6.6(a)
PixTech 10-Q 6.6(a)
PixTech Warrant 2.5(b)
Permits 5.8
Permitted Liens 5.10
Post-Closing Period 9.7(b)
Potential Contributor 12.5
Price Allocation 9.7(a)
Straddle Period 9.7(b)
Third Party Claim 12.3
Transferred Employee 9.5(a)
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ARTICLE II
PURCHASE AND SALE OF DISPLAY DIVISION BUSINESS
SECTION 2.1. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Closing, PixTech agrees to purchase from
Micron, and Micron agrees to sell, convey, transfer, assign and deliver to
PixTech, the Acquired Assets, subject to all Permitted Liens.
SECTION 2.2. Excluded Assets. PixTech expressly understands and
agrees that the Acquired Assets shall not include any cash, real property or
intellectual property (whether owned by Micron or licensed to Micron from third
parties) relating to the Display Division Business, except (in the case of cash)
to the extent expressly listed on Schedule 1.1-A to this Agreement and (in the
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case of licensed intellectual property) to the extent expressly provided
pursuant to Section 9.4. Without limiting the foregoing, PixTech expressly
understands and agrees that while the Display Division Business may presently
benefit from agreements between Micron and third parties related to the
licensing of intellectual properties (whether such licenses pertain specifically
to the Display Division Business or to Micron's business and operations
generally), Micron's rights under such licensing agreements constitute Excluded
Assets.
SECTION 2.3. Assumed Liabilities. Upon the terms and subject to the
conditions of this Agreement and the Ancillary Agreements and effective at the
time of the Closing, PixTech shall unconditionally assume and agree to pay,
satisfy and discharge when due in accordance with their terms, and PixTech shall
fully and forever hold Micron and its Affiliates harmless against, any and all
Assumed Liabilities.
SECTION 2.4. Excluded Liabilities. All Excluded Liabilities shall
remain the exclusive liabilities, obligations and commitments of Micron.
However, to the extent necessary, in the reasonable opinion of Micron, PixTech
shall use commercially reasonable efforts to cooperate with Micron in the
defense of any claim or action with respect to any Excluded Liability; provided,
that promptly after written request from PixTech, Micron shall reimburse PixTech
for reasonable expenses (including attorneys fees) actually incurred by PixTech
in cooperating with Micron on such defense.
SECTION 2.5. Display Division Purchase Consideration. The purchase
consideration for the Acquired Assets (the "Display Division Purchase
Consideration") shall consist of the following:
(a) 7,133,562 duly authorized, validly issued, fully paid and
nonassessable shares of common stock, $0.01 par value of PixTech ("PixTech
Common Stock") as such number shall be adjusted prior to the Closing Date to
reflect any stock split, stock dividend, recapitalization or other similar
events; and
(b) A warrant of PixTech (the "PixTech Warrant"), to purchase
310,000 shares of PixTech Common Stock at $2.25313 (which number shall be
adjusted prior to the Closing Date to reflect any stock split, stock dividend,
recapitalization or other similar events), exercisable at any time
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up to the second anniversary of the Closing Date, which warrants will be issued
pursuant to the PixTech Warrant Agreement.
The Display Division Purchase Consideration shall be paid as provided in
Section 4.1(a).
SECTION 2.6. Assignment of Contracts and Rights. This Agreement
shall not constitute an agreement to assign any agreement or any right
thereunder if an attempted assignment, without the consent of a third party,
would constitute a breach or in any way adversely affect the rights of PixTech
or Micron thereunder in any material respect. If such consent is not obtained,
Micron and PixTech will cooperate in a mutually agreeable arrangement under
which PixTech would obtain the benefits and assume the obligations thereunder in
accordance with this Agreement. Without limiting the foregoing, Micron and
PixTech agree that PixTech shall not be required to assume the DARPA Contract
that is an Assumed Contract (Contract No. DABT 63-97-C-0001) unless (i) PixTech
will be subject to the same terms and conditions under such DARPA Contract as
are now applicable to Micron and (ii) such DARPA Contract shall be amended to
provide that PixTech's current base plate technology may be used to manufacture
displays required to be delivered to DARPA under such DARPA Contract.
ARTICLE III
[INTENTIONALLY LEFT BLANK]
ARTICLE IV
CLOSING
SECTION 4.1. Closing. The Closing (the "Closing") of the purchase
and sale of the Acquired Assets and the assumption of the Assumed Liabilities
hereunder shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as soon as possible, but in no event
later than 3 business days, after satisfaction or waiver of the conditions set
forth in Article X, or at such other time or place as Micron and PixTech may
agree. At the Closing:
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(a) PixTech shall deliver to Micron:
(i) a certificate representing the Shares described in Section
2.5(a) in connection with the Display Division Purchase
Consideration; and
(ii) the PixTech Warrant;
(b) Micron shall assign and transfer to PixTech all Acquired Assets
by delivery of a General Assignment and ▇▇▇▇ of Sale in form and
substance reasonably satisfactory to Micron and PixTech, duly
executed by Micron;
(c) PixTech shall assume from Micron the due payment, performance
and discharge of the Assumed Liabilities in accordance with the
terms of this Agreement; and
(d) Micron and PixTech shall also deliver the certificates and
other contracts, documents and instruments required to be
delivered under Article X, including the Ancillary Agreements.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MICRON
Except as disclosed in the disclosure schedule (the "Micron Disclosure
Schedule") dated the date hereof and delivered by Micron to PixTech in
connection with this Agreement, Micron represents and warrants to PixTech that:
SECTION 5.1. Corporate Existence and Power. Micron is a corporation
duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and is qualified to do business as a
foreign corporation and is in good standing under the laws of the
State of Idaho.
SECTION 5.2. Corporate Authorization. Micron has the requisite
corporate power and authority to enter into this Agreement and the
other Transaction Agreements to which it is a party and to perform its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the other Transaction Agreements to which it is a
party, and performance by Micron of its obligations hereunder and
thereunder, have been duly authorized by all necessary corporate
action on the part of Micron. This Agreement constitutes, and the
Ancillary Agreements to which it is a party, when executed and
delivered by Micron, will constitute, valid and legally binding
obligations of Micron, enforceable against the Micron in accordance
with their respective terms, except (i) as may be limited by (x)
applicable bankruptcy, insolvency, reorganization or others laws of
general application relating to or affecting the enforcement of
creditors' rights generally and (y) the effect of rules of law
governing the availability of equitable remedies and (ii) as rights to
indemnity or
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contribution may be limited under federal or state securities laws or
by principles of public policy thereunder.
SECTION 5.3. Governmental Authorization. No consent, approval, order
or authorization of, or registration qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
Micron is required in connection with the consummation of the transactions
contemplated by this Agreement, except: (i) compliance with any applicable
requirements of the HSR Act; (ii) compliance with any applicable requirements
of the 1934 Act; and (iii) as may be necessary in connection with any DARPA
Contracts that are Assumed Contracts.
SECTION 5.4. Noncontravention. Except as set forth on Schedule 5.4
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to the Micron Disclosure Schedule, the execution, delivery and performance by
Micron of each Transaction Agreement to which it is a party and the consummation
of the transactions contemplated thereby do not and will not (i) violate the
Certificate of Incorporation or Bylaws of Micron, (ii) assuming compliance with
the governmental matters referred to in Section 5.3, violate in any material
respect any applicable law, rule, regulation, judgment, injunction, order or
decree, (iii) assuming the obtaining of all Required Consents, constitute a
default under, or give rise to any right of termination, cancellation or
acceleration of any right or obligation of Micron or to a loss of any benefit to
which Micron is entitled under any provision of any material agreement or other
instrument binding upon Micron, or (iv) result in the creation or imposition of
any Lien on any Acquired Asset except for any Permitted Liens, except, in the
case of clauses (ii) and (iii), individually and in the aggregate, as would not
have a Material Adverse Effect.
SECTION 5.5. Required Consents. Schedule 5.5 to the Micron
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Disclosure Schedule sets forth each material agreement or other instrument
binding upon Micron, including those listed in Schedule 1.1-B to this Agreement,
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requiring a consent or other action by any Person (the "Micron Required
Consents") as a result of the execution, delivery and performance of this
Agreement, except such consents or actions as would not, individually or in the
aggregate, have a Material Adverse Effect if not received or taken by the
Closing.
SECTION 5.6. Absence of Certain Changes. Except as disclosed in
Schedule 5.6 to the Micron Disclosure Schedule, since January 31,
------------
1999, the Acquired Business has been conducted in the ordinary course
consistent with past practices by Micron and there has not been:
(a) any acquisition by Micron relating to assets or business material
to the Acquired Business, other than in the ordinary course of
business consistent with past practices and as contemplated by
this Agreement;
(b) any sale, lease or disposition by Micron relating to assets or
business material to the Acquired Business, other than in the
ordinary course of business consistent with past practices and as
contemplated by this Agreement;
(c) any (i) employment, deferred compensation, severance,
retirement or other similar agreement (or any amendment to any
such existing agreement) entered into with any director, officer
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or employee of Micron engaged primarily in the operations of the
Acquired Business, (ii) grant of any severance or termination pay
to any director, officer or employee of Micron engaged primarily
in the operations of the Acquired Business or (iii) change in
compensation or other benefits payable to any director, officer
or employee of Micron engaged primarily in the operations of the
Acquired Business pursuant to any severance or retirement plans
or policies thereof, in each case other than in the ordinary
course of business consistent with past practices.
(d) any transaction by Micron relating solely to material assets or
business of the Acquired Business except in the ordinary course
of business as conducted as of January 31, 1999 and consistent
with past practices;
(e) any destruction of, damage to or loss of any assets material to
Micron relating to the Acquired Business taken as a whole
(whether or not covered by insurance);
(f) any material revaluation by Micron of any material assets of
the Acquired Business;
(g) any amendment or termination of any material contract,
agreement or license relating solely to material assets or
business of the Acquired Business to which Micron is a party or
by which it is bound except for amendments in the ordinary course
of business that are not reasonably likely to have a Material
Adverse Effect or scheduled expiration pursuant to the terms of
the contract, agreement or license and not as a result of any
breach;
(h) any loan by Micron relating to material assets or business of
the Acquired Business to any person or entity, or incurring by
Micron of any indebtedness (except for indebtedness incurred in
the ordinary course under existing credit lines or arrangements
set forth in Micron Disclosure Schedule) relating solely to
material assets or business of the Acquired Business;
(i) any waiver or release of any material right or claim of Micron
relating solely to material assets or business of the Acquired
Business, including any write-off or other compromise of any
account receivable of Micron relating solely to material assets
or business of the Acquired Business, other than in the ordinary
course of business and consistent with past practices;
(j) any agreement by Micron to do any of the things described in the
preceding clauses (a) through (i) (other than this Agreement).
SECTION 5.7. Material Contracts. Except for the contracts disclosed
in Schedule 5.7 to the Micron Disclosure Schedule, with respect to the
------------
Acquired Business primarily or solely (and not with respect to any other
business of Micron generally), Micron is not a party to or bound by:
(a) any partnership, joint venture or other similar agreement or
arrangement;
(b) any agreement relating to the acquisition or disposition of any
business (whether by merger, sale of stock, sale of assets or
otherwise); or
-11-
(c) any agreement that limits the freedom of Micron, with respect
to the Acquired Business only, to compete in any line of business
or with any Person or in any area.
(d) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of
$25,000 and not cancelable without penalty;
(e) any mortgages, indentures, loans or credit agreements, security
agreements relating to a material amount of assets or other
agreements or instruments relating to the borrowing of money or
extension of credit;
(f) any other agreement, contract, commitment or lease which
requires annual payments by Micron under any such agreement,
contract, commitment or lease of $25,000 or more in the aggregate
and is not cancelable without penalty within thirty (30) days;
(g) any consulting arrangements and contracts for professional,
advisory and other services involving payments of more than
$25,000 in any year, including contracts under which Micron
performs services for others;
(h) any other material contracts made other than in the usual or
ordinary course of business of Micron to which Micron is a party
or under which Micron or any of its Subsidiaries is obligated.
Except as disclosed on Schedule 5.7 to the Micron Disclosure Schedule, Micron
------------
has not breached, violated or defaulted under, or received notice that it has
breached, violated or defaulted under, any of the terms or conditions of any of
the agreements, contracts or commitments to which Micron is a party or by which
it is bound of the type described in clauses (a) through (h) above in such a
manner as would permit any other party to cancel or terminate any Assumed
Contract, or would permit any other party to seek damages, in either case, which
is reasonably likely to have a Material Adverse Effect.
SECTION 5.8. Licenses and Permits. Schedule 5.8 to the Micron
------------
Disclosure Schedule correctly describes each governmental license, franchise,
permit, certificate, approval or other similar authorization of Micron, other
than as contemplated by the Patent Cross License Agreement, that is necessary to
operate the Acquired Business as it is currently operated, except those that the
absence of which would not reasonably be likely to have a Material Adverse
Effect (the "Permits") together with the name of the government agency or
entity issuing such Permit. Except as set forth on Schedule 5.8 to the
------------
Micron Disclosure Schedule, (i) the Permits are valid and in full force and
effect, (ii) Micron is not in default, and no condition exists that with notice
or lapse of time or both would constitute a default, under the Permits, (iii)
none of the Permits will be terminated or impaired or become terminable, in
whole or in part, as a result of the transactions contemplated hereby and (iv)
upon consummation of such transactions, PixTech will acquire all of the right,
title and interest in all the Permits except for those that are not transferable
in accordance with their terms, which are listed on Schedule 5.8 to the Micron
------------
Disclosure Schedule and those that are the subject of the Patent Cross License
Agreement.
-12-
SECTION 5.9. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Micron, threatened against or
affecting, Micron relating to the Acquired Business or any of Micron's
properties relating to the Acquired Business, before any court or arbitrator or
any governmental body, agency or official which is reasonably likely to have a
Material Adverse Effect or which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement.
SECTION 5.10. Properties.
(a) Micron has good title to all material property and assets
included in the Acquired Assets.
(b) Schedule 5.10(b) to the Micron Disclosure Schedule lists all
----------------
facts presently known to Micron that may affect the operation of the Acquired
Assets. PixTech acknowledges that PixTech is acquiring the Acquired Assets AS
IS, and that MICRON MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR AS TO
ANY MATTER, INCLUDING AS TO THE MERCHANTABILITY OF ANY OF THE ACQUIRED ASSETS OR
THEIR FITNESS FOR A PARTICULAR PURPOSE.
(c) None of such property or assets is subject to any Lien, except:
(i) Liens disclosed on Schedule 5.10(c) to the Micron Disclosure
----------------
Schedule;
(ii) Liens for taxes, assessments and similar charges that are
not yet due or are being contested in good faith;
(iii) mechanic's, materialman's and similar charges that are not
yet due or are being contested in good faith;
(iv) Liens arising or incurred in the ordinary course of
business; or
(v) other Liens which do not materially interfere with the
present use of, or materially detract from the value of, any
property or assets that are material to the Acquired
Business (paragraphs (i)-(iv) of this Section 5.10 are,
collectively, the "Permitted Liens").
SECTION 5.11. Environmental Matters. Except as set forth on Schedule
--------
5.11 to the Micron Disclosure Schedule and except for matters that would not
----
reasonably be expected to have a Material Adverse Effect, to the knowledge of
Micron, with respect to the Acquired Business:
(a) The Acquired Business has not violated, and is not in violation
of, any applicable Environmental Law and no notice, request for information,
order, complaint or penalty has been received by Micron, and there are no
judicial, administrative or other actions, suits or proceedings pending or
threatened against Micron which allege a violation of any Environmental Law with
respect to the Acquired Business;
-13-
(b) Micron has obtained or caused to be obtained all environmental
permits necessary for the operation of the Acquired Assets to comply with all
applicable Environmental Laws and Micron is in compliance with the terms of such
permits and other applicable Environmental Laws;
(c) Neither Micron nor the Acquired Business has unlawfully
discharged, disposed of or released, as those terms are defined in any
Environmental Law, any Hazardous Substance on the Acquired Assets, or on any
property now or previously owned, leased or used by the Acquired Business
(including, without limitation, soils, surface and ground water, air, sewer
systems and buildings) except for such discharge, disposal or release as would
not have a material adverse effect on the Acquired Business; and
(d) There are no underground storage tanks for Hazardous
Substances, active or abandoned, present at the Acquired Assets, or at any
property now or previously owned, leased or used by the Acquired Business, and
Micron has not received any written notice of the presence of any such tanks, to
the extent that any removal or remediation associated therewith would have a
material adverse effect on such property.
SECTION 5.12. Purchase for Investment. Micron is acquiring the Shares
and the PixTech Warrant for investment for its own account and not with a view
to, or for sale in connection with, any distribution thereof.
SECTION 5.13. Accredited Investor. Micron is an "accredited investor"
as that term is defined in Rule 501(a)(8) of Regulation D as promulgated by the
SEC under the Securities Act.
SECTION 5.14. Exempt from Registration; Restricted Securities. Micron
understands that the sale of the Shares and the PixTech Warrant, and the shares
of PixTech Common Stock issuable upon exercise of the PixTech Warrant, will not
be registered under the Securities Act on the basis that the sale provided for
in this Agreement is exempt from registration under of the Securities Act, and
that the reliance of PixTech on such exemption is predicated in part on Micron's
representations set forth in this Agreement. Micron understands that the Shares
and the PixTech Warrant, and the shares of PixTech Common Stock issuable upon
exercise of the PixTech Warrant, are restricted securities within the meaning of
Rule 144 under the Act, and must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available.
SECTION 5.15. Legends. Micron agrees that the Shares and the PixTech
Warrant, and the shares of PixTech Common Stock issuable upon exercise of the
PixTech Warrant, will bear legends and be subject to the restrictions on
transfer as provided in the Stockholder Rights Agreement. In addition, Micron
agrees that PixTech may place stop transfer orders with its transfer agents with
respect to such instruments. The appropriate portion of the legend shall be
removed in accordance with the provisions of the Stockholder Rights Agreement
and the stop transfer orders shall be removed promptly upon delivery to PixTech
of such satisfactory evidence as reasonably may be required by PixTech that such
stop orders are not required to ensure compliance with the Securities Act.
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SECTION 5.16. Employees. Schedule 5.16 to the Micron Disclosure
-------------
Schedule sets forth, solely with respect to the employees listed on
Schedule 9.5 to the PixTech Disclosure Schedule, each such employee's title,
------------
years of service, current annual compensation, accrued and unpaid compensation,
vacation and other amounts owed to such employee and the number and type of
stock options held by each such employee (including the exercise price, vesting
schedule and expiration date of each such option).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PIXTECH
Except as disclosed in the disclosure schedule (the "PixTech Disclosure
Schedule") dated the date hereof and delivered by PixTech to Micron in
connection with this Agreement, PixTech represents and warrants to Micron that:
SECTION 6.1. Corporate Existence and Power. PixTech is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted except those that the absence of which would not have
a Material Adverse Effect and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification is necessary, except for those jurisdictions where the failure to
be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect.
SECTION 6.2. Corporate Authorization. PixTech has the requisite
corporate power and authority to enter into this Agreement and the other
Transaction Agreements to which it is a party and to perform its obligations
hereunder and thereunder. Except as listed in Schedule 6.2 to the PixTech
-------- ---
Disclosure Schedule, the execution and delivery of this Agreement and the other
Transaction Agreements to which it is a party, and performance by PixTech of its
obligations hereunder and thereunder, have been duly authorized by all necessary
corporate action on the part of PixTech. This Agreement constitutes, and the
Ancillary Agreements to which it is a party, when executed and delivered by
PixTech, will constitute, valid and legally binding obligations of PixTech,
enforceable against the PixTech in accordance with their respective terms,
except (i) as may be limited by (x) applicable bankruptcy, insolvency,
reorganization or others laws of general application relating to or affecting
the enforcement of creditors' rights generally and (y) the effect of rules of
law governing the availability of equitable remedies and (ii) as rights to
indemnity or contribution may be limited under federal or state securities laws
or by principles of public policy thereunder.
SECTION 6.3. Governmental Authorization. No consent, approval, order
or authorization of, or registration qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
PixTech is required in connection with the consummation of the transactions
contemplated by this Agreement, except: (i) compliance with any applicable
requirements of the HSR Act; (ii) compliance with any applicable requirements of
the 1934 Act; and (iii) the filing of such qualifications or filings under the
Securities Act and the regulations thereunder and all applicable state
securities laws as may be required in connection with the transactions
contemplated by this Agreement, including in connection with the issuance of the
Shares and the
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PixTech Warrant, and the PixTech Stockholder Approval. All such qualifications
and filings will have been made or be effective on the Closing.
SECTION 6.4. Noncontravention. The execution, delivery and
performance by PixTech of each Transaction Agreement to which it is a party and
the consummation of the transactions contemplated thereby do not and will not
(i) assuming receipt of the PixTech Stockholder Approval, violate the Restated
Certificate of Incorporation or Bylaws of PixTech, (ii) assuming compliance with
the governmental matters referred to in Section 6.3, violate in any material
respect any applicable law, rule, regulation, judgment, injunction, order or
decree, (iii) constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of PixTech
or to a loss of any benefit to which PixTech is entitled under any provision of
any material agreement or other instrument binding upon PixTech, or (iv) result
in the creation or imposition of any Lien on any the assets of PixTech, except,
in the case of clauses (ii) and (iii), individually and in the aggregate, as
would not have a Material Adverse Effect.
SECTION 6.5. Required Consents. Schedule 6.5 to the PixTech
------------
Disclosure Schedule sets forth each material agreement or other instrument
binding upon PixTech requiring a consent or other action by any Person (the
"PixTech Required Consents") as a result of the execution, delivery and
performance of this Agreement, except such consents or actions as would not,
individually or in the aggregate, have a Material Adverse Effect if not received
or taken by the Closing. The PixTech Required Consents include the affirmative
vote of a majority of the holders of PixTech Common Stock for (a) the increase
of the Authorized Shares of Common Stock of PixTech as set forth in PixTech's
Restated Certificate of Incorporation, (b) an increase in the number of shares
authorized and reserved for issuance pursuant to PixTech's 1993 Stock Option
Plan and (c) the issuance of the PixTech Common Stock to Micron as contemplated
by this Agreement (collectively, the "PixTech Stockholder Approval"). PixTech
has, prior to the date of this Agreement, provided Micron with a copy of the
amendment to PixTech's Restated Certificate of Incorporation that will be the
subject of the PixTech Stockholder Approval.
SECTION 6.6 SEC Filings.
(a) Reports. PixTech has furnished or made available to Micron prior
-------
to the date hereof copies of its Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 (the "PixTech Form 10-K"), its Quarterly Reports on Form
10-Q for the fiscal quarters ended March 31, 1998, June 30, 1998 and September
30, 1998 (the "PixTech Form 10-Q's") and its Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 (the "PixTech 1997 Form 10-K"), and all
other registration statements, reports and proxy statements filed by PixTech
with the SEC on or after December 31, 1998 (the PixTech Form 10-K, the PixTech
Form 10-Q's, the PixTech 1997 Form 10-K and such registration statements,
reports and proxy statements are collectively referred to herein as the "PixTech
SEC Documents"). Each of the PixTech SEC Documents, as of the respective date
thereof (or if amended or superseded by a filing prior to the closing date of
this Agreement, then on the date of such filing), did not, and each of the
registration statements, reports and proxy statements filed by PixTech with the
SEC after the date hereof and prior to the Closing will not, as of the date
thereof (or if amended or superseded by a filing prior to the date of this
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Agreement, then on the date of such filing), contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. PixTech is not a party to any material contract, agreement
or other arrangement which was required to have been filed as an exhibit to the
PixTech SEC Documents that was not so filed.
(b) Financial Statements. The SEC Documents include PixTech's
--------------------
audited financial statements for the fiscal year ended December 31, 1998 (the
"PixTech Balance Sheet Date"). Since the PixTech Balance Sheet Date, PixTech has
duly filed with the SEC all registration statements, reports and proxy
statements required to be filed by it under the Exchange Act and the Securities
Act. The audited and unaudited consolidated financial statements of PixTech
included in the SEC Documents filed prior to the date hereof fairly present, in
conformity with generally accepted accounting principles ("GAAP") (except as
permitted by Form 10-Q) applied on a consistent basis (except as may be
indicated in such financial statements or the notes thereto), the consolidated
financial position of PixTech and its consolidated Subsidiaries as at the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject to normal year-end audit adjustments in the case of
unaudited interim financial statements).
(c) Absence of Certain Changes Since PixTech Balance Sheet. Since
------------------------------------------------------
the PixTech Balance Sheet Date, except as disclosed in or contemplated by the
PixTech SEC Documents, the business and operations of PixTech have been
conducted in the ordinary course consistent with past practice, and there has
not been:
(i) any declaration, setting aside or payment of any dividend or
other distribution of the assets of PixTech with respect to
any shares of capital stock of PixTech or any repurchase,
redemption or other acquisition by PixTech or any Subsidiary
of PixTech of any outstanding shares of PixTech capital
stock;
(ii) any damage, destruction or loss, whether or not covered by
insurance, except for such occurrences that have not
resulted, and are not expected to result, in a Material
Adverse Effect;
(iii) any waiver by PixTech of a valuable right or of a material
debt owed to it, except for such waivers that have not
resulted and are not expected to result, in a Material
Adverse Effect;
(iv) any material change or amendment to, or any waiver of any
material rights under a material contract or arrangement by
which PixTech or any of its assets or properties is bound or
subject, except for changes, amendments or waivers that are
expressly provided for or disclosed in this Agreement or
that have not resulted, and are not expected to result, in a
Material Adverse Effect;
(v) any change by PixTech in its accounting principles, methods
or practices or in the manner it keeps its accounting books
and records, except any such change required by a change in
GAAP; and
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(vi) any other event or condition of any character, except for
such events and conditions that have not resulted, either
individually or collectively, in a Material Adverse Effect.
(d) S-3 Eligibility. 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.
SECTION 6.7. Capitalization. The authorized and outstanding capital
stock of PixTech as of the date hereof, without giving effect to the
transactions contemplated by this Agreement, the authorized capital stock of
PixTech consists of (a) 30,000,000 shares of common stock, $0.01 par value per
share, of which 15,150,329 shares were validly issued and outstanding, fully
paid and non-assessable as of ▇▇▇▇▇ ▇, ▇▇▇▇, (▇) 500,000 shares of Series E
Preferred Stock, $0.01 par value per share, of which 367,269 shares are validly
issued and outstanding, fully paid and non-assessable, and (c) 500,000 shares of
undesignated preferred stock, $0.01 par value per share, none of which are
issued and outstanding. All outstanding shares of capital stock have been duly
authorized, and all such issued and outstanding shares have been validly issued
and are fully paid and nonassessable. Schedule 6.7 to the PixTech Disclosure
------------
Schedule or the PixTech SEC Documents include information regarding equity
securities reserved for issuance to officers, directors, employees or
independent contractors or affiliates of PixTech under PixTech's employee stock
option and purchase plans and upon conversion of convertible securities. Except
as set forth in Schedule 6.7 to the PixTech Disclosure Schedule or the PixTech
------------
SEC Documents, there are no other equity securities, options, warrants, calls,
rights, commitments or agreements of any character to which PixTech is a party
or by which it is bound obligating PixTech to issue, deliver, sell, repurchase
or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any
shares of the capital stock of PixTech or obligating PixTech to grant, extend or
enter into any such equity security, option, warrant, call, right, commitment or
agreement.
SECTION 6.8. Valid Issuance of Securities. Following receipt of the
PixTech Stockholder Approval, the Shares and the shares of PixTech Common Stock
issuable upon exercise of the PixTech Warrant will be duly authorized and
reserved and, when delivered to and paid for by Micron in accordance with the
provisions of this Agreement and (in the case of the shares of PixTech Common
Stock issuable upon exercise of the PixTech Warrant) the Warrant Agreement, will
be validly issued, fully paid and non-assessable.
SECTION 6.9. Compliance with Securities Laws. Assuming the accuracy
of the representations made by Micron in Section 5 hereof, the Shares and the
shares of PixTech Common Stock issuable upon exercise of the PixTech Warrant
will be issued to Micron in compliance with applicable exemptions from (i) the
registration and prospectus delivery requirements of the Securities Act and (ii)
the registration and qualification requirements of all applicable securities
laws of the states of the United States.
SECTION 6.10 Litigation. Except as set forth in Schedule 6.10 to the
-------------
PixTech Disclosure Schedule, there is no action, suit, investigation or
proceeding pending against, or to the knowledge of PixTech, threatened against
or affecting PixTech before any court or arbitrator or any governmental
-18-
body, agency or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement.
SECTION 6.11. Finders' Fees. Except as set forth in Schedule 6.11 to
-------------
the PixTech Disclosure Schedule, there is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of PixTech who might be entitled to any fee or commission from Micron
upon consummation of the transactions contemplated by this Agreement.
SECTION 6.12. Full Disclosure. The information contained in this
Agreement, the PixTech Disclosure Schedule and the PixTech SEC Documents with
respect to the business, operations, results of operations and financial
condition of PixTech, and the transactions contemplated by this Agreement are
true and complete in all material respects and do not omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
SECTION 6.13. 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.
SECTION 6.14. 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.
SECTION 6.15. Possession of Intellectual Property. Except as
disclosed in reports filed with the SEC pursuant to the Exchange Act, 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, except as disclosed in reports filed with
the SEC pursuant to the Exchange Act, 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.
SECTION 6.16. 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
-19-
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.
SECTION 6.17. Taxes. PixTech has (a) filed or caused to be filed all
Tax Returns which, to the knowledge of PixTech, are required to be filed by it,
and paid all Taxes shown to be due and payable on said returns or on any Tax
assessments made against it or any property and all other Taxes imposed on it by
any governmental authority in the jurisdictions in which it operates, except for
any such Taxes and assessments (i) the amount of which is not individually or in
the aggregate material to the business or operations of PixTech or (ii) 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, and (b) provided adequate accruals in all material respects in
accordance with GAAP in its financial statements for any taxes that have not
been paid, whether or not shown on as being due on any returns.
ARTICLE VII
COVENANTS OF MICRON WITH RESPECT TO ACQUIRED BUSINESS
Micron agrees that:
SECTION 7.1. Conduct of the Acquired Business. From the date hereof
until the Closing Date, Micron shall conduct the Acquired Business in the
ordinary course consistent with past practice, (except to the extent Micron
believes it is necessary or prudent to reduce or limit the scale of the Acquired
Business as contemplated by this Agreement) and use reasonable efforts to
preserve intact the Acquired Assets and relationships with third parties. From
the date hereof to the Closing Date, Micron shall consult with PixTech from time
to time concerning any proposed activities that could reasonably be expected to
have a material effect on the Acquired Business. Without limiting the generality
of the foregoing, from the date hereof until the Closing Date, except as
disclosed on Schedule 7.1 to the Micron Disclosure Schedule, Micron will not,
------------
with respect to the Acquired Business:
(a) encumber or license (except pursuant to existing contracts or
commitments), or sell, lease, license or otherwise dispose of,
any material assets or property, in each case except in the
ordinary course consistent with past practice;
(b) enter into any partnership arrangements, joint development
agreements or strategic alliances;
(c) acquire or agree to acquire by merging or consolidating with,
or by purchasing any equity interest in or a material portion of
the assets of, or by any other manner, any business or any
corporation, partnership, association or other business
organization or division thereof, or otherwise acquire or agree
to acquire any material amount of operating assets;
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(d) incur any indebtedness for borrowed or guarantee any such
indebtedness (or enter any other guarantee, keep-well, capital
maintenance or other similar agreement);
(e) make any individual capital expenditure or commitment, or series
of related capital expenditures or commitments, outside the
ordinary course of business, exceeding $25,000; or
(f) engage in any activities to expand the Small Area Display
Business.
SECTION 7.2. Access to Information, Confidentiality. From the date
hereof until the Closing Date, subject to the provisions of the Nondisclosure
Agreement dated January 26, 1999 between Micron and PixTech (the "Nondisclosure
Agreement") and any other confidentiality, nondisclosure or applicable agreement
to which PixTech is bound, Micron will (i) give PixTech, its counsel, financial
advisors, auditors and other authorized representatives reasonable access to the
offices, properties, books and records of the Acquired Business and to the books
and records of Micron relating to the Acquired Business, (ii) furnish, for the
Acquired Business, to PixTech, its counsel, financial advisors, auditors and
other authorized representatives such financial and operating data and other
information relating to the Acquired Business as such Persons may reasonably
request and (iii) instruct its employees, counsel and financial advisors, to
cooperate with PixTech in its investigation of the Acquired Business. Any
investigation pursuant to this Section shall be conducted in such manner as not
to interfere unreasonably with the conduct of the Acquired Business.
Notwithstanding the foregoing, PixTech shall not have access to confidential
information that relates to Micron as a whole, or to personnel records relating
to the Acquired Business relating to individual performance or evaluation
records except as to those individuals identified on Schedule 9.5 to the PixTech
------------
Disclosure Schedule, medical histories or other information which in Micron's
good faith opinion is sensitive or the disclosure of which could subject Micron
to risk of liability.
SECTION 7.3. Notices of Certain Events. Micron shall promptly notify
PixTech of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement;
(b) any notice or other communication from any government or
regulatory agency or authority in connection with the
transactions contemplated by this Agreement;
(c) any actions, suits, claims, investigations or proceedings
commenced relating to the Acquired Business that, if pending on
the date of this Agreement, would have been required to have been
disclosed pursuant to Section 5.9; and
(d) any written notice or communication received from a material
vendor or supplier that such vendor or supplier will no longer
supply goods or services to Micron relating to the Acquired
Business, or from any Transferred Employee that such employee is
terminating his employment with Micron.
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SECTION 7.4. Covenant Not to Compete. Micron covenants and agrees
that for a period of three (3) years following the Closing Date, Micron shall
not, directly or indirectly, anywhere in the world (the "Territory")
manufacture, fabricate or assemble field emission displays. Micron agrees that
this restriction on competition shall be deemed to be a series of separate
covenants not-to-compete for each year within the three-year period of non-
competition and separate covenants not-to-compete for each state within the
United States and each country in the world. If any court of competent
jurisdiction shall determine the foregoing covenant to be unenforceable with
respect to the term thereof or the scope of the subject matter or geography
covered thereby, then such covenant shall nonetheless be enforceable by such
court against such other party or upon such shorter term or within such lesser
scope as may be determined by the court to be reasonable and enforceable.
Notwithstanding the foregoing, Micron may: (i) acquire all or a controlling
interest in, or all or a majority of the assets of, any Person engaged in the
manufacture, fabrication or assembly of field emission displays, provided,
however, that Micron shall use commercially reasonable efforts to promptly
divest itself of or shutdown that portion of the operation of such Person
engaged in the manufacture, fabrication or assembly of field emission displays;
(ii) acquire up to 5% of the outstanding capital stock or other ownership
interest in any Person engaged principally or otherwise in the manufacture,
fabrication or assembly of field emission displays having a class of equity
securities listed on any national or international securities exchange; (iii)
buy field emission displays for its own internal use; and (iv) purchase field
emission displays from another Person and resell such displays so long as Micron
did not assist in the manufacture, fabrication or assembly of the purchased and
resold field emission displays. The mere licensing of patents or other
intellectual property by Micron, without more, shall not be deemed to be
"assistance" in the manufacture, fabrication or assembly of field emission
displays.
SECTION 7.5. Transferred Employees. Micron covenants and agrees that
(a) without PixTech's prior consent, it shall not increase the salary payable to
any Transferred Employee prior to the Closing Date, and (b) as of the Closing
Date, the only employees of the Display Division Business shall be the
Transferred Employees. Micron hereby waives, effective on and after the Closing
Date, any breach that would result under any agreement made by any Transferred
Employee in favor of Micron not to compete with Micron, its business activities
or otherwise, solely insofar as such breach arises by virtue of such Transferred
Employee's employment by PixTech after the Closing Date.
ARTICLE VIII
COVENANTS OF PIXTECH
PixTech agrees that:
SECTION 8.1. Stockholder Approval. PixTech will prepare and file
with the SEC a proxy statement to its stockholders for the 1999 annual meeting
of PixTech's stockholders to be held on or about April 27, 1999. Such proxy
statement shall solicit to the PixTech Stockholder Approval. Such proxy
statement will comply in all material respects with all applicable requirements
of law and the rules and regulations promulgated thereunder. Prior to filing
such proxy statement or any amendment thereto with the SEC, PixTech will afford
Micron reasonable time to review and comment on those portions of such proxy
statement or amendment that describe the transactions contemplated by this
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Agreement. Whenever any event occurs that is required to be set forth in an
amendment or supplement to such proxy statement, PixTech will promptly inform
Micron of such occurrence and shall make such filings with the SEC or other
appropriate governmental agencies and mail appropriate notice to its
stockholders. Such proxy statement will include the recommendation of the Board
of Directors of PixTech in favor of the Stockholder Approval (except that the
Board of Directors of PixTech may withdraw, modify or refrain from making such
recommendation to the extent that the Board determines, in good faith, after
consultation with outside legal counsel, that compliance with the Board's
fiduciary duties under applicable law would require it to do so).
SECTION 8.2. Access to Information; Confidentiality. Subject to the
provision of the Nondisclosure Agreement, PixTech will, with respect to the
Acquired Business, on and after the Closing Date, afford promptly to Micron and
its agents reasonable access to its properties, books, records, employees and
auditors as may be and to the extent necessary to permit Micron to determine any
matter relating to Micron's rights and obligations under this Agreement or with
respect to the Display Division Business for any period ending on or before the
Closing Date; provided that any such access by Micron shall not unreasonably
interfere with the conduct of the business of PixTech.
SECTION 8.3. Notices of Certain Events. PixTech shall promptly
notify Micron of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement;
(b) any notice or other communication from any government or
regulatory agency or authority in connection with the
transactions contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced relating to PixTech or the Acquired Business that, if
pending on the date of this Agreement, would have been required
to have been disclosed pursuant to Section 6.10.
(d) any action by the Board of Directors of PixTech to withdraw or
modify its approval of this Agreement or the transactions
contemplated hereby, or its recommendation to the stockholders of
PixTech to grant the PixTech Stockholder Approval.
SECTION 8.4. Cooperation. PixTech covenants and agrees to cooperate
with Micron as Micron may reasonably request, whether before, on or after the
Closing Date, to enable such DARPA Contracts to be audited by DARPA and "closed
out."
ARTICLE IX
COVENANTS OF MICRON AND PIXTECH
Micron and PixTech each agree that:
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SECTION 9.1. Commercially Reasonable Efforts; Further Assurances.
Subject to the terms and conditions of this Agreement, Micron and PixTech will
use their commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or desirable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement. Micron and PixTech agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement.
SECTION 9.2. Certain Filings. Micron and PixTech shall cooperate
with one another (i) in determining whether any action by or in respect of, or
filing with, any governmental body, agency, official or authority is required,
or any actions, consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement , including pursuant to the HSR Act
and (ii) in taking such actions or making any such filings, furnishing
information required in connection therewith and seeking timely to obtain any
such actions, consents, approvals or waivers.
SECTION 9.3. Public Announcements. The parties agree that the
initial press release to be jointly issued by the parties with respect to the
transactions contemplated by this Agreement shall be substantially and in all
material respects in the form heretofore agreed to by the parties, and shall be
released by the parties following the execution of this Agreement. The parties
agree to consult with each other before issuing any subsequent press release or
making any subsequent public statement with respect to this Agreement or the
transactions contemplated hereby.
SECTION 9.4. Required Consents. Each of Micron and PixTech shall use
its commercially reasonable efforts to obtain prior to the Closing the Micron
Required Consents and the PixTech Required Consents, respectively. Prior to the
Closing, PixTech shall cooperate with Micron in connection with Micron's
obtaining any Micron Required Consents, including the consent of the lenders
under the Financing Agreements to PixTech's assumption of liabilities
thereunder; and provided, however, that such cooperation of Micron and PixTech
hereunder shall not include any requirement of Micron or PixTech to expend
money, commence any litigation or offer or grant any accommodation (financial or
otherwise) to any third party. Without limiting the foregoing, with respect to
the consents listed in the list of "Miscellaneous Software Contracts -Transfers
Subject to Vendor Consent" set forth in Schedule 5.5 to the Micron Disclosure
Schedule, Micron will request that the applicable vendor consent to the
assignment of each such contract. If the applicable vendor gives its consent
unconditionally, then such contract shall be considered an Assumed Contract. If
the applicable vendor gives its consent conditioned upon the payment of any fee,
then Micron shall so notify PixTech, and if PixTech agrees within 10 days (or
such shorter period as the vendor may require) to pay such fee, then upon
payment of such fee, such contract shall be considered an Assumed Contract. If
the applicable vendor does not give its consent, or such consent is subject to
any condition other than the payment of a fee, then such contract shall not be
considered an Assumed Contract.
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SECTION 9.5. Display Division Personnel.
(a) Schedule 9.5 to the PixTech Disclosure Schedule identifies
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approximately 40 employees of Display Division (the "Transferred Employees") to
be offered employment by PixTech on terms substantially equivalent to the terms
of their employment by Micron, except that each Transferred Employees will
receive a salary from PixTech in an amount at least equal to the amount
specified for such Transferred Employee, as a percentage of such Transferred
Employee's current salary, in such Schedule. Micron agrees that it shall not
offer employment to any Transferred Employee for a period of one year after the
Closing Date. In addition, PixTech will establish a stock option pool in which
the Transferred Employees will receive stock options for a total of 600,000
shares of PixTech Common Stock. Schedule 9.5 to the PixTech Disclosure Schedule
------------
also identifies the number of PixTech stock options to be received by each
Transferred Employee from such stock option pool. The exercise price for the
stock options will be the lesser of (i) the PixTech Closing Market Price and (b)
the average closing price for PixTech Common Stock for the five trading days
ending three trading days prior to the date of grant.
(b) Micron shall establish a [*] bonus pool to be allocated among the
Transferred Employees who remain employed by PixTech as of the date which is six
months after the Closing Date. The amount of the bonus to which each Transferred
Employee will be entitled is set forth on Schedule 9.5 to the PixTech Disclosure
------------
Schedule. The scheduled bonus for any Transferred Employee who is not employed
by PixTech at the end of the six month period will not be paid from such bonus
pool, and such amount not paid shall not be used to increase the amount of any
other Transferred Employee's bonus payable from such bonus pool. The bonuses
will be payable by PixTech directly to the Transferred Employees, and Micron
will reimburse PixTech for the aggregate amount of such bonuses paid (not to
exceed [*] and to be paid in accordance with Schedule 9.5 to the PixTech
------------
Disclosure Schedule) within 10 business days after Micron receives evidence that
such bonuses were paid.
(c) On the Closing Date, and thereafter while employed by PixTech,
each Transferred Employee shall cease to be covered under Micron's employee
benefit plan and instead shall become covered under PixTech's employee benefit
plans. Micron and PixTech agree that PixTech shall provide or cause to be
provided to each Transferred Employee all notices required to be provided under
applicable law, except to the extent applicable law requires such notice to be
provided by Micron. Micron agrees to use commercially reasonable efforts to
assist PixTech in the transition of the Transferred Employees to coverage under
PixTech's employee benefit plan including, at PixTech's request, allowing
PixTech to hold, on a commercially reasonable basis, employee benefit plan open
enrollment meetings with the Transferred Employees at least thirty (30) days
prior to the Closing Date on Micron's premises.
(d) PixTech shall credit each Transferred Employee with all service
with Micron prior to the Closing Date and with all amounts paid to each such
employee prior to the Closing Date to the extent that service or pay is relevant
under any employee benefit plan of PixTech for purposes of determining
eligibility to participate, vesting and benefit accrual. PixTech shall also
provide Transferred Employees with credit under its medical and dental employee
benefit plans for deductible
[*] Confidential Information has been omitted and separately filed with the
Commission. Confidential treatment requested with respect to the omitted
portion.
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and co-payment amounts made by the Transferred Employees under Micron's employee
benefit plans prior to the Closing Date. Micron agrees to provide deductible and
co-payment information with respect to the Transferred Employees as soon as is
practicable following the Closing Date to effectuate such crediting of
deductibles and co-payment amounts. Micron agrees to provide PixTech with
service commencement date and prior compensation information with respect to
each Transferred Employee as soon as practicable after the date upon which this
Agreement is executed.
(e) Commencing on the date of this Agreement, Micron and PixTech
agree to cooperate fully with respect to the employment-related actions which
are necessary or reasonably desirable to accomplish the transactions
contemplated pursuant to this Agreement, including the provision of records and
information as each may reasonably request (including job titles, short and
long-term disability coverage, life insurance coverage, operator certification
and workers' compensation records and information) and the making of all
appropriate filings under the Law.
(f) With respect to Transferred Employees who are required to be
furnished a Form W-2 for the calendar year in which the Closing Date occurs,
PixTech and Micron agree to follow the "standard procedure" set forth in Revenue
Procedure 96-60 with respect to discharging their respective income and
employment tax withholding and reporting obligations with respect to such
employees.
(g) As promptly as practicable after the Closing Date, Micron shall
pay to the Transferred Employees all salary, overtime and other remuneration
earned, accrued and payable for all periods up to the Closing Date in a manner
consistent with Micron's policies for terminated employees.
SECTION 9.6. Display Division Financing Arrangements. In connection
with obtaining the consent of the lenders under the Display Division Financing
Agreements to PixTech's assumption of liabilities thereunder, PixTech shall use
its best efforts to cause Micron to be released from all liabilities thereunder,
including, but not limited to, refinancing the assumed debt on commercially
reasonable terms that are not necessarily comparable to the terms of the
Financing Arrangements. Micron agrees, however, that in the event that, despite
PixTech's best efforts, the lenders under the Financing Agreements do not agree
to Micron's release prior to the Closing, then the Micron Guaranty shall be
offered as credit support for the obligations of PixTech assumed thereunder. In
consideration for the Micron Guaranty, and as support for PixTech's
reimbursement obligations to Micron thereunder, PixTech shall grant in favor of
Micron a security interest in the assets identified in Schedule 9.6, which
security interest shall be evidenced by a security agreement in form and
substance satisfactory to Micron (the "PixTech Security Agreement"), together
with such financing statements and other filings as Micron may request to
perfect such security interest. The Micron Guaranty shall be without a fee for a
period of no longer than (x) six months from the Closing Date in the case of the
Display Division Financing Agreement with BancBoston and (y) ten months from the
Closing Date in the case of the Display Division Financing Agreement with ▇▇▇▇▇▇
(such six month and ten month periods are each, an "Initial Period").
Notwithstanding the foregoing, PixTech shall use its best efforts to cause the
Micron Guaranty to be released as soon as possible following the Closing Date.
In the event the Micron Guaranty is not released with respect to the Display
Division Financing Agreement with BancBoston or the Display Division Financing
Agreement with ▇▇▇▇▇▇, as
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the case may be, within the applicable Initial Period, PixTech shall pay a non-
refundable guaranty fee to Micron, payable in cash in U.S. dollars, in an amount
equal to 8% per annum times the maximum principal amount guaranteed under the
Micron Guaranty as of the last day of such month in respect of the Display
Division Financing Agreement with BancBoston or the Display Division Financing
Agreement with ▇▇▇▇▇▇, as applicable, payable on the first day of each month
(and based on a year of twelve months) in advance until termination of the
Micron Guaranty.
SECTION 9.7. Tax matters.
(a) Allocation. The parties hereto agree to allocate the Display Division
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Purchase Consideration (plus the all consideration attributable to the portion
of the Assumed Liabilities which are treated as purchase price for federal
income tax purposes) to each Acquired Asset in accordance with the applicable
provisions of Section 1060 of the Code (such election and allocation being
referred to herein as the "Price Allocation"). Without limiting the foregoing,
each party hereto agrees that the PixTech Warrant has the value specified in the
Price Allocation and represents a payment of such amount made as of the Closing
Date. Accordingly, each party hereto shall adopt and utilize such Price
Allocation for purposes of all Tax Returns filed by them and shall not
voluntarily take any position inconsistent with the foregoing in connection with
any examination of any Tax Return, any refund claim, any litigation proceeding
or otherwise. In the event that the foregoing is disputed by any taxing
authority, the party receiving notice of the dispute shall promptly notify the
other parties hereto of such dispute and the parties hereto shall consult with
each other concerning resolution of the dispute. Each party agrees to timely
Internal Revenue Service Form 8594 reflecting the Price Allocation with its
applicable federal Tax Return for the taxable year that includes the Closing
Date.
(b) Tax Returns. Micron shall prepare and file, or cause to be filed, all
-----------
Tax Returns for Micron for all periods which include the operations of the
Acquired Business or the ownership of the Acquired Assets for any period ending
on or before the Closing Date. Subject to the last sentence of this Section
9.7(b), Micron will make all payments required with respect to any such Tax
Return. PixTech shall prepare and file, or cause to be filed, all Tax Returns of
PixTech which include the operations of the Acquired Business or the ownership
of the Acquired Assets for all periods as to which Tax Returns are due (without
regard to extensions) after the Closing Date (other than for Taxes with respect
to periods for which the Tax Returns of Micron will include the operations of
the Acquired Business or the ownership of the Acquired Assets pursuant to the
second preceding sentence). PixTech will make all payments required with
respect to any such Tax Return; provided, however, that Micron will reimburse
PixTech concurrently therewith to the extent that any payment PixTech is making
relates to the operations of the Acquired Business or the ownership of the
Acquired Assets for any period ending on or before the Closing Date, or
otherwise relates to any Tax liability which is an Excluded Liability. For
purposes of this Section 9.7(b), in the case of any taxable period commencing on
or before the Closing Date and ending after the Closing Date, the portion of any
Tax that relates to any period on or before the Closing Date shall be (i) in the
case of a Tax that is not based on net income, gross income, sales, premiums or
gross receipts, the total amount of such Tax for the taxable period in question
multiplied by a fraction, the numerator of which is the number of days in the
portion of such taxable period ending on or before the Closing Date, and the
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denominator of which is the total number of days in such taxable period, and
(ii) in the case of a Tax that is based on any of net income, gross income,
sales, premiums or gross receipts, the Tax that would be due with respect to the
portion of such taxable period ending on or before the Closing Date if such
period were a separate taxable period, except that exemptions, allowances,
deductions or credits that are calculated on an annual basis (such as the
deduction for depreciation or capital allowances) shall be apportioned on a per
diem basis. In the event that Micron shall have properly filed a Tax Return
which includes a payment of Tax by Micron related to the operations of the
Acquired Business or the ownership of the Acquired Assets for any period
beginning after the Closing Date for which Micron cannot receive a refund,
PixTech shall reimburse Micron for such Tax (calculated in the same manner as
set forth in the immediately preceding sentence).
(c) Taxes. Micron will be responsible for and make all payments required
-----
with respect to, and will indemnify PixTech from and against, (i) any
liabilities of Micron for unpaid Taxes (with respect to the Acquired Business or
the ownership of the Acquired Assets, or otherwise) for the periods ending on or
prior to the closing Date, including without limitation any Tax for which Micron
is responsible under Section 9.7(b) hereof, and (ii) any liability for any
income, transfer, sales, use, or other similar Taxes arising in connection with
the consummation of the transactions contemplated by this Agreement. The
parties shall cooperate with each other to the extent reasonably requested and
legally permitted to minimize any such Taxes described in clause (ii) of the
preceding sentence.
(d) Cooperation. If Micron files any Tax Return which includes payment of
-----------
any Tax for which PixTech is responsible under this Section 9.7, PixTech shall
promptly reimburse Micron for such Taxes when such Tax Return is filed. If
PixTech files any Tax Return which includes payments of any Tax for which Micron
is responsible under this Section 9.7, Micron shall promptly reimburse PixTech
for such Taxes when such Tax Return is filed. PixTech and Micron shall timely
provide to each other all information and documents within their possession (or
their auditors, advisors or affiliates) and signatures and consents necessary
for each party to properly prepare and file the Tax Returns described in this
Section 9.7 or in connection with the determination of any Tax liability or any
audit, examination or proceeding. Each party hereto shall reasonably cooperate
(at their own expense) with the other party to obtain other information or
documents necessary or appropriate to prepare and file Tax Returns or elections
or necessary or appropriate in connection with the determination of any Tax
liability or any audit, examination or proceeding.
ARTICLE X
LICENSED INTELLECTUAL PROPERTY
SECTION 10.1. Licensed Intellectual Property. Micron grants to
PixTech a perpetual, royalty-free license, including the right to sublicense its
Subsidiaries, to all Non-Patent Intellectual Property used in the Display
Division Business, except that: (a) no license is granted under Intellectual
Property relating to Micron's process technology, equipment recipes and wafer
form probe and test used to manufacture and test single-crystal silicon-
substrate-based FED baseplates; (b) no license is granted to use the trademark
"MICRON" in any form or combination; and (c) no license is granted to any
Micron-originated or Micron-owned software, or to any documentation or materials
relating thereto.
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No license is granted to Micron Non-Patent Intellectual Property, except as
expressly provided herein, and no license is granted, either expressly or by
implication, if PixTech is in possession of, or later learns of or acquires
Micron Intellectual Property which is not within the scope of the license grant
above in the preceding paragraph of this Section. PixTech agrees to return any
such Micron Intellectual Property which is not Licensed Intellectual Property to
Micron, and agrees to take steps, where appropriate, to preserve the
confidentiality of any such information which is not manifestly public
information.
The license granted to PixTech under any Micron patents is governed
exclusively by the Patent License attached as Exhibit A to this Acquisition
Agreement, and the license granted under this Section does not grant any rights
under patents of Micron or under any patents which may issue to Micron in the
future. No sublicense granted under this Section shall be broader than the
license granted herein. Accordingly, no sublicense under this Section may
include or grant any rights, license or authority under any patent of Micron,
either now-issued or later-issued.
ARTICLE XI
CONDITIONS TO CLOSING
SECTION 11.1. Conditions to Obligations of Micron and PixTech. The
obligations of Micron and PixTech to consummate the purchase and sale of the
Acquired Assets and the assumption of the Assumed Liabilities, and the purchase
and sale of the Shares and PixTech Warrant, are subject to the satisfaction or
waiver of the following conditions.
(a) any applicable waiting period under the HSR Act relating to the
sale of the Acquired Assets and the issuance of the Shares shall
have expired or been terminated; and
(b) no provision of any applicable law or regulation and no
judgement, injunction, order or decree shall prohibit the
consummation of the Closing.
SECTION 11.2. Conditions to Obligations of Micron. The obligation of
Micron to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) the Ancillary Agreements, in form and substance reasonably
satisfactory to Micron, shall have been executed and delivered by
the parties thereto (other than Micron) and shall be in full
force and effect;
(b) PixTech shall have obtained the PixTech Stockholder Approval
and the waiver of Sumitomo Corporation as to Section 10.11 of the
Credit Agreement dated as of July 21, 1997 by and between PixTech
and Sumitomo Corporation, as referenced on Schedule 6.5 to the
------------
PixTech Disclosure Schedule;
(c) (i) PixTech shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or
prior to the Closing Date, (ii) the representations and
warranties of PixTech contained in this Agreement and in any
certificate or other writing delivered by
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PixTech pursuant hereto shall be true in all material respects at
and as of the Closing Date, as if made at and as of such date,
except for those representations and warranties that speak as of
a specified date, which shall be true in all material respects at
and as of such date, and (iii) Micron shall have received a
certificate signed by an executive officer of PixTech to the
foregoing effect;
(d) the terms of the Micron Guaranty shall be reasonably acceptable
to Micron;
(e) actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or
obtained, except for any such actions or filings the failure to
take, make or obtain would not reasonably be expected to have a
Material Adverse Effect as to Micron;
(f) the offer and sale of the Shares and the PixTech Warrant
pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act and the registration or
qualification requirements of all applicable state securities
laws;
(g) Micron shall have received an opinion on behalf of PixTech,
dated as of the Closing Date, from counsel to PixTech, in form
and substance reasonably satisfactory to Micron;
(h) Micron shall have received a copy of PixTech's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998, certified
by PixTech as fairly presenting, in conformity with GAAP applied
on a consistent basis (except as may be indicated in such
financial statements or the notes thereto), the consolidated
financial position of PixTech and its consolidated Subsidiaries
as at the date thereof and the consolidated results of their
operations and cash flows for the period then ended;
(i) Micron shall have been afforded an opportunity to review the
agreements to which PixTech is a party referred to in Section
2.8(ii) to the Patent Cross License Agreement; and
(j) Micron shall have received all documents it may reasonably
request relating to the existence of PixTech and the authority of
PixTech to enter into this Agreement and the Ancillary
Agreements, and to perform its obligations hereunder and
thereunder, all in form and substance reasonably satisfactory to
Micron.
SECTION 11.3. Conditions to Obligations of PixTech. The obligation of
PixTech to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) the Ancillary Agreements, in form and substance reasonably
satisfactory to PixTech, shall have been executed and delivered
by the parties thereto (other than PixTech) and shall be in full
force and effect;
(b) the PixTech Required Consents, including the PixTech
Stockholder Approval, shall have been obtained;
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(c) (i) Micron shall have performed in all material respects of
its obligations hereunder required to be performed by it on or
prior to the Closing Date, (ii) the representations and
warranties of Micron contained in this Agreement and in any
certificate or other writing delivered by Micron pursuant hereto
shall be true at and as of the Closing Date in all material
respects, as if made at and as of such date, except for those
representations and warranties that speak as of a specified date,
which shall be true in all material respects at and as of such
date, and (iii) PixTech shall have received a certificate signed
by an officer of Micron to the foregoing effect;
(d) actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or
obtained, except for any such actions or filings the failure to
take, make or obtain would not reasonably be expected to have a
Material Adverse Effect as to PixTech;
(e) PixTech shall have received an opinion on behalf of Micron, dated
as of the Closing Date, from counsel to Micron, in form and
substance reasonably satisfactory to PixTech;
(f) PixTech shall be reasonably satisfied that Micron shall have
ceased to engage in operations relating to the Small Area Display
Business;
(g) PixTech shall have received all documents it may reasonably
request relating to (i) the existence of Micron and the authority
of Micron to enter into this Agreement and the Ancillary
Agreements, and to perform its obligations hereunder and
thereunder and (ii) the conveyance of the Acquired Assets, all in
form and substance reasonably satisfactory to PixTech.
ARTICLE XII
SURVIVAL; INDEMNIFICATION
SECTION 12.1. Survival. The representations and warranties of the
parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith shall survive the
Closing until one year after the Closing Date, except for (a) any representation
or warranty concerning (i) the authority of either party to execute this
Agreement and the Ancillary Agreements, (ii) any environmental matters, which
representations and warranties shall survive indefinitely, and (b) any
representation or warranty concerning tax matters, which shall survive until the
expiration or lapse of the applicable statute of limitations. Notwithstanding
the preceding sentence, any representation or warranty in respect of which
indemnity may be sought under this Agreement shall survive the time at which it
would otherwise terminate pursuant to the preceding sentence, if notice of the
inaccuracy or breach thereof giving rise to such right of indemnity shall have
been given to the party against whom such indemnity may be sought prior to such
time.
SECTION 12.2. Indemnification.
(a) Micron hereby indemnifies PixTech and its Affiliates against and
agrees to hold each of them harmless from any and all damage,
loss, liability and expense (including, without limitation,
reasonable expenses of investigation and reasonable attorneys'
fees and expenses in connection with
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any action, suit or proceeding) ("Damages") incurred or suffered
by PixTech or any of its Affiliates arising out of (i) any
misrepresentation or breach of warranty made by or covenant of
Micron pursuant to this Agreement, or (ii) any Excluded
Liability; provided that (x) Micron shall not be liable under
this Section 12.2 unless the aggregate amount of Damages with
respect to all matters referred to in this Section 12.2(a)
exceeds $100,000 in the aggregate and then only to the extent of
such excess and (y) Micron's maximum liability under this Section
12.2(a) shall not exceed $7,000,000, and provided further that
the limitation set forth in clauses (x) and (y) shall not apply
to Damages in respect of Excluded Liabilities.
(b) PixTech hereby indemnifies Micron and its Affiliates against
and agrees to hold each of them harmless from any and all Damages
incurred or suffered by Micron or any of its Affiliates arising
out of (i) any misrepresentation or breach of warranty made by or
covenant of PixTech pursuant to this Agreement or (ii) any
Assumed Liability; provided that (x) PixTech shall not be liable
under this Section 12.2(b) unless the aggregate amount of Damages
with respect to all matters referred to in this Section 12.2
exceeds $100,000 in the aggregate and then only to the extent of
such excess and (y) PixTech's maximum liability under this
Section 12.2(b) shall not exceed $7,000,000, and provided further
that the limitation set forth in clauses (x) and (y) shall not
apply to Damages in respect of Assumed Liabilities.
SECTION 12.3. Procedures.
(a) The party seeking indemnification under Section 12.2 (the
"Indemnified Party") agrees to give prompt notice to the party against whom
indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or
the commencement of any suit, action or proceeding ("Claim") in respect of which
indemnity may be sought under such Section and will provide the Indemnifying
Party such information with respect thereto that the Indemnifying Party may
reasonably request. The failure to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder, except to the
extent such failure shall have prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the
defense of any Claim asserted by any third party ("Third Party Claim") and,
subject to the limitations set forth in this Section, shall be entitled to
control and appoint lead counsel for such defense, in each case at its expense.
(c) If the Indemnifying Party shall assume the control of the
defense of any Third Party Claim in accordance with the provisions of this
Section 12.3, (i) the Indemnifying Party shall obtain the prior written consent
of the Indemnified Party (which shall not be unreasonably withheld) before
entering into any settlement of such Third Party Claim, if the settlement does
not release the Indemnified Party from all liabilities and obligations with
respect to such Third Party Claim or the settlement imposes injunctive or other
equitable relief against the Indemnified Party and (ii) the Indemnified Party
shall be entitled to participate in the defense of such Third Party Claim and to
employ separate counsel of its choice for such purpose. The fees and expenses of
such separate counsel shall be paid by the Indemnified Party.
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(d) Each party shall cooperate, and cause their respective
Affiliates to cooperate, in the defense or prosecution of any Third Party Claim
and shall furnish or cause to be furnished such records, information and
testimony, and attend such conferences, discovery proceedings, hearing, trials
or appeals, as may be reasonably requested in connection therewith.
SECTION 12.4. Calculation of Damages.
(a) The amount of any Damages payable under Section 12.2 by the
Indemnifying Party shall be reduced by (i) any amounts recovered or recoverable
by the Indemnified Party under applicable insurance policies and (ii) any tax
benefit realized by the Indemnified Party arising from the incurrence or payment
of any such Damages.
(b) The Indemnifying Party shall not be liable under Section 12.2
for any consequential or punitive Damages or Damages for lost profits.
(c) Notwithstanding any other provision of this Agreement to the
contrary, if on the Closing Date the Indemnified Party knows of any information
that would cause on or more of the representations and warranties made by the
Indemnifying Party to be inaccurate as of the date made, the Indemnified Party
shall have not right or remedy after the Closing with respect to such inaccuracy
and shall be deemed to have waived its rights to indemnification in respect
thereof.
SECTION 12.5. Assignment of Claims. If the Indemnified Party receives
any payment from an Indemnifying Party in respect of any Damages pursuant to
Section 12.2 and the Indemnified Party could have recovered all or part of such
Damages from a third party (a "Potential Contributor") based on the underlying
Claim asserted against the Indemnifying Party, the Indemnified Party shall
assign such of its rights to proceed against the Potential Contributor as are
necessary to permit the Indemnifying Party to recover from the Potential
Contributor the amount of such payment.
SECTION 12.6. Exclusivity. Except as specifically set forth in this
Agreement, PixTech waives any rights and claims PixTech may have against Micron,
whether in law or in equity, relating to the Display Division Business. The
rights and claims waived by PixTech include, without limitation claims for
contribution or other rights of recovery arising out of or relating to any
Environmental Law, claims for breach of contract, breach of representation or
warranty, negligent misrepresentation and all other claims for breach of duty.
After the Closing, Section 12.2 will provide the exclusive remedy for any
misrepresentation, breach of warranty, covenant or other agreement arising out
of this Agreement or the transaction contemplated hereby.
ARTICLE XIII
TERMINATION
SECTION 13.1. Grounds for Termination. This Agreement maybe
terminated at any time prior to the Closing:
(a) by mutual written agreement of Micron and PixTech,
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(b) by either Micron or PixTech if the Closing shall not have been
consummated on or before May 20, 1999;
(c) by either Micron or PixTech if PixTech shall not have received
the PixTech Stockholder Approval at a meeting of its stockholders duly convened
therefor or at any adjournment thereof; or
(d) by either Micron or PixTech if consummation of the transactions
contemplated hereby would violate any nonappealable final order, decree or
judgment of any court or governmental body having competent jurisdiction; or
(e) by Micron in the event of any action by the Board of Directors of
PixTech to withdraw or modify its approval of this Agreement or the transactions
contemplated hereby, or its recommendation to the stockholders of PixTech to
grant the PixTech Stockholder Approval.
The party desiring to terminate this Agreement pursuant to clauses 13.1
(b), (c), (d) or (e) shall give notice of such termination to the other party.
SECTION 13.2. Effect of Termination. If this Agreement is terminated
as permitted by Section 13.1, such termination shall be without liability of
either party (or any stockholder, director, officer, employee, agent, consultant
or representative of such party) to the other party to this Agreement; provided
that if such termination shall result from the willful (i) failure of either
party to fulfill a condition to the performance of the obligations of the other
party, (ii) failure to perform a covenant of this Agreement or (iii) breach by
either party hereto of any representation or warranty or agreement contained
herein, such party shall be fully liable for any and all Damages incurred or
suffered by the other party as a result of such failure or breach.
ARTICLE XIV
MISCELLANEOUS
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SECTION 14.1. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Micron, to:
Micron Technology, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
if to PixTech, to:
PixTech, Inc.
Avenue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: President
Telecopy: 011-33-4-47-29-05-09
Telephone: 011-33-4-42-29-10-00
with a copy to:
▇▇▇▇▇▇ & Dodge LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
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SECTION 14.2. Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any or other further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 14.3. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
SECTION 14.4. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
SECTION 14.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
SECTION 14.6. Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other party
hereto. No provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
SECTION 14.7. Entire Agreement. This Agreement, together with the
Ancillary Agreements and the Non-Disclosure Agreement, constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement, except for Section 16 of that certain letter of intent between the
parties dated January 22, 1999, which shall survive execution of this Agreement.
SECTION 14.8. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction
or interpretation hereof.
SECTION 14.9. Disclosure Schedules. The parties acknowledge and
agree that (i) the Schedules to this Agreement may include certain items and
information solely for informational purposes for the convenience of the parties
and (ii) the disclosure by a party of any matter in the
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Schedules shall not be deemed to constitute an acknowledgment by the other party
that the matter is required to be disclosed by the terms of this Agreement or
that the matter is material. If any Schedule discloses an item or information in
such a way as to make its relevance to the disclosure required by another
Schedule readily apparent, the matter shall be deemed to have been disclosed in
such other Schedule, notwithstanding the omission of an appropriate cross-
reference to such other Schedule.
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IN WITNESS WHEREOF, the parties hereto have caused this Acquisition
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MICRON TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Chairman and Chief Executive Officer
PIXTECH, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Chairman and Chief Executive Officer
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Amendment No. 1 to Acquisition Agreement
This Amendment No. 1 to Acquisition Agreement (the "Amendment") is dated as
of April 23, 1999 and amends that certain Acquisition Agreement (the
"Acquisition Agreement") dated as of March 19, 1999 between Micron Technology,
Inc. ("Micron") and PixTech Inc. ("PixTech"). Capitalized terms used but not
defined herein shall have the meaning given them in the Acquisition Agreement.
WHEREAS, Micron and PixTech have entered into the Acquisition Agreement
relating to the acquisition by PixTech of certain assets of Micron's Display
Division.
WHEREAS, Micron and PixTech desire to amend the Acquisition Agreement as
set forth herein.
NOW THEREFORE, for good and valuable consideration, including the
consideration referred to in paragraph 2 below, the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows.
1. Amendments to Acquisition Agreement.
1.1 Section 2.6 of the Acquisition Agreement shall be amended by
deleting the last sentence thereof in its entirety.
1.2 Schedule 1.1-B to the Acquisition Agreement shall be amended by
deleting the contract entitled "DABT63-97-C-0001 executed March 25, 1997" from
such Schedule.
2. The parties hereto acknowledge and agree that as a result of the
foregoing amendments, DARPA Contract No. DABT63-97-C-0001 executed March 25,
1997 (the "Specified Contract") will not be among the Assumed Contracts and
Assumed Liabilities to be acquired by PixTech pursuant to the Acquisition
Agreement, and the Specified Contract shall remain the asset and liability of
Micron. In consideration for deleting the Specified Contract from the Assumed
Contracts and Assumed Liabilities to be acquired by PixTech, PixTech agrees that
it shall cooperate fully with Micron to permit Micron to satisfy all of its
obligations under the Specified Contract. Among other things, PixTech agrees
that (i) Micron shall be entitled to satisfy its obligations under the Specified
Contract with all necessary assistance, whether technological, financial or
otherwise, from PixTech, at no expense to Micron, (ii) if requested by Micron,
PixTech shall cooperate with Micron to obtain an amendment to the Specified
Contract, whether prior to or following the Closing, to provide that Micron may
utilize PixTech's technology and fabrication resources, including its base plate
technology, to manufacture displays required to be delivered by Micron to DARPA
under the Specified Contract, and (iii) if requested by Micron, PixTech shall
deliver to Micron, at no cost to Micron [*]. Each of the displays referenced in
clause (iii) above shall have sufficient electronics to run video images from a
PixTech-provided video source or sources. Process, design details, and all run
cards and probe/test results of the foregoing displays will be provided to
Micron by PixTech. Micron will have the right to share or use such information,
documents and displays with the U.S. Department of Defense, as it deems
appropriate.
[*] Confidential Information has been omitted and separately filed with the
Commission. Confidential treatment requested with respect to the omitted
portion.
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Micron, together with representatives of the U.S. Department of Defense, will be
allowed to observe and actively participate in any and all fabrication and
testing steps in connection with the displays, and to discuss the fabrication
and testing of the displays with PixTech technical staff. The parties further
agree that in no event shall any activities by Micron to satisfy its obligations
under the Specified Contract be construed as a violation of Micron's agreement
not to compete set forth in Section 7.4 of the Acquisition Agreement, and the
provisions of such Section 7.4 shall be suspended for such purpose.
3. Counterparts. This Amendment may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their authorized officers as of the day and year first above
written.
MICRON TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------
Vice President and General Manager-
Display Division
PIXTECH, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
President and Chief Executive Officer
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Amendment No. 2 to Acquisition Agreement
This Amendment No. 2 to Acquisition Agreement (the "Amendment") is dated as
of May 17, 1999 and amends that certain Acquisition Agreement dated as of March
19, 1999, as amended by an Amendment No. 1 dated as of April 23, 1999 (as
amended, the "Acquisition Agreement"), between Micron Technology, Inc.
("Micron") and PixTech Inc. ("PixTech"). Capitalized terms used but not defined
herein shall have the meaning given them in the Acquisition Agreement.
WHEREAS, Micron and PixTech have entered into the Acquisition Agreement
relating to the acquisition by PixTech of certain assets of Micron's Display
Division.
WHEREAS, Micron and PixTech desire to amend the Acquisition Agreement as
set forth herein.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows.
1. Amendment to Acquisition Agreement.
1.1 The second sentence of Section 9.4 of the Acquisition Agreement
shall be amended by adding the following clause in front of the period at the
end thereof:
"(including any requirement that Micron expend any money or incur any
expense or obligation to obtain additional or replacement software
licenses)"
1.2 The last sentence of Section 9.4 of the Acquisition Agreement
shall be amended to read in full as follows:
"If the applicable vendor does not give its consent, or such consent is
subject to any condition other than the payment or a fee, or the giving of
such consent would for any reason require Micron to obtain additional or
replacement software licenses, then such contract shall not be considered
an Assumed Contract."
1.3 The last sentence of Section 9.5(a) to the Acquisition Agreement
is amended to read in full as follows:
"The exercise price of the stock options will be the lesser of (i) $2.25313
or (ii) the closing price for PixTech Common Stock on the Closing Date;
provided that if the exercise price as so calculated is more than $1.825
per share, then PixTech will issue additional stock options to the
Transferred Employees at such exercise price. The number of additional
stock options to be issued will be mutually agreed upon by Micron and
PixTech.
PixTech hereby agrees to indemnify Micron pursuant and subject to Article XII of
the Acquisition Agreement from Damages incurred or suffered by Micron or any of
its Affiliates as a result of the foregoing amendment to Section 9.5(a) to the
Acquisition Agreement.
2. PixTech hereby agrees that it will preserve all books, records,
documents and technological and other information that PixTech acquires from
Micron in connection with the
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Acquired Assets and Assumed Liabilities for a minimum period of five years
following the Closing Date. Micron and PixTech acknowledge that all such books,
records, documents and technological and other information will be subject to
the confidentiality provisions of the Non-Disclosure Agreement. Notwithstanding
the foregoing, PixTech may dispose of, transfer, sell, convey, hypothecate,
lease or deliver any of the Acquired Assets as it deems fit during such five
year period.
3. Counterparts. This Amendment may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their authorized officers as of the day and year first above
written.
PIXTECH, INC. MICRON TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇, ▇▇.
----------------------------- -----------------------------
President and Chief Executive Vice President of Finance and
Officer Chief Financial Officer
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